Randy Credico & lawyer Gary Donoyan + Judge and council for Attorney General never a dull moment in NY politics folks by Suzannah B. Troy

Dear Blog Readers! The Judge should sign off on this today and below is just a taste of the legal documents.... for me to publish the two legal documents in full would takes up volumes of my blog but I want you to get a look! See you tomorrow night at the Yippie Museum for Randy's fund raiser for his legal bills!!!!! Yippie Museum, 9 Bleecker Street tomorrow night!!! Be there or be square!!! 212-677-5918 and scroll down to the bottom of my blog posting to find the link to yesterday's piece on this very issue. Please explain to me why Randy should be excluded from running on three lines while his opponent Schumer gets to run on three and even Andrew Cuomo gets to run on three lines???????

And here is a peek inside the chambers:

Randy, an attorney with the AG office, and Gary Donoyan the assigned judge
Chief Judge Raymond J. Dearie (nominated way back when by Ronald Regan) and Randy had hoped Lenny Weinglass could join them there, but the timing didn't work out. I heard the judge
asked some sharp questions and than he asked the AG guy "What's the big deal?"
about not letting Randy have both lines!

The judge will decide this afternoon but the vibe is he is going to give Randy the green light to sue we all hope!!!!!!!!!!!!
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------------X
RANDY CREDICO, candidate of the Libertarian Party
and the Anti-Prohibition Party for the office of United
States Senator for the State of New York (6-Year Term); Civil Action No. ____________
MARK AXINN, as Chair and on behalf of the
Libertarian Party of New York, an independent body,
and individually; ANDREW J. MILLER, as Chair and on
behalf of the Anti-Prohibition Party, an independent body,
and individually; and RICHARD COREY, a New York
resident and registered voter,

Plaintiffs,

- against –

NEW YORK STATE BOARD OF ELECTIONS, and
JAMES A. WALSH, DOUGLAS A. KELLNER, EVELYN
J. AQUILA, and GREGORY P. PETERSON, in their
official capacities as Commissioners of the New York State
Board of Elections,

Defendants.
------------------------------------------------------------------------X

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR AN ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINING ORDER AND FOR A PRELIMINARY INJUNCTION


Gary L. Donoyan
Dai & Associates, P.C.
136-20 38th Avenue, Suite 9F
Flushing, New York 11354

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………………….ii

PRELIMINARY STATEMENT……………………………………………………………1

STATEMENT OF FACTS………………………………………………………………….3

A. The History of the LPNY under New York Law….………………………………3

B. The Story of the APP………………………………………………………………3

C. The Value of Fusion to Candidates, Minor Political Parties, and the Voters………4

D. The Imminent Certification of the November 2010 Ballot………………………..5

ARGUMENT………………………………………………………………………………..6

Point I: PLAINTIFFS’ FIRST AND FOURTEENTH AMENDMENT CLAIMS

ARE LIKELY TO SUCCEED ON THE MERITS……………………………..7

A. Election Law §7-104(4)(e) Imposes a Severe Burden upon Each

Plaintiffs’ Speech and Association Rights, and Discriminates Against

Them……………………………………………………………………….10

B. Defendants’ Interests in Enforcing Section 7-104(4)(e) Are

Neither Compelling Nor Even Important………………………………….14

Point II: PLAINTIFFS WILL SUFFER IRREPARABLE INJURY IF

PRELIMINARY RELIEF IS NOT GRANTED………………………………..15

A. Plaintiff Credico May Not Fully Express His Affiliation With Either of

the Independent Bodies That Nominated Him…………………………….15

B. Both the LPNY and the APP May Not Fully Express Their Affiliation

With Candidate Credico…………………………………………………..16

C. Plaintiff Corey May Not Fully Express Both His Affiliation With

Candidate Credico And His Non-Affiliation With the LPNY…………….17

D. By Violating Plaintiff’s First Amendment Rights, Defendants Will

Have injured Plaintiffs Per Se…………………………………………….17

CONCLUSION………………………………………………………………………………19

TABLE OF AUTHORITIES

CASES PAGE

Ahmad v. Long Island Univ., 18 F.Supp.2d 245 (E.D.N.Y. 1998)……………………….……6

Anderson v. Celebrezze, 460 U.S. 780, 793-794 (1983)……………………………....9, 10, 15

Bery v. City of New York, 97 F.3d 689 (2^nd Cir. 1996)………..………………………….6, 17

Council of Alternative Political Parties (“CAPP”) v. State, 781 A.2d 1041 (N.J. Super.

Ct. App.Div. 2001)…..……………………………………………………………………….12

Green Party of N.Y. v. Weiner, 216 F.Supp.2d 176 (S.D.N.Y. 2002)…………………….10, 12

Libertarian Party of Ind. v. Marion County Bd. of Voter Registration, 778 F.Supp. 1458

(S.D. Ind. 1991)………..…………………………………………………………………….13

Lovell v. City of Griffin, Ga., 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938)……………..8

National Association for the Advancement of Colored People v. State of Alabama,

357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)………………..……………….……….8

Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)………..….…………9

Republican Party of Conn. v. Tashjian, 770 F.2d 265 (2^ndCir. 1985)…………………………9

Schulz v. Williams, 44 F.3d 48 (2^nd Cir. 1994)……………………………………….10, 13, 14

STATUTES

N.Y. Elec. L. §1-104 (2010)………………………………………………………………….11

N.Y. Elec. L. §6-142 (2010)………………………………………………………….……….3

N.Y. Elec. L. §7-104 (2010)………...………………………1, 2, 5, 7, 9, 10, 11, 12, 13, 14, 17

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment I………………………………………………7, 17

United States Constitution, Amendment XIV…………………………………………..8, 12

PRELIMINARY STATEMENT

Randy Credico (“Credico”) is a candidate for the United States Senate from the State of New York (6-year term), and has been duly nominated and qualified to appear on the ballot as the candidate of both the Libertarian Party of New York (“LPNY”), and the Anti-Prohibition Party (“APP”), for that office. Richard Corey (“Corey”) is a New York resident and registered voter who wishes to vote for Randy Credico, but not for any candidate on the line of, or whose name includes the name of, the LPNY. Under Section 7-104(4)(e) of New York Election Law – the provision challenged here – defendant New York State Board of Elections (“NYSBOE”) will certify a form of the ballot for the November 2, 2010 election that (1) places the name of candidate Credico on the row of just one of the independent bodies that nominated him, apparently the row for the LPNY (and not on the APP row), and (2) indicates the name of both independent bodies in the same space that his name appears.

Section 7-104(4)(e) violates plaintiffs’ rights of association and speech protected by the First Amendment by preventing them from associating with the parties or candidates of their choice, as the case may be, and by preventing them from fully expressing that association. For the same reasons, this provision also violates plaintiffs’ right to equal protection of the laws under the Fourteenth Amendment, as it burdens their exercise of their fundamental rights of association and speech while effectively subsidizing the recognized parties’ exercise of those same rights.

To be clear, plaintiffs seek a limited temporary restraining order and preliminary injunction to preserve the status quo in one narrow, but critical respect: to allow New York voters to vote for candidate Credico on either the LPNY line, or the APP line, spaces for both of which will necessarily already be available on the ballot form. Without such relief, candidate Credico and his supporters in both independent bodies and in general will be irreparably robbed of their capacity to vote for him in the November 2, 2010 election on the line of their choice. Far from creating any new burdens on state election officials, moreover, if granted, this relief would require that the ballot for the November 2, 2010 election be simpler to design and create than would otherwise be required by a strict application of Section 7-104(4)(e).

Unless this Court grants the requested injunctive relief, plaintiffs will suffer immediate and irreparable harm to core speech and association rights. To survive First Amendment and Equal Protection scrutiny, Section 7-104(4)(e) must therefore be justified by a compelling state interest in curtailing the ability of voters, candidates and independent bodies to associate and express their views. Because defendants do not have any legitimate – much less compelling – interest in perpetuating the severe burden that Section 7-104(4)(e) places on plaintiffs’ First and Fourteenth Amendment rights, this Court should issue a temporary restraining order and preliminary injunction against implementation of that provision.

STATEMENT OF FACTS

A. The History of the LPNY under New York Law

The LPNY was formed as the Free Libertarian Party, Inc. on July 11, 1972 pursuant to the New York Not-for-Profit Law. (See Verified Complaint for Declaratory and Injunctive Relief, filed herewith, for all facts alleged herein.) It has conducted business and political activities as the Libertarian Party of New York since at least May 19, 1985 and both holds a Certificate of Service Mark Registration and has filed with the New York Department of State a Certificate of Assumed Name doing business as the Libertarian Party of New York.

On August 17, 2010, pursuant to New York Election Law §6-142, the LPNY filed a nominating petition with the NYSBOE containing over 33,500 signatures nominating six individuals to run for various statewide offices, including Credico for U.S. Senate (6-year term). The number of signatures on that petition exceeded the minimum statutory requirement of 15,000 signatures, the time for any challenge to the validity of the petition has expired and the petition, including the nomination of Credico for U.S. Senate (6-year term), has been determined to be valid by the NYSBOE.

Dear Readers: Just a small look and I hope to see you at the Fund Raiser tomorrow night if I can make it --not sure but either way you show up!!!


Below my posting you should read and Randy's invite....thank and best, Suzannah


http://suzannahbtroy.blogspot.com/2010/10/mayor-mike-takes-city-board-of-election.html