03-7679 United States Court of Appeals for the Second Circuit GREEN PARTY OF NEW YORK STATE, a political party duly organized under the laws of New York State, MARK DUNLEA, Chairperson of the Green Party of New York State, RACHEL TREICHLER, duly enrolled member of the Green Party of New York State, JAMES LANE, duly enrolled member of the Green Party of New York State, SHANNON M. HOULIHAN, JOHN N. WARREN and LISA CHACÓN, Plaintiffs-Appellees,
LIBERTARIAN PARTY OF NEW YORK STATE INC., CAROL M. O’HEA, ANNE M. NOLAN, KENNETH C. DIEM, NEW YORK STATE RIGHT TO LIFE PARTY, LIBERAL PARTY OF THE STATE OF NEW YORK, and MARIJUANA REFORM PARTY OF NEW YORK STATE, Intervenors-Plaintiffs-Appellees. v.
NEW YORK STATE BOARD OF ELECTIONS, CAROL BERMAN, NEIL W. KELLEHER, HELEN MOSES DONOHUE and EVELYN J. AQUILA, in their official capacities as Commissioners of the New York State Board of Elections, Defendants-Appellants,
NANCY MOTTOLA SCHACHER, WEYMAN A. CAREY, MICHAEL J. CILMI, MARK B. HERMAN, NERO B. GRAHAM, VINCENT J. VELELLA, DOUGLAS A. KELLNER, FREDERIC M. UMANE, TERRENCE C. O’CONNOR, STEPHEN H. WEINER, in their official capacities as Commissioners of the New York City Board of Elections, and as representatives of all commissioners of the county boards of elections in New York State, Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
BRIEF OF PLAINTIFFS-APPELLEES GREEN PARTY, ET AL. BRENNAN CENTER FOR JUSTICE AT NYU SCHOOL OF LAW Jeremy Creelan Deborah Goldberg 161 Avenue of the Americas, 12th Floor New York NY 10013 (212) 998-6730 Attorneys for Plaintiffs-Appellees Green Party, et al. TABLE OF CONTENTS
TABLE OF AUTHORITIES ...... iii
COUNTER-STATEMENT OF THE CASE ...... 1
COUNTER-STATEMENT OF THE FACTS ...... 2 A. Section 5-302.1: Its Operation and a Comparison to Other States’ Voter Enrollment Schemes ...... 3 B. The Political Parties’ Use of Voter Lists and Party Enrollment Information...... 5 1. Party Organizing...... 6 2. Education and Advocacy on Issues ...... 7 3. Fundraising ...... 8 4. Get Out the Vote (“GOTV”) Operations ...... 8 C. The Importance of Party Enrollment to Voters’ Political Associations ...... 9 D. The Green Party ...... 10 E. The Intervenor Political Parties ...... 11
SUMMARY OF ARGUMENT ...... 12
ARGUMENT...... 14 I. THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION IN GRANTING A PRELIMINARY INJUNCTION...... 14 A. An Award of a Preliminary Injunction Is Reviewed for Abuse of Discretion..... 15 B. The District Court Properly Found That Plaintiffs Would Suffer Irreparable Harm Without a Preliminary Injunction...... 16 C. The District Court Properly Found a Substantial Likelihood of Success on the Merits...... 19 1. The District Court Properly Subjected Section 5-302.1 to Strict Scrutiny... 20 2. The Plaintiff Parties Demonstrated, and the State Board Did Not Even Attempt to Contest, the Severe Burdens Imposed by Section 5-302.1...... 22 3. The State Board Cannot Identify Any State Interest to Justify the Severe Burden on Plaintiff Parties’ First Amendment Rights ...... 22 a. The State Board Cannot Justify Section 5-302.1 by Appealing to an Interest in Preventing Voter Confusion ...... 23 b. The State Board Cannot Justify Section 5-302.1 by Ignoring Its Burden of Production...... 25 II. THE TESTIMONY OF THE GREEN PARTY’S EXPERT WITNESS WAS RELEVANT, RELIABLE, AND PROPERLY ADMITTED IN EVIDENCE...... 30
i III. THE DISTRICT COURT PROPERLY EXCERISED ITS REMEDIAL POWER IN ADDRESSING THE CONSTITUTIONAL INFIRMITY OF SECTION 5.302.1...... 32
CONCLUSION...... 35
ii TABLE OF AUTHORITIES Cases Anderson v. Celebrezze, 460 U.S. 780 (1983)...... 20, 21, 25, 26
Atherton v. Ward, 22 F. Supp. 2d 1265 (W.D. Okla. 1998)...... 28, 29, 34 n.12
Baer v. Meyer, 728 F.2d 471 (10th Cir. 1984) ...... 27, 28, 34 n.12
Beal v. Stern, 184 F.3d 117 (2d Cir. 1999)...... 16
Beaver v. Clingman, CV-00-1071-F, 2003 WL 745562 (W.D. Okla. Jan. 24, 2003) ...... 31 n.10
Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996)...... 15, 16
Booking v. Gen. Star Mgmt. Co., 254 F.3d 414 (2d Cir. 2001)...... 30
Boucher v. United States Suzuki Motor Corp., 73 F.3d 18 (2d Cir. 1996) ...... 30-31
Burdick v. Takushi, 504 U.S. 428 (1992)...... 20, 21
Caiola v. Citibank, N.A., 295 F.3d 312 (2d Cir. 2002)...... 25
Citizens to Establish a Reform Party in Arkansas v. Priest, 970 F. Supp. 690 (E.D. Ark. 1996)...... 31 n.10
Council of Alternative Political Parties (“CAPP”) v. State, 781 A.2d 1041 (N.J. Super. Ct. App. Div. 2001)...... 21, 27, 28
Dr. John Hagelin for President Committee of Kansas v. Graves, No. 92-4201-RDR, 1993 WL 719762 (D. Kan. Aug. 31, 1993) ...... 31 n.10
Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (2002)...... 34
Green Party of N.Y. v. Weiner, 216 F. Supp. 2d 176, 188 (S.D.N.Y. 2002)...... 21
iii
Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)...... 21
Iowa Socialist Party v. Nelson, 909 F.2d 1175 (8th Cir. 1990) ...... 29 n.8
Johnson v. Cuomo, 595 F. Supp. 1126 (N.D.N.Y. 1984)...... 33 n.11
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996)...... 16
Lerman v. Bd. of Elections, 232 F.3d 135 (2d Cir. 2000)...... 20, 21, 26
Luciano v. Olsten Corp., 110 F.3d 210 (2d Cir. 1997)...... 30
McCullock v. H.B. Fuller Co., 61 F.3d 1038 (2d Cir. 1995)...... 31
McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215 (4th Cir. 1995) ...... 29 n.8
Meloff v. New York Life Ins. Co., 240 F.3d 138 (2d Cir. 2001)...... 30
Molinari v. Powers, 82 F. Supp. 2d 57 (E.D.N.Y. 2000) ...... 31 n.10
Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577 (2d Cir. 1989)...... 15
Rainbow Coalition of Okla. v. Okla. State Election Bd., 844 F.2d 740 (10th Cir. 1988) ...... 29 n.8
Republican Party of Conn. v. Tashjian, 770 F.2d 265, 278 (2d Cir. 1985), aff’d, 479 U.S. 208 (1986) ...... 20 n.6
Rockefeller v. Powers, 78 F.3d 44 (2d Cir. 1996) ...... 18
Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994) ...... 4, 20 n.6, 26, 27, 31 n.10
iv
U.S. Taxpayers Party of Florida v. Smith, 871 F. Supp. 426 (N.D. Fl. 1993) ...... 31 n.10
United States v. Fabian, 312 F.3d 550 (2d Cir. 2002), cert. den’d, --- U.S. ----, 123 S. Ct. 1958, 155 L.Ed.2d 871 (2003)...... 30
Williams v. Rhodes, 393 U.S. 23 (1968)...... 21
Wisdom Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101 (2d Cir. 2003)...... 15
Zervos v. Verizon New York, Inc., 252 F.3d 163 (2d Cir. 2001)...... 15
Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998)...... 31 Statutes Colo. Rev. Stat. § 1-1-104(24)...... 34 n.12 Colo. Rev. Stat. § 1-2-218.5 ...... 34 n.12 N.Y. Elec. L. § 1-104.3...... 3 N.Y. Elec. L. § 5-210.5(k)(vi) ...... 3 N.Y. Elec. L. § 5-302.1...... 4 N.Y. Elec. L. § 5-302.4...... 4 N.Y. Elec. L. § 5-602...... 4 N.Y. Elec. L. § 5-604...... 4 N.Y. Elec. L. § 6-136...... 33 Okla. Stat. tit. 26, § 1-109(B)...... 34 n.12 Okla. Stat. tit. 26, § 4-112(A) ...... 34 n.12 Other Authorities Advisory Committee Notes, 2000 Amendments, Fed. R. Evid. 702...... 30
v COUNTER-STATEMENT OF THE CASE Plaintiff Green Party of New York State and four intervening political parties (the
“the Plaintiff Parties”) seek affirmance of a preliminary injunction against enforcement of
Section 5-302.1 of the New York Election Law. Absent that relief, Section 5-302.1 would have stripped Green Party enrollments from official voter lists (leaving more than
29,000 New Yorkers with a “blank” in their records), and new Green Party enrollments would have been barred. By contrast, enrollments in political parties with official “party” status would be maintained by county boards of elections, new enrollments would be placed on voter lists, and the lists would be provided to the “parties” for use in organizing members, raising funds, communicating on the issues, and getting out the vote on
Election Day. The District Court preliminarily enjoined Section 5-302.1 after concluding that the Plaintiff Parties would suffer irreparable harm if the provision were enforced and that they had established a likelihood of success on the merits of their First Amendment and Equal Protection claims.
In urging this Court to affirm the District Court’s decision, the Plaintiff Parties do not maintain that they are entitled to official “party” status. They do not challenge the rule limiting such status to political parties whose gubernatorial candidate won at least
50,000 votes in the previous election, and they acknowledge that, having missed that threshold in the last election, they are not qualified for official “party” status. What the
Plaintiff Parties do contest is the constitutionality of a provision – Section 5-302.1 – that provides an unjustified competitive advantage to official parties by depriving parties without official status of access to enrollment information critical to party-building and meaningful participation in the political arena.
1 The District Court granted a preliminary injunction against enforcement of
Section 5-302.1 after holding two lengthy evidentiary hearings, permitting several rounds of briefing on both procedural and substantive issues, and repeatedly soliciting comments from all parties to the case on the appropriate scope of any relief that might be granted.
At the hearings, Defendant-Appellant New York State Board of Elections (the “State
Board”) offered no evidence to rebut the Plaintiff Parties’ testimony that Section 5-302.1 would impose severe burdens on their associational rights and failed to demonstrate any compelling, or even important, state interest to justify that irreparable harm. In its briefs, the State Board failed to mount a persuasive defense and omitted several arguments that it now asks this Court to hear on appeal. Finally, the State Board largely ignored the
Court’s requests for assistance in crafting the relief about which the State Board now complains. The District Court fairly considered the uncontroverted evidence, applied the correct legal standards in considering the Plaintiff Parties’ claims, and narrowly tailored a remedy to the constitutional violations that it found. In sum, this Court has every reason to find that the District Court acted well within its discretion in awarding a preliminary injunction against enforcement of Section 5-302.1.
COUNTER-STATEMENT OF THE FACTS
The evidentiary record in this case is notable in two respects. First, the District
Court’s fact-finding was exhaustive, including two all-day hearings featuring searching questions from the bench to evaluate witnesses’ credibility and to obtain all necessary and relevant evidence, as well as repeated requests for additional input from counsel for all parties to the case. Second, despite the numerous opportunities to build a record in its defense, the State Board presented only one witness: a commissioner of elections from
2 Westchester County, who testified briefly and exclusively on the different privileges
afforded voters in official “parties” and denied voters in unofficial political parties. See
A-94-98.1 The State Board presented no evidence of any kind to counter the Plaintiff
Parties’ testimony about the severe burdens imposed by New York’s enrollment scheme or to demonstrate any compelling state interest to justify those burdens. The following facts were established through evidence introduced by the Plaintiff Parties, uncontroverted by the State Board, and expressly credited by the District Court.
A. Section 5-302.1: Its Operation and a Comparison to Other States’ Voter Enrollment Schemes
Persons who register to vote in New York may choose to enroll in a party, by checking a box on their registration form. See N.Y. Elec. L. § 5-210.5(k)(vi); SPA-37.
But registrants may choose only among political parties that have obtained official
“party” status as defined by state law, i.e., those political parties that received at least
50,000 votes for their candidate in the preceding gubernatorial election. N.Y. Elec. L. §
1-104.3. As a result, political parties that have a history of activity and demonstrable
support within the electorate do not appear as an enrollment option when voters register.
Section 5-302.1 of New York’s Election Law governs the process by which county boards of election record (and erase) a registered voter’s political party enrollment:
Before placing the registration poll record in the poll ledger, the board shall enter in the space provided therefor on the back of such registration poll record the name of the party designated by the voter on his application form, provided such party continues to be a party as defined in this law. If such party ceases to be a
1 References to the Appendix include page number and, where appropriate, line numbers in the following format: “A-1:2-6.” This citation would refer to page one, lines two through six. References to “SPA” refer to portions within the District Court’s opinions challenged by the State Board on appeal and reproduced in the State Board’s Brief and Special Appendix. References to “PASA” refer to the Supplemental Appendix filed by Plaintiffs-Appellees Green Party of New York State and its members.
3 party at any time, either before or after such enrollment is so entered, the enrollment of such voter shall be deemed to be blank and shall be entered as such until such voter files an application for change of enrollment pursuant to the provisions of this chapter. . . .
N.Y. Elec. L. § 5-302.1 (emphasis added). This provision causes the computerized voter
lists prepared by county boards of elections to include the political party enrollment information of each voter registered in an official “party.” See N.Y. Elec. L. § 5-302.4
(providing for entry of these records into computer files from which the voter lists are generated).
As the State Board stipulated at the preliminary injunction hearing, all county boards of elections in New York State now have computerized files in which officials enter and store enrollment information regarding voters registered within the jurisdiction.
A-365; A-160 ¶ 23; A-29:24 – A-25:1. If the political party chosen by the voter loses its recognition as a “party,” however, that information is stripped from the voter’s record, and from the lists, and is deemed “blank.” In addition, from that moment onward, registering voters are no longer offered the option of associating themselves with that
political party through enrollment. See N.Y. Elec. L. § 5-302.1. The county boards are required to make the voter lists (with “party” and “blank” enrollments) available to the public, see id.. §§ 5-602, 5-604, including to both official “parties” and unofficial political parties, Schulz v. Williams, 44 F.3d 48, 60-61 (2d Cir. 1994) (citing importance of voter enrollment information to associational interests as ground for invalidating state law authorizing local boards to supply free lists only to recognized “parties”).
New York’s voter enrollment scheme and its rules for official “party” status combine to impose unique burdens on voters. New York is one of 29 states that allow political party enrollment at registration, but one of only three such states that refuse to
4 provide voters with a blank “Other” line on which to write in the name of an unofficial
political party.2 A-147 ¶¶ 12, 13; see also A-60:3 – 74:6. Moreover, New York is one of
only 11 states in which state law makes it impossible for an organization to become an
officially recognized “party” in a current election year without having to poll a specified
amount of votes in the preceding election. A-148 ¶ 15. Considering these factors
together, the District Court found:
New York is the only state in the nation that allows a voter to enroll only in an officially recognized political party and allows a political organization to qualify as a recognized party based only on the results of one election that occurs every four years. As a result, if a political party in New York fails to meet the 50,000 vote threshold in a race for governor, it cannot reap the significant associational benefits of the state’s voter enrollment scheme . . . for the next four years, even if it fields (or succeeds in electing, for that matter) candidates for statewide office during that period. And since the local boards purge the enrollment status of members as soon as the State Board certifies that Party status has been lost, the organization must start enrolling members again from scratch if it later regains Party status.
SPA-7. For good reason, the District Court concluded that “New York’s voter
enrollment scheme places ‘the most severe restriction on enrollment for parties not
entitled to their own primary of any state.’” Id.
B. The Political Parties’ Use of Voter Lists and Party Enrollment Information
All of the parties that have official “party” status rely heavily upon voter lists
provided by county boards of elections for at least four purposes: organizing, education
and advocacy on issues, fundraising, and “get out the vote” or “GOTV” operations.
2 The other two states are Iowa and Kansas. Id.; see A-60:3 – A-74:6; PASA-61. There are 21 states that do not allow party enrollment at registration (unlike New York), but in those states open primaries allow voters to vote in a political party’s primary election without prior enrollment. A-148 ¶ 14; PASA-61; A- 60:3 - A-61:11. The District of Columbia and 29 states (including New York) inquire as to political party affiliation on their voter registration forms. A-147 ¶ 11; A-61:12-21.
5 1. Party Organizing
Green Party officials affirmed under oath that they use party enrollment
information from the voter lists as the starting point for virtually all of their organizing
activities, including:
• identifying supporters in specific communities across the state (A-155 ¶ 6; A-226- 231; A-239 ¶ 8);
• mailing organizational meeting and event notices and contacting members via telephone (A-226-231; A-158 ¶ 15(a); A-238-39 ¶¶ 7-8);
• mailing volunteer forms to interested party members (A-158 ¶ 15(g));
• recruiting petitioners for party candidates (A-231 ¶ 19);
• urging absentee voters to obtain absentee ballots to support the party (A-158 ¶ 15(f));
• conducting outreach, education, and discussion of issues (A-227-28 ¶ 9); and
• determining the demographic profile of party members (through date of birth data included in the lists) in order to design party literature, adopt position platforms, and develop advertising to appeal to current and potential members (A-231-32 ¶ 21).
See also A-19:14 – A-33:4. The District Court carefully considered and cited the extensive testimony on the ways in which the Green Party (and other recognized parties)
“made significant use of the enrollment lists,” “how invaluable those lists would be [to the unrecognized Libertarian and Marijuana Reform Parties] 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.’” SPA-10-11; SPA-44-45; see also A-19-25; A-
25:20 – A-28:23; A-29-33; A-291.
Rachel Treichler, a Green Party organizer from Steuben County, used the voter lists with party enrollment information to call the registered Green Party voters in that
6 county. A-227 ¶ 7. Through this process, she not only organized the local Green Party chapter with regular meetings, but also obtained petitioners to assist her in gathering signatures for her own congressional candidacy as a Green Party candidate. A-227-29.
She oversaw a similar organizational process in Chemung, Schuyler, and Yates Counties.
A-230. Green Party members have also used the voter lists to recruit members to attend public hearings, lobby elected representatives, and participate in demonstrations in New
York State and in Washington. A-158.
The Green Party’s evidence further showed that these organizational activities depend squarely upon voters having the opportunity to register as party members, and the parties having access to current voter enrollment information from county boards of elections. Current voter registration information is particularly important to the Green
Party because many of its voters are young, more mobile than older voters, and thus difficult to identify. A-231 ¶ 21. Without party enrollment information in voter lists, a political party is severely disadvantaged in its efforts to organize and build support. A-
19:14 – 33:4; A-146 ¶ 8; A-148 ¶ 16; A-56:12 – A-58:23; A-72:24 – A-74:15.
The State Board presented no evidence to rebut this record.
2. Education and Advocacy on Issues
The evidence also demonstrated that voters’ enrollment in a party at registration, and that party’s access to such voter information in the voter lists, facilitate issues-based communications between voters, and between voters and party officials. For example, the Green Party has used voter lists from county boards of elections to educate Green
Party voters about the threat posed by the Indian Point nuclear power plant in
Westchester County; universal health care; New York State tax policies, and other issues.
7 A-158 ¶ 15. The Ontario County Green Party used voter lists to organize a peace rally to
address the international issues posed by terrorism and the situation in Iraq. A-230 ¶ 17.
Party members have used voter lists to invite members to discussions about civil liberties,
racism, and reparations for slavery. A-239 ¶ 7. These targeted mailings and meetings on
issues have educated voters, while reaffirming the recipient’s association with and ideological connection to the Green Party. A-21:15 – 22:17; A-158 ¶ 15; A-229-30 ¶¶
16, 18.
The State Board presented no evidence of any kind to rebut this record.
3. Fundraising
The Green Party, as well as the Democratic and Republican Parties, use voter lists to solicit contributions (to candidates and the party) from voters enrolled in a party. A-
231 ¶ 19; A-146-47 ¶ 9. Funds raised through such solicitations not only support further outreach, but also help party candidates compete and prevail in elections, a necessary step in building a party. In short, the voter lists – and particularly the party enrollment information therein – lie at the heart of critical fundraising activities that maintain and build a political party over time. A-23:9-15.
The State Board presented no evidence of any kind to counter this evidence.
4. Get Out the Vote (“GOTV”) Operations
The Green Party and the official “parties” in New York use voter lists with party enrollment information to contact voters via telephone and mail shortly before Election
Day to encourage them to vote for their candidates. A-146-47 ¶ 9; A-58 ¶ 15. Without information about party enrollment, the Green Party would be unable to target new registrants for GOTV operations designed to increase Green Party voter turnout. As a
8 result, Green Party candidates would have less chance of success on Election Day – an effect that will only increase with each passing year, as the lists of currently registered
Green Party voters grow increasingly stale. A-29; A-161.
The State Board presented no evidence of any kind to rebut this record.
C. The Importance of Party Enrollment to Voters’ Political Association
Party enrollment not only provides critical information to parties but also serves as an important vehicle for voters’ political participation and expression. By enrolling in a political party, and thereby ensuring that party officials will obtain their names and addresses, voters guarantee that they will receive from party officials calls or notices about upcoming meetings and invitations to support the party through petitioning, fundraising, or other advocacy. A-146 ¶ 9; A-158 ¶ 15; A-227-30; A-239. Without such communications, many voters would not learn of opportunities to congregate, debate, and advocate with fellow party members. A-155 ¶ 6.
In addition, the act of officially enrolling in a party is itself an expression of political viewpoint. A-238 ¶ 4; A-234 ¶¶ 4-5. Without the ability to choose a political party, the voter is robbed of this significant avenue for expression. For example,
Plaintiff-Appellee James Lane had never registered to vote, although he was already in his 30s, because he felt disillusioned with the two major parties and had no satisfactory options. A-238. In 2000, however, he became inspired by Ralph Nader’s campaign for president and by the Green Party’s platform, and enrolled to vote as a Green Party member. Without the option to enroll in the Green Party, Mr. Lane would not have registered to vote at all. Id.
9 Plaintiff-Appellee Shannon M. Houlihan is a registered Democrat living in
Chestertown in Warren County, New York. A-233-34. She has become disillusioned with the Democratic Party, however, and recently became the Chairperson of the
Adirondack Greens, a local Green Party group. Despite her desire to enroll as a Green
Party voter, she fears that, if she so enrolled, her party enrollment information would be replaced by local officials with a “blank.” Id. Without court intervention, Section 5-
302.1 would foreclose her political expression through Green Party enrollment.
The State Board presented no evidence of any kind to rebut this record.
D. The Green Party
The Green Party has been active in New York State since the mid-1980s, and was officially organized as the Green Party of New York State in 1990. A-154 ¶ 2. The
Green Party’s distinctive political viewpoint and principled stands on issues such as environmental protection, peace, racism, and universal health care attract thousands of voters, many of whom have never been politically active or motivated to vote by the two major parties. A-238 ¶¶ 3-4. The Green Party has a particularly powerful appeal to young voters on college campuses; approximately one third of New York’s Green Party’s voters are under the age of 24. A-154 ¶ 2.
In 1998, the Green Party received 50,000 votes for its gubernatorial candidate, and thereby obtained official “party” status. A-154 ¶ 9. As an official “party,” the Green
Party could enroll voters as members of the Green Party on New York’s voter registration form and obtain the lists of enrolled Green Party voters from each county board of elections in New York State. The impact of this ability to enroll voters was immediate: the numbers of enrolled Green Party members grew steadily from a baseline of 1,492 in
10 1999 to 29,528 in November of 2002. A-291; SPA-9. In the words of the Green Party’s
Chairman: “Having the ability for people to enroll has been essential to the growth of the
Green Party membership in New York State.” A-26:19-21; A-25:20 – 26:18.
In 2000, the Green Party received over 244,000 votes for its presidential candidate
in New York State. A-159 ¶ 17. In 2001, the party ran over 150 candidates for political
offices in New York State – a national record for state Green parties. A-160 ¶ 20. In
2002, the Green Party’s candidate for governor received approximately 42,000 votes – a
substantial showing, but short of the 50,000 threshold needed to maintain the Green
Party’s official “party” status under New York law. Id. ¶ 25. Absent judicial
intervention, notwithstanding this history of voter support, the Green Party would have
lost its ability to enroll and identify Green Party voters.
The State Board presented no evidence of any kind to rebut this record.
E. The Intervenor Political Parties
The District Court heard extensive testimony from officials of the intervenor
political parties – the Liberal, Right to Life, Libertarian, and Marijuana Reform Parties –
concerning their history3, significant support among voters in New York State4, and the
severe burdens placed on these political parties by New York’s voter enrollment scheme.5
The State Board presented no evidence to rebut the record established by the intervenors.
3 See, e.g., A-387-89, A-410:11-14(Liberal); A-421-23(Right to Life); A-433-34(Marijuana Reform); A- 456:12(Libertarian). 4 See, e.g., A-387-89, A-392-93, A-405(Liberal); A-423(Right to Life); A-437-38, A-440:23 - 442:21, A- 443:10 - 447:8(Marijuana Reform); A-476:14 - 477:4, 486:7 - 487:6(Libertarian). 5 See, e.g., A-382, A-390-91, A-395, A-403(Liberal); A-425-27(Right to Life); A-439:15-22; A-449:6 - 451:12(Marijuana Reform); A-476:14 - 477:4, A-486:7 - 487:6(Libertarian).
11 SUMMARY OF ARGUMENT
The Plaintiff Parties seek affirmance of a modified preliminary injunction against
enforcement of Section 5-302.1 of the New York Election Law. The extensive and
uncontroverted record in this case fully supports the factual findings underlying the
District Court’s conclusions that Section 5-302.1 would, if enforced, impose a severe and
discriminatory burden upon those parties’ First Amendment rights and irreparably harm
their efforts to create meaningful alternatives to the official “parties” in New York. The
District Court also applied the correct legal standard when evaluating the Plaintiff
Parties’ constitutional claims, requiring – and finding – a showing of irreparable harm
and likelihood of success on the merits. The District Court’s order preliminarily
enjoining Section 5-302.1 was, therefore, well within the range of permissible decisions in this case and should be upheld. See Point I.
At two full-day hearings, the District Court heard and considered testimony from officers and members of the Plaintiff Parties and a lone witness for the State Board. The
Plaintiff Parties introduced uncontroverted evidence establishing that, absent relief,
Section 5-302.1 would severely burden their associational rights and deny them access to voter enrollment information available to official “parties.” The State Board never suggested that those effects would not occur. The State Board’s objections to the District
Court’s finding of irreparable harm are baseless for this reason and because the Plaintiff
Parties’ First Amendment allegations warrant such a finding, even without any evidentiary showing.
Because the Plaintiff Parties established a severe and discriminatory burden on their constitutional rights, the State Board was required to demonstrate a compelling state
12 interest in imposing that burden. The only interest even identified by the State Board below – a concern for voter confusion – was not supported by any evidence and could, in any event, be easily addressed with registration application instructions, or in the registration form itself. The State Board’s attempt to invoke a second interest not raised below – its interest in using voter enrollment information for administration of privileges afforded only to official “parties” – is both procedurally improper on appeal and substantively inconsistent with its burden of production: how the State Board wants to use that information is irrelevant; the onus is on the State Board to justify denying it to the Plaintiff Parties. Finding no interest, much less a compelling interest, that could offer such justification, the District Court properly found that the Plaintiff Parties were likely to succeed on their claims under the First and Fourteenth Amendments.
The State Board’s objections to the testimony of Richard Winger, the Green
Party’s expert, are raised for the first time on appeal and are, in any event, meritless. Mr.
Winger’s testimony concerning the voter enrollment schemes of the 50 states and the relative burdens placed on minor parties by such schemes was directly relevant to the
District Court’s evaluation of the burdens imposed by New York’s challenged enrollment scheme. In addition, his testimony remained fully within the areas in which he was properly qualified as an expert by the District Court. See Point II.
Finally, the District Court properly exercised its remedial powers in crafting a narrowly drawn remedy that balances the interests of voters, political parties, and the
State Board. The modified preliminary injunction preserves on the face of the voter registration form the statutory distinction between official “parties” (in which voters may enroll by selecting a “party”-specific check-off box) and the Plaintiff Parties (in which
13 voters may enroll by writing in their choice on an “Other” line). The District Court’s order also provides the State Board with clear guidance for county elections officials and awards relief to the Plaintiff Parties for only as long as they retain a modicum of support among voters. The Legislature remains free to change the form, and the rights of unofficial parties, within the constraints of the Constitution. See Point III.
ARGUMENT
I. THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION IN GRANTING A PRELIMINARY INJUNCTION.
The District Court granted a preliminary injunction against enforcement of
Section 5-302.1 after finding that the Plaintiff Parties would suffer irreparable harm absent such relief and that they had demonstrated a likelihood of success on the merits of their constitutional claims. Extensive and uncontroverted testimony from the Plaintiff
Parties proved that Section 5-302.1 would, if enforced, impose a severe burden upon their associational rights and irreparably harm their efforts to compete for voters and for a voice in New York politics. Even without any evidentiary showing, moreover, a finding of irreparable harm is properly presumed when First Amendment violations are alleged.
In response, the State Board failed to demonstrate any compelling, or even important, state interest to justify the severe and discriminatory burden placed on the
Plaintiff Parties’ associational rights. The District Court properly rejected the only interest proffered by the State Board below – a concern for voter confusion – because it had no evidentiary support, and because any conceivable confusion could be easily prevented with voter registration instructions, or on the form itself, as is done in 26 other states that allow new registrants to enroll in unofficial political parties. The District
14 Court thus properly held that the Plaintiff Parties would very likely succeed on the merits of their First and Fourteenth Amendment claims against enforcement of Section 5-302.1.
A. An Award of a Preliminary Injunction Is Reviewed for Abuse of Discretion.
A district court’s grant of a preliminary injunction may be overturned only for abuse of discretion. Under that standard, the trial court “is empowered to make a decision – of its choosing – that falls within a range of permissible decisions.” A district court
‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision – though not necessarily the product of a legal error or a clearly erroneous factual finding – cannot be located within the range of permissible decisions.
Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001). “The fact that [this
Court] may disagree with the district court's factual findings, in itself, does not render those findings clear error. Rather, in order to clear this threshold, any disagreement on
[this Court’s] part must be accompanied by a firm belief that the district court was mistaken.” Wisdom Import Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 108 (2d Cir.
2003). The District Court made no error, much less a clear error, in the factual findings that the Plaintiff Parties would suffer irreparable harm absent relief and that Section 5-
302.1 imposed a severe burden on their associational rights.
The State Board correctly identified the legal standard for award of a preliminary injunction against governmental action. Br. at 8-9. The Plaintiff Parties must show that they will likely suffer irreparable harm absent injunctive relief and that they will likely win on the merits of their claims. Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir.
1996); Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989). As
15 the Plaintiff Parties show, the District Court correctly applied that legal standard to the
Plaintiff Parties’ request for a preliminary injunction. SPA-15.
B. The District Court Properly Found That Plaintiffs Would Suffer Irreparable Harm Without a Preliminary Injunction.
The State Board’s argument that the District Court erred in finding irreparable
harm fails for three principal reasons. First, the District Court was entitled to rely on a
presumption of irreparable harm, because the Plaintiff Parties have alleged violations of
constitutional rights. Second, even without that presumption, the District Court had
abundant and uncontroverted evidence from officials and members of the Plaintiff Parties
on which to base its finding of irreparable harm. Finally, the Plaintiff Parties
demonstrated that Section 5-302.1 interacts with other provisions of New York Election
Law to impose the most severe limits of any state on the First and Fourteenth
Amendment rights of minor parties and their adherents.
This Court has firmly established that irreparable harm may be presumed – without further evidence – where plaintiffs have alleged violations of constitutionally protected rights, particularly violations of the First Amendment. See, e.g., Beal v. Stern,
184 F.3d 117, 123-24 (2d Cir. 1999) (presuming irreparable harm and proceeding directly to likelihood-of-success standard where First Amendment violations alleged); Bery, 97
F.3d at 693-94 (“By the very nature of their [First Amendment] allegations, . . . appellants have met the first prong of the test.”); Jolly v. Coughlin, 76 F.3d 468, 482 (2d
Cir. 1996) (“[T]he alleged violation of a constitutional right . . . triggers a finding of irreparable harm.”). The District Court thus properly found that the Plaintiff Parties’ constitutional allegations were sufficient without more to show that they would suffer irreparable harm absent relief. SPA-16.
16 But the District Court did not need to rely upon that presumption to conclude,
correctly, that the Plaintiff Parties would suffer irreparable harm if Section 5-302.1 were
enforced, because there was extensive and uncontroverted evidence on which to base that
finding. SPA-21. The current Green Party chair explained in detail the broad range of
party-building activities that depend upon the Party’s access to current lists of enrolled voters and affirmed that “the Green Party will suffer severely because we will be unable to carry on the organizing activities, fundraising, issues advocacy, and voting operations that all depend upon such information.” A-161; see also A-19-25; A-29-33; A-56:12 –
58:23; A-72:24 - 74:15; A-148 ¶ 16; A-158-59; A-232 ¶ 22. Officials from the four intervenor political parties echoed this testimony, demonstrating the enormous burden placed on minor parties that have shown a strong modicum of support but are not allowed to enroll voters or obtain lists of such enrolled voters to organize and build their parties.
See infra at 11 n.3, 4, 5.
Uncontroverted evidence of the tremendous benefits provided to the official
“parties” through their right to enroll voters further supports the District Court’s finding of irreparable harm. When the Green Party obtained official recognition after the 1998 gubernatorial election, its membership of enrolled voters grew from 1,492 to 29,528 in just three years. SPA-9; see infra at 10-11. Those political parties barred from enrolling and identifying voters suffer ongoing and irreparable harm because they are not able to organize and grow on equal terms with the recognized “parties.” The Plaintiff Parties
need not be entirely decimated by New York’s voter enrollment scheme, as the State
Board suggests, Br. at 9-10, to demonstrate that they will be irreparably harmed absent
injunctive relief.
17 Moreover, absent court intervention, the voters of New York State would have suffered an immediate and severe threat to their political participation and expression.
The party enrollment of voters who enrolled in a party that lost its official status would be erased against their will. A-240 ¶¶ 12-13. Voters who have not yet registered, or who plan to change their political party enrollment in the future, lose the option of political expression through enrollment in one of the Plaintiff Parties if Section 5-302.1 is enforced. A-234 ¶¶ 4-5. Such harms cannot be redressed through monetary damages.
Finally, New York State is alone in imposing such a severe burden upon minor political parties and voters who wish to enroll in such parties. Quoting the Green Party’s expert, Richard Winger, the District Court expressly found that “New York’s voter enrollment scheme places ‘the most severe restriction on enrollment for parties not entitled to their own primary of any state.’” SPA-7. New York State is one of only three states that “limit the voters’ enrollment choices to parties that have a received a certain level of political support” as defined by election results and “the only state in the nation that allows a voter to enroll only in an officially recognized political party and allows a political organization to qualify as a recognized party based only on the results of one election that occurs every four years.” Id. The District Court properly relied upon this comparison with other jurisdictions in assessing the severity of the harm the Plaintiff
Parties would suffer. See, e.g., Rockefeller v. Powers, 78 F.3d 44, 45 (2d Cir. 1996)
(striking down ballot access requirements under First and Fourteenth Amendments based, in part, upon evidence that “New York ballot access rules are far more burdensome than those adopted by virtually every other state”).
18 The State Board now attempts to discredit this evidence by arguing that the
Plaintiff Parties remain “actively involved in fielding and supporting candidates and recruiting members.” Br. at 9. The Board cites no legal authority to support its suggestion that a political party suffers no harm unless it is prevented from placing candidates on the ballot, no matter what the damage to its organizing, advocacy, fundraising, and GOTV efforts. As the District Court remarked, success in running candidates “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.” SPA-45. For these reasons, the District Court plainly did not err in finding that the Plaintiff Parties would suffer irreparable harm absent preliminary injunctive relief.
C. The District Court Properly Found a Substantial Likelihood of Success on the Merits.
The Plaintiff Parties provided more than sufficient evidence to demonstrate that they would likely prevail on the merits at trial. They demonstrated – without evidentiary challenge – that New York State’s voter enrollment scheme imposes uniquely severe burdens on their constitutional rights. In response, the State Board failed to demonstrate even an important state interest served by that scheme, much less the compelling interest required to justify such burdens. The only interest invoked by the State Board below – a concern for voter confusion – was not supported by any evidence. Moreover, any conceivable confusion could be easily avoided in the instructions to the voter registration application, or by the form itself, as is done in 26 other states that allow enrollment in unqualified political parties. Without any basis for challenging the District Court’s refusal to credit voter confusion as a sufficient justification for Section 5-302.1, the State
19 Board now asks this Court to consider a purported state interest never raised in the
District Court. Eleventh-hour efforts notwithstanding, the State Board has failed to show
that the District Court abused its discretion in preliminarily enjoining that law.
1. The District Court Properly Subjected Section 5-302.1 to Strict Scrutiny.
As the District Court recognized, the standard of review applicable to electoral
restrictions varies with the severity of the burdens imposed by the challenged law.6 To ascertain the standard applicable to the Plaintiff Parties’ challenge of Section 5-302.1:
[a court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff[s] seek[] to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden plaintiffs’ rights.
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Where “state election laws subject speech, association, or the right to vote to ‘severe’ restrictions, the regulation must be
‘narrowly drawn to advance a state interest of compelling importance.’” Lerman v. Bd. of Elections, 232 F.3d 135, 145 (2d Cir. 2000) (quoting Burdick v. Takushi, 504 U.S. 428,
434 (1992)), cert. denied, 533 U.S. 915 (2001). Where a state law imposes only
“reasonable, nondiscriminatory restrictions” upon these rights, “the State’s important
6 The State Board erroneously suggests that courts apply “the intermediate level of scrutiny when examining state election restrictions which do not burden a party’s access to the ballot but only provide some burden to a group’s associational rights.” Br. at 13. To the contrary, whether a court applies strict or intermediate scrutiny depends upon the severity of the burden imposed on the plaintiffs’ First Amendment rights – associational or otherwise – rather than on whether the restriction involves access to the ballot. Courts have applied the strictest level of scrutiny to restrictions that do not directly restrict access to the ballot based upon the finding that such provisions impose a severe burden on the plaintiff’s associational rights. See, e.g., Republican Party of Conn. v. Tashjian, 770 F.2d 265, 278 (2d Cir. 1985) (Connecticut closed primary law), aff’d, 479 U.S. 208 (1986); Schulz, 44 F.3d at 60 (distribution of registered voter lists).
20 regulatory interests are generally sufficient to justify the restrictions.” Burdick, 504 U.S. at 434 (internal quotation marks omitted).
Restrictions on “‘core political speech’, as opposed to the ‘mechanics of the electoral process,’ . . . so plainly impose a ‘severe burden’ that application of strict scrutiny clearly will be necessary.” Lerman, 232 F.3d at 146. In particular, laws that inhibit a party’s communications with voters, or restrict a party’s ability to organize and advance its interests, severely burden the rights of association and speech. See, e.g.,
Anderson, 460 U.S. at 794 (“By limiting the opportunities of independent-minded voters
to associate in the electoral arena to enhance their political effectiveness as a group, such
restrictions threaten to reduce diversity and competition in the marketplace of ideas.”);
Lerman, 232 F.3d at 146-47 (striking witness residence requirement restricting minor
party’s circulation of petitions as unconstitutional burden on core political speech).
State election laws that, on their face, burden a minority group’s right to vote and
corresponding associational rights -- are also subject to strict scrutiny under the Equal
Protection Clause. See, e.g., Illinois State Bd. of Elections v. Socialist Workers Party,
440 U.S. 173, 184 (1979); Green Party of N.Y. v. Weiner, 216 F. Supp. 2d 176, 188
(S.D.N.Y. 2002). Minority groups include minor political parties and not simply racial or
ethnic groups. Williams v. Rhodes, 393 U.S. 23 (1968) (striking down election laws
governing selection of Presidential electors that imposed unequal burdens on minor
parties); Council of Alternative Political Parties (“CAPP”) v. State, 781 A.2d 1041, 1052
(N.J. Super. Ct. App. Div. 2001) (invalidating voter registration provisions functionally
identical to Section 5-302.1 because of unequal burden imposed on rights of minor
parties and voters). Even if New York State could choose not to maintain party
21 enrollment information for any political party or voter, once it has chosen to do so, it
cannot withhold such information only from unofficial parties without a compelling justification. For this reason as well, the District Court properly applied strict scrutiny to
Section 5-302.1.
2. The Plaintiff Parties Demonstrated, and the State Board Did Not Even Attempt to Contest, the Severe Burdens Imposed by Section 5-302.1
The evidence demonstrating that the Plaintiff Parties would be irreparably harmed
absent preliminary relief also establishes that Section 5-302.1 imposes severe burdens on
their associational rights. The record shows that the challenged provision seriously
impairs the Plaintiff Parties’ organizing, advocacy, fundraising, and GOTV efforts –
activities essential to building a party and keeping it vital – and voters’ rights of political
expression and affiliation through party enrollment. See infra at 5-11. The State Board
did not challenge that evidence below. Indeed, as the District Court noted, the “State
Board has never even suggested that these effects will not occur.” SPA-21. The District
Court thus properly found that Section 6-302.1 severely burdened the Plaintiff Parties’
First Amendment rights and required that the State Board articulate a compelling state
interest to justify the extreme burden.
3. The State Board Cannot Identify Any State Interest to Justify the Severe Burden on the Plaintiff Parties’ First Amendment Rights.
The State Board purports to justify the severe burdens imposed by Section 5-
302.1 by invoking two state interests. The first – the interest in protecting minor party
voters from their own potential confusion – was raised below and properly rejected. The
second – elections officials’ interest in using enrollment information when administering
procedures reserved exclusively to official “parties” – is raised for the first time on appeal
22 and relies on factual assertions unsupported by any record evidence. Moreover, the
second alleged interest may explain why elections officials collect and maintain
enrollment information for official “parties,” but it does nothing to justify their refusal to
collect and maintain the same information for the Plaintiff Parties. It therefore does
nothing to justify the state’s discriminatory treatment of minor parties in its voter
enrollment scheme. Because there is no compelling, or even important, state interest to
support Section 5-302.1, this Court should affirm the District Court’s award of a
preliminary injunction.
a. The State Board Cannot Justify Section 5-302.1 by Appealing to an Interest in Preventing Voter Confusion.
The State Board reiterates its argument, considered carefully and rejected by the
District Court, that failing to enforce Section 5-302.1 and enrolling voters in any of the
Plaintiff Parties would confuse voters because these political parties do not enjoy the full
privileges of official “party” status. Br. at 16-17. The District Court’s rejection of this
justification was proper for at least four reasons. First, the State Board offered no
evidence to support its stated concern that voters would, in fact, be confused by an
“Other” line on the registration form, allowing them to enroll in an unofficial political
party. SPA-46-49.7 For this reason alone, the District Court properly rejected this
justification.
Second, the evidence fully demonstrated how to avoid confusion over which
parties were entitled to the full “privileges” of official “parties,” including the right to
7 The State Board did submit a declaration from a Westchester commissioner of elections, but her testimony addressed not voters’ confusion but the alleged burden on elections officials of introducing an “Other” line. She expressed concerns about reading voters’ handwriting and about explaining the enrollment options to registrants. The District Court properly discounted her fears, because its preliminary injunction would not require officials to record illegibly written enrollment preferences or to explain those options. Officials would simply record legible enrollments in any one of the Plaintiff Parties. See SPA-30.
23 hold primary elections. Previous versions of the voter registration form, as well as forms
used in 26 other states, explain easily to voters both in instructions and on the form itself
that “in order to vote in a primary election, you must be enrolled in one of these [official]
parties [with an actual box by their name].” SPA-35; SPA-37; A-62:7-9; A-77:6 - 79:7;
A-295-347. The State Board did not – and could not – show voter confusion in any of the majority of states that allow enrollment in parties without official status. As the
District Court properly noted, instructions and the form itself can, and do, readily eliminate any threat of voter confusion. See SPA-28.
Third, the modified preliminary injunction in this case plainly preserves on the face of the registration form the distinction between official “parties” and the Plaintiff
Parties. That order requires only that the State Board follow 26 other states and include on the registration form an “Other” line for voter enrollments in any of the Plaintiff
Parties. This simple addition alleviates the severe burdens placed on the Plaintiff Parties, while preserving for voters the clearly marked boxes for enrollment in an official “party” and the information that enrollment in an official “party” is necessary if the registrant wishes to vote in primary elections. Further, if the Legislature determines that some modifications to New York’s Election Law are necessary to ensure that the instructions or registration application forms do not cause any conceivable confusion, it remains entirely free to make any modifications that are consistent with the Constitution.
Finally, the State Board’s concern is at bottom an insulting and paternalistic excuse to preclude supporters of the Plaintiff Parties from exercising their constitutional rights. Supporters of the Plaintiff Parties are no less intelligent than supporters of official
“parties,” who understand that enrollment in an official “party” is necessary to vote in
24 primaries, without erroneously concluding that official parties always hold primaries.
SPA 25-26; see also A-97. If the alleged confusion of the Plaintiff Parties’ supporters were a disease worthy of concern, surely the cure – robbing voters of their enrollment rights and denying enrollment information to the parties that the voters support – would be considerably worse. See SPA-25. The District Court properly refused to protect voters from themselves.
b. The State Board Cannot Justify Section 5-302.1 by Ignoring Its Burden of Production.
For the first time on appeal, the State Board attempts to justify Section 5-302.1 by arguing that voter lists are kept for “no other State purpose” than “the objective, efficient and fair administration of elections.” Br. at 15. Specifically, those lists are allegedly
“used to determine the number of signatures needed on [an official party’s] petitions, to verify the validity of signatures on the petition . . . and, on primary day, to assure that each voter casts their ballot in the primary of the party of enrollment.” Id. Because this argument was not raised below, and it rests on factual assertions concerning the practices of county boards of elections that are not supported by any record evidence, this Court need not consider this argument. Caiola v. Citibank, N.A., 295 F.3d 312, 327-28 (2d Cir.
2002).
More fundamentally, the State Board’s argument turns strict scrutiny on its head.
The Plaintiff Parties have established that Section 5-302.1 imposes severe burdens in their First Amendment rights. At this point, it is not up to the State Board to show how it uses voter enrollment lists, but rather to produce evidence of interests that serve “as justifications for the burden imposed by its rule.” Anderson, 460 U.S. at 789 (emphasis added). “[T]he Court must not only determine the legitimacy and strength of each of
25 those interests; it also must consider the extent to which those interests make it necessary
to burden plaintiffs’ rights.” Id. (emphasis added). The State Board’s desire to maintain
enrollment lists only for administration of other privileges afforded to official parties is
entirely irrelevant. To defend Section 5-302.1, what the State Board must establish is a
compelling interest that justifies the burden imposed on the Plaintiff Parties by refusing
to enroll their supporters and to provide that enrollment information. The State Board
has not – and cannot – identify any state interest, much less a compelling interest, that
justifies its discriminatory policy of providing official “parties” with enrollment
information while denying it to the Plaintiff Parties. See Schulz, 44 F.3d at 60-61. By
any measure, the State Board has failed to identify any interests that “make it necessary
to burden plaintiffs’ rights,” Anderson, 460 U.S. at 789, and has not shown that the
challenged policy is “narrowly drawn to advance a state interest of compelling
importance.’” Lerman v. Bd. of Elections, 232 F.3d 135, 145 (2d Cir. 2000).
Moreover, the District Court found that
even if the burdens imposed by the challenged provisions of New York law were not severe, and the foregoing strict scrutiny were not applicable, New York would still be required to justify the provisions as a “reasonable way of accomplishing” a “legitimate interest.” The challenged provisions do not withstand even that less rigorous standard.
SPA-34 (internal citations omitted); see also SPA-47 (“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.”) (emphasis added). In short, the State Board cannot point to any standard under which the evidence presented could justify the challenged voter enrollment scheme.
26 This Court has specifically considered and rejected the argument that minor parties may be burdened unequally with respect to voter enrollment without such a compelling justification. Schulz, 44 F.3d at 60-61 (invalidating less burdensome discriminatory rule that required only minor parties to pay for voter lists). The voter lists at issue in Schulz were the same as those at issue in this case. The discriminatory operation of Section 5-302.1, however, is significantly more severe in its destructive impact on minor parties than the provision found unconstitutional in Schulz. Whereas in
Schulz the Libertarian Party faced simply an added cost of obtaining and copying the voter lists, here the state’s law removes from the voter lists the very information shown to make the lists so valuable to political parties, i.e., the party affiliation chosen by each voter. Far more than copying costs, the removal of party enrollment information and the inability to enroll voters robs parties like the Green Party of the voter information they need to organize and associate as party members. See also Baer v. Meyer, 728 F.2d 471,
475 (10th Cir. 1984) (striking provision virtually identical to Section 5-302.1 because
“access to minimal information about political party affiliation is the key to successful political organization and campaigning”); CAPP, 781 A.2d at 1051 (striking provision virtually identical to Section 5-302.1 because, without affiliation information, “the voter registration lists provide little, if any, useful information to plaintiffs”).
Courts outside this Circuit have generally struck down laws that preclude voters from enrolling in a minor party, even if the party in question never obtained recognition by the state – recognition that three out of the five Plaintiff-Parties had until the 2002 election. In CAPP, the court struck down a New Jersey voter enrollment scheme like that challenged here, because it “impose[d] a significant handicap on the alternative parties’
27 ability to organize while reinforcing the position of the established statutory parties.” 781
A.2d at 1045, 1051. Weighing this burden against the state’s purported justifications for the challenged scheme, the court found that
the failure of the Legislature to recognize that alternative political parties are entitled to the same opportunity to have their followers declare their affiliation and to have the county registrars maintain and disseminate this information to alternative parties on the same terms as the [Democratic and Republican parties] constitutes an impermissible burden on their First Amendment rights and denies to plaintiffs the equal protection of the laws.
Id. at 1052.
In Baer v. Meyer, the Tenth Circuit struck down a Colorado election law functionally identical to Section 5-302.1. After determining that the administrative burden of recording the new party affiliation information requested by the two the
Plaintiff Parties would be merely “nominal,” the court found that these two parties and their supporters were “unnecessarily and unfairly burdened by the State’s refusal to permit them to designate their support on registration forms and to include that designation in the computer information made available” to them. See Baer, 728 F.2d at
476. In Baer, as in CAPP, the plaintiffs were not officially recognized as parties by the state. Id. at 473.
In Atherton v. Ward, the district court invalidated an Oklahoma statute virtually identical to Section 5-302.1, which was being challenged by a party not recognized by the state. See Atherton v. Ward, 22 F. Supp. 2d 1265, 1267-68 (W.D. Okla. 1998). The court assessed the burden that Oklahoma’s law placed on minor parties in terms applicable to
New York’s:
[S]uccess in modern political organization and electoral campaigns depends on a group’s ability to seek particularized support by targeting an appropriate audience and focusing its efforts. Access to computerized
28 information about the political affiliation of registered voters is a great help, if the data indicates the particular party preference of individual voters. . . . Without necessarily intending to discriminate against voters and candidates who belong to the [unrecognized] Libertarian Party, Oklahoma prevents them from obtaining and using particularized voter information in the manner enjoyed by those who belong to recognized political parties. This restriction places Libertarians at a significant political disadvantage.
Id. at 1268. Noting that the computerization of local voter records would render the
Oklahoma defendants’ burden of entering new voter affiliation information
“insubstantial” when compared to that imposed upon the plaintiffs, the court required the defendants to allow voters to enroll in the state’s Libertarian Party, and to record such information in voter lists. Id. at 1268-69.8
Far from serving any compelling or even important state interests, Section 5-
302.1 serves only to deny the Plaintiff Parties access to resources needed to organize, associate, and communicate with their members – resources offered to New York’s official “parties.” Without the county boards of elections’ enrollment of voters and provision of party-enrolled voter lists, Section 5-302.1 imposes a severe burden on the
Plaintiff Parties’ associational rights, a burden that enhances the advantage already enjoyed by official “parties.” On appeal, moreover, the State Board does not even challenge the District Court’s conclusion that Section 5-302.1 violates the Equal
8 The only cases in which courts rejected challenges to provisions similar to Section 5-302.1 involved states that had not yet computerized their voter records. The courts found that the severe burdens on plaintiffs were outweighed by the administrative difficulty of recording enrollments without fully computerized record-keeping systems. Rainbow Coalition of Okla. v. Okla. State Election Bd., 844 F.2d 740, 747 (10th Cir. 1988) (rejecting challenge to state provision where voter registration rolls not fully computerized at time of trial); see also Iowa Socialist Party v. Nelson, 909 F.2d 1175, 1180-81 (8th Cir. 1990) (same); McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1228-29 (4th Cir. 1995) (rejecting the Libertarian Party’s challenge to retroactive removal of voters’ party enrollment information because of state’s interest in “administrative simplicity”). But “all of the county boards of elections in New York State now have fully computerized databases in which officials enter and store information regarding voters registered within the jurisdiction, including each voter’s party enrollment information.” A-365; see also A- 29:24 – A-25:1. To its credit, the State Board has never suggested that the administrative burden of enrolling voters and maintaining enrollment information would justify Section 5-302.1. See SPA-33 n. 15.
29 Protection Clause. For these reasons, the District Court properly concluded that the
Plaintiff Parties had a likelihood of success on the merits of the First Amendment and
Equal Protection claims.
II. THE TESTIMONY OF THE GREEN PARTY’S EXPERT WITNESS WAS RELEVANT, RELIABLE, AND PROPERLY ADMITTED IN EVIDENCE.
For the first time on appeal, the State Board argues that expert witness Richard
Winger’s “testimony both exceeded his area of expertise, and, when within his area, bore no relevance to the issue before the court.” Br. at 18.9 This Court need not consider these arguments, because they were not raised in the District Court. See, e.g., Booking v.
Gen. Star Mgmt. Co., 254 F.3d 414, 418 (2d Cir. 2001). Even if they are considered,
however, they are entirely without merit.
A district court's evidentiary rulings are reviewed for abuse of discretion, United
States v. Fabian, 312 F.3d 550, 557 (2d Cir. 2002), cert. den’d, --- U.S. ----, 123 S. Ct.
1958, 155 L.Ed.2d 871 (2003), and will be reversed only for manifest error, Luciano v.
Olsten Corp., 110 F.3d 210, 217 (2d Cir. 1997). In conducting such review, this Court must be mindful of the “wide latitude” afforded trial courts in determining whether evidence is admissible. Meloff v. New York Life Ins. Co., 240 F.3d 138, 148 (2d Cir.
2001). The “rejection of expert testimony is the exception rather than the rule,” Advisory
Committee Notes, 2000 Amendments, Fed. R. Evid. 702, and this Court’s standard for admissibility of expert testimony is especially broad. Boucher v. United States Suzuki
9 At the preliminary injunction hearing on January 16, 2003, and in written submissions thereafter, the State Board challenged the admission of Richard Winger’s expert testimony as unreliable because, it was argued, (1) Mr. Winger does not have sufficient experience in party-building activities and other areas; (2) the Court could take notice of the voter registration forms admitted into evidence and other states’ statutes without any expert summary or interpretation; and (3) there is insufficient evidence that Mr. Winger’s views or methodology are generally accepted or tested. The District Court properly rejected these arguments and admitted Mr. Winger’s testimony, and the State Board has wisely abandoned them on appeal. SPA-14 n.9.
30 Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996). Moreover, “disputes about the strength of
[an expert’s] credentials, faults in [an expert’s] use of [a particular methodology], or lack of textual authority for [an expert’s] opinion, go to the weight, not the admissibility, of his testimony.” Zuchowicz v. United States, 140 F.3d 381, 387 (2d Cir. 1998) (quoting
McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995)).
The District Court had more than sufficient evidence of Mr. Winger’s qualifications as an expert in the laws of voter enrollment and ballot access, party- building, and minor parties to admit and consider his testimony.10 See A-45-50; A-292.
Mr. Winger’s testimony concerning the voter enrollment schemes and restrictions on minor parties imposed by the 49 states other than New York was in turn directly relevant to the District Court’s evaluation of both the severity of burdens placed on minor parties by New York’s enrollment laws as well as the ease with which other jurisdictions allow more extensive party enrollment options than does New York. See infra at 18. To support its contrary argument, the State Board cites, without explanation, portions of Mr.
10 Mr. Winger’s expertise in ballot access laws and voter enrollment practices includes extensive testimony in courts in more than 30 states, where he provided precisely the kind of comparative analysis of enrollment practices and ballot access schemes, and the burdens imposed by these practices upon voters and parties, that he provided in the District Court. See, e.g., PASA-35-36 ¶¶ 31-33 (Beaver v. Clingman, CV-00-1071-F, 2003 WL 745562, at **10-11 (W.D. Okla. Jan. 24, 2003)) (Winger testimony “persuasively” comparing burdens imposed on minor parties under Oklahoma, Kansas, and California ballot access laws); Citizens to Establish a Reform Party in Arkansas v. Priest, 970 F. Supp. 690, 695 (E.D. Ark. 1996) (“Richard Winger, another expert in third party ballot access, testified regarding Arkansas’ filing deadline as it compares to the statutory schemes in other states.”); U.S. Taxpayers Party of Florida v. Smith, 871 F. Supp. 426, 429 (N.D. Fl. 1993) (Winger testimony concerning Florida’s petitioning requirements for minor party candidates compared with other states’); Dr. John Hagelin for President Committee of Kansas v. Graves, No. 92-4201-RDR, 1993 WL 719762, at **2, 10 (D. Kan. Aug. 31, 1993) (Winger testimony concerning burdens on voters and voter confusion in primary and general elections). In New York State, moreover, Mr. Winger testified by affidavit in two seminal election law cases, Schulz v. Williams, 44 F.3d 48 (2d Cir. 1994), and Molinari v. Powers, 82 F. Supp. 2d 57 (E.D.N.Y. 2000), both addressing New York election laws governing candidates’ access to the ballot or treatment of minor parties. In addition, as he explained at the hearing, Mr. Winger testified in two of the small handful of cases in this country that involved challenges to voter enrollment provisions essentially identical to Section 5-302.1, namely, CAPP and Atherton v. Ward. Indeed, it would be difficult to imagine an expert witness with more experience in the areas covered by his testimony.
31 Winger’s testimony that bore directly on these central issues. Br. at 18. For example, despite the State Board’s efforts to suggest that Mr. Winger testified extensively about the Internet, the transcript makes clear that Mr. Winger responded to a single question posed by the District Court as to whether a party’s website would “blunt the effects of this statute” by lessening the difficulties faced by minor parties and their voters in their organizing efforts. See A-74:7 - 76:2. Moreover, Mr. Winger’s testimony concerning different potential enrollment remedies and their impacts on parties and voters fell directly within the areas of expertise for which he was qualified by the District Court and which the State Board does not challenge on appeal, namely “the voter enrollment and ballot access laws and practices in the 50 states; and . . . political party organizing and party building strategies for political parties in the United States, including uses of voter enrollment information by party members and officials.” A-50:11-17; A-54:1-9. In short, the State Board points to nothing in Mr. Winger’s testimony that was either irrelevant or outside the areas of expertise in which he was properly qualified by the
District Court.
III. THE DISTRICT COURT PROPERLY EXERCISED ITS REMEDIAL POWER IN ADDRESSING THE CONSTITUTIONAL INFIRMITY OF SECTION 5-302.1
In yet another argument that was not raised below, the State Board argues on appeal that the District Court violated the separation of powers doctrine by allowing intervention by the Libertarian and Marijuana Reform Parties and granting enrollment rights to political parties that have not obtained, or no longer possess, recognition as a
“party” under state law. Br. at 20. The State Board’s arguments have no basis in this
Court’s precedents and are without merit.
32 The District Court’s modified preliminary injunction is narrowly drawn with explicit standards that limit the scope of relief and provide clear guidance to elections officials. Under that injunction, the State Board must direct county boards of elections to record enrollment information only for those voters who seek to register in the five
Plaintiff Parties and only for as long as those parties retain a sufficiently substantial modicum of support to place a candidate on the gubernatorial ballot. SPA-50. To place a gubernatorial candidate on the ballot, a political party must petition among voters across the state and gather “not less than fifteen thousand . . . of whom not less than one hundred or five per centum, whichever is less, of such enrolled voters shall reside in each of one- half of the congressional districts of the state.” N.Y. Elec. § 6-136. Three of the five political parties at issue had, until 2002, met even the higher threshold of official “party” status under New York law by obtaining over 50,000 votes in a gubernatorial election.
Moreover, the blank “Other” line on the voter registration form preserves the distinction between recognized “parties” (which enjoy check-off boxes) and the Plaintiff Parties
(which voters must write in). Further, the State Board cites no statute – nor could one be found – that in any way conflicts with the addition of an “Other” line on New York
State’s voter registration form. The District Court’s remedial order thus provides only the narrow relief necessary to redress the constitutional injuries suffered.
The injunction preserves, moreover, the Legislature’s established threshold for recognition as a “party” under the Election Law. The State Board acknowledges that the
Plaintiff Parties do not challenge that threshold, their loss of “party” status, or the ballot access limitations imposed upon political parties that are not officially recognized.11 The
11 The State Board’s citation, Br. at 20, of Johnson v. Cuomo, 595 F. Supp. 1126 (N.D.N.Y. 1984) – which did not address New York’s voter enrollment scheme – is entirely misplaced. The Johnson court heard and
33 District Court’s remedial order in no way intrudes upon the Legislature’s definition of a
“party” or the implications of that definition for access to the ballot.
In any event, if the New York State Legislature did find some aspect of the
District Court’s careful remedy objectionable, it could modify the Election Law to address its concerns, as long as such modifications are consistent with the Constitution.
In fact, state legislatures have responded to federal court rulings that struck down functionally identical voter enrollment schemes in other states by further altering their enrollment schemes. The Green Party’s expert, Mr. Richard Winger, testified to two such instances. See A-68:23-25; A-69:18-21.12
In sum, the District Court’s narrowly crafted injunction falls well within the established authority of federal courts to identify and remedy unconstitutional injuries to plaintiffs before the court. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 74
(2002) (“It is well to recall that such authority historically has been thought necessary to provide an important safeguard against abuses of legislative and executive power, . . . as well as to ensure an independent Judiciary.”) For these reasons, the State Board’s separation of powers argument is meritless. rejected a challenge solely to the ballot access restrictions for those political parties that had not obtained official “party” status. See id. at 1129-30. But as the State Board has admitted, “[t]his is not a case about ballot access or access to the ballot.” See SPA-45. 12 First, the Oklahoma legislature followed the District Court’s ruling in Atherton v. Ward, by creating a new entity, the “political organization,” meaning “an organization (political group) that has been recognized as a political party by the State of Oklahoma but thereafter has failed to retain this status by garnering the statutory percentage of votes for its candidates.” Atherton, 22 F. Supp. 2d at 1269. As reflected in Oklahoma’s voter registration instructions, voters may now write in their affiliation with such a “political organization” on the form upon registration. See A-333 at Sec. 2.1, 2.2, 2.4 (“If you register in a political organization recognized in Oklahoma. . .”); see also Okla. Stat. tit. 26, §§ 1-109(B), 4-112(A). Similarly, the Colorado legislature followed the Tenth Circuit Court of Appeals’ decision in Baer v. Mayer by amending state law to allow voters to enroll at registration in any “political organization” that has successfully placed candidates on the ballot for statewide office. See Baer, 728 F.2d at 475 (“The Secretary of State need only permit such party designation in registering if a political organization already exists in the State under its name, has recognized officials, and has previously placed a candidate on the ballot by petition.”); see also Colo. Rev. Stat. §§ 1-1-104(24), 1-2-218.5; A-305 (providing blank line for registration in political organization).
34 CONCLUSION
For the foregoing reasons, the District Court’s Memorandum and Order
Modifying Preliminary Injunction should be affirmed.
Dated: December 8, 2003 Respectfully submitted,
______JEREMY CREELAN (JC7222) Deborah Goldberg Brennan Center for Justice at New York University School of Law 161 Avenue of the Americas, 12th Floor New York, NY 10013 (212) 998-6730
Attorneys for Plaintiffs-Appellees Green Party of New York State, et al.
35