Marchant et al v. New York City Board Of Elections et al

Filing 11

MEMORANDUM AND OPINION. For the reasons set forth in the attached Memorandum and Opinion, the court denies plaintiffs' motion for a preliminary injunction. Counsel for defendants shall serve a copy of this Memorandum and Order upon all parties not represented on ECF and file a declaration of service by September 2, 2011. Ordered by Judge Kiyo A. Matsumoto on 9/2/2011. (Chang, Emily)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
Garth Marchant, Arlene Dacares,
Carolyn Younger Nolan, Larry L. Moore,
Anna Burrell, Jacqueline Davis, Tamara
Powell, Natasha Collins, Pamela Hazel,
Ollie Goins, Stephen S. Jones, Michael
Duvalle, Adrienne Richardson, Chauntae
Brown, Linval Wilson, David B. Kayode,
Earl A. Rose, Jacci A. Hurdle, Shadai
Mears, Sonya Simmons, Kewana Johnson,
Constantine Jean-Pierre, Bishop Frank
Best, and Thelma Davis,
Plaintiffs,
MEMORANDUM & ORDER
-against-

11-CV-4099 (KAM)

New York City Board of Elections,
Juan Carlos Polanco – President,
Jose Miguel Araujo – Queens County
Democratic Commissioner, and
Steven Richman – General Counsel,

Defendants.
-------------------------------------X
MATSUMOTO, United States District Judge:
Plaintiffs Garth Marchant, Arlene Dacares, Carolyn
Younger Nolan, Larry L. Moore, Anna Burrell, Jacqueline Davis,
Tamara Powell, Natasha Collins, Pamela Hazel, Ollie Goins,
Stephen S. Jones, Michael Duvalle, Adrienne Richardson, Chauntae
Brown, Linval Wilson, David B. Kayode, Earl A. Rose, Jacci A.
Hurdle, Shadai Mears, Sonya Simmons, Kewana Johnson, Constantine
Jean-Pierre, Bishop Frank Best, and Thelma Davis (collectively,
1

“plaintiffs”) commenced this action on August 23, 2011, by the
filing of a pro se complaint 1 with sworn affidavits from each
plaintiff and a motion by Order to Show Cause seeking injunctive
relief, directing that the New York City Board of Elections (the
“Board”) and named defendants (collectively, “defendants”) place
Everly D. Brown on the ballot for the public office of District
Attorney of Queens County in the Democratic Primary scheduled
approximately three weeks thereafter, on September 13, 2011
(“the September 13 primary”). 2
Plaintiffs’ complaint asserts jurisdiction pursuant to
42 U.S.C. §§ 1983, 1988, the First Amendment right to political
association, the Fourteenth Amendment right to due process and
equal protection of law, the Help Americans Vote Act (“HAVA,” at
1

After the complaint was filed, Michael Mays, Esq., appeared at
the show cause hearing but had not yet filed a notice of
appearance for plaintiffs Larry Moore, Anna Burrell, Jacqueline
Davis, Tamara Powell, Natasha Collins, Chauntae Brown, David
Kayode, Earl Rose, Shadai Mears, Sonya Simmons, Kewana Johnson,
Constantine Jean-Pierre, Bishop Best, and Thelma Davis.
Mr. Mays (“plaintiffs’ counsel”) was ordered to file a notice of
appearance immediately but has not done so as of the date of
this Memorandum and Order. On September 1, 2011, Mr. Mays left
a message that he “could not file a notice of appearance” but
did not explain his reasons. The remaining plaintiffs continue
to represent themselves pro se in this action.
2
The court notes that while plaintiffs style their requested
injunctive relief as restraint from removing Mr. Brown from the
ballot (the proposed Order to Show Cause requests that the Board
be “temporarily restrained and enjoined from removing Everly D.
Brown from the Ballot for the public office of District Attorney
[of] Queens County in the Democratic Primary, to be held on
September 13, 2011”), plaintiffs in fact request that the court
direct the Board to add Mr. Brown to the ballot, as the Board
has not yet added Mr. Brown to the ballot at issue.
2

42 U.S.C. § 15483(a)), and the National Voters Registration Act
(“NVRA,” at 42 U.S.C. § 1973gg-1, et seq.). 3

(Electronic Case

Filing (“ECF”) No. 1, Complaint (“Compl.”) ¶¶ 2, 4.)
Judge Sandra Townes issued an Order to Show Cause on
August 25, 2011 (ECF No. 5), ordering that plaintiffs serve the
defendants with the Order to Show Cause and the supporting
papers by 5:00 p.m. that same day; that defendants serve and
file any response by August 29, 2011 at 12:00 p.m.; that
plaintiffs serve and file any reply by August 30, 2011, at 12:00
p.m.; and that the parties appear before this court on August
30, 2011 at 3:00 p.m. for a show cause hearing as to why the
injunctive relief sought by plaintiffs should not be granted.
The hearing proceeded as scheduled, during which the court heard
argument by the parties.
BACKGROUND
Everly Brown, who is not a party to this action,
sought to be a candidate in the September 13, 2011 Democratic
Primary, for the office of District Attorney in Queens County.
It is not clear on the record before this court whether
Mr. Brown still seeks to be a candidate, although this court

3

Plaintiffs’ counsel, Mr. Mays, conceded during the show cause
hearing that HAVA and NVRA--both of which apply to federal
elections only--are inapplicable to the instant action, which
involves a non-federal primary election.
3

acknowledges a pending appeal of the state court decision to
dismiss his action.
New York Election Law requires that an individual who
seeks to be placed on a party’s primary ballot must submit a
“designating petition” meeting the requirements set forth in
Sections 6-130 to 6-136.

Designating petitions must bear the

names, signatures, residential addresses, dates of signatures of
registered voters, and a statement equivalent to an affidavit,
signed by a witness who states under the “same penalties as if
. . . duly sworn,” that s/he is a qualified registered voter who
witnessed the signature of each signatory who identified
her/himself to be the individual who signed the petition on the
date indicated.

N.Y. Elec. Law. §§ 6-130, 6-132.

For any

office to be filled by all the voters of any county or borough
within the City of New York--including the District Attorney-the petition must contain the signatures of at least 4,000 thenenrolled voters of the party residing within the county or
borough.

Id. at § 6-136(2)(b).
On July 14, 2011, a designating petition containing

approximately 7,510 signatures was filed at the Board in support
of placing Everly Brown on the ballot for the office of District
Attorney for Queens County in the September 13 primary (the
“Petition”).

(Compl. ¶ 8; ECF No. 8, Declaration of Steven H.

Richman (“Richman Decl.”), ¶ 3.)

Citizen-Objectors Mary
4

Plunkett and Hersh K. Parekh submitted Specifications of
Objections setting forth line-by-line deficiencies of signatures
on the Petition.

(Richman Decl. ¶ 4.)

Their line-by-line

objections were based on the fact that the addresses on the
Petition--the witnesses’ or signatories’ current addresses--did
not match the addresses on record at the Board.

(Compl. ¶ 5.)

On July 28, 2011, the staff of the Board’s General
Counsel prepared a “Counsel’s Report” on the Specifications of
Objections filed regarding Mr. Brown’s eligibility to be a
candidate for Queens County District Attorney, and a copy of
that report was faxed to Mr. Brown’s designated contact person,
Garth Marchant, that day.

(Richman Decl. ¶ 5.)

On August 1,

2011, after reviewing the Citizen-Objectors’ Specifications of
Objections, the Board staff issued a Clerk’s Report stating that
the Petition had only 2,389 valid signatures.

(Id. ¶ 6.)

A

copy of that report was faxed to Mr. Marchant approximately 24
hours 4 before the Commissioners of the Board met to consider the
Report on August 2, 2011.

(Id. ¶ 7; Compl. ¶ 11.)

On August 2,

the Commissioners of the Board convened and determined that
Mr. Brown had an insufficient number of signatures, as only
2,389 of the 7,510 signatures in the Petition were valid;

4

The parties disagree on the timing of the fax, as discussed
infra.
5

consequently, Mr. Brown was not placed on the ballot.

(Compl.

¶¶ 9–10; Richman Decl. ¶ 8.)
Mr. Brown, who is not a party to this action,
previously brought suit in New York State Supreme Court,
requesting validation of the Petition so his name could be added
to the ballot.

(Compl. ¶ 9; Richman Decl. ¶ 9.)

Mr. Brown’s

complaint was heard, denied, and dismissed by Judge Flug on
August 9, 2011.

(Richman Decl. ¶ 10, Ex. B.)

The New York

Supreme Court Appellate Division, Second Division, will hear Mr.
Brown’s appeal on September 6, 2011.

(Id. ¶ 11.)

Plaintiffs allege that the Board violated their rights
when it determined that the Petition lacked the sufficient
number of valid signatures due to the mismatched addresses;
after striking the signatures without valid addresses, the Board
found that the Petition had only 2,389 valid signatures, which
was short of the 4,000-signature requirement.

(Compl. ¶ 10.)

The plaintiffs now seek a mandatory injunction--one commanding
some positive act, as opposed to a prohibitory injunction--by
requesting that the court direct the Board to validate the
Petition and to place Mr. Brown’s name on the Primary Election
ballot.

(ECF No. 2, Unsigned Order to Show Cause; Compl. at 9. 5)

Plaintiffs also request (1) that the court hold unconstitutional

5

The court refers to the page number assigned by the ECF filing
system, because the pages of the complaint were not numbered.
6

various provisions of the New York Election Law; 6 (2) that the
court find defendants’ actions in violation of NRVA and HAVA;
(3) that the court find the named individual defendants 7
personally liable for their actions in denying the rights of
voters; (4) damages in the sum of $3,000,000 per plaintiff; and
(5) costs of this action.

(Compl. ¶ 9–10.)

6

Plaintiffs advance four constitutional claims regarding various
provisions in the New York Election Law. First, regarding the
4,000-signature requirement for addition of a candidate to the
ballot for the office of District Attorney in Queens County,
plaintiffs allege that because surrounding counties require only
2,000 signatures, the 4,000-signature requirement unfairly
burdens the residents of Queens County in violation of their
Equal Protection rights. (Compl. at 7.) Second, plaintiffs
challenge the constitutionality of the party-witness rule, which
counts as valid only signatures belonging to registered voters
who are members of the specific political party that a given
candidate represents. (Id. at 8.) Third, plaintiffs allege
that because the Board is comprised of ten commissioners--one
Democrat and one Republican from each of the five counties of
New York City--there are no representatives from other political
parties in New York City (such as the Green, Blank, and
Independent parties), and the lack of representation on the
Board for other parties is unconstitutional. (Id.) Fourth,
plaintiffs challenge the constitutionality of the requirement
that any inspector for the Board must be a Democrat or
Republican. (Id.) Because plaintiffs’ counsel and pro se
plaintiff Mr. Marchant represented during the show cause hearing
that they were seeking the preliminary injunction without
reliance on these constitutional claims, the court does not
discuss them further here.
7
Jose Miguel Araujo, Queens County Democratic Party
Commissioner; Juan Carlos Polanco, President of the Board; and
Steve Richman, General Counsel of the Board.
7

The Show Cause Hearing 8
At the show cause hearing, pro se plaintiff Marchant
appeared, most of the represented plaintiffs appeared with
counsel, and the Board of Elections appeared through counsel who
asserted that the individually named defendants had no power
over placement of Mr. Brown’s name on the ballot for the
September 13 primary.

During the hearing, the court heard

arguments from counsel representing the Board; Mr. Mays, who
claimed to be counsel for a group of plaintiffs but has not
complied with the court’s order to file a notice of appearance;
and Mr. Marchant, appearing pro se.

All parties raised new

arguments or submitted case law not previously submitted in the
papers.

The following is a non-exhaustive summary of the major

issues discussed during the hearing.
Mr. Marchant asserted that the New York Election Law
was amended last year to reduce by half the signature
requirements for the offices of Borough President, District
Attorney, and Civil Court Judge.

As a result, he argued, the

signature requirement is now 2,000--a requirement that the
Petition meets.

Defendants responded that the amendment

affected only the New York City Charter, and specific offices.
The court asked the parties for a citation to the law, as

8

The transcript of the show cause hearing was not available as
of the date of this Memorandum and Order.
8

allegedly amended, and neither party was able to produce it at
the hearing. 9
The court also heard arguments regarding defendants’
claim preclusion defense.

Defendants argued at the show cause

hearing and in their opposition memorandum (ECF No. 7,
Defendants’ Memorandum of Law in Opposition to Plaintiffs’
Application for a Preliminary Injunction (“Defs. Opp’n”)) that
to the extent the plaintiffs are in privity with Mr. Brown,
plaintiffs are bound by the state court’s decision that the
Board did not err in declining to certify Mr. Brown, and are
therefore precluded from advancing their claim in federal court.
(Defs. Opp’n at 1.)

When the court asked plaintiffs’ counsel

and Mr. Marchant whether evidence, including affidavits, had
been presented at the state court hearing to establish the
validity of the signatories’ current addresses such that their
addresses and identities could be confirmed for purposes of the
Petition, Mr. Marchant responded that he and several other
plaintiffs--including Anna Burrell and Larry Moore--were
prepared to provide testimony, but the state court would not
accept it.

Mr. Marchant also stated that the state court did

not permit him to present a list of relevant voter registration

9

The court’s research reveals that pursuant to section 6136(2)(b) of the New York Election Law, a designating petition
for the office of District Attorney still requires 4,000 valid
signatures on a petition.
9

records, thereby precluding him from being heard.

Plaintiffs

did not append a transcript from the state court proceeding to
their papers or furnish it at the show cause hearing, although
defendants provided excerpts at Exhibit B to their opposition
memorandum.

(ECF No. 8-2, Defs. Opp’n Ex. B., Excerpt of State

Court Proceeding Transcript.)
Plaintiffs also raised claims of racial discrimination
for the first time during the hearing.

They argued that for the

past few decades, candidates for the office of District Attorney
of Queens County have been white males, and that the Board has
power to prevent African-Americans such as Mr. Brown from
running for the office of District Attorney because the Board
determines who will be on the primary ballot.

Plaintiffs were

requested to provide any evidence of intentional discrimination
by the Board, such as evidence showing that the Board knew that
the signatures it struck were by African-American voters.
Plaintiffs conceded that they have no “smoking gun” or direct
evidence of racial discrimination, but that the “circumstantial”
evidence points to racial discrimination.
A discussion about Hudson v. Bd. of Elections of the
City of New York, 616 N.Y.S.2d 62 (N.Y. App. Div. 1994), a case
appended to plaintiffs’ Reply to Defendants’ Memorandum in
Opposition to Plaintiffs’ Application for a Preliminary
Injunction (ECF No. 10, “Reply”), ensued.
10

(See Reply, Ex. A.)

In Hudson, the Appellate Division found that a voter was
qualified to witness a petition even though his buff card did
not reflect his change of residence because the voter had
notified the Board of his change of address, and there was no
evidence that the voter’s registration had been cancelled.

616

N.Y.S.2d at 63.
In the instant case, plaintiffs did not submit
evidence that they notified the Board of any change of address.
Defendants averred that under the current statute, there are
numerous ways for voters to apprise the Board of their changes
in address (e.g., submitting an online form; mailing an
affidavit or specific form to the Board; or changing one’s
address through the United States Postal Service, which annually
provides the Board with address changes), and plaintiffs failed
to use any of the offered means to notify the Board of their
address changes.

Defendants also contended that when Mr. Brown

was notified about the Citizen-Objectors’ Specifications of
Objections, he had but did not avail himself of the opportunity
to rehabilitate those signatures by offering evidence, including
affidavits and testimony.

(See also Defs. Opp’n at 8.)

Mr. Marchant stated that he had attempted to present such
rehabilitative evidence at the Board’s hearing, but the Board
would not allow him to do so.

He further reiterated that he had

unsuccessfully attempted to present such evidence during the
11

state court proceedings.

Neither the Board’s hearing transcript

nor the complete state court transcript was submitted in the
record before the court.
Mr. Marchant objected to an assertion made in the
Richman Declaration, which states that a copy of a Clerk’s
Report from the Board staff was served on plaintiffs more than
24 hours before the Commissioners of the Board convened to
consider the Report (Richman Decl. ¶ 7) at 1:15 p.m. on August
2, 2011.

Mr. Marchant argued that because he received the

Board’s fax at 3:00 p.m. on August 1, 2011, as noted in Exhibit
A of the Richman Declaration, he received less than 24 hours of
notice.

Defendants maintained that the Board transmitted the

fax at 1:02 p.m. on August 1, 2011, also noted in Exhibit A of
the Richman Declaration. 10

(See also Defs. Opp’n at 8 n.8.)
DISCUSSION

Plaintiffs seek an injunction ordering the Board of
Elections to add Mr. Brown’s name to the September 13, 2011
Democratic Primary ballot for the office of District Attorney of

10

The court recognizes that the parties disagree as to the exact
time of the fax transmission. The court reads the fax as having
been transmitted at 1:02 p.m., in satisfaction of the 24-hour
notice requirement. Moreover, even if the fax was in fact
submitted at 3:00 p.m., the court notes that it is evident that
Mr. Brown and his representative Mr. Marchant received adequate
notice because the record indicates that they appeared at the
Board’s hearing on August 2, 2011, which, according to the
parties, commenced at 1:15 p.m.
12

Queens County, New York.

The defendants contend that the Board

complied with the New York Election Law and that the state
Supreme Court upheld the propriety of the Board’s actions and
dismissed candidate Everly Brown’s state court action.
A.

Claim Preclusion 11

11

The court respectfully disagrees with defendants’ assertion in
its papers and at the show cause hearing, that the court lacks
subject matter jurisdiction because plaintiffs are foreclosed
from pursuing this action under the Rooker-Feldman doctrine, to
the extent the plaintiffs are in privity with Mr. Brown. (See
Defs. Opp’n at 1.) Defendants concede that the issue of privity
cannot be determined on the current record. (See id.) Under
the Rooker-Feldman doctrine, federal courts lack jurisdiction
over “cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court
review and rejection of those judgments.” Hoblock v. Albany
Cnty. Bd. of Elections, 422 F.3d 77, 85 (2d Cir. 2005). The
Rooker-Feldman doctrine applies only to a very narrow subset of
cases, and this case fails to lie within the following
strictures, all of which must be satisfied, as articulated in
Hoblock: (1) “the federal-court 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.” Id. (internal
quotations omitted). This case fails to meet the first
requirement, since the state-court plaintiff, Mr. Brown, is
different from the federal-court plaintiffs. This case also
fails to meet the second and third requirements, because
plaintiffs’ federal suit does not arise out of an injury
“produced” by a state-court judgment; rather, the state court
“simply ratified, acquiesced in, or left unpunished” the actions
challenged by plaintiffs. Id. at 88. Nor can this court
determine whether plaintiffs are inviting review and rejection
of the state court judgment, because neither the issues
presented to the state court nor the state court’s decision
appear in the record before this court. Therefore, the court
cannot find that plaintiffs’ claims are barred by RookerFeldman.
13

Although defendants argue that plaintiffs are barred
from bringing this suit under the doctrine of claim preclusion,
the court finds that it lacks sufficient information to make
that determination.

Plaintiffs’ claims may be barred by claim

preclusion “if they could have been raised in state court and
they arise from the ‘same transaction or series of transactions’
as the state-court claims.”

Hoblock, 422 F.3d at 95 (quoting

Ferris v. Cuevas, 118 F.3d 122, 126 (2d Cir. 1997)).

Although

plaintiffs’ claims undeniably arise from the “same transaction
or series of transactions” as Mr. Brown’s state-court
proceedings, it remains unclear whether the plaintiffs here were
in sufficient privity with Mr. Brown such that their
claims could have been raised in that state-court proceeding.
See Monahan v. New York City Dept. of Corrs., 214 F.3d 275,
285 (2d Cir. 2000) (claim preclusion applies only when the
previous action “involved the plaintiffs or those in privity
with them”).

In Hoblock, a case in which political candidates

unsuccessfully brought a suit in state court and sought further
review in federal court, the Second Circuit held that under New
York law, in order to find privity between parties, there must
be “(1) identity of interest, and (2) sufficient control by the
candidates over the voters that we should deem them to be in
privity with each other.”

422 F.3d at 96.

Such control exists

when “the voters advance only those interests that they share
14

with the candidates” and “the voters and the candidates have so
closely coordinated their litigation strategies that the voters
are in effect the candidates’ puppets.”

Id.

As defendants

concede (see Def. Opp’n at 1), the record contains insufficient
factual information for the court to find such a degree of
entwinement between the plaintiffs and Mr. Brown, and the court
thus rejects defendants’ claim preclusion defense.
B.

Standard for Preliminary Injunction
In the Second Circuit, a party seeking an injunction

must show irreparable harm to the movant, a likelihood of
success on the merits, and a balance of hardships “tipping
decidedly” in favor of the movant.

Oneida Nation of New York v.

Cuomo, 645 F.3d 154, 164 (2d Cir. 2011) (quoting Monserrate v.
New York State Senate, 599 F.3d 148, 154 (2d Cir. 2010)).
Where, as here, a party seeks an injunction against government
action taken in the public interest pursuant to a statutory or
regulatory scheme, or a party seeks a mandatory injunction that
will alter the status quo or will provide the movant with
substantially all the relief sought and such relief cannot be
undone even if the defendant prevails at a trial on the merits,
a heightened standard applies.

Hoblock, 422 F.3d at 96–97;

Mastrovincenzo v. City of New York, 435 F.3d 78, 90 (2d Cir.
2006).

In such circumstances, the movant must make a “clear” or

15

“substantial” showing of a likelihood of success.

Hoblock, 422

F.3d at 97.
The relief sought by plaintiffs undoubtedly will alter
the status quo by placing Mr. Brown on the September 13
Democratic Primary ballot, when the Board of Elections and the
state Supreme Court have invalidated his petition, rendering him
ineligible.

Furthermore, placing Mr. Brown on the ballot will

provide plaintiffs with “substantially all” the relief they
seek, and that relief cannot be undone if defendants prevail at
a trial on the merits.

The court thus considers whether

plaintiffs have shown irreparable harm absent an injunction;
whether they have made a clear or substantial showing of a
likelihood of success on the merits; and whether the balance of
hardships tips decidedly in their favor.
1. Irreparable Harm
The Supreme Court has long recognized that the right
to vote is a “fundamental political right, . . . preservative of
all rights.”

Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886).

Plaintiffs submit that absent the requested mandatory
injunction, they will suffer irreparable harm because their
voting rights will be infringed, preventing them from voting for
the candidate of their choice, because the Board wrongfully
struck their signatures and denied them an opportunity to be
heard so their signatures may be restored.
16

The court agrees

that infringement on the right to vote necessarily causes
irreparable harm.

See Williams v. Salerno, 792 F.2d 323,

326 (2d Cir. 1986) (finding college students who were prevented
from registering to vote using their college addresses would
“certainly suffer irreparable harm if their right to vote were
impinged upon”).
The court does not find, however, that the fundamental
“right to vote” is the right at stake in this action, as
plaintiffs do not allege that they are being prevented from
accessing the polls or casting any vote for any candidate.
Rather, plaintiffs challenge the loss of their ability to vote
for the candidate of their choice, which--unlike the right to
vote--is not an absolute right.

In Burdick v. Takushi, 504 U.S.

428, 433 (1992), the Supreme Court recognized that the rights to
“vote in any manner” and “to associate for political purposes
through the ballot” are not absolute because regulation of
elections is necessary for the fair, honest, and orderly
administration of elections, and election laws “invariably
impose some burden upon individual voters.”

Election laws--

including those that govern the eligibility of candidates—
“inevitably affect[] . . . the individual’s right to vote . . .
to associate with others for political ends.”

Id. (citing

Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)).

Thus, “the

State’s important regulatory interests are generally sufficient
17

to justify reasonable, nondiscriminatory restrictions.”
Anderson, 460 U.S. at 788 (footnote omitted).

Furthermore,

“limiting the choice of candidates to those who have complied
with state election law requirements is the prototypical example
of a regulation that, while it affects the right to vote, is
eminently reasonable.”

Burdick, 504 U.S. at 440 n. 10.

The

Second Circuit has also recognized that “[m]any 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.”

Rivera-Powell v. New York City Bd. of

Elections, 470 F.3d 458, 469 n. 15 (2d Cir. 2006) (citing
Anderson, 460 U.S. at 788).

Accordingly, the court finds that

plaintiffs have not shown irreparable harm, because their right
to vote for a specific candidate, even if impeded by election
laws governing signatures required for a candidate to appear on
the ballot, is not recognized as a constitutional injury.
2.

Likelihood of Success on the Merits
The court next considers whether plaintiffs have shown

a clear or substantial likelihood of success on the merits of
their Due Process and Equal Protection claims.
a.

Due Process Claim
As an initial matter, to the extent plaintiffs seek to

challenge the constitutionality of various provisions of the New
18

York Election Law, defendants correctly note that plaintiffs
must file and serve notice on the Attorney General of the State
of New York pursuant to Federal Rule of Civil Procedure 5.1. 12
(See Defs. Opp’n at 7.)

Plaintiffs clarified at the hearing,

however, that they are not making a facial challenge to the New
York Election Law or to the established procedures of the Board
of Elections but, rather, claim that they were deprived of their
constitutional right to vote without due process.
The Due Process Clause does not protect against all
deprivations of constitutionally protected interests in life,
liberty, or property, “only against deprivations without due
process of law.”

Parratt v. Taylor, 451 U.S. 527, 537 (1981)

(internal quotation marks omitted), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986).
“[T]o determine whether a constitutional violation has occurred,
it is necessary to ask what process the State provided, and
whether it was constitutionally adequate.”

Rivera-Powell, 470

F.3d at 465 (quoting Zinermon v. Burch, 494 U.S. 113, 126
(1990)).

Where an alleged intentional deprivation is pursuant

to an established state procedure, “the state . . . is in a
position to provide a pre-deprivation hearing.”
12

Id. at 465

Although defendants note that plaintiffs must provide notice
to the court of any claim of unconstitutionality (see Defs.
Opp’n at 7), the current version of the Local Rules for the
Eastern District of New York, effective July 1, 2011, do not
include that requirement.
19

(citing Hellenic Am. Neighborhood Action Comm. v. City of New
York, 101 F.3d 877, 880 (2d Cir. 1996)).

To determine the

adequacy of due process afforded by the state’s procedures, the
court must weigh: (1) “the private interest that will be
affected by the official action”; (2) “the risk of an erroneous
deprivation of such interest through the procedures used” and
“the probable value, if any, of additional or substitute
procedural safeguards”; and (3) “the Government’s interest,
including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.”

Rivera-Powell, 470 F.3d

at 466 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
The Second Circuit’s ruling in Rivera-Powell governs
the due process claim plaintiffs allege here.

In Rivera-Powell,

a prospective judicial candidate and voters supporting her
candidacy brought an action against the Board, alleging that the
Board improperly removed the candidate from the primary ballot
on the basis of a voter’s written objection to her candidacy.
470 F.3d at 461.

The candidate sought reinstatement to the

ballot in state court, advancing a series of claims similar to
those in the instant case, including due process, freedom of
association, racial discrimination, and voting rights claims.
Id.

The Second Circuit found that “because the state provided

[candidate] Rivera-Powell with a pre-deprivation hearing and an
20

adequate judicial procedure by which to challenge any alleged
illegalities in the Board’s action, Rivera-Powell and her coplaintiffs have failed to state violations of their procedural
due process. . . rights.”

Id.

In the instant case, Mr. Brown has been afforded the
very same pre-deprivation hearing from the Board and judicial
review in state court that the Second Circuit reviewed and
deemed adequate in Rivera-Powell, both with respect to the
prospective candidate and the voters who supported his
candidacy.

Therefore, the court agrees with defendants that

Rivera-Powell bars plaintiffs’ due process claim here.
Even absent the Rivera-Powell holding, however, the
court finds that plaintiffs have proffered insufficient evidence
to support their due process claim.

The record reflects that

Messrs. Brown and Marchant (1) were given adequate notice of a
pre-deprivation hearing from the Board, (2) appeared at the
Board’s pre-deprivation hearing, and (3) appeared at the state
court proceeding brought by Mr. Brown in advancement of his
claims.

Defendants contend--and plaintiffs do not deny--that

plaintiff Marchant was issued a copy of the Clerk’s Report
regarding the number of valid signatures on the Petition
approximately 24 hours before the Commissioners of the Board
convened to consider the Report on August 2, 2011.
Defs. Opp’n at 8.)

(See also

The parties agree that Messrs. Brown and
21

Marchant were present at the Board’s August 2, 2011 hearing, and
that they were present at Mr. Brown’s state court proceeding to
validate the Petition.

(See also Compl. ¶ 11.)

Although

plaintiffs allege that these procedures did not satisfy their
due process rights because they were not in fact given the
opportunity to be heard at the hearings, they do not submit any
transcripts of the Board hearing or the state court proceeding
in support of that claim.

On the instant record the court

cannot determine if plaintiffs’ assertions are correct.
Moreover, although plaintiffs repeatedly alleged
during the show cause hearing that they would have presented
evidence to support the validity of their signatures and
identities during the Board hearing and the state court
proceeding had they been given the opportunity, no evidence
reflects their supposed efforts.

Mr. Brown and plaintiff

Marchant first had the opportunity to present sworn statements
or testimony regarding the validity of their addresses at the
August 2, 2011 Board hearing, and there is no evidence that they
attempted to do so.

Their second opportunity to proffer

evidence to rehabilitate their Petition signatures was at the
state court proceeding.

Again, plaintiffs have not indicated

that the state court record contains any such submission from
plaintiffs.

Plaintiffs did not seize their third opportunity to

present evidence, when they could have, but did not, append such
22

evidence to their papers in this action.

Finally, and most

recently, plaintiffs did not present evidence to rehabilitate
their signatures at the show cause hearing despite being given
the opportunity to do so.

In the absence of providing any

actual evidence of a due process infringement, the court finds
that plaintiffs have failed to demonstrate a substantial
likelihood of success on the merits of their due process claim.
b.

Equal Protection Claim
To establish a constitutional violation under the

Equal Protection Clause, plaintiffs must show that a state actor
intentionally discriminated against them, “either by adopting
out of racial animus policies which are facially neutral but
have a racially discriminatory effect, or by applying a facially
neutral policy in a racially discriminatory manner.” See RiveraPowell, 470 F.3d at 470 (citing Hayden v. Cnty. of Nassau, 180
F.3d 42, 48 (2d Cir. 1999), overruled in part on other grounds
by Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)); Powell v. Power,
436 F.2d 84, 88 (2d Cir. 1970) (requiring a showing of
“intentional or purposeful discrimination” to make out an equal
protection claim in the election context).
Plaintiffs do not allege any indicators of
“intentional or purposeful discrimination” by the Board in their
Complaint or Reply.

Moreover, during the show cause hearing,

plaintiffs offered nothing more than conclusory allegations that
23

their signatures were stricken from the Petition due to
intentional discrimination.

Plaintiffs argued, for example,

that the Board would have been able to discern that the
signatures they struck belonged to African-Americans because the
addresses are all in neighborhoods dominated by, or exclusively
inhabited by, as plaintiffs’ counsel suggested, AfricanAmericans.

Plaintiffs also argued that for the past five

decades, the Board has intentionally precluded all racial and
gender minorities from candidacy for the office of District
Attorney of Queens County, and the fact that only white males
have been on the ballot for that office during “recent memory”
is proof of such discrimination.

Plaintiffs eventually

acknowledged, however, that they lack “smoking gun” evidence,
and possess only circumstantial evidence.
The court finds that plaintiffs have shown far less
than convincing circumstantial evidence that would meet the
heightened “clear” and “substantial” showing of likelihood of
success required here.

In fact, plaintiffs have proffered

nothing beyond conclusory assertions that the court cannot
accept as evidence.
Plaintiffs have not alleged--much less provided any
evidence showing--that the Board acted “out of racial animus,”
or adopted facially neutral policies with a racially
discriminatory effect.

Plaintiffs have not provided evidence
24

showing that the policies and practices regarding review of
voter signatures are applied in a discriminatory manner or that
racial minority populations suffer particular adverse impacts
from the law.

The facts as presented by both parties to the

court suggest that the law affects equally all registered voters
who move and do not change their address on record with the
Board, but wish to witness a petition for purposes of adding a
candidate to the ballot.

Neither party has suggested that this

policy has a racially discriminatory effect.

Nor have

plaintiffs shown that the Board has applied a facially neutral
policy in a racially discriminatory manner, as would be the case
if the Board knowingly declined to strike signatures that should
have been stricken due to mismatched addresses because the
signatures belonged to members of non-minority populations.
Accordingly, the court finds that plaintiffs have failed to show
any likelihood--much less a clear or substantial likelihood--of
success on the merits of their equal protection claim.
3.

Balance of Hardships
The court also finds that plaintiffs have failed to

establish that the balance of hardships tips decidedly in their
favor.

As discussed supra, plaintiffs’ sole expected hardship

absent the injunction would be the inability to vote for the
particular candidate of their choice, a non-constitutional
injury.

In contrast, if a preliminary injunction is granted,
25

defendants’ expected injury would be extraordinary.

Defendants

set forth in their Opposition extensive and detailed reasons
why, even if the court granted the requested injunctive relief,
the Board would be unable to comply due to the extraordinary
hardship compliance would require.

Currently, there is no

county-wide Democratic primary scheduled for Queens County, and
therefore, no preparations have been made for such a large-scale
voting event for over 650,000 eligible voters.
¶¶ 13, 15.)

(Richman Decl.

If the Board were ordered to add Mr. Brown’s name

to a ballot, inter alia, (1) 6,000 additional poll workers would
have to be hired and trained; (2) over 350 additional ballot
scanners would need to be programmed by at least fifteen teams
of two technicians, working twelve hours a day, for nearly eight
days; (3) poll list books that include all enrolled Democrats
county-wide would need to be printed, at an as-yet-unknown cost
of time and financial resources; and (4) absentee ballots would
need to be printed and distributed by hand to permanent absentee
voters.

(Richman Decl. ¶¶ 15–22.)

In light of the tremendous

efforts and expenses necessary to coordinate a county-wide
election, the court need not reach the defendants’ argument that
the doctrine of laches 13 should apply (see Defs. Opp’n at 17–19)

13

Laches is an equitable doctrine which asks whether the
plaintiff in asserting its rights was guilty of “unreasonable
and unexcusable” delay that prejudiced defendants. Secs. Indus.
26

because the plaintiffs’ three-week delay in bringing suit was
unreasonable and inexcusable and tips the balance of hardships
in favor of the defendants.

While other courts have granted the

type of injunction plaintiffs request here as late as five days
before the pending election, those cases are distinguishable on
the facts.

See, e.g., Credico v. New York State Bd. of

Elections, 751 F.Supp.2d 417, 423 (E.D.N.Y. 2010) (granting
preliminary injunction and directing the Board to place
candidate’s name in “an empty space on a line that already
exists on the ballot” five days before scheduled election and
rejecting the Board’s argument that it would be “extremely
difficult, if not impossible” to comply with the order because
of the Board’s “failure to submit affidavits or offer sworn
testimony detailing the reasons why a change to the ballot is
not possible”).
Moreover, the court is not persuaded by cases
plaintiffs cite in their Reply to support their request for a
preliminary injunction, because those cases are also
distinguishable on the facts.

First, plaintiffs cite to

Matheson v. New York City Bd. of Elections (see Reply at 6 14), in
which Judge Korman ordered the Board to add Mr. Brown to the

Ass’n v. Clark, 885 F.2d 1034, 1041 (2d Cir. 1989), cert.
denied, 493 U.S. 1070 (1990).
14
The Court refers to the page number assigned by the ECF filing
system, because the pages of the Reply were not numbered.
27

ballot “for the reason stated on the record.”

(Docket 03-CV-

4170, ECF No. 14, Order dated September 2, 2003.) 15

In reviewing

the Matheson docket, this court observed that Judge Korman
stated that he found plaintiffs were “entitled to preliminary
injunctive relief because of [the] likelihood that one such
statute may be invalid.”
September 4, 2003).

(Docket 03-CV-4170, Minute Entry dated

Because the corresponding complaint in the

Matheson case is missing several pages and transcripts from the
show cause hearing, the court is unable to discern the basis for
Judge Korman’s issuance of the preliminary injunction in that
case.
Second, in Rockefeller v. Powers, 78 F.3d 44 (2d Cir.
1996), the Second Circuit affirmed the district court’s issuance
of a preliminary injunction directing the Board to place on the
Republican presidential primary ballot the names of certain
delegates.

Id. at 45.

There, unlike here, the district court

found that “burdensome and highly technical requirements”
impeded candidates’ “legitimate efforts” to be placed on the
ballot.

Id. at 46.

The requirements deemed burdensome in

Rockefeller included (1) collecting sufficient signatures for a
petition within a 37-day window that included numerous holidays,
inclement weather, school and family vacations, and short

15

Because this case is not published, the docket number is cited
for reference purposes.
28

periods of daylight; (2) a “host of rules” defining what
constitutes a valid signature; and (3) “highly technical
requirements” concerning the presentation of petitions to
election officials.

Id. at 45.

The instant case is

distinguishable because plaintiffs’ signatures would have been
deemed valid if they had, in advance of signing the Petition,
submitted evidence of their address change to the Board via any
of several means, none of which are technical or particularly
burdensome.
Similarly, Kaloshi v. Hackshaw, 02 CV 4762, 2002 WL
31051530 (E.D.N.Y. Sept. 6, 2002), is inapposite because the
preliminary injunction was granted as to plaintiff-candidate
Kaloshi based on the court’s finding that the party-witness rule
was facially unconstitutional.

Id. at *9–13.

Notably,

plaintiffs here likewise claim that the New York Election Law’s
party-witness rule is unconstitutional, but their claim is
foreclosed by the subsequent Supreme Court decision, New York
State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008), in
which the Court held that political parties have the right to
exclude non-members from participating in the selection of the
party’s standard bearer at the general election.
Therefore, Kaloshi is not persuasive here.

29

Id. at 798.

CONCLUSION
Based on the foregoing, the court finds that
plaintiffs have failed to demonstrate a clear or substantial
likelihood of success on the merits of their due process, equal
protection, and racial discrimination claims.

Accordingly,

their motion for a preliminary injunction is denied.
The defendants’ counsel is respectfully requested to
serve a copy of this Memorandum and Order on all parties not
represented on ECF and to file a declaration of service by
September 2, 2011.
SO ORDERED.

_______________/s/________________
KIYO A. MATSUMOTO
United States District Judge

Dated: Brooklyn, New York
September 2, 2011

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