JED S. RAKOFF, District Judge.
On February 3, 2011, plaintiffs the Conservative Party, the Working Families Party, and the Taxpayers Party filed a Second Amended Complaint pursuant to 42 U.S.C. § 1983 challenging the constitutionality of New York Election Law § 9-112(4)
On January 10, 2011, defendants, who are Commissioners and Co-Executive Directors of the New York State Board of Elections sued in their official capacities, moved to dismiss the complaint on various grounds, including, inter alia, that plaintiffs failed to state a claim upon which relief can be granted and failed to allege a violation of plaintiffs' constitutional rights. See Defendants' Memorandum of Law in Support of Their Motion to Dismiss the First Amended Complaint Pursuant to Federal Rules of Civil Procedure Rule 12(b)(1) and (6) ("Defs.' Mem.") at 8-19. On February 9, 2011 the Court issued a "bottom-line" Order denying the motion. This Opinion sets forth the reasons for that decision.
By way of background, two of the plaintiffs, the Conservative Party of New York State and the Working Families Party, filed the initial complaint in this action on September 14, 2010, seeking both preliminary and permanent injunctive relief. On October 15, 2010, after careful consideration of the briefing submitted by both sides, the Court denied the application for a preliminary injunction affecting the November 2010 election. Among other things, the Court found that plaintiffs had slept on their rights by waiting until a mere six weeks before the November 2010 election to file their Complaint, and that it would be inequitable for the Court to grant the extraordinary relief sought on such short notice. See 10/15/10 Memorandum Order, 2010 WL 4455867. The Court therefore denied the motion for a preliminary injunction so far as the November 2010 election was concerned.
Defendants then moved to dismiss the Complaint on November 9, 2010. Following full briefing and oral argument, the Court found that the Complaint lacked sufficient precision and granted plaintiffs leave to replead. See 12/06/10 transcript. On December 20, 2010, plaintiffs filed a First Amended Complaint that clarified plaintiffs' claims and added the "New York Taxpayers Party" as an additional plaintiff. Defendants then filed a new motion to dismiss on January 10, 2011. After another full round of briefing and oral argument on January 31, 2011, the Court, as noted, denied the motion by "bottom-line" Order on February 9, 2011, thereby allowing discovery to proceed.
Defendants' renewed motion to dismiss, in addition to attacking the legal merits of the plaintiffs' claims, raised two threshold issues that the Court dealt with at oral argument on January 31, 2011. First, defendants argued that plaintiffs lacked capacity to bring the action. Although the First Amended Complaint described the Conservative Party and the Working Families Party as "domestic not-for-profit corporations," defendants asked the Court to take notice of the public records showing that the entities bearing those names that filed rules with the State Board of Elections and nominated candidates in the 2010 election were unincorporated associations, see Defs.' Mem. at 3-4. The Taxpayers Party, if it exists at all, is also an unincorporated association. See Second Am. Compl. ¶¶ 18-23. Section 12 of the New York General Association Law confers the capacity to sue on behalf of an unincorporated association on its president or treasurer. Defendants argued, therefore, that only a president, treasurer, or an elected or de facto officer performing equivalent
Defendants' second threshold issue was that, even if plaintiffs had the capacity to sue, they lacked standing to do so. The Court dismissed this argument from the bench for the reasons explained during oral argument. See 01/31/11 transcript at 10-16. Briefly stated, although defendants maintained that plaintiffs had failed to allege any actual injury to themselves (as opposed to other minor parties) resulting from the alleged infirmities of the Statute and Regulation, the case law makes clear that the "injury in fact" in an equal protection case is the denial of equal treatment resulting from the imposition of a barrier, not the ultimate ability to obtain benefits if that barrier is eliminated. Rockefeller v. Powers, 74 F.3d 1367, 1375-76 (2d Cir.1995) ("[Plaintiffs] need not establish that, absent the current rule, they necessarily would see more candidates on their ballot. Their claim that the rule decreases the likelihood that they will have choices among delegates amounts to a sufficient pleading of `injury in fact' and a `causal connection.'") (emphasis removed).
With these threshold issues resolved, the Court turned to defendants' substantive attacks. In their Second Amended Complaint, as to which the defendants' renewed motion to dismiss ultimately applied, plaintiffs allege that under New York Election Law § 9-112(4) and 9 N.Y.C.R.R. § 6210.13(A)(7), double-votes are automatically counted towards the "first" party on the ballot. Second Am. Compl. ¶ 3. Pursuant to N.Y. Election Law § 7-116, however, the "first" party on the ballot will be the party that received the greatest number of votes in the prior gubernatorial election. The combination of these laws thus ensures that double-votes — technically although improperly cast for multiple parties — will almost always be counted as a vote for one of the major parties, rather than for a minor party.
The practical consequences of this constitutional violation are, plaintiffs allege,
Plaintiffs further allege that, although the State's policy of crediting all double-votes to the first party on the ballot has been in place for many years, the issue has gained newfound significance because of the federally-mandated transition from lever to optical scanner voting machines. Id. ¶ 6. The old voting machines did not physically allow a voter to pull two levers for any office, and it was therefore impossible for a voter to double-vote for a single candidate on more than one party line. Id. Thus, only voters who voted on a paper ballot could double-vote, and, according to plaintiffs, paper ballot voting "comprised a tiny percentage of the 4.7 million votes that were case in the 2006 gubernatorial election." Id. ¶ 7. However, as required by the Help America Vote Act of 2002, 42 U.S.C. § 15301 et seq. ("HAVA"), New York enacted the Election Reform and Modernization Act of 2005, which introduced new optical scanning voting machines for the first time in 2010. These machines do not prevent double-votes, but simply count them for the first-named party. Id. at ¶¶ 1-9; 33-34. As a result, according to plaintiffs, "available data indicates [sic] that there were likely tens of thousands of double-votes in the 2010 general election in New York." Id. ¶ 47 (emphasis removed). Such data suggest that "[t]he number of double-votes in the 2010 election was material to Plaintiff Taxpayers Party's ability to reach the 50,000 vote threshold for political party status, and in future elections will likely be material to and affect all Plaintiffs' ability to reach the 50,000 vote threshold for political party status and Plaintiffs' ballot placement in New York." Id. ¶ 54.
In their motion to dismiss, defendants, in a variation of their "no injury in fact" threshold argument, see supra, emphasize the Supreme Court's recent iteration of the requirement that "[f]actual allegations be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007), and contend that the complaint must be dismissed as too speculative. This argument is without merit. Plaintiffs allege that the Statute and Regulation, when applied in conjunction with N.Y. Election Law § 7-116, codify a discriminatory counting rule that places unequal burdens on both the right to vote and the right to associate. In an equal protection case, and right of association case, no more is required to satisfy the federal pleading standard. Although it
A more colorable issue is whether the alleged burden on plaintiffs' First and Fourteenth Amendment rights that the Statute and Regulation impose can be overcome, as a matter of law, by the State's justification for the Statute and Regulation — and, correlatively, what standard should be used to assess this issue. In cases involving alleged discrimination against minor parties, "[t]he Supreme Court has said that if state law grants `established parties a decided advantage over any new parties struggling for existence and thus place[s] substantially unequal burdens on both the right to vote and the right to associate' the Constitution has been violated, absent a showing of a compelling state interest." Green Party of New York v. New York State Board of Elections, 389 F.3d 411, 419-20 (2d Cir. 2004) (quoting Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)).
In this case, plaintiffs allege that the Statute and Regulation place discriminatory burdens on minor political parties, and the alleged unequal burdens are those that affect plaintiffs' ability to exercise their First Amendment rights. Accordingly, as in Green Party, the Court is "faced with a situation where the plaintiffs' First Amendment claims substantially overlap with their equal protection claims." Green Party, 389 F.3d 411 at 420. The Court will therefore adopt the Second Circuit's analysis in that case as the appropriate legal standard:
Id.
In this case, as noted, plaintiffs argue that the Statute and Regulation impose a number of burdens on minor political parties and independent bodies. First, they contend that "a fair and accurate count of the number of votes cast for each party in each election is critical to the ability of minor parties to secure a place on the ballot." Second Am. Compl. ¶ 42. Under
Second, plaintiffs contend that the Statute and Regulation burden their ability to achieve a favorable ballot placement. Defendants are surely correct that plaintiffs have no constitutional right to appear first on the ballot. As stated in New Alliance Party v. N.Y. Bd. of Elections, 861 F.Supp. 282 (S.D.N.Y.1994), "access to a preferred position on the ballot so that one has an equal chance of attracting the windfall vote is not a constitutional concern. . . . The Constitution does not protect a plaintiff from the inadequacies or the irrationality of the voting public; it only affords protection from state deprivation of a constitutional right." Id. at 295. The Court agrees with plaintiffs, however, that New Alliance Party is inapposite to the issues here. Plaintiffs do not assert a freestanding right to receive any particular placement on the ballot; rather, they "assert the right to be free from unabashed discrimination in the process of determining ballot order." Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to Dismiss ("Pls.' Mem.") at 16. They argue that, having chosen to determine ballot order based on the number of votes cast for a particular party in the prior gubernatorial election, the "State cannot then stack the deck in favor of the major political parties, to the disadvantage of the minor political parties, by assigning votes to the major parties that they did not actually receive." Id. Unlike the minor party in New Alliance Party, which asserted the right to be listed first among the non-full-fledged parties in order to capture "windfall" votes, plaintiffs in this case seek to prevent the major political parties from receiving all the credit for votes that may have been intended to support the minor parties. Id.
Third, plaintiffs argue that the Statute and Regulation burden the ability of minor parties and independent bodies to fundraise, to influence elected officials on matters of public policy, and to recruit candidates and members.
The Second Amended Complaint thus adequately alleges severe burdens that the Statute and Regulation impose on minor parties, independent bodies, and voters themselves.
Defendants articulate the State's interest as follows:
Defs.' Mem. at 21. Defendants further argue that the State's chosen policy is the least restrictive means of achieving these goals because it is the only option that simultaneously (1) assures that the voter's choice of candidate is captured and recorded; (2) assures that only one vote for a candidate is counted; (3) treats all minor parties the same; (4) counts the vote for a party whose ballot position is already secure; (5) operates so that the vote is typically credited to the candidate's own party; and (6) is nondiscriminatory because it is neutral on its face. Id. at 23-24.
It is well-established that "[s]tates certainly have an interest in protecting the integrity, fairness, and efficiency of their ballots and election processes as means for electing public officials." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997). However, while discovery may yet reveal that the State's chosen method of resolving the double-vote issue serves substantial interests, the Court is not persuaded at this stage that the State has chosen the least restrictive means available to achieve this end. Plaintiffs argue that there is no logical reason why the candidate could not receive credit for the vote, and then, with respect to the parties, either: (1) credit neither party, (2) split the vote among both parties, (3) credit only the minor party, or (4) credit both parties. Pls.' Mem. at 23. None of these alternatives — and others that one might readily infer — would have the same discriminatory
In short, as of the time of the instant motion, plaintiffs had adequately alleged that the Statute and Regulation severely burdened their First and Fourteenth Amendment rights and the State had not yet established, at a minimum, that the State had chosen the least restrictive alternative to achieve its purported justification for the Statute and Regulation. Accordingly, the Court, for the foregoing reasons, denied defendants' renewed motion to dismiss.