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Second Circuit Upholds NYC Party Witness Rule

By Robyn Hagan Cain on September 30, 2011 | Last updated on March 21, 2019

The Second Circuit Court of Appeals issued an opinion this morning upholding New York City’s Party Witness Rule.

Under the Party Witness Rule, a candidate for a political party’s nomination must circulate a “designating petition” to appear on the party primary ballot. The Party Witness Rule was designed to restrict the class of persons a potential candidate could use to circulate a designating petitions.

New York enacted the Rule in the early 1950s, apparently in response to incidents of “party raiding,” whereby members of one party would actively participate in the primary of a rival party in the hope of influencing that party’s candidate nomination and thus improving their own chances in the general election.

Except for notaries public and commissioners of deeds, the only people allowed to circulate designating petitions are registered voters who are enrolled in the candidate's party. These petition circulators are known as "subscribing witnesses."

Two plaintiff groups challenged the Party Witness Rule in this case, candidate plaintiffs and subscribing witness plaintiffs, (plaintiffs, collectively). The candidate plaintiffs had run for office in the past and wanted to run again in the future using non-party subscribing witnesses to circulate designating petitions. The subscribing witness plaintiffs had attempted to serve in this capacity in the past, but, because of the Party Witness Rule, the signatures they collected were invalidated.

The plaintiffs sought a declaratory judgment under the Civil Rights Act that the Party Witness Rule violated their First and Fourteenth Amendment rights. They claimed that the Rule restrained their ability to speak freely and to associate with others for political purposes, and that the notary public exception to the Rule deprived the subscribing witness plaintiffs of equal protection under the law.

The Second Circuit Court of Appeals disagreed with the plaintiffs' claims, noting that the Supreme Court has emphasized--with increasing firmness--that the First Amendment guarantees a political party great leeway in governing its own affairs. At its core, the court found that the plaintiffs' claim was an associational rights claim more than a political speech claim.

Because political parties have a strong associational right to exclude non-members from their candidate nomination process, the Second Circuit found that the plaintiffs had no constitutional right under which their association with a particular party could be guaranteed.

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