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BROCK v. SANDS

April 27, 1996

THOMAS BROCK, Plaintiff, against STEPHEN SANDS, Objector, and DOUGLAS KELLNER, PAUL MEJIAS, VINCENT VELELLA, KATHLEEN WAGNER, WEYMAN CAREY, SEYMORE SHELDON, GERTRUDE STROHM, FERDINAND MARCHI, RONALD D'ANGELO and FREDERICK UMANE, Commissioners constituting the BOARD OF ELECTIONS IN THE CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: BLOCK

AMENDED MEMORANDUM AND ORDER

 BLOCK, District Judge:

 Plaintiff Thomas Brock ("Brock") brings this civil rights action pursuant to 42 U.S.C. § 1983 seeking declaratory and injunctive relief regarding the constitutionality of certain aspects of the nominating process used in New York City community school board elections. Presently before this Court is Brock's motion brought by order to show cause for a preliminary injunction requiring defendant Board of Elections of the City of New York and the individual commissioners ("Board of Elections") to place his name on the ballot in the upcoming May 7th election as a candidate for one of nine positions on the community school board of District Number 24. Both the Board of Elections and the objector Stephen Sands ("Sands") oppose Brock's motion for injunctive relief and the Board of Elections has moved to dismiss the complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On April 19, 1996, the Court heard oral argument on the motions and reserved decision. Brock's motion is granted and the Board of Elections' motion is denied.

 Section 2590-c of New York's Education Law ("Education Law"), and certain portions of New York's Election Law ("Election Law") which the Education Law incorporates, govern New York City community school board ("community school board") elections. Sections 2590-c(1) and (2) of the Education Law provide for nine positions on a community school board, all positions being filled simultaneously and at-large every three years. To gain access to the ballot, an individual must gather 200 signatures on nominating petitions. N.Y. Educ. Law § 2590-c(6)(a)(2). Nominating petitions must be filed with the Board of Elections at least four weeks prior to the election. N.Y. Educ. Law § 2590-c(6)(a)(1). Moreover, as incorporated from the Election Law, each nominating petition must be "witnessed" by an individual who swears to having observed each signature on the petition. N.Y. Educ. Law § 2590-c(6)(a); N.Y. Elec. Law. §§ 6-132(2), (3), 6-140(1)(b), (2). As represented by the parties at oral argument, approximately 161,000 individuals are currently eligible to vote in a community school board election in District Number 24.

 Brock filed a nominating petition containing a total of 275 signatures with the Board of Elections. Brock's petition was subsequently challenged by Sands, who submitted various objections to the Board of Elections. On April 1, 1996, the Board of Elections invalidated eighty-six (86) of the 275 signatures. Sixty-six (66) are here at issue. *fn1" The Board of Elections invalidated one of these 66 signatures because the signer had previously signed another candidate's nominating petition. More significantly, the Board invalidated sixty-five (65) signatures because the witnesses of these signatures had previously signed nominating petitions for other candidates. *fn2" Brock's petition was thereby rendered inadequate because it fell short of the required 200 signatures. The parties agree that if the Board erred in invalidating these 65 signatures, Brock would qualify to be placed on the May 7th ballot. Brock thereafter sought relief in this Court.

 DISCUSSION

 To witness a particular nominating petition under the Election Law, an individual must be qualified to sign the petition itself. As sections 6-132(2), (3) and 6-140(1)(b), (2) of the Election Law provide:

 
[ § 6-132] 2. There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state and an enrolled voter of the same political party as the voters qualified to sign the petition, and who is also a resident of the political subdivision in which the office or position is to be voted for . . .
 
3. In lieu of the signed statement of a witness who is a duly qualified voter of the state qualified to sign the petition, the following statement signed by a notary public or commissioner of deeds shall be accepted . . .
 
[ § 6-140] 1.b. There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state and who also is qualified to sign the petition. . .
 
2. In lieu of the signed statement of a witness who is a duly qualified voter of the state qualified to sign the petition, the following statement signed by a notary public or commissioner of deeds shall be accepted . . .

 N.Y. Elec. Law §§ 6-132(2), (3) and 6-140(1)(b), (2) (emphasis added). Although the Education Law is silent with respect to witness qualification, these provisions of the Election Law are incorporated by section 2590-c(6)(a) of the Education Law. See Lavelle v. Gonzalez, 93 A.D.2d 896, 461 N.Y.S.2d 433, 434 (2d Dept.), aff'd, 59 N.Y.2d 670, 450 N.E.2d 218, 463 N.Y.S.2d 412 (1983) ("Education Law renders the Election Law applicable with respect to nominations of candidates for community school boards. Sections 6-132 (subs. 2, 3) . . . and 6-140 (subds. 1,2) of the Election Law . . . require a subscribing witness to be qualified to sign the petition he or she carries.").

 The Election Law and the Education Law, however, contain different, specific provisions governing the number of petitions that an otherwise qualified individual may sign. Under the Election Law, a qualified individual is not precluded from signing as many nominating petitions as there ...


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