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Lerman v. Board of Elections

United States Court of Appeals for the Second Circuit

March 24, 2000, Argued ; November 9, 2000, Decided

Docket No. 99-9015


 [*138]  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 "residents 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 [**3]  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 between  [*139]  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.


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 [**4]  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 [**5]  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 [**6]  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.

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232 F.3d 135 *; 2000 U.S. App. LEXIS 29286 **


Subsequent History:  [**1]  As Amended December 7, 2000. Certiorari Denied June 18, 2001, Reported at: 2001 U.S. LEXIS 4536.

Prior History: Appeal from a judgment of the United States District Court for the Eastern District of New York (Frederic Block, Judge), dismissing the plaintiffs' pro se complaint for failure to state a claim. The District Court upheld the requirement under section 6-132(2) of the New York Election Law that witnesses to ballot access "designating petitions" be residents of the political subdivision in which the office is to be voted. We reverse the District Court's judgment, holding that on its face, the witness residence requirement in section 6-132 of the New York Election Law significantly burdens interactive political speech and political association without advancing any legitimate state interest and, therefore, violates the First Amendment.

Disposition: Judgment reversed and remanded with instructions.


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