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A portion of New York State’s election law that sets forth requirements for primary ballot access petitions has been held unconstitutional by the 2nd U.S. Circuit Court of Appeals. The requirement that witnesses to the signing of designating petitions be from the same district where the office is being contested violates the First Amendment, the court said, because it “significantly burdens interactive political speech and political association without advancing any legitimate state interest.” The decision is an important one for minor party candidates who petition for inclusion on a ballot because the witness to petition signers is usually the person who is collecting the signatures. “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,’ ” wrote Judge Chester J. Straub. “ 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’ … the State of New York has attempted to elevate this political adage into an affirmative command.” The court’s ruling in Lerman v. Board of Elections, 99-9015, reversed a lower court’s decision to invalidate designating petitions by John Sollazo, Independence Party candidate for New York City Council on Staten Island in 1999. For Sollazo to get his name on the primary ballot for the 50th Council District, New York Election Law Sections 6-118 and 6-136(2) required that he file a properly witnessed designating petition containing the names of at least five percent of the registered party members in his district. In Sollazo’s case, he only needed 38 valid petition signatures, a figure he had no trouble reaching. But a problem arose because one witness to the 58 signatures actually collected by Sollazo was Anita Lerman, a resident of the neighboring 49th Council District. The New York City Board of Elections ruled on Aug. 3, 1999 that the 58 signatures were invalid because the signatures were not witnessed by a notary public, a commissioner of deeds or a resident of 50th Council District. Lerman and Angelo D’Angelo, one of the signatories to Sollazo’s invalid petition, filed suit in the Eastern District, where Judge Frederick Block dismissed the complaint in September 1999. The primary election was held without Sollazo’s name on the ballot. On the appeal, Judge Straub said, “There should be little doubt that the witness residence requirement dramatically reduced the number of potential petition circulators available to advance Sollazo’s political message.” BURDEN ON MINOR PARTIES Only 760 Independence Party members live in the 50th Council District, he said, compared to 170,000 statewide, so the residence requirement effectively renders 99.5 percent of the party members ineligible to circulate petitions in Sollazo’s district. Moreover, Straub said the restriction is particularly burdensome for minor party candidates who often face challenges to their signatures. To withstand such challenges, he said, candidates rely on avid petition circulators to collect many more signatures than are actually required by law. “Under these circumstances, identifying and obtaining even a small number of signatures can be like trying to find the proverbial needle in a haystack,” he said, ” … especially for a candidate, like Sollazo, who seeks the nomination of a minor party whose pool of potential signatories may already be quite small from the outset of the petitioning period.” STRICT SCRUTINY Applying strict scrutiny to the Section 6-132(2) witness residence requirement, Straub said the Board of Elections asserted that the section was justified by three interests: ensuring integrity and preventing fraud in the electoral process, demanding that candidates have at least a modicum of support before gaining ballot access, and ensuring that non-residents do not impose the cost of a primary on a district. These justifications, he said, were the same as those offered by the State in the case of Molinari v. Powers, 99 Civ. 8447 (E.D.N.Y, Feb. 4, 2000). In Molinari, a ballot access case brought in connection with the 2000 New York State Republican Presidential Primary, Judge Edward R. Korman granted a preliminary injunction after accepting a stipulation by both parties that Section 6-132(2) placed an “undue burden,” on ballot access. Straub said the 2nd Circuit agreed with Korman’s reasoning in Molinari, concluding that “the witness residence requirement does not bear even a rational relationship to any of these three justifications, let alone the narrowly tailored relationship that strict scrutiny demands.” Senior Judge Wilfred Feinberg and Judge Dennis G. Jacobs joined in the opinion. Nancy Northrup and Gillian E. Metzger of the Brennan Center for Justice represented Lerman and D’Angelo. Assistant Corporation Counsels Tahirih M. Sadrieh and Edward F.X. Hart represented the Board of Elections in the City of New York. Deputy Counsel Patricia L. Murray represented the Board Elections of the State of New York. Representing Governor George Pataki were Assistant Solicitors General Nancy A. Spiegel and Robert M. Goldfarb, and Peter Schiff, senior counsel for Attorney General Eliot Spitzer.

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