Kaloshi v. New York City Bd. of Elections | Cases | Westlaw

*1 Plaintiffs, Harry Kaloshi (“Kaloshi”), Zachary Lareche (“Lareche”), Eddie Brumfield (“Brumfield”), Jose Garcia (“Garcia”), Edward A. Roberts (“Roberts”), Frideline Charles (“Charles”), Erline King (“King”), Rock Hackshaw ( “Hackshaw”) (collectively, “potential candidates”), Francois Jean (“Jean”), Cherry Lowers (“Lowers”), Charles Simpson (“Simpson”), Daniel Brooks (“Brooks”), Andre Louis (“Louis”), Jean Claude Constant (“Constant”), Lenet Eugene (“Eugene”), Annie Bratts (“Bratts”), Sandra Coward (“Coward”), Joya Wright (“Wright”), Glynn Akeredolu (“Akeredolu”), Mohammad Qaisir (“Qaisir”), Tamara Michel (“Michel”), May Cilda (“Cilda”) (collectively “voter Plaintiffs”) bring the instant action pursuant to 42 U.S.C. § 1983, and Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, seeking a preliminary injunction directing the Board of Elections in the City of New York (“Board of Elections”) to place the potential candidates on the ballot of the September 10, 2002 Democratic Party primary election for the following public offices and party positions: (1) Harry Kaloshi, for the office of Member of the New York State Senate for the 21st Senatorial District; (2) Zachary Lareche, for the office of Member of the New York State Assembly for the 42nd Assembly District; (3) Eddie Brumfield, for the office of Member of the New York State Assembly for the 46th Assembly District; (4) Jose Garcia, for the party position of Male Member of the Democratic State Committee for the 46th Assembly District; (5) Edward Roberts, for the party position of Male Member of the Democratic State Committee for the 43rd Assembly District; (6) Frideline Charles, for the party position of Female Member of the Democratic State Committee for the 43rd Assembly District; (7) Erline King, for the party position of Female Member of the Democratic State Committee for the 58th Assembly District; and (8) Rock Hackshaw, for the party position of Male Member of the Democratic State Committee for the 58th Assembly District.

Specifically, Plaintiffs ask that this Court determine the following questions: (1) Whether New York Election Law 6–132(2)'s (“Section 6–132(2)”) requirement that petition witnesses be registered to vote in the party for which they are gathering designating petition signatures violates the First and Fourteenth Amendment to the Constitution; (2) Whether the Board of Elections' conduct violated Section 5 of the Voting Rights Act; and (3) Whether the Board of Elections has created unconstitutional barriers to candidates seeking to gain access to the ballot for the Democratic primary.

Presently before the Court are Plaintiffs' motion for a preliminary injunction and Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

In order to present a clear picture of the factual circumstances surrounding each of Plaintiffs' claims, this Court will discuss the particulars of each potential candidate individually.

*2 Plaintiff Kaloshi filed a petition with the Board of Elections designating him as a candidate for the office of New York State Senate for the 21st Senatorial District in the September 10, 2002 Democratic Party primary election.

To appear on the ballot for this office, Kaloshi is required to have 1,000 valid signatures on his designating petition. His petition contained a total 1,609 signatures. Two individuals, Roland Demas (“Demas”) and Radila Jailaran (“Jailaran”), filed objections to Kaloshi's petition. With respect to Demas's objections, the Board of Elections found that Kaloshi had 350 valid signatures. With respect to the Jailaran objections, the Board of Elections found that Kaloshi had 504 valid signatures.

After the challenges, Kaloshi commenced a special proceeding pursuant to New York Election Law 16–100 and Election Law 16–102 in the Supreme Court of the State of New York, Kings County, to challenge the findings of the Board of Elections. The Supreme Court confirmed the report of a special referee, who had previously found that Kaloshi obtained 376 valid signatures, and ordered that the Board of Elections remove Kaloshi's name from the ballot for primary election. Kaloshi did not appeal this decision.

Kaloshi claims that he faced many obstacles to his primary candidacy. He states that the signature petition period was originally slated for June 4, 2002 through July 11, 2002. The legislature then changed this period to June 18, 2002 through July 25, 2002. According to Kaloshi, at some point the Board of Elections informed him that the petitioning period scheduled to commence on June 18, 2002, would be stayed. Then, on June 17, 2002, Kaloshi learned through reading the New York Daily News that petitioning would commence the next day, on June 18, 2002. Kaloshi claims that because of this scheduling confusion, those he had enlisted to help him gather signatures were not readily available at the outset of the petitioning process. Kaloshi was only able to gather a third of his petitioning witnesses by June 29, 2002, and did not have the benefit of his full force until July 1, 2002. Thus, Kaloshi claims that, in effect, he lost eleven (11) days of the thirty-seven (37) day petitioning period.

Moreover Kaloshi claims that (1) the Board of Elections did not have accurate books and maps of the new district lines available at the time petitioning was slated to begin, and (2) the Board of Elections invalidated 666 of the signatures because the petition witness was either not enrolled in the party or not registered to vote.

Plaintiff Lareche filed a petition with the Board of Elections designating him as a candidate for the office of State Assembly for the 42nd District in the September 10, 2002 primary election.

In order to appear on the ballot for this office, Lareche is required to have 500 valid signatures. His petition contained a total of 921 signatures. Jerome Jacobs filed objections to the Lareche petition. The Board of Elections determined that 538 of these signatures were invalid, leaving Lareche with 383 valid signatures. Lareche brought a proceeding in New York State Supreme Court to validate his designating petition. The Supreme Court confirmed the report of a special referee, who had previously found that Lareche obtained 465 valid signatures, and ordered that the Board of Elections remove Lareche's name from the ballot for Primary Election. Lareche did not appeal this decision.

*3 Lareche attributes his shortage of valid signatures to a lack of preparation by the Board of Elections and restrictive rules codified by the legislature. First, Lareche claims that prior to the commencement of the petitioning period he did not have adequate information regarding the lines of his district, which had been changed by the legislature in accordance with the 2000 census. Lareche claims that the day before the petitioning period was to commence, he went to the Board of Elections and requested books and maps of the 42nd Assembly District. According to Lareche, the Board of Elections informed him that book and maps of the new district lines were unavailable. Thus, Lareche based his petition strategy on maps of the old district, which he knew to be outdated. According to Lareche, at least 42 of the signatures gathered on his behalf by witnesses were invalidated because they were of residents of the old district rather than the new district.

Plaintiffs Brumfield and Garcia jointly filed a petition with the Board of Elections, designating Brumfield as a candidate for the office of Member of the New York State Assembly for the 46th Assembly District, and designating plaintiff Garcia as a candidate for the party position of Male Member of the Democratic State Committee for the 46th Assembly District.

In order to appear on the ballot for these offices, the Brumfield and Garcia petition had to contain 500 valid signatures. Their petition contained 904 signatures. Shirley Seligman (“Seligman”) and George McVay (“McVay”) filed objections to the Brumfield and Garcia petition. The Board of Elections determined that 456 of the signatures were invalid, leaving Brumfield and Garcia with 448 valid signatures. Brumfield and Garcia brought a proceeding in New York State Supreme Court to validate their designating petition. The Supreme Court confirmed the report of a special referee, who had previously found that Brumfield and Garcia obtained 491 valid signatures, and ordered that the Board of Elections remove their names from the ballot for the Primary Election. Brumfield and Garcia did not appeal this decision.

Furthermore, as to Garcia, the New York Supreme Court ruled that the Board of Elections properly rejected his petition to be on the primary ballot because the petition he filed with the Board of Elections purported to designate him for the Democratic Party position of “District Leader,” a position that does not exist within the state Democratic party.

Brumfield and Garcia attribute their shortage of valid signatures to a lack of preparation by the Board of Elections and the restrictive petition signature rules codified by the legislature First, they claim that they did not have accurate information regarding the lines of their district prior to the commencement of the petition period. Second, they claim that a number of signatures were invalidated due to alterations on the petitioning witness statements where the petitioning witness failed to initial the changes. In addition, they claim that 32 signatures were invalidated due to the petitioning witness inserting the wrong number of signatures in the total space provided at the bottom of the petition.

*4 Plaintiffs Roberts and Charles filed a petition with the Board of Elections designating them as candidates for the respective party positions of Male Assembly District Leader and Female Assembly District Leader for the 43rd Assembly District. By letter dated August 6, 2002, the Board of Elections informed Roberts and Charles that their names would not appear on the September 10, 2002 primary election ballot because they had designated themselves for the position of “District Leader,” an office that does not exist within the state Democratic Party.

Roberts and Charles brought a proceeding in New York State Supreme Court to validate their designating petition, and objectors to that petition brought a proceeding to invalidate the designating petition. The New York State Supreme Court, Kings County, dismissed the validation proceeding of Roberts and Charles and granted the petition to invalidate their designating petition.

In defense of their clerical error, Roberts and Charles claim the following: prior to the commencement of the thirty seven (37) day petitioning period, the Democratic State Committee had not yet filed a party call as it was required to do by state law. A party call designates what offices will be contested in the party primary. According to Roberts and Charles, the legislature set the date for the party call for June 18, 2002, the same date that petitioning was set to commence. Roberts and Charles allege that the party call was filed on June 18, 2002 at 11:58 a.m., hours after petitioning commenced. Thus, the two potential candidates claim, they could not have known the official name of the office for which they ran until after the party call was filed.

Plaintiffs King and Hackshaw are seeking to become candidates for the Female and Male member of the Democratic State Committee position in the 58th Assembly District of New York. Both need to obtain 500 signatures to be placed on the ballot. Although both received more than 500 signatures, Winston Barnett objected to the validity of the majority of the signatures. An invalidation proceeding was commenced in the Supreme Court of New York, and the court found that the names of both candidates were to be stricken from the democratic primary ballot because both had petitioned to be a “district leader,” a position that does not exist within the democratic party.

Due to fears that the potential candidates' claims would be barred by the doctrine of res judicata, numerous registered Democratic voters from the districts in which the potential candidates seek office requested leave to intervene as Plaintiffs in this action. This Court granted leave to intervene, and will address the voter Plaintiffs' claims below.

To succeed on a motion for a preliminary injunction, a plaintiff must establish two elements: (1) irreparable harm to the movant, and (2) either (a) a likelihood of success on the merits of the underlying claim or (b) sufficiently serious questions going to the merits of the claim to make it fair ground for litigation and a balance of the hardships tipping decidedly toward the movant. Natsource LLC v. Paribello, 151 F.Supp.2d 465, 468–69 (S.D.N.Y.2001) (citing Sweeney v. Bane, 996 F.2d 1384, 1387 (2d Cir.1993) and Inverness v. Whitehall, 819 F.2d 48, 50 (2d Cir.1987)). In certain circumstances, however, the movant is held to a more exacting standard. Thus, where a party “challenges government action taken in the public interest pursuant to a statutory or regulatory scheme, ... the moving party cannot resort to the ‘fair ground for litigation’ standard, but is required to demonstrate irreparable harm and a likelihood of success on the merits.” Espinal v. Goord, 180 F.Supp.2d 532, 536 (S.D.N.Y.2002) (quoting Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir.1996) (citations and some quotation marks omitted)). Moreover, “where (1) the injunction sought will alter, rather than maintain, the status quo ... or (2) the injunction sought will provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits,” the moving party must make a “clear or substantial showing of likelihood of success on the merits.” Id. (citation and quotation marks omitted).

*5 In the instant action, it is clear that Plaintiffs are challenging “governmental action taken in the public interest pursuant to a statutory or regulatory scheme” by petitioning this Court to place the aforementioned candidates' names on the ballot for the Democratic Party primary election. The public has an interest in having a broad choice of candidates from which to choose from in party primary elections. Furthermore, it is clear that issuing the requested injunction would “alter, rather than maintain the status quo” in that it would place the potential candidates on the Democratic Party primary ballot. Hence, for the requested injunction to issue, Plaintiffs must demonstrate that they will suffer irreparable harm in the absence of the injunction, as well as make a clear or substantial showing of likelihood of success on the merits.

The Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. All that is required is “a short plain statement of the claim” giving notice of the nature of the claim and the grounds upon which it rests. Leatherman v. Tarrant County Narcotics Intelligence & Coord. Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); see also Fed.R.Civ.P. 8(a)(2). When considering a defendant's motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must accept as true factual allegations in the complaint and construe all reasonable inferences in the plaintiff's favor. Leatherman, 507 U.S. at 164; Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994). The complaint should be dismissed only “if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief.” Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994) (quoting Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Defendants argue that Plaintiffs' claims should be dismissed under the doctrine of Res Judicata. Under the traditional rules of Res Judicata:

The Second Circuit has held that a federal court must give the same preclusive effect to a state court decision as a state would give it. Schultz v. Berman, 44 F.3d 48, 54 (2d Cir.1994); see also Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). Under New York law, “parties are precluded from raising in a subsequent proceeding any claim they could have raised in the prior one, where all of the claims arise from the same underlying transaction.” Schultz, 44 F.3d at 54. Moreover, “a judgment in a prior action is binding not only on the parties to that action, but on those in privity with them.” Id. (quoting Green v. Santa Fe Indus., Inc., 70 N.Y.2d 244, 253, 519 N.Y.S.2d 793, 514 N.E.2d 105 (1987)).

*6 In the present action, Kaloshi, Lareche, Brumfield, Garcia, Roberts, Charles, Hackshaw and King were all parties to proceedings in New York State Court concerning the validity of their designating petitions, and the New York Supreme Court rendered judgments against them. Although each Plaintiff did not raise federal constitutional issues before the state court, these constitutional claims could have been brought there as they arose from the same underlying circumstances as the claims ruled upon by the state court. Accordingly, this court finds that the claims of Kaloshi, Lareche, Brumfield, Garcia, Roberts, Charles, Hackshaw and King are barred by the doctrine of res judicata. Thus, the only claims remaining before this Court are those asserted by the voters on behalf of the potential candidates.

Before addressing the merits of the voters' claims, this court must determine whether they have standing to bring the present action. This Court finds that the voter Plaintiffs have standing under Article III of the Constitution in the present action, and that they also have third party (or jus tertii) standing to challenge the party enrollment requirement on its face.

The Supreme Court has made it clear that “an intervener's right to continue the suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervener that he fulfills the requirements of Article III.” Schultz v. Williams, 44 F.3d 48, 53 (2d Cir.1994) (quoting Diamond v. Charles, 476 U.S. 54, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). Thus, to maintain standing, an intervener must have suffered an injury in fact that is fairly traceable to the challenged action and that is likely to be redressed by the relief requested. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). To suffer a judicially cognizable “injury in fact” an intervener must have a “direct stake in the outcome of a litigation” rather than a “mere interest in the problem.” Diamond, 476 U.S. at 66–67. (quotations omitted). The interest must be a “legally-protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Here voter Plaintiffs' choice of candidates in the democratic party primary will be limited if the potential candidates are removed from the ballot.

In addition to having standing to challenge the constitutionality of Section 6–132(2) and the Board of Elections conduct, voter Plaintiffs also have third party standing to challenge the witness party enrollment requirement. The question of standing encompasses both constitutional and prudential considerations. Lerman, 232 F.3d at 143. “The issue of whether a facial challenge may be entertained is one such prudential consideration, a species of third party standing by which a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question.” Id. (citation omitted). Here, because the voter Plaintiffs challenge a statute regulating the ability to engage in interactive political speech and associational activity, their standing to challenge the statute on its face is governed by the overbreadth doctrine. Id. Under the overbreadth doctrine, the plaintiffs need only “demonstrate a substantial risk that application of the provision will lead to the suppression of speech.” Id. (quoting Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998)). When a litigant challenges a statute on its face as overly broad, the prudential limitations against third party standing are relaxed, and the litigant may assert the rights of individuals whose interests might be affected by the statute but who are not before the court. Here, the voter Plaintiffs clearly have standing under the overbreadth doctrine to challenge the section 6–132(2) party enrollment requirement on its face. Therefore, this Court will proceed to the merits of the voter Plaintiffs' constitutional claims.

*7 Plaintiffs argue that highly technical requirements of the New York Board of Elections are unduly burdensome on a candidate who wishes to obtain access on the ballot. The question of whether the Board of Elections' ballot access schemes pose an undue burden in their totality invokes the following principle: “a number of facially valid provisions of election laws may operate in tandem to produce impermissible barriers to constitutional rights.” Molinari, 82 F.Supp.2d at 72 (quoting Storer v. Brown, 415 U.S. 724, 737, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)). In Molinari, the court outlined the simple, sensible test offered by the Supreme Court in Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), to help to determine “questions for judgment” in an area that provides no litmus paper test:

The voter Plaintiffs claim that the Board of Elections did not provide Kaloshi and Lareche with maps of the updated districts in which they sought to run in a timely fashion. Accepting this assertion as true, this Court must determine whether or not the Board's action, standing alone, or when viewed in concert with its other conduct, creates a scheme in which a reasonably diligent independent candidate can be expected to satisfy the signature requirements. Here, although this Court believes that the Board of Elections should make available to potential candidates maps of districts in which they wish to run for office as soon as possible, the potential candidates received the proper information soon after the petitioning period began. Furthermore, a reasonably diligent candidate, especially one who knows that the district lines have been changed in accordance with the most recent census, as did the potential candidates here, should have been able to obtain the new district lines with little difficulty, if not a modicum of inconvenience. For example, a visit to the Board of Elections web site¹ offers an a quick and easy method of obtaining the present district lines. Thus, this Court finds that in the present case, the Board of Elections' inability to provide timely copies of updated district maps does not violate the rights of potential candidates.

The State Supreme Court, Kings County, ruled in separate opinions that the petitions of Garcia, Roberts, Charles, King and Hackshaw were invalid because the candidates listed on their petitions that they were running for the position of District Leader, an office which does not exist within the State's Democratic Party. Plaintiffs first point out that the formal office of Male and Female Member of the Democratic State Committee is commonly know as “District Leader .” Plaintiffs claim that their clerical error occurred as a result of the Kings County State Committee failing to designate the office until after the petitioning period had already begun. They argue that to wait for a party call to be filed rather than prepare petitions would have cost each potential candidate valuable time to gather signatures during the petition period, and that Plaintiffs' error should be reviewed with this in mind.

*8 The Party Call was filed by the Board of Elections on June 18, 2002, as was required by law, and it delineates the party positions to be filed by the Democratic Party in and for the County of Kings at the Democratic Party primary election to be held on September 10, 2002. However, this Party Call was designated a revised statement of party positions. A party call designating the party positions for the September 10, 2002 primary election was previously filed at the Board of Elections on May 21, 2002. This earlier party call delineated the party positions to be filled by the Democratic Party in its September 10, 2002 primary and made no mention of a position entitled “District Leader.” In fact, according to the declaration of Jeffrey Feldman, Executive Director of the Kings County Committee:

Because the petitions of Garcia, Roberts, Charles, King and Hackshaw were ruled invalid on the ground that they listed “District Leader” as their office of choice, this Court need not proceed further with any claims brought on their behalf. Whatever ruling this Court makes on the voter Plaintiffs' other claims is now moot with respect to these potential candidates. Thus, with respect to Garcia, Roberts, Charles, King² and Hackshaw, Plaintiffs' motion for a preliminary injunction is denied and Defendants' motion to dismiss is granted. Brumfield, Kaloshi, and Lareche remain as candidates whose ballots have not been found defective for having listed the wrong office. Thus, this Court now proceeds to the remaining claims that bear upon these three potential candidates.

In the name of Kaloshi and Lareche, the voter Plaintiffs assert that the changes in the period for the circulation and filing of designating petitions enacted by the New York State Legislature violates Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, because it was not precleared by the Department of Justice. Plaintiffs argue that this unauthorized change in the petitioning period placed an undue burden on the party candidates by, in effect, cutting two weeks away from the campaign period.

*9 Exactly how the Plaintiffs might have been prejudiced by the date change of the petition period is a question of no import as the scheme was indeed precleared by the Department of Justice. On June 4, 2002, the New York State Board of Elections submitted to the Department of Justice a request for preclearance concerning the changes it proposed in the political calender. On June 7, 2002, the Department of Justice indicated that it did not interpose any objection to the changes. Accordingly, Plaintiffs' claim under Section 5 of the Voting Rights Act is dismissed.

The voter Plaintiffs also seek an order declaring Section 6–132(2) of New York Election Law unconstitutional. Specifically, Plaintiffs claim that Section 6–132(2)'s requirement that a witness to the designating petition signatures be a registered member of the party for whose primary the petition signatures are being gathered violates the First and Fourteenth Amendments to the Constitution.³

In assessing the burden on First Amendment and Fourteenth Amendment rights and the degree of scrutiny to be applied to Section 6–132(2), this Court takes direction from the Second Circuit's decision, Lerman v. Board of Elections, 232 F.3d 135, 145 (2d Cir.2000), in which the Court held that the requirement under Section 6–132(2) that witnesses to ballot access designating petitions be residents of the political subdivision in which the office is to be voted violates the First Amendment on its face.

State laws regulating the electoral process, such as the law at issue here, necessarily implicate rights that lie at the core of our Constitution, including the right to vote, to engage in free speech and association, and to enjoy the equal protection of the laws. The Green Party of the State of New York v. Weiner, 2002 U.S. Dist. LEXIS 2179, at * 21 (S.D.N.Y. February 8, 2002). Federal Courts have long recognized the right to vote as a fundamental interest protected by the Constitution. Id. at *22; Reynolds v.. Simms, 377 U.S. 533, 554–55, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Voting also directly implicates the First Amendment (as applied to the states through the Fourteenth Amendment), which protects the right to form political parties for the advancement of common political goals and ideas and the corresponding right to associate with candidates of those parties through the ballot. Id.

“It does not follow, however, that the right to vote in any manner and the right to associate for political purposes through the ballot are absolute.” Id. (quoting Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (citation omitted)). Since every state election law inevitably imposes some burden upon the right to vote and attendant First and Fourteenth Amendment associational rights, subjecting every voting regulation to strict scrutiny “would tie the hands of States seeking to assure that elections are operated equitably and efficiently.” Id. (quoting Burdick, 504 U.S. at 433).

*10 Challenges to state electoral regulations based on First Amendment and Fourteenth Amendment associational rights and the right to vote are analyzed under a balancing test that “modulates the degree of scrutiny to the severity of the burden imposed.” Id . When state election laws subject speech, association, or the right to vote to severe restrictions, the regulations must be narrowly drawn to advance a state interest of compelling importance.” Lerman, 232 F.3d at 145 (citations omitted). The severity of the burden imposed depends on both the character of the restrictions themselves, and on the nature of the right burdened. Weiner, 2002 U.S. Dist. LEXIS 2179, at *21. “For example, even the smallest restriction may be regarded as severe if it burdens ‘core political speech’ by inhibiting communication with voters about proposed political change.” Id. (quoting Buckley v. American Constitutional Law Found. Inc., 525 U.S. 182, 192 & n. 12, 119 S.Ct. 636, 142 L.Ed.2d 599)).

Lesser restrictions on First and Fourteenth Amendment rights and the right to vote necessitate a less exacting review. When a state election law imposes only reasonable, nondiscriminatory restrictions upon First and Fourteenth Amendment rights, then the State's important regulatory interests are generally sufficient to justify the restrictions. Weiner, 2002 U.S. Dist. LEXIS 2179, at *26; Buckley, 525 U.S. at 196 n. 17 (citation omitted) (“Registration requirements for primary election voters and candidates for political office are ‘classic’ examples of permissible regulations.”). The Second Circuit has noted, “policing this distinction between legitimate ballot access regulations and improper restrictions on interactive political speech does not lend itself to a bright line or ‘litmus-paper test,’ but instead requires a particularized assessment of the nature of the restriction and the degree to which it burdens those who challenge it.” Lerman, 232 F.3d at 145–46 (internal citations omitted).

In determining what level of scrutiny to apply, the Second Circuit has cautioned, however, that “in those cases in which the regulation clearly and directly restricts ‘core political speech,’ as opposed to the ‘mechanics of the electoral process,’ it may make little difference whether we determine the burden first, since restrictions on core political speech so plainly impose a severe burden that application of strict scrutiny will be necessary.” Id . at 146 (citations omitted). In Lerman, the Second Circuit found that the “petition circulation activity ..., while part of the ballot access process, clearly constituted core political speech subject to exacting scrutiny.” Id. It reasoned that petition circulation “of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” Id. (citations omitted). Nevertheless, the Circuit Court did conduct an inquiry into the severity of the burden on political speech and association posed by the regulation before concluding that it would apply strict scrutiny in its review of Section 6–132(2).

*11 While this Court acknowledges the Second Circuit's pronouncement that restrictions on core political speech may so plainly impose a severe burden that application of strict scrutiny will be necessary, it is clear that an evaluation of the severity of the burden on political speech and association posed by the regulation in the instant case also leads to the conclusion that strict scrutiny should be applied in review of Section 6–132(2).

Section 6–132(2) burdens the candidates' and others' core freedoms of political expression and association. See Buckley, 525 U.S. at 183; see also Morrill v. Weaver, 2002 U.S. Dist. LEXIS 6919 at *45 (E.D.N.Y. April 19, 2002). That is, candidates do not have the right to associate for purposes of political expression by organizing nominating petition signature drives with whomever they wish. See Meyer v. Grant, 486 U.S. 414, 424, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) (“The First Amendment protects appellees' right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.”). Meanwhile, millions of registered non Democrats and unregistered New Yorkers are deprived of their right to associate with candidates in this manner, and cannot express themselves politically by serving as witnesses to a candidate's signature petitions. “Burdening the citizens' right of petition circulation burdens the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication.” Meyer, 486 U.S. at 424.

The Attorney General of the State of New York argues that the party enrollment requirement at issue here is far less burdensome upon Plaintiffs' speech and associational rights than was the residency requirement the Court struck down in Lerman. In Lerman, the residency requirement forced an Independent Party candidate to find petition carriers from a pool of 760 enrolled independent voters in his political subdivision to collect the 38 signatures he needed to make the ballot. In the present case, the voter and party registration restrictions would allow a democratic candidate to select from a statewide pool of more than 5,000,000 registered Democrats, a pool far greater, both in absolute numbers and proportionately to the number of signatures required for ballot access, than that seen in Lerman.

While it is true that the Court in Lerman focused on the burden the statute imposed on the candidate, and, that in the instant case, the candidates have a greater pool of potential witnesses from which to choose, the Attorney General's argument misses the crux of the Supreme Court's holding in Buckley, which stressed the converse. The Attorney General emphasizes that due to the number of registered democrats in the State, there should have been plenty of people to act as witnesses for the petition signature list. However, in Buckley, the Court focused primarily on the number of individuals who were inhibited by the statute in question, not the number who could still express their political views and associate with candidates. Buckley, 525 U.S. at 194–95; see Morrill, 2002 U.S. Dist. LEXIS, at *47. Here, the enrollment requirement impacts millions of unregistered New Yorkers as well as those registered voters who are not members of the Democratic Party.

*12 Furthermore, although there are over five million registered Democrats in the state of New York, in reality, the pool of registered Democratic voters any one candidate can access as potential witnesses to petition signatures is restricted by geographical and temporal limitations. For these reasons, this Court will apply a strict scrutiny standard in its review of Section 6–132(6).

Since the Section 6–132(2) registered party member requirement imposes a severe burden on political speech, the requirement must therefore be narrowly tailored to advance a compelling state interest in order to pass constitutional muster. Lerman, 232 F.3d at 149; see California Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000). Here, the state interest asserted by the Attorney General—ensuring integrity and preventing fraud in the electoral process—is unquestionably compelling. Lerman, 232 F.3d at 149. The Court in Lerman, noted, however:

Defendants argue that two benefits flow from the party membership requirement. First, they argue that limiting the pool of potential circulators to partisan, qualified voters decreases the likelihood of party outsiders attempting to sabotage the process for political gain. Second, Defendants argue that the law increases the likelihood that witnesses will be invested in seeing that the process is conducted appropriately, both because of partisan loyalty toward their candidate, as well as their personal investment in the democratic process, as manifested by their registration as voters.

*13 This Court is not persuaded by Defendants' arguments. Defendants' claim that party outsiders are more likely to attempt to sabotage the process for political gain is both conclusory and unsubstantiated. While it is imaginable that one outside of the party (either a registered voter of another party or an unregistered individual) might possess both animosity toward the Democratic party and the will to engage in machinations to harm the Democratic party primary, it is no less imaginable that a registered Democratic party member, with loyal ties to a candidate of his choice within the party, would possess a similar feeling of animosity toward another potential Democratic rival and act intentionally to harm this potential candidate in a misguided attempt to aid the candidate of his choice. Furthermore, Defendants' argument that the requirement increases the likelihood that the witness will be invested in ensuring that the democratic process is conducted appropriately is uncompelling. Rather than act as insurance that one will attempt to preserve democratic principles, partisan loyalty toward one's candidate can sometimes blind one to his civic duty to ensure the integrity of the electoral process. History is replete with episodes of misdeeds performed in the name of partisan politics. At the very least, one's loyalty to a candidate does not make one any more immune to activities inimical to the preservation of integrity and prevention of fraud in the electoral process.

Furthermore, neither party membership nor registration to vote is the litmus test of one's investment in the democratic process. The Supreme Court has noted that while “there are individuals who fail to register out of ignorance or apathy ... there are also individuals for whom ... the choice not to register implicates political thought and expression,” both qualities that indicate personal investment in the democratic process. Buckley, 525 U.S. 195. Lastly, there are sufficient safeguards within Section 6–132, apart from the party membership requirement, to avoid confusion, deception and frustration of the democratic process. Specifically, if the authenticity of signatures on a petition is challenged, the petition witness may be subpoenaed to verify his witnessing of the signatures. See Lerman, 232 F.3d at 150 (“Since the local Boards of Elections in New York have statewide subpoena power ... the state's purpose is already served by the less burdensome requirements in 6–132(2) that petition witnesses (1) live anywhere within the State of New York, and (2) provide their residence address in an affidavit filed together with the petitions.”).

Since the party membership requirement, and its implicit exclusion of those who are not registered, bears minimal relationship to the asserted state interests, this Court concludes that Section 6–132(2) is not sufficiently narrowly tailored to advance the interest of ensuring integrity and preventing fraud in the electoral process, and is therefore unconstitutional. This Court holds that the requirement under Section 6–132(2) of the New York Election Law that witnesses to ballot access designating petitions be registered members of the party for whose primary the petition signatures are being gathered violates the Constitution on its face.

*14 The State Supreme Court found that Kaloshi gathered three hundred and fifty (350) valid signatures. According to the Board of Elections' Clerk's Report on Demas' objections, which represents the findings of the Board of Election, the Board invalidated five hundred and twenty two (522) signatures because the witness observing the signature was not enrolled in the Democratic party, and one hundred and forty four (144) signatures because the witness observing the signature was not registered. The addition of these six hundred and sixty six (666) votes, which were stricken in accordance with the Section 6–132(2) party membership requirement and by the Board of Elections decision to exclude unregistered witnesses, would give Kaloshi over one thousand (1,000) signatures, the minimum number he needs to gain access to the ballot. Thus, this Court finds that Kaloshi should be placed on the primary election ballot.

The State Supreme Court found that Lareche gathered four hundred and sixty five (465) valid signatures. According to the Board of Elections' Clerk's Report, the Board invalidated thirteen (13) signatures on the ground that the witness to the signature was not a registered voter. Thus, even with the benefit of this ruling, Lareche only has four hundred and seventy eight (478) valid signatures, twenty two (22) shy of the requisite number needed to be placed on the ballot.

For the reasons stated herein, this Court denies the requests by and on behalf of Lareche, Brumfield, Garcia, Roberts, Charles, King and Hackshaw for a preliminary injunction directing the Board of Elections to place them on the September 10, 2002 Democratic Party primary ballot and grants Defendants' motion to dismiss all claims as they relate to these potential candidates. Furthermore, it is hereby ORDERED that:

The Board of Elections place Kaloshi on the ballot of the September 10, 2002 Democratic Party primary election for the office of the New York State Senator for the 21st Senatorial District.

SO ORDERED.