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ULRICH v. MANE

August 25, 2005.

ERIC ULRICH and THOMAS OGNIBENE, Plaintiffs,
v.
FREDERIC M. MANE, DOUGLAS A. KELLNER ANTHONY COMO, JEANETTE GADSON, NERO GRAHAM, JR., JAMES J. SAMPLE, TERRENCE C. O'CONNOR, JOSEPH SAVINO, NANCY MOTTOLA-SCHACHER and MARYANN VENELLA, Commissioners, constituting the Board of Elections in the City of New York and NEIL W. KELLEHER, Chair, EVELYN J. AQUILA and HELENA MOSES DONOHUE, Commissioners, constituting The STATE BOARD OF ELECTIONS, and ELIOT SPITZER, Attorney General of the State of New York Defendants. and JAYSON LEFER, DANIEL J. HENNESY, WILL BROWN and MIREYA GIRALDO Intervenor-Defendants.



The opinion of the court was delivered by: NICHOLAS G. GARAUFIS, District Judge

MEMORANDUM & ORDER

"Ballot access — that is, the process for determining whose name gets listed on the ballot for public office — is critical to democracy. The rules should promote the core political freedoms of the First Amendment: the freedom of citizens to organize around and elect candidates of their choosing, and the freedom of candidates to stand for election to public office. To uphold these essential freedoms, ballot access measures must be designed to maximize voter choice. "Voting Matters in New York: Participation, Choice, Action, Integrity." Office of New York Attorney General Eliot Spitzer, February 12, 2001, at 18. As a matter of fundamental democratic principle and sound public policy, this court strongly agrees.

A decade of litigation in the federal courts has amply demonstrated that New York's ballot access laws, far from maximizing voter choice, historically have placed undue restrictions on ballot access in this state. Pro se Plaintiffs Thomas Ognibene ("Ognibene") and Eric Ulrich ("Ulrich") now seek a declaratory judgment that would invalidate yet another component of New York's ballot access regime — the requirement that candidates for citywide office in New York City secure 7,500 valid signatures from enrolled party members in order to appear on the primary ballot for that party — as an unconstitutional infringement of the political participation and association rights guaranteed by the First and Fourteenth Amendments, at least as that law applies to Republican Party candidates. The plaintiffs also seek an order directing the Board of Elections in the City of New York ("City Board of Elections") to place Ognibene's name on the ballot for the primary election scheduled for September 13, 2005.

  This case was initiated by the filing of an application for an Order to Show Cause and the instant complaint on August 16, 2005.*fn1 After an initial court appearance at which all respondents (except the state Attorney General) and proposed intervenors were represented, I signed the Order to Show Cause, directing the plaintiffs to serve the complaint on the State and City Boards of Elections and the Attorney General by noon on August 17, 2005, directing the defendants and intervenors to respond to the complaint by August 19, 2005, and further directing the plaintiffs to reply to those submissions by August 23, 2005. The defendants and intervenors subsequently moved to dismiss the complaint, and a second hearing was held today, August 25, 2005.

  It is evident that the 7,500 signature requirement, as applied to the New York City Republican Party, is not designed to maximize voter choice. It far more likely operates to restrict voter choice by keeping otherwise qualified candidates off of party primary ballots and by discouraging them from entering the race in the first place. However, the United States Supreme Court and United States Court of Appeals for the Second Circuit repeatedly have held that the First and Fourteenth Amendments do not require the states to maximize voter choice, or even to ensure that all viable candidates are able to access primary or general election ballots. On the contrary, the Constitution only requires states to refrain from imposing "severe" burdens on ballot access through the operation of their election laws, unless those "severe" burdens operate narrowly in the service of a vital state interest. Because the Second Circuit squarely has held that petition signature requirements more onerous than those faced by Ognibene are not severe within the meaning of the First Amendment, I am constrained to find that the 7,500 signature requirement imposed by New York law likewise is not a severe burden, and thus one that candidates for citywide office may be forced to bear in order to achieve a place on the ballot. Consequently, plaintiffs' application for declaratory and injunctive relief is denied in all respects, and the defendants' motion to dismiss the plaintiffs' complaint is granted. I. Factual Background

  The Court accepts the plaintiffs' recitation of the material facts as true for the purpose of this application. They are as follows. Ognibene, who is an attorney, was elected to the New York City Council from the 30th Council District in Queens in 1991. (Compl. Ex. 1.) He was reelected in 1993 and 1997, and served until 2001, the maximum period allowable under term limits provisions of New York City Charter §§ 1137-38. (Id.) Additionally, Ognibene was elected Minority Leader of the New York City Council in 1994. (Compl. Ex. 1.)

  Ognibene launched his current bid for New York City Mayor on January 11, 2005, seeking the nomination of both the Republican and Conservative Parties. (Compl. ¶ 11.) He sought the endorsement of the Republican Party organization in each of the city's five boroughs, (Compl. ¶ 12), and ultimately received the endorsement of the Queens County Republican Party, which has the largest enrollment of the five county organizations.*fn2 (Compl. ¶ 12 and Ex. 3.) Incumbent Mayor Michael R. Bloomberg ("Mayor Bloomberg") received the endorsement of the other four county organizations. (Compl. ¶ 12.)

  Ognibene then sought to challenge Mayor Bloomberg in a primary for the Republican nomination by filing a designating petition, as mandated by New York Election Law ("N.Y. Elec. Law") § 6-118. N.Y. Elec. Law § 6-136(2) requires prospective New York City officeholders seeking a place on a primary ballot to submit a petition signed by the lesser of (a) 7500 persons; or (b) five percent of the total number of enrolled voters of the party within New York City. In practice, this 7500-signature safety valve applies only to the Democratic and Republican Parties, which have citywide voter enrollments of 2,639,845 and 477,169, respectively. (Compl. Ex. 3.) Candidates were required to amass these signatures during a 37-day window between June 7, 2005 and July 14, 2005. N.Y. Elec. Law §§ 6-134; 6-158(1).

  Ognibene timely filed a petition accompanied by 8,116 signatures with the City Board of Elections on July 14, 2005. (Compl. ¶ 14.) However, defendant-intervenors Jayson Lefer, Daniel J. Hennessy, Will Brown, Jr., and Mireya Giraldo challenged the validity of numerous signatures submitted by Ognibene pursuant to N.Y. Elec. Law § 16-102. (Memorandum of Law filed by Jayson Lefer, Daniel J. Hennessy, Will Brown, Jr., and Mireya Giraldo, hereinafter "Lefer Mem." at 2.) The Richmond County Elections Clerk, upon a review of the objections, found 2,379 of the signatures to be invalid.*fn3 (Compl. ¶ 17.) On August 2, 2005, the City Board of Elections adopted the Richmond County Clerk's findings, and invalidated Ognibene's petition on the ground that contained only 5,848 valid signatures. (Compl. ¶ 20.) Ognibene's disqualification leaves Mayor Bloomberg as the sole Republican candidate for mayor. (Compl. ¶ 21.) As a result, there will be no Republican primary contest for Mayor this September.*fn4 (Compl. ¶ 21.) In contrast, six Democratic candidates qualified for the mayoral primary, and six other Democrats will be on the primary ballot for the office of New York City Public Advocate. (Compl. ¶ 21; http://www.vote.nyc.ny.us/pdf/documents/boe/2005primaryelection/ CandidacyList.pdf, last visited Aug. 24, 2005.) Ognibene's name will appear on the ballot for mayor in the November general elections, however, as he qualified through the petitioning process to be the Conservative Party's candidate for mayor. (Pl. Reply at 6.)

  Ognibene concedes that his petition for Republican candidacy did not contain 7,500 valid signatures, and therefore does not challenge the review process overseen by the City Board of Elections in these proceedings.*fn5 (Compl. ¶ 18.) Nor does he challenge the City Board of Elections' ruling that fellow GOP hopeful Steven J. Shaw may not delegate the 1,009 signatures that he collected to Ognibene's column because Shaw had not properly designated a Committee to Fill Vacancies on his petition. Accordingly, Ognibene's challenge is limited to the allegation that New York's petition signature requirement, as applied to Republicans running for citywide office in New York City, erects an unconstitutional impediment to candidates running without the backing of the city's Republican Party establishment by abridging the First and Fourteenth Amendment rights of Ognibene and voters such as plaintiff Ulrich, who are denied the option of voting for him.*fn6 II. Preliminary Injunction Standard

  In order to prevail on this motion for injunctive relief against the City Board of Elections, the plaintiffs must demonstrate a substantial likelihood of success on the merits. Ordinarily, relief in the form of a preliminary injunction may be granted only where the party seeking the injunction establishes that (1) absent injunctive relief, he or she will suffer irreparable injury and (2) either (a) a likelihood of success on the merits, or (b) that there are sufficiently serious questions going to the merits of the claims to make them a fair ground for litigation, and a balance of hardships tips decidedly in his or her favor. Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir. 2000); Brenntag Int'l Chems., Inc. v. Bank of India, 175 F.3d 245, 249 (2d Cir. 1999).

  However, where, as here, "the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, the injunction will be granted only if the moving party meets the more rigorous likelihood-of-success standard." No Spray Coal., Inc. v. City of N.Y., 252 F.3d 148, 150 (2d Cir. 2001) (per curiam) (internal quotation marks omitted); Rockefeller v. Powers, 74 F.3d 1367, 1376-77 (2d Cir. 1995) (applying the more rigorous standard of preliminary relief in the context of candidate ballot access in a primary election). This requirement is further heightened where a party seeks a preliminary injunction against the government that "will alter rather than maintain the status quo." No Spray Coal., 252 F.3d at 150 (internal quotation marks omitted). In such cases, "the movant must show . . . [a] substantial likelihood of success." Id.

  Here, plaintiffs seek injunctive relief that would affect the City Board of Elections' regulation of the 2005 primary election by changing the status quo in favor of Ognibene and his supporters. To prevail in this litigation, the plaintiffs therefore ...


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