The opinion of the court was delivered by: Gershon, District Judge.
Plaintiffs in this action, members of the New York Green Party, bring suit challenging on First and Fourteenth Amendment grounds New York Election Law § 6-140(1)(b), which requires that witnesses to nominating petitions for independent candidates be residents of the district in which such candidates run for office. Plaintiff Evergreen C. Chou is a candidate for independent nomination for the New York State Assembly representing the 22nd District. Plaintiff Kimberly Wilder is a candidate for independent nomination for the New York State Senate representing the 4th District. Plaintiffs Roger Snyder and Eric Prindle are registered voters and members of the Green Party who wish to serve as witnesses for these candidates' nominating petitions but are prevented from doing so by Section 6-140(1)(b) because they are not residents of the candidates' districts. Defendants are the New York State Board of Elections and the Suffolk County Board of Elections, as well as the Commissioners of each Board sued in their official capacity.*fn1 On July 9, 2004, plaintiffs moved for a preliminary injunction to enjoin defendants from enforcing Section 6-140(1)(b). At a hearing before me on July 16, 2004, the parties agreed that plaintiffs' motion would be converted into a motion for summary judgment. State defendants also move for summary judgment dismissing the action. County defendants oppose plaintiffs' motion for summary judgment but have not moved independently for summary judgment. For the following reasons, plaintiffs' motion is granted and the State defendants' motion is denied.
The essential facts are not in dispute. Therefore, judgment as a matter of law under Rule 56(c) of the Federal Rules of Civil Procedure is proper. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
New York Election Law § 6-140(1)(b) requires that witnesses to the signatures on nominating petitions for independent candidates be registered voters residing in the same district as the office to which the petition pertains.*fn2 That is, the witness must reside in the district for which the candidate is running for office. Notaries public and commissioners of deeds who do not reside in the district may also witness nominating petitions by individually swearing each signatory. See N.Y. Elec. Law § 6-140(2). If a witness is challenged and deemed ineligible, none of the signatures on the petitions witnessed by that individual are counted in determining whether the candidate has obtained enough signatures to gain access to the ballot. See Lerman v. Bd. of Elections, 232 F.3d 135, 139 (2d Cir.2000).
The Green Party of New York State obtained party status under New York law in 1998 by securing over 50,000 votes in the gubernatorial election. See N.Y. Election Law § 1-104(3). However, the Green Party lost its party status in December 2002. As a result, all Green Party candidates for office in New York State are subject to the requirements for independent candidates not affiliated with a party.
Plaintiff Chou is a candidate for independent nomination for the New York State Assembly in the 22nd District, where he resides. Plaintiff Wilder is a candidate for independent nomination for the New York State Senate in the 4th District, where she resides. Pursuant to the requirements for independent candidates, Chou and Wilder must obtain signatures totaling five percent of the votes cast in the last gubernatorial election in the district for which they are running, but not to exceed either 1500 signatures for State Assembly candidates or 3000 signatures for State Senate Candidates. See N.Y. Elec. Law § 6-142(2)(f), (g). Based on the number of votes in the last gubernatorial election in the 22nd District, Chou needs at least 696 signatures in order to be placed on the ballot for State Assembly. Based on the number of votes in the last gubernatorial election in the 4th District and the statutory cap, Wilder needs at least 3000 signatures in order to be placed on the ballot for State Senate. For both candidates, the number of signatures required to gain ballot access is greater than that required for candidates from political parties. See N.Y. Elec. Law § 6-136(2) (requiring five percent of enrolled party members in a district to sign a petition to designate a candidate and capping the total number of signatures at 1000 for State Senate candidates and 500 for State Assembly candidates). In addition, both Chou and Wilder state that they want to secure two-to-three times the minimum number of signatures in order to insure against the possibility that some of their signatures will be invalidated after the petitioning process ends. As a practical matter, candidates almost always take this precaution. See Lerman, 232 F.3d at 147 ("[A]s a practical matter a candidate seeking election needs a surplus of signatures, because they will likely be challenged on any number of grounds, resulting in some, perhaps many, invalidations.") (internal quotation marks omitted).
The petition process for independent candidate nominations begins approximately one month later than that for party nominating petitions. Voters may sign only one nominating petition for each office. N.Y. Elec. Law § 6-138(1). Thus, independent candidates face a shrinking pool of eligible petition signatories.
Both Chou and Wilder state that they have friends and colleagues from their activities in the Green Party and in local community organizations who support their candidacies and wish to express this support by circulating petitions on their behalf, but are prevented from doing so by Section 6-140(1)(b) because they are not residents of their districts. Plaintiffs Snyder and Prindle each wish to serve as a witness for one of these candidates by circulating nominating petitions on his or her behalf.
Subject Matter Jurisdiction
State defendants argue the Eleventh Amendment bars this action against the New York State Board of Elections because the Board is a state agency. Because plaintiffs seek only declaratory and prospective injunctive relief, under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Eleventh Amendment does not bar this suit. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985).
Constitutionality of the Section 6-140(1)(b) Witness Residence Requirement
When determining what level of scrutiny to apply to a challenged state election law, the court must first ascertain the extent to which the challenged provision burdens First and Fourteenth Amendment rights. See Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992); Lerman v. Bd. of Elections, 232 F.3d 135, 145 (2d Cir.2000). Laws imposing severe burdens on those rights must be narrowly tailored to serve compelling state interests, but lesser burdens receive less exacting ...