United States District Court, Southern District of New York
September 30, 1999
IRVING A. GELB, PLAINTIFF,
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.
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.
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)),
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.
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
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
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
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
[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
[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
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.
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