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GELB v. BOARD OF ELECTIONS IN CITY OF NEW YORK

September 30, 1999

IRVING A. GELB, PLAINTIFF,
v.
THE BOARD OF ELECTIONS IN THE CITY OF NEW YORK, INDIVIDUALLY, COMMISSIONERS WEYMAN A. CAREY, MICHAEL J. CILMI, MICHAEL L. COHEN, RONALD J. D'ANGELO, DOUGLAS A. KELLNER, CRYSTAL N. PARIS, GERTRUDE STROHM, FREDERIC M. UMANE, VINCENT J. VELELLA, STEPHEN H. WEINER, EXECUTIVE DIRECTOR DANIEL DE FRANCESCO, DEPUTY EXECUTIVE DIRECTOR MARGARET OGNIBENE, ADMINISTRATIVE MANAGER JON R. DEL GIORNO, DEFENDANTS.



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

ORDER

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.

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
  identical.

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 ...


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