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STRONG v. SUFFOLK CTY. BD. OF ELECTIONS

December 17, 1994

MICHAEL STRONG, Plaintiff, against SUFFOLK COUNTY BOARD OF ELECTIONS, COMMISSIONERS GERALD L. BERGER AND GERALD EDELSTEIN, AND THE SUFFOLK COUNTY BOARD OF ELECTIONS, Defendants.


The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge:

 The plaintiff pro se Michael Strong ("Strong") was the candidate representing the independent "Fed Up" party in the November 8, 1994 election for the congressional seat of the first congressional district of New York. Strong was not elected.

 On October 17, 1994 Strong moved by Order to Show Cause to preliminarily enjoin the defendants from "drawing up, printing, distributing and promulgating any and all Electoral Ballots for the November 8, 1994 elections, in which appears the office of Representative in Congress, 1st District," pending a final disposition on the merits of this action. Strong contended that the form of the election ballot was inadequately drawn and allegedly violated Strong's rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

 The Court heard oral argument on Strong's motion on October 21, 1994, and ruled that Strong had not met the criteria for a preliminary injunction. The Court found that any irreparable harm alleged by Strong was speculative. The Court also found that Strong had failed to show a likelihood of success on the merits or a sufficiently serious question going to the merits that is a fair ground for litigation and a balance of hardships tipping decidedly in his favor. Indeed, the Court stated it had serious reservations regarding whether Strong had even presented a cognizable claim under the Fourteenth Amendment or 42 U.S.C. § 1983.

 In its order denying the plaintiff's motion for a preliminary injunction, the Court directed that the plaintiff submit a memorandum of law within several weeks addressing the issue of why his complaint should not be dismissed for failure to state a claim. It is that issue that the Court addresses in this decision.

 THE COMPLAINT

 According to the complaint, on August 23, 1994 Strong submitted an Independent Nominating Petition for the Fed Up Party, containing the signatures of 4,541 registered voters which nominated him for the congressional seat of the first congressional district of New York. Upon submission of the nominations, he asked the defendant Gerald Berger ("Berger"), who is the Republican Commissioner of the Suffolk County Board of Elections about the procedure for determining ballot positions and the placement of his name on the ballot. Strong alleges that he was told he would be notified of the procedure and placement.

 Essentially, Strong contends that he was never notified of the procedure, and was subsequently told by Commissioner Berger that Strong had no say in ballot placement. Because of an alleged need to collapse the ballot so as not to leave any gaps in space, while maintaining the positions on the ballot designated to the five major parties in New York, Strong was placed in a position on the ballot in the same row as the Socialist Worker's Party, albeit several columns away. According to Strong, such a position on the ballot puts him at a disadvantage, by making it difficult for someone reading the ballot to know that Strong is running for Congress as an independent Fed Up candidate.

 Strong submitted a freedom of information form to the Suffolk County Board of Elections, requesting the transcript of proceedings that determined the ballot positions. Strong alleges that Commissioner Berger and the defendant Edelstein, the Democratic Commissioner of Elections, responded to the request by explaining to Strong that there was no such transcript. The two commissioners are alleged to have explained to Strong that they sat down and formulated the ballot as they thought it would best work.

 According to Strong, the defendants have failed to adopt a constitutional means of ballot placement. Strong contends that the preparation and positioning of the candidates and parties in the ballot at issue as allegedly described by the defendants is "arbitrary, preferential and discriminatory," and in violation of Strong's rights under the Equal Protection clause. In terms of relief, the complaint seeks to enjoin the defendants from "drawing up, printing, distributing and promulgating any and all Electoral Ballots for the November 8, 1994 elections, in which appears the office of Representative in Congress, 1st District." No other form of injunctive relief or damages is requested.

 STRONG'S PRESENT CONTENTIONS REGARDING HIS CLAIM

 In responding to the Court's directive to address whether he has filed a cognizable claim under section 1983, Strong makes the following allegations that are not in his complaint:

 
1. That the defendants applied New York Election Law § 7-116 with respect to independent congressional candidates in a discriminatory manner, by placing the Fed Up congressional candidate on the row that the Socialist Worker's Party candidates were on, and in between the names of the independent candidates respectively backed by the Republican and Democratic parties;
 
2. That the defendants never informed Strong of certain alleged procedures for determination of independent ballot positions by lot under section 7-116;
 
3. That the independent ballot positions were not determined by lot, but arbitrarily and capriciously by ...

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