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GELB v. BOARD OF ELECTIONS IN NEW YORK

December 2, 1996

IRVING GELB, Plaintiff, against THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK AND GEORGE M. SPANAKOS, SEYMOUR SHELDON, WEYMAN A. CAREY, VINCENT J. CUTTITA, DOUGLAS A. KELLNER, FERDINAND C. MARCHI, PAUL MEJIAS, GERTRUDE STROHM, VINCENT J. VELELLA, KATHLEEN M. WAGNER, Defendants.


The opinion of the court was delivered by: SOTOMAYOR

 BACKGROUND

 In June of 1993, Irving Gelb (hereinafter "Gelb") attempted to seek the Democratic Party nomination for the office of Bronx Borough President. Gelb submitted a designating petition to be placed on the primary ballot, but the incumbent successfully challenged Gelb's petition and thereby kept Gelb's name from appearing on the ballot. Thereafter, Gelb ran in both the primary and the general election as a write-in candidate.

 In his Final Amended Complaint, filed March 18, 1994, Gelb asserts that his federal constitutional rights and various state law rights were violated in both the primary and general elections when the New York State Board of Elections failed to: 1) provide sample ballots instructing voters on how to write in their choice of candidate; 2) provide voters with absentee ballots that instructed them of their right to vote for a write-in candidate; 3) provide voters with space on the voting booth ballot to write-in the candidate of their choice; 4) provide voters with display cards in the voting booths that would give instructions on how to vote for a write-in candidate; and 5) provide pencils within the voting booth so that voters could cast a ballot for a write-in candidate without surrendering their right to secrecy by asking poll workers for pencils. *fn1" Prior to their answer to Gelb's complaint, defendants moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the action for failure to state a claim upon which relief could be granted. On March 29, 1995, I denied the motion and declined to abstain from deciding the case on the basis of the Pullman abstention doctrine. See Gelb v. Board of Elections, 888 F. Supp. 509 (S.D.N.Y. 1995). After discovery, plaintiff and defendants moved for summary judgment.

 DISCUSSION

 The standards for evaluating summary judgment motions are well established. Rule 56(c) provides that summary judgment is appropriate when:

 
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 The burden is on the moving party to show that no genuine issue of material fact exists. See Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994) (citation omitted). A genuine issue of material fact exits where "the evidence is such that 'a reasonable jury could return a verdict for the nonmoving party.'" Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19, 23 (2d Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). "On cross motions for summary judgment, the standard is the same as that for individual motions for summary judgment and the court must consider each motion independent of the other." Aviall, Inc. v. Ryder System, Inc., 913 F. Supp. 826, 828 (S.D.N.Y. 1996) (citing Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993)). "Simply because the parties have cross-moved and therefore have implicitly agreed that no material issues of fact exist, does not mean that the court must join in that agreement and grant judgment as a matter of law for one side or the other. The court may conclude that material issues of fact do exist and deny both motions." Id.

 Plaintiff has not challenged this Court's conclusion in its prior decision that plaintiff's claims should be treated as if they were brought pursuant to 42 U.S.C. § 1983. See Gelb v. Board of Elections, 888 F. Supp. 509, 514 (S.D.N.Y. 1995). In order to maintain a § 1983 action, a plaintiff must demonstrate that conduct committed by a person acting under color of state law deprived him of rights, privileges, or immunities secured by the Constitution or the law of the United States See Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994). Here, plaintiff contends that his first, fourth, *fn2" and fourteenth amendment rights were violated in that "defendants deprived the plaintiff of his right to cast a write in vote in the New York City primary election and general election of 1993 for Bronx Borough President. . . ." (Pl.'s Aff. in Support of Motion P 2). He claims that he and other voters were not informed of the full extent of their right to vote, nor were they provided with the most basic means for casting a write-in vote: space in which to write in the vote and pencils with which to write. Plaintiff further asserts that the Board of Election's failure to provide him with a pencil violated his right to cast a secret ballot, presumably because it necessitated that he and other voters who wished to write in a candidate request a pencil from election workers. Plaintiff maintains that these failures amount to constitutional violations.

 It has been said often and with great force that there is no right more fundamental in our country than the right to vote. See e.g., Wesberry v. Sanders, 376 U.S. 1, 17, 11 L. Ed. 2d 481, 84 S. Ct. 526 (1964) ("No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.") The Supreme Court has steadfastly protected the right to vote in both state and federal elections. See Reynolds v. Sims, 377 U.S. 533, 554, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964) ("the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. A consistent line of decisions by this Court in cases involving attempts to deny or restrict the right of suffrage has made this indelibly clear.").

 Just as clearly established in the law, however, is the proposition that not every voting irregularity arises to the level of a federal constitutional violation. See e.g., Donohue v. Board of Elections of the State of New York, 435 F. Supp. 957, 965 (E.D.N.Y. 1976) ("Despite the importance placed by the Supreme Court on the right to vote and the integrity of elections, not every election irregularity will give rise to an equal protection or due process claim."). In Powell v. Power, 436 F.2d 84 (2d Cir. 1970), the Second Circuit declared that it was not within the province of the federal judiciary to micro-manage the details of local elections. In that case, the Court held that voters in a Congressional primary election were not entitled to federal relief for errors committed by state election officials in permitting a number of unqualified individuals to cast ballots. The court declined to find a federal violation under such circumstances, explaining that:

 
Were we to embrace plaintiffs' theory, this court would henceforth be thrust into the details of virtually every election, tinkering with the state's election machinery, reviewing petitions, registration cards, vote tallies, and certificates of election for all manner of error and insufficiency under state and federal law. Absent a clear and unambiguous mandate from Congress, we are not inclined to undertake such a wholesale expansion of our jurisdiction into an ...

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