Lerman v. Board of Elections in the City of New York

232 F.3d 135, 2000 WL 1715441
CourtCourt of Appeals for the Second Circuit
DecidedNovember 9, 2000
DocketDocket No. 99-9015
StatusPublished
Cited by12 cases

This text of 232 F.3d 135 (Lerman v. Board of Elections in the City of New York) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 2000 WL 1715441 (2d Cir. 2000).

Opinion

STRAUB, Circuit Judge:

The late former Speaker of the United States House of Representatives, Thomas P. “Tip” O’Neill, was fond of saying that “all politics is local.” Tip O’Neill, All Politics is Local (1994). Through its requirement that witnesses to ballot access “designating petitions” be “resident[s] of the political subdivision in which the office or position is to be voted for,” N.Y. Elec. L. § 6-132(2) (McKinney 1998), the State of New York has attempted to elevate this political adage into an affirmative command. The Constitution, however, protects certain forms of political activity from government interference even if they transcend local political boundaries. While the state does have legitimate interests that justify regulating the electoral process— especially when it seeks to protect the integrity of that process — it cannot mandate that all political activity be “local” without demonstrating the required fit be[139]*139tween its chosen means of regulation and those legitimate ends.

We conclude that the section 6-132(2) witness residence requirement severely burdens interactive political speech and association rights protected by the First Amendment (as incorporated by the Fourteenth Amendment) without advancing any legitimate or important state interest. Accordingly, we hold this particular statutory requirement unconstitutional on its face.

BACKGROUND

John Sollazo, a registered member of the Independence Party of New York, sought to compete in the primary election held September 14, 1999, in order to gain the nomination of the Independence Party for the New York City Council seat representing the 50th Council District in Staten Island. In order for a City Council candidate’s name to appear on the primary election ballot, New York law requires that candidate to file a “designating petition” containing valid signatures from at least five percent of the registered party members within the district from which the candidate seeks election.1 See N.Y. Elec. L. §§ 6-118, 6-136(2) (McKinney 1998). In Sollazo’s case, therefore, it was necessary for him to obtain 38 valid petition signatures, representing five percent of the 760 registered Independence Party members in the 50th District. Plaintiff Anita Lerman, a resident of the 49th Council District, served as a witness to the signatures on Sollazo’s petition, witnessing a total of 58 signatures including those of Plaintiffs Angelo D’Angelo and Pio D’Agostino,2 both of whom are residents of the 50th District. Lerman, however, lives outside the 50th District. Accordingly, defendant Board of Elections in the City of New York (“NYC Board”) ruled, on August 3, 1999, that these 58 signatures were invalid, since New York law requires that designating petition signatures be witnessed by either a notary public, a commissioner of deeds, or an individual who not only is “duly qualified” to vote in New York and an “enrolled voter of the same political party” as the petition signers, but also is a “resident of the political subdivision in which the office or position is to be voted for.” N.Y. Elec. L. § 6-132(2)-(3) (McKinney 1998). Lerman did not circulate Sollazo’s designating petition as a notary public or commissioner of deeds.

The plaintiffs filed a complaint pro se against the NYC Board, the New York State Board of Elections (“NYS Board”), and Governor George Pataki in August 1999, seeking declaratory and injunctive relief on the grounds that the witness residence requirement in section 6-132(2) violates the First and Fourteenth Amendments on its face by permitting only district residents to be eligible to witness signatures on the candidate’s designating petition. The NYC Board moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6), and after oral argument on August 31, 1999, the District Court (Frederic Block, Judge) delivered an opinion from the bench dismissing Plaintiffs’ complaint in its entirety. Judgment was entered on September 3, 1999. Plaintiffs moved this Court for an expedited appeal on the grounds that the primary election was to be held on September 14, 1999; that motion was denied. The primary election took place as scheduled without Sollazo’s name on the ballot.

DISCUSSION

We review the District Court’s dismissal of the plaintiffs’ complaint de novo. See Post v. Court Officer Shield No. 207, 180 F.3d 409 (2d Cir.1999). Since [140]*140most pro se plaintiffs lack familiarity with the formalities of pleading requirements, we must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency than we would when reviewing a complaint submitted by counsel.3 See, e.g., Hughes v. Rowe, 449 U.S. 5, 9-10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). In order to justify the dismissal of the plaintiffs’ pro se complaint, it must be “ ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Haines, 404 U.S. at 521, 92 S.Ct. 594 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

I. Preclusive Effect of Molinari v. Powers

In another, widely noted New York ballot access case that was litigated in the Eastern District of New York after briefing in this appeal had been completed, but before oral argument, the NYS and NYC Boards entered into a stipulation providing that several provisions of the New York Election Law “impose[d] an undue burden on access to the ballot in connection with the 2000 New York State Republican Presidential Primary.” Molinari v. Powers, No. 99 Civ. 8447, Stipulation at 2 (E.D.N.Y. Feb. 4, 2000). The parties in that case also agreed to waive their rights to appeal from any order entered by the district court based on that stipulation, see id., and upon acceptance by the district court, the stipulation served as the predicate for that court’s order of preliminary injunctive relief. See Molinari v. Powers, 82 F.Supp.2d 57, 68-69 (E.D.N.Y.2000) (Korman, C.J.). The district court in Molinari accepted the parties’ stipulation “only after independently concluding that the scheme, both in its totality and by virtue of two of its individual but related elements,” including the section 6-132(2) witness residence requirement, “places an undue burden on the right to vote under the First Amendment.” Id. at 69.

After counsel appeared for the pro se plaintiffs and oral argument was held in this appeal on March 24, 2000, we ordered the parties to submit supplemental briefs addressing all of the issues presented on appeal, including the preclusive effect, if any, of the stipulation and order entered in Molinari. See Lerman v. Board of Elections, No. 99-9015, Order at 1-2 (2d Cir. Mar. 30, 2000). In their supplemental brief, the plaintiffs argue that the defendants in this case4 are indeed precluded from defending the constitutionality of the section 6-132(2) witness residence requirement by virtue of the Molinari stipulation and order.

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Lerman v. Board Of Elections In The City Of New York
232 F.3d 135 (Second Circuit, 2000)

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Bluebook (online)
232 F.3d 135, 2000 WL 1715441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lerman-v-board-of-elections-in-the-city-of-new-york-ca2-2000.