You asked for information on the ruling from the U. S. Court of Appeals for the Second Circuit declaring unconstitutional a New York statute that requires witnesses to candidate petitions to be residents of the political subdivision in which the office is to be voted for.

SUMMARY

Candidates for public office in New York can circulate and file a "designating petition" to run for nomination at a primary, signed by at least 5% of the enrolled party voters in the jurisdiction of the office. The law requires anyone circulating the petition who witnesses the signatures to be a notary public, commissioner of deeds, or registered voter in the state who is enrolled in the party having the primary and "also a resident of the political subdivision in which the office or position is to be voted for. " In a recent case involving an Independence Party candidate's petition to run in a New York City Council district primary, an out-of-district petition witness (or circulator) sued after the New York City Board of Elections invalidated the petition signatures she filed. The plaintiffs (including a petition signator) filed a complaint, which the trial court dismissed. Plaintiffs appealed.

The U. S. Court of Appeals for the Second Circuit held that since the witness residency requirement imposes a severe burden on political speech and association, the requirement must be narrowly tailored to advance a compelling state interest in order to pass constitutional muster. It concluded that, since the requirement bears no relationship to the state's asserted interests, the statute is invalid on its face as overly broad. It severely burdens interactive political speech and association rights protected by the First Amendment without advancing any legitimate or important state interest and is thus, unconstitutional.

FACTS

New York election law requires 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)). A candidate, John Sollazo, hoping to run in the September 14, 1999 primary to gain the Independence Party's nomination for the 50^th District seat on the New York City Council, took out a nominating petition. It was necessary for him to file a "designating petition" containing the valid signatures of at least 5% of the registered party members within the district. Plaintiff Anita Lerman, a resident of the 49^th Council District, served as the witness to the signatures on Sollazo's petition. The defendant Board of Elections in the City of New York ruled that those signatures were invalid because Lerman was not a resident of the political subdivision in which the candidate was running.

Plaintiffs filed a complaint on the grounds that the witness residence requirement in § 6-132(2) violates the First and Fourteenth Amendments by permitting only district residents to be eligible to witness signatures on candidate designating petitions.

On August 31, 1999, the U. S. District Court for the Eastern District of New York delivered an opinion from the bench dismissing the plaintiffs' complaint in its entirety and entered the judgment on September 3. Plaintiffs requested but did not receive an expedited appeal. The primary took place without Sollazo's name on the ballot. But the Court of Appeals for the Second Circuit reviewed the lower court's dismissal, reversed the decision, and remanded the case back to the district court (Lerman v. Board of Elections in the City of New York, C. A. 2 (N. Y. ) 2000, 232 F. 3d 135).

Of the issues the Court of Appeals dealt with, you are interested in the question of the constitutionality of the New York law on the petition circulation residency requirement for witnesses. A challenge to a similar requirement in Connecticut law, such as the proposed language in the draft of RB 5257, would be taken to the Second Circuit Court and likely struck down, given that court's decision in the New York case.

HOLDING

The court disputed the NYC Board's claim that the case was moot because the September 1999 primary was over. The court considered the case "since the plaintiffs' claims fall within the exception to the mootness doctrine for issues `capable of repetition'..." (at 141). The issues presented in the case "will persist in future elections, and within a time frame too short to allow resolution through litigation" (quoting Fulani v. League of Women Voters Education Fund, 882 F. 2d 621, 628).

The circuit court concluded 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 (at 139).

REASONING OF THE COURT

The court applied strict scrutiny to the witness residency requirement, calling it a case "in which the regulation clearly and directly restricts `core political speech,' as opposed to the `mechanics of the electoral process'.... The petition circulation activity at issue in this case, while part of the ballot access process, clearly constituted core political speech subject to exacting scrutiny" (internal citations omitted, at 146).

It cites the substantial burden on political speech and association that the witness requirement imposes. "[T]here should be little doubt that the witness residence requirement dramatically reduced the number of potential petition circulators available to advance [the candidate's] political message.... For minor political candidates such as Sollazo, that burden can be particularly severe" (at 147). Because of the burden on protected speech and association rights without advancing any legitimate or important state interest, the requirement is unconstitutional.

Though the state asserted its interests in ensuring integrity and preventing fraud in the electoral process, ensuring that candidates demonstrate a sufficient modicum of support in a district, and ensuring that a nonresident may not impose the cost of a primary on the district, the court disagreed. It concluded "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" (at 149).

MMJ: eh