The opinion of the court was delivered by: Nina Gershon, United States District Judge
In Lerman v. Board of Elections. 232 F.3d 135 (2d Cir. 2000), cert. denied, 533 U.S. 915, (2001), the Court of Appeals for the Second Circuit invalidated, under the First Amendment, a New York State Election Law provision, contained in Section 6-132(2), which restricted political speech and political association by requiring that witnesses to candidate petitions for primary elections be residents of the same political subdivision in which the candidate was running for office. All signatures on petitions witnessed by individuals living in other districts were disqualified under the law even if the witnesses were registered voters and enrolled members of the party. Shortly after that ruling, the Kings County Democratic County Committee ("KCDCC") enacted a rule which effectively reinstated the Election Law provision struck down in Lerman, for Democratic Party primary elections in Kings County, and had the same effect as that law on candidates seeking access to the primary ballot. The rule at issue, codified at Section 6 of Article VIII of the Rules for the Government of the KCDCC (the "Rule"), provides that party members may witness petitions only in the districts where they are enrolled to vote and reside.
New York State Election Law
The New York State Election Law provides that candidates for a party nomination at a primary election may gain access to the ballot by collecting the requisite number of signatures on a "designating petition." N.Y. Elec. L. § 6-118. Each sheet of a designating petition must be signed by a witness. N.Y. Elec. L. § 6-132(2). Under state law, individuals eligible to witness the signing of a petition are those who, at the time, are eligible to vote in New York and are enrolled in the same political party as eligible petition signers. Id. (The additional requirement of Section 6-132(2) that witnesses reside "within the political subdivision in which the office or position is to be voted for" was struck down in the Lerman case). The Election Law also provides that any party county committee "may prepare rules for governing the party within its political unit." N.Y. Elec. L. § 2-114.
The plaintiffs are candidates who sought access to the September 11, 2001 Democratic Party primary for New York City Council seats in districts in Kings County and wanted to use Democratic Party members living outside of those districts as petition witnesses in their efforts to get on the primary ballot; enrolled Democrats who wanted to serve as petition witnesses for candidates running for office in Kings County outside of their districts; and an enrolled Democratic voter in Kings County. The defendants are the KCDCC, its Executive Committee, and its chairperson, Jeffrey C. Feldman. The KCDCC is the official Democratic Party organization for Kings County, created and existing pursuant to New York Election Law, Section 2-104. Pursuant to stipulation, plaintiffs dismissed from the suit the New York City Board of Elections and its nine commissioners.
Plaintiffs seek declaratory and injunctive relief against the KCDCC's petition witness residency Rule. As a result of that Rule, some supporters of the plaintiff political candidates, who wished to witness petitions on their behalf, were disqualified by the Rule from doing so. That is, even if potential witnesses satisfied the requirements of N.Y. Elec. L. § 6-132, they could not witness petitions unless they also met the additional residency requirement of the Rule. It is not disputed that, as a result, the Rule affected candidates' ability to gain access to the primary ballot. Plaintiffs acknowledge that the KCDCC plays no role in reviewing candidate petitions, and thus cannot enforce the Rule directly. However, it is undisputed that candidates and others could challenge petitions witnessed by registered party members residing in other districts as invalid under the Rule by filing written objections with the City Board of Elections. See N.Y. Elec. L. § 6-154.
On May 24, 2001, plaintiffs filed their complaint in this court, along with a proposed order to show cause seeking preliminary injunctive and declaratory relief under 42 U.S.C. § 1983 claiming that the Rule adopted by the KCDCC violates the First and Fourteenth Amendments to the United States Constitution. An order to show cause why an order should not issue enjoining defendants from implementing and enforcing the Rule and declaring it unconstitutional was signed on May 25, 2001. On May 30, 2001 both sides appeared on the order to show cause. On that date, defense counsel submitted an affidavit prepared by defendant Jeffrey C. Feldman, the Executive Director of the KCDCC, stating that a meeting of the Executive Committee had been convened at 2:00 p.m. on May 30, 2001, "notice therefor having been given on May 23, 2001," and that, at that meeting, the Executive Committee, "by a majority vote of a quorum of members, did repeal" the Rule. Then, on May 31, 2001, based upon defense counsel's representations that under no circumstances would the KCDCC reinstate the Rule during the 2001 elections, this court dismissed plaintiffs' motion for a preliminary injunction without prejudice as moot. See Order of May 31, 2001.
Efforts to settle the litigation in its entirety foundered when the KCDCC would not agree to make a permanent commitment not to reinstate the petition witness residency requirement contained in the Rule at any time. Presently before the court are the parties' motions for summary judgment. The material facts are undisputed.
Plaintiffs argue that, under Lerman, the Rule is unconstitutional, and they seek attorneys' fees. Defendants make no effort to distinguish the Rule from the provision of the Election Law that was struck down in Lerman other than to argue that they are not state actors. They also seek summary judgment, and oppose attorneys' fees, on the ground that the action is moot since they have repealed the Rule.
Lerman v. Board of Elections
In Lerman v. Board of Elections, the Court of Appeals for the Second Circuit held that the political subdivision residency requirement for petition witnesses, contained in New York Election Law, Section 6-132(2), violated the First and Fourteenth Amendments to the United States Constitution. Like the KCDCC Rule, this requirement provided that candidate petition witnesses must be residents of the same political subdivision in which the candidate was running for office. All signatures on petitions witnessed by individuals living in other districts were disqualified, even if the witnesses were registered voters and enrolled members of the party.
The Court held that the requirement directly restricted "core political speech" as opposed to the mere "mechanics of the electoral process," and that therefore it would violate the First and Fourteenth Amendments unless it satisfied strict scrutiny and was narrowly drawn to advance a compelling government interest. Lerman, 232 F.3d at 146. The court noted that such exacting scrutiny would be required even if the requirement were viewed as an electoral process regulation rather than as core political speech. because it severely burdened political speech and political association by drastically reducing the number of persons available to circulate petitions. Id. at 146. The Court found that the petition witness residency requirement failed strict scrutiny because it did not bear even a rational relationship to any of the three justifications offered in its defense. "let alone the narrowly tailored relationship that strict scrutiny demands." Id. at 149. The three justifications rejected by the court were (1) ...