Commissioners under New York Election law."
The defendants contend that Strong still has not stated a cognizable claim under section 1983, because he was not deprived of a federal constitutional or statutory right. According to the defendants, there is no constitutional right to a favorable ballot position. Rather, such a constitutional right exists to the extent that access to the ballot is denied, or in some cases where the ballot position being contested is the first on the ballot. Moreover, the defendants contend that Strong misreads New York Election Law § 7-116. According to the defendants, the statute vests in the local boards of elections discretion with respect to the placement of independent party candidates on the ballot. A lottery is only necessary where two or more candidates are nominated by one party for an office to which two or more persons are to be selected, if one of the candidates makes a timely demand for the lottery in writing. The defendants contend that is not the situation here, because Strong is the only candidate of his party seeking to run for a position that only one candidate can fill.
Finally, the defendants contend that this case is moot, because the injunctive relief requested by Strong in the complaint has been denied, and the election is over. In the alternative, should Strong's claim still be viable, the defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6).
At the outset, the Court notes that the relief requested in the complaint may be moot, as the November 8, 1994 election has passed. An action becomes moot when "the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome." Comer v. Cisneros, 37 F.3d 775, 798 (2d Cir. 1994) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979)).
The mootness doctrine has many exceptions, however. One such exception is when the action, although no longer live, is "capable of repetition, yet evading review." See, e.g., Moore v. Ogilvie, 394 U.S. 814, 816, 89 S. Ct. 1493, 1494, 23 L. Ed. 2d 1 (1969) (challenge to ballot access restrictions not moot after elections have been held); Dunn v. Bloomstein, 405 U.S. 330, 333 n.2, 92 S. Ct. 995, 998 n.2, 31 L. Ed. 2d 274 (1972) (challenge to residency eligibility requirement for voting not moot when plaintiff subsequently met eligibility requirement).
In this Court's view, the present action as pleaded in the complaint is not moot, because it is capable of repetition, even if it presently evades review. Like the challenges in Ogilvie and Dunn, supra, the plaintiff's challenge to the Suffolk County Board of Election's procedures for ballot placement of independent candidates could be repeated in the future by other candidates. Accordingly, the action will not be dismissed as moot.
Rule 12(b)(6) Dismissal.
A complaint is to be dismissed under Fed. R. Civ. P. 12(b)(6) (for failure to state a claim, if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); accord Gagliardi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir. 1994); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). Such a motion is addressed solely to the face of a pleading, Rent Stabilization Ass'n v. Dinkins, 5 F.3d 591, 593-94 (2d Cir. 1993), and "the court's function . . . is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).
In assessing the sufficiency of a pleading on a motion to dismiss, "all factual allegations in the complaint must be taken as true," La Bounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991), and all reasonable inferences must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied sub nom., Soifer v. Bankers Trust Co., 490 U.S. 1007, 104 L. Ed. 2d 158, 109 S. Ct. 1642 (1989).
Additionally, since the plaintiff is proceeding without an attorney, the Court must give wide latitude to the papers filed by the pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972) (Pro se papers are held "to less stringent standards than formal pleadings drafted by lawyers."); accord Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir. 1993) (pro se complaint must be 'liberally construed' in favor of the plaintiffs, and held to less stringent standards than formal pleadings drafted by lawyers) cert denied, 130 L. Ed. 2d 489, 63 U.S.L.W. 3420, 115 S. Ct. 572 (1994).
With respect to the substantive law governing this case, the defendants are correct in contending that there is no constitutional right under the equal protection clause to a favorable ballot position. See New Alliance Party v. New York State Board of Elections, 861 F. Supp. 282, 299 (S.D.N.Y. 1994) (rejecting constitutional right of independent party to a better position on the ballot); Clough v. Guzzi, 416 F. Supp. 1057, 1067 (D. Mass. 1976) (challenge to state law listing incumbents first on ballot as violating equal protection clause rejected, holding there is no constitutional right to a better ballot position).
Rather, access to the ballot is protected under the equal protection clause of the Constitution. See Munro v. Socialist Workers Party, 479 U.S. 189, 193-94, 107 S. Ct. 533, 536-37, 93 L. Ed. 2d 499 (1986); Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S. Ct. 5, 10-11, 21 L. Ed. 2d 24 (1968); New Alliance Party, 861 F. Supp. at 293-94. Moreover, in some cases courts have held that where the ballot position being contested is for the first position on the ballot, then there may be a cognizable claim under the equal protection clause in certain circumstances. See, e.g., Bohus v. Board of Election Commissioners, 447 F.2d 821, 822 (7th Cir. 1971); New Alliance Party, 861 F. Supp. at 285, 287.
In these latter situations, courts adopt a two-part test to determine the constitutionality of the top-of-the-ballot placement procedure. First, the plaintiff must show that top placement on the ballot is an advantage in an election. Second, the plaintiff must prove the existence of an intentional or purposeful discrimination by authorities in which one class is favored over another. Sangmeister v. Woodard, 565 F.2d 460, 465 (7th Cir. 1977), cert. denied sub nom, Illinois State Board of Elections v. Sangmeister, 435 U.S. 939, 55 L. Ed. 2d 535, 98 S. Ct. 1516 (1978). Indeed, different treatment of minority parties in ballot placement "that does not exclude them from the ballot, prevent them from attaining major party status if they achieve widespread support, or prevent any voter from voting for the candidate of his or her choice, and that is necessary to further an important government interest does not result in a denial of equal protection." Board of Election Commissioners v. Libertarian Party of Illinois, 591 F.2d 22, 25 (7th Cir.) (denying equal protection claim to challenge of ballot placement scheme that placed independent candidates underneath major party candidates), cert. denied, 442 U.S. 918, 61 L. Ed. 2d 285, 99 S. Ct. 2840 (1979).
In the present situation, the plaintiff has not been denied access to the ballot. Neither is he contending for the top position on the ballot, as that slot has been designated to the political party with the most votes in the last gubernatorial election, pursuant to Election Law § 116(1). Rather, the plaintiff is contending that the defendants applied New York Election Law § 7-116(2) in a discriminatory manner with respect to independent congressional candidates, by placing Strong in a position on the ballot so that the other independent candidates backed by the Republican and Democratic parties would be at an advantage. In doing so, Strong claims that the independent ballot positions were not determined by lot as required by section 7-116(2), but were arbitrarily and capriciously determined by the defendant commissioners.
In this Court's view, the plaintiff misreads the relevant statute. Section 7-116 provides in relevant part as follows:
1. In printing the names of candidates on the ballot, the candidate or candidates of the party which polled for its candidate for the office of governor at the last preceding election for such office the highest number of votes, shall be row or column A or one and the candidates of the other parties shall be placed on such ballot in descending order of such votes.