Schulz et al v. State of New York et al

Filing 390

DECISION and ORDERED, that Plaintiffs Motion for reconsideration (Dkt. 385) is DENIED. Signed by Senior Judge Lawrence E. Kahn on October 13, 2011. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ROBERT L. SCHULZ and JOHN
LIGGETT,
Plaintiffs,
-against-

1:07-CV-0943 (LEK/DRH)

DOUGLAS KELLNER, Individually and
as Commissioner of the New York State
Board of Elections; EVELYN AQUILA,
Individually and as Commissioner of the
New York State Board of Elections,
HELENA MOSES DONAHUE,
Individually; JAMES A. WALSH,
as Commissioner of the New York State
Board of Elections; and GREGORY P.
PETERSON, as Commissioner of the
New York State Board of Elections,
Defendants.

DECISION and ORDER
I.

INTRODUCTION
Presently before the Court is Plaintiffs’ Motion for reconsideration (Dkt. No. 385) (“Motion”) of

this Court’s July 7, 2011 Memorandum-Decision and Order. Dkt. No. 383 (“July Order”). On August
26, 2011, Defendants have filed a Response in opposition to the Motion (Dkt. No. 387) (“Opposition”),
and Plaintiffs have filed their Reply (Dkt. No. 388) (“Reply”). For the reasons that follow, the Court
denies Plaintiffs’ Motion.
II.

BACKGROUND
The Court presumes familiarity with the facts and procedural history of this case, which

originated as a multi-state suit that included claims filed by over 150 pro se Plaintiffs from all fifty

states against their respective states, the states’ boards of elections, and individuals involved in those
states’ election processes, asserting that the vote counting process for the 2008 elections violated their
voting rights, contract rights, and constitutional rights. On June 4, 2008, the Court dismissed fifty-one
of the fifty-two actions, concluding that Plaintiffs lacked standing to sue defendants located outside
their state, resulting in only New York Plaintiffs and Defendants remaining as parties to this action.
Dkt. No. 303. On December 6, 2010, Defendants filed a Motion to dismiss for lack of subject matter
jurisdiction, which the Court granted in the July Order. For a complete history of this case, reference is
made to the July Order.
III.

DISCUSSION
A. Standard of Review
The Court applies a strict standard when reviewing a motion for reconsideration, and

“reconsideration will generally be denied unless the moving party can point to controlling decisions or
data that the court overlooked – matters, in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The
Second Circuit has held that there are only three grounds upon which a court may grant a motion for
reconsideration: (1) an intervening change in law; (2) the availability of evidence not previously
available; and (3) the need to correct a clear error of law or to prevent manifest injustice. Bath
Petroleum Storage, Inc. v. Sovas, 136 F. Supp. 2d 52, 56 (N.D.N.Y. 2001) (Kahn, J.); see also Virgin
Airways v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992); Doe v. New York City Dep’t of
Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983). Reconsideration is not appropriate “when the moving
party seeks solely to relitigate an issue already decided.” Shrader, 70 F.3d at 257.

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Plaintiffs here do not seek reconsideration on the grounds of either an intervening change in law
or availability of evidence not previously available. Accordingly, the Court will address only whether
the July Order should be reconsidered for clear error or manifest injustice. Additionally, the Court will
address only those arguments advanced by the Plaintiff that do not seek solely to relitigate matters
already decided by the Court.
B. Clear Error
Plaintiffs argue that the Court’s dismissal of the Amended Complaint for failure to satisfy
constitutional standing requirements is erroneous as a matter of law. Pls.’ Memorandum of law in
support of motion to reconsider (Dkt. No. 385-1) (“Pls.’ Mem.”) at 2. Plaintiffs argue that the Court
erred in finding that the Plaintiffs failed to establish an injury to a cognizable interest that is concrete
and particularized, as is required to establish standing. Plaintiffs claim that their Amended Complaint
alleged an injury to a “particular Right of their own, as distinguished from the public’s interest in the
administration of the law,” because the Amended Complaint claimed a protected interest in having their
own votes counted manually and publicly only at their polling stations, rather than at all polling stations
statewide. Id. at 3, 9. As a result, Plaintiffs argue, the Court erred in finding that Plaintiffs failed to
establish a concrete and particularized injury sufficient to establish injury-in-fact for the purposes of
standing.
However, the text of the Amended Complaint contradicts this argument. For example, the
Amended Complaint alleges that “Defendant’s voting procedures. . . will result in votes being cast only
for party favorites at a time when party insurgents are clamoring for a place on the ballot,” and
“Defendant’s voting procedures will deprive party insurgents of the right to have his or her voice heard.
. . .” Am. Compl. (Dkt. No. 21) ¶ 249, 250 (emphasis added). Elsewhere, Plaintiffs state, “On election
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day in jurisdictions with every state. . . the voters are prevented from accessing the ballots for the
purpose of counting. . . . Unfortunately for the Plaintiffs, and the balance of America, the outcome of
the upcoming series of primary elections poses a very real threat affecting the choices of the American
voters in 2008. . . .” Id. ¶ 260 (emphasis added). Plaintiffs also refer to the importance of manually
counting votes that “have not been out of the public view so conducted at each polling place,” and
claim that their proposed system provides assurance “that all voters have cast an effective vote.” Id. ¶
263 (emphasis added). Finally, Plaintiffs explicitly requested that the Court permanently enjoin
Defendants from “conducting any caucus, primary, special, general or any other election... that does not
rely exclusively on paper ballots, hand marked and hand counted. . . .” Id. ¶ 268. The language shows
that the injury of which Plaintiffs complain is abstract and widely shared by all voters in the state of
New York. Plaintiffs have therefore failed to identify any clear error of law in the July Order, and
reconsideration on the basis of clear error is unwarranted.
C. Manifest Injustice
Plaintiffs also argue that their claims are not moot, and ask the Court to reconsider its finding to
the contrary in order to prevent manifest injustice. However, Plaintiffs offer no new evidence in
support of this argument. As a motion for reconsideration is not an opportunity to relitigate matters that
have already been decided upon, the Court declines to grant Plaintiffs’ Motion on the grounds of
manifest injustice. See Shrader, 70 F.3d at 257.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiffs’ Motion for reconsideration (Dkt. 385) is DENIED; and it is further
ORDERED, that the Clerk shall serve a copy of this Order on all parties.
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IT IS SO ORDERED.

DATED:

October 13, 2011
Albany, New York

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