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A federal judge has declared unconstitutional a provision of the New York state election law requiring witnesses who collect petition signatures to belong to the same party as the candidate for whom they are working. In voiding the identity-of-party requirement, Eastern District of New York Judge Sterling Johnson Jr. on Friday restored to the ballot Harry Kaloshi, a real estate broker seeking the Democratic nomination to the state Senate in a district centered in the Flatbush and East Flatbush sections of Brooklyn, N.Y. The other Democrats vying Tuesday for their party’s nomination in the 21st Senate District are: Omar Boucher, a political consultant who has the backing of Brooklyn Democratic leader Assemblyman Clarence Norman Jr. and many elected officials from the area; former city Councilman Noach Dear, a portion of whose old district constitutes about 40 percent of the 21st district; Lori Citron Knipel, a solo practitioner who is married to Justice Lawrence S. Knipel; and Kevin Parker, who was formerly on the staff of State Comptroller H. Carl McCall, the Democratic contender for governor. The restriction of signature witnesses to people of the same party as the candidate “burdens the candidates’ and others’ core freedoms of political expression and association,” Judge Johnson wrote in finding a violation of the First Amendment rights of free speech and association. The state attorney general’s office, which defended the constitutionality of Election Law � 6-132(2) in Kaloshi v. New York City Board of Elections, 02-4762, is in the process of appealing the ruling, said Juanita Scarlett, a spokeswoman for New York Attorney General Eliot L. Spitzer. Spitzer had argued that limiting petition gatherers to registered Democrats had not burdened Kaloshi’s effort because there are 5 million registered Democrats in the state. By contrast, when the 2nd U.S. Circuit Court of Appeals struck down a related requirement in the election law in 2000, the pool of eligible signature collectors was only 760 people, the state argued. The case the state relied upon was Lerman v. Board of Elections, 232 F. 3d 135, in which the 2nd Circuit invalidated a requirement that signature collectors live within the district covered by the office their candidate is seeking. Judge Johnson, however, rejected the state’s argument, relying on the U.S. Supreme Court’s ruling in Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999). The “crux” of the Buckley decision runs counter to the state’s argument, Johnson wrote, because rather that emphasizing the number of people who can associate with a candidate, the Supreme Court ruling looks to the number of people inhibited by the challenged statute. In that context, he wrote, “the enrollment requirement impacts millions of unregistered New Yorkers as well as those registered voters who are not members of the Democratic Party.” In ordering Kaloshi restored to the ballot, Johnson noted that the candidate was required to have 1,000 valid signatures to get on the ballot, but the New York City Board of Elections had found he had filed only 350 valid signatures. Kaloshi succeeded in overcoming the deficit of 650 signatures, Johnson noted, by showing that the City Board of Elections had applied the unconstitutional rule to void 666 signatures collected by his petition gatherers. Kaloshi was represented by Bernard Mitchell Alter, of Alter & Barbaro. Assistant Attorney General Patrick Walsh defended the constitutionality of the statute, and Assistant Corporation Counsel Paul Marx represented the New York City Board of Elections. Israel Goldberg represented the Brooklyn Democratic Party and John W. Carroll of Wolfson & Carroll represented Knipel.

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