CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 5/24/2023 1

Requirement That Ballot-Petition Witnesses 

for a Primary Election Be Members of the Party 

Kaloshi v. New York City Board of Elections 

(Sterling Johnson, Jr., 1:02-cv-4762), Brown v. New York 

City Board of Elections (Raymond J. Dearie, 1:04-cv-3662), 

and Maslow v. Wilson (Edward R. Korman 

and Nicholas G. Garaufis, 1:06-cv-3683) (E.D.N.Y.) 

A district judge ordered a candidate’s name added to a 2002 primaryelection ballot for state senate on a finding that it was unconstitutional to require that ballot-petition signature witnesses be registered 

members of the party. After the election, the court of appeals vacated 

the holding, determining that the candidate, who did not prevail in 

the election, did not have enough signatures to qualify for the ballot 

after all, even after invalidations for the unconstitutional requirement were taken into account. An action filed in 2004 in the same 

court challenging the party-membership requirement was unsuccessful, because the second district judge did not agree with the first 

judge’s conclusion. Neither did a district judge presiding over a case 

filed in 2006, and the court of appeals affirmed the last judge’s ruling. 

Subject: Getting on the ballot. Topics: Getting on the ballot; 

primary election; intervention; matters for state courts; case 

assignment. 

On August 28, 2002, six prospective candidates in September Democratic primary elections in New York for state senate, assembly, and party committee 

filed a federal complaint in the Eastern District of New York seeking an injunction placing their names on the ballot.1

Judge Sterling Johnson, Jr., held a show-cause hearing on September 3 and 

4.2

 Voters and the state’s attorney general were permitted to intervene.3 On 

September 6, Judge Johnson ordered one of the plaintiffs on the ballot for state 

senate.4

The senate candidate needed 1,000 signatures to qualify for the ballot, and 

he submitted 1,609.5

1. Complaint, Kaloshi v. N.Y. City Bd. of Elections, No. 1:02-cv-4762 (E.D.N.Y. Aug. 28, 

2002), D.E. 1. 

2. Docket Sheet, id. (Aug. 28, 2002) (D.E. 2, 3). 

Judge Johnson died on October 10, 2022. Federal Judicial Center Biographical Directory 

of Article III Federal Judges, www.fjc.gov/history/judges. 

3. Order, Kaloshi , No. 1:02-cv-4762 (E.D.N.Y. Sept. 9, 2002), D.E. 5; Amended Opinion 

at 9, id. (Sept. 13, 2002), D.E. 9 [hereinafter Kaloshi Amended Opinion], 2002 WL 31051530 

(observing that the voters’ claims would not be precluded by the candidates’ unsuccessful actions in state court). 

4. Kaloshi Amended Opinion, supra note 3. 

5. Id. at 3. 
Requirement That Ballot-Petition Witnesses for a Primary Election Be Members of the Party 

2 Federal Judicial Center 5/24/2023 

One challenge resulted in a finding of 350 valid signatures.6 A second challenge resulted in a finding of 504 valid signatures.7

 Judge Johnson held unconstitutional a requirement that signature witnesses be registered members of 

the party.8

 As a result of the first challenge to the candidate’s signatures, 666 

signatures were invalidated for the unconstitutional reason, so Judge Johnson 

determined that the candidate had 350 plus 666 or 1,016 valid signatures.9

Judge Johnson denied relief to candidates left off of their ballots for providing the wrong position sought on their application papers, and he denied relief 

to an assembly candidate who did not have enough signatures even accounting 

for the unconstitutional requirement.10 Judge Johnson also denied relief for a 

claimed failure to preclear a change in the dates of signature collection under 

section 5 of the Voting Rights Act,11 on a finding that the change had been 

precleared.12

The successful plaintiff came in fifth in a field of five, with 3.2% of the 

vote.13

On July 1, 2003, the court of appeals vacated the candidate’s relief for lack 

of standing, because the court determined that the candidate’s insufficient signatures did not result from the unconstitutional requirement.14 The court of 

appeals found that the signature challenge yielding 504 valid signatures resulted from invalidations having nothing to do with the unconstitutional requirement, so there was no injury.15

Relying on Judge Johnson’s 2002 decision, seven voters filed a federal complaint on August 24, 2004, challenging the ballot exclusion of a slate of candidates for Congress, the state assembly, and other offices, alleging, among other 

things, the unconstitutionality of the requirement that ballot-petition signature witnesses for a primary election be party members.16 Judge Raymond J. 

Dearie set the case for hearing on September 1.17

6. Id. at 4. 

7. Id. 

8. Id. at 28. 

9. Id. at 28–29. 

10. Id. at 16–18, 29. 

11. Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, as amended, 52 U.S.C. § 10304, as amended, 

52 U.S.C. § 10304 (requiring preclearance of changes to voting procedures in jurisdictions 

with a certified history of discrimination). 

On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the 

Court did hold unconstitutional the criteria for which jurisdictions require section 5 preclearance. Shelby County v. Holder, 570 U.S. 529 (2013). 

12. Kaloshi Amended Opinion, supra note 3, at 18–19. 

13. Kaloshi v. Spitzer, 69 F. App’x 17, 18 n.1 (2d Cir. 2003). 

14. Id. at 19. 

15. Id.

16. Complaint, Brown v. N.Y. City Bd. of Elections, No. 1:04-cv-3662 (E.D.N.Y. Aug. 24, 

2004), D.E. 1; id. at 4 (citing Judge Johnson’s ruling). 

17. Order to Show Cause, id. (Aug. 24, 2004), D.E. 2. 
Requirement That Ballot-Petition Witnesses for a Primary Election Be Members of the Party 

Federal Judicial Center 5/24/2023 3

Defendants were the city’s board of elections and its commissioners, who 

argued in their brief that Judge Johnson’s opinion was nonprecedential, because it had been vacated by the court of appeals.18 At the hearing, Judge 

Dearie informed the parties that he did not agree with Judge Johnson’s opinion19 and concluded, “I do not have any reservation about the constitutionality 

of the provision in question.”20 Judge Dearie granted the defendants’ motion 

to dismiss the case.21

A July 27, 2006, federal complaint challenged the party-membership requirement for the September 12 primary-election ballot-petition signature 

witnesses.22 Among the relief sought was an injunction putting one plaintiff 

on the ballot for state assembly and two other plaintiffs on the ballot for civilcourt judge.23 The complaint observed that in 2000, Judge Edward R. Korman 

found a witness-residence requirement to be an undue burden on First 

Amendment rights.24 The court initially assigned the 2006 case to Judge Korman as related to his case resolved in 2000 and filed in 1999.25 The 2006 parties 

appeared in court on the day that the complaint was filed and stipulated a continuance until August 4, 2006.26 On August 10, Judge Korman converted the 

plaintiffs’ motion for a preliminary injunction to a motion for summary judgment.27 After the action was filed, it turned out that the two judicial candidates 

had enough signatures even with the party-membership requirement and the 

assembly candidate did not have enough signatures even without the partymembership requirement.28

The court reassigned the case to Judge Nicholas G. Garaufis on September 

11,29 and the plaintiffs filed an amended complaint on October 25.30 On May 

23, 2008, Judge Garaufis granted the defendants summary judgment.31

18. Defendants’ Brief at 11–12, id. (Aug. 31, 2004), D.E. 5. 

19. Transcript at 12, id. (Sept. 1, 2004, filed Sept. 28, 2004), D.E. 10. 

20. Id. at 39. 

21. Order, id. (Sept. 1, 2004), D.E. 8; Minutes, id. (Sept. 1, 2004), D.E. 11. 

22. Complaint, Maslow v. Wilson, No. 1:06-cv-3683 (E.D.N.Y. July 27, 2006), D.E. 1. 

23. Id.

24. Id. at 11 (citing Molinari v. Powers, 82 F. Supp. 2d 57, 69 (E.D.N.Y. 2000) (holding 

unconstitutional a requirement that petition signers list their towns of residence according to 

the board of elections’ list for which address is in which town regardless of the signers’ understanding of their towns of residence and a residence requirement for witnesses)). 

25. Notice, id. (July 27, 2006), D.E. 2; see Docket Sheet, Molinari v. Powers, No. 1:99-cv8447 (Dec. 22, 1999). 

26. Transcript, Maslow, No. 1:06-cv-3683 (E.D.N.Y. July 27, 2006, filed July 28, 2006), D.E. 

6; Minutes, id. (July 27, 2006), D.E. 8; see Order to Show Cause, id. (July 31, 2006), D.E. 5. 

27. Order, id. (Aug. 10, 2006), D.E. 10. 

28. Opinion at 3, id. (May 23, 2008), D.E. 69 [hereinafter E.D.N.Y. Maslow Opinion], 2008 

WL 2185370; see Letter, id. (Aug. 3, 2006), D.E. 7 (informing Judge Korman that the judicial 

candidates qualified for the ballot). 

29. Docket Sheet, id. (July 27, 2006). 

30. Amended Complaint, id. (Oct. 25, 2006), D.E. 14. 

31. E.D.N.Y. Maslow Opinion, supra note 28; Maslow v. Bd. of Elections, 658 F.3d 291, 

294–95 (2d Cir. 2011). 
Requirement That Ballot-Petition Witnesses for a Primary Election Be Members of the Party 

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The Supreme Court had held, on January 16, 2008, that selecting partisan 

nominees for judicial offices in New York by a primary-election-informed 

party convention rather than a direct primary election did not violate the constitutional rights of potential candidates disfavored by party leaders.32 Judge 

Garaufis relied on this opinion: “Simply put, the Court has granted New York 

State enormous latitude to exclude non-members from participating in the selection of and ‘determinin[ing] the candidate bearing the party’s standard in 

the general election.’”33 “Because Plaintiffs are without a right to have nonparty members participate in a political party’s nomination process,” the court 

of appeals, on September 30, 2011, affirmed Judge Garaufis’s ruling.34

32. N.Y. State Bd. of Elections v. López Torres, 552 U.S. 196 (2008). 

33. E.D.N.Y. Maslow Opinion, supra note 28, at 15 (quoting López Torres, 552 U.S. at 203). 

34. Maslow, 658 F.3d at 294, cert. denied, 565 U.S. 1275 (2012).