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).
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 ...