Murray v. CuomoMurray v. Cuomo
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff, an active member of the Queens Republican Party, seeks to challenge
The Complaint in this case [ECF #4] (“Cpl.“) was filed on May 7, 2020, a full seven weeks after the modifications to the Election Law were made. Along with the Complaint, Plaintiff filed a proposed order to show cause and request for a temporary restraining order, supported by a memorandum of law [ECF #3, Ex. A] (“Pl. Br.“), an affirmation from Plaintiff‘s counsel [ECF #2, Ex. 1] (the “St. Paul Affidavit“) and an affidavit sworn by the Plaintiff. [ECF #3, Ex. B.] (“Murray Affidavit“). By her application, Plaintiff seeks a declaration of her rights and an injunction ordering the New York State and City Boards of Elections to place her name on the ballot and ordering those bodies not to print or distribute ballots without her name on them. The next day, the Court issued a modified order to show cause, calling for Defendants to respond and setting a hearing on Plaintiff‘s injunctive relief application [ECF #6]. On May 12, 2020, Defendants each filed a resрonse. First, Defendants Andrew Cuomo, the New York State Board of Elections, and the commissioners of that body (collectively the “State Defendants“) filed a memorandum of law [ECF #10] (the “State Opp.“), along with a Declaration of counsel with supporting exhibits [ECF #10, Exs. 1-2] (“Conrad Decl.“). Second, the New York City Board of Elections and the commissioners of that body (the “City Defendants“) filed a letter response with several supporting exhibits [ECF #8] (the “City Opp.“). On May 13, 2020, the Plaintiff filed a reply brief [ECF #12] (the “Reply Br.“) and an affirmation of counsel with exhibits [ECF #11] (“Reply Aff.“). The Court heard argument on the application on May 15, 2020 (the “May 15 hearing“).
Upon review of the Plaintiff‘s motion for a temporary restraining order and supporting papers, Defendants’ materials submitted in opposition, and the parties’ arguments during the May 15 hearing, and after due consideration, the Motion for a temporary restraining order is DENIED. This opinion supplements the Court‘s ruling on the record at the May 15 conference.
BACKGROUND
The Court assumes the truth of the facts as stated in Plaintiff‘s complaint. See Fair Hous. in Huntington Comm. Inc. v. Town of Huntington, 316 F.3d 357, 362 (2d Cir. 2003).
Plaintiff is a Jamaican-born resident of Queens, New York who has been a registerеd member of the Republican Party since 2009. Cpl. ¶¶ 11, 13. In addition, Ms. Murray has stood as the Republican candidate for multiple state offices, and has been involved in the executive leadership of the Queens Republican Party. Cpl ¶¶ 14-18. In 2019, Plaintiff decided that she would like to run as the Republican Party candidate for U.S. Congress from New York‘s Fourteenth Congressional District, a district comprising parts of both Queens and Bronx counties and currently represented in Congress by Representative Alexandria Ocasio-Cortez. Cpl. ¶ 21. Leadership of the Queens Republican Party, however, disapproved of this plan and instead recommended that Ms. Murray seek the Republican Party nomination for New York‘s Fifth Congressional District, located in Queens and Nassau counties. Cpl. ¶ 22. The Queens Republican Party conditioned their institutional support of Ms. Murray on her seeking nomination for the Fifth District, and not the Fourteenth. Cpl. ¶¶ 22, 27.
Undeterred by the loss of institutional party support, Plaintiff resolved to seek a place on the ballot on her own. To appear on a primary ballot in New York, state law prescribes that a candidate must submit a “designating petition” which includes a certain number of signatures of registered members of the candidate‘s party. See
All parties agree that the outbreak of the COVID-19 pandemic caused unprecedented disruption to New Yorkers’ daily lives and the functioning of government. In response to the pandemic, Defendant Andrew Cuomo, Governor of New York, issued a series of executive orders aimed at containing the spread of the disease. Among them, on March 14, 2020, Cuomo issued Executive Order 202.2 which reduced the amount of time available to collect
Because Executive Order 202.2 was issued on March 14, Plaintiff had only three days remaining to finish collеcting signatures for her designating petition before the new March 17 deadline. Cpl. ¶ 41. She states that as a result of other COVID-19 response measures, including the Governor‘s stay-at-home order, she was unable to gather any additional signatures between March 14 and March 17. Cpl. ¶ 41-42. Consistent with the new deadlines, Plaintiff filed her designating petition with the New York City Board of Elections on March 20, 2020. Cpl. ¶ 43. When it was filed, Plaintiff‘s designating petition contained 906 purportedly valid signatures, well in excess of the newly reduced number required. Id.
Following Plaintiff‘s filing of her designating petition, two voters filed objections to Plaintiff‘s designating petition with the New York City Board of Elections. Cpl. ¶¶ 44-46. Contemporaneously, two petitions for judicial review were filed in the Bronx County Supreme Court, one seeking to validate, and the other to invalidate, the signatures on Plaintiff‘s petition.2 While those state court cases remained pending, the New York City Board of Elections released a “Clerk‘s Report” (i.e. a non-final decision regarding the number of valid signatures on the petition), finding that none of the signatures on Plaintiff‘s designating petition were valid. Cpl. ¶ 48. Both Plaintiff and the оbjectors were permitted to review the report and file objections, which were set to be reviewed by the New York City Board of Elections at a hearing on April 21, 2020. Cpl. ¶ 50; see also City Opp. at 3. At that hearing, the New York City Board of Elections adopted the Clerk‘s Report and ruled that Plaintiff‘s designating petition contained no valid signatures.3
Plaintiff did not appeal the decision. Counsel claimed that he was unaware that any decision had been entered until the State Defendants submitted the decision to this Court with their opposition papers. At the May 15 hearing, Defendants asserted that the deсision was publicly available on a Bronx Supreme Court website before this case was filed. Regardless, Plaintiff had an obligation to diligently monitor and inquire about a decision, especially given the limited timetable for appealing pre-election Article 16 cases.5 Rather than appealing from the state court decision, Plaintiff thereafter filed this case.
In this case, Plaintiff seeks a declaration that her constitutional right to seek elective office was violated by the Governor‘s Executive Order 202.2 and the legislation passed thereafter. Cpl. ¶ 1. In addition, she seeks an injunction ordering Defendants to place her name on the ballot for the June 23, 2020 primary election and, as a corollary, prohibiting Defendants from printing or distributing ballots
DISCUSSION
Plaintiff seeks a temporary restraining order to protect from what she submits is imminent irreparable harm if her name is not included on the June 23, 2020 primary ballot. However, the Court should not consider the merits of the Motion if it lacks jurisdiction or is barred from hearing the case for another reason. See Seibel v. Frederick, Case No. 20-cv-02603 (PAE), 2020 WL 1847792, at *2 (S.D.N.Y. Apr. 13, 2020) (“as is true of civil actions generally, an independent basis for asserting federal question or diversity jurisdiction must be shown, in order for a court to grant preliminary relief.” (citing Vis Vires Grp., Inc. v. Endonovo Therapeutics, Inc., 149 F. Supp. 3d 376, 383-84 (E.D.N.Y. 2016) (internal quotation marks and alteration omitted))).
As discussed further below, the Court finds that no barrier to consideration of Plaintiff‘s motion exists, because the Rooker-Feldman doctrine is inapplicable here, and because there is not a fully developed record to enable the Court to rule on the application of res judicata. However, the Court concludes that Plaintiff has not met the burden required to justify a temporary restraining order in this case.
I. Doctrines Which May Preclude Review
Defendants argue that this Court‘s review of the merits of Plaintiff‘s request is barred by the Rooker-Feldman doctrine and/or res judicata. Upon review, the Court finds that the Rooker-Feldman doctrine does not bar the claims asserted here because Plaintiff‘s аlleged harm was not caused by the decision of the Bronx Supreme Court. The Court does not decide the applicability of res judicata, but notes that it may bar further proceedings in this case.
A. Rooker-Feldman Doctrine
Rooker-Feldman is a judicial rule derived from the implication of
Here, Plaintiff‘s alleged injury was not caused by a state court judgment. As pleaded in the Complaint, the Plaintiff‘s injury is the purported denial or abridgment of her constitutional right to “seek elective office.” Cpl. ¶ 1; but see Pl. Br. at 21-22 (discussing the right to vote and for voters to be able to express their rights through voting for any candidate thеy chose). While the effect of Plaintiff‘s state court proceeding was that she would not be placed on the ballot, that decision merely “ratified” or “acquiesced in” the decision of the New York City Board of Elections to invalidate Ms. Murray‘s petition signatures under various provisions of New York Election Law and, as a result, find her not eligible to be placed on the ballot. Put another way, the state court decision declining to order her to be included on the ballot did not cause her not to appear on the ballot.
Plaintiff does not invite this Court to review and reject the state court judgment which found that there were technical deficiencies in her designating petition and that all of her signatures were invalid. Rather, she asks this Court to direct that she be placed on the ballot notwithstanding that finding. This factual scenario does not fit within the strictures of the Rooker-Feldman doctrine.
B. Res Judicata
The State Defendants also argue that if not barred by Rooker-Feldman, Plaintiff‘s claims are precluded by res judicata because Plaintiff raised her constitutional claim in Bronx Supreme Court. See, e.g., State Opp. at 15-17; see also State Court Decision at 3. The Court examines the issue here because the parties have addressed thе it. Though on the present record, the Court cannot find at this time that preclusion doctrines prevent adjudication of Plaintiff‘s application.6
Res judicata, or, here specifically, claim preclusion, “prevents a plaintiff from raising a claim that was or could have been raised in a prior suit.” McKithen v. Brown, 481 F.3d 89, 104 (2d Cir. 2007); accord 18 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure: Jurisdiction § 4403 (3d ed.) (noting the “purpose and effect” of res judicata to be that it “preclude[s] relitigation of matters that have been litigated previously or [] preclude[s] any litigation of matters that should have been litigated previously.“). A decision or judgment from one court will preclude the same claims from being raised in a second, separate case, even if an appeal of the first decision is pending or available. Id. at § 4433.
The federal Full Faith and Credit Act,
At least some of the same parties who are before this Court — Plaintiff and the New York City Board of Elections — were involved in the prior state court action. That action also proceeded to a merits-based appealable decision on the Plaintiff‘s claims. See State Court Decision at 3-4. While Plaintiff did not appeal that decision, the ruling still may have preclusive effect in another case involving the same claims. Significantly, all parties agree, and Plaintiff confirmed at the May 15 hearing, that Plaintiff initially raised her constitutional claims in the Supreme Court proceeding. See City Opp. at 4, State Opp. at 16, Reply Br. at 1-2; see also Reply Aff. Exs. A, B (discussing the constitutional claims in the context of remоval). The Parties disagree about whether the claims actually “could have been raised” in the state proceeding. Plaintiff now submits that the state court does not have jurisdiction to consider her constitutional claims in an Article 16 proceeding, and as a result she cannot be penalized for raising there claims that were ultimately futile. See Reply Br, at 1-3.7
A review of New York law suggests that constitutional claims may be asserted in
Indeed, several New York cases support this conclusion. For example, New York state courts have previously held that constitutional challenges to a candidate‘s ability to appear on the ballot (due to residency requirements) must be brought in an Article 16 proceeding. See Scaringe v. Ackerman, 119 A.D.2d 327, 328-39 (N.Y. App. Div. 3d Dep‘t 1986). Additionally, the New York Court of Appeals has held that it has jurisdiction over constitutional challenges to the Election Law on direct appeal from Article 16 proceedings. See Rice v. Power, 224 N.E.2d 865, 865 n. 1 (N.Y. 1967). More recently, the New York Supreme Court has resolved constitutional claims over potential candidates’ designation to be on the ballot, including challenges relating to the precise COVID-19 measures Plaintiff challenges here. See Hawatmeh v. New York State Bd. Of Elections, ___ N.Y.S.3d ___, 2020 WL 2235860, at *4 (N.Y. Sup. Ct. Albany Cty. May 6, 2020) (in an Article 16 proceeding, holding that the Gоvernor‘s Executive Order 202.2 and the New York State Legislature‘s enactments effectuating it did not violate the petitioner‘s constitutional rights); see also EH Fusion Party v. Suffolk Cty. Bd. Of Elections, 117 N.Y.S.3d 808 (Table), 2019 WL 3922669, at *4 (N.Y. Sup. Ct. Suffolk Cty. Aug. 20, 2019) (reviewing the petitioner‘s constitutional challenges to provisions of the Election Law in an Article 16 proceeding).8
II. Application for a Temporary Restraining Order
As the Court has found that no rule bars consideration of the Plaintiff‘s Motion here, it proceeds to the merits of the request for emergency relief. The Court concludes that Plaintiff is not entitled to mandatory injunctive relief directing that she be placed on the ballot.
Preliminary injunctive relief, including the temporary restraining order the Plaintiff seeks here, is an “extraordinary and drastic remedy” that is “unavailable except in extraordinary circumstances.” Moore v. Consol. Edison Co., 409 F.3d 506, 511 (2d Cir. 2005). The standards which govern consideration of an application for a temporary restraining order ... are the same standards as those which govern a preliminary injunction.” Local 1814, Int‘l Longshoremen‘s Ass‘n v. New York Shipping Ass‘n, Inc., 965 F.2d 1224, 1228 (2d Cir. 1992).
When, as here, injunctive relief would “affect government action taken in the public interest pursuant to a statute or regulatory scheme, the moving party must demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction.” Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016) (citing Red Earth LLC v. U.S., 657 F.3d 138, 143 (2d Cir. 2011)). Additionally, since Plaintiff here seeks a mandatory injunction against the government that would change the status quo existing when the case was filed (i.e. by adding her name to the ballot), she is subject to a heightened standard. Namely, she must show “a ‘clear’ or ‘substantial’ likelihood of success on the merits.” Thomas v. New York City Bd. Of Elections, 898 F. Supp. 2d 594, 597 (S.D.N.Y. 2012) (citing Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006)). This standard is specifically appropriate where, as here, the emergency injunctive relief “will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at a trial on the merits.” People ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015). Plaintiff‘s requested relief here both mandates that the government take action (a mandatory injunction)
A. Irreparable Harm
The Second Circuit has made clear that a showing of irreparable harm is “the single most important prerequisite for the issuance” of injunctive relief. Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009); see also 11A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2951 (3d ed.) (“A demonstration of irreparable injury by the party seeking relief is an essential prerequisite to a temporary restraining order.“). “To satisfy the irreparable harm requirement, Plaintiff must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote10 nor speculative, but actual and imminent.” Grand River Enterprise Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir. 2007) (citing Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)).
Here, Plaintiff claims that the changes to the election law burden her constitutional rights and irreparable harm will occur to her if ballots are printed and distributed without her name on them. To be sure, the Second Circuit has made clear that alleged constitutional violations presumptively constitute irreparable harm. See Connecticut Dep‘t of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding of irreparable injury.” (internal quotation marks omitted)); Yang v. Kellner, ___ F. Supp. 3d ___, 2020 WL 2129597, at *7 (S.D.N.Y. May 5, 2020) (collecting cases).
However, there is no freestanding “right to be a candidate” in an election. See Fulani v. McAuliffe, No. 04-cv-06973 (LAP), 2005 WL 2276881, at *3 (S.D.N.Y. 2005) (“However, candidacy is not a fundamental right in our political system, and not all restrictions imposed by the States on candidates’ eligibility for the ballot impose constitutionally suspect burdens on voters’ rights to associate or to choose among candidates.” (citing Clements v. Fashing, 457 U.S. 957, 963 (1982))).
Plaintiff‘s alleged injury here is not clearly a constitutional violation. First, Plaintiff‘s allegation of harm isolates one provision of the Governor‘s and Legislature‘s measures (the reduction in the number of days available to collect signatures) from the rest of the measures taken by the same law (i.e. the drastic reduction in the number of signatures required for the Plaintiff to qualify for the June 23 primary) and claims a constitutional violation based only on the portion of the law she dislikes. But, the first provision properly must be read in context with the second, as they constitute a single regulatory
Nonetheless, the mere allegation of a constitutional violation appears to constitute irreparable harm under this Circuit‘s binding precedent. See Id. at 231 (“[T]he alleged violation of a constitutional right triggers a finding of irreparable injury.“); Bery v. City of New York, 97 F.3d 689, 693-94 (2d Cir. 1996) (“Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction. . . . By the very nature of their allegations, then, appellants have met the first prong of the test.“). In that light, the Court presumes for the purposes of this motion that Plaintiff has adequately alleged a risk of irreparable harm.11
B. Likelihood of Success on the Merits
The Court cannot find, however, that Plaintiff is “clearly” or “substantially” likely to succeed on the merits of her claim sufficient to warrant relief. See Thomas, 898 F. Supp. 2d at 597. Election regulation laws are analyzed under a balancing test derived from Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992). The level of scrutiny applied to the challenged regulation is determined by balancing “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” with the “precise interests put forward by the State as justifications for the burden impоsed by its rule.
In this case, as described below, the Court finds that the state restrictions on Plaintiff‘s ballot access, in light of all the changes that were made, do not severely burden Plaintiff‘s rights. Accord Rivera-Powell v. New York City Bd. Of Elections, 470 F.3d 458, 469 n. 15 (2d Cir. 2006) (“[C]andidates’ and voters’ associational and voting rights are qualified ones. Many restrictions, such as signature requirements, not only do not burden voters’ constitutional rights to associate, but are, as a practical matter, necessary to еnsure the orderly functioning of elections.” (internal citations omitted)). As a result, strict scrutiny does not apply here.12
The dispositive inquiry under the Anderson-Burdick analysis is therefore whether the challenged restrictions are reasonable and non-discriminatory. The Court finds that the restrictions, which further the State‘s important interest in protecting public health without undermining the State‘s further interest in ensuring the orderly conduct of elections, were reasonable and non-discriminatory. Plaintiff is thus not likely to succeed on her claims.
To begin, Plaintiff asserts a violation of her right to be a candidate in the June 23 primary election. As noted, Plaintiff does not have a fundamental right to appear on a ballot as a candidate. Instead, she has a right to campaign in an attempt
Additionally, though certainly secondary to the public health interest, the Government has a recognized interest in conducting well-regulated elections. See Burdick, 504 U.S. at 569 n. 10 (discussing the government‘s right to require candidates for election to comply with election law requirements); Prestia v. O‘Connor, 178 F.3d 86, 88 (2d Cir. 1999) (“States have an important interest in ‘requiring some preliminary showing of a significant modicum of support’ before printing a candidate‘s name on the ballot, so as to ‘avoid[ ] confusion, deception, and even frustration of the democratic process at the general election.‘” (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971))). Requiring Plaintiff to gather some valid signatures to access the ballot as a candidate furthers that interest, see Rivera-Powell, 470 F.3d at 469 n. 15 (“Many restrictions, such as signature requirements, not only do not burden voters’ constitutional rights to associate, but are, as a practical matter, necessary to ensure the orderly functioning of elections.” (internal citations omitted)), while further reduction or elimination of the signature requirement would undermine it. Plaintiff‘s claim that the election requirements constitute a cognizable harm, along with the relief she seeks, would functionally eliminate the signature requiremеnt as to her, since both the New York City Board of Elections and the New York State Supreme Court have found that she gathered no valid signatures for her designating petition.
Balancing the alleged burden on Plaintiff‘s rights against the competing interest of the State, the measures taken through Executive Order 202.2 and the legislation that followed were reasonable and non-discriminatory, especially when the substance
Neither of the COVID-19 specific cases upon which Plaintiff relied provide any support for Plaintiff‘s application. See Pl. Br. at 12-17. In Esshaki v. Whitmer, ___ F. Supp. 3d ___, 2020 WL 1910154 (E.D. Mich. Apr. 20, 2020), the plaintiffs sought to enjoin enforcement of Michigan‘s unmodified requirement that candidates get 1,000 signatures to be eligible to appear on the ballot. Id. at *1. Michigan‘s Governor issued a stay-at-home order, which the plaintiffs there claimed led to their inability to gather signatures, after it went into effect more than a month before signatures were due. Id. at *2-*3. In Michigan, unlike New York, where the stay-at-home order was accompanied by a massive reduction of over 70 percent in the number of signatures ultimately required to appear on the ballot, there was no reduction in the number of signatures required to appear on the Michigan ballot. Id. Indeed, the reduction in the number of signatures required by the injunction granted in Esshaki is actually smaller than the reduction the New York state government implemented on its own to counter the impact in the challenged reduction in the number of days to collect signatures under Executive Order 202.2.
The second case on which Plaintiff relies, Goldstein v. Secretary of Commonwealth, 142 N.E.3d 560 (Mass. 2020), is even less supportive of Plaintiff‘s position. There, similar to Michigan, a stay-at-home order was implemented without any reduction in the number of signatures required to appear on the Massachusetts primary ballot. Id. at 565-66. The Massachusetts state government had proposed but never enacted any modifications to that requirement. Id. at 568. The proposals that had been suggested would have reduced the signature requirement by 50 percent or two-thirds, depending on the office the candidate was seeking. Id. The Defendant Massachusetts Secretary of the Commonwealth did not contest that the unmodified requirements imposed a severe burden on the rights of the plaintiffs. Id. at 571. As a result, the Massachusetts Supreme Judicial Court issued an injunction granting the 50 percent reduction and extending the deadline for gathering signatures, but only to a pre-existing alternative deadline that was already in effect for some Massachusetts candidates. (Massachusetts has different deadlines for submission of signatures by local candidates and by statewide or federal candidates.) Id. at 574-75.
Unlike Massachusetts, New York‘s scheme significantly reduced the number of signatures required and set a date for all candidates to submit designating petitions. Any gamesmanship possible in the Massachusetts primaries which could motivate an injunction is not present here. Simply put, New York‘s COVID-19 response measures were markedly different from other states in that it was proactive in changing the state‘s ballot access measures
Moreover, Plaintiff‘s claims are only likely to succeed if the remedy she seeks is likely to be granted. Cf. V.D. v. State of New York, 403 F. Supp. 3d 76, 87 (E.D.N.Y. 2019) (“In order to demonstrate a likelihood of success on the merits, plaintiffs are not required to show that success on their complaint is an absolute certainty, but rather that the probability of success is better than fifty percent.” (internal quotation marks omitted)). Any injunctive relief the Court grants must be “narrowly tailored to address specific harms.” Brooks v. Giuliani, 84 F.3d 1454, 1467 (2d Cir. 1996).
Here, the relief Plaintiff requests is remote from any of the alleged harm. The harm Plaintiff allegedly suffered here is a restriction on her purported constitutional right which, practically speaking, was the loss of seventeen days in which she could continue to collect signatures for her designating petition. Plaintiff asks for the broad remedy of an injunction requiring the government to put her name on the ballot for the June 23 primary. In so arguing, Plaintiff seemingly asserts that but-for the allegedly unconstitutional actions taken here she would be on the ballot. That is not true. The Court understands that the primary issue with Plaintiff‘s designating petition signatures was the identity of the signature collector/witness. See State Court Decision at 2-3. Specifically, he was not a registered member of the Republican Party, which the Election Law requires for witnesses of signatures for a Republican Party primary designating petition. See
In order to be eligible to appear on the primary ballot (i.e. obtain the relief she seeks in this motion/action), Plaintiff would need to comply with all portions of the Election Law, including those not modified this year, and withstand challenges from any objectors. Plaintiff does not challenge these other measures here, and as a result, the Court cannot find it likely that she will succeed on the merits. See Rivera-Powell, 470 F.3d at 468-69 (finding no likelihood of success where the Plaintiff did not challenge the other election law provisions with which she would have to comply if her constitutional challenge succeeded).
C. Balancing the Public Interest
Plaintiff has made no attempt, as she must, to show that the “public interest weigh[s] in favor of granting the injunction.” See Thomas, 898 F. Supp. 2d at 597.15 Indeed, as discussed above, in light
The public interest is also served by developing and adhering to an election regulation regime developed by the New York State and City Boards of Elections and not by the Court. Simply, the elections authorities have more expertise in what measures constitute sufficient maintenance of the state‘s interest in running well-functioning elections.
Relative to those interests, Plaintiff‘s burden is small. Plaintiff had more than enough signatures to meet the threshold for designation for the ballot. However, because Plaintiff hired a campaign employee to collect signatures who was ineligible to do so, her designating petition was invalid. In light of this (and other deficiencies in the petition), it is not at all clear that she could have succeeded even if given more time to collect additional signatures. Clearly, to allow her to do so would threaten spreading the COVID-19 disease and would unwillingly expose those from whom she sought signatures to fatal risk from an uninvited knock on his or her door. This is a particularly acute issue in New York City where Plaintiff lives and is campaigning, as New York City (most particularly the relevant district neighborhoods of Queens and Bronx counties) has been the hardest hit region of the country during the pandemic, and efforts to reopen or stem the tide had not yet been successful when the challenged modifications to the election procedure were enacted. See State Opp. 24-25. The public interest would not be served by crediting Plaintiff‘s challenge to a reasonable and non-discriminatory health-related change to election procedures.
Public interest also would not be served by rewarding Plaintiff‘s tactics here. First, Plaintiff‘s counsel has seеmingly ignored the progress of Plaintiff‘s state litigation. Counsel, who also represented Plaintiff in the state court Article 16 proceeding, admitted at the May 15 hearing to failing to diligently monitor the proceedings in the case, leaving him unaware of the state court decision. As a result, he failed to appeal that decision. This is despite counsel‘s assertion that he was aware months ago that the New York Court of Appeals and Appellate Division had published consolidated appeal calendars for election cases that required swift action. Second, while the Plaintiff‘s delay in this case does not necessarily rise to the level of laches, see City Opp. at 6-8, Plaintiff waited almost two months until May 7, 2020 to file this case, even though the measures she challenges were enacted on March 14, 2020, and the state legislative ratification of the Governor‘s Executive Order was signed into law on March 18, 2020. The Court compares the timeline here to the recent Yang case decided by Judge Torres of this Court. There, the Plaintiff sought emergency relief less than a day after the еlection-related COVID-19 measures at issue in that case were announced. See Yang, 2020 WL 2129597, at *2-*3. Plaintiff‘s delay here, especially as compared to the Yang plaintiffs, is notable because she has not taken any appeal from her state court loss. Public interest does not weigh in favor of granting Plaintiff‘s injunctive relief.
Plaintiff has already had her day in Court with regard to her inability to qualify to appear on the ballot. The public interest is served by respecting the State‘s interest and expertise in regulating elections and by respecting the state court‘s decision here, not by sanctioning duplicative litigation which is likely to impose severe costs on Defendants if it proceeds.
CONCLUSION
For the fоregoing reasons, Plaintiff‘s Motion for a temporary restraining order is DENIED.
SO ORDERED.
Date: May 16, 2020
New York, NY
MARY KAY VYSKOCIL
United States District Judge