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ROGERS v. NEW YORK CITY BD. OF ELECTIONS

December 29, 1997

ROLAND ROGERS, on his behalf and all African American voters as a class whose voting rights are effected by this matter, Plaintiff, against NEW YORK CITY BOARD OF ELECTIONS, NEW YORK CITY CAMPAIGN FINANCE BOARD, WABC-TV, NY-1 TV, WCBS-TV, WNBC-TV and WNET-TV, Defendants.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiff Roland Rogers ("Rogers"), an African-American candidate for the office of Mayor or the City of New York, claims that he was unfairly excluded from participating in public televised debates sponsored by defendant the New York City Campaign Finance Board. As a result, he filed a Complaint on September 8, 1997, alleging that defendants had violated his rights under the First and Fourteenth Amendments to the United States Constitution, the Voting Rights Act of 1965, 42 U.S.C. § 1971-1974(e)(1997), and the Civil Rights Act of 1963, 42 U.S.C. § 2000, et seq. (1997). Plaintiff sought a temporary restraining order enjoining the Democratic primary for the New York City mayoral election. After a brief hearing, this relief was denied, and the primary was held as scheduled on September 9. On September 16, plaintiff sought a preliminary injunction setting aside the results of the primary. This relief was also denied. All defendants have now moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). For the following reasons, defendants' motions are granted.

 I. Factual Background

 For the purposes of these motions, the following allegations are assumed to be true. On May 23, 1997, Rogers filed the forms required to permit him to run for the office of Mayor of New York City in the November, 1997 election. These forms were filed with defendant New York City Board of Elections. Upon being informed that his status as a potential candidate did not automatically enroll him in the City's matching funds campaign finance program ("the program"), Rogers visited the offices of defendant New York City Campaign Finance Board ("Campaign Finance Board"), the entity responsible for administering the program. See Complaint ("Cmplt.") at PP 10-11. The receptionist there refused him an application for the program on the ground that the deadline for consideration of such applications had expired on April 30, 1997. See id. at P 11. Rogers was further informed that exclusion from the program also meant exclusion from two debates to be sponsored by the Campaign Finance Board ("the debates"), debates which were subsequently held on August 19 and September 7, 1997, and broadcast by defendants New York 1 News and WABC-TV, respectively. See id. at P 12.

 As a result of Rogers' inability to participate in the program, he was not considered an "official" candidate by the media, and was therefore excluded from a number of other televised debates. See id. at P 13. It should be noted that while the Complaint lists "all African American voters as a class whose voting rights are effected [sic] by this matter" as co-plaintiffs, the Complaint does not allege that any of the defendants' complained of acts had a racially discriminatory effect or purpose, nor does it make any class allegations whatsoever. See Cmplt. at PP 10-13. Moreover, at the preliminary injunction hearing, Rogers stated explicitly that he was not alleging that the April 30 deadline had a racially discriminatory effect or purpose. *fn1"

 In deciding a 12(b)(6) motion to dismiss, the court must accept as true material facts alleged in the complaint and draw all reasonable inferences in the nonmovant's favor. See Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). Such a motion cannot be granted simply because recovery appears remote or unlikely on the face of a complaint, because "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974)). Rather, dismissal can only be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Bernheim, 79 F.3d at 321 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 III. Discussion

 A. Voting Rights Act Claim

 Rogers first contends that the April 30 deadline imposed by the Campaign Finance Board violates § 5 of the Voting Rights Act of 1965 in that it was not pre-cleared by the Attorney General or the District Court for the District of Columbia pursuant to the procedure described in 28 U.S.C. § 1973(c). In pertinent part, that section provides:

 
Whenever a State or political subdivision [subject to § 1973 regulation] shall enact . . . any [new] voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification . . . does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color . . . and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification . . . .

 I note that New York and Bronx counties are subject to the requirements of § 1973(c). See 52 Fed. Reg. 486, 499 (1987). I will assume for the purposes of this motion that the April 30 deadline is a "standard, practice or procedure with respect to voting" within the meaning of the statute, and that pre-clearance for it was not obtained. See Cmplt. at P 21. I nevertheless find that the Complaint fails to state a claim upon which relief can be granted in that it does not allege that "race or color" had anything to do with the imposition, administration or effect of the deadline. *fn2" As the Supreme Court has indicated, the Voting Rights Act was created

 
to make the guarantees of the Fifteenth Amendment finally a reality for all citizens. Congress realized that existing remedies were inadequate to accomplish this purpose and drafted an unusual, and in some aspects a severe, procedure for insuring that States would not ...

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