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Monday, July 5, 2010

Espada's Right to Party

Today's New York Post reports that troubled state senator Pedro Espada may be facing official "disenrollment" proceedings by the Bronx Democratic Party (if it acts at the request of state party leaders, as indicated in the report).  The Post report states that the draft letter (which will go from state leaders to the Bronx County Committee Democratic Party chair) will cite Espada for not being "in sympathy" with the party's principles.
 
Some background: Espada publicly flirted with changing his party enrollment from Democratic to Republican in the summer of 2009.  At the time, state senate membership was equally divided and Espada's switch threatened to tip the balance in the chamber. Due to a hyper-long "deferred enrollment" period under New York State Election Law, Espada did not have to make the enrollment change official until last October (it would not have taken effect until 2010 anyway).  By such time, he reconciled with the Democratic Party -- being named Senate Majority Leader -- or failed to see any further advantage in courting the Republican Party.
 
In any event, the disenrollment provision is surprisingly not used more often by parties.  There are constitutional implications to such a provision, as voters do have the right to choose and belong to a party.  (See the 1970 United States Supreme Court case, Rockefeller v. Rosario.) A man who is denied membership in a party of his choosing may be effectively denied membership in any other party, on the same basis of not being in sympathy with party principles.  In fact, being a recent convert to a party or publicly considering such a move could threaten one's current enrollment.  Should the Espada disenrollment movement cite his legal troubles, then it would advance the principle that any public office holder who is under investigation or indictment would risk losing his First Amendment "right to association."  
 
If being under criminal indictment is an appropriate trigger for disenrollment proceedings, how come another former Bronx state senator, Efrain Gonzalez, was not threatened with disenrollment or expulsion from the chamber?  (Gonzalez was just sentenced to a long federal prison sentence for fraud stemming from the misuse of funds from a few non-profit organizations.) 
 
If considering switching parties makes one persona non grata in the party in which one is and remains enrolled, there would be no shortage of people in violation and at risk of expulsion. 
 
Of course, such standards can be expected to be applied selectively.  This opens up a can of worms legally.  I would think that political parties, as intertwined as they are with government, could have certain actions give rise to civil rights claims.   That means the Espada disenrollment movement could lead to a really interesting constitutional rights case.
 
One final note.  The New York State Election Law inherently involves politics.  Petitioning is coming to a close in the Bronx and Espada probably will have a challenge or two.  The Democratic primary is in a little over two months.  Draw your own inferences.
 
Eric Dixon is an election lawyer in New York.  While a student at Yale Law School, Mr. Dixon extensively researched the practice of deferred enrollment in all fifty states and concentrated on New York's deferred enrollment period which was and remains the most onerous in the nation.  Mr. Dixon has also studied the practices and theory behind party switchers.
 
Mr. Dixon is not representing, at this time, any party, faction or candidate referenced in this article.
 
Mr. Dixon is available for further comment at 917-696-2442.  
 
 
 



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