Opinion
No. 02 Civ. 618, 02 Civ. 3239
July 25, 2002
JOHN M. WALKER, JR., Chief Circuit Judge, JOHN G. KOELTL, District Judge, RICHARD M. BERMAN, District Judge.
OPINION AND ORDER
The plaintiffs move for an order reducing the number of signatures required for ballot access for the 2002 Congressional election. New York law limits primary election ballot access to those prospective candidates who submit petitions that bear valid signatures of at least 5% of voters resident in the election district and enrolled in the party whose nomination they seek, or 1,250 such voters, whichever is less. See N.Y. Elec. Law § 6-136(2)(g). The plaintiffs seek the reduction of the signature requirements to 4% of resident enrolled voters, instead of 5%, and 1,000 resident enrolled voters, instead of 1,250.
The proffered basis for the motion is that this Court reduced the period of time in which petitioning could occur and should therefore reduce the signature requirement Proportionately to the amount of time that was removed from the signature petitioning period. On June 17, 2002, the day before the petitioning process was to begin, this Court enjoined the petitioning process until further notice because the redistricting plan enacted by the New York State Legislature (the "State Plan") had not yet been pre-cleared by the United States Department of Justice as required. Rodriguez v. Pataki, Nos. 02 Civ. 618 02 Civ. 3843, 2002 WL 1334733, at *1 (S.D.N.Y. June 17, 2002) (three-judge court); see Puerto Rican Legal Defense and Educ. Fund, Inc. v. City of New York, 769 F. Supp. 74, 78 (E.D.N.Y. 1991) (enjoining petitioning process where preclearance had not been obtained). On June 25, 2002, the State Plan was pre-cleared and this Court dissolved the injunction against petitioning under the State Plan. As a result of the brief injunction, the petitioning process was delayed from June 18 until June 26. The ending date for the collection of signatures remained July 25. The petitioning process was thus shortened by eight days.
The movants argue that the eight day reduction in the length of the petitioning period, taken together with the other restrictions on ballot access, create an unreasonable burden on a candidate's ability to get on the ballot. The movants, however, have failed to make a sufficient showing at this time to warrant injunctive relief reducing the number of signatures required by New York law.
The Court of Appeals for the Second Circuit has recently upheld the constitutionality of the 5%/1,250 signature ballot access requirement as a reasonable requirement that furthered the important state interest in assuring that a candidate has a significant modicum of support. Prestia v. O'Connor, 178 F.3d 86, 88-89 (2d Cir.) (per curiam), cert. denied, 528 U.S. 1025 (1999). As the Court of Appeals explained:
In assessing the constitutionality of a state election law, we balance the regulation's burden on the First and Fourteenth Amendment rights of voters against the state interests advanced by the regulation, taking into consideration the extent to which the burden is necessary to the advancement of those interests. See Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). When the regulation severely restricts the relevant rights, it must be narrowly drawn to advance a compelling state interest, but where the regulation imposes only reasonable, nondiscriminatory restrictions on those rights, "the State's important regulatory interests are generally sufficient to justify the restrictions." Id. (internal quotation marks omitted). In assessing the burden imposed by the challenged regulation, we view the regulation in light of the state's overall election scheme. See Schulz v. Williams, 44 F.3d 48, 56 (2d Cir. 1994).
States have an important interest in "requiring some preliminary showing of a significant modicum of support" before printing a candidate's name on the ballot, so as to "avoid confusion, deception, and even frustration of the democratic process at the general election." Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971).
Accordingly, a requirement that ballot access petitions be signed by at least 5% of the relevant voter pool is generally valid, despite any burden on voter choice that results when such a petition is unable to meet the requirement. See id. (upholding 5% signature requirement); see also Hewes v. Abrams, 718 F. Supp. 163, 167 (S.D.N.Y.) ("[U]nder Jenness a standardized 5% signature requirement would be constitutional. . . ."), aff'd, 884 F.2d 74, 75 (2d Cir. 1989) ("affirm[ing] substantially for the reasons stated by" the district court); Libertarian Party of Ill. v. Rednour, 108 F.3d 768, 775 (7th Cir. 1997) (relying on Jenness and upholding 5% signature requirement); Rainbow Coalition of Okla. v. Oklahoma State Elec. Bd., 844 F.2d 740, 743 (10th Cir. 1988) (relying on Jenness and stating that "the five percent requirement itself is undeniably constitutional")Prestia, 178 F.3d at 88 (footnote omitted).
More recently, the Court of Appeals invalidated the requirement that witnesses to ballot designating petitions be residents "of the political subdivision in which the office or position is to be voted for." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 139, 153 (2d Cir. 2000). In reaching its conclusion, the Court of Appeals relied in part on the fact that one state interest asserted as a basis for the restriction — namely, assuring that a candidate had a modicum of support — "already is advanced by the requirement that candidates obtain a minimum number of signatures from district residents." Id. at 151 (citing N.Y. Elec. Law § 6-136). Hence, it is plain that the 5%/1,250 signature requirement remains a generally valid regulation that furthers the important state interest of requiring some preliminary showing of a significant modicum of support before a candidate's name will be placed on the ballot.
In Prestia, the plaintiffs argued that their First and Fourteenth Amendment rights were impaired because a petition for an "opportunity to ballot" —— that is, to "write in" candidates' names at the primary election —— was subject to the 5%/1,250 signature requirement. Prestia, 178 F.3d at 87-88. The New York Election Law provisions at issue in Prestia established a period of 23 days in which to collect signatures on a petition for an opportunity to ballot, although in some circumstances that period could be extended to 30 days. See N.Y. Elec. Law § 6-164 (signatures to petition for opportunity to ballot must be made no earlier than 16 days before the last day to file designating petitions), § 6-158 (petition for opportunity to ballot to be filed one week after last day to file designating petitions, or two weeks after last day to file designating petitions if a designation has been declined by designee and another person has been designated to fill the vacancy). Thus, the ballot access requirement approved in Prestia was generally more restrictive than even the shortened 29 day petitioning process that is at issue on this motion, and at its least restrictive, provided only one additional day in which to collect the same total number of signatures.
Even if we were to assume that the Prestia court's reasoning was limited to a 30 day petitioning period, it cannot be said, on the evidence presented on this motion, that the reduction of that period by one day so increases the burden on collecting signatures that the number of signatures is rendered unconstitutional. The State continues to have the same interest in assuring a modicum of support that is reflected in the 5% or 1,250 signature requirement. Moreover, there was an additional significant reason for shortening the time to collect signatures in this case — the need to have a plan in effect that had been pre-cleared by the Department of Justice. Balanced against these significant state interests there is simply no substantial showing on this motion that the reduction will have any effect on ballot access. Indeed, no candidate has even testified that the overall reduction in the petitioning period from 37 to 29 days would have any effect on the candidate's campaign. While there is an affidavit from the Chairman of the New York County Organization of the Green Party of the State of New York that attests to the problems of ballot access, the defendants represent without contradiction that, given the Green Party's actual registration, the number of signatures that a Green Party candidate must gather in a district ranges from 6 to 123. Therefore, the effect of the plaintiff's proposal with respect to the Green Party would be to reduce the number of signatures required in each District, depending on the District involved, by between 1 and 25 signatures; and if the Court were to adopt the pro-rata reduction approach urged by the plaintiffs but used a 30-day period as the benchmark, the signature requirement would be reduced by between 0 and 4 signatures. Neither set of reductions could effect any substantial change in ballot access.
The possible effect of the minimally shortened period on any individual candidate is entirely speculative and insufficient on this motion to warrant any relief. We cannot foresee or foreclose the showing that any individual candidate may be able to make after the petitioning period is ended and any challenges decided.
Therefore, the plaintiff's motion to reduce the signature requirement for Congressional candidates is denied.