Merced et al v. Spano et al
Filing
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ORDER DENYING PRELIMINARY INJUNCTION. See attached. Defendants shall answer the complaint by July 28, 2016 and the parties shall thereafter proceed expeditiously with discovery. Ordered by Judge Sterling Johnson, Jr on 7/14/2016. (Figeroux, Davina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ALEX MERCED, candidate of the Libertarian
Party for the office of the United States Senator
for the State of New York; WILLIAM REDPATH,
a Virginia resident; and MARK E. GLOGOWSKI,
as Chair and on behalf of the Libertarian Party of
New York, an independent body,
Plaintiffs,
16CV3054 (SJ) (SMG)
ORDER DENYING
PRELIMINARY
INJUNCTION
-vs.ANDREW J. SPANO, GREGORY P. PETERSON,
PETER S. KOSINSKI, and DOUGLAS A.
KELLNER, in their official capacities as
Commissioners of the New York State Board of
Election,
Defendants.
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JOHNSON, U.S.D.J:
On June 13, 2016, plaintiffs Alex Merced, William Redpath and Mark
Glogowski (“Plaintiffs”) filed a complaint against the Commissioners of the New
York State Board of Elections (“Defendants”) seeking declaratory and injunctive
relief pursuant to, inter alia, the First and Fourteenth Amendment to the United
States Constitution.
Plaintiffs Alex Merced (“Merced”) and Mark Glogowski
(“Glogowski”) are New York residents and members of the Libertarian Party of
New York (“LPNY” or the “Party”). Merced is the Party’s selected candidate for
United States Senator in the upcoming November election.
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Plaintiff William
Redpath (“Redpath”) is a member-at-large of the Libertarian party who resides in
the Commonwealth of Virginia. Plaintiffs seek to challenge the constitutionality of
New York Election Law § 6-104(1), claiming it places an undue burden on their
political speech, and begs of the Court to relieve them of certain provisions
thereunder. Based on the submissions of the parties, and oral argument held before
the Court on July 11, 2016, Plaintiffs’ motion for a preliminary injunction is
denied.
BACKGROUND
Under New York law, a political “party” is one for which “at the last
preceding election for governor polled at least fifty thousand votes for its candidate
for governor.” N.Y. Elec. L. § 1-104(3). Other entities, referred to as “independent
bodies,” may organize campaigns and nominate candidates provided certain
requirements are met. Independent candidates must be nominated by petition.
Those petitions must bear a certain number of signatures, and the number depends
on the position sought by the candidate. The signatories to such petitions must be
New York State registered voters and each New York State registered voter may
only sign one petition for a candidate running for a given office. N.Y. Elec. L. § 6138. The law also requires that each sheet of a petition contains the declaration of a
witness. N.Y. Elec. L. § 6-140 (“Section 6-140”). That witness must him or
herself be a registered voter in the State of New York.
requirement that is at the heart of this lawsuit.
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Id.
It is this final
Plaintiffs seek to have Merced’s name submitted to the ballot on an
independent petition without having a registered New York voter witness each
page, claiming that the voter registration requirement will cause them irreparable
harm in the upcoming Senate race. The petitioning period for independent petitions
in New York State began on June 21, 2016, and petitions must be submitted by
August 2, 2016.
Plaintiffs filed the complaint and motion for preliminary
injunction on June 13, 2016.
DISCUSSION
“A plaintiff seeking a preliminary injunction must establish that he is likely
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008) (citing Munaf v. Geren, 553 U.S. 674, 689-690 (2008); Amoco
Production Co. v. Gambell, 480 U.S. 531, 542 (1987); and Weinberger v. Romero–
Barcelo, 456 U.S. 305, 311–312 (1982)); see also Pope v. County of Albany, 687
F.3d 565, 570-571 (2d Cir. 2012) (“Where . . . a party seeks a preliminary
injunction against government action taken in the public interest pursuant to a
statutory scheme, a moving party must demonstrate that (1) he is likely to succeed
on the merits of the underlying claim; (2) he will suffer irreparable harm absent
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injunctive relief, and (3) the public interest weighs in favor of granting the
injunction.”)
Likelihood of Success on the Merits
“Consideration of the merits is virtually indispensable in the First
Amendment context, where the likelihood of success on the merits is the dominant,
if not the dispositive, factor.” New York Progress and Prot. PAC v. Walsh, 733
F.3d 483 (2d Cir. 2013). In this case, the parties agree that the Second Circuit has
not squarely addressed the constitutionality of Section 6-140. Plaintiffs ask the
Court to rely on Libertarian Party of Conn. v. Merrill, No. 15 CV 1851 (JCH) (D.
Conn. Feb. 26, 2016), in which the Libertarian Party’s motion for a preliminary
injunction under similar circumstances was granted in Connecticut, and Libertarian
Party of Va, v. Judd, 718 F.3d 308 (4th Cir. 2013), in which the Party also
successfully challenged a state residency requirement for petition circulators.
Defendants, on the other hand, rely on Initiative & Referendum Institute v. Jaeger,
241 F.3d 614 (8th Cir. 2001), in which the Eighth Circuit found constitutional a
North Dakota residency requirement for that state’s “qualified electors.”
The parties do not dispute that residency requirements for petition witnesses
constitute a burden on political speech and are subject to strict scrutiny for First and
Fourteenth Amendment purposes. Both sides also cite Lerman v. Bd. of Elections
in the City of N.Y., 232 F.3d 135 (2d Cir. 2000). There, plaintiff served as a
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witness to signatures on a petition for John Sollazo, a member of the Independence
Party of New York. Id. at 139. Sollazo sought to run for a New York City Council
Seat representing the 50th Council District, but plaintiff Lerman resided in a
different district. Id. The Second Circuit held the law requiring witnesses to be
residents of the same district as the candidate to be overbroad and thus
unconstitutional on its face. See generally 232 F.3d 135.
In the instant case, Plaintiffs find that Lerman supports the issuance of a
preliminary injunction, because, they argue, the statute limiting witnesses to the
State of New York in a Senate contest is just as unconstitutional as the one limiting
witnesses to the Council District in a City Council contest. On the other hand,
Defendants distinguish Lerman by arguing that the state has a compelling interest
in limiting witnesses to its own residents, who are subject to the state’s subpoena
power, in the event of election fraud. This is an interest that was not implicated in
Lerman, where both the candidate and the witness were New York State residents.
Defendants further argue that the requirement that the witness be a registered voter
(and not solely a resident of the state) serves the compelling interest of preventing
those who do not have the right to vote from serving as witnesses. Although the
Court expresses no opinion on the ultimate outcome, it finds that Plaintiff has
demonstrated a likelihood that the witness requirement is overbroad. Even in
Jaeger, the case relied upon by Defendants, the residency requirement did not also
require the circulator to be an in-state registered voter. 241 F.3d at 615-616.
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Remaining Elements
The remaining elements (irreparable harm, balance of the equities and
public interest) will be discussed together because in this instance, they are
intertwined.
“[L]oss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373
(1976); see also Mullins v. City of New York, 307 Fed. Appx. 585, 587 (2d Cir.
2009) (“Where a plaintiff alleges an injury from a rule or regulation that directly
limits speech, the irreparable nature of the harm may be presumed.”) (emphasis in
original).
However, a plaintiff who plays a role in the imposition of the injury does
not come to the table with clean hands. “Laches is an equitable defense which bars
injunctive relief where a plaintiff unreasonably delays in commencing an action.”
Matter of Defend H2O v. Town Bd. of East Hampton, Dkt. Nos. 15 CV 2349, 15
CV 5735 (ADS) (AYS), 2015 WL 7721207, at *13 (E.D.N.Y. Nov. 30, 2015)
(citations omitted). “[T]he failure to act sooner undercuts the sense of urgency that
ordinarily accompanies a motion for preliminary relief and suggests that there is, in
fact, no irreparable injury.” Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964,
968 (2d Cir. 1995). Here, with the exception of 1986, the Party has collected
signatures and submitted petitions pursuant to Section 6-140 every two years since
1974, yet the instant motion was filed a week before 2016’s brief, six-week
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petitioning period began. No satisfactory explanation has been offered for bringing
this action on the heels of an election. A preliminary injunction is an extraordinary
remedy, but the courthouse is not an emergency room – certainly not for such a
contrived crisis.
Related to this shortcoming is the public interest in fairness to all electoral
candidates, who may not discover that the rules have been changed or may not have
the time or means available to reframe or expand their campaigns so as to dispense
with the current witness requirement, to name just a few possible unfair outcomes.
By extension, a preliminary injunction would affect the entire electorate and
possibly open a Pandora’s Box of future litigation in order to sort out the election,
post hoc.
Where the public interest in denying the motion is particularly strong, that
alone may counsel a denial of injunctive relief. See Winter, 555 U.S. at 23-24
(finding public interest to outweigh likelihood of irreparable injury where
respondents sought to enjoin the United States Navy from conducting certain sonar
training in the absence of research on the consequences to marine life). This is
such a case.
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CONCLUSION
For the foregoing reasons, Plaintiffs motion for a preliminary injunction is
denied. The parties are directed to proceed expeditiously with discovery.
SO ORDERED.
Dated: July 14, 2016
Brooklyn, NY
___________/s/________________
Sterling Johnson, Jr., U.S.D.J.
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