United States District Court, E.D. New York
DARMA DIAZ, Plaintiff,
NEW YORK CITY BOARD OF ELECTIONS, et al., Defendants.
The opinion of the court was delivered by: I. LEO GLASSER, Senior District Judge
MEMORANDUM AND ORDER
The plaintiff has moved this Court for an Order that would
direct the defendants to show cause why they should not be
preliminarily enjoined to add her name to the ballot for election
as a candidate for Female Member of the Democratic State
Committee for the 54th Assembly District to be held on
September 14, 2004.
Jurisdiction is predicated upon 42 U.S.C. § 1983, it being the
plaintiff's claim that she was deprived of her rights under the
Equal Protection Clause of the Fourteenth Amendment.
Oral argument having been heard, the plaintiff's motion for a
preliminary injunction is denied for the reasons that follow.
The original candidate for Female Member of the Democratic
State Committee for the 54th Assembly District, Nellie
Santiago, withdrew her candidacy and filed a certificate of
declination on July 19, 2004. Pl. Mem. 3. That declination
triggered the application of New York Election Law § 6-148, which
provides in substance that a vacancy resulting from a candidate's declination, death or disqualification may be filled
by the newly designated or nominated candidate by filing a
certificate indicating his or her name with the Committee to Fill
Vacancies ("Committee"). N.Y. Elec. Law § 6-148 (2004). The
provision of that statute specifically implicated on this motion
and at its core is § 6-148(5), which provides that "the
certificate designating a person to fill a vacancy in a
designation or nomination shall have appended thereto his written
consent to be so designated or nominated, duly acknowledged."
N.Y. Elec. Law § 6-148(5) (2004). In accordance with the statute,
the Committee designated the plaintiff to fill the vacancy
created by Ms. Santiago's declination and prepared the required
Certificate of Substitution ("Certificate"), which, however, was
fatally defective in that the plaintiff's "written consent to be
so designated" was not appended to it. The Board of Elections
(the "Board") declared her designation invalid and removed her
name from the ballot. Def. Mem. 2-3; Richman Decl. ¶¶ 8-9.
The plaintiff alleges that the invalidity of the Certificate
was determined by Steven Richman, the Board of Election's general
counsel, and that she was not notified of it until after her
opportunity for curing the defect passed. Compl. ¶¶ 6, 27; Diaz
Decl. ¶ 20. The failure to notify her, she claims, was
attributable to Mr. Richman who owed his position to the
Democratic Organization of Kings County (the "Organization")
which her candidacy opposed. Compl. ¶ 25. That relationship, she
alleged, was the political motivation for notifying Jannitza
Luna, a member of the Organization, of the defective designation
and enabled her to oppose the plaintiff's request to be restored
to the ballot. Id.; Pl. Mem. 8. The invalidity of the
Certificate of designation is not disputed by the plaintiff. Pl.
Mem. 6. Sworn affidavits in opposition to the motion were submitted by
Mr. Richman and by John LaRocca, who is Coordinator of the
Candidate Records Unit of the Board. Mr. Richman declares as
completely false the plaintiff's imagined sequence of events. He
states that after plaintiff filed the Certificate with the Board
on July 19, 2004, it was first examined by the Candidate Records
Unit for facial validity and was found to be defective. Richman
Decl. ¶ 9. Mr. Richman's first involvement with the matter was
the Board's request for his opinion in response to an August 23,
2004 letter from B. Mitchel Alter, Esq., plaintiff's counsel,
addressed to the Board demanding that his client's name be
restored to the ballot. Richman Decl. ¶ 12. Mr. Richman advised
the Board that, as a matter of law, the Certificate was
defective, and Mr. Alter's demand must be rejected. Richman Decl.
¶ 13. He adamantly denies any subservience to the Organization
and notes that his appointment as general counsel was approved by
the entire Board, five of whom were Republicans and five of whom
were Democrats. Richman Decl. ¶ 6.
Mr. LaRocca declared that notice of the defect and her removal
from the ballot was mailed to the plaintiff on August 4, 2004 at
her given address. See LaRocca Decl. ¶ 5; Richman Decl. ¶¶
11-12; see also Def. Mem. 3. Notice of a meeting called to
entertain objections and defenses from candidates and their
representatives was duly given and the plaintiff did not appear.
Def. Mem. 3.
I. New York Election Law § 6-148
At issue in this case is the requirement under New York
Election Law § 6-148(5) that "the certificate designating a
person to fill a vacancy in a designation or nomination shall
have appended thereto his written consent to be so designated or
nominated, duly acknowledged." N.Y. Elec. Law § 6-148 (2004).
All parties acknowledge that plaintiff's failure to sign the
Certificate of Substitution rendered the certificate invalid
under § 6-148(5). See Pl. Mem. 6; Def. Mem. 2. Indeed, the
cases that have addressed the issue compel that acknowledgment.
See, e.g., Flach v. De Benedictus, 265 A.D.2d 670, 671
(N.Y.App. Div. 1999) (holding that petitioner's failure to sign the
consent form as a substituted candidate was a "fatal defect" and
affirming the dismissal of petitioner's claim). See also
Farley v. Mahoney, 115 A.D.2d 350 (N.Y.App. Div. 1985) (noting
Board of Election would have been without jurisdiction to
nominate candidate where the candidate failed to comply with §
6-148(5)); Scott v. Curran, 277 A.D. 344, 345 (N.Y.App. Div.
1950) (reversing order of Special Term directing Board of
Elections to accept nominations despite noncompliance with
section of Election Law requiring consent), aff'd 301 N.Y. 693
(1950). The sole remaining issue, therefore, is whether plaintiff
was denied equal protection of the law by the Board's application
of the election law and is, accordingly, entitled to a
preliminary injunction directing the Board to add her name to the
ballot in the upcoming election.
II. Preliminary Injunction
Where a moving party seeks a preliminary injunction to stay
"`government action taken in the public interest pursuant to a
statutory or regulatory scheme,' that party must show irreparable
harm in the absence of an injunction and a likelihood of success
on the merits." Latino Officers Ass'n, New York, Inc. v. City of
New York, 196 F.3d 458, 462 (2d Cir. 1999) (citing New York
Magazine v. Metropolitan Transp. Auth., 136 F.3d 123, 127 (2d
Cir. 1998) (quoting Jolly v. Coughlin, 76 F.3d 468, 473 (2d
Cir. 1996)). A. Irreparable Harm
The plaintiff claims that she was denied the equal protection
of the laws guaranteed by the Fourteenth Amendment of the United
States Constitution by the alleged unequal application by the
Board of Elections of its own rules and policies, thus denying
her the right to access to the ballot. Pl. Mem. 7. That
allegation and the presumption of irreparable harm to which it
gives rise, Conn. Dep't of Environmental Protection v.
O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (since "violations of
constitutional rights are presumed irreparable, [the nature of
the plaintiff's allegations] satisfies the requirement that [she]
show irreparable injury") (citing Elrod v. Burns, 427 U.S. 347,
373 (1976); Bery v. City of New York, 97 F.3d 689, 694 (2d Cir.
1996)), satisfies the first requirement for a preliminary
B. Likelihood of Success on the Merits
The plaintiff's assertion of discrimination is an ipse dixit
and nothing more. The attachment to Mr. LaRocca's affidavit is a
notice from the Commissioners of Elections to the plaintiff,
addressed to the street number and city she stated to be her home
and which he swore he directed to be mailed. See LaRocca Decl.
¶ 5. Presumptively, a letter or notice properly addressed,
stamped and mailed is delivered to its addressee. See News
Syndicate Co., Inc. v. Gatti Paper Stock Co., 176 N.E. 169, 170
(N.Y. 1931); Trusts & Guarantee Co., Ltd. v. Barnhardt,
1 N.E.2d 459, 460 (N.Y. 1936). Therefore, it is presumed that
plaintiff received the August 4, 2004 letter from the
Commissioners notifying her of the defect in the Certificate and
her removal from the ballot. Plaintiff's unsupported claim beyond her mere allegation of
discrimination is leveled against the Board of Elections evenly
divided between Democrats and Republicans. She makes no claim nor
even suggests that the Board acted intentionally or arbitrarily.
Courts have held that "[i]t is well-established, at least under
New York Election Law, that `a § 1983 action to remedy errors in
the election process allegedly violating the equal protection
clause does not exist unless the state action constituted
intentional or purposeful discrimination.'" Dill v. Lake
Pleasant Central School Dist., 205 F. Supp. 2d 24, 33 (N.D.N.Y.
2002) (quoting Gold v. Feinberg, 101 F.3d 796, 800 (2d Cir.
1996) (internal quotations omitted)). Where plaintiff is unable
to demonstrate that defendant acted with intentional
discrimination, "allegations of erroneous or arbitrary
administration of state election laws . . . are insufficient to
establish a violation of the Equal Protection clause." Gelb v.
Bd. of Elections of City of New York, 1998 WL 386440, at *3
The court in Berger v. Acito, 457 F. Supp. 296 (S.D.N.Y.
1978), denied plaintiffs' motion for a preliminary injunction in
a similar context because they failed to sufficiently allege
discrimination. There, plaintiff candidate procured a sufficient
number of signatures for his petition, but fell short of the
required number after objections were granted invalidating some
signatures. Plaintiff was then dropped from the ballot. Plaintiff
candidate (and some persons whose signatures were invalidated)
challenged the constitutionality of sections of the New York
Election Law requiring a certain number of petition signatures,
arguing that candidates were deprived of the opportunity to be
placed on the ballot and qualified voters, in turn, were
precluded from voting. Id. at 298. The court denied plaintiffs'
motion for a preliminary injunction because plaintiffs failed to
show that the New York Board of Elections intentionally discriminated against them or acted arbitrarily in enforcing the
requirement of petition signatures. Id. at 299-300.
As in Berger, plaintiff's allegations of discrimination fail
to demonstrate a likelihood of success on the merits. Her
assertions that Mr. Richman was motivated by "political
considerations" to inform plaintiff's opposing candidate of the
defect in the consent form fall short of establishing that Mr.
Richman acted with intent to discriminate against plaintiff in
processing her Certificate of Substitution. Furthermore, as in
Berger, plaintiff has not shown that the application of §
6-148(5) in this instance was arbitrary. Her bare allegations are
opposed by Mr. LaRocca's declaration, which states that
defendants sent plaintiff a letter on August 4, 2004 notifying
her that her name would not be placed on the ballot. See
LaRocca Decl. ¶¶ 5-6.
Absent a showing of discriminatory intent on the part of the
Board, the Court must deny plaintiff's motion for a preliminary
injunction because she failed to show a likelihood of success on
the merits. See, e.g., Perry v. St. Pierre, 518 F.2d 184, 186
(2d Cir. 1975) (affirming denial of preliminary injunction where
statute prohibiting police officers from soliciting votes did not
deny plaintiff candidate equal protection by discriminating
against that group). See also Johnson v. Cuomo,
595 F. Supp. 1126, 1131 (N.D.N.Y. 1984) (rejecting challenge to signature
requirements for nominating petitions under New York Election Law
as unconstitutional barrier to ballot where plaintiffs failed to
establish likelihood of success on the merits and denying
preliminary injunction). CONCLUSION
For the reasons stated above, plaintiff's motion for a
preliminary injunction is denied.
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