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Garth Marchant, Arlene Dacares, Carolyn Younger Nolan, Larry L. Moore, Anna Burrell, Jacqueline Davis v. New York City Board of Elections

September 2, 2011

GARTH MARCHANT, ARLENE DACARES, CAROLYN YOUNGER NOLAN, LARRY L. MOORE, ANNA BURRELL, JACQUELINE DAVIS, TAMARA POWELL, NATASHA COLLINS, PAMELA HAZEL, OLLIE GOINS, STEPHEN S. JONES, MICHAEL DUVALLE, ADRIENNE RICHARDSON, CHAUNTAE BROWN, LINVAL WILSON, DAVID B. KAYODE, EARL A. ROSE, JACCI A. HURDLE, SHADAI MEARS, SONYA SIMMONS, KEWANA JOHNSON, CONSTANTINE JEAN-PIERRE, BISHOP FRANK BEST, AND THELMA DAVIS, PLAINTIFFS,
v.
NEW YORK CITY BOARD OF ELECTIONS, JUAN CARLOS POLANCO -- PRESIDENT, JOSE MIGUEL ARAUJO -- QUEENS COUNTY DEMOCRATIC COMMISSIONER, AND STEVEN RICHMAN -- GENERAL COUNSEL, DEFENDANTS.



The opinion of the court was delivered by: Matsumoto, United States District Judge

MEMORANDUM & ORDER

Plaintiffs Garth Marchant, Arlene Dacares, Carolyn Younger Nolan, Larry L. Moore, Anna Burrell, Jacqueline Davis, Tamara Powell, Natasha Collins, Pamela Hazel, Ollie Goins, Stephen S. Jones, Michael Duvalle, Adrienne Richardson, Chauntae Brown, Linval Wilson, David B. Kayode, Earl A. Rose, Jacci A. Hurdle, Shadai Mears, Sonya Simmons, Kewana Johnson, Constantine Jean-Pierre, Bishop Frank Best, and Thelma Davis (collectively, "plaintiffs") commenced this action on August 23, 2011, by the filing of a pro se complaint*fn1 with sworn affidavits from each plaintiff and a motion by Order to Show Cause seeking injunctive relief, directing that the New York City Board of Elections (the "Board") and named defendants (collectively, "defendants") place Everly D. Brown on the ballot for the public office of District Attorney of Queens County in the Democratic Primary scheduled approximately three weeks thereafter, on September 13, 2011 ("the September 13 primary").*fn2

Plaintiffs' complaint asserts jurisdiction pursuant to 42 U.S.C. §§ 1983, 1988, the First Amendment right to political association, the Fourteenth Amendment right to due process and equal protection of law, the Help Americans Vote Act ("HAVA," at 42 U.S.C. § 15483(a)), and the National Voters Registration Act ("NVRA," at 42 U.S.C. § 1973gg-1, et seq.).*fn3 (Electronic Case Filing ("ECF") No. 1, Complaint ("Compl.") ¶¶ 2, 4.)

Judge Sandra Townes issued an Order to Show Cause on August 25, 2011 (ECF No. 5), ordering that plaintiffs serve the defendants with the Order to Show Cause and the supporting papers by 5:00 p.m. that same day; that defendants serve and file any response by August 29, 2011 at 12:00 p.m.; that plaintiffs serve and file any reply by August 30, 2011, at 12:00 p.m.; and that the parties appear before this court on August 30, 2011 at 3:00 p.m. for a show cause hearing as to why the injunctive relief sought by plaintiffs should not be granted. The hearing proceeded as scheduled, during which the court heard argument by the parties.

BACKGROUND

Everly Brown, who is not a party to this action, sought to be a candidate in the September 13, 2011 Democratic Primary, for the office of District Attorney in Queens County. It is not clear on the record before this court whether Mr. Brown still seeks to be a candidate, although this court acknowledges a pending appeal of the state court decision to dismiss his action.

New York Election Law requires that an individual who seeks to be placed on a party's primary ballot must submit a "designating petition" meeting the requirements set forth in Sections 6-130 to 6-136. Designating petitions must bear the names, signatures, residential addresses, dates of signatures of registered voters, and a statement equivalent to an affidavit, signed by a witness who states under the "same penalties as if . . . duly sworn," that s/he is a qualified registered voter who witnessed the signature of each signatory who identified her/himself to be the individual who signed the petition on the date indicated. N.Y. Elec. Law. §§ 6-130, 6-132. For any office to be filled by all the voters of any county or borough within the City of New York--including the District Attorney--the petition must contain the signatures of at least 4,000 then-enrolled voters of the party residing within the county or borough. Id. at § 6-136(2)(b).

On July 14, 2011, a designating petition containing approximately 7,510 signatures was filed at the Board in support of placing Everly Brown on the ballot for the office of District Attorney for Queens County in the September 13 primary (the "Petition"). (Compl. ¶ 8; ECF No. 8, Declaration of Steven H. Richman ("Richman Decl."), ¶ 3.) Citizen-Objectors Mary Plunkett and Hersh K. Parekh submitted Specifications of Objections setting forth line-by-line deficiencies of signatures on the Petition. (Richman Decl. ¶ 4.) Their line-by-line objections were based on the fact that the addresses on the Petition--the witnesses' or signatories' current addresses--did not match the addresses on record at the Board. (Compl. ¶ 5.)

On July 28, 2011, the staff of the Board's General Counsel prepared a "Counsel's Report" on the Specifications of Objections filed regarding Mr. Brown's eligibility to be a candidate for Queens County District Attorney, and a copy of that report was faxed to Mr. Brown's designated contact person, Garth Marchant, that day. (Richman Decl. ¶ 5.) On August 1, 2011, after reviewing the Citizen-Objectors' Specifications of Objections, the Board staff issued a Clerk's Report stating that the Petition had only 2,389 valid signatures. (Id. ¶ 6.) A copy of that report was faxed to Mr. Marchant approximately 24 hours*fn4 before the Commissioners of the Board met to consider the Report on August 2, 2011. (Id. ¶ 7; Compl. ¶ 11.) On August 2, the Commissioners of the Board convened and determined that Mr. Brown had an insufficient number of signatures, as only 2,389 of the 7,510 signatures in the Petition were valid;consequently, Mr. Brown was not placed on the ballot. (Compl. ¶¶ 9--10; Richman Decl. ¶ 8.)

Mr. Brown, who is not a party to this action, previously brought suit in New York State Supreme Court, requesting validation of the Petition so his name could be added to the ballot. (Compl. ¶ 9; Richman Decl. ¶ 9.) Mr. Brown's complaint was heard, denied, and dismissed by Judge Flug on August 9, 2011. (Richman Decl. ¶ 10, Ex. B.) The New York Supreme Court Appellate Division, Second Division, will hear Mr. Brown's appeal on September 6, 2011. (Id. ¶ 11.)

Plaintiffs allege that the Board violated their rights when it determined that the Petition lacked the sufficient number of valid signatures due to the mismatched addresses; after striking the signatures without valid addresses, the Board found that the Petition had only 2,389 valid signatures, which was short of the 4,000-signature requirement. (Compl. ¶ 10.)

The plaintiffs now seek a mandatory injunction--one commanding some positive act, as opposed to a prohibitory injunction--by requesting that the court direct the Board to validate the Petition and to place Mr. Brown's name on the Primary Election ballot. (ECF No. 2, Unsigned Order to Show Cause; Compl. at 9.*fn5 ) Plaintiffs also request (1) that the court hold unconstitutional various provisions of the New York Election Law;*fn6 (2) that the court find defendants' actions in violation of NRVA and HAVA;

(3) that the court find the named individual defendants*fn7

personally liable for their actions in denying the rights of voters; (4) damages in the sum of $3,000,000 per plaintiff; and

(5) costs of this action. (Compl. ¶ 9--10.)

The Show Cause Hearing*fn8

At the show cause hearing, pro se plaintiff Marchant appeared, most of the represented plaintiffs appeared with counsel, and the Board of Elections appeared through counsel who asserted that the individually named defendants had no power over placement of Mr. Brown's name on the ballot for the September 13 primary. During the hearing, the court heard arguments from counsel representing the Board; Mr. Mays, who claimed to be counsel for a group of plaintiffs but has not complied with the court's order to file a notice of appearance; and Mr. Marchant, appearing pro se. All parties raised new arguments or submitted case law not previously submitted in the papers. The following is a non-exhaustive summary of the major issues discussed during the hearing.

Mr. Marchant asserted that the New York Election Law was amended last year to reduce by half the signature requirements for the offices of Borough President, District Attorney, and Civil Court Judge. As a result, he argued, the signature requirement is now 2,000--a requirement that the Petition meets. Defendants responded that the amendment affected only the New York City Charter, and specific offices. The court asked the parties ...


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