Opinion
02-CV-6465 (JG)
September 18, 2003
JEREMY M, CREELAN, Brennan Center for Justice, New York, NY, for Green Party
HERBERTRUBIN, JACK OLCHIN, Herzfeld Rubin, New York, NY, for Libertarian Party
CHIRISTOPHER B, GARVEY, Nolte, Nolte Hunter Roslyn, NY, for Libertarian Party
THOMAS J, HILLGARDNER, Jamaica, NY, for Marijuana Reform Party
THOMAS G. TERESKY, South Huntington, NY, for Right to Life Party
TODD D. VALENTINE, PATRICIA L. MURRAY, State of New York State Board of Elections, Albany, NY, for Defendants New York State Board of Elections
MEMORANDUM AND ORDER MODIFYING PRELIMINARY INJUNCTION
In a memorandum and order dated May 30, 2003, familiarity with which is assumed, I concluded that New York's voter enrollment scheme: (1) imposes a severe burden on the First Amendment rights of the Green Party of New York State (the "Green Party") and its supporters; and (2) unreasonably discriminates against minor parties and their voters,Green Party of N.Y. St. v. N.Y. St, Bd. of Elects., 267 F. Supp.2d 342, 359 (E.D.N.Y. 2003) ("Green Party I"). I also concluded that the New York State Board of Elections (the "State Board") had failed to show that the challenged aspects of the scheme furthered a legitimate state interest, let alone a compelling and narrowly tailored one.Green Party I, 267 F. Supp.2d at 359. I therefore granted the Green Party a preliminary injunction, ordering the State Board to: (a) maintain on the state's voter registration form a box for voters to enroll in the Green Party; and (b) ensure that the local boards of elections maintain the enrollment status of voters who had enrolled in the Green Party in the past and continue to enroll such voters in the future, at least through New York's 2006 gubernatorial election, 14 at 360, I also encouraged the State Board to consider other options that might accommodate the state's other political parties and their voters.Id. at 361-62. The State Board has appealed that order,
After the preliminary injunction was entered, four other political parties and their supporters ("the intervening plaintiffs") moved to intervene. These included two parties — the Liberal Party and the Right to Life Party — that, like the Green Party, lost official recognition as a political party under New York's election law by virtue of the results of the 2002 governor's race. The other two intervening plaintiffs — the Libertarian and the Marijuana Reform Party-had never won official recognition by the state but had, among other things, placed candidates on the statewide ballot in the 2002 election. By order dated July 18, 2003, 1 granted the motions to intervene, and the intervening plaintiffs and the Stale Board appeared before me on July 28, 2003 for a hearing on the intervening plaintiffs' application for a preliminary injunction similar to one obtained by the Green Party,
DISCUSSION
A. The Standard for a Preliminary Injunction
The standard for a preliminary injunction in this context is set forth in my May 30 memorandum and order. Id. at 350-51. The intervening plaintiffs, like the Green Party and its supporters, have convincingly alleged that New York's voter enrollment scheme causes them irreparable harm by infringing on their First and Fourteenth Amendment rights. Therefore, in determining their likelihood of success on the merits of their claims, I must conduct a balancing test that "weighs the severity of the burdens placed on the asserted rights by the challenged scheme, and then evaluates the interests of the state in the challenged provisions." Id. at 352,
1. The Severity of the Burdens
The intervening plaintiffs assert that New York's voter enrollment scheme: (1) infringes on the individual voter's ability to publicly express his or her political beliefs; (2) inhibits the parties' ability to identify and locate their supporters, which in turn impairs the parties' (and their members') right to associate together and to influence the political process; and (3) impermissibly discriminates against the intervening parties and in favor of the larger political parties, whose supporters are catalogued for them and made accessible to them by New York's voter enrollment scheme,
The inability to declare one's affiliation with a minor political party by enrolling in it — as opposed to being able to choose only between enrollment in a recognized party or status as an unenrolled voter — is a cognizable constitutional injury, See Council of Alternative Political Parties v. NJ. Div. of Elects., 781 A.2d 1041, 1049 (N.J.Super. Ct, App. Div. 2001). Although 1 continue to believe that this burden on voters' political expression is not severe,see Green Party I, 267 F. Supp.2d at 353, this expressive interest nevertheless is a factor in weighing the severity of the constitutional burdens imposed by New York's voter enrollment scheme on minor parties and their voters. Thus, I disagree with the State Board's contention that there is no harm because the intervening plaintiffs "are not in any way barred from voting." (Tr. at 88.)
See, e.g., July 28, 2003 Tr. ("Tr.") at 111 (Testimony of Bonnie Scott: "I would like to be able to [enroll as Libertarian] because right now the only choices are for another party or a choice that says I do not wish to enroll in a party which is not the truth,")
Moreover, the intervening plaintiffs — like the Green Party and its supporters — have established that New York's voter enrollment scheme imposes a severe burden on their First Amendment associational rights. See Green Party I, 267 F. Supp.2d at 353. In testimony I credit, members of the Liberal and Right to Life Parties explained how they used the information contained in the voter enrollment lists to identify, mobilize, and raise funds from party voters. They further explained how they would like to continue to use the lists for those purposes, and how their party-organizing efforts are hampered by no longer having access to such information. (See, e.g., Tr. at 25-26, 59-60.) In addition, the Liberal Party is continuing to use the old voter enrollment lists to contact their voters so that it can more easily gather the requisite number of signatures to place candidates on the ballot via the petition process. (Id. at 38, 51.)
In the same way, members of the Libertarian and Marijuana Reform Parties — political parties that have never been officially recognized by New York law and thus have never had access to lists of voters who choose upon registration to express their affiliation with them — testified about how invaluable those lists would be in their effort to identify like-minded voters, and how their efforts to mobilize such voters are "crippled [by] not being able to have that information." (Id. at 74, 121.)
In defense, the State Board has again exhibited a misapprehension of the plaintiffs' complaint. See Green Party I, 267 F. Supp.2d at 355. During cross-examination, the State Board's lawyers repeatedly asserted that the intervening plaintiffs' associational interests were not harmed because New York allows them to place candidates on the ballot via the petition process. (See,e.g., Tr. at 31, 62-61, 88, 94, 113; see also id. at 144-45 (Closing Argument of State Board's Counsel) ("This is not a case about ballot access or access to the ballot . . ., These candidates or these groups are still able to access the ballot,")) This case truly is not about the state's ballot-access laws; it is about New York's voter enrollment scheme. Specifically, it is about (1) the burden that scheme places on the expressive and associational rights of New York's smaller political parties and their supporters; and (2) the benefits it provides to the State's major parties. The fact that smaller parties and their supporters, at significant time and expense (see id. at 88, 113) can put candidates on the ballot and vote for them may be a credit to the state's ballot-access laws, but it does not detract from the severity of the burden that the state's voter-enrollment laws impose on the associational rights of minor political parties, their members, and those who wish to enroll in those minor parties. The State Board's assertion that the burden is slight because those parties could simply use lists of all the registered voters in the state (see Tr. at 39) is meritless and — as I noted before — akin to pointing them to the local phone book. See Green Party I, 267 F. Supp.2d at 353.
Finally, with regard to their equal protection claims, the intervening plaintiffs have established that they are also severely disadvantaged in their party organizing efforts in comparison to New York's larger political parties. For example, the Executive Director of the Liberal Party described how the larger political parties "have a much easier time" identifying voters, mobilizing them for elections, and raising funds from them. (Tr. at 2(5,) Similarly, the Chairman of the Marijuana Reform Party identified the state's voter enrollment lists as "resources" which "are invaluable to any party, whether it's a major one, a party on the way up or a party on the way down." (Id. at 74.) As Bonnie Scott of the Libertarian Party explained it:
We cannot locate our voters and our supporters to mobilize them to get them to vote to raise funds, to organize the party. All these other parties have this database management funded by the citizens of New York State through the money spent in the Board of Elections, The Board of Elections maintains all the records by ages and address where they have access to that information . . . [those parties] can look at 1998, say where did we do well, we did well in that county and we can go there to work on those voters to become more active in the party or donate. Those resources are invaluable and there is no other way to get them in the State of New York.
(R at 84)
The State Board has not addressed the intervening plaintiffs' equal protection claims, (See, id. at 146-47,) I therefore conclude that New York's voter enrollment scheme, by providing significant benefits to the state's larger and officially-recognized political parties but denying those same benefits to its smaller parties, infringes on their equal protection rights and thus must be justified by a compelling state interest. See Green Party I, 267 F. Supp.2d at 354-55.
2. The State's Asserted Interests in its Voter Enrollment Scheme
The State Board presented no evidence at the July hearing. In its opposition to the intervening plaintiffs' motions to intervene and in closing argument, it merely rehashed its purported interests in defending New York's closed primary system and protecting New York's voters from contusion, arguments I have already rejected as unpersuasive. See Id. at 355-59. Furthermore, I find that the State Board has continued in its failure to demonstrate (or even contend) that opening the state's voter enrollment scheme to minor political parties will pose an administrative or financial burden. See Id. at 358-59.
The State Board's suggestion during cross-examination that some of the intervening plaintiffs lacked sufficient support to warrant relief does not change my conclusion. Although such a showing of support has been required in other cases to justify the imposition of an administrative burden on the state, here there is no burden, In any event, I find that each of the parties has demonstrated a modicum of support by, among other things, placing candidates on the ballot in 2002 election.See Green Party I, 267 F. Supp.2d at 358.
There is reason to believe that the Liberal Party has dissolved in the wake of the 2002 election. Although I do not fully credit the explanation of its Executive Director and its chairman's public statements that the Liberal Party had ceased formal operations (see Tr. at 35), the State Board has not contested the evidence that the Liberal Party is still active in New York state politics (see,e.g., Tr. at 43-46) and that the results of the 2002 election were the product of a betrayal of the party by their candidate for governor. (Id. at 42-43).
3. The Resolution of the Balancing Test
I conclude that the intervening plaintiffs have demonstrated that New York's voter enrollment scheme: (1) imposes a severe burden on their First Amendment rights; and (2) unreasonably discriminates against them and their voters, in violation of the Equal Protection Clause. The State Board has failed to present any evidence at all, much less evidence that the scheme is narrowly-tailored to meet a compelling state interest or is even a reasonable way of accomplishing a legitimate state goal. The intervening plaintiffs have therefore met the standard for preliminary injunctive relief
B. The Form of Relief
As noted above, the preliminary injunction that I issued on May 30, 2003 ordered the State Board to maintain a box for the Green Party on New York's voter registration form and to direct the local boards of elections to maintain and update the enrollment information of Green Party enrollees. See Id. at 360. I also recommended that the State Board consider broader relief to accommodate the state's other political parties and their supporters by adding more boxes or an "Other" line to the state's voter registration form. Id. at 361-62, Although a revised voter registration form has not yet been completed, the State Board has stated its intent to comply with the May 30 injunction by maintaining a box for the Green Party on its voter registration form.
Following the July 28 hearing, I sought additional input from all the plaintiff political parties and the State Board regarding whether — if the intervening plaintiffs were successful — a more efficient, effective, and administrable form of relief would be to add an "Other" line to the voter registration form and require the State Board to maintain and update the enrollment information of all of the plaintiff political parties. At that telephone conference, the Green Party, which would lose its box on the enrollment form if such relief were ordered, consented to such relief, stating that the "Other" line "is a sensible, long-term solution." (Aug. 1, 2003 Tr. at 4 (`Tr. II",))
I specifically sought input from the State Board, noting that, "should relief be granted in this case," the State Board had "an ongoing interest . . . as to whether the relief is in the form of a check off box or an `other' line." (Tr. II at 7.) Despite this request for assistance, the State Board offered no guidance. Instead, it maintained its opposition to any remedy and renewed various arguments that I previously rejected. (See Id. at 7-8); Green Party I, 267 F. Supp.2d at 348 n. 7 362.
In light of the foregoing, I hereby modify the May 30, 2003 preliminary injunction awarded to the Green Party and grant a preliminary injunction to require the State Board to open New York's voter enrollment scheme to all of the plaintiff political parties by placing an "Other" line on the state's voter registration form and directing the local boards of elections to maintain and update the enrollment information of voters who indicate their affiliation with the Green, Liberal, Libertarian, Marijuana Reform, or Right to Life Parties, Specifically, the State Board is ordered to:
1. Maintain on New York's voter registration form a box labeled "Other (write in)", to be followed by a blank line that will permit voters to declare their affiliation for any political organization, including the Green, Liberal, Libertarian, Marijuana Reform, or Right to Life Parties by writing the name of the political organization on that line. That box shall be substantially in the form set forth below.
Choose a Party — Check one box only REPUBLICAN PARTY
DEMOCRATIC PARTY
INDEPENDENCE PARTY
CONSERVATIVE PARTY
WORKING FA MILIES PARTY
OTHER (write in)___ I DO NOT WISH TO ENROLL IN A PARTY Please note: In order to vote in a primary election, you must be enrolled in one of these parties
2. Include suitable instructions to the voter registration form to notify voters that they can use the "Other" line to enroll in a political organization other than those specifically identified on the form.
3. Direct the local boards of elections to maintain and update the enrollment information of voters who are currently enrolled in the Green, Liberal, and Right to Life Parties, and who in the future use the form to enroll in the Green, Liberal Libertarian, Marijuana Reform, and Right to Life Parties, so that the voter enrollment lists reflect all current and future enrollees in those parties. To the extent that, by operation of N.Y. Elec. Law § 5-302(1), some voters are no longer enrolled in the Liberal and Right to Life Parties, the State Board shall use its best efforts to notify those voters that they can re-enroll in those parties by completing a new voter registration form.
4. Ensure that the foregoing directives remain in force so long as the Green, Liberal, Libertarian, Right to Life, and Marijuana Reform Parties continue to enjoy sufficient support to place candidates on the ballot in the most recent gubernatorial election, provided that the injunction shall not apply to a party if it qualifies as a "party" under MY, Elec. Law § I-104(3),
So Ordered.