From: "Bill VanAllen" Date: Mon, 7 Jul 2003 22:12:09 -0400 15183558205 P.01 JLIL~-07?2003 15:31 CGLLaPD&POE UNITED S1AThS DISTRICT COURT EASTERN DISTRICT OF NEW YORK 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 TRELCHLER and JAMES LANE, each as a duly enrolled member of the Green Party of New York State; SHANNON M. HOULIHAN, JOHN N. WARREN and LISA CHACON, -against- Plaintiffs, MEMORANDUM IN OPPOSITION TO INTERVENE BY THE LIBERTARIAN PARTY NEW YORK STATE BOARD OF ELECTIONS: CAROL BERMAN, NEIL W. KELLEHER, HELENA MOSES DONOHUE and EVELYN 3. AQUILA, in their official capachies as Commissioners of the New York State Board of Elections; NEW YORK CRY BOARD OF ELECTiONS; NANCY MOTTOLA SCHACHER, WEYMAN A. CAREY, MICHAELJ. CILMI, MARKS. HERMAN, NERO GRAHAM, JR., VINCENT S. VELELLA, DOUGLAS A. KELLNER, FREDERIC M~ UMANE, TERRENCE C. O?CONNOR and STEPHEN H. WEiNER, in their official capacities as Commissioners of the New York City Board of Elections, and as representatives of all commissioners of county boards of elections in New York State, OF NEW VORI( Index No. CV 026465 (JG / SMO) -Defendants. Preliminary Statement This memorandum of law is respectfully submitted by TODD D. VALENTTh4E, attorney for defendant, NEW YORK STATE BOARD OFBLECTIONS and Commissioners thereof (the ?State Board?) in opposition to the to the action by the Libertarian Party of New York, permitting that group to be named as an intervenor in the above captioned proceeding. GflrCASeIC2~~)?O~ccn ~ ~ ?1? JUL?c7-~2O~3 15:132 P.02 CGLLF~RD&HOE Statement of Facts Under New York Election Law, every politicalparty must show sufficient support by gaining at least 50,000 votes for its candidate for governor. At the 2002 general election, theLibertarian Party?s candidate did not receive 50,000 votes. Plaintiff Green Party, et a].. commenced this action on December 10, 2002 seeking a temporary restraining order and preliminary injunction declaring New York Election Law section 5-302(1) unconstitutional and force county boards of election to maintain a list of their members for groups which are no longer political parties. On June 4. 2003, this Court entered an order granting a preliminary injunction to require the county boards to continue maintaining a list of voters who are enrolled in the Grecn Party and to continue to accept voter registrations from new voters who enroll in this party The Libertarian group seeks permission to be named as plaintiff-intervenors in the above action. The Libertarian group seeks permission to be named as intervenors raising a challenge to the minimum standard for initial listing on the voter registration form, the requirement that a group?s candidate for governor obtain 50,000 votes in the general election. The Libertarian group has never obtained 50,000 votes for its gubernatorial candidate Argument According to Rule 24(a)(2) of the Federal Rules of Civil Procedure, in order to intervene as of right in a lawsuit, the applicant must establish: (1) the motion to intervene is timely: (2) the applicant has an interest relating to the subject of the action: (3) disposition of the action will impede application if intervention is not permitted: and (4) applicant? s interest is not adequately represented by the existing parties. Catanzano v. Wins, 103 F. 3d 223, 232 (2d Circ. 1996); United States v. g~~anscAResc..z~tO.c. rr,flIntr~Oo)MAbiflraWflmO III CIWSI( W11 -2- JuL?07?2003 15:32 COLLaPD&Ros 151536598~5 P.03 Pitney Bovoes, Inc., 25 F. 3d 66, 70 (2d Circ. 1994) Failure to satisfy any one of those criteria is grounds for denying the motion. Farmland Dairies v. Commissioner ofN.Y. Dep?t ofAgric., 847 F. 2d 1038, 1043 (2d Circ. 1988). For a timely intervention by permission pursuant to Rule 24(b)(2) of the FRCP, a party must demonstrate a common question of law or fact between the intervenor?s claim and the pending litigation. POINT I DISPOSITION OF THE ACTION WILL NOT IMPEDE THE LIBERTARIAN GROUP?S RJGIITS BECAUSE THERE IS NO COMMON QUESTION OF LAW OR FACT. intervention by the Libertarian Party will radicalJy change the nature of the litigation. The underlying issue raised by the Green Party is that the voters who were enrolled in a political party recognized under New York State Law should corithne to be allowed to be listed separately on lists of voters to aid in the developmer~t of their group. The Libertarian group now seeks to raise an entirely different question based on a completely different set of facts. The Libertarian group seeks to challenge the minimum standard for initial listing on the voter registration form, the requirement that a group?s candidate for governor obtain 50,000 votes in the general election. Unlike the Green Party, the Libertarian group has never C tcsraasc.=~r~a.=. r,n,J.~ *10, urlu,*m.no , vatu~.,n~ JLIL?87?2083 15:38 COLLRHD&PoS 15163659025 801 obtained 50,000 vows for its gubernatorial candidate. To allow intervention by the proposed interv~nors would now require litigating the minimum standard for listing on the voter registration fern, a point the Plaintiffs in this actiOn have essentially conceded by not challenging their loss of party status, Thtervention by the Libertarian group would unduly complicate the litigation by requiring the examination of an entirely new legal requirement. The proposed intervenor?s rights will not be impeded by any decision stemming from this action. The Libertarian group is not currently listed onthe voter registration foxm and no board of elections maintains any list of its members. The Court?s decision in this action will not prejudice intervenors. POINT U PROPOSED INTER VENOR SHOULD NOT BE GRANTED ANY RELIEF I) New York State May Reasonably Restrict Access to the Primary Election Mechanism New York State defines ?party? as a political organization which at the preceding election for governor polled at least 50,000 votes for its candidate for governor. Election Law §1-104(3). Courts have upheld the ability of a state to require a group to demonstrate a modicum of support for maintaining political party status as a legitimate exercise of the state?s power to bring order to the election process. Rainbow Coalition of Ok/a. Oklahoma State Election BL , $44 F. 2d 740,747 (1QLJ~ Cir. 1988). Specifically, The New York State requirement of 50,000 votes for a candidate for governor limiting which groups are political parties has been upheld, as not violating freedoms of speech or association under the First and Fourteenth Amendments. Johnson v. Cuomo, 595 F. Sup 1126, 1129 (NDNY 1984). The 50,000 vote requirement developed from the need to regulate the primary election process. In 1911, establishment of a party required a minimum of 10,000 votes for Governor. oL?w~c5&,ckm?ofc~., ruttjnw ttLQq%%~6~.tNü~vw,q t ~ SUL?@7--20k33 15:38 COLLflPD&ROE 15163C58825 P.02 Chapter 891 of the Laws of 1911 .Thcreafter, in 1922 the term ?party? was amended to mean any political organization which at the last preceding election for Governor polled at least fifteen thousand votes for Governor, and after ianuary first, nineteen hundred and twenty-three, any political organization which polled at the last pxrceding election for Governor at least twenty-five thousand -a votes for Governor. Chapter 588 of the Laws of 1922cm 1935 the vote requirement was raised to its current 50,000 vote level. Chapter 955 of the laws of 1935. The first court to address a challenge to the 50,000 vote requirement upheld the statute a~ it app]ied to the Communist Party which had oniy polled 45,000 votes in the 1934 election and was a party, but failed to reach the 50,000 vote threshold in 1936. Anztetv. flynn. 163 Misc, 375 (Sup Court Albany County 1937) Affd,, 251 App. Div. 921. ?When a political organization fell below the-prescribed number in a gubernatorial election it ceased to he a ?party,? and to regain its status as such it would have to pci1 the required number of Votes at the next election for Governor.? Id. at 377: - Today, New York?s 50,000 vote requirement-represents less than one-half of one percent of the approximately II million registered voters in the state. At the 2002 general election, 50,000 votes represented just. over one percent of the 4,690,96-S votes cast for all gubernatorial candidates. A two percent threshold for party creation purposes has been upheld. Iowa Socialist Party v. Nelson, 909 F. 2d 1175 (8~1~ Circ. 1990). The Eighth Circuit Court of Appeals found that the minimal threshold imposed by the state did not unduly interfere with a group?s ability to organize as balanced against the states need to impose some order on the primary election process. Id. at 1180- [181. ii) There is No Infringement upon the Intervenors? Associational Rights The proposed iatervenor is free to continue to recruit and communicate with those who might remain connected to this organizaticlv They can communicate with those people as any other - - hSC~S4O.~?,~W?co, tW~uou~ hi K,0~U.Lw1,d 2 JTLJL?07--2003 15:33 COLLPRD&RcE 15163558805 P.03 political oi-gaflizatiofl communicates with its members, such as through a websitc. They can also recruil new membw-s from the community. But this should not be done with official irnprimatur of the state through the boards of elections. And this should not be done with the potential confusion and disenfranchisement which could result from the representation on official voter records, including voter registration forms, which would, if proposed intervenors are sucóestt# add them as an official party in New York when in fact they ar~ not. Simply put, there is no First Amendment infringement on the members of the intervenors organization to continue to function. The organization simply should not enjoy official state assistance, This is particularly true since their stated use of these registration lists is to cotnmunicatewitb their members for issue discussion but nOt eI2CtiOn related purposes, These purposes arenothing more than what any other groups interested in community issues may discuss with its members, but without the state sponsored assistance this group is seeking. They are not ?political pasties? and thus cannot hold primary elections, cannot organize as formal political party organizations, and are not entitled to other official political party privileges. CONCLUSION PLATNflFFS? MOTION FORLEAVE TO INTERVENE SHOULD BE DENIED. DATED: Albany, New York, July 2, 2003 a~CA,EffC.j~2DrrnoujCut.nn?.r.m,o a staã?I ? Respectfully Submitted, Todd P. Valentine (TDV 5304) Special Counsel, New York State Hoard of Elections 40 Steuben Street, Albany, NY 12207 Tel: (518) 474-6367 I Fñx: (518) 486-4546 -6- 3