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MOLINARI v. POWERS

February 4, 2000

GUY MOLINARI, JOHN MCCAIN, LARRY ROCKEFELLER, THE LEAGUE OF WOMEN VOTERS OF NEW YORK STATE, JOHN SKABRY, JOHN DUFFY, JOHN C. COCHRANE, NICK TENG, STEPHEN MILLER, R. FREDERICK LINFESTY, TINA SHEESLEY, RICHARD STADIN, LUIS ORTEGA, AL SHAPIRO, COLEMAN MISHKOFF, ANGELO MARLINELLI, KATHLEEN O'NEILL, JOHN D. PIRO, JR., GEORGE J. SCHLINK, MARK QUINN, JENNIFER KIM, ERIC W. SCHRECK, LISA ANNE REILLY, JEREMY B. DIBBELL, RICHARD N. CANNIFF, MICHAEL PANINSKI, KEVIN MCARDLE, ROBERT BURNS, JOHN C. MITCHELL, GERALD D. RICCI, ROBERT LYNCH, CARL HETERBRING, KRAIG H. KAYSER, DARREN K. EUSTANCE, JAMES L. DOWSEY III, DANIEL S. GOTTESMAN, MATTHEW BURIN AND MARCIA E. LYNCH, PLAINTIFFS, STEVE FORBES AND FORBES 2000, INC., PLAINTIFFS-INTERVENERS, ALAN KEYES, CHRISTOPHER T. SLATTERY, EILEEN F. SLATTERY, MARGOT DAMIANO, ALAN P. MEHLDAU, AUDREY M. NEGRON, EDMUND J. KEEFE AND ROBERT HORNAK, PLAINTIFFS-INTERVENERS,
V.
WILLIAM POWERS, CHAIRMAN, NEW YORK REPUBLICAN STATE COMMITTEE; NEW YORK REPUBLICAN STATE COMMITTEE; NEW YORK STATE BOARD OF ELECTIONS; NEIL W. KELLEHER, CAROL BERMAN, EVELYN J. AQUILA AND HELENA MOSES DONOHUE, COMMISSIONERS, NEW YORK STATE BOARD OF ELECTIONS; NEW YORK CITY BOARD OF ELECTIONS; DOUGLAS KELLNER, STEPHEN H. WEINER, MICHAEL H. CILMI, VINCENT J. VELELLA, WEYMAN A. CAREY, RONALD J. D'ANGELO, TERRENCE C. O'CONNOR, CRYSTAL N. PARIS, GERTRUDE STROHM AND FREDERIC M. UMANE, COMMISSIONERS, NEW YORK CITY BOARD OF ELECTIONS; ERIE COUNTY BOARD OF ELECTIONS; LAURENCE ADAMCZYK AND RALPH MOHR, COMMISSIONERS, ERIE COUNTY BOARD OF ELECTIONS, NASSAU COUNTY BOARD OF ELECTIONS; BARBARA PATTON AND JOHN DEGRACE, COMMISSIONERS, NASSAU COUNTY BOARD OF ELECTIONS; SUFFOLK COUNTY BOARD OF ELECTIONS; GERALD EDELSTEIN AND BARBARA P. BARCI, COMMISSIONERS, SUFFOLK COUNTY BOARD OF ELECTIONS; MONROE COUNTY BOARD OF ELECTIONS; M. BETSEY RELIN AND PETER M. QUINN, COMMISSIONERS, MONROE COUNTY BOARD OF ELECTIONS, DEFENDANTS.



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

Plaintiffs bring this lawsuit challenging the constitutionality of the ballot access

  rules for the primary (the "Primary") that will be held by the New York Republican State Committee (the "Republican State Committee") on March 7, 2000. The purpose of the Primary is to select the Republican State Committee's delegates to the 2000 Republican National Convention (the "Convention"), where, among other things, the Republican National Party (the "Republican Party" or the "Party") will select its nominee for the 2000 presidential election, the Party's national platform and the rules of internal Party governance, including rules governing the selection of delegates to the next convention. Davis Decl. ¶¶ 4, 6; Powers Aff.&par 8. Under the rules of the Republican Party, each state's local Party organization must select three delegates from each of its congressional districts to attend the Convention, and the majority of Convention delegates from each state must be selected by district, rather than on an "at-large" basis. Powers Aff.&par 9. As this national Party rule has been implemented in New York by the Republican State Committee, three Convention delegates (and three alternates) are to be elected in each of New York's 31 congressional districts during the Primary, and eight additional delegates will be chosen "at-large" by the Republican State Committee after the Primary. Molinari Decl.Ex. B at 1; Powers Aff.&par 10 & Ex. B.
On June 29, 1999, the Governor of New York signed into law 1999 Sess. Law News of N.Y. Ch. 137 (S. 5965—A) ("Chapter 137"), a statute providing two alternate schemes by which political parties in New York may hold their primaries. See generally Chapter 137. Parties must conduct their primaries under either §§ 2 and 2—a of the statute on the one hand, or § 3 on the other. id. § 1. While Chapter 137 allows each political party to choose which option to adopt, it has been the practice in recent presidential election years, including this one, for the New York Legislature to pass an authorizing statute that merely codifies each party's preferred method of organizing its primary; thus, what appear to be the options from which the parties may choose are in fact the choices they have already made. See Rockefeller v. Powers, 917 F. Supp. 155, 164 (E.D.N Y 1996), affd; 78 F.3d 44 (2d Cir. 1996). The Republican State Committee selected §§ 2 and 2—a for the Primary. O'Brien Decl. Ex. A. The New York Democratic State Committee (the "Democratic State Committee") selected § 3 as the governing provision for its primary. Id.&par 5.

The Republican and Democratic Options

Under §§ 2 and 2—a of Chapter 137, the scheme chosen by the Republicans, delegates are to be selected in direct elections conducted in each congressional district. Chapter 137 § 2[2][a]. When filing their candidacies, delegates must either declare themselves as aligned with a particular presidential candidate or declare themselves as "uncommitted." Id. § 2[3]—[4]. The name of the presidential candidate to whom each delegate candidate has declared allegiance (or the delegate candidate's "uncommitted" status, if applicable) is shown on the ballot next to or below the more prominent name of the delegate candidate. O'Brien Decl. ¶ 4. For a presidential candidate to "field" on the Primary ballot a delegate candidate or a slate of delegate candidates who are pledged to support him (and, conversely, for a delegate candidate to be permitted to pledge his or her support to a particular presidential candidate), (i) the presidential candidate must collect 5,000 signatures from registered Republican voters statewide, without regard to geographic distribution; and (ii) each delegate candidate pledged to support him must obtain signatures from the lesser of 1,000 or 0.5% of registered Republican voters in the district for which the delegate is a candidate. Chapter 137 § 2—a. Nevertheless, the 0.5% requirement is the operative requirement in every one of New York's congressional districts, because 0.5% of enrolled Republicans does not exceed 1,000 voters in any of the congressional districts. O'Brien Decl.&par 6; Buley Aff.&par 6. This adds up to approximately 15,500 signatures for delegate candidates

  in addition to the 5,000 that must be collected statewide for presidential candidates. By contrast, in order to qualify to run in the Republican primary for Governor of the State of New York, a gubernatorial candidate need only obtain 15,000 signatures. New York Election Law ("Election Law") § 6— 136[1]. While some showing of support is required throughout the state, it suffices if the gubernatorial candidate obtains 100 signatures from each of only one-half of the congressional districts. Id.

The number of signatures required for a republican presidental candidate to compete for delegates pledged to him also far exceeds the number required for a Democratic presidential candidate in New York. Under § 3 of Chapter 137, the scheme chosen by the Democratic State Committee, there is in fact an option for a statewide presidential primary, such that presidential candidates may obtain statewide Democratic primary ballot access solely by collecting 5,000 signatures from registered Democratic voters statewide, without record to geographic distribution. Chapter 137 §§ 3[1], [3]. Under that option, if a Democratic presidential candidate also wishes to field delegate slates in each congressional district (which both Democratic front-runners opted to do this year, Ber- ger Decl. andpar 23), the delegate candidates in such slates, like those in Republican slates, also must obtain signatures from the lesser of 1,000 or 0.5% of registered Democrats in each congressional district. Chapter 137 § 3[6](c]. Unlike the option selected by the Republican State Committee, however, the number of delegates a Democratic candidate for President receives is not dependent upon the outcome of the delegate election, or even upon whether any delegate slates are on the ballot pledged to him. Instead, what determines whether a delegate from New York goes to the Democratic National Convention is solely the popular vote for the presidential candidates in the Democratic primary (and not the vote totals for the delegate candidates). Berger Decl.¶ 23; Buley Aff.¶ 11; O'Brien Decl. Ex. B. Even if a Democratic presidential candidate has not qualified delegate candidates for the ballot in all or even any congressional districts, he still gets an allocation of delegates to the Democratic National Convention based on the popular vote. Buley Aff. ¶ 12. In such a circumstance, the Democratic State Committee names those delegates after the Primary. Id. In short, whether he fields a delegate slate or not, a Democratic presidential candidate may compete for delegates pledged to support him in each of New York's 31 congressional districts as long as he collects 5,000 signatures statewide (approximately 0.1% of the registered Democratic voters in the state).

Moreover, because it is essentially immaterial to Democratic presidential candidates whether delegates appear on the ballot in a particular congressional district, Berger Decl.¶ 23, competing candidates seldom check, let alone challenge, whether petitions containing enough valid signatures have been filed to satisfy the 0.5% or 1,000 signature requirement or otherwise to comply with the substantive and technical rules that can lead to the invalidation of petitions. Id. By contrast, because a Republican presidential candidate can only obtain delegates pledged to him if they are elected in each congressional district, petition challenges are common. See infra. This, in turn, increases the total number of signatures that must be obtained by Republican candidates in each congressional district in order to ensure that their delegate slates are not thrown off the ballot. Thus, as defendant William Powers, who is the Chairman of the Republican State Committee, instructed in a memorandum to the petition drive coordinators for Texas Governor George W. Bush's campaign: "To ensure that ... delegates [pledged to support Governor Bush, the Republican State Committee's favored candidate this year,] get on the ballot in your congressional district, your goal is to collect six times the signatures required by the Election Law," which adds up to approximately
  93,000 signatures. Molinari Decl. Ex. B at 4 (emphasis added).

Post-petition legal challenges are a standard part of the process of eliminating candidates who are not supported by the Republican State Committee. Richard H. Davis, who is Senator John McCain's national campaign manager, was the deputy campaign manager of Senator Robert Dole's campaign in 1996. Davis Decl. ¶¶ 1— 2. Senator Dole was the Republican State Committee's favored candidate in 1996. Mr. Davis attests in his declaration that when he worked on the Dole campaign, campaign officials budgeted $700,000 for the legal costs of challenging other candidates' petitions. Id.¶ 37. Based upon his experience, Mr. Davis explains that the reason the Republican State Committee's favored candidate is willing to spend such a large sum on technical challenges is because that amount dwarfs the amount the campaign would have to spend competing in a contested Republican primary in New York's expensive media markets. Id. In other words, if successful, the Republican State Committee's favored candidate can spend $700,000 (the sum that the McCain campaign estimated it would have needed to spend this year simply to ensure statewide ballot access after postpetition challenges, id. ¶ 34) knocking other candidates off the ballot rather than the millions it would otherwise have to spend persuading voters at the Primary. Id ¶ 37. The likelihood of such expensive challenges, of course, contributes to discouraging candidates from even attempting to obtain ballot access.

Legal challenges are not normally a concern of the candidate supported by the Republican State Committee, however, because the candidates who do not enjoy such support are too busy gathering signatures and defending post-petition challenges. They simply lack the resources to mount such challenges. The concern voiced this year by Chairman Powers reflected the Republican State Committee's fear that Steve Forbes — who, unlike Senator McCain and other publicly funded candidates, has unlimited resources and who was harassed four years ago by the challenge process — would mount his own post-petition challenge. See Molinari Decl. Ex. B at 3 (Chairman Powers noting, in his memorandum to Bush petition drive coordinators setting forth guidelines for the gathering of signatures, that "these guidelines have been established in order to avoid legal challenges. Any deviation from the guidelines could force the Bush campaign to expend time and money fighting legal challenges in court, when it should be campaigning for victory"). Indeed, the Forbes and Bush campaigns initially agreed not to challenge each other's petitions. This agreement was breached when delegate slates pledged to Mr. Forbes were knocked off the ballot in three congressional districts. The Forbes campaign retaliated with lawsuits that succeeded, at a cost of approximately $50,000, in knocking the Bush delegate slate off the ballot in another congressional district.

The 1999— 2000 Petitioning Period

Plaintiffs submit a great deal of evidence to illustrate the stark contrast between the collective burdens of the ballot access scheme as applied to candidates favored by the Republican State Committee, like Governor Bush, and as applied to those who are not favored, like Mr. Forbes (a plaintiff-interveners in this case), Alan Keyes (also a plaintiff-intervener) and plaintiff Senator McCain. An exposition of these differences in burdens as they actually played out in this year's petitioning process provides the background necessary to determine whether New York's legislative scheme unduly burdens ballot access.

A. The Bush Campaign The record is undisputed that Governor Bush is the presidential candidate who enjoys the support of the Republican State Committee for the 2000 election. Powers Aff. ¶ 5. The Republican State Committee controls a massive apparatus of over 10,000 Republican elected officials and workers

  that are selected in each town, county and congressional district throughout New York. Molinari Decl.¶¶ 7— 9; O'Brien Decl. ¶ 15. Each county chairperson can easily mobilize the resources necessary to conduct a petition drive: recruiting potential delegate candidates, quickly obtaining up-to-date and usable walking lists of registered voters from the county boards of elections, supplying an army of dedicated Party workers who will gather signatures, making signers available at Party functions and providing persons who will review opposing petitions for technical defects. Molinari Decl. ¶ 11; O'Brien Decl. ¶ 15. The Republican State Committee delivered this apparatus to its favored candidate, Governor Bush, who then had the luxury of being able to obtain the necessary ballot access signatures relatively painlessly without having to devote scarce campaign resources better utilized on non- ballot-access-related campaign expenses in New York or in other states. Molinari Decl. ¶¶ 12, 14; O'Brien Decl. ¶¶ 15— 17; Davis Decl. ¶ 36. Indeed, access to these resources enabled Governor Bush to collect over four times the total required number of signatures. Molinari Decl. 12, 14; O'Brien Decl. ¶¶ 15-17,55.*fn1
In an unusual twist (to which reference was made earlier), Governor Bush's delegate candidates were actually knocked off the ballot in one congressional district. Because of challenges that Bush supporters mounted against the Forbes petitions in three congressional districts, the Forbes campaign deemed the non-aggression pact between the two campaigns breached. See Clifford J. Levy, "Bush Kept Off Ballot in South Bronx After Party Admits Fraud," N.Y Times, Feb. 3, 2000, at B6. Although the Forbes campaign had not filed objections to any other candidate's petitions with any of the boards of elections in the state prior to that breach, the Forbes campaign responded to the challenges by bringing lawsuits seeking to have Bush delegate slates invalidated in six congressional districts. Berger Reply Decl. ¶ 24. The Republican State Committee admitted in the lawsuit challenging Bush petitions in the 16th Congressional District that Party workers had committed fraud by forging substantial numbers of signatures there. See Levy article, supra. Accordingly, Governor Bush's delegate candidates were knocked off the ballot in that district, and even he failed to field delegates in all 31 of New York's congressional districts.

B. The Forbes Campaign

Mr. Forbes spent approximately $1 million in 1996 on petitioning gathering alone, and additional substantial sums litigating the post-petition technical challenges brought by supporters of the Republican State Committee's then-favored presidential candidate, Senator Dole. While initially satisfying the numerical signature requirements in every district, the Forbes delegates were knocked off in several due to those technical challenges. Forbes delegates ultimately appeared on the ballot in all 31 of New York's congressional districts only because of the injunction I issued in Rockefeller v. Powers, 917 F. Supp. 155 (E.D.N.Y. 1996), affd 78 F.3d 44 (2d Cir. 1996) (holding that the 1996 legislative scheme created an undue burden on ballot access).

This year, according to counsel at oral argument, the Forbes campaign spent approximately $650,000— 675,000 on the petitioning phase alone (which does not count the cost of defending post-petition legal challenges to petitions, discussed below) and obtained approximately 45,000 signatures, thereby qualifying the Forbes delegate slates for access to the ballot in every district absent technical challenges. Muir Decl. ¶ 2. Tellingly, the Forbes campaign

  had to spend this amount despite the fact that the numerical signature requirements have been reduced since 1996, and despite the fact that he, unlike the other candidates not favored by the Republican State Committee, had already navigated the New York ballot access rules once, allowing him to create his own "far-flung" statewide apparatus more quickly. Davis Decl. ¶ 41. The Forbes petitions this year were challenged in the 2d 3rd and 4th Congressional Districts, and all were subsequently declared invalid by the respective county boards of elections, which had the result of knocking the Forbes delegate slates off the ballot in each of those districts. Muir Decl. ¶ 3. In the 2nd Congressional District, several hundred signatures were declared invalid by the Suffolk County Board of Elections (which covers that district) under the town/city "trap." Muir Decl. ¶ 4. The town/city "trap" refers to the requirement under Election Law § 6— 132 that both subscribing witnesses and signers must list their city or town of residence in addition to their residence address. Plaintiffs allege that this requirement becomes a trap because people often believe that the village they use as their mailing address is the "town" or "city" called for by the Election Law, when in fact the statute requires them to list the larger town/city unit within which their village of residence is located. Berger Decl. ¶¶ 5-7; cf Matter of Zobel v. New York State Board of Elections, 254 A.D.2d 520, 678 N.Y.S.2d 794, 794— 95 (3d Dep't 1998) (invalidating 6,435 signatures because the signer or subscribing witness designated the incorrect town or city on the petition).

In addition to the town/city invalidations, several hundred perfectly valid signatures witnessed by one particular witness were nonetheless invalidated in the 2nd Congressional District based on objections that included both the town/city problem and the fact that the witness, a registered Republican, had registered as a Democrat six years earlier. Muir Decl. ¶ 4. The witness had not voted in the six years in which he was a registered Democrat and, moreover, had been told by a commissioner of the Suffolk County Board of Elections that he was eligible to vote in the Primary by virtue of his more recent registration as a Republican. Id. The commissioner, who had herself been selected by the chairman of the Republican County Committee in Suffolk County, see Election Law § 3— 504[2], apparently reversed her position as to the witness's eligibility and deemed the witness's new voter registration to be a "change of enrollment" that would not be effective until the next general election. Muir Decl. ¶ 4. This was all done without notice to the witness himself or to the Forbes campaign. ld. Even accepting the "change of enrollment" and other types of invalidations as proper, the Forbes petitions in the 2nd Congressional District still would have contained enough signatures to place his delegate slate on the ballot if not for the town/city invalidations due to technically incorrect witness addresses in that district.

In the 3rd and 4th Congressional Districts, general and specific objections to the Forbes petitions were filed without any notice to the Forbes campaign. Id. ¶ 5. The Nassau County Board of Elections (which covers those districts) invalidated the petitions on or about January 18, 2000 without making any minutes or other official record of the proceeding available to Mr. Forbes (despite the Forbes campaign's request). Id. ¶¶ 6, 10. While many of the signatures in these districts were invalidated because the signers were not registered voters or were not registered Republicans, nevertheless, more than 1,000 more were invalidated under the town/city "trap" because the witnesses had listed their village rather than their town or city. Id. ¶ 9. The Forbes campaign did not receive notice of these invalidations until January 21, 2000 — the date by which the campaign was required by law to file a proceeding challenging the invalidation of his petitions. Id. ¶¶ 7— 8.

  The difficulty of challenging the invalidations was compounded because the board of elections refused to disclose to the Forbes campaign the identity of the objectors and their addresses unless a personal appearance was made and a Freedom of Intormation request was filed seeking that information. Id. ¶ 11. Absent the town/ city invalidations for the witnesses in these districts, the Forbes slates would have been on both ballots.
Thus, despite his campaign's huge expenditure of money on this year's petitioning process, laboring under requirements that have supposedly been relaxed since he first faced them in 1996, Mr. Forbes was forced to move to intervene in this lawsuit and to seek preliminary injunctive relief restoring his delegate slates to the ballot in the 2d 3rd and 4th Congressional Districts. At oral argument on February 1, 2000, a settlement was reached on the record between the Forbes campaign and defendants as to the specific relief the Forbes campaign was requesting in those congressional districts. Under the terms of the settlement, the objectors in each district (whom I permitted to intervene as party-defendants in this action for this purpose) agreed to withdraw their objections to the Forbes petitions nunc pro tunc. The Boards of Elections of Nassau and Suffolk Counties agreed to withdraw their rulings on the objections to the Forbes petitions. The end result is that Forbes slates will be restored to the Primary ballot in the 2d 3rd and 4th Congressional Districts.

C. The McCain Campaign

Senator McCain is the only declared presidential candidate subject to federal matching fund spending requirements who has even attempted to gain statewide Republican ballot access in New York in 1996 or 2000. In early November 1999, days after the Republican State Committee selected §§ 2 and 2—a of Chapter 137 to govern ballot access for the Primary, *fn2 the McCain campaign made an initial critical decision in preparation for the New York ballot access petition drive. O'Brien Decl, ¶ 12. While experienced members of the campaign estimated, based on prior experience with gaining statewide ballot access in New York and on the current ballot access requirements, that it would cost at least $700,000 (and probably significantly more, following post-petition challenges) to successfully qualify delegates in every district, Davis Decl. ¶ 34, the campaign decided initially that it could only allocate $170,000 to the overall Primary effort in New York, approximately 45% of which was to be devoted to petition-gathering alone. O'Brien Decl. ¶ 12; Davis Decl. ¶ 28.

Although the McCain campaign officials knew that $170,000 would be inadequate even to gain statewide ballot access in New York, let alone run an entire Primary campaign in New York, the sum far exceeded the amount it had allocated for ballot access in any other state. Davis DecI. ¶ 33, *fn3 Indeed, if the campaign had

  decided to allocate the $700,000—plus that it felt it needed to obtain statewide ballot access, that allocation would have constituted, at a minimum, slightly under half of the cash that Senator McCain had on hand at the time, all for the preliminary purpose of qualifying to compete statewide in New York. Id. ¶ 29. This would have diverted scarce financial resources from other vital needs of the nationwide campaign, including the need to ...

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