OPINION AND ORDER
MICHAEL B. MUKASEY, U.S.D.J.
Plaintiff Arthur R. Block lost a primary election last September in New York's Eighth Congressional District, by a margin of 88 percent to 12 percent, to a man who, as the electorate well knew, had died before the vote -- the late Rep. Ted Weiss. Block and two voters responded six days later with this lawsuit, seeking a judicial reversal of the electorate's resounding verdict. Plaintiffs claim that Weiss's candidacy was a fraudulent and unconstitutional interference with the election, in violation of 42 U.S.C. §§ 1983 and 1985 and the First and Fourteenth Amendments. Defendants are members of the New York Board of Elections; members of the committee that named Weiss's successor, Rep. Jerrold Nadler; and Nadler himself. They move to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons stated below, defendants' motion is granted.
This case arises out of the September 15, 1992 Democratic Party primary election to nominate a candidate for the 1992 general election in New York's Eighth Congressional District. The primary ballot in that election listed two candidates: plaintiff Arthur R. Block (Compl. P 5)
and former Rep. Ted Weiss -- who had died of heart failure the day before the primary election. (Compl. 21) In death, Weiss received 88 percent of the vote; Block received 12 percent. See N.Y. Times, Sept. 17, 1992, at B6.
On September 21, 1992, six days after the primary election, plaintiff Block delivered his rather unsportsmanlike
riposte to the post-mortem drubbing administered by Weiss: he filed a complaint, seeking among other things a declaration in effect that he had won the primary election. (Compl. at 21(b))
On September 23, 1992, the Democratic Party County Committee of Manhattan met and, after an advisory vote, defendants Geraldine Daniels and Marcey Feigenbaum -- chairpersons of the New York and Kings County Democratic Committees, respectively -- chose defendant Jerrold Nadler to replace Weiss as nominee.
(Compl. P 42) Defendant Nadler won the November 4, 1992 general election with 81 percent of the vote. See U.S.A. Today, Nov. 5, 1992, at 12A.
Plaintiffs are Block and two other individuals who claim that defendants infringed their right to vote and Block's right to participate as a candidate in the primary election. (Compl. PP 5-6, 53) Defendants are five individual New York Democratic Party leaders (the "party defendants"); the New York City Board of Elections and two of its officers; and Jerrold Nadler. (Compl. PP 7-15)
Plaintiffs claim that defendants violated their First and Fourteenth Amendment rights by (1) perpetrating a "sham candidacy," (Compl. PP 44-53) and (2) "fraudulently continuing a candidacy." (Compl. PP 54-68) Plaintiffs assert pendent state law claims for fraud and unjust enrichment. (Compl. PP 69-76) Plaintiffs seek among other things a declaration that the nomination of defendant Nadler was invalid. (Compl. at 19-22)
Defendants move to dismiss plaintiffs' claims for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990). Thus, a motion to dismiss must be denied "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)); Morales v. New York State Dep't of Corrections, 842 F.2d 27, 30 (2d Cir. 1988).
In deciding a motion to dismiss, the court must accept the plaintiff's allegations of fact as true, together with such reasonable inferences as may be drawn in his favor. Papasan v. Allain, 478 U.S. 265, 283, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986). Nevertheless, the complaint must set forth enough information to suggest that relief would be based on some recognized legal theory. Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F. Supp. 832, 836 (S.D.N.Y. 1988). "The District Court has no obligation to create, unaided by plaintiff, new legal theories to support a complaint." District of Columbia v. Air Florida, Inc., 243 U.S. App. D.C. 1, 750 F.2d 1077, 1081-82 (D.C. Cir. 1984).
Plaintiffs' allegations, which this Court must accept as true, are as follows. Ted Weiss was a Democratic Congressman in New York City from 1977 until his death on September 14, 1992. (Compl. P 16) In or about June 1992, the party defendants "were aware . . . that Rep. Weiss had potentially fatal health problems and his health was deteriorating." (Compl. 20) Nevertheless, the party defendants
caused Rep. Weiss to be designated as a candidate for nomination in the primary election with the intention and expectation that Rep. Weiss would not be able to serve another term in office and they would be able to pick his successor.
(Compl. P 21) The party defendants "took no action to inform the Democratic voters of the 8th C.D of Rep. Weiss's serious health problems," (Compl. P 22) and "intentionally withheld from dissemination to the public information about Rep. Weiss's failing health." (Compl. P 31)
Count One of plaintiffs' complaint is entitled "Sham Candidacy." Plaintiffs allege that defendants "perpetrated a sham candidacy using Rep. Weiss's name" and intentionally deprived voters of information concerning Rep. Weiss's health so that they could name his successor. (Compl. P 48, 50-52) Defendants' alleged scheme was "to cause the name of Rep. Weiss to appear on the primary ballot for the purpose of deceiving the voters to believe that by casting a vote they were voting to have Rep. Weiss represent them in Congress for another term." (Compl. P 47) Through this "scheme" defendants allegedly abridged plaintiffs' right to vote, as well as plaintiff Block's right to participate as a candidate in the primary election. (Compl. P 53)
Count Two is entitled "Fraudulent Continuation of Candidacy." Plaintiffs assert that defendants violated
their fiduciary obligations as party officials [by keeping] the news of Rep. Weiss's critical illness secret so that the news would not generate a demand from voters and the general public that Rep. Weiss file a declination so that a person able to serve in office would be on the primary ballot in his place.
(Compl. P 64) To support this assertion, plaintiffs cite two sections of New York's Election Law, described below. Essentially, plaintiffs allege that defendants "fraudulently continued" Rep. Weiss's candidacy by concealing their knowledge "that there was virtually no possibility that Rep. Weiss would be able to serve another term in office." (Compl. P 62) Plaintiffs claim that if defendants had disclosed their knowledge of Rep. Weiss's deteriorating health, then Rep. Weiss would have declined the nomination -- either by his own decision or in response to public demand. (Compl. P 64)
Count Three is a state law claim for fraud and unjust enrichment. Plaintiffs allege that defendants defrauded them by failing to disclose their knowledge of Rep. Weiss's health, and that defendants thereby unjustly gained the right to select the nominee. (Compl. PP 70-76)
To support all three counts, plaintiffs rely on a handful of cases that have addressed some issues presented by fraudulent candidacies in primary elections. See, e.g., Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S. 910, 41 L. Ed. 2d 214, 94 S. Ct. 2607 (1974); Rudisill v. Flynn, 470 F. Supp. 1269 (N.D. Ill. 1979), aff'd, 619 F.2d 692 (7th Cir. 1980); Mahoney v. May, 40 N.Y.2d 906, 389 N.Y.S.2d 355, 357 N.E.2d 1010 (1976); Farbstein v. Suchman, 26 N.Y.2d 564, 312 N.Y.S.2d 196, 260 N.E.2d 817 (1970). The central question in those cases was whether defendants had abridged or infringed plaintiffs' right to vote by perpetrating "a sham intended to deceive the voters." See, e.g., Smith v. Cherry, 489 F.2d at 1102 (citing cases).
Although several courts have found that a candidacy was a sham, these cases do not support plaintiffs' claims because (1) plaintiffs do not allege that Rep. Weiss knew or intended that he would not serve, (2) plaintiffs have not pleaded facts sufficient to attribute to defendants knowledge that Rep. Weiss would not serve, (3) plaintiffs have not pleaded facts from which to infer, and the circumstances do not support the inference of, an agreement between defendants and Rep. Weiss that he would not serve, (4) plaintiffs have not pleaded facts to indicate that defendants' alleged knowledge if disclosed to the public would have changed the election results; (5) plaintiffs' interpretation of the relevant case law offends basic constitutional principles, including the First Amendment.
First, plaintiffs do not allege that Rep. Weiss knew or intended that he would not serve. Plaintiffs do not allege that Rep. Weiss's candidacy in the 1992 Democratic primary election was, from his perspective, anything other than a legitimate bid for reelection. Plaintiffs do not allege that Rep. Weiss agreed with anyone to withdraw if nominated, or to resign if elected.
Rather, plaintiffs dispute that such knowledge or intent is necessary to prove a "sham candidacy." Plaintiffs argue that a sham candidacy occurs when party officials deliberately conceal their knowledge that a candidate lacks the capacity to serve. (Pl. Mem. at 5) Defendants respond that a sham candidacy occurs when a candidate intends to withdraw upon election, and agrees with party officials that he or she will not serve. (Def. Mem. at 8)
Both parties ground their arguments on Smith v. Cherry, supra -- apparently the only federal case that deals with sham candidacies in primary elections. In Smith v. Cherry, plaintiff Smith lost an Illinois Democratic primary election to defendant Cherry, an incumbent state senator. 489 F.2d at 1100. Defendant Cherry withdrew soon after the primary, and Democratic Party officials selected a replacement nominee, who then won the general election. Id. Plaintiff Smith alleged that defendant Cherry never intended to run in the general election, but rather conspired with Democratic Party officials to defeat Smith in the primary election by running as a "sham or stand-in candidate." Id. The district court had dismissed these allegations, but the Seventh Circuit reversed per curiam and remanded the case to the district court with instructions that
if the plaintiffs prove an agreement that Cherry would be a stand-in candidate, and show a reasonable possibility that Cherry's sham candidacy affected the outcome of the election, then the district court should order new primary and general elections.
Id., at 1103.
Accordingly, the two-part rule of Smith v. Cherry is that a sham candidacy occurs when (1) a nominee agrees with party officials that he or she will be a candidate in the primary election, but will withdraw after the primary, and (2) there is a reasonable possibility that the candidacy affected the outcome of the primary. Smith v. Cherry, 489 F.2d at 1103. Because plaintiffs do not allege that Rep. Weiss agreed with anyone to withdraw if nominated, or to resign if elected, they do not satisfy this rule.
Moreover, New York law requires that plaintiffs allege that defendants "actually intended" to deceive voters in order to state a claim for election fraud. See, e.g., Farbstein v. Suchman, 26 N.Y.2d at 566-67, 312 N.Y.S.2d at 198, 260 N.E.2d at 818; Ferguson v. New York State Liberal Party State Comm., 90 A.D.2d 586, 465 N.Y.S.2d 68 (3d Dep't 1982). "Actual deception of the voters" is necessary to state a claim for election fraud." Mahoney v. May, 40 N.Y.2d at 907, 389 N.Y.S.2d at 355, 357 N.E.2d at 1010.
In Farbstein v. Suchman, 26 N.Y.2d at 566-67, 312 N.Y.S.2d at 198, 260 N.E.2d at 818, the Court noted that a party committee may not control a nomination by using a stand-in candidate who does not intend to serve. However, the Court held that plaintiffs failed to state a claim for election fraud in that case, because even though the former candidate decided to withdraw after he was designated, there was no "showing of intent by the candidate and [committee] to circumvent the normal nominating process." Id.
A candidacy does not become a "sham" simply because the candidate may suspect that he or she may not complete the term of office. For example, it is not uncommon for a candidate to run with an expectation of seeking another office before the term of the first expires. Neither is it uncommon for a candidate in poor health to run for office. Rep. Weiss was entitled to run for Congress even if he expected that he would not complete his term, whether by reason of health or other circumstance.
Second, plaintiffs have not pleaded facts that attribute to defendants knowledge that Rep. Weiss would not serve. Put another way, plaintiffs have not supported with facts their assertion that defendants knew Rep. Weiss would not serve, if elected. At most, plaintiffs have indicated that defendants thought it was probable that Rep. Weiss would lack the capacity to serve through his term, or that he would die before the end of his term.
Although plaintiffs argue in their memorandum that defendants knew that Weiss would die, plaintiffs' complaint shrinks from actually alleging such knowledge, and that is to the credit of plaintiffs and their lawyers. For example, plaintiffs' complaint contains the following allegations as to defendants' knowledge:
"it was perceived by persons aware of his condition that there was a significant possibility that [Rep. Weiss] would die in the near future" (Compl. P 18)
"it was unlikely that [Rep. Weiss] would have the physical capacity, in any event, to serve another term in office, or to conduct an active reelection campaign"; (Compl. P 18)