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August 7, 1998

G. OLIVER KOPPELL, et al., Plaintiffs,

The opinion of the court was delivered by: STEIN


 SIDNEY H. STEIN, U.S. District Judge.

 Plaintiffs G. Oliver Koppell -- a Democratic candidate for Attorney General -- and Arnold Linhardt and Marie Morrison -- two New York State voters -- brought this action challenging the constitutionality of the lottery by which the position of candidates on the ballot is determined for primary elections in New York State counties outside of New York City. Plaintiffs seek an order (1) enjoining defendant New York State Board of Elections from conducting the lottery to determine the placement of candidates' names on the ballots for party primaries that will be held on September 15, 1998, and (2) directing that the positions of candidates' names on primary ballots outside New York City be rotated in the same fashion as they are within New York City.

 The action was commenced on July 13; ten days later this Court heard argument and conducted an evidentiary hearing on plaintiffs' motion for a preliminary injunction. *fn1"

 Plaintiffs' Claims

 New York State law provides two different methods for determining the placement of candidates' names on primary election ballots. In counties outside New York City, New York Election Law § 7-116 (3) provides that a lottery will determine ballot placement. *fn2" Election Law § 7-116 (6) provides that within New York City, ballot position is to be rotated by election district "so that each name shall appear first and in each other position in an equal number, as nearly as possible, of the election districts . . ." N.Y. Election Law § 7-116 (6).

 Plaintiffs advance three claims to support their position that the lottery violates their constitutional rights. First, they contend that Election Law § 7-116 (3) infringes plaintiffs' right to vote, because each vote cast in support of a lottery loser is devalued in comparison to each vote for the lottery winner. Plaintiffs ground their dilution argument in the Fourteenth Amendment's equal protection provision. See Plaintiffs' Mem. at 11. Second, they assert that the statute burdens the plaintiffs' First Amendment right to freedom of association because "the statute has diminished the purpose of their association, a fair chance of victory at the polls." Plaintiffs' Mem. at 16. Finally, plaintiffs contend that the statute infringes the right to candidacy.

 Plaintiffs' legal claims rest on one essential factual claim: the existence of a phenomenon known as "position bias," which results in a certain number of votes, sometimes called the "windfall vote," being cast for the candidate whose name appears first on the ballot, solely by virtue of the candidate being listed in that first ballot position. According to plaintiffs' expert, Professor Henry Bain, "the advantage appears to result from the voters' insufficient information about the candidates, and their insufficient motivation to inform themselves and make a careful choice. These insufficiencies are especially great in primary and non-partisan elections, in which voters lack the assistance of party labels, and the media provide less information than in general elections." (Affidavit of Henry Bain ("Bain Aff."), P 3).

 According to Professor Bain, the rotation system in place in New York City "produces a situation that is ideal, from the point of view of the researcher, for ascertaining whether the first ballot position is favored by the voters," (Bain Aff., P 11), because the researcher can compare the percentage of votes candidates receive in election districts where they are in the first ballot position with percentages of votes they receive in other election districts. Examining the results of the Democratic Primary for the New York State Attorney General race in 1994 in the borough of Queens, New York City, Professor Bain found that the "position effect" there was "equal to what would be found if 4.7 percent of the voters automatically and blindly voted for whoever was listed first, while all of the remaining voters were unaffected by any tendency to vote for the first candidate." (Bain Aff., P 15). Professor Bain was unable to state that he had any direct knowledge upon which he could extrapolate that 4.7% result in Queens to the rest of New York State. (Transcript of July 23, 1998 Hearing ("Hrg. Tr.") at 59-61).

 The Standards for Injunctive Relief

 Pursuant to Jackson Dairy v. H.P. Hood & Sons, 596 F.2d 70 (2d Cir. 1979), a party seeking injunctive relief generally must demonstrate that it will suffer irreparable harm in the absence of injunctive relief, and either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the preliminary relief. Id. at 72. However, "where a moving party challenges government action taken in the public interest pursuant to a statutory or regulatory scheme . . . the moving party cannot resort to the 'fair ground for litigation' standard, but is required to demonstrate irreparable harm and a likelihood of success on the merits." Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (citations and internal quotation marks omitted).

 Furthermore, a heightened showing -- a "clear" or "substantial" showing -- of likelihood of success must be made "where (1) the injunction sought 'will alter, rather than maintain, the status quo,' -- i.e., is properly characterized as a 'mandatory' rather than 'prohibitory' injunction; or (2) the injunction sought 'will provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits.'" Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996) (citing Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)). Both those circumstances are present here.

 Irreparable Harm

 For the purposes of this motion, this Court is willing to assume that plaintiffs have satisfied the irreparable harm prong of the Jackson Dairy test. Should the primary election go forward pursuant to the current law, any infringement on plaintiffs' constitutional rights would be irreparable, unless a court were to take the extraordinary step of invalidating the results of the election. See Williams v. Salerno, 792 F.2d 323, 326 (2d Cir. ...

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