ROSARIO v. ROCKEFELLER
Legal provision: Association
Argument of Burt Neuborne
Chief Justice Warren E. Burger: Mr. Neuborne?
Mr. Burt Neuborne: Mr. Chief Justice and may it please the Court.
This case involves the constitutionality of Section 186 of New York?s Election Law, which imposes severe restrictions upon qualified voters seeking to join the political party of their choice and to participate in their party's primary elections in New York State.
The complex and often indirect operation of New York?s deferred party enrollment scheme is set out at length in petitioner's brief at pages 4 through 7.
But while the operation of New York scheme maybe complex and difficult to follow, it's effect is very clear.
New York?s scheme imposes two serious impediments upon the free operation of the electoral process in New York State.
First, it establishes a cut off period for participation in a party primary which is longer than the cut off period of any other state in the United States.
In order to qualify to participate in a presidential primary in New York State which is in New York State are held every four years in June, a potential party enrollee must enroll in October of the preceding year, fully eight months before the party primary.
In order to participate in a primary in a none presidential year which in New York state are held in September, a potential enrollee must enroll in the party in October, fully 11 months prior to the primary in question.
Thus petitioners in the instance case, who registered to vote for the first time in December of 1971 and who sought to enroll in the party of their choice for the first time in December of 1971, were barred from voting in the June 1972 primary because their enrollments had not become effective on or before October 2, 1971, fully eight months before the primary.
The second impact which New York statutory scheme has on the operation of the political process is to impose a waiting period of a substantial period of time between the attempt of a voter to join the party of his choice and the effective date of his acceptance by the party.
Indeed, petitioners in this case who attempted to join the democratic party for the first time in December of 1971 and be completed solemn declarations of party loyalty at that time pledging to adhere to principles of the party and to support the candidates of the party generally at the next elections, will not be recognized by the state of New York as members of the democratic party until sometime between November 14, 1972 and February 1, 1973, a waiting period of between 11 to 14 months.
Indeed, the drastic operation of New York?s law can be understood, if we apply it to a person in New York State who registers today for the first time.
If one of the two million unregistered voters in New York qualified but unregistered voters in New York City were today to seek to enroll and to seek to register in a New York City registration office, he would be ineligible to participate in the primaries for the Mayor of the City of New York scheduled to be held in September of 1973 and his application to become a member of the political party in question would not become effective under New York Law until sometime between November 15, 1973 and February 1, 1974.
The existence of so drastic, a curtailment of the political process poses very serious constitutional issues, but we should note at the outset that there are several issues which are not posed in this case.
There is not posed in this case any issue of internal party regulation in that the statutes in question are imposed by New York State upon the political parties of New York whether or not they wish to have them applied.
Indeed, in the instant case, the Democratic Party, the party into which the four petitioners sought entry in December of 1971, appeared in state Court in June of 1972 shortly before the primaries and requested that petitioners similarly situated, that that plaintiffs similarly situated to the petitioners be permitted to participate in the democratic primary.
That State Court preceding was dismissed because of lack of time and has not been re-instituted, but we should emphasize that there is no interest whatever in permitting the political parties in the state of New York to regulate themselves raised by this case.
Nor does this case necessarily raise the arguably more difficult issue of party switching or the alteration of a pre existing party affiliation.
For the four petitioners in this case are all new registrants, first time voters, who are seeking to do nothing more than to register their initial party affiliation.
Chief Justice Warren E. Burger: Does the impact of your position has an effect on the parties and on people who are already registered in one political party or the other?
Mr. Burt Neuborne: I think not sir.
I think it would simply permit those persons who wish to join a political party to do so.
Chief Justice Warren E. Burger: What about those who?ve already joined one and they wanted to vote in the primary of the other party, wouldn?t your, the adoption since you opened that up --
Mr. Burt Neuborne: I Understand sir.
It would be possible for this Court to frame the decision narrowly to apply only to those persons who are seeking to register their initial party affiliation.
Chief Justice Warren E. Burger: Is that all you really to seek --
Mr. Burt Neuborne: No sir, we are not, we believe that the application of the New York process even to persons who have been members of one political party and who seek to alter their party affiliations raise very serious constitutional questions and we believe that under the least drastic alternative analysis which this Court has evolved that even those regulations cannot stand, but I simply --
Justice Byron R. White: Is there something in the record to show what, in what category the name plaintiff?s are?
Mr. Burt Neuborne: Oh!
The allegations are that they are registering for the first time and that they had never before been members of any political party and I do not believe that those facts are controverted or that any contention to the --
Justice Byron R. White: Well, it?s clear then that they are in the class of people who move from one county to another or from one state to another?
Mr. Burt Neuborne: That is correct also Your Honor.
Justice William H. Rehnquist: Can your narrower argument would be that the state?s interest against raiding, if it be a legitimate interest, can be adequately protected by dealing only with those who have been already registered?
Mr. Burt Neuborne: Precisely, by dealing with the potential class from which, if raiders are to come at all, they will come.
I suggest to the Court there is now pending before the Court, Casper versus Panticus, an appeal from a three-judge court in the Illinois District Court in which the issue of crossover participation, the issue of switching from the republican party to the democratic party was discussed by the Court below, the statute was declared unconstitutional.
And that case I understand is now pending on appeal before this Court now so that if this Court wish to address itself to the broader issue of crossovers as well as initial party affiliation, it could do so in the Panticus case.
The basic issue as we see it therefore raised by this case as well in New York may play such drastic obstacles in the path of persons seeking to register and record their initial party affiliation and we think the most obvious legal disability inherent in the New York scheme is that it obviously operates as a durational residence requirement.
Indeed, New York State, I do not understand to argue to the contrary.
It is conceded that any person who established a residence in New York on or after October 2, 1971 was ineligible to participate in the June 1972 primaries and it is conceded that any person who established to residence in New York on or after October 14, 1972 is currently ineligible to participate in the September primary scheduled for September 1973.
Instead of responding to the argument on the merits, New York has argued only that the petitioners as persons who are long time residents of New York lack standing to raise the durational residence requirement issue.
But there seems no doubt that petitioners have suffered an injury in fact at the hands of the New York?s differed enrollment scheme.
There seems no doubt that they possess the classic adversarial posture concerning the continuation of New York?s differed enrollment scheme.
And this Court in similar situations in the past has permitted petitioners situated similarly to the petitioners in this case to advance the arguments with persons who share a basic community of interest in dealing with the allegedly unconstitutional scheme before the Court.
Thus in Pierce versus the Society of Sisters, Thornhill versus Alabama, Barrows versus Jackson, Griswold versus Connecticut, Eisenstadt versus Baird and most recently in the Chief Justice?s opinion for unanimous Court in Bullock versus Carter, the Court permitted the petitioners before the Court to raise the arguments of persons with whom they were united in interest in seeking to deal with an allegedly unconstitutional scheme, especially when the continuation of the allegedly unconstitutional scheme would have an inhibitory effect upon the exercise of fundamental constitutional rights.
Moreover, the Rosario case was brought as a class action on behalf of all persons who were being impeded in attempting to join a political party by the operation of New York?s differed enrollment process.
Judge Mishler in his opinion in the District Court specifically noted to be a class action and thus we suggest that the petitioners herein have classic standing to assert the arguments of the members of their class as to the unconstitutionality of Section 186.
Although the durational residence requirement, we suggest is the most obvious violation of the constitution before the Court, quite clearly New York?s statute operates on long time residence as well to violate their right to vote and participate in the political process.
This Court in the past decade has forged a rigorous standard which must be applied to state statutes which restrict the operation of the franchise.
The test that?s most recently formulated by the Court in Dunn versus Blumstein is whether the state statute at issue advances a compelling state interest by the least drastic means.
New York State argues first that because this is a primary election we?re talking about instead of a general election, that some lesser weakened diluted constitutional standard should apply.
However, this Court has recognized for 30 years that the right to vote can be entirely frustrated unless it also includes the right to participate in the nominating process.
Indeed, as the Chief Justice noted in Bullock versus Carter, often the outcome of a primary election is even more important than the outcome of the general election because quite often you have one party safe seats.
This is specially so in a state like New York where one party strongholds have existed since the civil war and there were numerous primary elections.
Chief Justice Warren E. Burger: We?ll resume there right after lunch.
]Mr. Neuborne you may continue.
Mr. Burt Neuborne: Thank you sir.
Mr. Chief Justice and may it please the Court.
When we adjourned for lunch, we had begun to discuss the argument made by New York state that because this is a primary election that we?re dealing with here instead of a general election that some more relaxed constitutional standard maybe utilized to judge state statutes restricting the interested parties from participating in such an election.
And I had invited the Court?s attention to a line of precedent which begun 30 years ago in this Court and culminated in the Chief Justice?s recent opinion in Bullock versus Carter in which he pointed out that the outcome of a primary election is often more important than the outcome of the general election itself and that for precisely those reasons, if the right to vote is to receive adequate protection, it must also include the right to participate in the process by which the candidates are chosen.
And indeed, that has been the law in New York State pursuant to New York State Law since 1911.
Thus, whatever the constitutional standard is that is to be utilized in judging the constitutionality of state statutes restrictive of the franchise, petitioners submit that the same standard must be utilized in judging statutes which restrict participation in primary elections.
The state argues, however, that even if one applies the compelling state interest test to the statutory scheme before the Court, New York is able to meet that test because the statutory scheme deters bad faith raiding of a political party by persons not in sympathy with the parties principles who will attempt to participate in that party's primary election to in some way injure the party.
However, even assuming that the state has a compelling interest in guarding against bad faith raidiing and I suggest to the Court that a very real question exists as to whether the state possess any compelling interest at all in prohibiting persons attempting to affiliate with a political party for the first time to affiliate with that party.
But even assuming that the state does possess some compelling interest in the prevention of fraudulent participation in the primary, it?s clear that at least five less drastic alternatives exist by which New York State could advance its commendable interest in this case without at the same time causing the broad disenfranchisement of thousands of New York voters each year.
First and most obviously, New York already has a very effective device to guard against bad faith raidiing.
Section 332 of New York?s Election Law provides that a person enrolling in a political party maybe summarily dis-enrolled at the instigation of a member of the party after a hearing before a party functionary upon a finding that the attempted enrollee was not in good faith in his attempt to join the political party.
The operation of Section 332 in New York State has been one of extreme effectiveness.
Indeed, the history of Section 332 in New York State demonstrates beyond argument that it has been an effective tool to deal with precisely the evil which New York state contends Section 186 is designed to deal.
Justice Potter Stewart: [Inaudible] so that would be an awfully hard thing to prove?
Mr. Burt Neuborne: Your Honor, the proof that has been adduced in the various cases was to show a pattern of persons moving from one party into another party filing virtually identical declaratory statements with a long history of having been engaged in a contrary political activity and some evidence that they intended at some future time to go back to that party.
The hearings under Section 332 are reported in a number of New York cases, the most significant of which I suggest is Zuckman versus Donahue where 900 persons who were allegedly raidiing in a political party context were dis-enrolled after a judicial hearing demonstrating that they were attempting to enroll in bad faith.
As Chief Judge Mishler pointed out in the District Court --
Justice Potter Stewart: That?s before the damage is done, before the --
Mr. Burt Neuborne: It?s brought on exceptionally quickly, yes sir.
It maybe -- the initial hearing is one held before the county committee man of the party itself.
Now of course that hearing must in order to be constitutionally permissible must be subject to judicial review, but it?s subject to judicial review on a summary petition with a very, very expeditious consideration and has in the past in New York worked admirably in dealing with precisely this problem.
Chief Justice Warren E. Burger: How many cases have gone through judicial review?
Mr. Burt Neuborne: There are approximately 10 reported cases in New York state, situations such as this.
Chief Justice Warren E. Burger: Over what period of time?
Mr. Burt Neuborne: Well, we?ve had Section 186 on the books, in one form or another since the end of the 19th Century.
The summary dis-enrollment procedure has been available to us for a substantially shorter period of time, but my recollection is your honor that the earliest cases approximately 1930 that's cited in the reports.
Most of the raidiing, if that?s what one can call that has gone in New York, went on during the period when the American Labor Party disintegrated into two wings, the American Labor Party and the Liberal Party at a contest commenced with what had been the constituency of the American Labor Party and it was in that context that most of the raidiing situations came up and even in that context, a heated political struggle between to factions, 332 was utilized with great effectiveness in maintaining the purity of both political parties.
Justice William J. Brennan: Well when did the statute before us come on the books?
Mr. Burt Neuborne: Section 186, Your Honor?
Justice William J. Brennan: The one that we?re now dealing with here?
Mr. Burt Neuborne: Yes sir.
The statutory scheme of having an enrollment box which is open once a year, I have traced back to 1898.
It is in the codification of the election law in 1909 that has been continued forward to the present time.
Chief Judge Mishler writing in the District Court noted the effectiveness of Section 332 as a device to guard against party raidiing and I note in passing that Chief Judge Mishler spoke with a great deal of experience before his elevation to the bench in 1961, he was the chairman of the Queens County Republican Party and had been its candidate for public office on a number of occasions, is familiar with the operation of the political process in New York and recognized Section 332 for what it is, a very effective device to guard against bad faith raidiing.
A second less drastic alternative open to New York would be to apply these restrictive affiliation rules only to those political parties who want them.
In other words, if a party thinks that it is some way being endangered, it could, I suppose New York could if it wished to setup a statutory scheme that allowed a party some option in protecting itself.
New York has not chosen to do this, has chosen instead to impose these restrictive rules on parties whether or not they wish them and indeed in this particular case, the Democratic Party went to Court to say precisely that it didn?t want them and nevertheless, was forced to live with them.
The third less drastic --
Justice William H. Rehnquist: Might not that pose some kind of serious administrative problems though to the registration officials that one party could be in and one party be out as long as you do have a state registration system?
Mr. Burt Neuborne: I think not sir.
I think the first answer is that, if that?s what is necessary to permit persons to vote, the fact that it would be administratively more difficult to operate would not be a sufficient justification for not utilizing it, but I do not believe that it wouldn't -- that it would create substantial administrative problems because it would be perfectly possible.
We only have -- we four parties in New York State, the Republican, the Democratic, Liberal and Conservative.
It would be perfectly feasible if the legislature of the State of New York wished to permit those parties to opt for some form of differed enrollment process and simply have the registrars make the entries as to who is a party member at the point in time which the political party wished.
In other words, those parties which did not opt would have the entries immediately.
Those parties which did opt could if they wished, have the material in the enrollment box for a period of time, but the same number of entries would have to be made by the administrative officials.
It would simply be making them over a longer period of time, indeed, it might Your Honor, it might be administratively easier to do it this way because the way the system works now all party enrollments in a year must be entered by the officials in a very short period of time.
As soon as the enrollment box is open in mid November, every enrollment that?s been made during a preceding year must be entered within a very short time, creating a very serious administrative backlog for the process.
Part of the option might have the effect of spreading it out over a longer period of time and making it administratively more workable.
I do not suggest that I?m in favor of the party option.
I merely pose it to the Court as a possible less drastic alternative which New York could have utilized.
A third less drastic alternative which we discussed earlier was the application of this particular statute to the class which even arguably the only class which even arguably posses a danger of raidiing and that?s those persons who have a preexisting party affiliation and who are seeking to alter that preexisting party affiliation.
Every single instance of raidiing which has been cited in the New York reports and which has been discussed by the Attorney General has involved persons of a preexisting party affiliation attempting to alter that affiliation to participate in the affairs of another party.
Indeed, no other state except New York has found it necessary to apply these types of restrictions to persons seeking to newly affiliate with a political party.
In City of Phoenix versus Kolodziejski, Mr. Justice White writing for this Court noted that it would not be permissible for a state to base electoral restrictions upon a hypothetical possibility not reasonably likely to occur and in that case, he pointed out that only 14 other states had similar restrictions upon the franchise.
Well, this case is even dramatically more insubstantial, in that no other state has seen fit to impose this type of restriction upon persons attempting to affiliate with a political party for the first time.
Justice William H. Rehnquist: Of course, you do have a fairly unique situation in New York with your four recognized parties, don?t you?
Mr. Burt Neuborne: I don?t clam to be an expert on the political party structure of the other 49 states but I would be surprised if there were not minority parties in other states as well.
If Ohio, Illinois, California, Pennsylvania can get along without this type of restriction applied to newly enrolled persons seeking to merely to register their initial party affiliation, it?s inconceivable to know that New York requires this type of drastic, drastic restriction which has the effect of barring persons in the similarly situated from the petitioners from participating in the primary despite the fact that they tried to enroll in that primary over six months before it was held.
The fourth less drastic alternative would be a reliance upon the loyalty oath which New York State currently requires persons attempting to enroll in political party to sign.
In order to enroll in a political party in New York, one must file a solemn declaration of adherence to party principle and a solemn declaration of intention to support the nominees of the party at the next general election.
That requirement forbids casual party affiliation in New York and it has the effect of making it virtually impossible for large casual party switches to occur.
In other words, we must assume if there was to be an evil in New York State that persons will fraudulently execute this affiliation, these enrollment blanks and it is we believe inconceivable to think that large scale fraudulence switching will occur.
Finally, if large scale fraudulence switching does occur in violation of the party loyalty oaths, New York maintains a comprehensive system of criminal sanctions for fraudulent participation in the electoral process which is Mr. Justice Marshall pointed out in Dunn versus Blumstein can be used effectively to guard against fraud.
So that really what New York has done here has not used the least drastic alternative.
The only way to describe what they?ve done is they?ve used the most drastic possible alternative to deal with this problem and they therefore, and in so doing have unnecessarily disenfranchised thousands and thousands of New Yorkers.
Even if this case did not involve voting rights, even if it did not involve a delusion of the franchise and the triggering of the compelling state interest test, it would never the less raise the most serious questions under the association freedoms protected by the first amendment.
Because the effect of New York statutory scheme is to create a waiting period which forces persons attempting to join a political party to wait as long as 14 months before they?re accepted into that party.
Now, the right to join, the right to associate with the political party for the advancement of common beliefs is the core association of freedom protected by the First Amendment.
It is the most important association of freedom we have.
Now, before New York can impose this type of drastic and unique interference with the operation of that associational freedom, it must come forward and demonstrate some overwriting societal interest which can be advanced by no less drastic means.
That is precisely the test that Mr. Justice Harland used in his concurring opinion in Williams versus Rhodes when he analyzed the impact of the Ohio Election Law and ruled that it had an impermissible constitutional effect upon persons attempting to associate for the advancement of common political goals in Ohio.
We suggest that it is no coincidence that the test, the constitutional test which Mr. Justice Harland utilized in Williams versus Rhodes is very similar in operation and effect to the compelling state interest test which Mr. Justice Marshall utilized in Dunn versus Blumstein.
They worked very, very similarly.
They come out just about the same and they do because they are both designed to protect the single most important values that we can possibly have in a democracy which is the right to participate in the political process by which our leaders are chosen.
That is an ultimate First Amendment right as well as the right to vote.
And we suggest therefore that even if as Mr. Justice Harland did in Williams versus Rhodes, even if one is to choose the crime where Evans versus Cornman done a line of authority and analyses this case solely as an association of freedom test.
The interests which New State has advanced are far, far less compelling than most which this Court has rejected in association with freedom cases in the past.
If I may Your Honor, I?d like to reserve the remainder of my time for rebuttal.
Chief Justice Warren E. Burger: Very well Mr. Neuborne.
Argument of A. Seth Greenwald
Mr. A. Seth Greenwald: Mr. Chief Justice and may it please the Court.
In considering this case, I think that there?s a certain similarity to the previous case argued here if the both of us are quaint to professional sports.
Seem to me, the previous case concerned itself with what California can do to stop the pirates and the present case involves what New York can do to stop the raidiings.
The statute in question, New York State Election Law Section 186, the enrollment box statute simply provides that enrollment blanks in party are placed in a box and are removed after the general election.
What this means as has been pointed out is that for an enrollment to be effective of the primary next succeeding, it has to be done before the general election.
If it?s done after the general election, it is differed and --
Chief Justice Warren E. Burger: You think these problems are the same for first voters as for all others, people who are moving and people who just haven?t ever bothered to register over a lifetime?
Mr. A. Seth Greenwald: New York has in Section 196, a general rule that provides the registrations, excuse me, enrollments must be accomplished before the general election to avoid the danger of raidiing.
However, the next Section of the law, special enrollments provides that persons who have reached voting age after the general election can get a special enrollment and immediately enrolling in a party up to 30 days before the primary.
There are number of other exceptions provided in Section 187.
Another one is if a person did not have residency requirements at the time of the proceeding general election, however, once again, there?s a further restriction there and subdivision 6 of 187 that is restricted to the same county as the person resided at the time of the proceeding general election.
So I think that New York has shown that is not opposed per se to later enrollments.
It is concerned with the danger of raidiing and in protecting party integrity --
Unknown Speaker: What category are these named plaintiffs?
Mr. A. Seth Greenwald: Yes, these named plaintiffs are voters who were eligible and could have been effectively enrolled in a party before the proceeding general election but failed to do so for unstated reasons.
Unknown Speaker: And they never had been enrolled?
Mr. A. Seth Greenwald: They never had been enrolled, that is correct.
And the point is that the---
Chief Justice Warren E. Burger: But they can be regarded as raiders or potential raiders, can they?
Mr. A. Seth Greenwald: I think they can be because New York is concerned with non party votes being cast in a party primary for purposes and amicable to the party and there is the same danger with the independent and you have to keep in mind that an independent is one of the major political blocks of American political life and independent is material for a raid also just as people who?ve actually enrolled in another political party.
I think that it?s quite apparent that in many situations, if a party is engaging in raidiing, it?s not going to stop just with its own members for the raid, it also --
Unknown Speaker: Let me see, I thought this was a group who after the ratification of the amendment committing 18 to 21 year olds to vote, the first time became eligible and that was after the general election, is not that it?
Mr. A. Seth Greenwald: No.
Unknown Speaker: What are they?
Mr. A. Seth Greenwald: These --
Unknown Speaker: Aren?t they a group who became 18 to 21 and eligible to vote following the ratification of the amendment?
Mr. A. Seth Greenwald: The Twenty-sixth Amendment was ratified in the summer of 1971 I believe July.
At that time, anyone who was in franchise by the Twenty-sixth Amendment was eligible to register and enroll in a political party in the state of New York.
If they failed to do so by as would anyone else in the State of New York, if they fail to do so by the general election of--
Unknown Speaker: 1971.
Mr. A. Seth Greenwald: 71, they were not enrolled in a party to vote in the 1972 primary.
Unknown Speaker: But if they become 18 after the general election, they could.
Mr. A. Seth Greenwald: Specially enrolled under Section 187, there is an exception.
Unknown Speaker: But this group could not?
Mr. A. Seth Greenwald: This group could not because it had not availed itself of the statutory obligation to enroll in the party which --
Unknown Speaker: They could have, you say that this named plaintiffs were eligible to enroll prior to the general election?
Mr. A. Seth Greenwald: That?s stipulated.
There is no argument that these named plaintiffs, the petition is involved here just simply fail to take the opportunity which is available to every voter in the state of New York to enroll in a political party timely and avoid the dangers of raidiing.
Chief Justice Warren E. Burger: The plaintiff then addressed at the time just being too long a time?
Mr. A. Seth Greenwald: I think that is part of it and I think that the Court of Appeal?s opinion addresses itself to why we have the date of the general election as the operative date, it has to be done before the general election and that is simply that before the general election would be the rare politician that would encourage a voter to vote for his party at the general election but enroll in another party.
But after the general election, no such deter would be present.
He doesn?t have to put himself in that type of unseemly incongruous position.
And I have indicated that we are seeking to discourage raidiing.
Unknown Speaker: Well what implications under New York primary?
Mr. A. Seth Greenwald: New York primary was June 28, 1972 this year.
Unknown Speaker: And where, June 28, and at that primary were nominations for other offices in the federal offices?
Mr. A. Seth Greenwald: At that time, there were nominations for federal officers and state office such as the assembly and state senate involved, yes.
There was state offices involved also.
Justice William H. Rehnquist: Mr. Greenwald, I was a little bit confused by one of your earlier references to raidiing.
I have understood that it is being the process by which people unsympathetic to the basic goals of a party, try to take it over for a particular period of time.
Perhaps erroneous, I got the impression from one of your comments that you thought of raidiing as something broader as a party on its own initiative going out and getting independence to join it.
Mr. A. Seth Greenwald: Well, to join Justice Rehnquist, to join it in a raid on another party, I also like to point out that in this day and age when we have a lot of well organized independent and extensively nonpolitical groups which at perhaps primary time have political interest say to defeat a candidate, they also would encourage people to enroll in a party independent to other party members to defeat a candidate who is adverse to the interest they care to advance and I think once again that this is destructive of the political party processes we know it.
New York of course has a close primary system, close primary as --
Unknown Speaker: Well, wasn?t their other problem of a crossover, say by democrats into republican primary to influence the choice of the republican nominee and then vote against them at the general election.
Mr. A. Seth Greenwald: Well, precisely, it can work both ways.
I think in the past year---
Unknown Speaker: It can work both ways alright.
Mr. A. Seth Greenwald: Yes, and it?s not an issue of who?s got the advantage at one particular time.
I think there is a clear compelling state interest in preventing this time of activity from occurring and certainly Section 186 is an affective means of doing it.
Justice Thurgood Marshall: Mr. Greenwald, basically raidiing is done by one party going into the other party temporarily, is that right?
Mr. A. Seth Greenwald: That is basically the generally accepted definition.
Justice Thurgood Marshall: That?s not true here?
Mr. A. Seth Greenwald: Well, I contend that---
Justice Thurgood Marshall: What is there in this record that shows that this people wherever in any other party?
Mr. A. Seth Greenwald: They were not ever in any other party.
Justice Thurgood Marshall: Well, how can they be changing party?
Mr. A. Seth Greenwald: I say that when a person has failed to avail themselves of the opportunity to timely enroll when at the time the proceeding general election he failed to indicate that he was say a democrat when he had the opportunity to do so that when he later seeks to in effect change his status---
Justice Thurgood Marshall: Change what?
Mr. A. Seth Greenwald: Change his status, his political status.
Justice Thurgood Marshall: His political status?
Mr. A. Seth Greenwald: Yes, from independent to say Democrat that is as much a change of political affiliation is when someone is a Republican and seeks to change it to Democratic.
Justice Thurgood Marshall: Is there anything to show that they were Independent, maybe they weren?t just voting period.
Mr. A. Seth Greenwald: Well --
Justice Thurgood Marshall: All people who don?t vote aren?t Independents.
Mr. A. Seth Greenwald: The question of why people don?t vote is of course hotly contested matter, a lot of people feel that it?s simply a matter of apathy.
Justice Thurgood Marshall: Well, you?re dealing with peoples rights here and I think you have to show some basis in order to deny them that right.
And your basis is that this law is to protect people from raidiing another party which is not this case I submit.
Mr. A. Seth Greenwald: Well, the dangers involved in party raidiing may not be immediately presented by this case but I do submit that if Section 186 had not been effect this past year, there would have been a substantial crossover vote in the State of New York and this is demonstrated by the fact that in states where party affiliation restriction had been struck down this Spring, there was substantial crossover voting and none party members voting and say the democratic primary.
Justice Thurgood Marshall: There is also a crossover voting in New Zealand I imagine too but these, we are restricted to these plaintiffs and declare state they represent, am I correct?
Mr. A. Seth Greenwald: I understand the class that?s involved.
Justice Thurgood Marshall: Is there anything in the record to show that anybody in this place was crossing.
Mr. A. Seth Greenwald: No, there?s nothing in the record to show that this particular petitions were crossover voters --
Justice Thurgood Marshall: And those the Constitution speaks as to the person involved?
Mr. A. Seth Greenwald: Yes, however --
Justice William H. Rehnquist: I suppose one of the state?s contentions here is the given the nature of the evil, it was entitled to adopt a prophylactic solution that struck generally at what was involved and the fact that it might on occasion be a somewhat more attenuated, nexus than others wouldn?t necessarily make it unconstitutional?
Mr. A. Seth Greenwald: I think that that certainly is the case.
We have here a statute that directs itself equally at an evil.
It places the same requirements on all voters generally.
You put --
Unknown Speaker: Help me in that primary in June were to be any sort of vote which had a bearing on the selection of delegates to the National Convention?
Mr. A. Seth Greenwald: You mean the one past June?
Unknown Speaker: Yes.
Mr. A. Seth Greenwald: Yes, the June --
Unknown Speaker: That was the fact what what?s at stake in this particular vote?
Mr. A. Seth Greenwald: Well, at the time --
Unknown Speaker: I mean, wasn?t this a bunch of youngsters who were sort if they could vote in the primary would probably vote for the Democratic candidates something?
Mr. A. Seth Greenwald: Well, I think that when this case came up here on the petition for certiorari, political organization lawyers from a governed file the brief amicus curiae.
It?s interesting that today they didn?t file a brief on the actual case, they---
Unknown Speaker: They?re academic now.
Mr. A. Seth Greenwald: Well, it shows where their concern is at one particular primary in the personality of one particular candidate or perhaps one particular issue and I think the argument that the petition is made that a person has the right to join a party to advance the interest of a particular candidate or a particular issue strikes at the heart of our political party system which contemplates the people joining the political party because they generally attuned to the basic theories of government of the party.
Now, once again, I recognized that our political parties are fluid in the United States and I think that?s the beauty of the differed enrollment system, a person who joins the Democratic party in a national election year such as this year could effectively join say the Liberal party for a municipal election which is coming up next year and in the following year, join the Republican party for the state election if he feels the issues are different.
Now, I don?t think there are too many people who do this but the opportunity is available.
All New York State asks is that the person do this at the proper time to avoid the danger of raidiing or short notice takeover a political parties.
And involved herein is the integrity of the close party primary in the State of New York which includes not just Democratic and Republican parties but rather the two other minor parties, the Conservative and Liberal parties which have very limited enrollments and especially when you get down to an assembly district basis primaries in two minor parties can be controlled by very few votes.
It?s very easy to take them over with members of other political parties or for that matter well organized Independents with interest and typical to the political party.
Unknown Speaker: Is it based on the fact that New York is the only state that has the period, the first period from the date before the previous general election?
Mr. A. Seth Greenwald: I?ve checked the statutes of other states.
Kentucky has a similar system as to people who have affiliated with the party, you cannot switch your party enrollment between the periods of the general election in the primary.
And also from my reading of the Kentucky statute would say that this would include anyone who registered to vote by failed to enroll in a party.
However, there is a provision as it said for new registrants.
I do think though that most dates or a goodly number of states are trying to accomplish the same thing as the State of New York is trying to accomplish here to reduce the possibility of party raidiing and the fact that Section 186 is an effective means of doing it as the Court of Appeals below pointed out does not mean that it is in an improper means.
And I think this brings us to the issue of just what is the nature of primary?
And a primary is not a general election.
It is setup to allow party members to select their candidates and as such it replaces caucus or a convention and the vote is properly limited to party members and if you don?t close your primary and some states don?t close them, you have the possibility, indeed, the probability of raids.
I think this is demonstrated, its always been the case in states such as Wisconsin, what happen to the spring is instructive and I would submit that state has the discretion to define the constituency of a political party so long as the definition does not permanently exclude anyone who may wish to be represented and that?s exactly what is done here.
The enrollment is taken but it is differed.
Now, we have I think at this point, I have contended that I do not think that it is necessary to apply the compelling state interest test.
I would contend that the traditional rational basis test is perfectly applicable to this type of control of the exercise of the franchise.
This is not a disenfranchising statute and I think the fact that it applies to all vote is equally in primary voting is indicative that you can apply the rational basis test.
However, and I?m all aware that this case has always been decided on the basis of the compelling state interest test.
We have another standard and I think it?s called perhaps the close scrutiny because allegedly fundamental rights are involved.
Once again, this statute has withstood close scrutiny and the statute has an important purpose and especially because it?s a primary case --
Unknown Speaker: Has (inaudible) almost?
Mr. A. Seth Greenwald: Oh yes, it?s been on that, I think I?d even say a little longer than Mr. Neuborne has but the basic point is that since the beginning of the primary system in New York, we have had this differed enrollment system and I think that?s instructive if you know probably of you do, some of the political history the state of New York, it has been filled with a lot of political shenanigans and backroom tactics and I think that the desire of the state of New York to preserve party integrity to avoid unseemly electoral practices is perfectly proper.
However, if we have to meet the compelling state interest test, I think we have to go no further then look at the Court of Appeals opinion.
I don?t think there?s too much dispute at this point that there is a compelling state interest in preserving party integrities and avoiding raids.
And as such, the statute achieve its ends by the least drastic means.
I object to this test because theirs is a, the Chief Justice has said in very short past that this tests demands perfection and yet still 186 has met this test, it meets it because the suggested alternatives are not truly viable when you consider the dangers of large scale raidiing.
The discussion of the party dis-enrollment statutes Section 332 demonstraids as in the decision of the court below that it is in ultimately time consuming and ineffective, it would be ineffective in space of large scale raidiing, the point being of course in the course of the cases that with 186, you don?t have too many 332 cases.
The fact is the 332 is simply supplement to Section 186 and there is no doubt in my mind that if we had to rely solely in 332, we?d have a much more serious infringement to First Amendment rights with the Courts inquiring into voters political belief and the genuineness of those beliefs which is avoided with Section 186.
And as to this alleged infringement of First Amendment rights, it should be noted as the court said below, 186 is designed to minimally infringe on first amendment right.
A person has the right enroll in a party; these petitioners have the right to enroll in a party.
You can change a party and never loss a primary vote which is a distinction from a number of other post primary restrictions that we instructed down.
Unknown Speaker: After the general election, could anyone of these have enrolled?
Mr. A. Seth Greenwald: Well --
Unknown Speaker: After the 71 general election?
Mr. A. Seth Greenwald: No, that?s exactly what happened in this case.
Unknown Speaker: Who may?
Mr. A. Seth Greenwald: Who may?
Unknown Speaker: Who may?
Mr. A. Seth Greenwald: Yes, Section 187 of New York?s Election Law provides a number of categories.
If I could, it states, the subdivision to a person --
Unknown Speaker: Where do you find that in there?
Mr. A. Seth Greenwald: Right after section 186, I don?t believe it?s in the appendix but it is referred to in the Court Of Appeals that some of the exceptions of 187 are referred to in the Court of Appeals decision.
One of the exceptions is that as I have alluded to before, person who became of age after the proceeding general election, person who became naturalized, person who didn?t have the necessary residential qualifications although once again, I?d direct if you have the statute, there?s a further exception in subdivision 6 which limits that to the same county.
A person who is in the service of the military at the time of the proceeding general election or enrollment time and a person who was in a Veterans? Bureau Hospital and also spouses or children or person who is incapacitated by illness during the proceeding general election.
These are all people who --
Unknown Speaker: And how does one go about if he falls anyone of those classes, what?s he do?
Mr. A. Seth Greenwald: Well, he goes to the Board Of Elections within at least 30 days before the primary because registration enrollment stops --
Unknown Speaker: So in the sense that starts it May sometime?
Mr. A. Seth Greenwald: And he gets a special enrollment and he?s immediately enrolled in political party and can vote in the primary.
And I think that it?s instructive when you talk about First Amendment rights that if a four year restriction on a person who voted in the primary of another party from being a candidate of the second party is not an unjust infringement to First Amendment right as was affirmed by this court and Lippitt against Cipollone then it seems clear to me that the much lower restriction or whatever requirements of Section 186, are not anymore offensive to the First Amendment, they?re amply justified by the situation involved and --
Unknown Speaker: And led a higher statute and barred them from being a candidate if he had voted on a primary of the upset party anytime within the previous four years maybe?
Mr. A. Seth Greenwald: Yes and what I point out that I think it has been said by the Chief Justice in Bullock against Carter, the rights of voters and candidates don?t lend themselves to neat separation.
It would seem to me that the right to be a candidate is as much a First Amendment right as the right to be the right to vote.
They are both encompassed in the political rights of citizens.
I think also as instructed that New York has a history of allowing party switches.
186 is not a serious bar, if we look back to 1971, the situation with Mayor John Lindsay who changed from the Republican to Democratic Party and then proceeded to seek the Democratic nomination.
If we look then we also, even during the period when Section 186 would differs enrollment.
Congressman Ogden Reid switched from the Republican to Democratic Party.
These switches are made in good fate and as has been shown, Section 186 is not a bar to such switches of political affiliation.
Justice Thurgood Marshall: Two voters in New York who switched parties and that has what effect on me?
Mr. A. Seth Greenwald: I?m giving this example to demonstraid that Section 186 does not prevent the honest trustworthy citizen from exercising his First Amendment rights.
Justice Thurgood Marshall: Well how about, did you say those that require citizenship in the meantime can be registered?
Mr. A. Seth Greenwald: Yes, I believe---
Justice Thurgood Marshall: Well, it could---
Mr. A. Seth Greenwald: Section 187---
Justice Thurgood Marshall: While in the seventh district, there is sometime three and 400, one place, am I right?
Mr. A. Seth Greenwald: I?m not acquainted, I?ll accept that.
Justice Thurgood Marshall: Well, suppose to take all those off and register them in one party, would that be raidiing?
Mr. A. Seth Greenwald: The state of New York in Section 187 has made certain exceptions.
They feel that these people who hadn?t had an opportunity, certainly they couldn?t have enrolled at the time of the proceeding general election should have an opportunity to especially enroll.
Justice Thurgood Marshall: But wouldn?t that be raidiing as I---
Mr. A. Seth Greenwald: I don?t say that as raidiing, it maybe, it might possibly be but it?s not a serious nature.
Justice Thurgood Marshall: And there?s nothing you can do about that, could you?
Mr. A. Seth Greenwald: Well---
Justice Thurgood Marshall: Assuming it was raidiing, is there anything New York could do to stop it?
Mr. A. Seth Greenwald: Yes, as the supplement of the dis-enrollment statute Section 332 could be applied if that could be shown to be raidiing.
Justice Thurgood Marshall: What?s that?
Mr. A. Seth Greenwald: Section 332 of the election law, the dis-enrollments statute Your Honor.
Justice Thurgood Marshall: They could be dis-enrolled for going in a block to register?
Mr. A. Seth Greenwald: If they were drawn that it was raidiing, I doubt if in such a situation if it could conceivably be raidiing if a person had just been naturalized.
Justice Thurgood Marshall: Well, what in your statutes defines what?s raidiing?
Mr. A. Seth Greenwald: raidiing is not the defined in the statute Your Honor.
Justice Thurgood Marshall: So you couldn?t do anything for instance.
Mr. A. Seth Greenwald: I doubt if anything effectively could be done.
The final thing I?d like to allot to is the injection of the durational residency question into this case, I do not think it is present.
There is no doubt that the instant petitioner is the people involved here never lacked residency.
Certainly as to them, they are not being subjected to a durational residency requirement.
Furthermore, if there was such as petitioner in this case, a person who would move into county or from out of state, there?s no doubt in my mind that there?s another section of the law that they?ve be attacking namely 187 subdivision six.
And to that extent, it seems to me that interest of that class and my adversary has pointed out to the various classes possibly involved although we don?t have one class in this case.
As to that class, the interest of the class, the petitioners represent are antagonistic, it?s a different case and it seems that the statute clearly is not a durational residency requirement, does not by its very terms requires someone be a resident of the state for a certain period of time before he can enroll in a party and I think that it?s a essentially not in the case.
In summary, I think it can fairly be stated that Section 186 is a reasonable statute for filling a compelling state interest by the least drastic effective means.
It is submitted that it has a minimal effect on First Amendment rights and it is not a durational residency requirement or there?s another argument, a grandfather clause, there?s no racial motivation in this case.
If not a grandfather clause, it?s the young voters indeed we do have an exception for young voters who come of age.
It was not in the complaint that any allegations of racial discrimination and I think the decision in a Welfare case, Jefferson against Hackney, a very recent decision of this Court clearly demonstraids that the possible greater effect on a racial minority or an age minority is no proof of the fact that its racially discriminatory law.
And furthermore, there?s nothing in the record to show that.
And at this point, I will rest.
Unknown Speaker: Was this question here before?
Mr. A. Seth Greenwald: Was this question here before?
I have made an argument that there were appeals from the New York State Court of Appeals which did involve Section 186 and differing of enrollment that were appealed to this court, I think --
Unknown Speaker: Did it raise the same question?
Mr. A. Seth Greenwald: I contended that it did raise the question.
There was also the case of the Georgia voter who --
Unknown Speaker: Well, I don?t want that one, I want Friedman.
Mr. A. Seth Greenwald: Friedman, one of the co-counsel in this case as a matter of fact, Friedman --
Unknown Speaker: What was the issue in the case?
Mr. A. Seth Greenwald: The issue was that Mr. Friedman could not be a candidate for Congress because his enrollment was differed due to a late transfer of enrollment and --
Unknown Speaker: So it raises the same issue, the constitutionality of this Section?
Mr. A. Seth Greenwald: Yes, I believe it did and this Court dismiss for lack of substantial federal question.
Chief Justice Warren E. Burger: Thank you Mr. Greenwald, Mr. Neuborne, you have three minutes left.
Rebuttal of Burt Neuborne
Mr. Burt Neuborne: Yes sir.
The Friedman case Your Honor was here prior to this case, however, two distinguishing characteristics existed in Friedman case.
First, Friedman was attempting to be a candidate similar to the Lippitt situation where the candidate in Lippitt was attempting to run not vote and as the Chief Justice noted in Bullock versus Carter, the right to become a candidate maybe very different than the right to actually vote in a particular election.
Justice William H. Rehnquist: Mr. Neuborne, barred as a candidate by virtue of a provision dealing with candidates or was he barred as a candidate by virtue of this provision dealing with registration as a voter.
Mr. Burt Neuborne: I know of no provision that deals only with candidates so assume it was this.
Justice William H. Rehnquist: It would?ve been this provision then?
Mr. Burt Neuborne: Secondly, a more importantly Your Honor, I suggest --
Unknown Speaker: Well, the fact that it did fill with the application of 186 treated them as not properly enrolled, didn?t it?
Mr. Burt Neuborne: Yes sir, to a person who wished to become a candidate.
Unknown Speaker: Yes, well how do they differ?
Mr. Burt Neuborne: Well, the major distinction that I have with that case is that the record in that case indicated that there was a very substantial question as to the good fate of Mr. Friedman?s residence and in fact there was an adequate state ground upon which the state court pass on that case, that there was serious questions as to whether or not he was a bona fide resident of the address from which he was attempting to enroll.
Unknown Speaker: One of substantial federal question, that?s a different thing to dismissing of course the state decision to the rest of the inadequate state candidates?
Mr. Burt Neuborne: Yes sir, I understand that --
Unknown Speaker: So we can?t treat it as having been handled here on the ground of the rest of inadequate state candidate?
Mr. Burt Neuborne: There were serious statements by the state --
Unknown Speaker: Can we enlighten, we certainly didn?t when we dismissed the Toronto?s substantial questions?
Mr. Burt Neuborne: That is correct sir.
However, I wish to reiteraid that that was again a candidate case very much as Lippitt was a candidate case.
More importantly I think Your Honor --
Chief Justice Warren E. Burger: Barred as a candidate because he was barred as a voter, wasn?t he?
Mr. Burt Neuborne: Yes sir, but his right to become a candidate triggered the particular test that the Court was utilizing at that time.
As Your Honor pointed out in Bullock, a very different set of considerations come into play when the person?s --
Unknown Speaker: But maybe if you couldn?t bar a voter, for sure you shouldn?t be able to bar a candidate?
Mr. Burt Neuborne: Well, I?m frankly troubled by that distinction your honor.
Unknown Speaker: Yes, I don?t think you would be.
Mr. Burt Neuborne: I was troubled by the distinction in Lippitt however, it is a distinction which has been made by this Court and which does distinguish the Friedman case.
Briefly, I?d wish to point out that the petitioners in this case could have registered during the brief period between the time of Twenty-sixth Amendment was ratified in June of 1971 and the close of registration in New York in October of 1971, but they would have been registering in connection with elections in New York State where the highest office at stake was that at county executive and where they turn out was exceptionally law simply because there were no significant issues presented to the electoraid at that time.
Indeed, the turnout was so low that vast bulk of persons who registered under the Twenty-sixth Amendment did so after the 1971 general election.
Chief Justice Warren E. Burger: But, then there in the position of raising a constitutional question deriving from their own inadvertence or --
Mr. Burt Neuborne: No sir, I don?t think its inadvertence, Judge Dooling --
Chief Justice Warren E. Burger: Well, I mean their own indifference.
I was going to use a word less than indifference.
They were indifferent to that particular election on what you tell us.
Mr. Burt Neuborne: Well, Your Honor, where the highest office at stake was that of county executive.
In the particular primary where they sought to enroll, they were attempting to participate in a presidential primary in New York.
Judge Dooking in a related case noted that you can swim 365 days a year but you only do it when its hot and that is a, you can register quite often but you only do it when the political season begins to heat up and this, I submit to you that these petitioners attempted to register to vote --
Unknown Speaker: They only raid when it?s hot?
Mr. Burt Neuborne: Well, that maybe so Your Honor, yes sir but again you only raid I submit if you?re moving to one party to another.
Unknown Speaker: Well, I suppose the fact is anyway and they organized effort to organize the new 18 to 21 new voters didn?t get underway well way after the general election in 1971?
Mr. Burt Neuborne: Oh, no question about it sir, it would have been virtually impossible for large numbers of peoples ?-
Unknown Speaker: I entirely remember it, you didn?t come here, I forgot whether it was you on the stay until just few days before the primary even.
Mr. Burt Neuborne: Well Your Honor, we move this expeditiously as possible.
The case was decided, the case was filed immediately after they were denied their enrollment.
It was decided by Judge Mishler within three weeks, it then went up on an expeditor appeal to the Court of Appeals where it was argued on February 24, it was decided by the Court of Appeals on April 24, we lodged a certiorari petition that same day with this Court and move for a stay, the stay was temporarily granted by Mr. Justice Marshall on the 26th so that I think that petitioners move as absolutely as expeditiously as they could.
Unknown Speaker: I think I did that, it usually the way with this election cases.
Mr. Burt Neuborne: Yes sir.
Thank you Your Honors.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.