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United States District Court, Southern District of New York

September 30, 1999


The opinion of the court was delivered by: Berman, District Judge.


The issue at bar is whether Plaintiff Irving A. Gelb's ("Plaintiff" or "Gelb") current case against Defendants, the Board of Elections in the City of New York ("Board") and individual Board members and employees, is sufficiently different, factually and/or legally, from Mr. Gelb's 1994 case ("Gelb I") against essentially the same defendants to warrant a different outcome.*fn1 See Gelb v. Board of Elections in the City of New York, 950 F. Supp. 82 (S.D.N.Y. 1996) (dismissing Plaintiff's due process and equal protection claims on summary judgment), aff'd. 125 F.3d 843 (2d Cir. 1997). The Court here concludes that the two cases warrant the same result. For the reasons set forth below, Plaintiff Gelb's motions for summary judgment (filed December 10, 1998 and January 11, 1999)*fn2 are denied, and Defendants' cross-motion for summary judgment (dated December 31, 1998 and filed January 14, 1999) is granted.

I. Background

In the Fall of 1993, Mr. Gelb ran (unsuccessfully) as a write-in candidate for the office of Bronx Borough President. He was able to vote by writing-in his name in the general election. On January 3, 1994, Mr. Gelb, appearing pro se, commenced an action in this Court, seeking injunctive relief and compensatory and punitive damages based upon the Board's alleged violation of his right to cast a write-in vote and to be a write-in candidate.*fn3 Gelb I was premised upon rights presumably secured to him by the First and Fourteenth Amendments of the United States Constitution as well as various provisions of the New York State Election Law ("NYEL").*fn4 Early on in Gelb I, Judge Sotomayor denied the defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). However, following the filing of cross-motions for summary judgment, Judge Sotomayor rejected Mr. Gelb's Federal claims and declined to exercise supplemental jurisdiction over any remaining state law claims. Relying in substantial part upon Powell v. Power, 436 F.2d 84 (2d Cir. 1970), Judge Sotomayor noted "that not every voting irregularity arises to the level of a federal constitutional violation" and "that it [is] not within the province of the federal judiciary to micro-manage the details of local elections." Gelb, 950 F. Supp. at 84. Judge Sotomayor quoted the following cautionary passage from Powell which is also applicable here:

  Were we to embrace plaintiff's 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
  area which, with certain narrow and well defined
  exceptions, has been in the exclusive cognizance of
  the state courts.

Id. (quoting Powell at 86).

In view of Mr. Gelb's failure, in Gelb I, to provide any evidence that the Board's actions "had any impact on the outcome of either election" and in light of the availability of adequate remedies under state law, particularly New York Election Law §§ 16-102 and 106, Judge Sotomayor concluded that none of the Board's actions "rendered either the primary or the general election so pervasively unfair as to require a federal remedy under the due process clause." See id. at 85-86. Judge Sotomayor likewise rejected Mr. Gelb's equal protection claim because he had produced "no evidence of intentional discrimination." See id. at 86. "[T]he election process errors about which [Mr. Gelb] complain[ed] were the sort of minutiae that the Second Circuit in Powell cautioned the federal courts from overseeing . . ." Id.

On appeal, the U.S. Court of Appeals for the Second Circuit affirmed Judge Sotomayor's ruling in Gelb I "for substantially the reasons stated by the district court." See Gelb, 125 F.3d at 843. The Court of Appeals also observed: "where . . . there exists a state law remedy to the election irregularities that is fair and adequate, human error in the conduct of elections does not rise to the level of a Fourteenth Amendment constitutional violation actionable under § 1983 in the absence of willful action by state officials." Id. (quoting Gold v. Feinberg, 101 F.3d 796, 802 (2d Cir. 1996)),

Gelb II

Again, in the Fall 1997, Plaintiff Gelb ran unsuccessfully in the race for Bronx Borough President. Again in 1997, he was able to write-in his own name in the general election. After the election, Gelb, appearing pro se, filed the instant complaint in this Court (initially before Judge Harold Baer, Jr.)*fn5 seeking injunctive relief and damages pursuant to 42 U.S.C. § 1983 based upon the defendants' alleged violation of his right to cast a write-in vote and to be a write-in candidate ("Gelb II").*fn6 As in Gelb I, Plaintiff "does not challenge any state law, but rather the [alleged] misconduct under color of law by the defendants." (Gelb II Pl.'s Mot. for Summ.J. Reply at 8.) The factual claims set forth in Plaintiff's instant complaint are virtually identical to those set forth in his prior complaint. Plaintiff Gelb has once again alleged, among other things, that the Board did not provide the (adequate) means to cast a write-in vote in the 1997 Democratic Party primary election for Bronx Borough President and that the Board failed to provide adequate write-in voting instructions in the subsequent general election for Bronx Borough President.*fn7 In the instant complaint, Gelb also asserts that the Board's protested conduct occurred, not only in the 1997 elections in which he sought to participate as a candidate, but also in a series of prior elections in which he did not seek to be elected.*fn8

On March 5, 1998, Defendants moved to dismiss the Gelb II complaint on the grounds of collateral estoppel and failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Judge Baer denied the motion to dismiss (as Judge Sotomayor had done in Gelb I), determining that:

  the issues in this case are not identical to the
  issues in Gelb I. . . . The claims in Gelb I
  solely concerned the 1993 election, while the claims
  here allege a pattern

  of repeated violations leading up to and including
  the primary and general elections of 1997.
  Accordingly, the issues in the two cases are not

Gelb v. Board of Elections of the City of New York, 1998 WL 386440 at *2 (S.D.N.Y.,1998).

On August 20, 1998, Gelb filed a motion "for an order pursuant to Rule 65 of the Federal Rules of Civil Procedure granting a Mandatory Injunction, beginning with the September 15, 1998 Primary, prohibiting the defendants from refusing to allow write-in voting in contested primaries and requiring that all sample ballots, posted instructions and illustrations include the manner in which the write-in vote is to be cast." (Gelb Notice of Motion for Mandatory Injunction, dated August 20, 1998). By Order dated October 2, 1998, Judge Baer held that due to "the lack of proof of any irreparable harm and untold technical difficulties for the Board . . . plaintiff's motion for a preliminary injunction is denied." (Baer Order, dated October 2, 1998).

On October 19, 1998, Gelb filed a second motion for "Mandatory Injunction" pursuant to Fed.R.Civ.P. 65. This second motion for injunctive relief was substantially similar to the one he had filed on August 20, 1998, except that it applied to "all contested primaries following the September 15, 1998 Primary . . ." (Gelb Notice of Motion for Mandatory Injunction, dated October 19, 1998). By Order dated November 11, 1998, Judge Baer directed "the Clerk to strike the motion for a permanent injunction." Plaintiff was, however, permitted to file a motion for summary judgment. (Baer Order, dated November 11, 1998).*fn9

Gelb filed the instant motions for summary judgment on December 10, 1998 and January 11, 1999.*fn10 The Defendants filed a Cross-Motion for Summary Judgment on January 14, 1999.

II. Analysis

Fed.R.Civ.P. 56(c) provides that a motion for summary judgment must be granted where "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." Thus, in order to preclude summary judgment, remaining factual issues must be both genuine (meaning that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party") and material (meaning that such issues "might affect the outcome of the suit under the governing law.") See Anderson v. Liberty Lobby, 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A motion for summary judgment places greater stress on a nonmoving party's case than a motion to dismiss. In considering a Fed.R.Civ.P. 12(b)(6) motion to dismiss, the Court is required to "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." See Sheppard v. Beerman, 18 F.3d 147 (2d Cir. 1994) (internal citations and quotations omitted).*fn11 Upon a motion for summary judgment, however, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson at 249-50, 106 S.Ct. 2505 (internal citations omitted).

Here, both Plaintiff and Defendants have moved for summary judgment. "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." Gelb, 950 F. Supp. at 83 (quoting Aviall, Inc. v. Ryder System, Inc., 913 F. Supp. 826, 828 (S.D.N.Y. 1996)) (citing Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993)).

The Board's Write-In Procedures

The reasoning (legal basis) behind the Board's approach to write-in voting, in the 1997 Democratic Party primary for Bronx Borough President and in other elections, is explained in the Declaration of Daniel DeFrancesco, the Board's Executive Director, which is part of Defendants' motion herein. Mr. DeFrancesco states, and Plaintiff has not disputed, that the Board interprets New York Election Law § 6-164 to require writing-in balloting in a primary election if and only if a candidate has filed a valid "opportunity to ballot" petition.*fn12 (DeFrancesco Decl. ¶ 4.) Mr. DeFrancesco also states that no valid opportunity to ballot petitions were filed by or on behalf of plaintiff in the 1997 Democratic Party primary election for Bronx Borough President. (Id. ¶¶ 5, 7.) Plaintiff has offered no evidence to dispute this fact. Nor has Plaintiff offered evidence to dispute the fact that where valid opportunity to ballot petitions have been filed (in 1997 and in other years), the Board has offered write-in voting.*fn13

Mr. DeFrancesco also stated that "[w]rite-in voting is offered in all general elections." (Id. ¶ 11.) Poll workers are "trained . . . on write-in voting procedures and on how to assist voters who wish to cast write-in votes on a voting machine"; written write-in voting instructions are provided on absentee ballots.*fn14 (Id.) Write-in votes are counted at the same time the Board canvasses paper ballots, in part because "the paper roll on which the write-in votes are recorded would jam during the count." (Id. ¶¶ 13, 14.) Plaintiff has not disputed these facts.

It is difficult for this Court to perceive Mr. Gelb's grievance. He was not prevented (nor, apparently, was anyone else) from casting a write-in vote for himself in the 1993 or the 1997 general elections for Bronx Borough President. He was unable to cast write-in votes in the 1993 and 1997 primaries — but, in this, he was in no different position from anyone else in New York City who failed to submit opportunity to ballot petitions. He has (already) had his "day" in Federal Court. See Gelb, 950 F. Supp. 82. Despite the availability and adequacy of state court mechanisms to air any remaining electoral challenges he may have, he has chosen, rather, to bring Gelb I all over again in this forum.

Not only is it inappropriate for the Court here to involve itself in the details of New York State electoral processes, see Powell v. Power, 436 F.2d 84 (2d Cir. 1970), but it is even unclear whether Mr. Gelb has a constitutionally protected "write-in" option. In upholding Hawaii's (absolute) ban on write-in voting, the U.S. Supreme Court has explained:

  [T]he function of the election process is "to winnow
  out and finally reject all but the chosen
  candidates," not to provide a means of giving vent to
  "short-range political goals, pique, or personal
  quarrel[s]." Attributing to elections a more
  generalized expressive function would undermine the
  ability of states to operate elections fairly and

    Accordingly, we have repeatedly upheld reasonable,
  politically neutral regulations that have the effect
  of channeling expressive activity at the polls. . . .
  And there is nothing content based about a flat ban
  on all forms of write-in ballots.

Burdick v. Takushi, 504 U.S. 428, 438, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (internal citations omitted and emphasis added).*fn15 Reasonable state requirements that candidates evidence a "significant modicum of support" in order to appear on the ballot have been upheld by the Supreme Court. See Jenness v. Fortson, 403 U.S. 431, 440, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (holding a five percent signature requirement to be constitutional). In Clements v. Fashing, 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982), the Supreme Court stated that:

  Far from recognizing candidacy as a `fundamental
  right,' we have held that the existence of barriers
  to a candidate's access to the ballot `does not of
  itself compel close scrutiny.' `In approaching
  candidate restrictions, it is essential to examine in
  a realistic light the extent and nature of their
  impact on voters.'

    States have important interests in protecting the
  integrity of their political processes from frivolous
  or fraudulent candidacies, in ensuring that their
  election processes are efficient, in avoiding voter
  confusion caused by an overcrowded ballot, and in
  avoiding the expense and burden of run-off elections.

Id. at 963-65, 102 S.Ct. 2836 (internal citations omitted).

New York Election Law § 7-114(1)(b) provides a mechanism for Mr. Gelb and others to write-in their names on primary ballots. "[U]nder each [office or party position] title shall be printed the names of the designated candidates for the office or position." Section 6-136(2) sets out the requirements for designation:

  [Designating] petitions must be signed by not less
  than five per centrum, as determined by the preceding
  enrollment of the then enrolled voters of the party
  residing within the political unit in which the
  office or position is to be voted for (excluding
  voters in inactive status), provided, however, that
  for the following public offices the number of
  signatures need not exceed the following limits: . .
  . (b) For any office not be filled by all the voters
  of any county or borough within the city of New York,
  four thousand signatures. . . .

In Prestia v. O'Connor, 178 F.3d 86 (2d Cir. 1999), the U.S. Court of Appeals for the Second Circuit affirmed the constitutionality of New York Election Law § 6136(2) in the face of a challenge brought by voters whose write-in balloting petition (for the Conservative Party primary election for U.S. House of Representatives from New York's 7th Congressional District) had been rejected for failure to meet the signature requirement. See id. at 8788. The Court invoked "the general rule that a ballot access requirement of signatures from five percent of the relevant voter group ordinarily does not violate constitutional rights." Id. at 87. With regard to the plaintiffs' lack of opportunity to vote by write-in, the Court stated that:

  [T]he absence of a write-in opportunity does not
  significantly burden voters' rights where, as here,
  voters have an opportunity to petition for the
  placement of specific candidates on the ballot.
  Indeed, if adequate ballot access is provided, it is
  constitutionally permissible for states to prohibit
  write-in voting altogether.

See id. at 88 n. 1 (citing Burdick, 504 U.S. at 438-40, 112 S.Ct. 2059) (emphasis added).

Gelb's Due Process Claim

In Powell v. Power, supra, the U.S. Court of Appeals affirmed the District Court's denial of relief to voters who had claimed that the outcome of the 1970 Democratic Party primary election in New York's 18th Congressional District would have been different if unqualified voters had not (inadvertently) been permitted to cast ballots.*fn16 The Court of Appeals concluded that:

  the due process clause . . . offer[s] no guarantee
  against errors in the administration of an election.
  New York Election Law §§ 145, 330(2) [now §§ 6-154,

  16-102] provide a method for correcting such errors
  as are made. . . . [W]e cannot believe that the
  framers of our Constitution were so hypersensitive to
  ordinary human frailties as to lay down an
  unrealistic requirement that elections be free of any

Powell, 436 F.2d at 88. In Gold v. Feinberg, 101 F.3d 796 (2d Cir. 1996), the Court reaffirmed the principle that the Due Process Clause "`offer[s] no guarantee against errors in the administration of an election,' at least where state law provides a fair and adequate method for correcting such errors." Id. at 800.

In order to sustain a Federal due process challenge, Plaintiff would have to show that the Board's policies rendered the 1997 election(s) for Bronx Borough President "pervasively unfair." See Ladner v. City of New York, 20 F. Supp.2d 509, 515 (E.D.N Y 1998); Gelb, 950 F. Supp. at 85; Cornett v. Sheldon, 894 F. Supp. 715, 727 (S.D.N.Y. 1995); Denis v. New York City Board of Elections, 1994 WL 613330, *3 (S.D.N.Y. 1994); see also Gold, 101 F.3d at 801; Powell, 436 F.2d at 88. He has not done so. Indeed, Plaintiff has offered no evidence that the Board's challenged procedures prevented any voter — including himself — from casting a write-in vote, much less, that they had any adverse impact upon the outcome of the 1997 elections. See Gelb, 950 F. Supp. at 85; Donohue v. Board of Elections of the State of New York, 435 F. Supp. 957, 968 (E.D.N.Y. 1976) ("[I]n judging whether the complaint before us states a claim upon which relief can be granted, the plaintiffs must allege, and be prepared to prove . . . the fraud or other unlawful behavior changed the outcome of the election.") Nor has Plaintiff offered evidence that the 1997 elections were conducted differently than the 1993 elections, which were determined to be constitutionally appropriate in Gelb I.

Perhaps most importantly, New York Election Law, specifically §§ 16-102, 16-104, and 16-106,*fn17 offers Plaintiff an adequate state law remedy — a clearly established mechanism and framework for airing his electoral grievances. See Gold, 101 F.3d at 802 (determining that NYEL § 16-102(3) offers a "fair and adequate remedy for the challenged primary irregularities"); Powell, 436 F.2d at 88; Gelb, 950 F. Supp. at 85-86 ("Plaintiff could have availed himself of New York's `comprehensive and expeditious process for adjudicating election law disputes' by challenging the primary election under New York Election Law § 16-102 and the general election under New York Election Law § 16-106. . . ."). Plaintiff has not availed himself of these remedies as he should, nor has he (even), in Gelb II, questioned the adequacy of these state law provisions. For these reasons, among others, the alleged election process "irregularities" at issue do not rise to the level of a Federal due process violation.

Equal Protection Claim

The equal protection principles applied in Gelb I are equally valid in Gelb II. A showing of "willful action by state officials intended to deprive individuals of their constitutional right to vote" is required to prove a Federal equal protection violation stemming from a state election. See Gold, 101 F.3d at 802; Powell, 436 F.2d at 88; Donohue, 435 F. Supp. at 968 (stating that plaintiffs must prove "the fraud or other unlawful behavior was committed with the intent or purpose of depriving qualified voters of their constitutionally protected right to vote").*fn18

Plaintiff has offered no evidence of Defendants' intent to deprive him of his right to vote by write-in ballot or to be a write-in candidate. Indeed, the evidence that has been submitted points in the opposite direction. Plaintiff has not disputed the Board's contention that it has offered write-in voting in all general elections; Plaintiff concedes that he was able to cast a write-in vote for himself in both the 1997 and 1993 general elections for Bronx Borough President, (Gelb Dep. at 27, 32). And, Plaintiff concedes, the Board offers write-in voting in primary elections where valid opportunity to ballot petition have been filed pursuant to New York State Election Law. The fact that the Board has continued to apply its (legal) interpretation of New York Election Law § 6-164 despite Plaintiffs protestations in Gelb I demonstrates, perhaps, that the Board's actions were not the result of inadvertence.*fn19 It does not make them illegal. Mere willfulness, without the specific intent to deprive Plaintiff of a fundamental right, is insufficient to establish an Equal Protection claim. See Gold, 101 F.3d at 801-02.

In Gold, the Court of Appeals confirmed that a § 1983 action to remedy errors in the election process allegedly violating the equal protection clause cannot be sustained unless the state action constituted "intentional or purposeful discrimination." See Gold, 101 F.3d at 800. The plaintiffs in Gold claimed that they were deprived of their right to vote in the 1996 Democratic Party Surrogate primary election in Kings County, New York because, it was asserted, the Board's practices and policies resulted in the late arrival of voting machines and paper ballots at the polls, and mechanical oversights in servicing voting machines caused thousands of "votes previously cast [to be] deleted and others cast for one candidate [to be] effectively `switched' to another candidate." See id. at 798-99. The Court rejected the District Court's conclusion that, despite the absence of evidence tending to show intent to discriminate, "certain longstanding practices of the Elections Board . . . constituted willfulness within the meaning of the civil rights law." See id. at 801. It held that the Board's longstanding practices did not constitute "the kind of official policy or custom, or the type of purposeful conduct, intended to deprive someone of the right to vote that is required to sustain a § 1983 claim under the Fourteenth Amendment." Id. at 802. The Court's conclusion is applicable here. The Board has offered substantial evidence that it does not discriminate against write-in voters. For these reasons, among others, Plaintiffs equal protection claim must fail.

State Law Claims

In United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court emphasized that "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." Id. at 726, 86 S.Ct. 1130. Under Gibbs, a Federal court must consider the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case involving pendent state law claims. The Supreme Court in Gibbs went on to state that "[c]ertainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." Id.; see also Rounseville v. Zahl, 13 F.3d 625, 631 (2d Cir. 1994) (holding that after summary judgment dismissal of federal claims, "[i]t would be an inappropriate exercise of pendent jurisdiction and a waste of federal judicial resources for the District Court to hold a trial on a purely state claim"); DiLaura v. Power Authority, 982 F.2d 73, 80 (2d Cir. 1992) (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) ("`In the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims.'")); 28 U.S.C. § 1367(c)(3) (codifying existing case law and giving District Courts discretion to decline to exercise supplemental jurisdiction where "the district court has dismissed all claims over which it has original jurisdiction").

Here, as in Gelb I, because no Federal claims remain, Plaintiffs state law claims are dismissed. See Gelb, 950 F. Supp. at 86-87.

III. Conclusion

For the reasons set forth above, Plaintiffs motions for summary judgment [Document Nos. 27-1 & 32-1] are denied, and Defendants' motion for summary judgment [Document No. 35-1] is granted. The Clerk is respectfully requested to enter an order dismissing the complaint.

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