CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 6/30/2023 1

Challenge to a Voter-Registration Form 

Stating That Party Affiliation 

Is Required for Primary-Election Voting 

Fitzgerald v. Berman 

(Norman A. Mordue, N.D.N.Y. 1:02-cv-926) 

As voters supporting open primary elections began a voterregistration drive as part of their effort to create a new NonAffiliated Voters Party, they filed a federal complaint challenging 

voter-registration-form language stating that only registered members of political parties could vote in primary elections. The district 

judge considered but denied immediate relief fifteen days later. 

Two years after that, the district judge dismissed the complaint for 

lack of standing because all established parties wished to retain 

closed primary elections. 

Subject: Registration procedures. Topics: Primary election; 

registration procedures; pro se party. 

Represented by counsel, six voters filed a federal complaint in the Northern 

District of New York on July 16, 2002, challenging voter-registration-form 

language that allegedly asserted falsely that party membership was required 

for primary-election voting.1 Seeking to establish a new political party called 

the Non-Affiliated Voters Party, the plaintiffs argued that the First Amendment entitled a party to invite nonmembers to vote in its primary elections.2

The complaint was filed one week after the plaintiffs began circulating gubernatorial nominating petitions.3

 Six days later, the plaintiffs filed an application for a temporary restraining order.4

On July 24, Judge Norman A. Mordue issued an order that defendants 

show cause at a July 31 telephonic hearing why the plaintiffs should not be 

granted relief.5 At the ten-minute hearing, Judge Mordue denied the plaintiffs immediate relief.6

He denied the plaintiffs a preliminary injunction on September 30, 2003, 

for lack of standing.7 Although established political parties in New York held 

1. Complaint, Fitzgerald v. Berman, No. 1:02-cv-926 (N.D.N.Y. July 16, 2002), D.E. 1; see

Andrew Tilghman, Ruling Delayed on Election Law, Albany Times Union, Aug. 8, 2002, at 

B4. 

2. Complaint, supra note 1, at 5–8. 

3. Id. at 5. 

4. Temporary-Restraining-Order Application, Fitzgerald, No. 1:02-cv-926 (N.D.N.Y. July 

22, 2002), D.E. 2. 

5. Order to Show Cause, id. (July 24, 2002), D.E. 4, 5. 

Judge Mordue died on December 29, 2022. Federal Judicial Center Biographical Directory of Article III Federal Judges, www.fjc.gov/history/judges. 

6. Minutes, Fitzgerald, No. 1:02-cv-926 (N.D.N.Y. July 31, 2002), D.E. 17 (noting that the 

hearing lasted from 8:30 to 8:40 a.m.). 

7. Opinion, id. (Sept. 30, 2003), D.E. 24, aff’d, 112 F. App’x 800 (2d Cir. 2004). 
Challenge to a Voter-Registration Form 

Stating That Party Affiliation Is Required for Primary-Election Voting 

2 Federal Judicial Center 6/30/2023 

closed primary elections, the plaintiffs could not show that if their planned 

party became established New York would prevent them from holding open 

primary elections.8 Judge Mordue dismissed the complaint on March 22, 

2006, with leave to amend it.9

On October 31, 2006, Judge Mordue dismissed without prejudice a pro se 

amended complaint as almost incomprehensible.10 On December 1, he dismissed as “if anything, more prolix and confusing than the amended complaint” a second amended complaint.11

8. Id. 

9. Opinion, id. (Mar. 22, 2006), D.E. 36, 2006 WL 752785. 

10. Opinion, id. (Oct. 31, 2006), D.E. 54, 2006 WL 6549889; see Amended Complaint, id.

(Apr. 7, 2006), D.E. 37. 

11. Opinion, id. (Dec. 1, 2006), D.E. 54, 2006 WL 3489051, appeal dismissed, Order, No. 

07-51 (2d Cir. Apr. 30, 2007) (dismissing the appeal for failure to prosecute it); see Second 

Amended Complaint, id. (Nov. 20, 2006), D.E. 55.