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8/2/2019 ADA Complaint ACTUAL

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the 3rd Congressional District but for the obstacles herein described. He resides at 34

High St., Manhasset, NY 11030.

Plaintiff Kenneth Jacoby, a registered Republican, was a candidate for member of the

Nassau County Republican Committee, would run again, and would be a candidate for

the 20th Assembly seat but for the obstacles herein described. He resides at 3016

Roxbury Rd, Oceanside, NY 11572.

Plaintiff Robert Pendleton, a registered Conservative, was a candidate for member of the

Nassau County Conservative Committee, would run again, and would be a candidate for

the 4th Congressional District but for the obstacles herein described. He resides at 2895

Charlotte Dr., Merrick, NY 11566.

Plaintiffs are longtime political activists and aver they are possible candidates for future

posts and offices.

Defendant New York is the government whose laws and practices are herein

complained.

Defendant Governor Andrew Cuomo is responsible for the execution of those laws and

practices. His office is at NYS Capitol Building, Albany, NY 12224.

Defendant Attorney General Eric Schneiderman is responsible for the enforcement of

the New York laws herein complained. His office is at 2nd Floor, Justice Building,

Empire State Plaza, Albany, NY 12224.

Defendant NY State Board of Elections operates the electoral machinery of the state and

consists of four commissioners, defendants James A. Walsh (Republican), Douglas A.


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Kellner (Democratic), Evelyn J. Aquila (Democratic), and Gregory P. Peterson

(Republican). Their office is at 40 Steuben St, Albany, NY 12207.

Defendant Nassau County Board of Elections operates the electoral machinery of that

county, comprised of defendant Louis Savinetti (Republican) and defendant William

Biamonte (Democratic). Their office is at 4th Floor, 240 Old Country Rd, Mineola, NY

11501.

There is no Eleventh Amendment immunity insofar as ADA Title II claims are

concerned (Tennessee v. Lane, 541 U.S. 509 2004).

JURISDICTION & VENUE

This complaint seeks to enjoin state agencies and officials from enforcing

unconstitutional laws and engaging in unconstitutional practices, and other relief.

Jurisdiction is federal pursuant to the Americans with Disabilities Act (42 U.S.C. 12101

et seq), the Rehabilitation Act (29 U.S.C. 701 et seq), the Voting Rights Act (42 U.S.C.

1971 et seq), Uniformed and Overseas Citizens Absentee Voting (MOVE) Act (42

U.S.C. 1973ff-1), the US Constitution, and its First, Fourteenth, and Fifteenth

Amendments.

Venue in the Eastern District of New York court is proper, based upon previous exercise

of jurisdiction by the federal government, as well as by judicial imperative.

INTRODUCTION

Running for office in New York involves the risk of getting bumped off the ballot by

the filing of objections against a candidates petitions. An objector can claim anything

should void the petition, even minor errors. With help from a sympathetic Board of


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Elections, anything can stick. Obviously this does not make elections more legitimate, in

fact it makes them less so, and violates the right to vote.

The right to vote is the right of a people to freely choose leaders from among

themselves. This includes the right to cast a meaningful ballot, the right to seek office,

and the right to hold office. This is inherent in the US Constitution and is as

fundamental as the document itself, just like the non-enumerated rights of privacy,

marriage, and travel. For simplicity in discussing allegations, the inherent right and

First and Fourteenth Amendment protection is referred to collectively as Rights to

Vote.

Founding Father James Madison reasoned that our republic could be turned into an

aristocracy if legislators set the rules of who can run for office. They would turn it into

their own private club. The right to vote would be meaningless, since the public could

only elect those whom the politicians had already chosen for them. So any restriction on

the ability to run must only be by necessity, or it becomes a weapon for incumbents, like

bumping is in New York. In recognition of that, most states charge candidates a fee (see

Exhibit E for examples), a politician tax. Of the handful that still require signature

petitions, most are purely symbolic: Tennessee (pop. 6.4 million) requires all of 25

signatures to run for governor.

And then theres New York, whose government has treated the right to vote with

depraved indifference. The election laws are comprised of vague rules and onerous

requirements. Uncontested races are common (only one candidate). In races for party


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position, frequentlyno one is legitimately elected (no candidates). When an electoral

system enables those with power to eliminate competition without voting, the Supreme

Court has said it operates to freeze the political status quo, (Jeness v . For tson).

Plaintiffs allege New York is frozen by a fundamentally unfair electoral scheme.

The heart of this scheme is two parts: the Designating Petition which a candidate must

use to collect signatures, and the arcane rules that govern it. The statutes requiring the

number of signatures are in 6-136, objections thereto in 6-154, and its pertinent rules

are in 6-130 through 6-142 , NY Rules and Regulations Subtitle V State Board of

Elections, and case law too voluminous to enumerate. Collectively these mandatory

rules are referred to as the NY Scheme and are executed and enforced by defendants.

The NY Scheme was created in 1911 and hasnt advanced much since. At that time, only

neighborly white men ran for office. The result is its use in the 21st century violates the

rights of pretty much everyone, as follows.

CLAIMS

Defendants discriminate against suspect classes and discrete groups

1. Nassau County is a jurisdiction covered by Section 203 of the Voting Rights Act.U.S.C. 1973b(f)(4) requires all materials relating to the electoral process are

made available in Spanish. In violation, defendant Nassau Board of Elections

does not provide the designating petition in Spanish. This prevents Hispanics

from seeking office. It is also an obstacle to plaintiffs: 14.6% of the county is

Hispanic and is effectively removed from the pool of eligible petition signers


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(signing pool). Plaintiffs live in areas with Hispanic populations. Nassau

Countys failure to comply with the Section 203 of the Voting Rights Act severely

burdens plaintiffs Rights to Vote. It violates their right of Equal Protection again,

in that similarly situated candidates who are less reliant on Hispanic support

would have a substantial advantage. Note: there do not appear to be any non-

English petitions in anywhere in New York, despite twelve such requirements.

2. The NY Scheme requires going door-to-door. Even for the smallest electedposition, it takes hours and is physically demanding. For plaintiffs, there is no

other recourse to ballot access but this. This prevents the participation of those

with a disability who are otherwise qualified for office. Plaintiffs have disabilities

which impair major life activities as defined by the Americans with Disabilities

Act: Dekom has congenitally defective ankles, a degenerative condition which

significantly impairs his mobility. Jacoby is approximately 60% deaf and has a

corresponding speech impediment, which significantly impairs his ability to

communicate. Pendleton has advanced stenosis which significantly impairs his

mobility. These disabilities directly interfere with plaintiffs ability to comply with

the NY Scheme. ADA prohibits discrimination on the basis of disability in

government activities (Title II). Running for party position or public office is a

government activity, plaintiffs allege the NY Scheme is discriminatory, as a

similarly situated non-disabled candidate has a significant advantage in amassing

enough signatures in the short required period, and challenge-proofing a

candidacy by garnering additional signatures. This violates their rights under

ADA Title II.


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3. New York receives federal funds from the Department of Housing and UrbanDevelopment. The New York State and Nassau County Boards of Elections

receive federal funds under the Help America Vote Act. As recipients of federal

dollars, they are subject to the Rehabilitation Act (29 U.S.C. 794), which also

prohibits discrimination on the basis of disability. Plaintiffs allege the same

violation of their rights under this Act as well.

4. Not counting the institutionalized, 22% of the voting age population has sometype of disability (US Census, 2000). Nassau county has an aging population,

those same census statistics show the disability rate among seniors is

substantially higher at 42%, and for Black seniors, 53%. Disability effectively

reduces the signing pool, as anyone who has knocked on the door of a shut-in can

attest. Not allowing the disabled to register their support by other means as an

accommodation under ADA Title II, such as by voice, gesture, phone, email, mail,

online petition, and on-the-spot proxy effectively removes them from the signing

pool. Removing a substantial number of voters from the signing pool severely

burdens plaintiffs Rights to Vote.

5. The NY Scheme, particularly 6-136, requires more than a cursory effort but infact hours of labor. This severely burdens (all) plaintiffs Rights to Vote, even if

they were not disabled. Plaintiffs as voters repeat the same violation, that the

requirement frustrates their right to cast a meaningful ballot, protected by the

First and Fourteenth Amendments.

6. Plaintiffs Dekom and Jacoby are part of the 68% of voting age Americans who areeither fat or obese (according to the CDC). This segment of the population is a

discrete group. The NY Scheme, particularly 6-136, is tantamount to a physical


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test, and severely burdens their Rights to Vote. It violates their rights of Equal

Protection as a similarly situated fit person would be much better equipped to

perform a physical test.

7. Plaintiff Robert Pendleton is a senior citizen, which is a discrete group. Accordingto the US Census, 65 and over are 15.3% of Nassau county. The aforementioned

physical test violates their rights of Equal Protection in that a similarly situated

younger person would be much better equipped to perform a physical test.

8. The signature petition period for federal office is March 20- April 16, 2012, whichencompasses Passover, April 7-13. Nassau County is 15.5% Jewish. Holy week for

western Christians (most Catholics and Protestants), commences Palm Sunday,

April 1, and ends Easter Sunday, April 8. The Orthodox (eastern) Holy Week is

the week after, April 8-15. Nassau county has large Catholic, Protestant, and

Orthodox populations. Effectively removing substantial populations from the

signing pool for a significant time by transposing the signature petition period

onto holy weeks severely burdens plaintiffs Rights to Vote.

9. These demographics are not uniformly distributed throughout the state but areoften localized. Plaintiffs live in such localities. As a result, plaintiffs Equal

Protection rights are violated as similarly situated candidates less reliant on those

demographics would have a substantial advantage.

10.Plaintiffs are Catholic, the petition period described above conflicts with theirreligious observance, effectively eliminating 30% (8/27) of the petition days. This

violates their rights of Equal Protection, as a similarly situated candidate who is

not religious would have 42% more time and a substantial advantage.


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11.Plaintiff Dekom is white and lives in an Election District (905 voters) that islargely Black and Hispanic (Census VTD white=19.8%). It also encompasses two

public housing projects. When gathering signatures in 2011 for Member of the

Nassau County Republican Committee, a race confined to that ED, he found no

one in the projects would open the door. He ran into one of his neighbors on the

street and asked for her signature, but as her English is poor and the petition is

not in Spanish, she did not sign. In some instances, as here, the NY Scheme

requires members of one race to overcome any possible racial animus or language

barrier to complete a state mandated action. The fact is that sending a minority to

secure a public endorsement from members of the majority is a much different

burden than it would be for a member of that majority. Incorporating race as a

possible factor to getting nominated violates plaintiffs Fifteenth Amendment

Rights. Incorporating purely subjective factors in government action violates

plaintiffs Due Process rights. Plaintiff's rights of Equal Protection are also

violated, as a similarly situated candidate who speaks Spanish or is of a different

racial composition would have an advantage.

12.NY law provides that the members of a countys two largest parties elect thecountys two Election Commissioners. The same process applies to State

Elections Commissioners. In order to gain that right to vote, a voter must

successfully execute the NY Scheme and then get elected as a party committee

member. Plaintiffs allege the Ny Scheme, being necessary to gain the right to vote

for a public official, is a test or device prohibited by the Voting Rights Act,

Section 201 (42 U.S.C. 1973aa).

Petition process violates privacy of the right to vote


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13.Election Law 7-202(1)(e) provides a voter the protection of the secret ballot. Thesame right is found in the Fourteenth Amendment and the First Amendment

protection of anonymous political speech. However, for a candidate to get

nominated, some voters must surrender their privacy rights (Election Law 6-130)

and let their ballot preference be known by signing the designating petition,

which is a public document. This also subjects them to harm, like identity theft

(see #40, 41) and political retaliation. In Nassau county in 2010, two party-

endorsed candidates drew primary challengers. In response, a local party chair,

Francis X. Frank Moroney, sent a widely distributed email stating in bold

letters that members of the party committee could not carry their petitions and

that any supporting them should resign. Moroney also holds a senior position in

county government and many committee members work for the county. Did any

of them fear for their jobs? This is the exact scenario a private ballot is intended

to prevent. In an email to Dekom on 12/8/11, a party official, JJ Galluscio,

claimed he lost his executive leader position because of his association with

plaintiff: As I predicted my standing with you my friend was I believe the straw

that broke Frank's (Moroney) back and I was removed as leader. The NY

Scheme, particularly 6-130, which necessarily results in surrendering the secrecy

of the ballot by publicly revealing the candidate preference of the signer, violates

plaintiffs as voters private ballot and anonymous speech rights of the First and

Fourteenth Amendments, as well as their privacy protection afforded by Election

Law. It severely burdens plaintiffs core political speech rights as revealing such

choices in no way justifies a compelling a state interest which cant be advanced


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otherwise. It violates their Equal Protection rights, as a similarly situated voter

who did not sign a petition would never have his ballot preference revealed.

14.When the petition carrier (witness) is not the candidate, he also is forced tosurrender the privacy of his ballot by publicly revealing his candidate preference

(Election Law 6-132(2)). Plaintiffs are likely to carry petitions (be a witness) for

others (such as each other). The NY Scheme, which necessarily results in publicly

revealing the candidate preference of the witness, violates plaintiffs rights as

previously elaborated.

Exercising the rightto vote should be easier than renewing the drivers licensepriv ilege

15.The NY Scheme requires an individual candidate to collect signatures from aspecific geographic area (Election Law 6-136). The signer must be registered to

vote in that area, on the active voter list, enrolled in the candidates party, and

still qualified to vote there. A list of such people is known as a walk list and is a

necessary part of the process. Creating a walk list requires advanced data

processing skills described in Exhibit A, and money. After submission, Election

Law 6-154 provides the petition can be objected to, and does not limit the

grounds. So a valid petition is not merely having someone sign, it is a

combination of factors including:

1) the date of the election listed is totally accurate.2) the signature and in whose presence it was signed.3) that the address is legible, properly recorded and totally accurate, and

that the address was recorded in the signers presence.

4) if the signer signed another petition.5) the accuracy of the date, such as if its out of sequence.


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6) though the signers address is already recorded, the Town or City (asthose words are defined under NY law) must also be recorded and

accurate. Its a trick question, as people regularly confuse it with their

hamlet, which is the mailing address town. For instance, plaintiff

Dekom lives in the hamlet of Manhasset, which is in the Town of North

Hempstead. His mailing address town is Manhasset. Though a federal

decision struck it down (Molin ari v . Pow ers), its still used.

7) that any errors are properly initialed (though it is questionable if thatmeans by the signer, the witness, or both).

8) the accuracy of the multiple political jurisdictions recorded for theaddress of the candidate.

9) the nature of the witness and the accuracy of the witness statement,such as his address.

10)though the address of the witness is already recorded, the Town orCity trick question occurs again in the Witness Identification

Information section.

11)that the office or party position includes not just the name of the postbut also its geographic description.

12)the accuracy of the cover sheet, the numbering of the pages. Courtsdisagree on whether the failure to number is a fatal error or not.

13) the veracity of the signature is subject to verification by either staffersof a Board of Elections, or a Judge, none of whom is required to have

formal training in handwriting analysis. An affidavit from the voter

may not be sufficient.


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14)Whether or not a notary, when used, provides license number orexpiration date, and if those items are accurate.

15)If the notary does not accurately record the number of signatures inhis statement.

16)Any reason under the sun.Exhibit B is a lengthier treatment of petition pitfalls, excerpted from Election

Law Update -2008, produced by defendant NYS Board of Elections. Though

sixteen (of twenty-six) pages, it is still only a partial list. Most of the pitfalls are

not found in regulation or statute but in case law (there are 132 case cites in

Exhibit B). If any of these issues is raised as an objection to a candidacy, its

validity is subject to the caprice of a partisan Board of Elections. When an

objection is filed, a candidate is entitled to notice, but might not get it, and a

Board might ignore that. Commonly a Board will overstep its purely ministerial

function and assume the role of finder of fact. For some races, Due Process

consists of a hearing to which the defendant is not allowed to participate, while

evidence and testimony against him are examined. If he loses, he can seek

judicial review (16-102). The cost to file is $305, not including the expense of a

specialized attorney. The case must be filed and process served within three days

of the date ofdetermination , not the date ofnotice. The presumption of the court

is he is in the wrong until proven otherwise. The case is adjudicated by a partisan

judge. This gauntlet makes New York the most difficult state in which to exercise

political rights. According to Dr. Gerald Benjamins Decision 1997:

constitutional change in New York (Rockefeller Institute Press, 1997), New York

accounts for half of the election litigation in the U.S. Benjamin, a former election


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official, is an expert on NY governance and is the Director of SUNY New Paltzs

Center for Research, Regional Education and Outreach. The NY Scheme does not

preserve or encourage electoral integrity; it destroys it. The NY Scheme, being

unnecessarily complex and highly subjective, severely burdens plaintiffs Rights

to Vote.

16.Plaintiffs as voters allege the subjectivity and unnecessary complexity of the NYScheme as described prevents competition, frustrating their right to cast a

meaningful ballot, as protected by the First and Fourteenth Amendments.

17.Election Law 3-102 empowers the state Board of Elections. County Boards arenot explicitly empowered by statute, but inferentially by 3-200. Both have an

indeterminate power under 6-154 in regards to objections, but in practice they

adjudicate them. New York mandates both be bipartisan, the idea being that the

agenda of one would offset the agenda of the other. The Nassau Democratic

Elections Commissioner, William Biamonte, said so:

The only people who should be working (at the Board of Elections) are

strong advocates for their political party. They work side-by-side, making

sure everything is done properly and voters get fair and honest elections

(New sday 9/27/11).

Equal and opposite subjective parties do not add up to objectivity, and certainly

dont when it concerns outsiders such as plaintiffs. In fact Commissioners are

known to cooperate to bump party insurgents:


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In the petition-challenging game, candidates backed by the party bosses

have an enormous advantage: friendly judges and Board of Elections

employees who owe their jobs to party organizations. Neither group has

ever been accused of favoring insurgents. As a result, candidates may be

knocked off the ballot by party loyalists at the Board of Elections and kept

off the ballot by judges on the state supreme court, many of whom are

hand-selected county leaders. The Scandal of Reform , Frank Barry

(Rutgers University Press, 2009)

The Commissioners are periodically reelected solely by their party, not by a

public vote or executive act. If they do not carry their partys water, they can

expect to lose their salary. They have a pecuniary interest in the outcome of their

process. Plaintiffs are insurgents. Dekom and Jacoby had their petitions

invalidated in 2011; all plaintiffs believe it is certain their petitions to be objected

to and adjudicated by such Boards. As all Boards are bipartisan, 6-154

automatically empowers non-party members to have a voice in another partys

affairs, violating plaintiffs associational rights. The exercise of authority that they

dont have, the necessary subjectivity of these Boards, violates plaintiffs First and

Fourteenth Amendment rights. A similarly situated anointed candidate would

receive more favorable treatment.

18.The civil rights era literacy test (Exhibit C) had the effect of disenfranchising. Thegauntlet of the NY Scheme (such as Exhibits A & B) is far more complex and has

the same effect. Its disenfranchising effect is evidenced by Exhibit Bs 132 case

cites; they but a fraction. Plaintiffs allege the NY Scheme is so burdensome as to


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be a test or device prohibited by the Voting Rights Act, Section 201 (42 U.S.C.

1973aa). Plaintiffs as voters allege the test or device prevents competition and

frustrates their right to cast a meaningful ballot, violating the Voting Rights Act,

Section 201 (42 U.S.C. 1973aa).

19.The rules for the signature petitions are allegedly in Election Law 6-134,Designating petition; rules, but are actually found largely in case law. The rules

expand and change with new litigation. A person of ordinary intelligence who

read the 749 words of 6-134 could not be sufficiently aware of the minutiae found

in reams of case law, or predict new rules. The rules of the petition process,

wherever they may be, violate plaintiffs First and Fourteenth Amendment rights

as they are void for vagueness and fundamentally unfair.

20.6-154 permits objections to be filed on any grounds. It is like reporting to thepolice that an individual committed a crime whose parameters are limited only

by imagination. A plaintiff of ordinary intelligence cannot possibly defend

himself against unlimited forms of attack. It also makes no provision for its

adjudication, leaving the matter as a perennial quarrel between Boards and

Courts. As applied it subjects a candidates fundamental rights to adjudication by

a subjective body. It is discriminatory as unfamiliarity with the arcane rules by

which it operates put a novice at a severe disadvantage to a similarly situated

seasoned candidate. Even if both candidates are seasoned, the anointed one is

more likely to get a pass from a Board while an insurgent will not. The statute

violates plaintiffs First and Fourteenth Amendment rights as it is void for

vagueness and fundamentally unfair.


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21.Plaintiffs allege that same vagueness of 6-134 and 6-154, and the rules thatgovern them wherever they may be, is a violation of the Voting Rights Act (42

U.S.C. 1971 (a)(2)(A)), requiring uniform standards, and that the overbroad and

selectively enforced standard of what constitutes a fatal objection is a violation of

the errors and omissions clause in the same Act (42 U.S.C. 1971 (a)(2)(B)).

22.The vague rules of the NY Scheme and the unbounded ability to file objections donot serve any legitimate governmental end, but serve specifically to create an

avenue by which a candidacy can be intercepted before reaching the ballot.

Intentionally jeopardizing plaintiffs political rights or creating any such

vulnerability violates their First and Fourteenth Amendment rights.

23.Someone realized how abusive this process could become, as evidenced byElection Law 2-126. It prohibited political parties from materially participating in

the pre-primary process, such as by having their attorneys attack insurgents (see

the example of Robert Giuffre in the OTSC Motion). That law was struck down in

2006 (Kerma ni v. NYSBOE487 F.Supp.2d 101 NDNY 2006). Plaintiffs, being

insurgents, expect such attack. The ability of a quasi-governmental body to

materially take sides, one which also controls the employment of half the

Elections Commissioners and half the Board of Elections, violates plaintiffs

Rights to Vote.

Unnecessary risk in exercising ones rights

24.Because the March 20-April 16 petition period is 25% shorter, the 6-136 (et seq)signature requirements have been reduced 25%. Compared to the previous

petition period, this period will be a time of limited daylight and inclement

weather, both of which substantially reduce the time normally allowed for


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petitioning. These difficulties make Election Law 6-136 (et seq) a severe burden

on plaintiffs Rights to Vote.

25.Even a slightly different signature than the one that appears on a voters buffcard, filed perhaps decades earlier, can give rise to allegations of possible forgery.

Though they rarely do, every Board must investigate (Election Law 3-104.2) and

upon belief, refer such cases to the District Attorney (3-104.3). According to the

minutes of the Nassau Board of Elections (8/3/11), six of the eight candidates for

public office weighed by them faced such allegations. In the ordinary exercise of

electoral rights, plaintiffs can reasonably expect to be accused of criminal

misconduct, and perhaps be prosecuted for it, strictly as a result of this

antiquated system. This inherent risk in the NY Scheme severely burdens

plaintiffs Rights to Vote.

The signature requirements of Election Law 6-136 (et seq) are fundamentally unfair

26.The Obama campaign was required to turn in 5,000 signatures and turned ineleven times that, 56,586. In 2002, Andrew Cuomo turned in 100,250 for a

15,000 threshold. The practical signature requirement is six times the statutory

requirement (6-136 et seq). This is in excess of every known legal requirement

and severely burdens plaintiffs Rights to Vote.

27.By federal order, the number of signatures needed to run for Congress is 938*(*2012 only, normally 1,250). In 1992, the state temporarily lowered the major

party petition requirements for member of Congress by half, from 5%/1,250 to

2.5%/625. No ballot flooding or other imaginary crisis occurred. Yet the state,

in full knowledge of its efficacy, returned to the more onerous standard. The


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current standard, being above the proven 1992 standard, severely burdens


28.Plaintiff Dekom as a Republican candidate in the 3rd CD would have to get 938signatures. CD 10 has approximately 13,152 Republicans, so the Republican

candidate there would need only about 494 signatures to be on the ballot half as

many. This violates plaintiffs Equal Protection rights, as it imposes a

substantially heavier burden on him than a similarly situated candidate for the

1oth District.

29.Plaintiff Dekom, as a Republican candidate for Congress in the 3rd CD, wouldhave to collect signatures of 1.7% of the party members in his district, while his

Democratic opponent will only have to collect .9% (Exhibit D). This is because the

district is more Democratic. The disparity in burden violates plaintiffs Equal

Protection rights, as it is substantially easier for a similarly situated candidate of

the Democratic party to get on the ballot.

30.Though two candidates might have to get the same number of signatures, it willbe easier for one if the enrollment favors his party, as above. New York is heavily

Democratic, so it is generally easier to be nominated as a Democrat than a

Republican (Exhibit D). The post belongs to neither party but to the people,

however the difference in burden creates a state-sponsored incentive to drive the

candidate class to the Democratic party. Plaintiffs Dekom and Jacoby are

Republicans and Pendleton a Conservative. They assert this disparity violates

their Equal Protection rights and that of their parties, and violates their First

Amendment rights of political association.


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31.Exhibit D shows the lesser the position, the greater the actual percent signatureburden. The arbitrary and capricious signature requirement is disproportionately

harder on plaintiffs when equalized with similarly situated candidates for higher

office, violating their Equal Protection rights.

32.Plaintiffs have run for party position elected by the public and would do soagain. These posts, such as member of the County Committee and Judicial

Delegate, have no salary, no statutory responsibility, no staff, and no budget. Yet

the signature requirement is two and a half times that of any public office listed

in Exhibit D, each of which has a salary and legal obligations. It is also often

greater than the flat 25 signature requirement of significant unpaid public offices,

such as Board of Education and Fire Commissioner. This violates plaintiffs rights

of Equal Protection, putting a heavier burden on them than on candidates for

positions of much greater responsibility.

33.Once a person signs a designating petition, he is removed from the signing pool(Election Law 6-134.3). This creates an obstacle to collecting an adequate number

of signatures. If the maximum percentage imposed by law is 5%, even in the

unlikely event of full participation, the maximum number of candidates of 20 is

well below the threshold of what would confuse a voter. The true number of

eligible signers is much below the active voter list due to death, moving,

language, and other factors. As a result the practical limit is well below 20.

Removing voters from the signing pool per 6-134.3 severely burdens plaintiffs

Rights to Vote.

34.Nassau County reports numerous dead people on its voter list, the oldest of whichhas been dead since 1998. The petition requirement is based on the number of


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names on that list (6-136), obviously, a dead person cannot be a voter.

Candidates cannot secure the signature of a dead person, therefore requiring

them to collect a number which incorporates the dead severely burdens plaintiffs

Rights to Vote.

35.When knocking on doors, one gets they dont live here anymore far more oftenthan getting a signature. According to the US Census, 1 in 6 Americans (16.8%)

move every year, the rate for renters significantly higher. Movers who dont

change their voting address corrupts the voter list. A candidate cannot lawfully

get the signature of someone ineligible to vote at that address. Basing the petition

requirement on a voter list (6-136) with such a high corruption rate severely


Changes in society over the last fifty years make the NY Scheme far more difficult than

intended

36.The NY Scheme was created before locking residential buildings becamecommon, or the proliferation of gated communities, nursing homes, and other

areas where access to voters is strictly limited. Plaintiffs live in areas with these

features. Requiring plaintiffs to secure the signatures of people who are for

practical purposes impossible to access, or including them as part of the formula

for total necessary signatures (6-136), severely burdens plaintiffs Rights to Vote.

37.The NY Scheme was created before the widespread use of home telephones,reply-mail marketing, fax, cell phones, and the internet and email. Any of these

methods could be adapted to register voter support. An affidavit could suffice as

well. Requiring the use of an obsolete method (6-130, 6-132), being the most time


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consuming and least efficient way of evidencing voter support, severely burdens


38.According to the US Census, violent and property crime have more than tripledsince 1960. The US Census Bureau does a door-to-door activity similar to a

signature petition. In May of 2010, the Bureau reported 113 attacks on workers in

that month alone. For the first time, they now track Unsafe to enumerate

locations, along with Refused with threat and refused with attack. These three

categories comprised 41% of a sample of 1,000 refusals. The NY Scheme,

particularly 6-136 (et seq), involves a widely acknowledged risk of physical attack,

particularly for women. This may explain why New York ranks 31st in the nation

in female representation in state legislatures. This inherent risk in the NY

Scheme severely burdens plaintiffs Rights to Vote.

39.Because of the fear of crime, it is now normal to ignore a stranger at the door. Theneighborhood that doesnt lock its doors no longer exists. This has increased

the difficulty of the NY Scheme, particularly 6-136 (et seq), severely burdening


40.Once a fringe crime decades ago, identity theft is the fastest growing crime in theUS, according to the FBI, the FTC, and USPS. Rings comb sources such as public

records for signatures and other personal data. In 2008 the FBI identified one

such emerging scheme that raided home equity lines of credit, resulting in

arrests. Such records are kept as a result of the NY Scheme. The public has less

desire than ever before to sign documents for strangers, increasing the difficulty

of complying with the NY Scheme, particularly 6-136 (et seq), severely burdening



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41.Incurring the risk of identity theft frustrates plaintiffs as voters core rights ofpolitical speech and to cast a meaningful ballot, as protected by the First and

Fourteenth Amendments.

42.Prior to the rise in identity theft, Harvard political scientist Robert Putnamproved the petition process was a dinosaur. His bestseller Bowling Alone

(Simon & Schuster, 2000) illustrates how over the last few decades, Americans,

once a nation of joiners, now increasingly go it alone. Empirically, attendance

at club meetings has dropped 58% and petition signing is down 30%. The

growing focus on privacy is at cross purposes to the petition effect of laying bare

ones vote (see #13). The simple fact is modern Americans just dont want to do it.

The increased difficulty of the NY Scheme, particularly 6-136 (et seq) severely


43.Perhaps due to the aforementioned culture of privacy, in-person soliciting of anytype is now totally unwelcome and socially unacceptable. It is prohibited in select

communities and public areas, like malls. That the NY Scheme, particularly 6-136

(et seq), requires plaintiffs to perform a task that now carries such a stigma

severely burdens their Rights to Vote.

44.In addition to the barriers to entry presented by the NY Scheme, candidates faceothers. According to a study by the Council for State Governments, the cost of

races for governor has increased seven-fold in the period 1978-2006. The lack of

privacy is also a barrier: a candidate can expect his life and family to be subjected

to exacting scrutiny. The internet and social media ensure wide dissemination of

his personal details. The 24 hour news cycle has amped up the partisan rancor in

the name of selling news. There are required personal financial disclosures and


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periodic campaign filings, which carry penalties if not met. And then theres

stagefright. "It is even scarier than rattlesnakes," According to Dr. Paul Witt,

assistant professor of communication studies at Texas Christian University. "The

idea of making a presentation in public is the No. 1 fear reported by people in the

U.S." The regulatory burden may keep out glory-seekers, but it also drives away

many good people. These barriers have increased substantially in the past few

decades, making those of the NY Scheme superfluous and damaging to

competition: In 2010, New York had 35 races for Congress or larger, including

governor. Of those, 37% had a Republican primary and 14% for the Democrats.

Georgia is as red as New York is blue, and had 23 races for Congress or larger,

including Governor. 70% had Republican primaries and 44% for the Democrats.

33% of the New York primaries had more than two candidates, in Georgia it was

66%. New York has twice the population and a higher median income, but a

fraction of the competition. According to a study by Citizens Union (Reshaping

New York, November 2011), the number of uncontested state general election

legislative races (in which there is no opponent or no major party challenger)

increased from 1 percent in 1968 to 19 percent of all races in 2010. The NY

Scheme, particularly 6-136 (et seq), being unnecessary and anti-competitive,

severely burdens plaintiffs Rights to Vote.

45.The NY Scheme is killing political county committees: in Nassau county with 1.3million people, participation in the Republican county committee has

plummeted, despite having more than 325,000 enrollees. The Conservative party

is an endangered species whose very existence is the subject of litigation

(Kosow ski v. Donovan ) because it may not have elected enough members,


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despite having almost 10,000 enrollees. Each committee must lawfully elect 568

members out of a possible 2,274 races. A large portion of those races now draw

no candidates (for the Conservatives, about 75%). In the Republican races where

there was a candidate, none were contested. Were it not for patronage (coercion),

there would be even fewer participants. Plaintiffs Dekom and Jacoby are

Republican and Pendleton a Conservative. The NY Scheme, particularly 6-136 (et

seq) severely burdens plaintiffs Right to Associate.

46.Plaintiffs as voters allege the NY Scheme is a wholly unnecessary barrier to entryfor candidates and stifles competition, frustrating their right to cast a meaningful

ballot.

The right to vote denied

47.Absentee ballots are prohibited in a party position primary per Election Law 8-400(9). NY now has no-fault absentee voting, and plaintiffs, in their capacity as

voters, can reasonably expect to be absent. Being prohibited from voting in the

race which would gain them the right to vote for a public official violates their

rights protected by the First and Fourteenth Amendments. It also violates their

Equal Protection rights as a similarly situated voter in a party primary for public

office can get an absentee ballot.

48.Military personnel are not allowed absentee ballots in party position primariesper Election Law 10-104. The voters in that race decide who gains the right to

vote for a public official, the Elections Commissioner. Removing a substantial

segment of the voting pool, military voters, severely burdens plaintiffs Rights to

Vote. It violates their right of Equal Protection, in that a similarly situated


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candidate who is less reliant on military support would have a substantial

advantage. Note this also violates the Uniformed and Overseas Citizens Absentee

Voting MOVE Act.

49.Election Law 10-108(1)(a) also denies military personnel a ballot in party positionprimaries and the same argument as above is reiterated.

50.Plaintiffs aver they are possible candidates for future party positions and publicoffices, and that they will be harmed if the violations herein described are not

remedied.

CONCLUSION

In order to be nominated, New York would make a pregnant woman go door-to-door in

a high crime area. It would make a man in a wheelchair go up stairs. It would make a

senior citizen walk on icy walkways after dark. It wouldnt do anything to a Hispanic

voter because hes locked out of the system, along with parts of our armed forces. This is

what the government of New York considers the least restrictive means of exercising

the right to vote.

Most states have done away with petitioning and rely on a filing fee. Exhibit E is a

sampling of filing fee states varying in population, geography, and wealth. None have

suffered any harm to democracy, either by ballot flooding or other means, even under

the most vigorous tests. A filing fee to run for office is race-neutral, disability-neutral,

party, age, gender, everything neutral; otherwise known as fair. A low fee, along with

an in form a paup eris provision, ensures there is no economic discrimination.


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Yet here we are still stuck with this century-old process with its quixotic rules. They

should be in a museum- why do we still have them?Because polit icians benefit. It keeps

their competition down. It also vests major party county chairmen with extraordinary

authority and influence over who gets nominated. This arrangement is ripe for

patronage: hire my people, you get nom inated. Whereas the rest of the nation has

repudiated boss politics, New York breeds it.

The NY Scheme is widely known to be subject to gaming, so that a partys chairman, not

the voters, picks the partys candidate. If one plowed through the thousands of pages of

case law, statutes, and regulation, a reasonable person would conclude its purpose is

specificallynotto provide fair elections, but to perpetuate the power and influence of a

few. Those two interests are fundamentally at odds. The only purpose the Election Code

can serve is to provide an unequivocally fair system of determining government,

through wholly democratic means, which allow for the widest possible participation.

Due Process demands this system be and appear fair in all respects. The NY Scheme, not

comporting with these ideals, is an insult to the American creed and a cancer on

democracy.

RELIEF

Wherefore, plaintiffs demand an Order:

I. Temporarily and permanently enjoining:

1. defendants NYS Board of Election and Nassau County Board of Election, and anyBoards of Election constituted under the laws of New York from enforcing the


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rules regarding the validity of a designating petition found in 6-134 and wherever

else they may be.

2. any party other than a Supreme Court or higher from executing or enforcing anyprovision of 6-154 after the word valid in 6-154.1. This shall not be construed as

preventing a legal proceeding to enforce 6-122 eligibility requirements under

Article 78 or by Election Law 16-102 proceeding.

3. defendants and any Boards of Election from enforcing any mathematicalrequirement for signatures on a petition found in 6-136 or wherever they may be.

And requiring:

4. Defendants immediate compliance with VRA 203 and translate the designatingpetition into the triggered languages forthwith, and make them available on its

websites.

5. Defendants immediate compliance with the MOVE Act and provide absentee andmilitary ballots for all races forthwith upon request.

6. That a single page of a designating petition, filled in as to the candidates name,office sought, residence, and signed by the candidate at Witness, shall establish

a candidacy per 6-118, as well as by other statute that may require a petition.

7. That upon receiving such a petition, any receiving Board verify the geographiceligibility of the candidate by means of the NYSVoter database or the state

website at voterlookup.elections.state.ny.us, and relate those findings to the

candidate by the fastest means at its disposal, and post same to its website, within

24 hours.

8. The processes outlined in # 6 & 7 be repeated for a candidate who receivesWilson-Pakula authorization, and #9, should the Court adopt it.


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9. In the alternative, that such a petition be accompanied by a filing fee, as follows:a) not to exceed the greater of $1,000 or the average of the fee paid by major

party gubernatorial candidates of the fifteen lowest cost states who use a fee

system, not to exceed $500 (or half the fifteen state average) for a candidate

whose jurisdiction is less than 100,000 voters, which amount as of March 20,

2012, is $1,000 and $500 respectively, and no fee for party position.

b) an in form a paup eris fee of $20 for a candidate whose income is below the USHealth and Human Services poverty income guidelines, and whose net worth

is below it.

c) any government body supervising an election, other than a Board of Elections,accept a filing fee of $100 and the described designating petition in lieu of any

required signature petition, and such fee shall apply to unpaid public offices.

d) That this fee apply for each party primary sought.10.That defendants fully comply with the Voting Rights Act in regards to the election

of all Elections Commissioners by June 15, 2012.

And that by June 15, 2012:

11.Defendants revise the designating petition requiring only the data described in#6, above, and to include requests for candidate contact information, that such

form be made available and posted to defendants websites.

12.That such form bear a red letter legend acknowledging that failure to file requireddisclosures may result in a fine of up to $500 per violation.

13.Bear another legend stating I declare that I am not a candidate for incompatibleoffices as defined by the laws of the State of New York, and that I am not a federal

employee which makes me ineligible to file as a candidate for this office. I further


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declare that I have support within the community, if qualified as a candidate for

said office, I shall not withdraw; and that, if elected, I shall be qualified for and

assume the duties of said office.

14.the State of New York adopt the least restrictive means of designating ornominating a candidate for party position or public office, that being such a

candidacy is established in the same manner as in the Preliminary and

Permanent Injunction of this Order.

15.The offending statutes be struck from all websites and guidance produced bydefendants.

16.Defendants compile a running for office handbook not to exceed twenty pages,and where applicable make it available in VRA languages, and that it be linked

and downloadable prominently on its website as a banner above the header, and

of equal size, and that banner state in large letters: RUNNING FOR OFFICE IS

NOW EASIER THAN EVER!

17.that all Boards of Election in New York compile a list of public offices and partypositions for which it receives registration and publish it on its website, along

with incumbent and term.

18.Failing a legislative solution to the issue of Elections Commissioners beingelected only by a segment of the eligible voters, that all county Elections

Commissioners be removed and replaced by one post to be publicly elected, and

the State Elections Commissioners be removed and replaced by one post to be

publicly elected, and that such election and primary election be concurrent with

that of the State Assembly, except that the term of office be concurrent to the


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2012 US Senator term, elected every six years hence, until such time as the

legislature determines otherwise.

III. Award of costs and fees.

IV. Other such relief as the Court sees fit.


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E X H I B I T AHow to create a petition and a walk list.


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Instructions on how to create a petition and walklist for a race for member of a county

committee, in the most efficient way possible.

You must have command of English because all the data is in English, and so is the designating

petition form. You cannot vote for Elections Commissioner if you do not understand English.

First, go to the county Board of Elections and submit a FOIL request for the voter roll, specify

that you want it on an electronic medium. This used to cost $150, now its free. They may call

you when its ready, otherwise follow up of your initiative. When ready, go retrieve it.

Go to Staples and buy the following: a laptop ($299), a printer ($79.99), Microsoft Excel

($139.99) and a ream of legal paper ($11.49). Load the data onto the laptop as it is a large file

(163 MB) and would be unwieldy to constantly reference it from a disk. It will take about three

to five minutes to load. Save a copy with a different name, as sometimes it crashes and corrupts.

I have had to replace the data file three times.

Download the designating petition form from the NY Board of Elections website. Open a copy,

then look up your record in the voter list. On the petition, fill in the name of the party and the

primary date. Enter your name. Where it says Public Office or Party Position, be aware that

under NY law, the name of an office is actually two things: the name of the office and a

geographical description. If you fill in too little your petition may get objected, then again, the

more data you provide, the more there is to object to. In Nassau it is typical to put in the name

and number of the Election District, the Assembly District, the town, county, and state. Next fill

in your place of residence.

Under I do hereby appoint, fill in the names of three people registered in your party in your

county who can serve as a vacancy committee, and their correct addresses.

In the voter signing area, on the right side, fill in the name of the town where the voters reside,

not you, ten times. When the voter signs, you can fill in the address, but you have to do it in his

presence. Date it.

Below that section, fill in your name, party, and your address. Tally up the number of signatures

on the page and fill it in. Sign and date. Under Town, fill in the name of your town, not the

voters, then the county. Sign and date when complete.

In order to get signatures, you will need to find the people of your party in your neighborhood.

This list, organized by street, is a walk list. So go back to Excel and the voter list.

On the Home menu bar, click on Sort & Filter. On the dropdown menu, click filter. This

will add an arrow next to all your headers at the top of the data columns. Move right 35 spaces to

column AI, which has AD atop it. Click on the down arrow. On the menu, click (Select

All) to un-select it, then click on your AD to select it. Press Ok. This removes all but your

Assembly District from your list.


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Move 5 spaces over to column AM, which has ED atop it. Click on the down arrow. On the

menu, click (Select All) to un-select it, then click on your ED to select it. Press Ok. This

removes all but your ED.

Move to column D, which has PARTY atop it. Click on the down arrow. On the menu, click

(Select All) to un-select it, then click on your party to select it. Press Ok. This removes all butyour party.

Now Save with a different filename, AD#-ED#, since you will need the master list again. It

will take a few minutes to save.

Go to Sort & Filter. Click on it, then click on Custom Sort. Click on the Sort by menu,

choose ADDR_STR. Click Add level, click go to the new Sort by box, click

ADDR_TYPE.

Keep adding levels for ADDR_PDIR, ADDR_NUM, andADDR_OTHER. It must be

done in this order. Click Ok when done.

A dialog box will come up- Sort warning. Make sure the radio button is selected for Sort

anything that looks like a number, as a number. Press Ok.

Each voter record has 75 columns. Highlight everything but the name, address, and date of birth,

and press delete.

Print.


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E X H I B I T BNYSBOE petition guidance


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E X H I B I T CCivil Rights Era literacy test


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http://www.alabamamoments.state.al.us/sec59ps.html


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E X H I B I T DSelect major party signature requirements for public office


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E X H I B I T E

Various Filing Fee states, cost to run for Governor, US House


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Var i ous " f ili ng fee" s t a t e s , cos t f o r e s t a b l ishe d pa r t y

STATE GovernorUS

House WebAK 100 100 http://www.elections.alaska.gov/doc/forms/B05.pdfCA 3500 1740 http://www.sos.ca.gov/elections/elections_cand.htmKS 1920 1760 http://www.kssos.org/elections/12elec/2012_Election_Fact_Sheet.pdfKY 500 500 http://elect.ky.gov/candidate/Pages/default.aspxLA 1100 900 http://www.sos.la.gov/Portals/0/elections/pdf/FEES2010120209.pdfMD 290 100 http://www.elections.state.md.us/candidacy/requirements.htmlMN 300 100 http://www.sos.state.mn.us/index.aspx?page=895MO 200 100 http://www.sos.mo.gov/elections/2012primary/2012candfiling.aspMS 300 200 http://www.sos.ms.gov/elections_candidates_lobbyists_center.aspxMT 1945 1740 http://sos.mt.gov/elections/NC 1396 1740 http://www.ncsbe.gov/content.aspx?id=64NE 1050 1740 http://www.sos.ne.gov/elec/2012/pdf/Filing%20Fee%20Schedule.pdfNH 100 50 http://www.sos.nh.gov/faqs.pdfNV 300 300 http://nvsos.gov/Modules/ShowDocument.aspx?documentid=2222OK 1500 750 http://www.ok.gov/elections/documents/packet10.pdf

OR 100 100 http://oregonvotes.org/pages/cand/index.htmlUT 536 435 http://elections.utah.gov/register/becoming-a-federal-candidate

WA 1669 1740 http://www.sos.wa.gov/elections/WV 1500 1740 http://www.sos.wv.gov/elections/Pages/Candidates_and_Committees.aspWY 200 200 http://soswy.state.wy.us/Elections/Elections.aspx

ada complaint actual

Documents