Yang et al v. New York State Board of Elections

Filing 43

OPINION AND ORDER: For the reasons stated in this opinion, the preliminary injunction is GRANTED to the extent that Kellner, Spano, Kosinski, Valentine, and Brehm, in their official capacities, are ORDERED to reinstate to the Democratic primary ballot those presidential and delegate candidates who were duly qualified as of April 26, 2020, and to hold the primary election on June 23, 2020. The Clerk of Court is directed to terminate the motions at ECF Nos. 12, 30, and 31. SO ORDERED. (Signed by Judge Analisa Torres on 5/5/2020) (jca)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANDREW YANG, JONATHAN HERZOG,
HELLEN SUH, BRIAN VOGEL, SHLOMO
SMALL, ALISON HWANG, KRISTEN
MEDEIROS, and DR. ROGER GREEN,
individually and on behalf of all others similarly
situated,

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 5/5/2020

Plaintiffs,
-against20 Civ. 3325 (AT)
DOUGLAS A. KELLNER, Co-Chair and
Commissioner, ANDREW SPANO, Commissioner,
PETER S. KOSINSKI, Co-Chair and Commissioner,
TODD D. VALENTINE, Co-Executive Director, and
ROBERT A. BREHM, Co-Executive Director,
individually and in their official capacities at the New
York State Board of Elections, and THE NEW YORK
STATE BOARD OF ELECTIONS,

OPINION
AND ORDER

Defendants.
GEORGE ALBRO, PENNY MINTZ, JAY
BELLANCA, TRACI STRICKLAND, EMILY
ADAMS, NESTOR MEDINA, SIMRAN
NANDA, KATHRYN LEVY, JOSHUA
SAUBERMAN, CARI GARDNER, STEPHEN
CARPINETA, NANCY DEDELVA, and TING
BARROW,
Plaintiff-Intervenors,
-againstDOUGLAS A. KELLNER and ANDREW
SPANO, as Commissioners of the New York
State Board of Elections, and the NEW YORK
STATE BOARD OF ELECTIONS,
Defendants.
ANALISA TORRES, District Judge:
In this action, Plaintiffs, Andrew Yang, a Democratic Party presidential candidate who
has suspended his campaign, and Jonathan Herzog, Hellen Suh, Brian Vogel, Shlomo Small,

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Alison Hwang, Kristen Medeiros, and Roger Green, Yang’s pledged delegates, allege, among
other claims, that their rights under the First and Fourteenth Amendments to the United States
Constitution were violated when, on April 27, 2020, their names were removed from the New
York Democratic presidential primary ballot and the primary was canceled. See Compl., ECF
No. 20.
Plaintiffs move, pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a
temporary restraining order and preliminary injunction enjoining Defendants, Douglas A.
Kellner, Andrew Spano, Peter S. Kosinski, Todd D. Valentine, and Robert A. Brehm, in their
individual and official capacities (the “BOE Officials”), and the New York State Board of
Elections (the “BOE”), from “cancelling the June 23, 2020 Democratic [p]residential [p]rimary,”
ECF No. 1-11, and directing the “reinstat[ement]” of “all duly qualified candidates . . . [to] the
ballot.” Compl. at 30; see also ECF No. 1-11. Plaintiff-Intervenors, George Albro, Penny
Mintz, Jay Bellanca, Traci Strickland, Emily Adams, Nestor Medina, Simran Nanda, Kathryn
Levy, Joshua Sauberman, Cari Gardner, Stephen Carpineta, Nancy de Delva, and Ting Barrow,
join in this request for emergency relief. ECF No. 30; see Intervenor Compl., ECF No. 29-2.
BACKGROUND
I.

The New York Democratic Presidential Primary
The 2020 Democratic National Convention (the “Convention”) is scheduled to be held in

Milwaukee, Wisconsin, from August 17 to 20, having been postponed from July 13 to 16 due to
the COVID-19 pandemic. Compl. ¶ 58. Under the New York Democratic Party’s delegate
selection rules, a candidate for the presidency may send delegates to the Convention if he or she
receives at least 15 percent of the vote in a congressional district, and 15 percent of the vote
statewide. See 2020 New York State Delegate Selection Plan (the “Delegate Selection Plan”)

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§ III(A)(3) (“One Hundred Eighty-four (184) pledged delegates shall be elected from
[c]ongressional [d]istricts in the [p]rimary.”), ECF No. 27-6; id. § II(A)(3) (“[A]ll pledged
delegates and alternates shall be allocated among the [p]residential [c]andidates in proportion to
the votes such [c]andidates receive in the [p]rimary, except that a [p]residential [c]andidate who
fails to receive the 15% threshold percentage of the vote in the applicable unit of representation
shall not receive any delegates or alternates from that unit, and further provided that a
[p]residential [c]andidate who fails to receive the 15% threshold percentage of the vote statewide
shall not receive any delegates or alternates.”).
Although the “basic purpose of the [C]onvention is to select the [p]residential nominee,”
the Convention “also serves to determine the party’s principles and goals through the adoption of
a platform.” 17 A.L.R. 7th Art. 7 § 2 (2016); see also Compl. ¶ 58; Intervenor Compl. ¶ 37.
Delegates play a pivotal role in this process by casting “votes on platform issues and issues of
party governance.” Rockefeller v. Powers (Rockefeller I), 74 F.3d 1367, 1380 (2d Cir. 1995); see
also Democratic National Convention 2020, https://www.demconvention.com (“In addition to
fulfilling their nominating duties, Democratic Party members from across the country will also
work together during the convention to adopt the official 2020 Democratic Party platform.”);
Call for the 2020 Democratic National Convention Art. VII(B)(1), Democratic National
Committee (Aug. 25, 2018), https://democrats.org/wp-content/uploads/sites/2/2019/07/2020Call-for-Convention-with-Attachments-2.26.19.pdf (“The members of the standing committees
[on platform, rules, and credentials] allocated to the states and territories shall be elected by each
state’s [n]ational Convention delegates . . . .”).1

1

Most delegates—approximately 85 percent of them—at the Convention are “pledged” delegates, who are “required
to vote for a particular candidate at the Convention based on the result of their state’s (or territory’s) primary
election, caucus, or convention,” as opposed to “unpledged” delegates, otherwise known as “superdelegates,” “who
may vote for the candidate of their choice.” Kurzon v. Democratic Nat’l Comm., 197 F. Supp. 3d 638, 641

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As part of the state primary process, the BOE received petitions that qualified eleven
presidential candidates, and several slates of delegates pledged to those candidates, to be on the
New York Democratic presidential primary ballot, which was originally set for April 28, 2020.
April 27 Resolution, ECF No. 27-2; Brehm Decl. ¶¶ 2–3, ECF No. 27. Over the course of
February, March, and April, however, ten out of the eleven presidential contenders “publicly
announced that they are no longer seeking the nomination for the office of president of the
United States, or that they are terminating or suspending their campaign.” April 27 Resolution at
1; Brehm Decl. ¶ 7.
Meanwhile, on March 28, 2020, due to concerns over the safety of conducting the
election during the COVID-19 pandemic, New York Governor Andrew M. Cuomo issued an
executive order directing that “[a]ny presidential primary to be held on April 28, 2020 . . . be
postponed and rescheduled for June 23, 2020.” N.Y. Executive Order 202.12.
On April 3, 2020, Governor Cuomo signed into law Senate Bill S7506B, an omnibus
appropriations bill that contained an amendment to New York Election Law § 2-122-a, which
concerns procedures for holding elections for delegates “to a national convention or national
party conference.” N.Y. Election Law § 2-122-a; see S7506B/A9506, 2019–2020 Legislative
Session (N.Y. 2020). Specifically, New York Election Law § 2-122-a was amended to authorize
the BOE to “omit . . . from the ballot” any primary candidate for office of the President of the
United States when any of three circumstances comes to pass: first, if the candidate “publicly
announces that they are no longer seeking the nomination for [that] office”; second, “if the
candidate announces that they are terminating or suspending their campaign”; or third, “if the

(S.D.N.Y. 2016) (noting that superdelegates comprise party leadership, including “members of the Democratic
National Committee, Democratic members of Congress, and Democratic state governors”). The delegate candidates
in this case would serve as pledged delegates if elected.

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candidate sends a letter to the state board of elections indicating they no longer wish to appear on
the ballot.” N.Y. Election Law § 2-122-a(13) (emphasis added); S7506B/A9506 Part TT § 1.
The statute further provides that “for any candidate of a major political party, such determination
shall be solely made by the commissioners of the state board of elections who have been
appointed on the recommendation of such political party or the legislative leaders of such
political party.” Id.
On April 27, 2020, BOE Democratic Party Commissioners Kellner and Spano (the
“Democratic Commissioners”) adopted a resolution (the “April 27 Resolution”) invoking their
authority under the recently enacted § 2-122-a(13) to remove ten Democratic presidential
candidates who had qualified to be on the ballot, but who had suspended their presidential
campaigns or announced they were no longer seeking the nomination. April 27 Resolution.
According to the resolution, “pursuant to the public declarations made by the relevant
presidential candidates, the following candidates are no longer eligible as a designated
Democratic [p]rimary candidate, and their names shall be omitted from the Democratic [p]rimary
ballot: Michael Bennet, Michael Bloomberg, Pete Buttigieg, Tulsi Gabbard, Amy Klobuchar,
Deval Patrick, Bernie Sanders, Tom Steyer, Elizabeth Warren, [and] Andrew Yang.” April 27
Resolution. The only remaining candidate was Joe Biden. BOE Notice, ECF No. 27-5 at 1.
As a result, the candidates for delegates who were committed to those ten presidential
contenders were also removed from the ballot, because New York Election Law § 2-122-a(14)
provides that “candidates for delegates and/or alternate delegates who are pledged to candidates
of the office of president of the United States who have been omitted pursuant to subdivision
thirteen of this section shall also be omitted.” N.Y. Election Law § 2-122-a(14); see April 27
Resolution at 1.

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New York Election Law § 6-160(2), which applies to all party primary elections in New
York, states that when there is only one candidate on the ballot, that candidate “shall be deemed
nominated or elected . . . without balloting.” N.Y. Election Law § 6-160(2). Accordingly, on
April 27, 2020, with all but one candidate removed from the Democratic presidential primary
ballot, the election was canceled by operation of law. The BOE’s co-executive directors, Robert
A. Brehm and Todd D. Valentine, issued an amended certification for the Democratic
presidential primary, listing Joe Biden as the sole remaining qualified candidate, and announced
that there was “no longer a need for the holding of a Democratic [p]residential [p]rimary election
on June 23, 2020.” BOE Notice; see also Amended Certification, ECF No. 27-5 at 2; April 27,
2020 New York State Board of Elections Meeting at 10:44–11:15, New York State Board of
Elections (Apr. 28, 2020), https://youtu.be/L7YPeRLw1_Q.
II.

The Parties
Plaintiffs and Plaintiff-Intervenors are all registered New York State Democratic Party

voters. Yang Aff. ¶ 2, ECF No. 20-1; Herzog Aff. ¶ 2, ECF No. 20-3; Suh Aff. ¶ 2, ECF No. 204; Vogel Aff. ¶ 2, ECF No. 20-5; Small Aff. ¶ 2, ECF No. 20-6; Hwang Aff. ¶ 2, ECF No. 20-7;
Medeiros Aff. ¶ 2, ECF No. 20-8; Green Aff. ¶ 2, ECF No. 20-9; Intervenor Compl. ¶¶ 3, 5–14.
Yang was also a Democratic candidate for the presidency. Yang Aff. ¶ 3. He announced
that he was suspending his campaign on February 11, 2020. Yang Aff. ¶ 5; Brehm Decl. ¶ 8.
Yang states that, by suspending and not terminating his campaign, he “believed and expected
that [his] name would nonetheless stay on the ballot in states with upcoming elections,” and that
it was his “intention and hope that voters would express their preferences by voting in the
upcoming elections.” Yang Aff. ¶¶ 5–6; Compl. ¶¶ 69, 83.

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Herzog, Suh, Vogel, Small, Hwang, Medeiros, and Green (the “Yang Delegates”),
collected petition signatures for themselves and Yang in order to appear on the New York
Democratic presidential primary ballot as Convention delegate candidates pledged to Yang.
Herzog Aff. ¶¶ 4–5; Suh Aff. ¶¶ 4–5; Vogel Aff. ¶¶ 4–5; Small Aff. ¶¶ 4–5; Hwang Aff. ¶¶ 4–5;
Medeiros Aff. ¶¶ 4–5; Green Aff. ¶¶ 4–5. They state that they still wish to be elected as
delegates. Id.
Albro, Mintz, Bellanca, Strickland, Adams, Medina, Nanda, Levy, Sauberman, Gardner,
Carpineta, de Delva, and Barrow (the “Sanders Delegates,” who, together with the Yang
Delegates, are referred to as “Delegate Plaintiffs”), qualified for, and were placed on, the New
York Democratic presidential primary ballot as Convention delegate candidates pledged to
Sanders. Intervenor Compl. ¶¶ 3, 5–14. They also still wish to be elected as delegates. Id.
III.

Procedural History
On April 28, 2020, Plaintiffs filed their complaint and request for emergency relief

pursuant to Rule 65 of the Federal Rules of Civil Procedure. ECF No. 1. On May 1, 2020,
Plaintiffs filed, with leave of the Court, a second amended complaint to name additional
defendants. See Compl. On May 3, 2020, the Court granted Plaintiff-Intervenors’ motion to
intervene. ECF No. 38. On May 4, 2020, the Court held a telephonic hearing on the request for
a preliminary injunction.2

2

Because Plaintiffs’ and Plaintiff-Intervenors’ entitlement to relief is clear from the undisputed record, the Court
need not hold an evidentiary hearing before granting a preliminary injunction. See Charette v. Town of Oyster Bay,
159 F.3d 749, 755 (2d Cir. 1998) (“An evidentiary hearing is not required [to decide a motion for a preliminary
injunction] when the relevant facts either are not in dispute or have been clearly demonstrated at prior stages of the
case, or when the disputed facts are amenable to complete resolution on a paper record.” (citation omitted));
Maryland Cas. Co. v. Realty Advisory Bd. on Labor Relations, 107 F.3d 979, 984 (2d Cir. 1997) (stating that “there
is no hard and fast rule in this circuit that oral testimony must be taken on a motion for a preliminary injunction or
that the court can in no circumstances dispose of the motion on the papers before it,” and that “[g]enerally, the
district court is not required to conduct an evidentiary hearing on a motion for a preliminary injunction when
essential facts are not in dispute” (internal quotation marks and citations omitted)).

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DISCUSSION
I.

Standing
“Article III, § 2, of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and

‘Controversies,’ which restricts the authority of federal courts to resolving the legal rights of
litigants in actual controversies.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013)
(internal quotation marks and citation omitted). The “Constitution requires that anyone seeking
to invoke federal jurisdiction . . . have standing to do so.” Crist v. Comm’n on Presidential
Debates, 262 F.3d 193, 194 (2d Cir. 2001); see Genesis Healthcare Corp., 569 U.S. at 71 (“In
order to invoke federal-court jurisdiction, a plaintiff must demonstrate that he possesses a legally
cognizable interest, or personal stake, in the outcome of the action.” (internal quotation marks
and citation omitted)). “To satisfy Article III, a party must demonstrate an ‘injury in fact’; a
causal connection between the injury and the conduct of which the party complains; and that it is
‘likely’ a favorable decision will provide redress.” Kowalski v. Tesmer, 543 U.S. 125, 129 n.2
(2004) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). Defendants argue
that “it is unlikely that any of the [P]laintiffs will be able to demonstrate that they have standing
to bring suit.” Def. Opp. at 12, ECF No. 26. The Court disagrees.
First, Plaintiffs have suffered an “injury in fact.” Kowalski, 543 U.S. at 129 n.2 (internal
quotation marks and citation omitted). As of March 4, 2020, eleven presidential contenders,
including Yang, and delegates pledged to Yang, Sanders, and others, had qualified to be on the
Democratic presidential primary ballot. See Sample Ballot, ECF No. 27-7; Brehm Decl. ¶ 3. On
April 27, 2020, the Democratic Commissioners removed Yang and other presidential candidates
from the ballot, and, pursuant to New York Election Law § 6-160(2), the BOE announced that
the race was canceled. See Compl. ¶ 4. These actions denied Plaintiffs and Plaintiff-Intervenors

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the opportunity to compete for elective office—for Yang, as a presidential candidate, the chance
to receive votes that would allow his supporters to go to the Convention, and for Delegate
Plaintiffs, the chance to be elected as delegates based on the votes their candidate receives. It
also deprived Plaintiffs and Plaintiff-Intervenors of their opportunity as voters to cast a ballot for
the individual who represents their political views. Id. ¶ 89. Yang’s suspension of his campaign
does not divest him of standing to challenge his erasure as a primary contender. Yang suspended
his campaign with the understanding that his name would remain on the ballot, see Yang Aff.
¶¶ 5–6, which would allow him to accumulate delegates. Eliminating him as a candidate
forecloses a significant means of exercising “influence at the party’s [C]onvention.” Compl.
¶ 70. It does the same for his pledged delegates. Removing Plaintiffs and Plaintiff-Intervenors
from the ballot and canceling the presidential primary denied them the chance to run, and denied
voters the right to cast ballots for their candidate and their political beliefs—all of which amount
to “actual,” “concrete, and particularized” injuries. Lujan, 504 U.S. at 560.
Second, “a causal connection” exists “between the injury and the conduct complained
of.” Id. (internal quotation mark, alteration, and citation omitted). It is undisputed that the injury
here “is fairly traceable to the” actions of the Democratic Commissioners, id. (internal quotation
marks, alteration, and citation omitted), because the April 27 Resolution removing the ten
presidential candidates and Delegate Plaintiffs from the ballot triggered the cancellation of the
primary by operation of law.
Third, the requirement that it be “likely that the injury [will] be redressed by a favorable
decision” is also met here. Id. at 561 (internal quotation marks, alteration, and citation omitted).
Plaintiffs’ and Plaintiff-Intervenors’ injuries would be redressed by the requested relief, which
would require the BOE Officials to (1) place Yang and Delegate Plaintiffs back on the ballot,

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and (2) hold the presidential primary. The Court concludes, therefore, that Plaintiffs and
Plaintiff-Intervenors have standing to bring this case. See Coal. for a Progressive New York v.
Colon, 722 F. Supp. 990, 993 (S.D.N.Y. 1989) (“[A] candidate for Democratic Party nomination
in the race for the 11th District Council seat, and . . . his campaign manager [who is also] a
registered voter seeking to cast a primary ballot supporting [candidate’s] nomination, both
possess the requisite standing to challenge [candidate’s] removal from the primary ballot.”).
Defendants argue that Delegate Plaintiffs lack standing because “the Democratic
[p]residential [p]rimary election would not actually have determined whether they would, in fact,
serve as delegates” to the Convention. Def. Opp. at 12. It is true that the primary election does
not, by itself, determine who will serve as delegates to the Convention. But the primary is a key
component of the delegate selection process. Under current rules, a pledged delegate must be on
the primary ballot in order to be eligible to compete for a slot at the Convention. See Delegate
Selection Plan § II(A)(3) (“[A]ll pledged delegates and alternates shall be allocated among the
[p]residential [c]andidates in proportion to the votes such [c]andidates receive in the
[p]rimary.”).
New York’s Democratic presidential primary is a head-to-head contest between
candidates seeking the nomination of the Democratic Party. Brehm Decl. ¶ 32. In other words,
voters are presented with a ballot that asks them to select their preferred candidate for the
presidential nomination. But those votes do not lead directly to the selection of a nominee. Id.
Instead, the primary votes are tallied and provided to the New York Democratic Party; then,
through a complicated mathematical formula, the state Party determines how many delegates
committed to each candidate should be sent to the Convention. Id. In essence, if a given

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presidential candidate receives more votes, then more delegates pledged to that candidate are
entitled to participate in the Convention. Id. ¶ 33.3
The process of selecting individual delegates is a complicated one, involving Democratic
Party rules and priorities, and it is difficult to know in advance if any individual delegate
candidate will make it to the Convention. Id. ¶ 35. Defendants are correct, therefore, that the
Democratic presidential primary election would not have determined whether any of Delegate
Plaintiffs would, in fact, serve as Convention delegates. Def. Opp. at 12. But under current
rules, the only way for any New York delegate to participate in the Convention is if their
presidential candidate receives a qualifying vote share. So holding the primary would provide
Delegate Plaintiffs with an opportunity—indeed, the only opportunity—to compete for the
chance to become Convention delegates. That Delegate Plaintiffs’ rights are tied to those of
Yang and other presidential candidates does not diminish Delegate Plaintiffs’ importance, or
their standing to sue when their ability to run—which rises and falls on their presidential
candidates’ viability—is threatened.
Accordingly, Plaintiffs and Plaintiff-Intervenors have established that they have standing
to bring this suit.
II.

Sovereign Immunity
Under the United States Constitution, states “retain the dignity, though not the full

authority, of sovereignty.” Alden v. Maine, 527 U.S. 706, 715 (1999). For that reason, the
Eleventh Amendment to the Constitution, incorporating the longstanding doctrine of “sovereign
immunity,” bars federal lawsuits against a state unless (1) the state unambiguously consents to be

3

It is also possible—though not necessary—for delegates to appear on the ballot in their own name. Brehm Decl.
¶ 33. But the votes that the delegates receive for themselves determine only the “order” of delegates within a
presidential candidate’s slate. Id. ¶ 35. The number of a candidate’s committed delegates that are sent to the
Convention is determined only by the votes for the presidential candidate. Id. ¶ 33.

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sued, or (2) Congress has enacted legislation abrogating the state’s Eleventh Amendment
immunity. See, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54–55 (1996). This
immunity extends to “arms of the state, such as state agencies.” Walker v. City of Waterbury,
253 F. App’x 58, 60 (2d Cir. 2007) (internal quotation marks and citations omitted). Under the
rule first established by the Supreme Court in Ex Parte Young, 209 U.S. 123 (1908), that bar
does not apply to “suits against state officers acting in their official capacities that seek
prospective injunctive relief to prevent a continuing violation of federal law.” Kelly v. New York
Civil Serv. Comm’n, 632 F. App’x 17, 18 (2d Cir. 2016). Ex Parte Young does not allow a
federal court, however, “to issue an injunction for a violation of state law.” Id. (citing Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984)).
Plaintiffs and Plaintiff-Intervenors bring claims against the BOE itself and BOE Officials
in both their official and individual capacities. See generally Compl.; Intervenor Compl.
Because New York has not consented to be sued, and because Congress has not enacted
legislation abrogating New York’s Eleventh Amendment immunity with regard to Plaintiffs’ and
Plaintiff-Intervenors’ causes of action, the claims against the BOE as a state agency are barred by
sovereign immunity. Moreover, the Ex Parte Young doctrine does not permit a federal court to
issue an injunction for a violation of state law. See Kelly, 632 F. App’x at 18.
Accordingly, for the purposes of resolving the request for a preliminary injunction, the
Court addresses only prospective injunctive relief against the BOE Officials in their official
capacity brought under the U.S. Constitution.

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III.

Preliminary Injunction
A. Legal Standard
A preliminary injunction sought against government action taken pursuant to a statute or

regulatory scheme requires that “the moving party . . . demonstrate (1) irreparable harm absent
injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in
favor of granting the injunction.” Friends of the E. Hampton Airport, Inc. v. Town of E.
Hampton, 841 F.3d 133, 143 (2d Cir. 2016). Moreover, the movant must show that “the balance
of equities tips in his [or her] favor.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). “A showing of irreparable harm is the single most important prerequisite for the
issuance of a preliminary injunction.” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d
110, 118 (2d Cir. 2009) (internal quotation marks and citation omitted).
Where a moving party seeks a mandatory preliminary injunction requiring a change to
the status quo, as opposed to a prohibitory preliminary injunction that merely maintains the
status quo, the district court “may enter a mandatory preliminary injunction against the
government only if it determines that, in addition to demonstrating irreparable harm, the moving
party has shown a ‘clear’ or ‘substantial’ likelihood of success on the merits.” Thomas v. New
York City Bd. of Elections, 898 F. Supp. 2d 594, 597 (S.D.N.Y. 2012) (quoting Mastrovincenzo
v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006) (internal quotation marks omitted)). This
standard also applies where the injunction “will provide the movant with substantially all the
relief sought and that relief cannot be undone even if the defendant prevails at a trial on the
merits.” People ex. rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015)
(internal quotation marks and citation omitted). Because the Court concludes that Plaintiffs and
Plaintiff-Intervenors meet the more rigorous standard, the Court need not decide whether a

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prohibitory or mandatory injunction is sought here. See Green Party of New York State v. New
York State Bd. of Elections, 267 F. Supp. 2d 342, 351 (E.D.N.Y. 2003), modified, No. 02 Civ.
6465, 2003 WL 22170603 (E.D.N.Y. Sept. 18, 2003), and aff’d, 389 F.3d 411 (2d Cir. 2004).
B. Analysis
1. Irreparable Harm
To establish irreparable harm, Plaintiffs and Plaintiff-Intervenors “must demonstrate that
absent a preliminary injunction they will suffer an injury that is neither remote nor speculative,
but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to
resolve the harm.” Faiveley, 559 F.3d at 118 (internal quotation marks and citation omitted).
Plaintiffs and Plaintiff-Intervenors have shown irreparable injury because they face a
violation of their constitutional rights. “All election laws necessarily implicate the First and
Fourteenth Amendments.” Gonsalves v. New York State Bd. of Elections, 974 F. Supp. 2d 191,
197 (E.D.N.Y. 2013) (internal quotation marks and citation omitted). And where a challenged
regulation “governs the registration and qualification of voters, the selection and eligibility of
candidates, or the voting process itself, [it] inevitably affects—at least to some degree—the
individual’s right to vote and his right to associate with others for political ends.” Price v. New
York State Bd. of Elections, 540 F.3d 101, 107–08 (2d Cir. 2008) (quoting Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983) (internal quotation marks omitted)).
In the Second Circuit, it is well-settled that an alleged constitutional violation constitutes
irreparable harm. See, e.g., Connecticut Dep’t of Envtl. Prot. v. O.S.H.A., 356 F.3d 226, 231 (2d
Cir. 2004) (“[W]e have held that the alleged violation of a constitutional right triggers a finding
of irreparable injury.” (internal quotation marks and citations omitted)); Statharos v. New York
City Taxi & Limousine Comm’n, 198 F.3d 317, 322 (2d Cir. 1999) (“Because plaintiffs allege

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deprivation of a constitutional right, no separate showing of irreparable harm is necessary.”);
Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (clarifying that “it is the alleged violation of a
constitutional right that triggers a finding of irreparable harm” and a substantial likelihood of
success on the merits of a constitutional violation is not necessary).
Courts in this circuit have consistently found irreparable injury in matters where voters
have alleged constitutional violations of their right to vote. See, e.g., Green Party of New York
State, 267 F. Supp. 2d at 351 (“The plaintiffs have satisfied the [irreparable harm] prong of the
test by alleging” that certain aspects of New York’s voter enrollment scheme violated “their First
and Fourteenth Amendment rights to express their political beliefs, to associate with one another
as a political party, and to equal protection of the law.”); Credico v. New York State Bd. of
Elections, 751 F. Supp. 2d 417, 420 (E.D.N.Y. 2010) (finding irreparable injury where plaintiffs
alleged that the [BOE’s] refusal to place a candidate’s name on the ballot violated plaintiffs’
First and Fourteenth Amendment rights to “fully express their political association with the
parties or candidates of their choice”); Dillon v. New York State Bd. of Elections, No. 05 Civ.
4766, 2005 WL 2847465, at *3 (E.D.N.Y. Oct. 31, 2005) (finding irreparable harm where
“plaintiffs allege[d] violations of their First and Fourteenth Amendment rights of expression and
association and equal protection of the law”).
Moreover, Plaintiffs and Plaintiff-Intervenors can clearly establish irreparable injury
because, without Court intervention, the presidential primary will not take place, Plaintiffs,
Plaintiff-Intervenors, and the candidates to whom they are pledged will not appear on the ballot,
and—along with other New York Democratic voters—they will be deprived of the right to cast a
vote for an otherwise qualified candidate and the political views expressed by that candidate.
See Amarasinghe v. Quinn, 148 F. Supp. 2d 630, 634 (E.D. Va. 2001) (“It is clear that the

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plaintiff in this case meets the burden of showing irreparable injury. Without an injunction,
the . . . election will take place, notwithstanding write-in votes, the plaintiff will not be
considered on the ballot by the voters for a seat in the House of Representatives. Monetary
damages . . . would not compensate the plaintiff.”). The Court finds, therefore, that Plaintiffs
and Plaintiff-Intervenors have established the threat of irreparable harm absent a preliminary
injunction.
2. Likelihood of Success on the Merits
The Court concludes that Plaintiffs and Plaintiff-Intervenors have shown a clear and
substantial likelihood of success on the merits of their claim that the Democratic Commissioners’
April 27 Resolution removing Yang, Sanders, and eight other Democratic presidential candidates
from the ballot deprived them of associational rights under the First and Fourteenth Amendments
to the Constitution.
a. The Right of Association
Although “administration of the electoral process is a matter that the Constitution largely
entrusts to the States,” the Supreme Court has long recognized that “unduly restrictive state
election laws may so impinge upon freedom of association as to run afoul of the First and
Fourteenth Amendments.” Kusper v. Pontikes, 414 U.S. 51, 57 (1973). That includes state laws
governing which candidates may appear on the ballot. Ballot access rules implicate “two
different, although overlapping, kinds of rights—the right of individuals to associate for the
advancement of political beliefs, and the right of qualified voters, regardless of their political
persuasion, to cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30 (1968); see
Bullock v. Carter, 405 U.S. 134, 143 (1972) (“[T]he rights of voters and the rights of candidates
do not lend themselves to neat separation; laws that affect candidates always have at least some

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theoretical, correlative effect on voters.”). “[N]o litmus-paper test will separate valid ballotaccess provisions from invalid interactive speech restrictions . . . [b]ut the First Amendment
requires [courts] to be vigilant in making those judgments, to guard against undue hindrances to
political conversations and the exchange of ideas.” Buckley v. Am. Constitutional Law Found.,
Inc., 525 U.S. 182, 192 (1999) (internal quotation marks and citations omitted).
That requirement extends to primary elections like the one here. See New York State Bd.
of Elections v. Lopez Torres, 552 U.S. 196, 204 (2008) (“We have . . . acknowledged an
individual’s associational right to vote in a party primary without undue state-imposed
impediment.”). “When a state-mandated primary is used to select delegates to conventions or
nominees for office, the State is bound not to design its ballot or election processes in ways that
impose severe burdens on First Amendment rights of expression and political participation.”
Lopez Torres, 552 U.S. at 210 (Kennedy, J., concurring in the judgment). The Second Circuit
has repeatedly affirmed district court orders striking down unduly burdensome ballot access
requirements in primary elections, including presidential primaries. See, e.g., Lerman v. Bd. of
Elections in City of New York, 232 F.3d 135, 153 (2d Cir. 2000) (invalidating requirement that
witnesses for primary ballot access petitions reside in particular congressional district);
Rockefeller v. Powers (Rockefeller II), 78 F.3d 44, 45 (2d Cir. 1996) (affirming district court
order reducing number of signatures required to appear on presidential primary ballot). Voters
“have an associational right to vote in political party elections, and that right is burdened when
the state makes it more difficult for these voters to cast ballots.” Price, 540 F.3d at 108 (citations
omitted). Likewise, “candidates’ associational rights are affected, in at least some manner, when
barriers are placed before the voters that would elect these candidates to party positions.” Id.

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b. The Anderson-Burdick Framework
In assessing challenges to ballot-access restrictions under the First and Fourteenth
Amendments, courts apply the so-called Anderson-Burdick balancing test, derived from two
Supreme Court cases. In Anderson v. Celebrezze, the Supreme Court struck down as
unconstitutional an Ohio law providing that independent candidates could appear on the
presidential general election ballot only if they met the filing requirement by March of the
election year. 460 U.S. at 805–06. The Court held that when confronted with a restriction on
ballot access, a court must “first consider the character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to
vindicate,” then “identify and evaluate the precise interests put forward by the State as
justifications for the burden imposed by its rule,” and then “determine the legitimacy and
strength of each of those interests” and “consider the extent to which those interests make it
necessary to burden the plaintiff’s rights.” Id. at 789.
In Burdick v. Takushi, the Supreme Court applied that test to uphold Hawaii’s prohibition
on write-in voting in general elections. 504 U.S. 428, 441–42 (1992). In doing so, the Court
refined the Anderson standard, explaining that “the rigorousness of [a court’s] inquiry into the
propriety of a state election law depends upon the extent to which a challenged regulation
burdens First and Fourteenth Amendment rights.” Id. at 434. “[W]hen those rights are subjected
to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to advance a state interest of
compelling importance’”—in other words, the restriction must survive the standard commonly
referred to as “strict scrutiny.” Id. (citation omitted). “But when a state election law provision
imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth
Amendment rights of voters, the State’s important regulatory interests are generally sufficient to

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justify the restrictions.” Id. (internal quotation marks and citation omitted). If a restriction is not
“severe,” then “the State’s reasonable and nondiscriminatory restrictions will generally be
sufficient to uphold the statute if they serve important state interests.” Price, 540 F.3d at 109.
In sum, therefore, this Court must first, examine the extent to which the April 27
Resolution (and the consequent cancellation of the presidential primary) impose on Plaintiffs’
and Plaintiff-Intervenors’ (1) opportunity to appear on the ballot as candidates, and (2) right to
support candidates as voters, and decide whether Defendants’ actions qualify as “severe” or
“reasonable, nondiscriminatory” restrictions, and second, consider the legitimacy and strength of
the rationale put forward by Defendants, and determine whether it justifies the extent of the
burden on Plaintiffs’ and Plaintiff-Intervenors’ rights under the applicable framework.
c. The Burden on First and Fourteenth Amendment Rights
The New York Democratic Party has opted to conduct the selection of delegates to the
Convention through a primary held under New York State law. See Delegate Selection Plan
§ II(A)(3) (“[A]ll pledged delegates and alternates shall be allocated among the [p]residential
[c]andidates in proportion to the votes such [c]andidates receive in the [p]rimary[.]”). The
Democratic Commissioners, acting pursuant to § 2-122-a(13), the statute empowering the BOE
commissioners of a given political party to eliminate candidates who have suspended their
campaign or announced that they are no longer seeking the presidency, removed Yang, Sanders,
and the other presidential contenders from the primary ballot because they suspended their
campaigns, or announced that they were no longer seeking the presidency. April 27 Resolution
at 1–2; Compl. ¶ 66. Section 2-122-a(13) may reflect reasonable policy objectives in the
abstract, and the Court need not assess its facial validity to decide this case. See Field Day, LLC
v. Cty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006) (“A ‘facial challenge’ to a statute considers

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only the text of the statute itself, not its application to the particular circumstances of an
individual. An ‘as-applied challenge,’ on the other hand, requires an analysis of the facts of a
particular case to determine whether the application of a statute, even one constitutional on its
face, deprived the individual to whom it was applied of a protected right.” (citations omitted)).
As the statute was applied here, however, it upended the candidates’ settled expectation that they
would stay on the ballot; after all, when Yang and the other contenders suspended their
campaigns, there was no threat that doing so would bar them from competing for
delegates. Compl. ¶ 69; Yang Aff. ¶¶ 6, 12. Thus, the question presented is what burden was
imposed on Plaintiffs’ and Plaintiff-Intervenors’ associational rights as candidates, and as voters,
when (1) the Democratic Commissioners removed ten presidential candidates from the primary
ballot, (2) they did so based on a statute enacted after a number of contenders had already
announced that although they were suspending their campaigns, they intended to stay on the
ballot, and (3) prior rules and practice would have permitted their names to remain on the roster
of primary candidates.
Defendants argue that the burden on Plaintiffs’ and Plaintiff-Intervenors’ rights is
minimal, because “[t]he interest in question is that of a former candidate who is no longer
seeking or campaigning for a nomination to have his name on the ballot in a party primary
election,” and that of his or her pledged delegates. Def. Opp. at 14. At first glance, it may be
difficult to see what interest candidates or voters have in participating in an election where only
one politician is actively pursuing the office at stake, with the stated support of every other
candidate; after all, the function of the election process is “to winnow out and finally reject all
but the chosen candidates, not to provide a means of giving vent to short-range political goals,

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pique, or personal quarrels.” Burdick, 504 U.S. at 438 (internal quotation marks, citation, and
alterations omitted).
But that impression falls away upon closer examination. Although the names of the
various presidential candidates are the ones that appear on the ballot, the primary actually results
in the election of delegates to the Convention. In Rockefeller I, 74 F.3d at 1379–80, the Second
Circuit explained that even though New York’s primary system is “seen widely as a unitary state
presidential primary,” the primary in fact consists of a set of separate elections in each
congressional district for delegates:
Although popular attention may well focus on the number of delegates pledged to
each candidate at the convention, the delegates themselves will also cast votes on
platform issues and issues of party governance. No doubt, the chief purpose of
many voters will be to send a message on presidential candidates. But that does
not mean that we must treat these . . . elections as if they were a straw poll. In
short, registered [party members] in each district will be electing a slate
of . . . people who are pledged to vote for a particular candidate, who may be
freed to vote for anyone, and who will vote at the convention on other issues as
well.
Id. at 1380 (emphasis added).
As a consequence, the removal of presidential contenders from the primary ballot not
only deprived those candidates of the chance to garner votes for the Democratic Party’s
nomination, but also deprived their pledged delegates of the opportunity to run for a position
where they could influence the party platform, vote on party governance issues, pressure the
eventual nominee on matters of personnel or policy, and react to unexpected developments at the
Convention. And it deprived Democratic voters of the opportunity to elect delegates who could
push their point of view in that forum. Delegate Plaintiffs, who had planned to compete in the
primary, express a strong continuing interest in doing so if given the chance, and affirm that they
have made significant personal sacrifices for the opportunity. Compl. ¶¶ 6, 56, 59; see Herzog

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Aff. ¶¶ 4–5; Suh Aff. ¶¶ 4–5; Vogel Aff. ¶¶ 4–5; Small Aff. ¶¶ 4–5; Hwang Aff. ¶¶ 4–5;
Medeiros Aff. ¶¶ 4–5; Green Aff. ¶¶ 4–5; see also Mativetsky Aff. ¶¶ 4–5 (non-party candidate
for delegate discussing similar desire and effort to participate in election); Gluck Aff. ¶¶ 5
(same); Intervenor Compl. ¶¶ 3, 5–14.
Of course, those opportunities would have also been lost if Yang or Sanders had taken
formal action to remove himself from the ballot under existing law. See N.Y. Election Law § 6146(1) (“A person designated as a candidate for nomination or for party position . . . may, in a
certificate signed and acknowledged by him, and filed as provided in this article, decline the
designation or nomination.”); id. § 2-122-a(2) (applying § 6-146 to presidential primaries). But
Yang states that he did not take those steps, with the goal of allowing his supporters to express
their views and influence the Convention by voting for him in the New York primary. Compl.
¶ 78; Yang Aff. ¶¶ 6, 8. Sanders, too, did not formally remove his name from the ballot. And
although delegates are Democratic Party offices selected according to party rules, Brehm Decl.
¶¶ 29, 32, neither the New York nor the national Democratic Party has amended the Delegate
Selection Plan, which provides that delegates will be allocated based on the results of the
primary election conducted by the state. See Delegate Selection Plan § II(A)(3).
Notwithstanding Delegate Plaintiffs’ desire to compete for delegate spots, and ability to
do so under Democratic Party rules, the April 27 Resolution and cancellation of the primary
ruined their chances. It also eliminated the opportunity for voters to express their political views
by supporting Delegate Plaintiffs. Def. Opp. at 14–15. The Democratic Commissioners’
adoption of the April 27 Resolution, which was authorized by a provision of law that was not in
force at the time the candidates made their decisions to suspend their campaigns, imposed a
substantial burden on Plaintiffs’ and Plaintiff-Intervenors’ right to “associate for the

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advancement of political beliefs,” and on the voters’ right “to cast their votes effectively.”
Williams, 393 U.S. at 30. The Court ultimately need not determine whether this burden was so
severe that strict scrutiny is warranted, because even under the more lenient balancing test for
“reasonable and nondiscriminatory restrictions,” Price, 540 F.3d at 109, Defendants’
justifications cannot support their weighty imposition on Plaintiffs’ and Plaintiff-Intervenors’
right to free association.
d. State Justifications
The April 27 Resolution removing the ten presidential contenders from the primary ballot
did not provide a reason for the action, beyond stating that candidates had “publicly announced
that they are no longer seeking the nomination for the office of president of the United States, or
that they are terminating or suspending their campaign.” April 27 Resolution at 1. Defendants
argue that removing Yang, Sanders, and the others from the ballot, and canceling the presidential
primary, is necessary to combat the public health risk posed by COVID-19. Def. Opp. at 17–18.
They stress that minimizing social contact is the most important tool available for preventing the
spread of the virus. Id. at 18. And they maintain that holding the presidential primary will
dramatically increase the possibility of social contact, for two reasons. First, in a number of
localities, the presidential primary was the only election scheduled for June 23. Robert A.
Brehm, co-executive director of the BOE, states that if the primary does not take place, the need
to hold an election would be eliminated to some extent in jurisdictions located in 35 counties
statewide; seven counties would have no elections at all on June 23, and municipalities within 11
other counties would have no elections. Brehm Decl. ¶ 40. Second, even where other elections
are scheduled for June 23, canceling the presidential primary might reduce the number of voters
for whom an election is held, as well as the quantity of voters interested in turning out. See id.

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All told, Brehm estimates that not going forward with the presidential primary would
reduce the number of voters faced with an election by 1,488,715, and would result in “615 fewer
poll sites opened for 15 hours of in-person voting,” “22 fewer early voting sites opened for sixty
hours of early voting spanning nine days,” and “4,617 fewer poll workers needed.” Id. ¶ 41.
Brehm also explains that much of the work to prepare for the election “is not consistent with
social distancing.” Id. ¶ 44. And he estimates that holding the primary will cost the state
approximately $5.6 million. Id. ¶ 51.
Protecting the public from the spread of COVID-19 is an important state interest. But the
Court is not convinced that canceling the presidential primary would meaningfully advance that
interest—at least not to the degree as would justify the burdensome impingement on Plaintiffs’
and Plaintiff-Intervenors’ rights. As Plaintiffs and Plaintiff-Intervenors point out, Governor
Cuomo has already issued executive orders allowing every voter statewide to request an absentee
ballot and providing absentee ballot request forms. Compl. ¶¶ 62–64. Even if not every voter
can vote by mail—because they fail to request or do not receive an absentee ballot, because they
need assistance voting, or because they are ineligible to cast an ordinary ballot but may cast a
ballot with an affidavit, Brehm Decl. ¶ 54—there is no doubt that many voters will avail
themselves of the opportunity to do so.4
This, in turn, will make it substantially easier for voters and poll workers to practice
social distancing at voting sites. In 2016, a year in which two Democratic presidential primary

4

As another measure to protect public safety, other local governments will allow ballots to be submitted via secure
drop-off boxes. See Voting Outside the Polling Place: Absentee, All-Mail and other Voting at Home Options,
National Conference of State Legislatures (Apr. 24, 2020), https://www.ncsl.org/research/elections-andcampaigns/absentee-and-early-voting.aspx (noting the possibility of votes being submitted “at a secure drop box”);
see, e.g., Beau Evans, Ballot Drop-Off Boxes Get Green Light for June 9 Primary in Georgia, Online Athens (Apr.
15, 2020), https://www.onlineathens.com/news/20200415/ballot-drop-off-boxes-get-green-light-for-june-9-primaryin-georgia (reporting that “[c]ounty election officials in Georgia will have the option of installing drop-off boxes for
absentee ballots in the June 9[, 2020] primary election under emergency rules the State Election Board adopted” in
light of concerns over the safety of voters and poll workers).

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candidates were actively competing for the nomination, approximately 1,970,000 voters cast
ballots. See Democratic Presidential Primary Results, Board of Elections (Dec. 8,
2016), https://www.elections.ny.gov/NYSBOE/elections/2016/Primary/DemocraticPresPrimary
Results.pdf. This year, when many voters will doubtless choose to vote by mail because of the
COVID-19 pandemic, in-person turnout is likely to be dramatically lower, allowing the state to
safely accommodate those voters who need to vote at a polling location.
Moreover, in large portions of the state, including the most populous counties, elections
besides the presidential primary are scheduled for June 23. See Compl. ¶¶ 71–72. Primaries are
still taking place in 42 out of 62 counties in New York, including in Kings, Queens, New York,
Suffolk, Bronx, and Nassau Counties, each of which has a population exceeding one million.
ECF No. 32 at 29. In those localities—whether the presidential primary goes forward or not—it
will be necessary to take the protective measures Defendants describe. It is not clear that, in
those areas, resources will be conserved by eliminating the presidential primary from the ballot.
Moreover, the Court notes that June 23 is still seven weeks away. The state, therefore, has
sufficient time to take necessary steps to protect voters.
Finally, though all states are impacted by the current public health crisis, and some have
rescheduled their presidential primary elections in light of COVID-19, New York is the only one
to have canceled its primary, casting further doubt on Defendants’ contention that scrapping the
primary is necessary to combat the risk posed by the virus. See Def. Opp. at 17–18; see also
Nick Corasaniti and Stephanie Saul, 15 States Have Postponed Primaries During the Pandemic.
One Has Canceled, The New York Times (April 27, 2020),
https://www.nytimes.com/article/2020-campaign-primary-calendar-coronavirus.html.
In sum, removing Yang, Sanders, and other candidates from the Democratic primary

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ballot will protect the public from COVID-19 only to a limited extent. But barring Plaintiffs and
Plaintiff-Intervenors from participating in an election for party delegates will sharply curtail their
associational rights.
Accordingly, the Court concludes that Plaintiffs and Plaintiff-Intervenors have made a
clear and substantial showing of likelihood of success on the merits of their claim that the
Democratic Commissioners’ April 27 Resolution eliminating presidential candidates who
suspended their campaigns or announced that they were no longer seeking the presidency, and
the consequent cancellation of the presidential primary election, violated their First and
Fourteenth Amendment rights.
3. Balance of Equities and Public Interest
The equities tip strongly in Plaintiffs’ and Plaintiff-Intervenors’ favor for the reasons
already discussed. In assessing the balance of equities, “the court must ‘balance the competing
claims of injury and must consider the effect on each party of the granting or withholding of the
requested relief,’ as well as ‘the public consequences in employing the extraordinary remedy of
injunction.’” Make the Rd. New York v. Cuccinelli, 419 F. Supp. 3d 647, 665 (S.D.N.Y. 2019)
(quoting Winter, 555 U.S. at 24).
Plaintiffs’ and Plaintiff-Intervenors’ injuries arising from the adoption of the April 27
Resolution and cancellation of the presidential primary are substantial. If all but one of the
presidential candidates are removed from the ballot and the primary is not held, Delegate
Plaintiffs will be deprived of the opportunity to compete for delegate slots and shape the course
of events at the Convention, and voters will lose the chance to express their support for delegates
who share their views. The loss of these First Amendment rights is a heavy hardship. See New
York Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013) (holding that denial of

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First Amendment expressive rights constitutes “significant” hardship); Billington v. Hayduk, 439
F. Supp. 971, 974 (S.D.N.Y. 1977) (‘[T]he hardship to plaintiff in not being considered . . . as a
candidate in the upcoming election in possible violation of his rights far outweighs any
inconvenience that defendants might suffer in having to include plaintiff’s name on the ballot.”).
The costs to Defendants of granting the requested relief are also significant. Defendants
estimate that conducting the presidential primary will require 615 additional poll sites, 22
additional early voting sites, 4,617 additional poll workers, and will cost the state approximately
$5.6 million. Brehm Decl. ¶¶ 41, 51. The state undertook to bear those costs, however, when it
assumed the responsibility of regulating and holding the primary election, and the state was
presumably prepared to shoulder them before the adoption of the April 27 Resolution last week.
And though Defendants may incur additional costs if they take protective measures consistent
with public safety, the scope of those added expenses is unclear—whereas Plaintiffs’ and
Plaintiff-Intervenors’ loss is concrete and immediate.
There is also a strong public interest in permitting the presidential primary to proceed
with the full roster of qualified candidates. “[S]ecuring First Amendment rights is in the public
interest.” New York Progress & Prot. PAC, 733 F.3d at 488. Specifically, the public has an
interest in being presented with several viable options in an election. See Hirschfeld v. Bd. of
Elections in N.Y.C, 984 F.2d 35, 39 (2d Cir. 1993) (“[T]he public’s interest in having [plaintiff]
as an additional choice on the ballot clearly outweighed any interest the [BOE] may have had in
removing [plaintiff’s] name two business days before the [g]eneral [e]lection.”). Moreover,
because “the conduct of elections is so essential to a state’s political self-determination,” there is
a “strong public interest in having elections go forward.” Flores v. Town of Islip, 382 F. Supp.
3d 197, 245 (E.D.N.Y. 2019) (citations omitted). Courts frequently rely on this principle to

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avoid issuing injunctions that would postpone or disrupt an election. See, e.g., Silberberg v. Bd.
of Elections of the State of New York, 216 F. Supp. 3d 411, 420–21 (S.D.N.Y. 2016); Flores, 382
F. Supp. 3d at 245. But the same rule also counsels against allowing a state to refuse to conduct
a consequential race when it is possible for it to safely go forward. Of course, even faced with
such serious concerns, “federal courts should ordinarily not alter the election rules on the eve of
an election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207
(2020). The primary, however, is still almost two months away, giving Defendants and the
public enough time to respond appropriately to this order, and for the election to proceed in a
safe manner. See also New York Progress & Prot. PAC, 733 F.3d at 489 (holding that injunction
allowing political action committee to solicit donations in excess of $150,000 was not untimely,
though sought only 41 days before date of election).
Plaintiffs and Plaintiff-Intervenors have made a strong showing of irreparable harm
without emergency relief, established a clear and substantial likelihood of success on the merits
of their First and Fourteenth Amendment claims, and demonstrated that the balance of equities
tips decisively in their favor and that the public interest would be served by such relief.
Accordingly, the Court holds that Plaintiffs and Plaintiff-Intervenors have established
their entitlement to a preliminary injunction under Rule 65 of the Federal Rules of Civil
Procedure.
IV.

Scope of Relief
The Court grants the preliminary injunction “to restore the status quo ante.” United

States v. Adler’s Creamery, 107 F.2d 987, 990 (2d Cir. 1939). “The purpose of an injunction
[pending litigation] is to guard against a change in conditions which will hamper or prevent the
granting of such relief as may be found proper after the trial of the issues. Its ordinary function

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is to preserve the status quo and it is to be issued only upon a showing that there would otherwise
be danger of irreparable injury.” Id.; see also Asa v. Pictometry Intern. Corp., 757 F. Supp. 2d
238, 243 (W.D.N.Y.2010) (“[T]he court’s task when granting a preliminary injunction is
generally to restore, and preserve, the status quo ante, i.e., the situation that existed between the
parties immediately prior to the events that precipitated the dispute.”).
Here, the status quo ante is the state of affairs immediately prior to the April 27
Resolution. “‘Status quo’ does not mean the situation existing at the moment the [lawsuit] is
filed, but the ‘last peaceable uncontested status existing between the parties before the dispute
developed.’” Chobani, LLC v. Dannon Co., Inc., 157 F. Supp. 3d 190, 201 (N.D.N.Y. 2016)
(citation omitted) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure § 2948 (2d ed. 1995)).
Accordingly, the Court’s injunction restores all ten presidential candidates named in the
April 27 Resolution, and their respective slates of delegate candidates, to the New York
Democratic presidential primary ballot, and requires that the primary election be held on June 23,
2020.5

5

In the alternative, the Court having concluded that Plaintiffs and Plaintiff-Intervenors have made a “clear” and
“substantial” showing of likelihood of success on the merits, Beal v. Stern, 184 F.3d 117, 123 (2d Cir. 1999), a
“strong showing” of irreparable harm, Doe v. New York Univ., 666 F.2d 761, 773 (2d Cir. 1981), demonstrated that
injunctive relief is in the public interest, Actavis, 787 F.3d at 650, and shown that the balance of equities tips in their
favor, Winter, 555 U.S. at 24, the foregoing relief can also be granted as a mandatory injunction. Plaintiffs and
Plaintiff-Intervenors style their request for relief as on behalf of themselves and “all others similarly situated.” See
Compl. at 1; Intervenor Compl. at 1. The others similarly situated are the putative delegates pledged to the other
presidential candidates removed by the April 27 Resolution, as well as registered New York Democratic Party
voters. The Court need not formally certify a class in order to issue the requested preliminary relief. See, e.g.,
Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide
preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed. 1990) (“Prior to the
Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class
suit.”).

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CONCLUSION
For the reasons stated in this opinion, the preliminary injunction is GRANTED to the
extent that Kellner, Spano, Kosinski, Valentine, and Brehm, in their official capacities, are
ORDERED to reinstate to the Democratic primary ballot those presidential and delegate
candidates who were duly qualified as of April 26, 2020, and to hold the primary election on
June 23, 2020.
The Clerk of Court is directed to terminate the motions at ECF Nos. 12, 30, and 31.
SO ORDERED.
Dated: May 5, 2020
New York, New York

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