Silberberg et al v. Board of Elections of the State of New York et al
MEMORANDUM AND ORDER re: 5 ORDER TO SHOW CAUSE FOR DECLARATORY JUDGMENT, PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER. For the foregoing reasons, plaintiffs' motion for a preliminary injunction (Dkt. 5) is DENIED. SO ORDERED. (Signed by Judge P. Kevin Castel on 11/03/2016) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EVE SILBERBERG, JENNIFER REBECCA
WHITE, and MICHAEL EMPEROR,
BOARD OF ELECTIONS OF THE STATE OF
NEW YORK, CO-CHAIRS PETER S.
KOSINSKI and DOUGLAS A. KELLENER,
COMMISSIONERS ANDREW J. SPANO and
GREGORY P. PETERSON; BOARD OF
ELECTIONS OF THE CITY OF NEW YORK
PRESIDENT MARIA R. GUASTELLA,
SECRETARY FREDERIC M. UMANE, and
COMMISSIONERS JOSE MIGUEL ARAUJO,
JOHN FLATEAU, PH.D., LISA GREY,
MICHAEL MICHEL, MICHAEL A. RENDINO,
ALAN SCHULKIN, SIMON SHAMOUN,
ROSANNA VARGAS; NEW YORK COUNTY
DISTRICT ATTORNEY’S OFFICE, DISTRICT
ATTORNEY CYRUS VANCE; KINGS
COUNTY DISTRICT ATTORNEY’S OFFICE,
DISTRICT ATTORNEY ERIC GONZALEZ,
This is an action to enjoin the enforcement of a provision of New York Election
Law. According to the parties, the provision bars the taking of “ballot selfies,” the act of
photographing one’s image together with one’s marked ballot for the purpose of posting the
photograph on a social media site. Celebrities, politicians and government leaders, even Pope
Francis and the Dali Lama, have had selfies taken, posted, and viewed thousands or millions of
times. They are a potent form of speech presumptively entitled to First Amendment protections.
Plaintiffs’ important First Amendment rights must be reconciled with the
cherished right to vote. Courts have held that an individual’s right to speech related to a political
campaign must give way, for example, to a state-imposed restriction that prohibits campaigning
within 100 feet of an entrance to a polling place. Burson v. Freeman, 504 U.S. 191 (1992).
At issue is N.Y. Elec. Law § 17-130(10), which provides that “[a]ny person who .
. . [s]hows his ballot after it is prepared for voting, to any person so as to reveal the contents . . .
is guilty of a misdemeanor.” The provision, enacted 126 years ago, was part of 19th century
legislation popularly known as the Australian ballot reforms. The statute did not merely offer the
voter the option of voting in secrecy, but mandated it, and for good reason. 1 As Justice
Blackmun noted in Burson, the nation had been plagued with voter bribery prompted by ballots
that political parties “often printed with flamboyant colors, distinctive designs, and emblems so
that they could be recognized at a distance.” 504 U.S. at 200. The problem was not resolved by
standardized ballots because “the vote buyer could simply place a ballot in the hands of the
bribed voter and watch until he placed it in the polling box.” Id.
Because of the statute, those who would engage in ballot policing, for the purpose
of bribery or to enforce orthodoxy among members of a group, whether members of union,
employees of a company, or members of a religious group, have longed been deprived of an
essential tool for success. 2 The absence of recent evidence of this kind of voter bribery or
H. J. Bass, The Politics of Ballot Reform in New York State, 1888-1890, 42 J. New York History 253, 261 (1961)
(“N.Y. Ballot Reform”).
N.Y. Ballot Reform at 261. According to a press report, Tammany Hall bribe-givers came up with a creative
attempt to circumvent the newly-enacted prohibition. Under the plan, “the briber would say to the man with the vote
to sell, ‘we cannot tell whether you keep your promise and earn your money or not. To show us that you carry out
your contract you must take the Tammany ballot and erase the name of the candidate for Controller and write your
own name in its place. Vote for yourself for Controller, and then our election inspectors can tell that you have voted
the Tammany ticket, and after the election you will get your money’.” Desperate Tammany: A Plan to “Beat” the
New Law Nipped in the Bud, New York Times, Nov. 3, 1890, p. 5.
intimidation does not mean that the motivation to engage in such conduct no longer exists.
Rather, it is consistent with the continued effectiveness of the New York statute.
This action was commenced 13 days before the presidential election, even though
the statute has been on the books longer than anyone has been alive. Selfies and smartphone
cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the
protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as wellintentioned voters either took the perfectly posed selfie or struggled with their rarely-used
smartphone camera. This would not be in the public interest, a hurdle that all preliminary
injunctions must cross.
For reasons that will be further explained, the motion for a preliminary injunction
While neither party cites to recent prosecutions under the statute at issue, none of
the defendants have disclaimed an intent to enforce it on election day. Therefore, the threat of
prosecution, as it appears at the preliminary injunction stage, is “concrete and particularized”
rather than “conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 560 (1992)
(quotation marks omitted).
At the outset, the Court notes that the plaintiffs only have standing to challenge
section 17-130(10) as it applies to in-person voting and not to absentee ballots. Plaintiffs’
affidavits assert only that they each “intend to vote in the General Election to be held on
November 8, 2016.” (Emperor Aff. 1; Silberberg Aff. 1; White Aff. 1.) There is no suggestion
in any of the plaintiffs’ submissions that they intend to vote via absentee or military ballot. In
fact, the Complaint alleges that “[p]laintiffs are registered voters in New York who wish to take
ballot selfies when they vote on November 8, 2016.” (Compl. ¶ 21) (emphasis added).
Considering that ballots completed outside of a polling place, like absentee or military ballots,
are generally marked and filed prior to election day, the Complaint strongly implies that
plaintiffs intend to vote in person on November 8.
When confronted with this issue at oral argument, plaintiffs’ counsel offered that
his clients had standing to challenge section 17-130(10) as it applied to absentee ballots because
they could change their minds and decide not to vote in person, or could have some kind of
emergency and need to vote by absentee ballot. Plaintiffs’ counsel points out that they could
obtain ballots from the Board of Elections up until the day before the election. (Hearing Tr. 39);
https://www.elections.ny.gov/VotingAbsentee.html. But, the mere possibility that injury may
occur is not enough to confer standing, particularly where “the acts necessary to make the injury
happen are at least partly within the plaintiff's own control.” Lujan, 504 U.S. at 564 n.2; id.
(while an injury may be deemed speculative when it depends on actions of third parties beyond
the plaintiff’s control, Supreme Court case law “also mention[s] the plaintiff's failure to show
that he will soon expose himself to the injury.”); see also Clapper v. Amnesty Int’l USA, 133 S.
Ct. 1138, 1147 (2013) (“[W]e have repeatedly reiterated that threatened injury must be certainly
impending to constitute injury in fact, and that allegations of possible future injury are not
sufficient.”) (citations and quotation marks omitted). Photographs of absentee, overseas, or
military ballots present unique issues that have not been briefed by the parties. The Court
concludes that the plaintiffs do not have standing to assert claims based on the application of
section 17-130(10) to ballots completed outside of a polling site and accordingly does not
address that situation.
Preliminary Injunction Standard.
A preliminary injunction is an “extraordinary and drastic remedy, one that should
not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Grand
River Enter. Six Nations, Ltd. v. Pryor., 481 F.3d 60, 66 (2d Cir. 2007) (citation omitted).
Ordinarily, a plaintiff seeking a preliminary injunction must show “(a) irreparable harm and (b)
either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the
merits to make them a fair ground for litigation and a balance of hardships tipping decidedly
toward the party requesting the preliminary relief.” Christian Louboutin S.A. v. Yves Saint
Laurent Am. Holding, Inc., 696 F.3d 206, 215 (2d Cir. 2012). But “[w]hen, as here, the
preliminary injunction will affect government action taken in the public interest pursuant to a
statutory or regulatory scheme, it should be granted only if the moving party meets the more
rigorous likelihood-of-success standard.” Red Earth LLC v. United States, 657 F.3d 138, 143
(2d Cir. 2011) (quotation marks omitted). “Additionally, the moving party must show that a
preliminary injunction is in the public interest,” Oneida Nation of N.Y. v. Cuomo, 645 F.3d 154,
164 (2d Cir. 2011) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 19-20 (2008)), and
that “the balance of equities tips in his favor,” Winter, 555 U.S. at 20.
The state defendants contend that because the injunction “will provide the
[plaintiffs] with substantially all the relief sought and that relief cannot be undone even if the
defendant[s] prevail at a trial on the merits,” a heightened preliminary injunction standard
should apply. N.Y. ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015)
(quoting Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)).
Under this heightened standard, the Second Circuit requires the movant to show a “clear or
substantial likelihood of success on the merits and make a strong showing of irreparable harm in
addition to showing that the preliminary injunction is in the public interest.” Schneiderman, 787
F.3d at 650 (citations and quotation marks omitted).
Under either standard, the plaintiffs have failed to make the necessary showing
for a preliminary injunction.
“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
Specifically, “[w]here a plaintiff alleges injury from a rule or regulation that directly limits
speech, the irreparable nature of the harm may be presumed.” Bronx Household of Faith v. Bd.
of Educ. of City of N.Y., 331 F.3d 342, 349 (2d Cir. 2003). Here, plaintiffs allege that they will
suffer irreparable injury in the absence of a preliminary injunction because section 17-130(10)
directly prevents them from exercising their First Amendment rights by taking and posting
photographs of completed ballots. Therefore, irreparable harm is presumed. See Bronx
Household of Faith, 331 F.3d at 349-50.
Likelihood of Success on the Merits.
The First Amendment prohibits the government from making any law “abridging
the freedom of speech,” U.S. Const. amend. I, and “the First Amendment ‘has its fullest and
most urgent application’ to speech uttered during a campaign for political office.” Eu v. San
Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co.
v. Roy, 401 U.S. 265, 272 (1971)). The plaintiffs allege that section 17-130(10) violates this
constitutional guarantee by restricting New York voters’ rights to communicate by sharing
photographs of marked ballots through the internet and social media.
Content-based restrictions on speech in traditional public fora are generally
subject to strict scrutiny and are “presumptively unconstitutional . . . justified only if the
government proves that they are narrowly tailored to serve compelling state interests.” Reed v.
Town of Gilbert, 135 S. Ct. 2218, 2226 (2015); Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 45 (1983). However, when the state regulates speech in a nonpublic forum,
neither strict nor intermediate scrutiny apply. See Longo v. U.S. Postal Serv., 983 F.2d 9, 12 (2d
Cir. 1992); Marlin v. D.C. Bd. of Elections & Ethics, 236 F.3d 716, 719 (D.C. Cir. 2001).
Instead, the regulation need only be reasonable and viewpoint neutral, see Longo, 983 F.2d at 12,
and there is no requirement that the regulation be the most reasonable restriction available, id.
Plaintiffs argue that section 17-130(10) is a content-based restriction that should
be subjected to strict scrutiny. However, as conceded by plaintiffs’ counsel at oral argument,
polling places are generally not considered to be public fora (Hearing Tr. 12), and therefore any
regulation of speech at a polling place is evaluated only under a reasonableness standard.
Marlin, 236 F.3d at 719 (“[T]he interior of a polling place, is neither a traditional public forum
nor a government-designated one. . . . The only expressive activity involved is each voter's
communication of his own elective choice and this has long been carried out privately—by secret
ballot in a restricted space.”); PG Publ’g Co. v. Aichele, 705 F.3d 91, 100 n.10 (3d Cir. 2013)
(“We take this opportunity to make explicit that which has been implicit in our preceding
discussion: A polling place is a nonpublic forum.”); United Food & Commercial Workers Local
1099 v. City of Sidney, 364 F.3d 738, 749-50 (6th Cir. 2004) (“By opening up portions of school
and private property for use as polling places on election day, Ohio has not opened up a
nontraditional forum for public discourse.”); Cotz v. Mastroeni, 476 F. Supp. 2d 332, 364-65
(S.D.N.Y. 2007) (“Polling places clearly are non-public fora and voters present are subject to
various First Amendment restrictions, including those based on content.”). The Supreme Court’s
determination in Burson that the 100-foot perimeter of a polling place is a public forum does not
undermine this finding because, unlike in Burson, the restricted activity here is initiated within
the polling place rather than the environs of the polling site. See Burson, 504 U.S. at 196-98; see
also id. at 216 (Scalia, J., concurring) (disagreeing with the plurality and arguing that even “the
environs of a polling place, on election day, are simply not a traditional public forum”)
(quotation marks omitted).
Using current technology, posting a ballot selfie may be accomplished inside the
voting booth or at a different place and time. The affidavits of the plaintiffs do not assert at what
point in time they intend to post their ballot photographs, claiming only that they “want the
opportunity to photograph [their] filled out paper ballot[s] to post publically.” (White Aff. 2;
Silberberg Aff. 2; Emperor Aff. 2.) The Court does not need to decide when the act of uploading
would occur for a particular voter. It suffices that the statute reasonably addresses conduct that
could occur inside the polling booth, and in all cases begins in the voting booth. 3 On this point
the Court departs from the analysis of the district court in Rideout v. Gardner which found that
the nonpublic forum doctrine did not apply to New Hampshire’s ballot selfie law “because
disclosure [of the photograph] will generally take place far away from the polling place.” 123 F.
Supp. 3d 218, 230 (D.N.H. 2015), aff'd, __ F.3d __, 2016 WL 5403593 (1st Cir. Sept. 28, 2016).
No evidence has been presented regarding when or where photographs, necessarily taken at a
polling location, will be electronically uploaded to social media. Therefore, the Court
The present expedited posture of this preliminary injunction motion does not require the Court to consider whether
the challenged statute would likely pass muster under a strict scrutiny analysis applicable to a public forum.
respectfully declines to accept the premise that “the speech that the law restricts necessarily
occurs in forums that the government does not own or control.” Id. at 231.
The law at issue forbids voters from displaying completed ballots “so as to reveal
the contents” of that completed ballot, N.Y. Elec. Law § 17-130(10), but it does not prohibit
ballot exposure based on the viewpoint expressed in the ballot. Therefore, it is viewpoint neutral
and need only be “reasonable in light of the purpose which the forum at issue serves” in order to
pass constitutional muster. Perry, 460 U.S. at 46-49.
States have a recognized interest in preserving the integrity of the election
process. See Eu, 489 U.S. at 231; Burson, 504 U.S. at 199 (“a State has a compelling interest in
ensuring that an individual’s right to vote is not undermined by fraud in the election process”).
Section 17-130(10) was enacted in order to prevent vote buying, voter intimidation, and to
preserve the secrecy of the ballot.
As was detailed in Burson, early American elections were plagued by voter
intimidation and election fraud. 504 U.S. at 200-02. In order to combat rampant vote buying,
intimidation, and coercion, New York adopted a series of reforms in the late 1800s designed to
protect the integrity of elections, id. at 203-04, including a prohibition against showing a marked
ballot to another person so as to reveal the contents of that ballot. N.Y. L. 1890, Ch. 262 § 35.
These reforms, many of which focused on preserving the secrecy of the ballot, aimed to reduce
voter bribery by removing the ability to determine whether the bribery or intimidation had been
successful. See Burson, 504 U.S. at 202-03. The success of such reforms ultimately led to their
adoption across all 50 states. Id. at 206.
Defendants argue that section 17-130(10) continues to be “effective in avoiding
the bribery, coercion and intimidation that once were common and are still a serious risk” today,
by preventing voters from proving his or her vote to another. (State Defs.’ Mem. 4.) Indeed, the
ubiquity and ease of smartphone technology plausibly increases the risk of one form of voter
intimidation. Without the statute, employers, unions, and religious groups could encourage their
members to upload images of their marked ballots to a single location to prove their commitment
to the designated candidate. Those who declined to post a selfie could be swiftly outed and
subjected to retaliation. This not-so-subtle form of voter intimidation is squarely within the zone
of the statute’s intended reach. Vote monitoring by employers was one of the abuses that lead to
the Australian ballot movement. 4
Plaintiffs would have the Court follow the reasoning adopted by the First Circuit
in Rideout, __ F.3d __, 2016 WL 5403593, and by the district courts in Indiana Civil Liberties
Union Found., Inc. v. Indiana Sec'y of State, 15 cv 01356 (SEB) (DML), 2015 WL 12030168
(S.D. Ind. Oct. 19, 2015), and Rideout, 123 F. Supp. 3d 218. Those courts found that while vote
buying and other forms of coercion may have been prevalent when this law was originally
passed, “the historical record establishes that vote buying has not been a significant factor in
elections in more than 100 years.” Rideout, 123 F. Supp. 3d at 233. They therefore concluded
that the states’ claims that the challenged laws were necessary to further the states’ interest in
preventing vote buying and protecting the secrecy of the ballot were overly speculative.
However, the Supreme Court has already explained that where, as here, the
challenged law has been in effect for a long period of time, it is difficult for a state to provide
empirical evidence to show what would happen if the law was invalidated. See Burson, 504 U.S.
N.Y. Ballot Reform at 255.
- 10 -
at 208-09 (upholding a longstanding buffer zone around polling places). The absence of recent
evidence of the evils that the statute was intended to redress suggests the statute has been
Rideout and Indiana Civil Liberties Union Foundation, Inc. are distinguishable on
this basis. Both of these decisions concerned recently enacted laws that specifically targeted
ballot selfies rather than longstanding bans on displaying marked ballots. See Rideout, 2016 WL
5403593, at *1 (striking down an amendment to a New Hampshire statute that prohibited “taking
a digital image or photograph of [a] . . . marked ballot and distributing or sharing the image via
social media or by any other means”); Indiana Civil Liberties Union Found., Inc., 2015 WL
12030168, at *1 (enjoining enforcement of an Indiana statute which criminalized taking “a
digital image or photograph of the voter’s ballot while the voter is in a polling place” and
“distribut[ing] or shar[ing] the image . . . using social media or by any other means”). In
contrast, the ban on showing another person a completed ballot has been in place in New York
for 126 years and does not target any particular technology.
Courts in other ballot selfie cases have also found that laws that criminalize
exposing completed ballots are unconstitutional because they are overinclusive. See Rideout,
123 F. Supp. 3d at 234 (“the means the state has chosen to address the issue will, for the most
part, punish only the innocent while leaving actual participants in vote buying and voter coercion
schemes unscathed”); Indiana Civil Liberties Union Found., Inc., 2015 WL 12030168, at *6
(“Indiana’s new law seems far more likely to ensnare a large number of voters wishing to make a
political point or expressing their pride in voting or recording the moment for some innocuous
personal reason than it is to achieve the State’s goal of protecting voters from vote-buying
predators.”). In addition, these courts have found that the laws at issue fail the narrow tailoring
- 11 -
prong of the more stringent strict scrutiny analysis because the states could have criminalized
only the actions of voters who take and share pictures of their completed ballots as part of a votebuying scheme, rather than of anyone who shares a photo of a marked ballot. See, e.g., Indiana
Civil Liberties Union Found., Inc., 2015 WL 12030168, at *6.
As the Supreme Court pointed out in Williams-Yulee v. Florida Bar, “the First
Amendment does not confine a State to addressing evils [only] in their most acute form.” 135
S.Ct. 1656, 1671 (2015). Regulations of speech in a nonpublic forum need “not be the most
reasonable or the only reasonable limitation” available and, “[i]n contrast to a public forum, a
finding of strict incompatibility between the nature of the speech or the identity of the speaker
and the functioning of the nonpublic forum is not mandated.” Cornelius v. NAACP Legal Def.
& Educ. Fund, Inc., 473 U.S. 788, 808 (1985). New York’s decision to prohibit voters from
displaying their marked ballots was a reasonable means of ensuring the integrity of the election
and the secrecy of the ballot. Section 17-130(10) only prohibits showing another person one’s
completed ballot, and even then, only for the purpose of revealing the contents of that ballot.
Voters are free to express their pride in voting and even reveal who they voted for in any number
of other ways. This is more than enough to satisfy a reasonableness inquiry.
Public Interest and Balance of the Equities.
In addition to showing irreparable harm and a likelihood of success on the merits,
a plaintiff seeking a preliminary injunction must also show that the balance of equities tips in his
favor, and that granting the preliminary injunction would serve the public interest. Winter, 555
U.S. at 20. In the case at bar, the public interest would not be served by granting the immediate
relief plaintiffs seek. The statute at issue was enacted in 1890. Smartphone cameras have been
in heavy use since the iPhone launched in 2007, and earlier camera phone technology has existed
- 12 -
since the late 1990s. Yet the plaintiffs did not file this action until October 26, 2016, just thirteen
days before a presidential election.
As the Sixth Circuit pointed out in Crookston v. Johnson, “[w]hen an election is
‘imminent’ and when there is ‘inadequate time to resolve factual disputes’ and legal disputes,
courts will generally decline to grant an injunction to alter a State’s established election
procedures.” __ F.3d __, 2016 WL 6311623, at *2 (6th Cir. Oct. 28, 2016) (quoting Purcell v.
Gonzalez, 549 U.S. 1, 5-6 (2006) (per curiam)); Reynolds v. Sims, 377 U.S. 533, 585 (1964)
(“[i]n awarding or withholding immediate relief, a court is entitled to and should consider the
proximity of a forthcoming election and the mechanics and complexities of state election laws”
and should “endeavor to avoid a disruption of the election process which might result” from the
court’s decision); Conservative Party of N.Y. State v. N.Y. State Bd. of Elections, 10 cv 6923
(JSR), 2010 WL 4455867, at *2 (S.D.N.Y. Oct. 15, 2010) (denying preliminary injunction where
plaintiffs waited until six weeks before an election to file their action citing “the obvious
potential for confusion created by a change that would have to be made on such short notice and
without adequate training of personnel”). Regardless of the potential merits of the plaintiffs’
claim, granting a preliminary injunction at this late stage is a recipe for confusion and delays at
Plaintiffs endeavor to justify their delay by pointing to the “national spotlight on
the issue of ballot-selfies,” that they only recently became aware that a ballot selfie would be
illegal in New York, and that presidential candidate Donald Trump has “warned supporters about
‘election rigging’ leading many voters . . . to fear that they may be intimidated at the polls and
therefore should document their ballots through photography.” (Robinson Affirmation 2.)
While these considerations may have some relevance to defendants’ argument that the doctrine
- 13 -
of laches bars plaintiffs’ claims for injunctive relief and undermines their claim of irreparable
injury, that is beside the point in assessing whether an injunction is in the public interest. The
focus of the inquiry is not merely on the conduct of the parties but whether the injunction would
impair or impede some right or interest of non-parties. Here the interest of the general public in
the outcome of an election is profound.
Enjoining enforcement of section 17-130(10), just days before the general
election, would seriously disrupt the election process. Defendants have already trained more
than 60,000 poll workers, who will be deployed to 5,300 poll sites across the state. (Valentine
Decl. 4.) Instructions and signage have been created and packaged for distribution to each
individual polling site. (Id. at 4; Leible Decl. 2.) According to Todd D. Valentine, Co-Executive
Director of the New York State Board of Elections,
Logistically, a preliminary injunction impacting poll site operations
would be extraordinarily difficult to meaningfully implement one
week before an election. At this late hour, New York’s fifty-eight
boards of elections simply cannot redo all of their election day
handbooks and re-educate poll workers in any meaningful way.
Even if the re-education process was logistically possible . . . such
a change in the rules at this point would undoubtedly cause
confusion among voters and poll workers and distract election
administrators from the critical tasks that ensure the orderly
administration of the imminent election.
(Valentine Decl. 4-5.) In assessing a last-minute challenge to an analogous law in Michigan, the
Sixth Circuit explained, “[a]bsent the best of reasons, not remotely presented here, elections
officers should not have to disseminate a new, difficult-to-implement policy to 30,000 poll
workers in the week before a presidential election.” Crookston, __ F.3d __, 2016 WL 6311623,
at *2. Requiring Defendants to make substantial changes to election policies at the eleventh hour
is simply unreasonable, particularly given the fact that the plaintiffs could have brought their
challenge several months or years ago.
- 14 -
Not only would a preliminary injunction wreak havoc on election-day logistics,
real concerns exist about the delays and privacy intrusions that ballot selfies could cause. Both
the State and the City are expecting large numbers of voters for the general election on
November 8, 2016. (Leible Decl. 2; Valentine Decl. 3.) It is not unreasonable to expect that
permitting voters to take selfies with their completed ballots will add unnecessary delays to the
voting process. In addition, those taking ballot selfies inside a polling place may inadvertently
capture the ballots of other voters who did not wish to have their ballots publicized. (See
Valentine Decl. 3-4.) Enjoining enforcement of section 17-130(10) would also remove a
principal guarantee of election integrity that has been in use and successful for 126 years. In
fact, at oral argument, plaintiffs’ counsel stated that the requested injunction was not limited to
ballot selfies but would also allow voters to show their marked ballots to people inside the
polling place for the purpose of proving who they voted for (Hearing Tr. 19), reviving the precise
evil that lead to the adoption of section 17-130(10).
Before granting a preliminary injunction, “courts must balance the competing
claims of injury and must consider the effect on each party of the granting or withholding of the
requested relief. In exercising their sound discretion, courts of equity should pay particular
regard for the public consequences in employing the extraordinary remedy of injunction.”
Winter, 555 U.S. at 24 (citations and quotation marks omitted). The public’s interest in orderly
elections outweighs the plaintiffs’ interest in taking and posting ballot selfies. The defendants
have laid out in detail the potential consequences of a preliminary injunction and the ways in
which those consequences will negatively impact the experience of voters at the polls. (State
Defs.’ Mem. 9; Leible Decl. 3.) While enforcing the challenged law will deny plaintiffs the
opportunity to engage in the political speech of sharing photos of completed ballots, they are not
- 15 -
prevented from expressing the same political message through other powerful means.
Accordingly, the balance of equities tips in favor of the defendants.
New York City Board of Elections No-Photography Policy.
In response papers and declarations the City defendants cite a New York City
Board of Elections policy that has been in place for over 20 years prohibiting photography inside
polling sites. (City Defs.’ Mem. 11; Umane Decl. 1-3.) This policy is apparently publicized
through “no photography” signs posted at polling places. (Leible Decl. 2.) No claim is made
that this ban is reflected in any statute or regulation, and no mechanism for its enforcement has
been described by the defendants. Plaintiffs did not challenge this policy in their complaint
because they did not know that it existed (Hearing Tr. 8), but plaintiffs’ counsel orally moved to
enjoin this policy at the hearing, id. However, because the record on this photography ban is so
poorly developed, the Court declines to rule on the New York City Board of Elections ban on
For the foregoing reasons, plaintiffs’ motion for a preliminary injunction (Dkt. 1)
Dated: New York, New York
November 3, 2016
- 16 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?