SCHERIE S. MURRAY, Plaintiff, -against- ANDREW CUOMO, as Governor of the State of New York, BOARD OF ELECTIONS IN THE CITY OF NEW YORK, JOSE MIGUEL ARAUJO, MIGUELINA CAMILO, GINO A. MARMORATO, MICHAEL MICHEL, SIMON SHAMOUN, TIFFANY TOWNSEND, JOHN ZACCONE, as Commissioners, Board of Elections in the City of New York, NEW YORK STATE BOARD OF ELECTIONS, PETER S. KOSINSKI, DOUGLAS A. KELLNER, ANDREW J. SPANO, as Commissioners, New York State Board of Elections, Defendants.
1:20-cv-03571-MKV
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
May 18, 2020
MARY KAY VYSKOCIL, United States District Judge
OPINION & ORDER DENYING TEMPORARY RESTRAINING ORDER
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff, an active member of the Queens Republican Party, seeks to challenge certain modifications to the New York Election Law put in place as a result of the COVID-19 pandemic which she claims violate her constitutional rights. Ms. Murray seeks to stand for nomination as the Republican Party candidate for New York‘s Fourteenth Congressional District, the seat now held by Representative Alexandria Ocasio-Cortez. In brief, she challenges certain modifications to ballot-access provisions of the election law (specifically, reducing the number of days she had to gather signatures, but not the corresponding modification to reduce the number of signatures required to appear on the ballot), and her failure to meet the revised requirements, on the ground that they violate her rights to stand as a candidate in the June 23, 2020 primary election. Of particular importance, this is Ms. Murray‘s second attemрt to use the courts to have her name placed on the June 23 ballot. Previously, Ms. Murray filed an action in New York Supreme
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 а response. 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“).
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 а registered 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
Because Executive Order 202.2 was issued on March 14, Plaintiff had only three days rеmaining to finish collecting 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.
Plaintiff then proceeded with the state court case that had been filed in Bronx Supreme Court. The case, an Article 16 proceeding,4 was heard by Justice John W. Carter, whom Defendants noted was assigned to hear all election cases in The Bronx. In that proceeding,
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, Defеndants asserted that the decision 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
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 that do not include Plaintiff‘s name. Cpl. ¶¶ 57, 63. In opposition to the application for a temporary restraining order, Defendants argue, first, that the Plaintiff‘s case is not properly before the Court, either by application of the Rooker-Feldman doctrine or because of res judicata. State Opp. at 12-17; City Opp. at 4-5. Second, Defendants argue thаt Plaintiff has failed to meet the standard required for any emergency injunctive relief. State Opp. at 17-25; City Opp. at 5-6.
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 аsserted here because Plaintiff‘s alleged 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
Following Exxon Mobil, the Second Circuit developed a four-part test to determine whether Rooker-Feldman applies in a given case. Specifically, in order for the doctrine to bar a subsequent federal court action “(1) the federal-cоurt plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by a state-court judgment; (3) the plaintiff must invite district court review and rejection of that judgment; and (4) the state-court judgment must have been rendered before the district court proceedings commenced.” Sung Cho, 910 F.3d at 645 (citing Hoblock v Albany Cty. Bd. Of Elections, 422 F.3d 77, 85 (2d Cir. 2005). Among the elements of the test, the Circuit has instructed that “the second requirement — that the plaintiff complains of an injury caused by a state-court judgment is the ‘core requirement from which the other[] [Rooker-Feldman requirements] derive.‘” Id. at 646 (citing Hoblock, 422 F.3d at 87). “[A] federal suit complains of injury from a state-court judgment, even if it appears to complain only of a third party‘s actions, when the third party‘s actions are produced by a state-court judgment and not simply ratified, acquiesced in, or left unpunished by it.” Hoblock, 422 F.3d at 88. The Second Circuit‘s narrow rule about the application of Rooker-Feldman comports with the views of other Circuits on the limited scope of the doctrine. See, e.g., VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397 (6th Cir. 2020); Hulsey v. Cisa, 947 F.3d 246 (4th Cir. 2020); In re Phila. Entm‘t & Dev. Partners, 879 F.3d 492 (3d Cir. 2018); Mayotte v. U.S. Bank Nat‘l Ass‘n, 880 F.3d 1169 (10th Cir. 2018).
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 bеcause the parties have addressed the it. Though on the present record, the Court cannot find at this time that preclusion doctrines prevent adjudication of Plaintiff‘s application.6
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 removal). The Partiеs 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 New York State Article 16 proceedings. The statute setting forth the jurisdiction of Article 16 judicial proceedings grants broad jurisdiction to the New York Supreme Court. “The supreme court is vested with jurisdiction to summarily determine any question of law or fact arising as to any subject set forth in this article, which shall be construed liberally.”
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 Governоr‘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)
While the Court does not decide this issue here, it appears that Plaintiff‘s constitutional claims may be subject to litigation in the state proceeding where they were originally raised. Plaintiff did not, however, take an appeal from that decision.9 Upon a motion and proper adversarial briefing of the res judicata issue here, the Court will consider its application anew.
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 ...
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) and would result in Plaintiff‘s receipt of her ultimate relief (i.e. appearing on the ballot) at the most preliminary stage of the case. Thus, the higher standard applies. Because Plaintiff has failed to meet this rigorous standard, she is not entitled to injunctive relief.
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))).
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
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 passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff‘s rights.” Anderson, 460 U.S. at 789. If, as a result of the balancing, the Court finds the Plaintiff‘s rights are “subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance” — that is, survive strict scrutiny. Burdick, 504 U.S. at 434 (citation omitted). If,
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 ensure the ordеrly 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.
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 of the challenged modifications to the Election Law are carefully scrutinized. As the State Defendants convincingly argue, the government‘s COVID-19 measures not only limited the number of days to campaign and gather signatures, but also drastically reduced the number of signatures any candidate needed to appear on the ballot. See State Opp. at 20-21. In so doing, the State
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
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 to account for the pandemic. In light of that, the court cannot find Plaintiff is likely to succeed on the merits of her claim.14
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
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
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 of the facts of this case, the state‘s (and public‘s) compelling interest in controlling the spread оf a fatal pandemic outweighs any burden on Plaintiff‘s interest in her name appearing on the ballot. Specifically, the Governor‘s Executive Order and the State Legislature‘s enactments aimed to prevent campaign employees and volunteers from going to voters’ homes to interact with them and request designating petition signatures in-person during the COVID-19 pandemic. This was a reasonable restriction in light of the overwhelming evidence of interpersonal transmission and the seriousness of the COVID-19 disease.
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
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 thе election-related
Moreover, the public interest would be disserved by granting Plaintiff injunctive relief, since it would impose significant expense and burdens on the government and public, burdens which were magnified by the delay in Plaintiff‘s application. Plaintiff‘s requested relief might require the New York City Board of Elections to expend substantial funds to reprint ballots already mailed overseas or to the military, or to jeopardize the ability to conduct mandatory testing of election equipment or ballots.16 See City Opp. at 7.
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 foregoing reasons, Plaintiff‘s Motion for a temporary rеstraining order is DENIED.
SO ORDERED.
Date: May 16, 2020
New York, NY
MARY KAY VYSKOCIL
United States District Judge