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Plaintiff-appellant Irving A. Gelb appeals from a summary judgment entered in the United States District Court for the Southern District of New York (Berman, J.) in favor of defendants-appellants, The Board of Elections of the City of New York, its ten members individually and its Executive Director, Deputy Executive Director and Administrative Manager (collectively "City Board"). The district court rejected Gelb's claim that the City Board deprived him of his constitutional rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. Invoking the provisions of 42 U.S.C. § 1983, Gelb challenged the administration of the New York State Election Law by the City Board relative to the law's provision for write-in voting in primary elections, among other things. Gelb asserted that the City Board repeatedly refused his requests to afford ballot space for write-in voting in contested primary elections in the absence of a petition for opportunity to ballot. For various reasons, the district court found no constitutional violations.

Before we proceed to a consideration of Gelb's constitutional claims, we need to determine whether the New York State Election Law requires a Board of Elections in the State of New York to provide space on the ballot for write-in voting in contested primary elections when a petition for opportunity to ballot has not been filed. Because it appears that the New York City Board of Elections interprets the election law to require write-in ballot space in a contested primary election only when a petition for opportunity to ballot has been filed, an interpretation appearing to be contrary to that of the New York State Board of Elections and Attorney General, and because the New York law is unclear, we certify the question to the New York Court of Appeals.


224 F.3d 149 (2000)

Irving A. GELB, Plaintiff-Appellant, v. The BOARD OF ELECTIONS OF THE CITY OF NEW YORK, Weyman A. Carey, Commissioner, Michael J. Cilmi, Commissioner, Michael L. Cohen, Commissioner, Ronald J. D'Angelo, Commissioner, Douglas A. Kellner, Commissioner, Crystal N. Paris, Commissioner, Gertrude Strohm, Commissioner, Frederic M. Umane, Commissioner, Vincent J. Velella, Commissioner, Stephen H. Weiner, Commissioner, Daniel DeFrancesco, Executive Director, Margaret Ognibene, Deputy Executive Director, Jon R. Del Giorno, Administrative Manager, Defendants-Appellees.

No. 99-9369.

United States Court of Appeals, Second Circuit.

Argued: May 16, 2000.

Decided: August 22, 2000.

IRVING GELB, Bronx, NY, Plaintiff-Appellant, pro se,

KATHLEEN V. ALBERTON New York City Law Department New York, N.Y. (Michael D. Hess, Corporation Counsel of the City of New York, on the brief), for Defendants-Appellees.

New York Law School location: File #2834, Box #142