Gonsalves et al v. The New York State Board of Elections, et ano

Filing 31

MEMORANDUM AND OPINION: For the reasons set forth herein, plaintiffs' motion for a preliminary injunction and a temporary restraining order is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 10/2/2013. (Pilmar, Philip)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-cv-5104 (JFB) (WDW)
_____________________

NORMA GONSALVES, ET AL.,
Plaintiffs,
VERSUS

THE NEW YORK STATE BOARD OF ELECTIONS AND THE NASSAU COUNTY BOARD OF
ELECTIONS,
Defendants.
___________________
MEMORANDUM AND ORDER
October 2, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Norma Gonsalves, along with
fifty-five other individuals (the “plaintiff
candidates”), are candidates for various
public offices throughout Nassau County.
Each plaintiff candidate has been validly
nominated as a candidate of a political party,
as well as a candidate of the Tax Revolt
Party, which is defined as an independent
body under New York Election Law.1 On
September 13, 2013, the plaintiff candidates,
along with voter Raquan Webster (the
1

In their reply memorandum of law in support of the
motion for a preliminary injunction, plaintiffs
withdraw all claims regarding twenty of the plaintiff
candidates because the nominating petitions for those
individuals were determined to be invalid, and, thus,
they are no longer valid nominees of the Tax Revolt
Party. (Reply Mem. of L. in Further Supp. of Pls.’
Mot. for a TRO & Prelim. Inj. (“Pl.’s Reply”) at 1
n.3.)

“plaintiff voter”) (collectively, “plaintiffs”),
brought this action against the New York
State Board of Elections (the “State Board”)
and the Nassau County Board of Elections
(the “County Board”), alleging that New
York State Election Law § 7-104 violates
their rights under the First and Fourteenth
Amendments. Plaintiffs simultaneously
moved for an Order to Show Cause, seeking
a preliminary injunction and a temporary
restraining
order.
The
Republican
Commissioner of the County Board, Louis
G.
Savinetti
(“Savinetti”),
supports
plaintiffs’ motion, and the State Board takes
no position with respect to the merits of the
complaint. The Democratic Commissioner
of the County Board, William T. Biamonte
(“Biamonte”), filed a memorandum of law
in opposition to plaintiffs’ motion. The New
York State Attorney General, on behalf of
the State of New York (the “State”), has also

record before it, that the statute does not
violate plaintiffs’ First and Fourteenth
Amendment rights. Plaintiffs’ motion must
fail because they have not demonstrated a
likelihood of success on the merits or even
sufficiently serious questions going to the
merits making them a fair ground for
litigation.

intervened in this action, arguing that
plaintiffs’ motion should be denied.
As set forth in more detail infra, New
York State allows fusion politics, whereby a
candidate that has been nominated by more
than one party or independent body may
appear on a ballot multiple times, and all
votes for that candidate are pooled in
determining the results of the election.
Pursuant to Section 7-104, on a typical
ballot in Nassau County, the leftmost
column lists the names of political parties
and independent bodies, and each adjacent
column lists the candidate nominated by that
party or independent body for each election.
When a candidate has been nominated by
two or more political parties, as well as an
independent body, the candidate’s name
appears only in the lines associated with the
political parties that have nominated her.
The independent body does not receive its
own ballot line; instead, the independent
body’s name and emblem appears next to
the candidate’s name on a political party’s
ballot line. Plaintiffs argue that this scheme,
which does not require a separate ballot line
for the Tax Revolt Party in every instance in
which it has validly nominated a candidate
for public office, violates the First and
Fourteenth Amendments.

I. BACKGROUND
A. Factual Background
The following facts are taken from the
complaint, as well as the parties’
submissions to the Court.
The terms “party” and “independent
body” are defined terms under New York
election law. A party is “any political
organization which at the last preceding
election for governor polled at least fifty
thousand votes for its candidate for
governor.” N.Y. Elec. Law. § 1-104(3). An
independent body is “any organization or
group of voters which nominates a candidate
or candidates for office to be voted for at an
election, and which is not a party as herein
provided.” Id. § 1-104(12).
New York election ballots are formatted
as a grid. For example, on a typical ballot in
Nassau County, the leftmost column will be
comprised of the names of parties and
independent bodies, and the top row will list
each election that a voter has the option of
casting a ballot for. See id. § 7-104(3)-(4).
Candidates for each elected office appear
adjacent to the party or independent body
that has nominated them.

For the reasons set forth below, the
Court denies plaintiffs’ motion for a
preliminary injunction and a temporary
restraining order because it is clear that
Section 7-104 does not violate the First and
Fourteenth Amendment, either facially or as
applied to the facts of this case. Specifically,
the Court finds that the burdens placed on
the plaintiff candidates and the plaintiff
voter are not severe. Because the State’s
expressed interest in minimizing ballot
confusion and promoting ballot integrity
outweighs the non-severe burdens placed on
the plaintiff candidates and the plaintiff
voter, the Court concludes, based upon the

New York State allows fusion politics,
whereby a candidate that has been
nominated by more than one party or
independent body may appear on a ballot
multiple times, and all votes for that
candidate are pooled in determining the
2

results of the election. A candidate
nominated by multiple parties will appear in
the row of each party that nominated her. Id.
§ 7-104(4)(b).

104(4)(c)-(d). According to the New York
Court of Appeals, this statute “expresses a
continuing legislative policy of preventing
the major party candidates from pre-empting

However, the Election Law becomes
more complicated when a candidate has
been nominated by a party and an
independent body. If a candidate has been
nominated by only one party and one or
more independent bodies, the candidate’s
name appears twice, once in the row
associated with the party that nominated her
and once in a row associated with an
independent party. If a candidate has been
nominated by multiple political parties and
at least one independent body, the
candidate’s name appears in the rows
associated with each nominating political
party, but no separate line associated with
the independent body is created on the
ballot. Instead, the independent body’s name
and emblem is printed next to the
candidate’s name alongside one of the
political parties that nominated the
candidate. Moreover, under Section 7-104,
where the independent body has obtained a
separate ballot line – because it has
nominated at least one candidate for an
elected position on the ballot who does not
meet the above-referenced criteria for use of
the emblem – the other candidates for that
independent body who do meet the criteria
for an emblem still do not appear on the
independent body’s line and simply
maintain the emblem on a political party’s
line, thereby leaving a blank space for that
particular elected office in the column for
that independent body.2 See id. § 7-

(b) When the same person has been nominated for an
office to be filled at the election by more than one
party, the voting machine shall be so adjusted that his
or her name shall appear in each row or column
containing generally the names of candidates for
other offices nominated by any such party.
(c) If such candidate has also been nominated by one
or more independent bodies, his or her name shall
appear only in each row or column containing
generally the names of candidates for other offices
nominated by any such party and the name of each
such independent body shall appear in one such row
or column to be designated by the candidate in a
writing filed with the officer or board charged with
the duty of providing ballots, or if such person shall
fail to so designate, the names of such independent
bodies shall appear in such row or column as such
officer or board shall determine.
(d) If any person shall be nominated for any office by
one party and two or more independent bodies his or
her name shall appear on the voting machine twice;
once in the row or column containing generally the
names of candidates for other offices nominated by
such party, and once in the row or column containing
generally the names of candidates nominated by the
independent body designated by such person in a
writing filed with the officer or board charged with
the duty of providing ballots and in connection with
the name of such person in such row or column shall
appear the name of each independent body
nominating him or her or, if such person shall fail to
so designate, the name of such candidate and the
names of such independent bodies shall appear in
such row or column as such officer or board shall
determine.
(e) If any person is nominated for any office only by
more than one independent bodies, his or her name
shall appear but once upon the machine in one such
row or column to be designated by the candidate in a
writing filed with the officer or board charged with
the duty of providing ballots, or if the candidate shall
fail to so designate, in the place designated by the
officer or board charged with the duty of providing
ballots, and in connection with his or her name there
shall appear the name of each independent body
nominating him or her, but, where the capacity of the
machine will permit, the name of such person shall
not appear or be placed in a column or on a
horizontal line with the names of persons nominated
by a party for other offices.

2

The full text of Section 7-104(4) is as follows:
(a) The names of all candidates nominated by any
party or independent body for an office shall always
appear in the row or column containing generally the
names of candidates nominated by such party or
independent body for other offices except as
hereinafter provided.

3

the whole ballot through the device of
setting up independent political bodies”
because, without this limitation, parties
could flood the ballot (by setting up various
independent bodies) and have their
candidate appear ad infinitum on the ballot.
Battista v. Power, 16 N.Y.2d 198, 201
(1965) (upholding constitutionality of
predecessor to Section 7-104).

the record at the September 13, 2013
conference. On September 18, 2013, the
Court granted the State’s motion to
intervene to defend the constitutionality of
the Election Law. On September 20, 2013,
the State Board filed an answer, taking no
position on the constitutionality of the
statute. Also on September 20, 2013,
Savinetti filed an answer, as well as a
memorandum of law in support of plaintiffs’
motion, and the State and Biamonte filed
separate memoranda in opposition to
plaintiffs’ motion. Plaintiffs filed a reply in
support of their motion on September 23,
2013. The Court held an order to show cause
hearing on September 24, 2013. The Court
has fully considered all of the arguments of
the parties.

The Tax Revolt Party is an independent
body under New York Election Law.
(Compl. ¶ 4.) Plaintiffs state that the “Tax
Revolt Party has a long history in the State
of New York, extending back to the 1980’s
and 1990’s where independent bodies [used]
names such as ‘Tax Cut Party,’ ‘Tax Revolt
Party’ and ‘Tax Cut Now.’” (Id. ¶ 5.)
According to Biamonte, the Tax Revolt
Party is “a de facto arm of the Republican
Party in Nassau County” and was “invented
as a method for the Nassau County
Republican Party to support the candidacy
of the Republican Party’s nominee, plaintiff
candidate Edward P. Mangano, for the
public office of Nassau County Executive in
the 2009 general election.” (Mem. of L. in
Opp’n to Pls.’ Mot. for a TRO & Prelim. Inj.
(“Biamonte Opp’n”) at 3-5.)3

II. DISCUSSION
A. Preliminary Injunction Standard
“The preliminary injunction ‘is one of
the most drastic tools in the arsenal of
judicial remedies.’” Grand River Enters. Six
Nations, Ltd. v. Pryor, No. 02–CV–5068,
2006 WL 1517603, at *6 (S.D.N.Y. May 31,
2006) (quoting Hanson Trust PLC v. SCM
Corp., 774 F.2d 47, 60 (2d Cir. 1985)). In
order to prevail on a motion for a
preliminary injunction, a party must
establish: “(1) irreparable harm in the
absence of the injunction and (2) either (a) a
likelihood of success on the merits or (b)
sufficiently serious questions going to the
merits to make them a fair ground for
litigation and a balance of hardships tipping
decidedly in the movant’s favor.”
MyWebGrocer, LLC v. Hometown Info.,
Inc., 375 F.3d 190, 192 (2d Cir. 2004)
(citation and internal quotation marks
omitted)). “To establish irreparable harm,
plaintiffs must demonstrate an injury that is
neither remote nor speculative, but actual
and imminent.” Tucker Anthony Realty
Corp. v. Schlesinger, 888 F.2d 969, 975 (2d

B. Procedural History
On September 13, 2013, plaintiffs filed
the complaint in this action, as well as a
motion for a preliminary injunction and
temporary restraining order. The Court
denied plaintiff’s motion for a temporary
restraining order for the reasons set forth on
3

Although the parties strenuously debate whether the
Tax Revolt Party is a “sham” independent body, the
Court need not decide this issue because, even
assuming that the Tax Revolt Party is not an arm of
the Republican Party for purposes of the motion,
plaintiffs have not demonstrated that the restrictions
imposed by Section 7-104 violate the Constitution.
Thus, this issue is not material to the Court’s analysis
and is, therefore, not addressed in this Memorandum
and Order.

4

Cir. 1989) (citation and internal quotation
marks omitted). A preliminary injunction is
not appropriate where monetary damages
will serve as adequate compensation. Id.
“The law in this circuit requires a showing
that irreparable damages are likely, not
merely possible.” Iron Mountain Info.
Mgmt., Inc. v. Taddeo, 455 F. Supp. 2d 124,
132 (E.D.N.Y. 2006).

In determining the constitutionality of a
state’s election law, a court “must weigh
‘the character and magnitude of the asserted
injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff
seeks to vindicate’ against ‘the precise
interests put forward by the State as
justifications for the burden imposed by its
rule,’ taking into consideration ‘the extent to
which those interests make it necessary to
burden the plaintiff’s rights.’” Burdick v.
Takushi, 504 U.S. 428, 434 (1992) (quoting
Anderson v. Celebrezze, 460 U.S. 780, 789
(1983)). “Under this standard, the
rigorousness of [the] inquiry . . . depends
upon the extent to which a challenged
regulation burdens First and Fourteenth
Amendment rights.” Id. “Regulations
imposing severe burdens on plaintiffs’ rights
must be narrowly tailored and advance a
compelling state interest. Lesser burdens,
however, trigger less exacting review, and a
State’s important regulatory interests will
usually be enough to justify reasonable,
nondiscriminatory restrictions.” Timmons,
520 U.S. at 358 (citations and internal
quotation marks omitted). Thus, this Court
must first determine the severity of the
restriction imposed by Section 7-104, and
then engage in a balancing test to determine
whether the “state’s expressed interests” are
“compelling enough to justify the burden on
plaintiffs’ rights.” Green Party of N.Y. v.
N.Y. Bd. of Elections, 389 F.3d 411, 421 (2d
Cir. 2004).

B. Merits4
“All election laws necessarily implicate
the First and Fourteenth Amendments.”
Dillon v. N.Y. Bd. of Elections, No. 05 CV
4766, 2005 WL 2847465, at *3 (E.D.N.Y.
Oct. 31, 2005); see also Prestiga v.
O’Connor, 178 F.3d 86, 87 (2d Cir. 1999)
(per curiam) (analyzing whether a New
York election law violates “the freedoms of
speech and association guaranteed by the
First and Fourteenth Amendments”).
Although “[t]he First Amendment protects
the right of citizens to associate and to form
political parties for the advancement of
common political goals and ideas, . . . it is []
clear that States may, and inevitably must,
enact reasonable regulations of parties,
elections, and ballots to reduce election- and
campaign-related disorder.” Timmons v.
Twin Cities Area New Party, 520 U.S. 351,
357-58 (1997).5
4

The Court assumes for purposes of this motion that
plaintiffs could establish irreparable harm in the
absence of an injunction or that the balance of
hardships tips decidedly in their favor. However, for
the reasons set forth below, the Court concludes that
plaintiffs have not demonstrated a likelihood of
success on the merits, or even sufficiently serious
questions going to the merits to make them a fair
ground for litigation.

Dillon, 2005 WL 2847465, at *5. In their motion
papers, the parties in this action analyzed the First
and Fourteenth Amendment claims under one
standard. At oral argument, plaintiffs’ counsel made
an Equal Protection argument that did not implicate
the First Amendment, and, for the reasons discussed
infra, that argument is without merit. Therefore, the
Court generally analyzes the First and Fourteenth
Amendment claims in this case under the single
standard articulated by the Supreme Court.

5

“In some settings, it is necessary to distinguish
between, on the one hand, First Amendment speech
and association claims and, on the other, Equal
Protection claims. But where, as here, the challenged
election laws place burdens only on minor political
parties, these separate claims tend to coalesce.”

5

1. Severity of the Burdens

to select its own candidates, “[t]hat a
particular individual may not appear on the
ballot as a particular party’s candidate does
not
severely
burden
that
party’s
associational rights.” Id. at 359. The Court
rejected the party’s argument that the ban
“burdens [that party’s] right to communicate
its choice of nominees on the ballot on terms
equal to those offered other parties, and the
right of the party’s supporters and other
voters to receive that information.” Id. at
362 (alteration, citation, and internal
quotation marks omitted). The Court stated:

Plaintiffs argue that Section 7-104 places
severe burdens on their First and Fourteenth
Amendment rights. First, the plaintiff
candidates argue that the law “impairs their
ability to associate with other Tax Revolt
Party candidates, and to be identified as
clearly as possible as a candidate of the Tax
Revolt Party.” (Mem. of L. in Supp. of Pls.’
Mot. for a TRO & Prelim. Inj. (“Pls.’
Mem.”) at 8.) Second, plaintiffs claim that it
interferes with the ability of voters to
exercise their right to free expression by
voting for a candidate “under the Tax Revolt
Party banner.” (Id.)6

It is true that Minnesota’s fusion ban
prevents the New Party from using
the ballot to communicate to the
public that it supports a particular
candidate who is already another
party’s candidate. In addition, the
ban shuts off one possible avenue a
party might use to send a message to
its preferred candidate because, with
fusion, a candidate who wins an
election on the basis of two parties’
votes will likely know more – if the
parties’ votes are counted separately
– about the particular wishes and
ideals of his constituency. We are
unpersuaded, however, by the party’s
contention that it has a right to use
the ballot itself to send a
particularized message, to its
candidate and to the voters, about the
nature of its support for the
candidate. Ballots serve primarily to
elect candidates, not as forums for
political expression.

Based on the Supreme Court’s decision
in Timmons, this Court finds that the
restrictions imposed on the plaintiff
candidates and the plaintiff voter are not
severe. In Timmons, the Supreme Court held
that Minnesota’s election laws, prohibiting a
candidate from appearing on the ballot as
the candidate of more than one party, did not
violate the First and Fourteenth Amendment.
520 U.S. at 354. According to the Supreme
Court, although a political party has a right
6

Plaintiffs appear to bring both a facial and an as
applied challenge to Section 7-104(4). Outside of the
context of challenges to restrictions on free speech,
“a plaintiff can only succeed in a facial challenge by
‘establish[ing] that no set of circumstances exists
under which the Act would be valid,’ i.e., that the law
is unconstitutional in all of its applications.” Wash.
State Grange v. Wash. State Republican Party, 552
U.S. 442, 449 (2008) (alteration in original) (quoting
United States v. Salerno, 481 U.S. 739, 745 (1987));
see also id. (applying the Salerno standard to a
challenge of an election law under the First
Amendment). In this case, although plaintiffs appear
to bring both a facial and an as-applied challenge to
the statute, plaintiffs have not claimed that there is no
set of circumstances that Section 7-104(4) is
constitutional. In any event, for the reasons discussed
infra, plaintiffs’ claim fails whether it is styled as a
facial challenge or an as-applied challenge.

Id. at 362-63.
Minnesota’s
law,
which
forbids
candidates from appearing multiple times on
the ballot, imposes a more severe restriction
than Section 7-104. In New York,
candidates that have been nominated by two
parties, as well as by the Tax Revolt Party,
6

Section 7-104, and both determined that the
law’s restrictions were not severe. In Dillon,
the plaintiff sued for the same reason as in
this case; he was nominated by two parties
and one independent body, and, thus, New
York Election Law restricted him to two
lines on the ballot. Judge Gleeson held that
the law placed a “minor burden” on
“independent bodies and their candidates.”
2005 WL 2847465, at *8. In Credico v. N.Y.
Board of Elections, No. 10 CV 4555, 2013
WL 3990784 (E.D.N.Y. Aug. 5, 2013)
(Report and Recommendation), a plaintiff
candidate was nominated by two
independent bodies (but no parties) and was
required by New York Election Law to only
appear on the ballot one time – next to the
name of only one independent body – with
the other independent body’s emblem
appearing above his name. In her Report and
Recommendation, Magistrate Judge Pollak
found that the “burdens imposed by Section
7–104(4)(e) are not severe . . . .” Id. at *20.

are not being denied access to the ballot, nor
are they restricted from appearing multiple
times as in Minnesota. Instead, the only
restriction relevant to this case that New
York imposes is that a candidate that has
been nominated by more than one political
party cannot also appear on the ballot on a
line for an independent body. However,
New York allows the name and emblem of
the independent body to appear next to the
candidate’s name.
Therefore, the law does not impose a
severe restriction on the right of the plaintiff
candidates to associate with other members
of the Tax Revolt Party because Section 7104 does not restrict their ability: (1) to be
nominated by the Tax Revolt Party; (2)
appear on the ballot as a member of the Tax
Revolt Party; or (3) fundraise or make
speeches with other members of the Tax
Revolt Party. Most importantly, the law does
not deny these candidates the ability to get
elected, as nearly all of the plaintiff
candidates will appear at least twice on the
ballot in the upcoming election. If denying
the ability of an individual to “appear on the
ballot as a particular party’s candidate does
not
severely
burden
that
party’s
associational rights,” id. at 359, then
requiring an individual nominated by two
parties to be designated as a candidate of an
independent body in a less prominent
fashion cannot severely burden that
candidate’s rights.

Accordingly, this Court concludes that
the burdens imposed by Section 7-104 on
the plaintiff candidates and the plaintiff
voter are not severe.7

7

Savinetti further argues that Section 7-104(4)’s
restrictions apply only to mechanical voting
machines, and do not apply to the electronically
scanned paper ballots that will be used in this
upcoming election. Instead, according to Savinetti,
Section 7-106 should apply, and the enforcement of
Section 7-104(4) to electronically scanned paper
ballots is unconstitutional. (Mem. of Savinetti at 2-4.)
Savinetti has submitted documentation demonstrating
that New York City has declined to apply Section 7104 to this upcoming election. (See Decl. of Louis G.
Savinetti Ex. A, Statement of the Commissioners of
Elections in the City of New York (“The
Commissioners of Elections in the City of New
York determined that with respect to the form of
Election Day Paper Ballots used with the poll site
optical scanning voting system, Section 7-106 of the
New York State Election Law . . . is the applicable
and controlling statutory provision for all such
ballots.”).) As an initial matter, the Court notes that

In addition, the rights of the plaintiff
voter are not being severely restricted. The
Supreme Court in Timmons rejected the
plaintiff voter’s argument that election laws
must allow voters to cast ballots for parties,
as well as candidates, stating that “[b]allots
serve primarily to elect candidates, not as
forums for political expression.” Id. at 363.
Two other courts in this district have
ruled on similar or identical challenges to
7

2. Balancing the State’s Interests with the
Burden on Plaintiffs’ Rights

have to include a line for the Tax Revolt
Party in every election in which it
nominated a candidate. (Intervenor State of
N.Y. Mem. of L. in Supp. of the
Constitutionality of N.Y. Elec. Law § 7-104
(“State Mem.”) at 13.) Biamonte elaborates
on this point, claiming that the “statute
serves to discourage major parties from
exploiting New York State’s fusion voting
scheme by creating various sham entities to
nominate the major party’s candidates as
candidates of newly invented independent
bodies . . . .” (Biamonte Opp’n at 13.)

Although the burdens imposed on
plaintiffs are not severe, this Court must still
balance the restrictions imposed by the law
against the State’s asserted interests. See
Crawford v. Marion Cnty. Election Bd., 553
U.S. 181, 191 (2008) (“However slight [a]
burden may appear, . . . it must be justified
by relevant and legitimate state interests
sufficiently weighty to justify the
limitation.” (citation and internal quotation
marks omitted)); Burdick, 504 U.S. at 434;
Price v. N.Y. Bd. of Elections, 540 F.3d 101,
108-09 (2d Cir. 2008) (reviewing Supreme
Court precedent and stating that a court is
not to apply “pure rational basis review” by
considering “every conceivable basis which
might support the challenged law,” but
instead, to “actually weigh the burdens
imposed on the plaintiff against the precise
interests put forward by the State, [taking]
into consideration the extent to which those
interests make it necessary to burden the
plaintiff’s rights” (citations and internal
quotation marks omitted)).

Under Timmons, New York’s asserted
interest in promoting ballot integrity and
reducing voter confusion is a legitimate
goal. See Timmons, 520 U.S. at 364 (“States
certainly have an interest in protecting the
integrity, fairness, and efficiency of their
ballots and election processes as means for
electing public officials.”). After weighing
the burden imposed on the plaintiff
candidates and the plaintiff voter against the
State’s proffered interest in ballot integrity,
the Court holds that Section 7-104 does not
violate plaintiffs’ First and Fourteenth
Amendment rights, either facially or as
applied to the facts of this case. Taken to its
logical extreme, plaintiffs’ position would
allow for a near-unlimited number of
independent parties and ballot lines, with
ballots in New York being filled with the
names of each major party candidate
repeated numerous times, each major party
trying to place its candidate on the ballot in
one more row than another major party’s
candidate. In an effort to maintain ballot
integrity, New York has placed a rational
restriction on the number of ballot lines a
candidate can appear on, and the Court finds
that the State’s interest outweighs the burden
placed on First and Fourteenth Amendment
rights.

The State asserts that it “has a legitimate
interest in having a clear and uncluttered
ballot that reduces the risk of voter
confusion,” and, thus, the State should not
whether Section 7-106 should apply to these ballots
is purely a question of state law. On that issue, there
is nothing in the plain language of the statutes that
requires the State Board and the County Board to
apply Section 7-106 in favor of Section 7-104 for
electronic ballots. Specifically, the Third Department
recently held that the requirements of Section 7-106
are not “inconsistent with or abrogate the ballot
requirements set forth in Election Law § 7-104.”
Guidarelli v. Brassard, 88 A.D. 3d 1147, 1149 (3d
Dep’t 2011). In any event, to the extent that plaintiffs
also argue that the application of Section 7-104 to
electronically scanned ballots is unconstitutional, the
Court disagrees. Plaintiff has failed to persuasively
argue how the application of Section 7-104 to
electronically scanned ballots, rather than Section 7106, is a constitutional violation.

At oral argument, in response to the
Court’s concern that plaintiffs’ position
8

would cause a complete undoing of a fair
and rational ballot, plaintiffs argued that the
State could restrict the number of times a
candidate could appear by increasing the
number of signatures required to place an
independent body’s candidate on the ballot.
In short, plaintiffs argue that New York has
made the wrong choice about how to
promote ballot integrity. The Court need not
make such a policy determination.
“[B]ecause the burdens [Section 7-104]
imposes on the [the plaintiff candidates’ and
the plaintiff voter’s] rights are not severe,
the State need not narrowly tailor the means
it chooses to promote ballot integrity.” Id. at
365. Instead, all that is required is that the
State’s expressed legitimate interest
outweighs the burdens imposed on
plaintiffs’ rights, and, for the reasons
discussed supra, the Court finds that it
does.8

election, the State does not justify the law on
the basis of space as it did in Dillon. Instead,
the State repeatedly argues that the
restriction is to prevent ballot confusion and
promote ballot integrity, regardless of the
potential space and cost concerns in this
election. In addition, even if this election
would not require the printing of larger or
double-sided ballots, the State should not be
required to modify its ballot requirements
every election depending on how many
independent bodies nominated candidates.
Accordingly, because the State’s
expressed interest in minimizing ballot
confusion and promoting ballot integrity
outweighs the burden placed on the plaintiff
candidates and the plaintiff voter, the Court
finds that the Nassau County Board of
Elections is not required to include a Tax
Revolt Party line on every ballot in which a
Tax Revolt Party candidate has been
nominated by two political parties.9

In Dillon, the State argued that limiting
the number of times a candidate could
appear was necessary due to restrictions on
the size of the ballot. See Dillon, 2005 WL
2847465, at *5 (stating that “defendants’
ballot space concerns are real” and holding
that state’s interest outweighs the burden of
the law). Here, plaintiffs argue that the
State’s expressed interest in limiting the
number of lines on the ballot is inapplicable
to this year’s election in Nassau County
because, even if the Tax Revolt Party
received a separate line on every ballot
throughout the County, there is enough
space to fit every party and independent
body on one-side of a ballot. However, the
Court does not rely on this justification in
upholding the law. Although the State has
tangentially argued that striking down this
law would lead to increased costs in this

Having found that the Tax Revolt Party
should not receive a line on every ballot, the
Court turns to one additional question:
9

Section 7-104(4)’s restrictions do not apply to all
elections in New York State. Instead, “the name of a
person who is nominated for the office of governor,
or state senator, or member of assembly, shall appear
on the ballot as many times as there are parties or
independent bodies nominating him or her . . . .”
N.Y. Elec. Law. § 7-104(5). At oral argument,
plaintiffs argued that the State has violated the Equal
Protection Clause by allowing a candidate’s name to
appear an unlimited number of times during elections
for state-wide office, while restricting it for local
office. However, the State has a legitimate reason for
this distinction: if an independent body receives
50,000 votes in a gubernatorial election, it becomes a
political party under New York law and gains all the
rights associated with that distinction. Because New
York could ban fusion politics entirely, it is not
unconstitutional for the State to place some
restrictions on fusion politics in some elections and
not in others.

8

The Court notes that plaintiffs’ suggested solution
would actually make it more difficult for independent
bodies to place candidates on the ballot, and, thus,
would impose a greater restriction on constitutional
rights than Section 7-104’s current requirements.

9

whether Section 7-104(4)(d) violates the
First and Fourteenth Amendments when it
forbids a candidate’s name from appearing
in the Tax Revolt Party row in situations
where the Tax Revolt Party will already be
receiving a row on the ballot. Under the
reading of the statute advanced by the State,
where the Tax Revolt Party will already
receive a line on the ballot (because, for
example, a candidate in one election has
only received the nomination of one political
party and the Tax Revolt Party), candidates
in other elections on that same ballot that are
nominated by the Tax Revolt Party and by
two parties will not have their name placed
in the Tax Revolt Party row. This will result
in a blank space in the Tax Revolt Party row
for that election, even though the Tax Revolt
Party has nominated an individual for that
office. At oral argument, counsel for all
parties appeared to agree that this situation
would affect at least one plaintiff candidate
(and possibly a second, depending on a
lawsuit challenging the signatures gathered
by plaintiff candidate Steven Rhoads).10

Dillon, 2005 WL 2847465, at *7 (stating in
dicta that leaving a blank space when an
independent body had nominated a
candidate for that office to be an
“anomalous” and “absurd” result and a
“remorseless reading of the statute”).
However, those courts did not address
the salient point raised by counsel for
Biamonte at oral argument. Biamonte’s
counsel stated that the County must enforce
this requirement even when it would lead to
a blank space because failure to enforce
these requirements would allow parties to
circumvent Section 7-104’s legitimate
requirements. In other words, if this
exception were allowed, a party and an
independent body could nominate an
individual to an office that the nominee is
unlikely to win solely to guarantee that
competitive nominees receive extra ballot
lines. The Court agrees. Allowing this
exception could potentially defeat the entire
purpose of Section 7-104 by encouraging
parties to nominate individuals for some
elections in order to promote candidates in
other elections. To avoid creating such an
incentive to circumvent the purpose of
Section 7-104, there is a rational explanation
for not creating an exception to the statute
for this type of scenario. Moreover,
plaintiffs have submitted no evidence that a
blank space on the Tax Revolt Party line on
the ballot for a particular office creates any
confusion when the emblem of the Tax
Revolt Party appears next to a candidate’s
name on a different line for the same office.
In any event, even assuming arguendo that
having a blank in the Tax Revolt Party row
might potentially create some additional
modicum of confusion, the State’s interest in
promoting ballot integrity and preventing
parties from circumventing Section 7-104’s
legitimate
requirements
significantly
outweighs the burden imposed by a blank
space in the Tax Revolt Party row.
Accordingly, Section 7-104 is constitutional

As to this scenario, plaintiff contends
that, if the State is genuinely interested in
reducing ballot confusion, having a blank
next to an independent body that validly
nominated an individual for elected office
actually promotes ballot confusion by
indicating to voters that the Tax Revolt
Party has not nominated someone for an
elected office when they in fact have. This
argument has been accepted by at least two
courts in finding Section 7-104 to be
unconstitutional. See Credico, 2013 WL
3990784, at *23; Sherwood v. N.Y. Bd. of
Elections, 847 N.Y.S.2d 428, 431 (N.Y.
Sup. Ct. Dutchess Cnty. 2007); see also
10

In a letter dated October 1, 2013, counsel for
Biamonte informs the Court that the nominating
petition for Steven Rhoads was ruled invalid by the
Supreme Court of the State of New York, County of
Nassau, on September 20, 2013. (See Letter, Oct. 1,
2013, ECF No. 30.)

10

IV. CONCLUSION

even where it results in the creation of a
blank space in a row in which an
independent body has nominated a candidate
for that office.

For the foregoing reasons, plaintiffs’
motion for a preliminary injunction and a
temporary restraining order is denied.

***
SO ORDERED.
The Court understands that it must
proceed with great caution when candidates
for elected office and voters argue that an
election law restricts their constitutional
rights, as “voting is of the most fundamental
significance under our constitutional
structure.” Burdick, 504 U.S. at 433 (citation
and internal quotation marks omitted).
However, “[c]ommon sense, as well as
constitutional law, compels the conclusion
that government must play an active role in
structuring elections; as a practical matter,
there must be a substantial regulation of
elections if they are to be fair and honest and
if some sort of order, rather than chaos, is to
accompany the democratic processes.” Id.
(citation and internal quotation marks
omitted). The burdens imposed by Section
7-104 are justifiable regulations with the
goal of promoting “fair and honest”
elections. The statute does not: (1) restrict a
candidate from appearing on the ballot; (2)
forbid a candidate from identifying with the
Tax Revolt Party on the ballot; or (3) deny
citizens the right to vote for any of the
plaintiff candidates. Having weighed the
non-severe burdens imposed on the plaintiff
candidates and the plaintiff voter against
New York’s legitimate goal of promoting
ballot integrity and reducing voter
confusion, the Court finds, based upon the
record before it, that Section 7-104 does not
violate plaintiffs’ First and Fourteenth
Amendment rights. Thus, plaintiffs’ motion
must fail because they have failed to
demonstrate a likelihood of success on the
merits or even sufficiently serious questions
going to the merits to make them a fair
ground for litigation.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: October 2, 2013
Central Islip, NY
***
Plaintiffs are represented by Peter A. Bee
and Deanna Darlene Panico, Bee Ready
Fishbein Hatter & Donovon LLP, 170 Old
Country Road, Suite 200, Mineola, NY
11501. The State Board is represented by
Paul Michael Collins, NY State Board of
Elections, 40 N Pearl St, Albany, NY 12207.
The County Board is represented by Andrew
Kenneth Preston and Alpa Sanghvi, Office
of the Nassau County Attorney, 1 West
Street, Mineola, NY 11501. Savinetti is
represented by Steven G. Leventhal,
Leventhal, Cursio, Mullaney & Sliney, LLP,
15 Remsen Avenue, Roslyn, NY 11576.
Biamonte is represented by Steven R.
Schlesinger and Jared Andrew Kasschau,
Jaspan, Schlesinger & Hoffman, LLP, 300
Garden City Plaza, 5th Floor, Garden City,
NY 11530. The State is represented by
Ralph Pernick, New York State Attorney
General, 200 Old County Road, Suite 240,
Mineola, NY 11501.

11