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Party's Ballot Listing Did Not Violate Establishment Clause

By Howard M. Friedman

In McMillan v. New York State Board of Elections, 2010 U.S. Dist. LEXIS 109894 (ED NY, Oct. 15, 2010), James McMillan, the founder of the Rent Is Too Damn High party, sued for $350 million in damages claiming that the New York City board of elections violated his constitutional rights in removing the word "Damn" from his party's name in listing him on the 2009 New York City mayoral ballot. (Claims as to earlier elections were dismissed on statute of limitations grounds and claims against the state election board were dismissed on 11th Amendment grounds.) The city board of elections contended that ballot space limitations require that a Party's name not to exceed 15 characters. Plaintiff claims the city board of elections was motivated by religious concerns in removing "Damn" for his party's name, in violation of the Establishment Clause. The court found, however, that McMillan offered no evidence to support his charges that the board's actions were religiously motivated. The court also rejected McMillan's free speech, equal protection and due process arguments. In earlier proceedings, the parties agreed that on future ballots the party will be listed as "Rent Is 2 Damn High", thus meeting the 15 character limit.

Full post as published by Religion Clause on October 19, 2010 (boomark / email).