Opinion
7294 Index 100678/16
10-11-2018
In re Mark Warren MOODY, Petitioner–Appellant, v. NEW YORK STATE BOARD OF ELECTIONS, et al., Respondents–Respondents.
Mark Warren Moody, appellant pro se. Barbara D. Underwood, Attorney General, New York (Judith N. Vale of counsel), for State respondents. Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for Municipal respondents.
Mark Warren Moody, appellant pro se.
Barbara D. Underwood, Attorney General, New York (Judith N. Vale of counsel), for State respondents.
Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for Municipal respondents.
Sweeny, J.P., Tom, Gesmer, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered December 8, 2018 (transferred to this Court from the New York Court of Appeals by order entered March 23, 2017), which denied the petition seeking a judgment declaring that New York's closed primary election regime, established pursuant to Election Law § 5–304, by requiring voters to choose a party affiliation in advance of the primary, violates the New York State Constitution, and dismissed the proceeding brought pursuant to Election Law article 16, unanimously affirmed, without costs.
It is settled law that New York's primary election enrollment deadline, which, as pertinent on this appeal, requires that registered voters change their party affiliation at least 25 days prior to the general election preceding the primary in which they intend to vote (see Election Law § 5–304[3] ), is rationally related to the legitimate state interests in protecting the viability of the political party system by "inhibit[ing] party raiding" ( Rosario v. Rockefeller, 410 U.S. 752, 758–762, 93 S.Ct. 1245, 36 L.Ed.2d 1 [1973] ; accord Neale v. Hayduk, 35 N.Y.2d 182, 187, 359 N.Y.S.2d 542, 316 N.E.2d 861 [1974], appeal dismissed 420 U.S. 915, 95 S.Ct. 1109, 43 L.Ed.2d 388 [1975] ; see California Dem. Party v. Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 [2000] ; Matter of Walsh v. Katz, 17 N.Y.3d 336, 343, 929 N.Y.S.2d 515, 953 N.E.2d 753 [2011] ).
The New York Constitution's voter franchise protection provisions (see N.Y. Const Art I, § 1 ; Art II, § 1 ) do not require that any heightened scrutiny, beyond that afforded under the U.S. Constitution, be applied to the primary deadline provision. Thus, while the disenfranchisement protections of Article I, § 1, do extend to primary elections, the state nonetheless retains "plenary power ... to promulgate reasonable regulations for the conduct of elections" ( Matter of Davis v. Board of Elections of City of N.Y., 5 N.Y.2d 66, 69, 179 N.Y.S.2d 513, 153 N.E.2d 879 [1958] ; see Cox v. Katz, 30 A.D.2d 432, 436, 293 N.Y.S.2d 829 [1st Dept. 1968], affd 22 N.Y.2d 903, 294 N.Y.S.2d 544, 241 N.E.2d 747 [1968] ; Dorfman v. Berman, 186 Misc.2d 415, 418, 718 N.Y.S.2d 142 [Sup. Ct., Albany County 2000] ). Likewise, Article II, § 1, "was not intended to regulate the mode of elections, but rather the qualification of voters" ( Matter of Schulz v. Horseheads Cent. School Dist. Bd. of Educ., 222 A.D.2d 819, 820, 634 N.Y.S.2d 792 [3d Dept. 1995], appeal dismissed 87 N.Y.2d 967, 642 N.Y.S.2d 196, 664 N.E.2d 1259 [1996] ; see Matter of Blaikie v. Power, 13 N.Y.2d 134, 140, 243 N.Y.S.2d 185, 193 N.E.2d 55 [1963], appeal dismissed 375 U.S. 439, 84 S.Ct. 507, 11 L.Ed.2d 471 [1964] ), and thus does not curtail the Legislature's otherwise "broad authority ... to establish rules regulating the manner of conducting both special and general elections" ( Eber v. Board of Elections of County of Westchester, 80 Misc.2d 334, 336, 362 N.Y.S.2d 304 [Sup. Ct., Westchester County 1974], appeal dismissed 35 N.Y.2d 848, 363 N.Y.S.2d 86, 321 N.E.2d 878 [1974] ).
Section 5–304(3)'s reference to the "general election" is not unconstitutionally vague with respect to the primary enrollment deadline for presidential primaries. The Election Law directs that "[t]he general election shall be held annually on the Tuesday next succeeding the first Monday in November" ( Election Law § 8–100[1][c] ). Viewed as a whole, the Election Law gives persons of ordinary intelligence fair notice of what they must do to meet the primary enrollment deadline, and likewise provides "officials with clear standards for enforcement" ( People v. Stuart, 100 N.Y.2d 412, 420, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ).