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GELB v. BOARD OF ELECTIONS IN NEW YORK

March 24, 1995

IRVING GELB, Plaintiff, against BOARD OF ELECTIONS IN THE CITY OF NEW YORK, et al., Defendants.


The opinion of the court was delivered by: SONIA SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 Opinion and Order

 Pro se plaintiff Irving A. Gelb ("Gelb") brings this action alleging that his First, Fourth, and Fourteenth Amendments rights were violated during the 1993 primary and general elections held in Bronx County. Defendants move to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative, ask that I abstain from deciding this matter on the basis of the Pullman abstention doctrine. For the reasons discussed below, the motion to dismiss is granted in part, and denied in part. Defendants' request for abstention is also denied.

 Background

 In June 1993, Gelb launched a campaign to be nominated by the Democratic Party for the office of Bronx Borough President. To be placed on the primary ballot, Gelb submitted a designating petition as required by New York Election Law (hereinafter "NYEL") § 6-118. The incumbent successfully challenged Gelb's designating petition, and as a result, Gelb's name was removed from the primary ballot. Final Amended Complaint, dated March 18, 1994 (hereinafter "Final Compl.") at II P 2. Gelb continued his campaign to win the Democratic nomination by running as a write-in candidate. After the primary, Gelb also ran in the general election as a write-in candidate. Id.

 Gelb's Final Amended Complaint alleges that numerous ballot and voting booth irregularities occurred during the primary and general elections. To help focus this motion, I will detail Gelb's claims by breaking them down into distinct causes of action.

 First Cause of Action -- Primary Election: Sample Ballots

 Gelb's first cause of action asserts that the sample ballots utilized in the primary election violated NYEL § 7-118. Section 7-118 requires the board of elections to "provide facsimile and sample ballots which ... shall contain suitable illustrated directions for voting on the voting machine." According to Gelb, the "write-in column, although an intrinsic part of the voting machine, appears nowhere in the diagram and is not referred to in the instructions on the sample ballots of either the Primary or General Election." Id. at II P 5.

 Second Cause of Action -- Primary Election: Absentee Ballots

 In his second cause of action, Gelb maintains that the absentee ballots utilized in the primary election violated NYEL § 7-122 in two distinct ways. Section 7-122 provides, in relevant part:

 
'Absentee Ballot,' endorsed thereon.
 
(b) The names of candidates upon the ballot shall be printed in appropriate sections, with titles of offices, section numbers, emblems, voting squares, names of parties and political organizations and blank spaces for writing in names of persons not printed on the ballot...
 
(d) On the front of the ballot, shall be printed in heavy black type the following instructions...
 
3. To vote for a person whose name is not printed on this ballot write his name in the blank space at the bottom of the column under which the title of the office appears.

 N.Y. Elec. Law § 7-122 (McKinney's 1995 Supp.).

 Gelb alleges that the absentee ballot used in the primary election lacked the instruction required by § 7-122 (d)(3). Final Amended Complaint at II, P 8. He further alleges that the primary absentee ballot lacked blank spaces for write-in candidates as required by § 7-122(b). Id. at PP 7-8.

 Third Cause of Action -- Primary Election: Voting Booth Ballots

 Gelb also maintains that ballots in the voting booths during the primary election were not in accordance with NYEL requirements. Id. at II P 4. Specifically, Gelb states that his rights were violated by defendants' failure to comply with NYEL § 7-114(2)(g), which provides, in relevant part, that "spaces containing names of candidates and for writing in names, and intervening spaces on the paper ballot, shall be separated by light horizontal lines." N.Y. Elec. Law § 7-114(2)(g) (McKinney's 1978). I read this section of Gelb's Final Amended Complaint to mean that the primary ballot lacked spaces for write-in votes, contrary to NYEL § 7-114(2)(g).

 Gelb, presumably in the alternative, makes an additional allegation that the form of the voting booth ballot used during the primary election violated § 7-122(1)(a). He states:

 
§ 7-122, paragraph 1(a) states that 'ballots for absentee voters shall be, as nearly as practicable, in the same form as those to be voted in the district on election day.' From this it can be concluded that since the Office of Bronx Borough President is listed at the top of column #2 on the Primary Absentee Ballot (submitted as evidence), it also appeared at the top of column #2 in the voting machines in that district as well as every other district of the Bronx. Such being the case, it was impossible to cast a Write-In vote for the office of Borough President. The column of 40 Write-In slots is to the left of column #1 in every voting machine. The top of column #2, therefore, could not have the requisite corresponding Write-In slot. All the contested offices should have been in the first column on the ballot.

 Final Compl. at II, P 6. In other words, if the primary voting booth ballot was substantially similar to the primary absentee ballot, it would have been impossible to write-in a candidate for any office listed in the second column of the voting booth ballot because the write-in spaces only corresponded to the offices listed in the first column of the ballot.

 Fourth Cause of Action -- Primary Election: Voting Secrecy

 Gelb further claims that voting secrecy laws were violated when defendants failed to place pencils in the voting booths during the primary election as required by NYEL § 7-202. Id. at II P 10. Section 7-202(1) provides, in pertinent part:

 
A voting machine to be approved by the state board of elections must ... permit a voter to vote for any person for any office, whether or not nominated as a candidate by any party or independent body without the ballot, or any part thereof, being removed from the machine at any time. The machine must permit voting in absolute secrecy.

 N.Y. Elec. Law § 7-202(1) (McKinney's 1995 Supp.). To better understand Gelb's fourth cause of action, I take judicial notice of NYEL § ...


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