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Bert v. New York City Board of Elections

September 7, 2006


The opinion of the court was delivered by: Sifton, Senior Judge


Plaintiffs Viola Bert, Connie Biggs, Argentina Harrison, Mary Hinkle, Laura Jones, Valerie Lowe McElroy, Thelma Nettles, Sarah Woodson, and Colleen Lino bring this action under 42 U.S.C. § 1983 seeking preliminary and permanent injunctions directing defendant New York City Board of Elections ("Board of Elections" or "Board") to place Allan W. Jennings, Jr.'s name on the ballot for the Democratic primary to be held September 12, 2006. Plaintiffs are residents of Queens County in the 10th Senatorial District and are registered in the Democratic Party. They argue that they have been denied their right to vote for a candidate of their choice, as secured under the Federal Constitution, as a result of the process followed by the Board of Elections which effectively made it impossible for Jennings to file a procedurally adequate petition to validate in state court; plaintiffs allege that the information contained in the Board's decision about the validity of the designating petition was a precondition for an adequate petition to validate signatures but was not made available in time for such a petition to be filed.*fn1

Plaintiffs further allege that plaintiff Colleen Lino was denied her constitutional due process right to a hearing to contest the Board's finding that her signature on the designating petition was invalid. For the reasons set forth below, plaintiffs' motion is denied.


The following sets forth the findings of fact and conclusions of law on which this decision is based as required by Rule 65 of the Federal Rules of Civil Procedure.

On July 13, 2006, Allan W. Jennings, Jr., in order to qualify as a candidate for the Democratic primary election for State Senator from the 10th Senatorial District to be held September 12, 2006, filed a designating petition. The petition contained 1,777 signatures, 777 more than the 1,000 required by New York State Election Law § 6-136. Subsequently, on July 16, 2006, voter Keysha T. Beasly filed general objections to the designating petition with the Board of Elections and followed up with specific objections to over 900 signatures on July 22, 2006.

On July 21, 2006, Beasly, together with Ada L. Smith, the incumbent state senator and Jennings' opponent in the Democratic primary, made an application in New York State Supreme Court, Queens County for an order declaring Jennings' designating petition invalid (the "petition to invalidate"). Thereafter, Jennings himself filed a petition to validate the designating petition before the Supreme Court on July 24, 2006. Since the Board of Elections had not yet ruled on Beasly's original objections, Jennings' petition to validate did not specify any determinations by the Board of Election as erroneous. See New York State Election Law § 16-102; Krueger v. Richards, 450 N.E.2d 219 (N.Y. 1983). According to Jennings, he believed that he was required by law to file his petition to validate no later than fourteen days after the filing of the designating petition, or July 27, 2006, even though the Board had not yet issued its decision.

On July 31, 2006, four days after the alleged July 27 deadline, the clerk of the Board of Elections issued a report invalidating 760 of the signatures on the designating petition, leaving 1,017 valid signatures. A hearing with respect to these determinations was held before the Board of Elections on August 3, 2006. At the conclusion of that hearing on August 3, the Board adopted the clerk's entire report. The parties then reviewed the specifications of objections made by the Board from August 4 through August 6, 2006 in preparation for the pending Supreme Court hearing.

From August 7 through August 9, 2006, the Supreme Court held a hearing on Beasley and Smith's petition to invalidate in which each contested signature was individually reviewed. On August 9, the court dismissed Jennings' petition to validate. In a decision issued August 10, 2006, the court invalidated an additional 84 signatures contained in the designating petition over and above those already invalidated by the Board of Elections, leaving Jennings with 933 total signatures, 67 short of the required 1000. As a result, the court ordered the Board of Elections not to place Jennings' name on the Democratic primary ballot.

Jennings appealed the Supreme Court's decision to the Second Department of the Appellate Division of the New York Supreme Court, arguing that he was required to file an anticipatory petition to validate because he did not yet have the decision of the Board, that such anticipatory petitions were permissible under state law and alleging that he could re-validate over 140 signatures about which the Board and the state court had erred in their determinations. The appellate court affirmed the lower court's decision on August 16, 2006 on the grounds that Jennings' petition to validate was insufficiently pleaded as a matter of law since it failed to "specify the individual determinations of a board of elections that the candidate claims were erroneous."*fn2 Jennings v. Board of Elections of City of New York, 819 N.Y.S.2d 487 (N.Y. App. Div. 2006). Jennings application for leave to the Court of Appeals was denied. Plaintiffs now state that Jennings would be able, if allowed, to re-validate over 130 signatures invalidated by the Board of Elections, which would put Jennings above the 1,000 signature threshold. Plaintiffs fail, however, to specify even now which signatures they propose to validate or why the Board was wrong in invalidating the signatures.*fn3

The matter is currently before this Court on an application pursuant to Rule 65 of the Federal Rules of Civil Procedure for a preliminary injunction requiring defendant to place Jennings' name on the Democratic primary ballot.


Standard for Preliminary Injunctions

The general standard for issuing a preliminary injunction requires that the movant show (a) ...

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