United States District Court, E.D. New York.June 1, 1972343 F.Supp. 913 (Approx. 5 pages)
343 F.Supp. 913
United States District Court, E.D. New York.
Eugene R. FIDELL et al., Plaintiffs,
v.
The BOARD OF ELECTIONS OF the CITY OF NEW YORK et al., Defendants.
No. 71 C 1577.
Argued May 5, 1972.Decided June 1, 1972.
Attorneys and Law Firms
*914 David N. Ellenhorn, New York City (Gerald A. Novack, Hannah Waldman, Kronish, Lieb, Shainswit, Weiner & Hellman, New York City, on the brief), for plaintiffs.
J. Kemp Hannon, Deputy County Atty., Nassau County, Mineola, N. Y. (Joseph Jaspan, County Atty., on the brief), for defendant Bd. of Elections of Nassau County.
Robert S. Hammer, Asst. Atty. Gen. of N. Y. (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for defendants Lomenzo and Lefkowitz.
Before HAYS, Circuit Judge, and BRUCHHAUSEN and JUDD, District Judges.
Opinion
HAYS, Circuit Judge:
Plaintiffs, claiming to represent members of a class, seek a declaratory judgment and an injunction requiring defendants to provide for absentee ballots in the forthcoming primary in the State of New York. While New York permits absentee voting in general elections, see N.Y. Election Law § 117 et seq. (McKinney's Consol.Laws c. 17, 1964 and Supp.1971), it does not do so for primaries. Plaintiffs allege that they and other members of their class will be unable to vote in person in the June primary, and that New York's failure to provide absentee ballots denies them the equal protection of the laws and, as to certain of them, infringes the right to travel. It is also alleged that the New York law conflicts with the Voting Rights Act Amendments of 1970, 42 U.S.C. § 1973aa-1(c) and (d) (1970).
The plaintiffs moved for summary judgment. The Board of Elections of Nassau County and defendants Lefkowitz and Lomenzo moved to dismiss the complaint. Judge Bruchhausen granted defendants' alternative motion to convene a three-judge court.
The individual named plaintiffs are duly registered to vote in the State of New York. Plaintiff Fidell is on active duty with the United States Coast Guard and will be stationed in the vicinity of Washington, D.C. on the day of the primary election. Plaintiff Herman is a college student who will be pursuing her studies outside New York State on that date. Plaintiff McCleary is an air hostess who will be outside the state if her work schedule so requires, though that schedule has not yet been fixed for the period covering the primary election. Plaintiff Burton is incapacitated and physically unable to travel to a polling place. Plaintiff Common Cause is a non-profit corporation of the District of Columbia.1
*915 The defendants assert, and plaintiffs do not deny, that last minute changes among the candidates as a result of litigation, frequently require that primary ballots be changed on the eve of the election. It also appears that a different ballot is required for each of the state's 12,750 election districts. Defendants urge that under these circumstances the authorization of absentee ballots would be impractical and at the very least would require an unjustifiably large amount of time, money and effort for printing and mailing.
“(1) those who are absent from the county of their residence for any reason whatever; (2) those who are ‘physically incapacitated,’ so long as they present an affidavit to that effect from a licensed physician ....”
Id. at 803, 89 S.Ct. at 1406. The appellants, who were prisoners awaiting trial in the county of their residence, and who had not been convicted of any crime, were not covered by the statute. They had conceded in the court below that the legislature could have refused to provide absentee ballots altogether, McDonald v. Board of Election Comm'rs, 277 F.Supp. 14, 17 (N.D.Ill.1967) (three-judge court); they challenged the legislative classification that granted absentee ballots to those medically incapacitated but not to those “judicially” incapacitated, and to those incarcerated outside the county of their residence but not to those incarcerated within the county of their residence. 394 U.S. at 806, 89 S.Ct. 1404. The Supreme Court declined to apply the compelling interest standard in upholding the denial of absentee ballots to the appellants, saying,
*916 “First, the distinctions made by Illinois' absentee provisions are not drawn on the basis of wealth or race. Secondly, there is nothing in the record to indicate that the Illinois statutory scheme has an impact on appellants' ability to exercise the fundamental right to vote. It is thus not the right to vote that is at stake here but a claimed right to receive absentee ballots. Despite appellants' claim to the contrary, the absentee statutes, which are designed to make voting more available to some groups who cannot easily get to the polls, do not themselves deny appellants the exercise of the franchise; nor, indeed, does Illinois' Election Code so operate as a whole, for the State's statutes specifically disenfranchise only those who have been convicted and sentenced, and not those similarly situated to appellants.”
While it is true as a general proposition that the right to vote in primaries receives the same constitutional protection as the right to vote in general elections, Smith v. Allwright, 321 U.S. 649, 660-662, 64 S.Ct. 757, 88 L.Ed. 987 (1944); United States v. Classic, 313 U.S. 299, 318, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941), it is also true that many states nominate candidates, or choose delegates to national nominating conventions, by means of caucuses or conventions at which, if there is indeed any provision at all for general participation, party members are required to be physically present in order to record their choices. In this context primaries are remedial devices that increase citizen participation in the candidate selection process. It is our view that when the legislature decides to employ the primary, it is not constitutionally required to do more than avoid arbitrary or invidious classifications.
Since providing for absentee balloting in primaries would be impractical and would require an inordinate amount of time, effort and expense, New York's failure to provide for such ballots must be held to be reasonably related to valid governmental interests and not to constitute a violation of plaintiffs' constitutional rights.
“[t]he central purpose of the organization is to increase participation of all citizens in the processes of government at the local, state and national levels in the United States. As a necessary means to that end, Common Cause engages in public education, lobbying and litigation in the public interest to remove barriers to voting ...”