IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK ALBANY DIVISION UNITED STATES

OF AMERICA, ) ) Plaintiff, ) ) v. ) ) STATE OF NEW YORK and THE NEW ) YORK STATE BOARD OF ELECTIONS, ) ) Defendants. ) ______________________________________ )

CIV. NO. 1:10-CV-1214(GLS)

MOTION BY THE NEW YORK STATE SENATE TO INTERVENE AND MEMORANDUM IN SUPPORT THEREOF The New York State Senate respectfully requests that this Court grant its intervention as of right as a plaintiff in this action, pursuant to Federal Rule of Civil Procedure 24(a) (2) or, alternatively, permissive intervention pursuant to Federal Rule of Civil Procedure 24(b) in support of a remedy for violations of the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA) as amended by the Military and Overseas Voting Empowerment Act (MOVE Act) (hereinafter collectively referred to as the Statute). As grounds in support thereof, the New York State Senate states as follows: 1. The New York State Senates Motion to Intervene is in support of the

application of the United States of America in so far that it seeks the Court to set a date for a primary election that would occur under the Statute in August of 2012. 2. The Motion to Intervene is timely because the United States has only

recently filed an application seeking specific equitable action that would directly affect the date of the 2012 primary election. The sole issue before the Court of concern to the proposed

intervenors is the setting of the primary date. To that extent this motion only seeks enforcement of the Statute and particularly the Consent Decree and the follow-up remedies. 3. The New York State Senates Motion seeking intervention will not create

any delay. Opposing parties papers have yet to be filed. The matter is currently sub judice and a hearing on the issue is scheduled for October 20, 2011. 4. Thus, intervention by the New York State Senate, at this juncture, will not

prejudice the existing parties, given that it is seeking a particular remedy to enforce the Consent Decree in this action. 5. The New York State Senate has a substantial legal interest in the subject

matter of the action because it is one of the two coordinate bodies that serve as one of the tripartite branches of government of the State of New York. It has as its constitutionally mandated function the power and responsibility to make the laws of the state under a system of representative government. As an equal half of the exclusive law making body, it is the representative of the People of the State who would be subject to an order of this court, either directly or indirectly, and such an order could adversely affect policy decisions made by the State Legislature and its constituent bodies. It will offer the Court a unique perspective of the New York State Senate, of the legislative branch, a perspective not available from any of the current parties before the Court. Further, the New York Senate would be protecting the rights of the legislature to make law under New York State Constitution Article III Section 1. The act of setting the primary date will force the reconfiguration of the states political calendar by legislation that requires the exercise of power uniquely granted to the state legislature in New York.

6.

The proposed remedy, which is the fixing of a federal non presidential

primary date for 2012, directly affects the New York State Senate, alters the political calendar for 2012 and directly impacts the incumbent Legislature. Before the Court is the State of New York, the Executive Branch and the agency of the New York State Board of Elections, an agency of the Executive Branch. The political calendar for 2012 has no impact upon the Executive Branch of the state government. 7. The New York State Senate may seek intervention on the determination

by the Majority Leader and President Pro Tem of the New York State Senate Dean G. Skelos, pursuant to N Y State Senate Rule II, section 8: [The Temporary President] shall represent the Senate, or engage legal representation on behalf of the Senate, in any legal action or proceeding involving the interpretation or effect of any law of the federal, state or local government or the constitutionality thereof or with regard to the enforcement or defense of any right, privilege or prerogative of the Senate. 8. The New York State Senate is one of the houses of the current legislature

and will be affected in the setting of the primary election in 2012 when every seat in the New York State Senate is expected to be highly contested in both the primary election and the general election. Thus, in seeking intervention, the New York State Senate is the incumbent legislature, on behalf of the State, and not any particular legislative body. 9. Disposition of the action without the New York State Senates

participation may adversely impact on an otherwise expeditious and effective resolution of the requirement of compliance with federal law, given that the New York State Senate has already proposed Senate Bill # 5848, a statute that it believed and still believes would comply with the MOVE Act and the fully enable military voting.

10.

The New York State Senates interests are not adequately protected by the

Defendants named in the suit and signatories to the Consent Decree. The defendants New York State Board of Elections and the State of New York represented by the New York State Attorney General will be unable to adequately represent the parties before this Court because there exists a conflict between the position of the New York State Senate and the other entities of the State as represented by the Attorney General in this action, at this juncture. The New York State Senate position is that the primary election should be held in August, while the position of the New York State Assembly as represented by their bill, Assembly Bill # 8507 seeks to set a primary date in June. Because the New York State Senate represents a separate branch of government with separate interests than that of the State, before this Court, and the separate interests of the New York State Board of Elections, the New York State Senate has interests different and adverse to those the named defendants. Those interests of the New York State Senate are not adequately represented by parties before the Court. 11. The New York State Senate also satisfies the requirements for permissive

intervention because the action involves the interpretation of statutes that impact directly upon the political calendar that is set by the legislature. The participation of the New York State Senate will significantly contribute to the just and equitable adjudication of the legal questions presented, without causing delay. See Fed.R.Civ.P. 24(b) (2). 12. As further support for this Motion, the New York State Senate respectfully

directs the Court to the following Memorandum of Law, which is attached hereto and incorporated herein by reference.

1MEMORANDUM OF LAW IN SUPPORT OF NEW YORK TATE SENATES MOTION TO INTERVENE INTRODUCTION The New York State Senates files this Memorandum in Support of its Motion to Intervene to remedy violations of the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA) as amended by the Military and Overseas Voting Empowerment Act (MOVE Act) (hereinafter collectively referred to as the Statute). This action was brought by the Attorney General of the United States (Attorney General) on behalf of the United States pursuant to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), 42 U.S.C. 1973ff to 1973ff-7, as amended by the Military and Overseas Voter Empowerment Act, Pub. L. No. 111-84, Subtitle H, 575-589, 123 Stat. 2190, 2318-2335 (2009) (MOVE Act). UOCAVA provides that absent uniformed services voters and overseas voters (UOCAVA voters) shall be permitted to use absentee registration procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office. 42 U.S.C. 1973ff-1. New Yorks UOCAVA voters will have sufficient opportunity to receive absentee ballots they have requested and submit marked absentee ballots in time to be counted for the federal primary in the year 2012 and thereafter. Pursuant to amendments made by the MOVE Act, UOCAVA requires states to transmit validlyrequested ballots to UOCAVA voters not later than 45 days before an election for Federal office when the request is received at least 45 days before the election, unless a hardship exemption is obtained pursuant to Section 102(g) of UOCAVA. 42 U.S.C. 1973ff-1(a) (8) (A). Previously, the State of New York applied for and received a waiver from the Department of Defense to cover the 2010 general election for federal offices. A second waiver application covering the year 2012 is currently pending before the Department of Defense.

On March 26, 2009 the Court signed a Consent Decree in United States v. New York State, 1:09-cv-335-GLS-RFT (First Consent Decree), on the same subject, among the named parties, the State of New York and the New York State Board of Elections to the action. It provided inter alia: 5. The Defendants are committed to exploring the need for future relief, including possible changes of law or administrative regulations, to ensure that UOCAVA voters will have a fair and reasonable opportunity to participate in future special elections. 6. This Consent Decree is final and binding as to all issues resolved herein.

7. The Court shall retain jurisdiction over this action to enter such further relief as may be necessary for the effectuation of the terms of this Consent Decree, including, if appropriate, any proceeding necessary to ensure the timely implementation of permanent relief. A second consent decree (Second Consent Decree was entered into on October 19, 2010 in this action. In a recent filing seeking enforcement of the Second Consent Decree citing its breach, the Department of Justice requested the following relief: Accordingly, the United States seeks two types of relief, ..an order advancing New Yorks primary election date, starting with the 2012 election. Given Defendants failure to change the date on their owndespite ample time and opportunity to do sothis relief is necessary to ensure future UOCAVA compliance. New Yorks federal primary election date is simply too close to the federal general election to ensure UOCAVA compliance in 2012. In light of the States inaction, and absent an order from this Court, New Yorks late primary date will disenfranchise UOCAVA voters in 2012 and beyond. To comply with UOCAVA, the primary election date must be set for no later than 35 days in advance of the UOCAVA deadline for transmitting ballots (the 45th day before the federal general election), i.e., at least 80 days before the federal general election. The New York State Senate seeks to intervene in support of an August date for federal non-presidential primary election in 2012.

ARGUMENT Rule 24 of the Federal Rules of Civil Procedure provides for two means by which an applicant may intervene in an action: intervention of right, governed by subsection (a), and permissive intervention, governed by subsection (b). As discussed below, the New York State Senate satisfies both standards. A. Intervention of Right Federal Rule of Civil Procedure 24(a) provides: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movants ability to protect its interest, unless existing parties adequately represent that interest. Fed.R.Civ.P. 24(a). The New York State Senate does not have an unconditional right to intervene by federal statute. Any claim by the New York State Senate would be intervention pursuant to intervention as of right under Rule 24(a) (2). In United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir. 1994), the Second Circuit set out a four-pronged test for determining whether a party may intervene as of right under Rule 24(a)(2). The party must (1) file a timely motion; (2) demonstrate an interest in the litigation; (3) establish that its interest may be impaired by the disposition of the action; and (4) show that its interest is not adequately protected by the parties to the action. United States v. City of New York, 198 F.3d 360, 364 (2d Cir. 1999). See Hoblock v. Albany County Bd. of Elections, 233 F.R.D. 95, 97 (N.D.N.Y. 2005) (quoting DAmato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001)). (1) the motion to intervene is timely; (2) the potential intervenor asserts an interest that is related to the property or transaction that forms the basis of the

controversy in the case into which she seeks to intervene; (3) the disposition of the case may impair or impede the potential intervenors ability to protect her interest; and (4) the existing parties do not adequately represent the potential intervenors interest. 1. The Motion Is Timely. A determination of timeliness under Rule 24(a) is within the sound discretion of the district court, in light of the totality of the circumstances before it. Circumstances considered in this determination include: "(1) how long the applicant had notice of the interest before [he] made the motion to intervene; (2) prejudice to existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness." D'Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001) (citing and quoting Farmland Dairies v. Comm'r of New York State Dep't of Agric. & Mkts., 847 F.2d 1038, 1043-44 (2d Cir. 1988); Pitney Bowes, Inc., supra, 25 F.3d at 70. Timeliness is not based on an absolute measure, nor is it a tool to punish the tardy would-be intervenor. Where the original parties will not be prejudiced and greater justice could be attained, federal courts should allow intervention. The motion to intervene is timely in this action under current circumstances. The intervenors seek enforcement of the existing Consent Decree and to be heard solely on the remedy and does not seek to re open any litigation. The United States has not sought enforcement of the Consent Decree until it made its application on September 19, 2011. Second, the Intervenors motion is being made prior to the return date of the motion of the United States, within the period of time set by the Court for the parties responsive parties papers.1 The New York State Senate need to intervene is the result of efforts between the New York State Senate, the New York State Assembly and the Governor of the Significantly, the Intervenors seek dispensing with the requirement of filing a pleading and obtaining a response due to the lack of necessity for a new round of pleading as set forth in Point III.
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State of New York to come to a consensus on a single date for the 2012 primary election so as to achieve compliance with the Statute. These efforts have now exposed the differences in determination of a specific date and demonstrate differing positions of the branches of the State government. Thus, the Motion to intervene by the New York State Senate is timely in all respects. 2. The New York State Senate Has An Interest In The Litigation. In the context of a motion to intervene under Rule 24(a) (2) the term interest defies a simple definition. Restor A Dent Dental Laboratories v. Certified Alloy Products, 725 F.2d 871, 874 (2d Cir. 1984). Rule 24(a) (2) "does not require that the intervenor prove a property right, whether in the constitutional or any other sense." Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123 (2d Cir. 2001) (citing United States v. City of Chicago, 870 F.2d 1256, 1260 (7th Cir. 1989). There is no Article III standing requirement in the Second Circuit, with an intervenor only needing to meet the Rule 24(a) requirements and have an interest in the litigation, if there is already a case or controversy in existence between the original parties to litigation who have standing. See United States Postal Serv. v. Brennan, 579 F.2d 188, 190 (2d Cir. 1978). The strongest case for intervention is not where the aspirant for intervention could file an independent suit, but where the intervenor-aspirant has no claim against the defendant but still has a legally protected interest that could be impaired by the suit. See Solid Waste Agency of N. Cook County v. United States Army Corps of Engineers, 101 F.3d 503, 507 (7th Cir. 1996). "As the Rule's plain text indicates, intervenors of right need only an interest in the litigation not a cause of action or permission to sue.' Hoblock, Id. This is the case even if the interest would not be sufficient to constitute an Article II injury in fact. Brennan, 579 F.2d

at 190. Rule 24(a) (2) requires not a property interest but, rather, "an interest relating to the property or transaction which is the subject of the action." Id. Similar to the legislative leaders, representing their respective houses in Karcher v. May, 484 U.S. 72 (1987), the New York State Senate has an institutional interest that should be heard and thus must be defended in this action. First, as part of the negotiations that have since foundered, the New York State Senate has taken the position that the primary election, in order to comply with the statute, should be held in August. The New York State Senate proposed Senate Bill # 5848 but without agreement from the Assembly and the Executive, a one house bill stalled.2 The New York State Senates seeking an August primary election date would resolve the matter before the Court under equitable terms and ensure that all voters, military, overseas and those at home will have a voice in the primary election without the sacrifice of the opportunities of one class of voters for that of another class of voters. In addition the Senates proposed August primary date would allow petitions to be circulated in the months of April and May, the springtime, whereas the proposed June primary would require circulation of petitions in February and March, the winter season. The selection of the winter months would make it more difficult for candidates to obtain the required number of signatures to qualify for the ballot. Second, the New York State Senate seeks the prompt establishment of the dates of primary elections given that it is the responsibility of the legislature under the State Election Law to establish a political calendar sufficiently in advance that all are aware of the dates and restrictions occasioned by such dates. Third, and significantly, as a matter solely of fiscal prudence, the New York State Senate does not want to impose upon the voters and the economy The United States opines that the Senate bill which set a primary election date in the fourth week in August would not provide for timely compliance with the Statute. The State Senate opposes the setting of a June primary date, as it is believed the Defendants are expected to propose to this Court.
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of the state additional costs for more than a single primary election in 2012 has an economic and political interest in ensuring that there be as few separate elections run as possible when all can be consolidated together. Finally, each of the members of the New York State Senate are expected to be candidates in the 2012 primary cycle. A June primary, however, would occur at the same time as the end of the state legislative session. It is vital that the legislative session which finishes at the end of June be permitted to close in an orderly and productive manner. Unlike the State Assembly and the unitary Executive, the New York State Senate is a closely divided body with 32 Republican majority party members and 30 minority party Democrats. The alignment makes the assurance of a quorum to do business fraught with peril when a single missing member or two could shut down the work of the body. Political gamesmanship has adversely affected the business of the Chamber when the Democrats were previously in control. Members should not be forced, for no practical purpose, to have to weigh their elected responsibilities as members against the need for political presence in their districts. To that end a primary election, if any, should be held in August as opposed to June. Speculation concerning low turnout by Democrats should not determine the equitable remedy in this matter. A claim that an August date would diminish turnout has no empirical data to support the contention. 3 This State has a prominent well known absentee ballot body of law such that voters need not cling to homes or polling places to exercise the elective franchise. Members of the different political parties comprising the branches of government of the state seek different dates for the primary elections. Setting a single date for all the primaries, federal, state, and local, will assure that the maximum voter turnout will occur, The chart maintained by the Federal Voting Assistance Program website shows that for the 2010 calendar year, fourteen states have an August primary. See http://www.fvap.gov/resources/media/vaghandout3.pdf
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prevent diffusion of political interest and ensure that all legitimate votes are counted using consistent standards in all elections. See Bush v. Gore, 531 U.S. 98 (2000).4 3. The New York State Senate Will Be Impaired In Its Ability To Protect Its Interest Unless It Intervenes. The parties to the action are not litigating the parameters of the Consent Decree do not have the same interest as that of the New York State Senate, either politically or by virtue of the branch of government they serve. In the context of the Consent Decree, the parties New York State, and the New York State Senate, have sufficiently different interests insofar as the present litigation is concerned. Thus, both parties could not be represented by the same counsel. While both parties may have an interest in the compliance with the applicable statute, the Attorney General representing the State does not have the same interest in preserving the powers and integrity of the legislative authority of the New York State Senate to determine the Election Law calendar so long as it obeys the federal law. Because of the structure of the litigation and the nature of the representation under state law, the New York State Senate is not heard in this action as to its interests despite the fact that the litigation directly impacts the Senates interests, orderly conduct of its business and discharge of its constitutional duties. 4. The Existing Parties Do Not Adequately Protect The Interests Of The New York State Senate.

Although this may not be part of the formal calculus of the determination of the issue, the New York State Senate majority is comprised of a majority of Republican members all of whom seek the primary to be set in August. On the other side of the Capitol, the New York State Assembly dominated by a Democratic majority seek only a June primary date, despite the fact that a June primary date would either force curtailment of the legislative session or create forced absences by members trying to run for re-election and also serve out existing terms. The Governor and the Attorney General of New York State are also Democrats. A June primary date is a radical departure from the current September primary date and one without any foundation in practicality.
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The application of the United States proposes a federal primary date in August in order to comply with the applicable statute. A party seeking intervention as of right has a minimal burden in showing representation may be inadequate; that party must at least overcome the presumption of adequate representation that arises when it has the same ultimate objective as a party to the existing suit. U.S. Postal Serv. v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978) (affirming denial of intervention to postal union adequately represented by Postal Service, where both held same ultimate objective in favor of constitutionality of a statutory and regulatory scheme). Against this standard is that of the United States Supreme Court which held in Trbovich v. United Mine Workers of America, 404 U.S. 528, 538, n. 10 (1982) that the rule is satisfied if the applicant shows that the representation by existing parties may be inadequate, so that the applicants burden should be minimal. We note that the issue is not competence of counsel but whether the interests of the New York State Senate are the same as that of the United States or the defendants. They are not. A proposed intervenor, furthermore, must make a particularly strong showing of inadequacy in a case where the government is acting as parens patriae. City of New York, 198 F.3d at 367 (finding, among other things, that a coalition opposed to water filtration was sufficiently represented by governmental parties in a suit to enforce federal law and regulations mandating water filtration, and denying intervention); Natural Res. Def. Council v. N.Y. State Dept of Envtl. Conservation, 834 F.2d 60, 62 (2d Cir. 1987) (finding fact that suit was being defended by state and federal government weighed in favor of adequate representation of proposed intervenors). The adequacy of existing representation is an assessment within the discretion of the district court. Brennan, 579 F.2d at 191.

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The New York State Senate has up to this point been represented in the action by the Attorney General of the State of New York. To that extent, it is not on the same side as the United States, as demonstrated by the actuality of compliance with the Consent Decree and the adverse effects of noncompliance. This is not a mere difference in trial strategy. The Second Circuit has held professed differences in trial strategy are insufficient to entitle a party to intervene as of right. See United States v. Yonkers Bd. of Educ., 902 F.2d 213, 218 (2d Cir. 1990) (If disagreement with an actual party over trial strategy, including over whether to challenge or appeal a court order, were sufficient basis for a proposed intervenor to claim that its interests were not adequately represented, the requirement would be rendered meaningless.). In effect, there is no evidence that the current Defendants and the New York State Senate have the same ultimate objectives. Butler, Fitzgerald, & Potter v. Sequa Corp., 250 F.3d 171, 179 (2d Cir. 2001). Because the Attorney General and the New York State Board of Elections have made representations to this Court that appear to have presented assurances as to the actions of the legislature including that of the New York State Senate, the interests of the New York State Senate have been inadequately protected and will continue to be inadequately protected. The United States, if it in fact has selected a primary date in August, has acted congruent with the interests of the Senate, but one that is still fundamentally different from the interests of the existing parties to the litigation. The fact that the party which may or may not adequately represent the New York State Senate is adverse to the remaining state actor defendants is further support for granting the New York State Senate motion to intervene. The Court should select a new primary election date which is the least disruptive to the current September primary system that has long been in place. This appears to be the

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position of the United States which proposes moving the date to eighty (80) days before the General Election as the minimum necessary to comply with the Statute. B. Permissive Intervention Rule 24(b) allows permissive intervention when an applicants claim or defense and the main action have a question of law or fact in common. In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Rule 24(b) further provides in part that [o]n timely motion, the court may permit a federal or state governmental officer or agency to intervene if a partys claim or defense is based on . . . a statute or executive order administered by the officer or agency. In the instant matter the motion to intervene by the State Senate is timely as discussed above. The New York State Senate is an independent state entity. The United States claim is based upon the state election law enacted by the Legislature of which the State Senate is one of the co-equal bodies that must act in order to comply with the Second Consent Decree and the statute. Rule 24(b) (1) (B) provides a court may grant permissive intervention on a timely motion to anyone who has a claim or defense that shares with the main action a common question of law or fact. Fed.R.Civ.P. 24(b) (1) (B). The rule further provides that a court, in exercising its discretion under Rule 24(b), must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties rights. Fed.R.Civ.P. 24(b) (3). Additional relevant factors include the nature and extent of the intervenors' interests, the degree to which those interests are adequately represented by other parties, and whether parties seeking intervention will significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal

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questions presented.'") (citing and quoting H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986)); U.S. Football League v. Nat'l Football League, 110 F.R.D. 521, 524 (S.D.N.Y. 1986). In the instant case, the New York State Senate will not delay or prejudice the original parties and will simply provide additional context in support of an August primary election date in an effort to comply with the Statute. C. Intervention Should Be Permitted Without Requiring The Filing Of A Pleading Rule 24 (c) provides that a motion to intervene should be accompanied by a pleading that sets out the claim or defense for which intervention is sought. In light of Rule 7(a), the only pleading that the New York State Senate could conceivably file would be a demurrer to the underlying action as an answer to the complaint of the United States of America, because the New York State Senate seeks intervention in order to enforce a particular provision of the Consent Decree in a particular manner. Courts have construed the pleading requirement a technical requirement only. See Tachiona v. ex. rel. Tachiona v. Mugabe, 186 F.Supp.2d 383, 393 n. 8 (S.D.N.Y. 2002). The technical requirement is designed to apply flexibly in service of its purpose to ensure that the court and the parties are informed about the would be intervenors claims or defenses. Whether the position of the movant seeking intervention is apparent from other filings, and where the other parties will not be prejudiced, Rule 24 (c) permits a degree of flexibility with the technical requirements. Id. In so doing, the intervening party, in effect, adopts the pleadings of another party if the case is still in such a posture. In this matter where there is a consent decree already entered into and the Proposed Intervenor does not object to any portion of the Consent Decree but seeks only to participate in the proceeding over the enforcement of the Consent Decree, then a pleading would be extraneous to the action, cause delay and otherwise enforce a technical requirement as an impediment rather than serving the

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requirement of notice. See e.g. Werbungs and Commerz Union Austalt v. Collectors Guild, Ltd., 782 F.Supp.2d 870, 874 (S.D.N.Y. 1991); Official G-I Holding Inc. v. Heyman, 2003 WL 22790916 at *4 (S.D.N.Y. 2003). In effect, the New York State Senate seeks to annex the claims in the complaint of the United States because no doubt exists as to the precise and detailed nature of the intervenors claim. See McCausland v. Shareholders Mgmt. Co, 52 F.R.D. 521,522 (S.D.N.Y. 1971). In this case the parties possess the complaint of the United States as well as the Consent Decree which they entered into. In the case at bar, the Court should apply Rule 24 (c) with flexibility to dispense with the need for the New York State Senate to file a pleading. First, it will itself run the risk of unnecessary delay. Second, the only issue is the enforcement of the Consent Order to which a pleading will not contribute information. Third, all parties by this motion are placed on notice of the interests of and the position of the New York State Senate. Intervention is sought for the limited purpose of seeking that the Court order an August primary date so as to comply with the applicable law. We respectfully request that the Court apply Rule 24 (c) flexibly to dispense with the need for a pleading to be filed on behalf of the New York State Senate. CONCLUSION For the foregoing reasons, the Court should grant the New York State Senates Motion to Intervene and order its intervention in this action (i) as a matter of right pursuant to Rule 24(a) (2) of the Federal Rules of Civil Procedure or, in the alternative, (ii) permissively pursuant to Rule 24(b) of the Federal Rules of Civil Procedure. A proposed order accompanies this memorandum. DATED: New York, New York September 2011

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Respectfully submitted,

__/s/ DAVID L. LEWIS______________________ DAVID L. LEWIS, ESQ. NDNY Bar # 102892 Counsel to the New York State Senate and to the Temporary President 225 Broadway, Suite 3300 New York, New York 10007 (212) 285-2290

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK ALBANY DIVISION UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) STATE OF NEW YORK and THE NEW ) YORK STATE BOARD OF ELECTIONS, ) ) Defendants. ) ______________________________________ )

CIV. NO. 1:10-CV-1214(GLS)

ORDER GRANTING THE NEW YORK STATE SENATES MOTION TO INTERVENE On this day came to be considered the New York State Senates Motion to Intervene, seeking leave to intervene in this action as of right, pursuant to Federal Rule of Civil Procedure 24(a)(2) or, alternatively, in permissive intervention pursuant to Federal Rule of Civil Procedure 24(b). Having carefully reviewed the motion, any response thereto, and the applicable law, this Court finds that the New York State Senate shall be permitted to intervene. WHEREFORE, PREMISES CONSIDERED, it is hereby ORDERED, ADJUDGED and DECREED that the New York State Senates Motion to Intervene is hereby GRANTED. Signed this ____ day of ____________, 2011

___________________________________

HONORABLE GARY L. SHARPE

UNITED STATES DISTRICT JUDGE

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