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August 30, 1994


The opinion of the court was delivered by: ROBERT J. WARD

 WARD, District Judge.

 In this action challenging the constitutionality of N.Y. Elec. Law § 7-116 ("Section 116"), plaintiffs New Alliance Party ("NAP"), Lenora B. Fulani, and Rafael Mendez move for summary judgment, pursuant to Rule 56, Fed. R. Civ. P. Defendant New York State Board of Elections (the "State") cross-moves for an order, pursuant to Rule 12(b)(6), Fed. R. Civ. P., dismissing the complaint for failure to state a claim upon which relief can be granted. *fn1" For the following reasons, NAP's motion is denied, the State's motion is granted and the Court finds that Section 116 does not deprive plaintiffs of their constitutional rights. *fn2"


 Under New York Election Law, there are two varieties of political organizations -- "parties" and "independent bodies." A "party" is defined as "any political organization which at the last preceding election for governor polled at least fifty thousand votes for its candidate for governor." N.Y. Elec. Law § 1-104(3). On the other hand, an "independent body" refers to "any organization or group of voters which nominates a candidate or candidates for office to be voted for at an election, and which is not a party as herein provided." Id. § 1-104(12). While independent bodies are not subject to any organizational requirements, parties must maintain state and county committees of elected representatives and must conduct primary elections in the event more than one person seeks its nomination for public office. NAP is an independent body that has fielded candidates for federal and state office since its formation in 1979. It, along with its chairperson and one of its supporters, alleges that Section 116, New York's ballot placement statute, is unconstitutional. *fn3"

 Section 116 provides two methods for arranging political candidates on the ballot in New York, one for the candidates of political parties, the other for the candidates of independent bodies. Pursuant to Section 116, party candidates are listed before independent body candidates, and are positioned in descending order based on their performance in the preceding gubernatorial election. N.Y. Elec. Law § 7-116(1). *fn4" At present, New York has five parties, and, as a result of their performance in the 1990 gubernatorial election, their order on election ballots for the subsequent four years has been as follows: (1) Democratic; (2) Republican; (3) Conservative; (4) Right to Life; and (5) Liberal. While Section 116 directs that the independent bodies follow the parties, it does not prescribe a particular method for arranging these candidates, and leaves the order of placement to the discretion of the State. Id. § 7-116(2). *fn5" Currently, the State determines the arrangement of independent bodies by a lottery.

 When this action was instituted in 1990, NAP sought to challenge the States's discretionary authority and the methods it employed in positioning independent bodies on the ballot. On September 27, 1990, NAP brought an order to show cause for a preliminary injunction requiring the State to list all political organizations on the November 1990 general election ballot in descending order based on performance in the 1986 gubernatorial election. In particular, NAP claimed that it should be slotted sixth after the five parties because it had been the only independent body to run a candidate for governor in the 1986 election in which NAP received 24,100 votes. As a result of the lottery which was held on September 18, 1990, however, NAP placed third among independent bodies and was therefore to be situated in the eighth position overall.

 This Court denied NAP's motion for a preliminary injunction on the ground that plaintiff failed to prove irreparable harm. New Alliance Party v. New York State Board of Elections, 1990 U.S. Dist. LEXIS 13289, 1990 WL 155590 (S.D.N.Y. Oct. 9, 1990). Were the motion granted, the Court explained, NAP would have been slotted sixth rather than seventh. While case law has sometimes found that position advantage inheres in the first slot on the ballot, no case has held, nor did NAP submit evidence showing, that movement from one intermediate position to another closer to the first position confers an advantage on the candidate. The Court also noted that NAP might have had more support for its motion had the ballot remained as originally arranged after the lottery was conducted. Subsequent to the lottery, the second ranked independent body was removed from the ballot and NAP was switched from eighth to seventh position. This move was significant because in the 1990 gubernatorial election, New York City voting machines were arranged in horizontal rows of seven columns. Placement in the eighth slot, the Court theorized, might have harmed NAP because it would have been positioned on the second horizontal row.

 In the 1990 gubernatorial election, NAP received approximately 31,100 votes, the highest vote tally among the independent bodies. *fn6" plaintiff then moved for summary judgment contending that the State's policy deprives the independent bodies of benefitting from positional advantage on the ballot in relation to their voting strength, something the parties enjoy. NAP claimed the board was discriminating against the independent bodies in violation of the Constitution under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The Court denied the summary judgment motion on account of a disputed factual issue. New Alliance Party v. State Board of Elections, 1991 U.S. Dist. LEXIS 13173, 1991 WL 196263 (S.D.N.Y. Sept. 25, 1991). As with the preliminary injunction motion, plaintiff's claim was premised on intermediate position advantage, and here too it neglected to offer any concrete evidence of such advantage. The Court, therefore, found that absent statistical evidence or expert testimony, plaintiff would be incapable of establishing the necessary foundation for its claims. Id. at *6. Although, at the end of its decision, the Court directed the parties to engage in discovery and submit a pre-trial order, the action was discontinued without prejudice by stipulation and order on May 29, 1992.

 Then, on September 9, 1992, the State held its lottery for the presidential election to be held on November 3, 1992. Six independent bodies participated and NAP drew fifth place. Because the sixth ranked independent body failed to file timely acceptances, it was disqualified from being listed on the ballot and NAP fell to last place. As a result of the lottery, NAP was "double columned" or "double rowed" on the 1992 ballot in New York State. For that election, the State used two styles of voting machines. In New York City and the city of Albany, the ballot was arranged horizontally in a row of nine columns designated "A" through "H." Additional independent bodies were doubled-up under other independent bodies, and thus NAP in slot "J" was situated directly below Ross Perot's No Party in slot "G." Appendix A, infra. On all other ballots in the State, the voting machines listed candidates vertically in a column of nine rows. On this ballot, NAP was the only independent body doubled-up, also adjacent to the No Party. Appendix B, infra.

 After its poor performance in the 1992 lottery, NAP once again decided to challenge New York's ballot placement statute through an order to show cause seeking a preliminary injunction. At oral argument held on October 9, 1992, plaintiff argued that it would suffer irreparable harm by its allotted placement on the ballot because of the space limitations that exist on voting machines in New York. Subsequent to oral argument, plaintiff withdrew its motion for a preliminary injunction, while the Court agreed to vacate the stipulation of discontinuance and grant plaintiff leave to serve and file a supplemental complaint.

 Through its supplemental complaint, plaintiff now seeks declaratory and injunctive relief from the procedures employed by the State in listing and ordering all candidates for political office on the electoral ballot in New York. Specifically, plaintiff contends in Count I that the statutory scheme abridges its First and Fourteenth Amendment rights to cast an effective vote, to associate for the advancement of political ideas, and to create and develop a new political party. It also alleges, in Count II, that Section 116 violates the Equal Protection Clause of the Fourteenth Amendment, insofar as the statute denies independent bodies the same opportunity parties have to be listed in the first position on the ballot or even on the first row or column. *fn7" Plaintiff offers no empirical evidence in support of its claims, but asserts that ballot placement advantage is a self-evident fact. According to NAP, the Court need only glance at the ballots used in the 1992 election to determine that a doubled-up party is relegated to a confused, obscure and disadvantaged position.

 As an alternative to Section 116, NAP proposes that a uniform method be applied to all political entities listed on a ballot or that a rotational system be devised whereby each entity qualifying for the ballot is assigned each position on the ballot in an equal number of voting districts. Plaintiff submits that twenty-seven states now provide for complete or partial ballot rotation. In New York State, however, the ballot rotation device is used only in New York City primary elections.


 A summary judgment motion may be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), Fed. R. Civ. P.; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). No genuine issue of material fact exists when no rational fact finder could find in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, in ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991).

 On a motion for summary judgment, a movant has a heavy burden. He must show that the facts which would warrant granting the motion are undisputed because "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions not those of a judge." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In making a summary judgment determination, therefore, the Court does not resolve disputed issues of fact but assesses whether material issues remain for the trier of fact. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

 To dismiss a complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6), Fed. R. Civ. P., it must "appear[] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). In ruling on the motion, a court must limit itself to the facts stated in the complaint, Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991), accept those facts as true, Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991), cert. denied, 118 L. Ed. 2d 548, 112 S. Ct. 1943 (1992), read the complaint generously, and draw all reasonable inferences in favor of the pleader. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989) (citing Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir. 1985)). In this action, plaintiff not only fails to prove that no genuine issue of material fact is in dispute but it is unable to prove any set of facts which would support the claims it has alleged.

 I. Ballot Position Advantage

 Plaintiff's reconstituted challenge to Section 116 is predicated on a claim of "position bias," the frequently-held belief that "the candidate occupying the first position on the ballot will receive a substantial number of 'extra' votes from voters who are either uninformed or uninterested in the candidates and habitually select the first name on the ballot." Ulland v. Growe, 262 N.W.2d 412, 414 (Minn.) (en banc), cert. denied sub nom, Berg v. Growe, 436 U.S. 927, 56 L. Ed. 2d 770, 98 S. Ct. 2822 (1978). Uniformed or indifferent voting behavior is referred to as the "windfall vote" or, at times, more derisively as the "donkey vote" inasmuch as those who vote randomly will often "uncritically check off whoever [sic] is at the top of the ballot, especially if the candidate is also an incumbent." Clough v. Guzzi, 416 F. Supp. 1057, 1063 (D.Mass. 1976). In this action, NAP contends that windfall voting extends to the top row of a double-columned ballot, and that it is disadvantaged by position bias both because it has no chance of being slotted first on the ballot and because it has only a diminished chance of being listed in the top row.

 Yet, plaintiff has tendered no empirical evidence in support of its claims. It has proffered no statistical studies or expert testimony demonstrating the existence of position bias and its effects on the outcome of an election in New York State nor has it submitted any evidence that a doubled-up candidate suffers because of position bias. *fn8" Instead, plaintiff argues that empirical evidence is unnecessary because it is beyond dispute that double columning or double rowing confuses voters and has a negative impact on the doubled-up party's performance in the election. NAP asserts that the Court may take judicial notice of the existence and effects of "position bias" because it is a "self-evident" feature of voter behavior, which is confirmed more by the worth society attributes to first position than any results deduced by a study or theory. NAP states:

Society has attributed substantial significance to ballot position and placed a substantial value on ballot positions that are perceived to confer an advantage. . . . It is difficult and perhaps misguided to seek underlying or intrinsic value in ballot position by means of statistical studies or similar empirical methodology. Rather the value of ballot positions that are perceived to confer an advantage can be empirically verified by the sociological fact that people attribute value to such positions.

 Plaintiffs' Reply Memorandum at 8, n.5.

 However, courts have consistently held that the effect of ballot placement on election outcomes is a factual determination. Sangmeister v. Woodard, 565 F.2d 460, 465 (7th Cir. 1977), cert. denied and appeal dismissed sub nom., Illinois State Board of Elections v. Sangmeister, 435 U.S. 939, 55 L. Ed. 2d 535, 98 S. Ct. 1516 (1978); McLain v. Meier, 637 F.2d 1159, 1166 (8th Cir. 1980). Indeed, this Court denied NAP's earlier motion for summary judgment precisely because plaintiff had failed to submit empirical evidence demonstrating the existence or effects of intermediate ballot position advantage. NAP seeks to distinguish its present challenge by arguing that it relies on a commonly-held belief. That position bias is a popular perception of the voting public, however, is not sufficient to exempt NAP from the burden of proving its claims. It certainly does not justify disposition on a motion for summary judgment which would preempt a jury from assaying a material issue of fact.

 Judicially noticed facts are those which exhibit a high degree of indisputability. McCormack v. Cheers, 818 F. Supp. 584, 597 n.14 (S.D.N.Y. 1993). Under Rule 201(b), Fed. R. Evid., judicial notice encompasses facts that are either "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned," or they are "generally known within the territorial jurisdiction of the trial court." In this Court's view, the existence and effects of position bias are not subject to judicial notice under either one of these standards.

 A. Capable of Accurate and Ready Determination by Resort to Sources whose Accuracy cannot Reasonably be Questioned

 1. The Original View

 Academic studies and articles, as well as case law, have often adopted the view that position bias exists on an election ballot. The authoritative study on the subject is a report that analyzed the effects of ballot placement in Michigan city and county elections from 1951 to 1952. Henry M. Bain & Donald S. Hecock, Ballot Position and Voter's Choice: The Arrangement of Names on the Ballot and its Effect on the Voter (1957) [hereinafter Bain & Hecock]. This study formulated a statistical equation, which quantifies the advantages of being listed first on the ballot, while taking into account other factors that contribute to election performance. Id. at 47-54. Other studies following the Bain & Hecock model "have yielded almost unanimous results: all other factors being equal, the name appearing first in a list of candidates attracts a larger than random share of the vote." William James Scott, Jr., Note, California Ballot Position Statutes: An Unconstitutional Advantage to Incumbents, 45 So. Cal. L. Rev. 365, 366 (1972) (listing other studies and conducting its own study of California elections); see also, Sangmeister v. Woodard, 565 F.2d at 463 n.3 (listing studies).

 Based on similar statistical analyses provided by experts at a trial or hearing, some courts have declared state statutes or policies which reserve the first slot in a race to a particular candidate or party unconstitutional on account of position bias. Such schemes have included granting first place to the party that filed first, Weisberg v. Powell, 417 F.2d 388 (7th Cir. 1969); arranging the ballot alphabetically, Kautenburger v. Jackson, 85 Ariz. 128, 333 P.2d 293 (1958); situating one's own party first, Sangmeister v. Woodard, supra; and allotting the first or left hand column to the party that had received the most votes in a previous election. McLain v. Meier, supra. Other schemes, however, have been held to be constitutional. Ulland v. Growe, supra (listing party candidates before those of independent bodies and ordering parties by performance in last general election); Krasnoff v. Hardy, 436 F. Supp. 304 (E.D.La. 1977) (placing independent candidate to right of established parties on a horizontal ballot).

 The most controversial ballot placement schemes have been the "incumbent first" statutes in which the incumbent in a particular race is guaranteed first position. Over twenty years ago, New York determined such legislation to be unconstitutional when it struck down an amendment to the election law which afforded incumbents the first slot in all primary races. Holtzman v. Power, 62 Misc. 2d 1020, 313 N.Y.S.2d 904 (Sup. Ct.), aff'd, 34 A.D.2d 917, 311 N.Y.S.2d 824 (App. Div.), aff'd, 27 N.Y.2d 628, 313 N.Y.S.2d 760, 261 N.E.2d 666 (1970). California's incumbent first legislation was also invalidated after expert testimony introduced at a trial demonstrated the advantages of top ballot placement. Gould v. Grubb, 14 Cal. 3d 661, 665, 122 Cal. Rptr. 377, 536 P.2d 1337 (1975) (in banc). In fact, the ...

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