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					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,               VERIFIED COMPLAINT FOR
and individually; and RICHARD COREY, a New York                          DECLARATORY AND
resident and registered voter,                                           INJUNCTIVE RELIEF

                                         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.
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     Plaintiffs, by their attorneys, Dai & Associates, P.C., as and for their complaint against

Defendants, allege as follows:

                                           INTRODUCTION

     1. Plaintiffs, Randy Credico (“Credico”), the Chairs of the two independent bodies that

nominated Credico as their candidate for United States Senate (6-year term) Mark Axinn

(“Axinn”) and Andrew J. Miller (“Miller”) acting on behalf of those bodies (the Libertarian

Party of New York (“LPNY”) and the Anti-Prohibition Party (“APP”) respectively) and

individually, and Richard Corey (“Corey”), a New York resident and registered voter and

supporter of Credico, challenge Section 7-104(4)(e) of New York State’s Election Law.
That provision requires that any candidate for office nominated only by more than one

independent body shall appear but once on the voting machine in one “row or column”

designated either by the candidate or by the officer or board charged with the duty of

providing ballots, and “in connection with his or her name there shall appear the name of

each independent body nominating him or her.”

    2. An “independent body” is a political organization that is not recognized as a “party”

under state law because it did not run a gubernatorial nominee in the most recent such

election who obtained at least 50,000 votes on its line.       Both recognized parties and

independent bodies are typically assigned one “row or column” each on voting machines and

ballots used in the state, with each of their candidates lined up with the candidates of the

other recognized parties and independent bodies.     New York law does allow for different

recognized parties to designate the same candidate, and provides that such candidates shall

appear on the line of each such recognized party.   However, if a candidate is nominated by

more than one independent body (and not by any recognized party), the challenged provision

requires that candidate to choose only one line on which his or her name will appear, or the

election authority will make the choice instead.     The names of all independent bodies

nominating such a candidate are then printed on the single line on which the candidate’s

name appears.    As a result, (1) such candidates may not fully express their affiliation with

any of the independent bodies that nominated them (since even on the line they appear on, the

other independent body(ies) are also indicated), (2) such independent bodies may not

completely and distinctly list each candidate they nominated for that election, and (3) voters

who wish to express their support for such candidates, but not for one of the independent
bodies that nominated them, are denied that opportunity.         In other words, this provision

threatens to strip candidate Credico, two existing independent bodies – the LPNY and the

APP, and the voters of New York, of a means of associating and expressing their association

with others by means of the electoral process.

    3. On or around October 7, 2010, Defendant New York State Board of Elections

(“NYSBOE”) will issue the form of the November election ballot and, unless the Court

intervenes as Plaintiffs request, it will comply with Section 7-104(4)(e) by limiting Credico’s

name to but one “row or column” on that ballot.        Because this provision severely burdens

the rights of Credico, the LPNY, the APP and the voters to communicate and associate as a

political party, and does so unequally and without reasonable justification, it violates the First

and Fourteenth Amendments to the United States Constitution and 42 U.S.C. §1983.              The

Court can and should grant preliminary relief in this action prior to the November election by

enjoining the NYSBOE from issuing ballots that do not list the name of candidate Credico on

the lines of both the LPNY and the APP.

                                JURISDICTION AND VENUE

    4. This action arises under the United States Constitution, Amendment I and

Amendment XIV, Section 1, and the Court has jurisdiction of the subject matter of this action

pursuant to 28 U.S.C. §§1331, 1343(a)(3), and 2201.

    5. Venue of this action is properly in this district, pursuant to 28 U.S.C. §1391(b), on

the grounds that a substantial part of the events or omissions giving rise to the claims herein

occurred, and threaten to occur, in this district.
                                                PARTIES

      6. Plaintiff Credico is the candidate for United States Senate for the State of New York

(6-year term)1 of both the LPNY and the APP, in the election to be held on November 2, 2010.

He resides at 14 Seventh Avenue, in the City of New York, Borough of Brooklyn, in the

Eastern District of New York. Credico is a political satirist/impressionist and social activist.

He was a close friend of the civil rights attorney William Kunstler and became director of the

William Moses Kunstler Fund for Racial Justice. The fund targeted issues of injustice that

affected communities of color. A major focus was the war on drugs. In 1998, the fund

helped create the Mothers of the New York Disappeared which became the leading

organization fighting New York’s draconian Rockefeller drug laws. Largely as a result of the

publicity secured by the weekly protests Credico organized, the laws were reformed. He has

been recognized by his peers for

his work with the Kunstler Fund and received awards from Union Square, the NAACP and the

Drug Policy Alliance.

      7. Plaintiff Axinn is Chair of the LPNY and appears individually and on its behalf,

pursuant to F.R.C.P. Rule 17(a)(1)(G) and N.Y. Elec. L. §16-104(1). He is a resident of and a

registered voter in the City and State of New York, residing at 338 East 78th Street. He

supports Credico and wishes to vote for him in the November 2010 election, but he does not

wish to vote for any candidate on a line that includes the name of any party or body other than

the LPNY. If Plaintiffs are denied the relief they seek, Axinn will lose his ability to express




1
    Also on the November 2010 ballot in New York are candidates for an unexpired 2-year term in the United
States Senate.
his political views by voting in support of Credico as the candidate of the LPNY, but not voting

in support of any party or body other than the LPNY.

    8. The LPNY was organized in 1972 by a group centered around Ed Clark, later the

Libertarian Party presidential candidate. The Statue of Liberty is their ballot symbol, and they

appear on the ballot as the Libertarian Party. Starting in 1974, the LPNY has run candidates

for statewide office (including U.S. Senate and U.S. Presidential electors) every two years

except for 1986, the only political organization in the state without recognized “party” status to

do so.

    9. Plaintiff Miller is Chair of the APP and appears individually and on its behalf,

pursuant to F.R.C.P. Rule 17(a)(1)(G) and N.Y. Elec. L. §16-104(1). Miller resides at 36-10

Ditmars Boulevard, Astoria, New York, in the Eastern District of New York. The APP is a

newly-formed independent body that opposes governmental prohibition of various activities by

consenting adults, including prostitution, possession of marijuana and gay marriage. Credico

is the duly nominated candidate of the APP for U.S. Senator (6-year term), and supports its

platform.

    10. Plaintiff Corey is a New York resident and registered voter, and a supporter of

Credico. He resides at 165 West 21st Street, in the City of New York, Borough of Manhattan.

Corey supports Credico and wishes to vote for him in the November 2010 election, but he does

not wish to vote for any candidate on a line that expressly includes the LPNY name. If

Plaintiffs are denied the relief they seek, Corey will lose his ability to express his political

views by voting in support of Credico, but not in support of the LPNY.
    11. Defendant NYSBOE has “jurisdiction of, and [is] responsible for, the execution and

enforcement of … statutes governing campaigns, elections and related procedures.” N.Y.

Elec. L. §3-104(1). The NYSBOE acts pursuant to and under color of state law to ensure that

local boards of elections across the state comply with and implement the election laws of the

State of New York, including Section 7-104(4)(e), which is challenged in this case. In

addition, only a “voting machine or system approved by the state board of elections, or the use

of which has been specifically authorized by law,” may be used by the board of elections of the

city of New York and other county boards of elections. N.Y. Elec. L. §7-200(1).

    12. Defendant James A. Walsh is a Commissioner of the NYSBOE, which has

“jurisdiction of, and [is] responsible for, the execution and enforcement of … statutes

governing campaigns, elections and related procedures.”      N.Y. Elec. L. §3-104(1). He is

sued herein in his official capacity only.

    13. Defendant Douglas A. Kellner is a Commissioner of the NYSBOE, which has

“jurisdiction of, and [is] responsible for, the execution and enforcement of … statutes

governing campaigns, elections and related procedures.”      N.Y. Elec. L. §3-104(1). He is

sued herein in his official capacity only.

    14. Defendant Evelyn J. Aquila is a Commissioner of the NYSBOE, which has

“jurisdiction of, and [is] responsible for, the execution and enforcement of … statutes

governing campaigns, elections and related procedures.”     N.Y. Elec. L. §3-104(1). She is

sued herein in her official capacity only.

    15. Defendant Gregory P. Peterson is a Commissioner of the NYSBOE, which has

“jurisdiction of, and [is] responsible for, the execution and enforcement of … statutes
governing campaigns, elections and related procedures.”              N.Y. Elec. L. §3-104(1). He is

sued herein in his official capacity only.

                             THE CHALLENGED PROVISION OF LAW

       16. Under New York State law, the names of all candidates nominated by any recognized

party or independent body for an office generally appear on ballots and voting machines in

the row or column containing the names of candidates nominated by such recognized parties

or independent bodies for other offices. N.Y. Elec. L. §7-104(4)(a).

       17. When the same person has been nominated by more than one recognized party, the

candidate’s name appears in the row or column of each such recognized party. N.Y. Elec. L.

§7-104(4)(b).

       18. The provision challenged by Plaintiffs, Section 7-104(4)(e) of New York Election

Law, governs the case when a person is nominated for any office only by more than one

independent body:
                      If any person is nominated for any office only by more than one
                      independent bodies2, his or her name shall appear but once
                      upon the machine in one such row or column to be designated
                      by the candidate in a writing filed with the officer or board
                      charged with the duty of providing ballots, or if the candidate
                      shall fail to so designate, in the place designated by the officer
                      or board charged with the duty of providing ballots, and in
                      connection with his or her name there shall appear the name of
                      each independent body nominating him or her, but, where the
                      capacity of the machine will permit, the name of such person
                      shall not appear or be placed in a column or on a horizontal line
                      with the names or persons nominated by a party for other
                      offices.


N.Y. Elec. L. §7-104(4)(e), emphasis added.


2
    So in original.
    19. This provision requires that the ballots and voting machines used in an election

involving a candidate nominated only by more than one independent body may not provide

for the candidate’s name to appear in the row or column of more than one of those

independent bodies.    By contrast, in the case of candidates of recognized parties, New York

law provides that such candidates must appear on more than one line, in the event they are

also the candidate of a different recognized party or an independent body.

                                           FACTS

The History of the LPNY under New York Law

    20. The LPNY was formed as the Free Libertarian Party, Inc. on July 11, 1972 pursuant

to the New York Not-for-Profit Law.     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.

    21. 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.

The Story of the APP

    22. The APP is a newly-formed independent body that opposes governmental prohibition
of various activities by consenting adults, including prostitution, possession of marijuana and

gay marriage.

    23. On August 17, 2010, pursuant to New York Election Law §6-142, the APP filed a

nominating petition with the NYSBOE containing over 23,000 signatures nominating four

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.

The Value of Fusion to Candidates, Minor Political Parties, and the Voters

    24. Fusion, also called multiple party nomination or cross-filing, entails the nomination

of the same candidate to the same office in the same election by more than one political party.

This practice represents one of the most effective means available for minor political parties

to participate consistently in the electoral process. Without fusion, minor parties, such as

the Conservative Party, the Working Families Party, the Independence Party, and the LPNY

and APP, may not be able either to gain or to maintain access to the New York ballot.

    25. In addition to the value to candidates of any kind of appearing on multiple lines on

the ballot, the value to candidates of independent bodies also includes: the likelihood that

many of the tens of thousands of registered voters who signed one of their nominating

petitions (during a six-week period in July and August preceding the November election)

have the intention of voting for them on the line of that independent body.

    26. Furthermore, each independent body circulates nominating petitions which include
all of their statewide candidates. The remaining five statewide candidates of the LPNY and

three statewide candidates of the APP likely approved of including Credico on their

respective joint petitions because their vote totals would be increased by including him on

that body’s line. Each of those other eight candidates, and as a result the independent bodies

that nominated them (the LPNY and the APP), will have their freedom of association

curtailed, and will lose the benefits those associations bring, upon the enforcement of

Election Law §7-104(4)(e) by the NYSBOE.

The Imminent Creation of the November 2010 Ballots and Voting Machines

    27. By letter dated September 17, 2010, the NYSBOE acknowledged to Credico that he

is the candidate for United States Senate of both the LPNY and the APP, advised that it would

comply with the challenged state law (although the letter referred to the subsection number

prior to the change in numbering effective July 2010) such that his name “can appear on

ballots on only one row,” and offered Credico an opportunity to choose on which row his

name would appear. A copy of that letter is annexed hereto as Exhibit 1.

    28. By letter dated September 22, 2010, Credico replied to the NYSBOE, declining to

make such a choice, and requesting that the NYSBOE comply with the state and federal

constitutions by placing his name on each of the two lines on the November ballot.          The

NYSBOE was advised that if it refused to do so, Credico was prepared and expects to bring a

court action to compel it to do so. A copy of that letter is annexed hereto as Exhibit 2.

    29. The NYSBOE is likely to certify the ballot for the November 2 election on or around

October 7, 2010. Even though only about 5,000,000 people voted in the previous election

for Governor in 2006, it is not known precisely how many of the approximately 11,000,000
New York State registered voters will vote in this election, nor in which voting districts.

Since each voter is entitled to three ballots absent a court order entitling the voter to more

(only one is counted), several tens of millions of ballots will be printed statewide.          It is

crucial that plaintiffs be granted preliminary relief in this case prior to the certification of the

November ballots, in order to avoid the expense to the people of New York that a later order,

requiring the recall and reprinting of the ballots, would entail.

                                    CLAIMS FOR RELIEF
                                (COUNT ONE)
   First and Fourteenth Amendments – Burdens on Rights of Association and Speech


    30. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1-29

as if set forth herein at length.

    31. On or around October 7, 2010, Defendant NYSBOE will certify the form of the

November election ballot, and Plaintiff Credico will thereupon be limited to appearing on just

one of the two rows or columns assigned to the two independent bodies that nominated him,

i.e., the LPNY and the APP.

    32. Because of Section 7-104(4)(e), on the November 2010 election ballot, Credico will

be deprived of the opportunity to affiliate with both of the independent bodies that nominated

him, to the same extent that other candidates may affiliate with multiple recognized parties

that nominate them. At the same time, the LPNY and the APP will be deprived of the

opportunity to completely and distinctly list each candidate they nominated for that election,

and voters who wish to express their support for Credico, but not for one of the independent

bodies that nominated him, will be denied that opportunity.

    33. By reason of the foregoing, Defendants, acting under color of state law, have
deprived and will deprive Plaintiffs of the rights, privileges, and immunities secured to them

under the First and Fourteenth Amendments to the United State Constitution and 42 U.S.C.

§1983 to associate and to express their political viewpoint through the electoral process.

    34. Plaintiffs have no adequate remedy at law for such deprivation of their rights,

privileges, and immunities.
                                      (COUNT TWO)
                    First and Fourteenth Amendments – Equal Protection


    35. Plaintiffs repeat and reallege each and every allegation contained in paragraphs 1-34

as if set forth at length herein.

    36. Section 7-104(4)(e) of New York Election Law unequally and unfairly burdens the

rights of independent bodies that nominate candidates also nominated by other independent

bodies, the rights of candidates of more than one independent body, and the rights of their

supporters who support fewer than all of the independent bodies that nominated them, by

requiring candidates of more than one independent body to be placed on the ballots and

voting machines on the row or column of only one independent body, while preserving and

granting the ability to appear on more than one row or column to the candidates of the

recognized parties, should they also be nominated by a different recognized party or

independent body.       This disparate treatment of similarly situated candidates deprives

Plaintiffs of the equal protection of the laws guaranteed under the Fourteenth Amendment.

    37. The State has no compelling interest or even reasonable justification to support this

unequal burden upon Plaintiffs’ fundamental rights.

    38. Under color of state law, Defendants have denied and continue to deny Plaintiffs the

rights, privileges, and immunities secured by the Constitution and laws of the United States,
and in particular the First Amendment to the Constitution, all in violation of the Equal

Protection Clause of the United States Constitution and 42 U.S.C. §1983.

    39. Plaintiffs have no adequate remedy at law for such deprivation of their rights,

privileges, and immunities.

                                 PRAYER FOR RELIEF

    Wherefore, Plaintiffs demand that:

    (1) a judgment be entered declaring and determining that New York’s election law

governing the form of the ballot in the event that a candidate is nominated only by more than

one independent body, N.Y. Elec. L. §7-104(4)(e), is in violation of the United States

Constitution, specifically the First and Fourteenth Amendments, both facially and as applied

to Plaintiffs;

    (2) plaintiffs be granted the appropriate equitable relief including preliminarily and

permanently enjoining Defendants from implementing and enforcing New York’s election

law governing the form of the ballot in the event that a candidate is nominated only by more

than one independent body, N.Y. Elec. L. §7-104(4)(e), and any relevant policy guidance or

rules intended to implement and enforce this provision, and requiring that candidates of only

more than one independent body shall appear on the row or column of each such independent

body;

    (3) plaintiffs be awarded their costs and disbursements associated with the filing and

maintenance of this action, including an award of reasonable attorneys’ fees pursuant to 42

U.S.C. §1988; and

    (4) such other equitable and further relief as the Court deems just and proper be
awarded.



Dated: Flushing, New York
       October 5, 2010
                            _______________________________________
                            Gary L. Donoyan (GD-7542)
                            DAI & ASSOCIATES, P.C.
                            136-20 38th Avenue, Suite 9F
                            Flushing, New York 11354
                            gdonoyan@daiassociates.com
                            (718) 888-8880

                            Attorneys for Plaintiffs
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, VERIFICATION
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

STATE OF NEW YORK )
                  )                 ss.:
COUNTY OF KINGS )


     Randy Credico, being duly sowrn, deposes and says:

     I am a plaintiff in the above-entitled action; I have read the foregoing complaint and

know its contents; and the allegations of fact are true to my own knowledge, except as to
those matters stated to be alleged on information and belief, and as to those matters I believe

them to be true.


                                                    _______________________________
                                                    Randy Credico

Sworn to before me this
____ day of October 2010


__________________________
NOTARY PUBLIC

				
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