From: "Bill VanAllen" Date: Fri, 19 Sep 2003 21:57:08 -0400 Subject: [LPNY DISCUSS] OCR of Sept 18th Order EDNY webpage (.PDF) Green Party case, modifying NYS-BOE use of statistical data category"unenrolled" _______qptl UNITED STATES DISTRICT COURT FOR ONLINE PUBLICATION EASTERN DISTRICT OF NEW YORK GREEN PARTY OF NEW YORK STATE, et aI., PIain~iffs, MEMORANDUM AND ORDER - against - MODIFYING PRELIMINARY INJUNCTION 02-C V-6465 (JO) NEW YORK STATE BOARD OF ELECTIONS, et aI., Defendants. x APPEARANCES JEREMY M CREEl AN Brennan Center for Justice 161 Avenue of the Americas New York, NY 10013 Attorneys for Green Party TODD D. VALENTINE PATRICIA L. MURRAY State of New York State Board of Elections 40 Steuben Street Albany, NY 12207-2 109 Attorneys for Defendants New York State Board of Elections JOHN GLEESON, United States District Judge: By letter dated July 15, 2003, the Green Party asks that I extend the preliminary injunction I granted on May 30, 2003 in Green Patt? of N.Y. St. v. N.Y. St Bd. of Elects., 267 F. Snpp. 2ui 342, 360 (EDNY. 2003) (?Green Party F?), familiarity with which is assumed fnr purposes of this order. It seeks an order requiring the State Board to list Green Party enrollment data separately in any voter enrollment information published by the State Board on its website. Based on a hearing I conductcd on July 28, 2003, 1 make the following findings. The State Board regularly receives voters party enrollment information from the local boards of elections (who, by virtue of Green Party I, must maintain and update the enrollment information of Green Party voters). The Slate Board organizes this data by political party, county and election district, and publishes it twice each year on its website.? The state?s officially-recognized political parties use this information to determine, in accordance with state election law governing the organization of such parties: (a) the number and allocation of seats on the parties? state committees; (b) the number of votes each committee member gets; and (c) the number of signatures needed to petition for membership on the state committees. Before it lost its status as an officially-recognized party under New York law, the Green Party had used the State Board?s party enrollment information to organize itself in compliance with state law. Even though it is no longer officially recognized, it would like to continue to use such information to maintain the integrity of those same organizational structures, as it hopes to once again achieve the status of an officially-recognized party. The Green Party complains that the State Board?s 2003 voter enrollment data, which purports to indicate ?Total Enrollment? in the state?s political parties, improperly fails to include the Green Party data. Specifically, the State Board?s website breaks out the number of enrolled voters for each officially-recognized party, but then lumps Green Party enrollees under a heading entitled ?lJnenrolled,? together with voters who expressed no party affiliation when they registered to vote. See. e.t, Appendix A. The Green Party asserts, correctly, that its members are not ?unenrolled? voters, and seeks an order requiring the state to cease treating them as such and to break out the This information can be found by going to thc State Board? s holnepage ut http://www.electlons.state.ny.us/, and following a link labeled ?Enrollment Statistics,? which leads the user to another webpage, titled ?Voter Enrollment,? that contains the enrollment data going back as far as 1996. See http://www.elections.state.ny.us/enrollmentyenroll htm (last visited September 16, 2003). 2 Green Party enrollment data on its website. The Green Party?s request is fully within the spirit, if not the letter, of my May 30, 2003 order. As I explained in that order, Green Party voters who have indicated their affiliation for the Green Party on the state?s voter registration form ?would ?in reality? be enrolled voters. Indeed. that is the central point of the injunction . . . . Green Party enrollees may no longer be enrolled in a[n officially-recognized p]arty, but they will be enrolled in a political party.? Green Party I, 267 F. Supp. 2d at 361 (emphasi.c in original) The local boards of elections cannot purge the enrollment information of Green Party voters. It follows that the State Board cannot, consistent with my May 30 order, consider and publicize those same voters as ?unenrolled.? I further find that the Green Party is prejudiced by the State Board?s dccision not to include the Green Party enrollment data on its website. Specifically, by not listing statewide enrollment figures for the Green Party, the State Board has impaired the Green Party?s ability to maintain its current structure. In its defense, the State Board offers no legitimate reason why it should not be required to identify the number of enrolled Green Party voters on its website. Instead, it retreads the ?voter confusion? argument I found unpersuasive in Green Party I. See id. at 355-57, 359. Specifically, it claims that it is protecting Green Party voters from themselves because, if it separately publishes Green Party enrollment data, those voters may mistakenly believe that they can place candidates on the ballot in the same way officially-recognized parties do. Even if this claim made sense ? and it does not ? it would not mean that the State Board could call Green Party enrollees ?unenrnlled? voters. As was the case in Green Party I see id at 357 the State Board can easily avoid any purported confusion. Here, it could simply add a notation to its presentation of the data, stating that the Green Party, unlike the other parties whose enrollment data is separately listed, is not an officially-recognized party under New York law. 3 The State Board has also failed to offer any reason for not providing this enrollment data to the Green Party for its party organizing efforts. It offered no evidence of any administrative or financial burden in compiling or publicizing these figures, and failed to identii& any compelling (or even rational) reason why it should not be required to provide the same information to the Green Party that it provides to the state?s officially-recognized political parties. The State Board does not dispute the Green Party?s assertion that, without the data, it cannot maintain its current structure. (See July 28, 2003 Tr. at 8, 10-11) (testimony of Roger Snyder that, to his knowledge, there are no other sources for this information other than the State Board?s website and that the Green Party needs this information to determine the number of state committee seats there should be and the number of votes each member otthe committee has, as well as for petitioning purposes.) Rather, the State Board argues only that the Green Party is not obligated to maintain that structure. That is not a legitimate reason for treating the Green Party differently, especially where, as here, it poses no added burden on the State Board to treat it the same as officially-recognized parties. For the foregoing reasons, the State Board is ordered: (I) not to include Green Party yoters as ?LJnenrolled? voters in any voter enrollment information published on its website; and (2) to make available to the Green Party the same voter enrollment data, in the same form, that the State Roard currently provides to the state?s officially-recognized political parties. DATED:September 18, 2003 Brooklyn, New York So Ordered Jç4IIqGLEES?ck4. U.S.D.J.