United States District Court, Southern District of New York
August 11, 2000
G. OLIVER KOPPELL, ARNOLD LINHARDT, MARIE MORRISON PLAINTIFFS,
NEW YORK STATE BOARD OF ELECTIONS, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Stein, District Judge.
G. Oliver Koppell-a candidate for the Democratic nomination for New
York State Attorney General in 1994 and 1998-and Arnold Linhardt and
Marie Morrison-two New York state voters-brought this action challenging
the constitutionality of New York Election Law § 7-116(3). Pursuant
to Section 7-116(3), in primary elections in the 57 counties outside of
New York City the order of candidates on the ballot is determined by
lottery, so that the same candidate appears first on every ballot. See
N.Y. Election Law § 116(3). In contrast, within New York City ballot
position is rotated by election district, so that each name appears first
and in each other position an equal number of times. See N.Y. Election
Law § 7-116(6).
Plaintiffs argue that as a result of "position bias," which is
the hypothesis that a certain number of votes are automatically
cast for the candidate whose name appears first on the ballot, the
lottery system infringes upon their First and Fourteenth Amendment
rights, specifically the right to vote, the right to freely associate,
and the right to become a candidate for office.
Two years ago this week, this Court denied plaintiffs' motion for a
preliminary injunction, on the grounds that plaintiffs failed to
demonstrate a likelihood of success on the merits. See Koppell v. New
York State Board of Elections, 8 F. Supp.2d 382 (S.D.N.Y. 1998). That
determination was affirmed by the U.S. Court of Appeals for the Second
Circuit. See Koppell v. New York State Board of Elections, 153 F.3d 95
(2d Cir. 1998). Familiarity with those two opinions is assumed.
Following discovery proceedings and the exchange of expert reports, a
bench trial was held on May 22 and 23, 2000. Upon consideration of the
evidence presented and the testimony adduced at the trial, this Court
finds that plaintiffs have failed to demonstrate that New York Election
Law § 7-116(3) infringes upon their constitutional rights. The
following constitutes the Court's findings of fact and conclusions of law
pursuant to Fed.R.Civ.P. 52(a).
When entertaining challenges to state election laws, a court
must first consider the character and magnitude of
the asserted injury to the rights protected by the
First and Fourteenth Amendments that the plaintiff
seeks to vindicate. It then must identify and
evaluate the precise interests put forward by the
State as justifications for the burden imposed by the
rule. In passing judgment, the Court must not only
determine the legitimacy and strength of each of
those interests; it must also consider the extent to
which those interests make it necessary to burden the
Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547
(1983). In Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2069, 119 L.Ed.2d
245 (1992), the Supreme Court clarified the standard set forth in
Anderson as follows:
[T]he rigorousness of our inquiry into the propriety
of a state election law depends upon the extent to
which a challenged regulation burdens First and
Fourteenth Amendment rights. Thus, as we have
recognized when those rights are subjected to `severe'
restrictions, the regulation must be `narrowly drawn
to advance a state interest of compelling importance.'
. . . But when a state election law provision imposes
only `reasonable nondiscriminatory restrictions' upon
the First and Fourteenth Amendment rights of voters,
`the State's important regulatory interests are
generally sufficient to justify' the restrictions.
Id. at 434, 112 S.Ct. 2059 (citing Anderson).
Plaintiffs' specific allegations-upon which they premise their claim
that this regulation imposes a severe burden on their constitutional
rights-are that position bias exists in primary elections in New York
State, that position bias is of sufficient magnitude to affect the
outcome of primary elections when the placement of candidates' names is
not rotated on the ballot, and that defendants have not demonstrated a
strong enough interest to justify the burdens imposed by the lottery
Defendants contend that plaintiffs' findings are flawed and do not
provide conclusive evidence that position bias affects the outcome of
upstate elections. Further, defendants claim that even if the Court were
to accept plaintiffs' allegations, the effects of the lottery are minimal
and are justified by the state interests presented.
A. The Evidence of Position Bias in New York City's Primary Elections
Dr. Henry Bain, plaintiffs' expert on the
issue of position bias,*fn1 conducted two studies for the purposes of
this litigation: an analysis of the results in the 1994 Democratic party
primary for Attorney General in Queens, and an analysis of the results in
seventy-nine 1998 Democratic Party primaries in New York City. See Pltfs
Exh. C, Bain Aff., 7/9/98, at ¶ 10; Pltfs Exh. E, Plaintiffs' Expert
Report on the Existence and Magnitude of Position Bias in 1998 New York
City Democratic Party Primaries [the "Bain Report"], at ¶ 14.
According to Bain, the rotation of ballot positions in primary elections
in New York City permitted him to isolate the effects of position bias in
primary elections by comparing how candidates performed when they appeared
in different positions on the ballot. Tr. 4/10/00, at 75-76; Bain
Report, at ¶ 41.
Bain measures position bias in two ways. First, he compares each
candidate's percentage of the total vote from the ballots on which he or
she appeared in first position with the candidate's percentage of the
vote in all of the election district's other ballots. Bain Report, at
¶ 16. Any excess percentage when in first position is considered
evidence of position effect. Bain Report, at ¶ 16. This measure is
used to state the magnitude of a single candidate's first position
advantage. Bain Report, at ¶ 16. Second, he measures the overall
"bounce" candidates receive from being in first position. Bain Report, at
¶ 19. "Bounce" is the term used to describe the average percentage
increase that all the candidates in a given race receive from being in
the first position on the ballot. Bain Report, at ¶ 19.
In his study of the 1994 Attorney General primary, Bain reported a
position effect equal to "what would be found if 4.7% 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." Pltf. Exh. C, Bain Aff., at ¶ 15. In studying the
1998 primaries, he found a position effect with a reasonable statistical
significance in 64 of the contests. Bain Report, at ¶ 25. In 13 of
the 79 cases there was no advantage and in 2 cases there was an advantage
that was not statistically significant, meaning that the odds of the
results happening by random chance were greater than 1 in 10. The
candidates experienced an average excess percentage of 8.5% when in first
position. Bain Report, Exh. 1. Bain reported a mean position effect of
2.8% in the race for the Democratic Party nomination for Attorney General
and an average mean position effect of 2.5% for all statewide offices.
Bain Report Exh. 1. In statewide elections candidates received a 10.4%
"bounce" when listed in first position and an average of 9.5% "bounce"
over all of the elections. Bain Report, Exh. 2. These averages do not
include those races for which there was no discernible position effect.
Tr. 4/10/00 at 134 (Darcy).
Defendants' expert, Dr. Robert Darcy, criticized Bain's method of
measuring statistical significance. Def.'s Exh. 11, Written Response to
Report of Henry Bain ["Darcy Response"], at ¶¶ 6-8. In response, Bain
recalculated the significance of his results by incorporating Dr. Darcy's
criticism. Pltfs Exh. F, Written Response to Reports of Robert Darcy and
James Chapin ["Bain Response"], at ¶ 2. He found that even assuming
Darcy's criticism, 59 of the 79 races showed a statistically significant
position effect. Bain Response, at ¶ 2.
Bain found that if the runner-up had been listed first in 12 of the 79
Democratic primaries, that candidate would have won the election. Pltfs
Exh. J; Tr., 4/10/00, at 47. In other words, because the runner-up
outpolled the ultimate winner in the precincts where the runner-up was
listed first, the runner-up would have won the
election had the runner-up been listed first on every ballot. Bain also
considered whether the outcome would have been different in the statewide
primaries, by extrapolating from the mean position effect found in
studying the New York City results. Pltfs Exh. I. Extrapolating from
these results, Bain found three statewide elections that would have had a
different outcome had the runner-up been listed first in the past 18
years: the 1992 United States Senate Democratic primary, the 1982
Democratic Comptroller primary, and the 1994 Democratic Attorney General
primary. Pltfs Exh I; Tr., 4/10/00, at 43. However, his analysis also
demonstrated that the outcome would have been the same had there been
rotation upstate, as opposed to a lottery with a different outcome. Pltfs
Exh. I; Tr., 4/10/00, at 56.
B. Is the evidence of position bias sufficient to demonstrate a
Plaintiff have shown to the satisfaction of this Court that position
bias affects a certain number of votes cast in primary elections in New
York City. Nonetheless, they have failed to demonstrate that the lottery
system employed outside of New York City is unconstitutional.
i. Plaintiffs' evidence of position bias in New York City elections
cannot be extrapolated to the 57 other counties in New York State.
First and foremost, the ballots in the upstate counties-with the
exception of Albany County-are printed on horizontal ballots. Def. Exh.
15, Tr. 5/23/00 DeBiase, at 68. In New York City the ballots are
vertical. Def. Exh. 14. Plaintiffs have presented no evidence that
position bias exists where the choices are arranged in a horizontal rather
than vertical fashion. Bain admitted that he was not aware that
horizontal ballots were used in elections outside of New York City. Tr.
4/10/00 at 66 (Bain). Moreover, in the 1957 monograph that he co-authored
with Donald Hecock, entitled Ballot Position and Voter's Choice: The
Arrangement of Names on the Ballots and its Effect on the Voter, the
authors did not find a position effect when horizontal ballots were
used. Def. Exh. 3 at 88 ("No one position within any one horizontal row
was consistently favored."). This Court is thus unable to extrapolate the
New York City results to the upstate primaries; for all but one upstate
county, plaintiffs have presented no evidence that position bias will
affect the outcomes of primary elections.
Second, Bain's testimony that the position bias he found in New York
City can be extrapolated to the 57 upstate counties is speculative. Darcy
4/10/00 at 136-37. He did not include the upstate counties in his study
and admittedly has no knowledge of how Democratic party politics is
conducted in any of the 57 counties at issue or of the income and
education levels of the voters. Bain 4/10/00 at 60, 62. In addition, he
reports significant variations in position effect-from race to race, and
within races among competing candidates for the same nomination-without
any degree of predictability or the offer of a theory or explanation.
Tr. 4/10/00 at 51 (Bain). For example, Bain testified that the
substantial range of position effect between and among competing
candidates-such as Chuck Schumer's 2.9% position effect being more than
double Mark Green's 1.2% position effect-was "very interesting," but he
did not attempt to account for such variations. Bain 4/10/00 at 51. As
such, it is not statistically valid to generalize from his reported
findings in New York City to the 57 other counties, Tr. 4/10/00, at
136-37 (Darcy), especially because he simply assumed the same effects
upstate but conceded that voter behavior differs "greatly with respect to
things like race and class." Tr. (Bain) 4/10/00 at 86-87.
ii Even if the Court accepts plaintiffs' allegations that position bias
affects the outcomes of primary elections in New York State, the
evidence does not demonstrate that the lottery system is
Even if Bain's findings were accepted, z the reasonable,
restrictions imposed by the lottery do not render it unconstitutional. As
noted above, voting regulations that impose "severe" restrictions "must
be narrowly drawn to advance a state interest of compelling importance."
Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (citations omitted). "But when a
state election law provision imposes only `reasonable, nondiscriminatory
restrictions' . . . `the State's important regulatory interests are
generally sufficient to justify' the restrictions." Id., (quoting
Anderson v. Celebrezze, 460 U.S. 780
, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547
(1983)); see also Schulz v. Williams, 44 F.3d 48
, 56 (2d Cir. 1994).
The lottery system in use outside of New York City is "by definition,
nondiscriminatory." Koppell, 153 F.3d at 96. "As long as a state's system
of ballot placements treats all candidates in a nondiscriminatory
manner, there is no constitutional right to a preferred position on a
ballot." Koppell, 153 F.3d at 96. No court to address ballot listing
schemes has invalidated a nondiscriminatory scheme. See, e.g., McLain v.
Meier, 637 F.2d 1159, 1167 (8th Cir. 1980); Holtzman v. Power,
62 Misc.2d 1020, 313 N.Y.S.2d 904, 907, (N.Y.Sup.Ct. 1970), aff'd
34 A.D.2d 917, 311 N.Y.S.2d 824 (1st Dept. 1970), aff'd 27 N.Y.2d 628,
313 N.Y.S.2d 760, 261 N.E.2d 666 (1970) (invalidating law giving first
position to incumbents). Moreover, most courts to address the issue have
explicitly noted that the scheme must be discriminatory to be considered
unconstitutional. See Board of Election v. Libertarian Party, 591 F.2d 22,
24-25 (7th Cir. 1979) ("A successful challenge to a ballot placement
procedure under the equal protection clause requires a showing of `an
intentional or purposeful discrimination by authorities in which one
class is favored over another'") (citation omitted); Sangmeister v.
Woodard, 565 F.2d 460, 465 (7th Cir. 1977) ("[T]he plaintiff must `prove
the existence of an intentional or purposeful discrimination by
authorities in which one class is favored over another.'"); Libertarian
Party of Colorado v. Buckley, 938 F. Supp. 687 (Colo. 1996) (denying
motion for preliminary injunction against ballot placement scheme, noting
that scheme "is facially neutral"); Strong v. Suffolk County Board of
Elections, 872 F. Supp. 1160, 1164 (E.D.N.Y. 1994) (plaintiff bringing
position bias claim pursuant to Fourteenth Amendment "must prove the
existence of an intentional or purposeful discrimination by authorities
in which one class is favored over another").
Compared to other burdens on voting rights, the burden imposed on
candidates by the lottery is minor. This is not a case where any
candidate is denied access to the ballot, see, e.g. Anderson, 460 U.S. at
792, 103 S.Ct. 1564 (striking down Ohio's early filing deadline that had
the effect of excluding late-filing independent candidates from the
ballot), or where a regulation precludes a voter from voting, see, e.g.
Dunn v. Blumstein, 405 U.S. 330, 360, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)
(striking down residency requirement of one year in state and three
months in county). The lottery does not infringe on First and Fourteenth
Amendment rights by "freez[ing] the status quo." Jenness v. Fortson,
403 U.S. 431, 438, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971).
Nor is it a case where the one person, one vote principle is offended.
Contrary to plaintiffs' arguments, votes cast in support of lottery
losers are not "diluted" by the lottery in the same sense that votes cast
by voters in larger-than-average election units can be diluted by
vote-counting systems which, for example, weigh the votes of rural voters
more heavily than those of urban voters. See, e.g., Gray v. Sanders,
372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). Position bias, unlike
the dilution of votes caused by drawing of election districts or by
vote-counting systems, is not the ineluctable product of the state's
election system. Position bias depends on such factors as the amount of
information and encouragement voters receive on how they should vote and
motivation, and thus can largely be ameliorated by voter education
concerning the candidates. Pltfs D, Supp. Bain Aff., at ¶ 4.
To the extent that plaintiffs contend that the lottery "losers" are
forced to work harder to educate voters to overcome the "head start"
afforded to the lottery winner, the cases addressing ballot nomination
petition statutes are instructive. In Schulz v. Williams, 44 F.3d 48 (2d
Cir. 1994), the Second Circuit reviewed a statute requiring that ballot
nomination petitions for "independent bodies" include each signer's
election district, and, where applicable, assembly district or ward. The
Court "recognize[d] the plaintiffs' evidence that vote canvassers spent
50% to 70% of their time processing these numbers," but concluded that
"that fact alone does not make the burden `severe.' . . . `[H]ard work
and sacrifice by dedicated volunteers are the lifeblood of any political
organization.'" Id. at 57 (quoting American Party of Texas v. White,
415 U.S. 767, 787, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974)). To conclude
that position bias is insurmountable would be to abandon "faith in the
ability of individual voters to inform themselves about campaign issues."
Anderson, 460 U.S. at 797, 103 S.Ct. 1564. While the lottery system may
not be the ideal system for limiting the effects of position bias, the
form of the ballot is essentially a legislative determination and the
lottery system provides every candidate with an equal chance to achieve
the top ballot placement.
Defendants have presented sufficient evidence that the state has a
sufficient interest in maintaining this ballot listing scheme to justify
the burden imposed. The evidence was that (1) the lottery system is less
costly to operate and administer than New York City's rotation system,
Pltfs Exh. P (Deposition of John Howard Clifton), at 22-25; Defs Exh.
24, at ¶¶ 12-16 (DeBiase Aff.); and (2) the lottery system avoids
confusion and delay, especially when last minute changes are required,
Pltfs Exh. P, at 54; Tr. 5/23/00, at 54-53.
Accordingly, because the lottery system is nondiscriminatory and the
burden it imposes is minimal, New York State's important regulatory
interest in the efficient administration of elections is sufficient to
justify the use of the lottery system in the 57 counties outside of New
For the reasons set forth above, judgment shall be entered in