The opinion of the court was delivered by: KORMAN
(CORRECTED FOR PUBLICATION)
This case is before me on a renewed motion for a preliminary injunction following the completion of the petitioning phase of the 1996 New York Republican primary to select delegates to the Republican National Convention. The complaint and application for preliminary relief were originally filed on November 13, 1995, just prior to the commencement of the "petitioning phase" of the primary. At that time, plaintiffs contended that the ballot access signature requirements adopted by New York State and the New York Republican State Committee violated the Equal Protection Clause because the burdens on ballot access they placed on delegate candidates in congressional districts with relatively few Republicans were substantially higher than the burdens they placed on districts with many Republicans. Although plaintiffs also alleged that the ballot access requirements constituted an undue burden, I did not reach that prong of their complaint. I addressed only their Equal Protection Clause claims and granted preliminary relief that would have reduced the signature requirements in half of the districts. See Rockefeller v. Powers, 909 F. Supp. 863, 1995 U.S. Dist. LEXIS 18742, 1995 WL 744927 (E.D.N.Y. 1995).
In so doing, I observed that the ballot access requirements adopted by New York State and the Republican State Committee could not be sustained because, as applied, they unreasonably discriminated based on the number of Republicans enrolled in a congressional district:
In those districts in which it is easier to find a needle in haystack than an enrolled Republican, they require signatures from a percentage of enrolled Republicans three times greater than is required in the large majority of congressional districts, where the number of enrolled Republicans approaches or substantially exceeds 100,000 and the difficulty of finding them is greatly reduced.
Rockefeller v. Powers, 909 F. Supp. 863, 1995 U.S. Dist. LEXIS 18742, at *15, 1995 WL 744927, at *5 (E.D.N.Y. 1995) Moreover, after examining the rationale behind this apparently discriminatory scheme I concluded that
The Second Circuit reversed, in part because it did not agree with plaintiffs' "empirical claim that the [ballot signature requirement] establishes a likelihood of significantly reduced choice in districts with fewer Republicans compared to more heavily Republican districts." Rockefeller v. Powers, 74 F.3d 1367, 1995 U.S. App. LEXIS 39107, *33, 1995 WL 790831, at *8 (2d Cir. 1995). Based on its own review of plaintiffs' affidavits, which detailed the results of the petitioning phase in the 1988 New York Republican Party primary, the Court of Appeals concluded:
There does appear to be a correlation between (a) the districts with more than two candidates on the ballot and (b) the number of registered Republicans in those districts; none of the fifteen least Republican districts had more than two candidates on the ballot. But we think that the difference between three slates and two slates is decidedly less significant than the difference between two slates and one slate. The contention that the fundamental right to vote is infringed in single-candidate districts (where there is arguably no choice) is a very different contention (and a much stronger one) than the contention that the fundamental right to vote is infringed in districts with two candidates on the ballot.
The results of the 1995-96 petitioning phase show the same correlation that the Court of Appeals saw in the 1988 data. As in 1988, the choice of ballot access restrictions that require slates of delegates pledged to a particular candidate to obtain signatures from 5% or 1250 of the enrolled Republicans in each district was made by the Republican State Committee from two choices offered by New York law. See Rockefeller v. Powers, 74 F.3d 1367, 1995 U.S. App. LEXIS 39107, *32, 1995 WL 790831, at *2 (2d Cir. 1995). Delegate slates committed to Senator Robert Dole, the candidate endorsed by the Committee and favored by the Party apparatus, are on the ballot in every district. In sixteen of the seventeen most densely Republican districts, both Steve Forbes and Patrick Buchanan slates also attempted to get on the ballot. In eleven of these districts both groups succeeded and the voters will, therefore, have a choice of three candidates. In four of them, the voters' only choice will be between Senator Dole and Mr. Forbes and in one, the 24th, only Senator Dole will be on the ballot.
The situation in the fourteen districts with the fewest Republicans is dramatically different. In those districts, both challengers to the Party favorite attempted to get on the ballot in the same districts only eight times and in only one district did they both succeed. After court challenges, voters in eleven of the fourteen least densely Republican districts will have a choice between Senator Dole and only one other candidate and in two, the 9th and 15th, only Senator Dole will be on the ballot.
The evidence of the burden imposed by this statutory scheme is even more telling if one looks behind the numbers. Of the candidates who accept public financing under the Federal Election Campaign Act of 1971, only one candidate, other than the Republican State Committee's favored candidate, even attempted to devote the resources necessary to place delegate slates on the ballot. This candidate, Patrick Buchanan, made the effort in twenty-four of the thirty-one districts. Nevertheless, he was ultimately successful in only thirteen districts, ten of which are high-density districts. The other candidate who challenged the candidate favored by the Republican State Committee is Mr. Forbes, who was not bound by the campaign finance laws. Had Mr. Forbes, whom the defendants characterize as "highly atypical in ways that the first amendment does not particularly favor," (Defs.' Opp. to Mot. for Prelim. Inj. at 13), not entered the race, the effect of New York's ballot access scheme would have been to deny voters in the eleven least densely Republican districts (and eighteen of all thirty-one districts) any choice while permitting a choice of two candidates in thirteen of the twenty most densely Republican districts.
That the Forbes campaign's petition drive was far more potent than could be expected from candidates lacking his huge personal fortune is demonstrated by the approaches taken by the other major candidates who were not favored by the Republican State Committee. This year, the only other such candidate who made an effort to get on the ballot in New York was Patrick Buchanan, whose candidacy derived a significant advantage due to extraordinary media exposure unrelated to a career in public office. See A. M. Rosenthal, Making of Buchanan, N.Y. Times, Feb. 16, 1996, at A33. All other Republican candidates in a relatively large field that included the former Governor of Tennessee and Secretary of Education, Lamar Alexander, Senator Richard Lugar, and Senator Phil Gramm, opted not to compete in New York. The plaintiffs have provided an affidavit from the chairman of Senator Gramm's campaign, Charles Black, averring that Senator Gramm chose to forego New York after estimating that even a mildly successful petition drive would have cost the campaign one million dollars. (Black Aff. P 22.) The affidavit states that "absent New York's arcane and burdensome ballot access requirements and procedures, I would have counseled the Campaign to compete in the New York Primary. However, it is currently prohibitive for Non-favored Candidates to compete in New York. For these reasons, the [Gramm] Campaign elected not to compete in New York." (Black Aff. P 24.)
While the Gramm campaign and others chose to forego New York altogether, the thrust of Mr. Black's affidavit is similar to the affidavits submitted on behalf of Senator Dole and Pat Robertson in the 1988 legal challenge to New York's ballot access restrictions. While Senator Dole and Pat Robertson did not entirely forego the 1988 New York Republican primary, they did not attempt to get on the ballot in all thirty-four of the congressional districts and were not successful in many in which they devoted considerable resources to the effort.
Mr. Pepe, the executive director of the Dole campaign in 1988, wrote that the New York ballot access scheme at issue here
imposed considerable burdens on the state campaign. Despite the labors of approximately 600 members of the Dole campaign staff, both paid and volunteer, across the state, and an expenditure of approximately $ 90,000 to accomplish the task, the Dole campaign was able to file petitions for slates of three delegate candidates for only 22 of the state's 34 congressional districts.
Given the staffing realities and the strictures of New York law, the Dole campaign made the difficult decision to devote its resources and energies to filing petitions in 22 congressional districts, identified as ones in which the campaign was run up, staffed and organized at local levels to attempt the necessary petition drive to place delegate candidates on the ballot. Thus certain congressional districts effectively had to be sacrificed from the ballot, given the finite numbers of people, funds, expertise and time available to conduct the necessary petition drives.