Yang v. Kosinski ( 2020 )

20-1494-cv
Yang, et al. v. Kosinski, et al.
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2019
No. 20-1494-cv
ANDREW YANG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED; JONATHAN HERZOG, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED; HELLEN SUH,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;
BRIAN VOGEL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY
SITUATED; SHLOMO SMALL, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED; ALISON HWANG, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY SITUATED; KRISTEN MEDEIROS,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;
ROGER GREEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED,
Plaintiffs-Appellees,
JAY BELLANCA, TRACI STRICKLAND, EMILY ADAMS, NESTOR MEDINA,
SIMRAN NANDA, KATHRYN LEVY, JOSHUA SAUBERMAN, CARI
GARDNER, STEPHEN CARPINETA, NANCY DEDELVA, TING BARROW,
PENNY MINTZ, GEORGE ALBRO,
Intervenors-Plaintiffs-Appellees,
v.
PETER S. KOSINSKI, CO-CHAIR AND COMMISSIONER, INDIVIDUALLY AND
IN HIS OFFICIAL CAPACITIES AT THE NYS BOE; TODD D. VALENTINE, CO-
EXECUTIVE DIRECTOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITIES
AT THE NYS BOE; ROBERT A. BREHM, CO-EXECUTIVE DIRECTOR,
INDIVIDUALLY AND IN HIS OFFICIAL CAPACITIES AT THE NYS BOE,
Defendants-Appellants,
ANDREW SPANO, COMMISSIONER, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITIES AT THE NYS BOE,
Intervenor-Defendant-Appellant,
NEW YORK STATE BOARD OF ELECTIONS; DOUGLAS A. KELLNER, CO-
CHAIR AND COMMISSIONER, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITIES AT THE NYS BOE,
ADR Providers-Intervenors-Defendants-Appellants,
ANDREW CUOMO, AS GOVERNOR OF THE STATE OF NEW YORK,
Defendant.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: MAY 15, 2020
DECIDED: JUNE 1, 2020
Before: KEARSE, JACOBS, AND CABRANES, Circuit Judges.
2
Defendants-Appellants the New York State Board of Elections
and its officials (jointly, the “Board”) appeal from an order of
preliminary injunction entered in the United States District Court for
the Southern District of New York (Analisa Torres, Judge) in favor of
Democratic presidential candidate Andrew Yang and candidates for
delegate seats who, if elected, would be pledged to Yang and fellow
Democratic candidate, Senator Bernie Sanders. Yang, his delegates,
and the Sanders delegates have challenged the Board’s decision to
remove all qualified candidates from the ballot, with the exception of
former Vice President Joseph Biden, and cancel the Democratic
presidential primary. Without the presidential primary, the
candidates for delegates may not have an opportunity to participate in
the proceedings of the Democratic National Convention.
The question presented in this case is whether Yang, his
delegates, and the Sanders delegates have demonstrated an
entitlement to preliminary injunctive relief that reverses the effects of
the Board’s decision by requiring Yang and Sanders to be reinstated to
the ballot, and the Democratic presidential primary to be conducted
along with the other primary elections set for June 23, 2020.
On review, we conclude, as the District Court did, that
preliminary injunctive relief is warranted in the circumstances
presented and, therefore, we AFFIRM the District Court’s carefully
tailored order of preliminary injunction.
3
JEFFREY M. KURZON, Kurzon Kohen LLP,
New York, NY, for Plaintiffs-Appellees.
J. REMY GREEN (Elena L. Cohen, Jonathan
Wallace, on the brief), Cohen & Green
P.L.L.C., Ridgewood, NY; and ARTHUR Z.
SCHWARTZ, Advocates for Justice, New York,
NY, for Intervenors-Plaintiffs-Appellees.
JUDITH N. VALE, Senior Assistant Solicitor
General (Barbara D. Underwood, Solicitor
General, Steven C. Wu, Deputy Solicitor
General, and Jennifer L. Clark, Assistant
Solicitor General, on the brief), for Letitia
James, Attorney General, State of New York,
New York, NY, for Defendants-Appellants.
Malcolm Seymour, David R. West, Foster
Garvey, P.C., New York, NY, for Amici Curiae
Senator Bernie Sanders and Bernie 2020 Inc. in
Support of Appellees.
Ezra Ishmael Young, Law Office of Ezra
Young, Brooklyn, NY, for Amici Curiae New
York State Voters in Support of Appellees.
Rob Rickner, Rickner PLLC, New York, NY,
for Amici Curiae Medical Professionals in
Support of Appellees.
4
Walter H. Hackett, III, Law Office of Walter
Hackett, Walnut, CA, for Amici Curiae Heather
Key, et al. in Support of Appellees.
JOSÉ A. CABRANES, Circuit Judge:
On April 27, 2020, New York became the only State or Territory
in the United States to cancel its 2020 Democratic presidential primary.
Specifically, on that day, two Democratic commissioners of the New
York State Board of Elections (the “Board”) removed the names of ten
Democratic presidential candidates who had qualified to appear on
the ballot, but had publicly announced that they were suspending
their campaigns and/or no longer seeking the party nomination for the
office of President of the United States. By virtue of that decision, only
former Vice President Joseph Biden, the now-presumptive Democratic
nominee, remained on the ballot. The Democratic presidential
primary, described by the Board as nothing more than a “beauty
contest,” was thus canceled. 1 The stated reason for this action: the
current coronavirus pandemic (“COVID-19”). According to the Board,
the cancellation of the Democratic presidential primary would further
the State’s interests in minimizing social contacts to reduce the spread
of the virus and in focusing its limited resources on the management
of other contested primary elections.
1 Joint App’x at 118.
5
Some Democratic presidential candidates were not pleased
with the Board’s decision. Several candidates had already chosen to
“suspend,” rather than formally terminate, their campaigns. They
claimed to have done so with the understanding that, among other
things, they would remain on the primary ballot in the hopes of
electing delegates to attend the Democratic National Convention. The
candidates’ decision arguably was predicated on the longstanding and
well-understood notion that presidential candidates and their elected
delegates play an important role at national party conventions, even
when there is a presumptive presidential nominee.
Dissatisfied with the Board’s decision, Andrew Yang—a
businessman, a New York registered voter, and a Democratic
presidential candidate who had suspended his campaign for
President—and several of his pledged delegates, sued the Board. Yang
and his delegates (jointly, “Plaintiffs”) challenged the Board’s
decision, alleging that the removal of their names from the ballot and
the ensuing cancellation of the Democratic presidential primary
violated their free speech and associational rights under the First and
Fourteenth Amendments to the Constitution. 2
2 The Free Speech, Assembly, and Petition Clauses of the First Amendment
provide that “Congress shall make no law . . . abridging the freedom of speech . . .
or the right of the people peaceably to assemble, and to petition the Government
for a redress of grievances.” U.S. CONST. amend. I. The Due Process Clause of the
Fourteenth Amendment provides in relevant part that “[n]o State shall . . . deprive
any person of . . . liberty . . . without due process of law.” U.S. CONST. amend. XIV,
§ 1. The Supreme Court has made clear that the protections afforded by the First
Amendment, including the principles of freedom of speech and association, are “an
6
Joined by a group of intervenors-delegates pledged to another
presidential candidate, Senator Bernie Sanders (“Sanders delegates”),
Plaintiffs sought a temporary restraining order and a preliminary
injunction requiring that the names of all duly qualified candidates be
restored to the ballot and the presidential primary be held as
scheduled.
On May 5, 2020, the United States District Court for the Southern
District of New York (Analisa Torres, Judge) granted the application
for emergency injunctive relief and ordered the Board “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.” 3 The Board now appeals from
the order granting the application for preliminary injunction.
On review, we conclude, substantially for the reasons stated in
the District Court’s careful and well-reasoned decision, that Plaintiffs
and the Sanders delegates have adequately established their
entitlement to preliminary injunctive relief on the basis that the
Board’s April 27 decision unduly burdened their rights of free speech
and association.
inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the
Fourteenth Amendment.” Tashjian v. Republican Party of Conn., 479 U.S. 208, 214
(1986) (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958)).
3 Yang v. Kellner, No. 20-cv-3325 (AT), ---F. Supp. 3d---, 2020 WL 2129597, at
*14 (S.D.N.Y. May 5, 2020).
7
Accordingly, the May 5, 2020 decision and order of the District
Court is AFFIRMED. 4
I. BACKGROUND
A. The Facts 5
The Democratic presidential primary in New York is a head-to-
head electoral contest between the various presidential candidates
who are competing for pledged delegates to the Democratic National
Convention and seeking the Democratic nomination. The votes cast in
the primary for each candidate are tallied and then provided to the
New York Democratic Party so that it can determine the number of
“elected” or “pledged” delegates that will represent each candidate at
the Democratic National Convention. 6 According to New York’s
4In the interest of time and efficiency, on May 19, 2020, this Court affirmed
the District Court’s decision and order by summary order and indicated that our
opinion would follow. See Yang v. Kosinski, No. 20-1494-cv, ---F. App’x---, 2020 WL
2530191, at *1 (2d Cir. May 19, 2020). This is the promised opinion.
5 We draw the facts from the District Court’s recitation of the allegations in
the pleadings and the undisputed record before us. See Yang, 2020 WL 2129597, at
*1–3. The record in this case consists primarily of the various materials presented
to the District Court relating to the application for preliminary injunction, as well
as the transcript of the telephonic hearing before the District Court.
6 The majority of the delegates at the Democratic National Convention are
elected delegates, who are “pledged” to a presidential candidate and are thus
“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.” Id. at *1 n.1.
(internal quotation marks and citation omitted). There are also some non-elected,
“unpledged” delegates, formally known as “automatic delegates” (and commonly
referred to as “superdelegates”), who may vote for the candidate of their choice.
8
delegate-selection plan, “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.” 7
The New York Democratic presidential primary was originally
set for April 28, 2020. Eleven different candidates had qualified to
appear on the ballot. Between February and April, all but Vice
President Biden “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.” 8 Among those
See id. (internal quotation marks and citation omitted). Notably, under the current
procedural rules and the “call for the convention” of the National Democratic Party,
the voting power of the so-called “superdelegates” is more limited, as they cannot
vote, for example, on the first nominating ballot at the convention if no candidate
wins a majority of the delegates by the end of the primary season. See CALL FOR
THE 2020 DEMOCRATIC NATIONAL CONVENTION: ISSUED BY THE DEMOCRATIC PARTY
OF THE UNITED STATES art. IX.C.7 (adopted August 25, 2018), available at
https://democrats.org/wp-content/uploads/2019/02/2020-Call-for-Convention-
WITH-Attachments-2.26.19.pdf (last visited May 25, 2020). Only if the vote by the
pledged delegates is insufficient to decide the nomination after the first ballot, can
the superdelegates cast their vote at a contested convention to break any putative
stalemate. See id.; see also Joint App’x at 300.
The Yang and Sanders delegates would all be “pledged” delegates if their
candidates receive the necessary votes under the terms of the delegate-selection
plan for New York.
7 Yang, 2020 WL 2129597, at *1 (describing the requirements for a
presidential candidate to collect elected, pledged delegates); see also Joint App’x at
183, 185.
8 Joint App’x at 124.
9
candidates are Yang, who suspended his campaign on February 11,
and Sanders, who followed suit on April 8. Despite “suspending”
their campaigns and subsequently endorsing Biden as the Democratic
presumptive nominee, Yang and Sanders publicly announced that
they intended to remain on the ballot in all remaining primaries to
collect delegates for the convention.
But the rules of the contest were changed as a result of the
COVID-19 pandemic. On March 28, 2020, New York Governor
Andrew Cuomo issued an executive order directing the presidential
primary to be “postponed and rescheduled for June 23, 2020.” 9 Then,
on April 3, Governor Cuomo signed an omnibus budget bill that
altered the various procedures for holding presidential primaries in
New York and selecting elected delegates to the Democratic National
Convention.
Newly enacted New York Election Law § 2-122-a(13) authorizes
the Board to “omit” those presidential candidates “from the [primary]
ballot” if the candidates: (1) “publicly announce[ ] that they are no
longer seeking the nomination”; (2) “publicly announce[ ] that they are
terminating or suspending their campaign”; or (3) “send[ ] a letter to
the state board of elections indicating that they no longer wish to
appear on the ballot.” 10 If a candidate were omitted from the ballot as
9 N.Y. Exec. Order 202.12; see also Joint App’x at 56, 112.
10N.Y. ELEC. LAW § 2-122-a(13). 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
10
a result of one of these three circumstances, the statute further
provides that the “candidates for delegates and/or alternate delegates
who are pledged” to the omitted presidential primary candidate also
be removed from the ballot. 11
On April 20, 2020, more than two weeks after the omnibus bill
became law, the two Democratic commissioners of the Board of
Elections announced their intention to hold a vote on April 22—later
postponed to April 27—on whether to exercise their new authority. 12
Yang and Sanders vigorously objected to the proposed change;
“thousands of emails” to the Board from displeased voters followed. 13
Sanders, for example, submitted a letter through his attorney
explaining that he “announced the limited suspension of his
presidential campaign, [while] emphasizing that he intended to
remain on the ballot in upcoming primaries, gather delegates, and
attend the Democratic National Convention, with an eye to
influencing the party’s platform.” 14
recommendation of such political party or the legislative leaders of such political
party.” Id.
11 Id. § 2-122-a(14).
See Joint App’x at 113 (declaration of the Board’s Co-Executive Director
12
Robert Brehm reciting, among other things, the Board’s actions following the
enactment of the law).
13 Id. at 114 (same).
14 Id. at 99–100 (Sanders Letter to the Board).
11
The objections fell on deaf ears. On April 27, the Democratic
commissioners adopted a resolution (the “April 27 Resolution”)
removing all of the qualified candidates and their pledged delegates
from the ballot, with the exception of Vice President Biden and his
pledged delegates. The two commissioners did so on the basis of
“public declarations made by the relevant presidential candidates”
that they had suspended their presidential campaigns or were no
longer seeking the nomination. 15 With Biden left as the only
presidential candidate on the ballot, the Democratic commissioners
effectively canceled the presidential primary pursuant to the
longstanding New York statute that provides that when there is only
one candidate on the ballot, the sole candidate “shall be deemed
nominated or elected . . . without balloting.” 16
B. Procedural History
On April 28, 2020, Plaintiffs filed suit challenging the April 27
Resolution as unconstitutional and seeking, among other things, a
preliminary injunction to reverse the Board’s decision to remove their
names from the ballot. 17 The Sanders delegates intervened in the suit
15 Id. at 125 (April 27 Resolution).
16 N.Y. ELEC. LAW § 6-160(2).
17In addition to Plaintiffs’ claims for injunctive relief arising under the U.S.
Constitution, Plaintiffs alleged that the April 27 Resolution violates their rights
under various provisions of the Constitution of the State of New York. See Joint
App’x at 65–70. Plaintiffs also sought actual or statutory damages against the Board
and the Board officials in both their official and individual capacities. See id. at 73.
We do not consider those claims here. See Yang, 2020 WL 2530191, at *6 (“[F]or the
12
with leave of the District Court, filing their own complaint, and joining
the Plaintiffs’ request for emergency equitable relief.
On May 4, the District Court held telephonic argument on the
application for a preliminary injunction. 18 A day later, on May 5, the
District Court issued its Opinion and Order granting the application.
The instant appeal followed.
II. DISCUSSION
On appeal, the Board argues that the District Court erred in
issuing a preliminary injunction reversing the effects of the April 27
Resolution. Specifically, the Board contends that it has “compelling
interests in protecting health, safety, and the efficient administration
of elections during the COVID-19 pandemic.” 19 The Board further
argues that the April 27 Resolution meaningfully advances those
purposes of resolving the request for a preliminary injunction, the Court addresses
only prospective injunctive relief against the [Board] Officials in their official
capacity brought under the U.S. Constitution.”).
18Although the District Court “held a telephonic hearing on the request for
a preliminary injunction,” that hearing did not involve any “live” testimony. Id. at
*3. As the District Court explained, an “evidentiary hearing” was not required
because the “entitlement to relief is clear from the undisputed record” presented
by the parties. Id at n.2. (collecting cases).
19 Appellants’ Br. at 17.
13
interests and “does not necessarily foreclose” Plaintiffs and the
Sanders delegates “from pursuing [their associational] interest[s].” 20
Although the interests set forth by the Board are certainly
important, its argument sweeps too broadly. The Board overstates the
strength of its justifications for enacting the April 27 Resolution in
furtherance of its interests. In doing so, it unduly encroaches on the
competing constitutional interests of Plaintiffs and the Sanders
delegates. 21
A. Standard of Review and Legal Standard
We review de novo the District Court’s legal conclusions in
deciding to grant a motion for a preliminary injunction, 22 but review
its ultimate decision to issue the injunction for “abuse of discretion.” 23
20 Id. at 19.
21We note that the District Court’s holding on Article III standing was not
challenged on appeal. Nevertheless, to satisfy our independent obligation to
determine our subject-matter jurisdiction over the case, we have examined sua
sponte the question of Article III standing and concluded that Plaintiffs and the
Sanders delegates have standing to challenge the Board’s April 27 Resolution.
22 See Am. Express Fin. Advisors Inc. v. Thorley, 147 F.3d 229, 231 (2d Cir. 1998).
23See Goldman, Sachs & Co. v. Golden Empire Schs. Fin. Auth., 764 F.3d 210, 214
(2d Cir. 2014). “A district court has ‘abused its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence,’
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 . . . (1990), or rendered a decision
that ‘cannot be located within the range of permissible decisions,’ Zervos v. Verizon
N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001).” In re Sims, 534 F.3d 117, 132 (2d Cir.
2008) (alteration omitted).
14
Ordinarily, to obtain a preliminary injunction against
governmental action taken pursuant to a statute, the movant has to
“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.” 24 The movant also must show that
“the balance of equities tips in his [or her] favor.” 25
But where the movant is seeking to modify the status quo by
virtue of a “mandatory preliminary injunction” (as opposed to seeking
a “prohibitory preliminary injunction” to maintain the status quo), 26 or
where the injunction being sought “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,” 27 the movant must
also: (1) make a “strong showing” of irreparable harm, 28 and (2)
24Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133,
143 (2d Cir. 2016) (citing Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir.
2011)).
25 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
26 Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006) (emphasis
in original).
27 New York ex. rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir.
2015) (internal quotation marks and citation omitted).
28 Doe v. New York Univ., 666 F.2d 761, 773 (2d Cir. 1981).
15
demonstrate a “clear or substantial likelihood of success on the
merits.” 29
We need not choose between these two standards of review
because we are confident that Plaintiffs and the Sanders delegates
would prevail regardless of the standard we apply. Like the District
Court, we assume, for the sake of argument only, that the more
rigorous standard applies here. 30
B. Analysis of the Injunction Factors
The Board argues that the District Court “erred in concluding
that” Plaintiffs and the Sanders delegates “are likely to succeed on the
merits of their claims, and . . . that the balance of equities and public
interest support[s] the preliminary injunction.” 31 Notably, the Board
does not appear to challenge, and therefore concedes, the District
Court’s finding that Plaintiffs and the Sanders delegates have
established “the single most important prerequisite for the issuance of
a preliminary injunction” 32: that they would be irreparably injured in
the absence of preliminary injunctive relief.
29 Mastrovincenzo, 435 F.3d at 89 (internal quotation marks and citation
omitted).
30 See Yang, 2020 WL 2530191, at *6.
31 Appellants’ Br. at 24.
32 Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009)
(internal quotation marks and citation omitted).
16
Indeed, the Board’s brief on appeal does not bother to discuss
the irreparable-harm prong—for good reason. 33 Beyond alleging the
violation of their constitutional rights, there can be no question that
Plaintiffs and the Sanders delegates have demonstrated that, without
the requested injunctive relief reversing the effects of the April 27
Resolution, they could neither compete nor participate in New York’s
Democratic presidential primary. 34 Accordingly, Plaintiffs and the
Sanders delegates have made a strong showing of irreparable harm. 35
With that in mind, we now address the injunction factors that
are contested by the parties.
1. Clear or Substantial Likelihood of Success on the Merits.
33 Although the Board states in passing that “each of the preliminary-
injunction factors weighs against ordering the Board to conduct an uncontested
presidential primary during the COVID-19 pandemic,” Appellants’ Br. at 23
(emphasis added), there is no mention, let alone a substantive discussion, of the
irreparable-harm prong of the standard for injunctive relief. Rather, the Board
focuses exclusively on the merits of the claim and the balancing of the equities. See
id. at 24–37; see also generally Appellants’ Reply Br. at 2–21. The only reference to
“irreparable harm” relates to the alleged harms to the Board’s interests, see
Appellants’ Br. at 28—a reference that has no bearing on the irreparable-harm
prong that the movant must establish.
34 See Faiveley, 559 F.3d at 118 (requiring a showing that, “absent a
preliminary injunction,” the movants “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” (internal quotation marks and
citation omitted)).
35 See ante note 24.
17
To dispose of the Board’s appeal at this stage, we do not need to
decide whether § 2-122-a(13) is constitutional on its face. As the
District Court explained, it may well be that the statute “reflect[s]
reasonable policy objectives in the abstract.” 36 And, as counsel for
Plaintiffs explained at oral argument, the application of § 2-122-a(13)
in 2024 may raise different issues that are not implicated in the
circumstances presented at this stage of the case. Those questions, if
ever presented, must be addressed at a later date.
Rather, here, we are called upon to consider the constitutionality
of § 2-122-a(13) as applied by the Board to Plaintiffs and the Sanders
delegates through the adoption of the April 27 Resolution. There is no
“litmus-paper test” to answer that question. 37 Instead, we conduct a
two-step inquiry that applies to election-related restrictions.
First, we ascertain the extent to which the challenged restriction
burdens the exercise of the speech and associational rights at stake.
The restriction could qualify as “reasonable [and] nondiscriminatory”
or as “severe.” 38 Once we have resolved this first question, we proceed
to the second step, in which we apply one or another pertinent legal
standard to the restriction.
36 Yang, 2020 WL 2129597, at *9.
37 Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (internal quotation marks
omitted).
38 Burdick v. Takushi, 504 U.S. 428, 434 (1992).
18
If the restriction is “reasonable [and] nondiscriminatory,” we
apply the standard that has come to be known as the Anderson-Burdick
balancing test: we “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,” and “then . . .
identify and evaluate the precise interests put forward by the State as
justifications for the burden imposed by its rule.” 39 “In passing
judgment” under this more flexible standard, we must “determine
[both] the legitimacy and strength of each of those interests” and “the
extent to which those interests make it necessary to burden the
plaintiff’s rights.” 40
If the restriction is “severe,” then we are required to apply the
more familiar test of “strict scrutiny”: whether the challenged
restriction is “narrowly drawn to advance a state interest of
compelling importance.” 41 It follows then that the “rigorousness of our
inquiry into the propriety of a state election law depends upon the
extent to which a challenged [restriction] burdens First and Fourteenth
Amendment rights.” 42
It may be hard to imagine a more “severe” election-related
restriction than the removal of ten out of eleven qualified candidates
39 Anderson, 460 U.S. at 789.
40 Id.
41 Burdick, 504 U.S. at 434 (internal quotation marks omitted).
42 Id.
19
from a ballot, resulting in the cancellation of the election. That said, in
these circumstances, we need not decide whether the strict-scrutiny
test applies here, since Plaintiffs and the Sanders delegates are clearly
or substantially likely to prevail on the merits of their claim even under
the more flexible and less exacting standard. As the District Court
aptly observed, “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,” the Board’s “justifications
cannot support their weighty imposition on Plaintiffs’ and [the
Sanders delegates’] right to free association.” 43
i. The burden on the asserted constitutional
rights.
The nature of the constitutional rights asserted by Plaintiffs and
the Sanders delegates “is evident.” 44 As discussed above, they wish to
appear on the ballot of New York’s Democratic presidential primary
and they wish to vote in the primary election. That interest “to engage
in association for the advancement of beliefs and ideas” 45 and “to cast
their votes effectively” 46 falls squarely within the ambit of the
protection afforded by the First Amendment. That interest is “an
43 See Yang, 2020 WL 2129597, at *10.
44 Tashjian, 479 U.S. at 214.
45 Id. (quoting NAACP, 357 U.S. at 460).
46 Will. v. Rhodes, 393 U.S. 23, 30 (1968).
20
inseparable aspect of the ‘liberty’ assured by the Due Process Clause
of the Fourteenth Amendment,” which is applicable to the States. 47
It is settled that “[t]he right to associate with the political party
of one’s choice is an integral part of this basic constitutional freedom
[of association],” 48 which in turn “necessarily presupposes” the party’s
right to define its internal structure and “the freedom to identify the
people who constitute the association.” 49 Parties exercise that freedom
in a number of ways, including through elections to choose their
nominees for public office. And although States have a “broad power
to regulate the time, place, and manner of [such] elections,” they have
a “‘responsibility to observe the limits established by the First
Amendment rights of the State’s citizens.’” 50
The State’s power cannot be used, for example, to create barriers
that unduly burden a person’s right to participate in a state-mandated
presidential primary. 51 Indeed, “[a]ny interference with the freedom
of a party” to determine how it will choose its delegates “is
47 Tashjian, 479 U.S. at 214 (quoting NAACP, 357 U.S. at 460); see ante note 2.
48 Id. (quoting Kusper v. Pontikes, 414 U.S. 51, 57 (1973)).
49Id. at 214–15 (quoting Democratic Party of U. S. v. Wisconsin ex rel. La Follette,
450 U.S. 107, 122 (1981)).
50Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 222, (1989) (quoting
Tashjian, 479 U.S. at 217).
See N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 204 (2008) (“We
51
have indeed acknowledged an individual’s associational right to vote in a party
primary without undue state-imposed impediment.”).
21
simultaneously an interference with the freedom of its adherents.” 52
The question thus becomes: what exactly is the burden imposed by the
Board, in adopting by action of two of its members the April 27
Resolution, on the constitutional rights of Plaintiffs and the Sanders
delegates?
a.
Yang wants an opportunity to compete for delegates. And so
does Sanders, who filed an amicus brief before this Court in support
of the claims of Plaintiffs and the Sanders delegates. By the same token,
the Yang and Sanders delegates also want to compete for an
opportunity to attend the Democratic National Convention. These are
not trivial interests. Those familiar with the internal structure of the
Democratic Party and the history of its National Convention will have
no difficulty appreciating their significance.
At the Democratic National Convention, delegates have many
important responsibilities, some with long-term consequences. In
addition to participating in the selection of the presidential nominee,
they vote on the procedural rules of the Convention; the National
Democratic Party electoral platform; issues of party governance; and
52 Tashjian, 479 U.S. at 215 (quoting Democratic Party, 450 U.S. at 122).
22
not insignificantly, the selection of the vice-presidential nominee. 53
Furthermore, the power of the elected delegates extends beyond the
quadrennial national convention. The delegates of the National
Convention remain “the highest authority [and governing body] of the
Democratic Party” until new delegates are selected. 54 Accordingly, the
programs and policies adopted at the Democratic National
Convention will continue to influence state party rules or actions of
the Democratic National Committee. 55
See, e.g., Rockefeller v. Powers, 74 F.3d 1367, 1380 (2d Cir. 1995); Yang, 2020
53
WL 2129597, at *9 (collecting citations to the record); Joint App’x at 300, 305–06.
54 THE CHARTER & THE BYLAWS OF THE DEMOCRATIC PARTY OF THE UNITED
STATES (“CHARTER & BYLAWS”), Charter art. II, §§ 2, 4 and Bylaws art. I, § 1 (as
amended August 25, 2018), available at https://democrats.org/wp-
content/uploads/2018/10/DNC-Charter-Bylaws-8.25.18-with-Amendments.pdf
(last visited May 22, 2020); see also Br. for Amici Curiae Senator Bernie Sanders and
Bernie 2020 Inc. at 4–5 (describing the role of delegates and the National
Convention under the Democratic Party’s Charter & Bylaws) (citing, e.g., CHARTER
& BYLAWS, Charter art. III, § 1; id., art. IV, § 1; id., art. V, § 1).
55The Democratic Party is familiar with how unsuccessful presidential
candidates have influenced the party’s governance and shaped the party’s rules in
a way that has transformed the internal structure and politics of the Democratic
Party moving forward. For example, after an unsuccessful run to obtain the
Democratic nomination for President in the midst of the tumultuous 1968
Democratic National Convention, Senator George McGovern led an effort to reform
the Party’s internal structure and nominating procedures. See Democratic Party of
U.S., 450 U.S. at 116–17. The effort concluded in the adoption of “guidelines to
eliminate state party practices that limited the access of rank-and-file Democrats to
the candidate selection procedures, as well as those that tended to dilute the
influence of each Democrat who took advantage of expanded opportunities to
participate”—which are commonly known as the “McGovern Rules,” and which
were formally “incorporated into the Call to the 1972 Convention, which set forth
23
The process for determining the number of pledged delegates
per candidate is complex, but it is indisputable that, under the current
rules of the National and New York Democratic Party, the only way
for a candidate for delegate to compete for the opportunity to
participate in the work of the Democratic National Convention is if the
name of that delegate’s presidential candidate appears on the ballot.
Put another way: the Board’s cancellation of the presidential primary
has deprived Plaintiffs and the Sanders delegates not only of their
right to cast a ballot in the presidential primary, but also of their right
to seek an entitlement to attend the Democratic National Convention
as delegates. This is a substantial burden on the rights of speech and
association of Plaintiffs and the Sanders delegates.
As the District Court explained:
the formal requirements of the delegate selection and nominating processes for the
Convention.” Id. at 116–17 & nn. 15–16; see also Eli Segal, Delegate Selection Standards:
The Democratic Party’s Experience, 38 GEO. WASH. L. REV. 873, 880–881 (1970), cited
in Democratic Party of U.S., 450 U.S. at 116 n.15. See generally BYRON E. SHAFER, QUIET
REVOLUTION: STRUGGLE FOR THE DEMOCRATIC PARTY & THE SHAPING OF POST-
REFORM POLITICS (1983).
More recently, after an unsuccessful run for the Democratic presidential
nomination in 2016, “Senator Sanders and his delegation actively participated in
the Convention and its Committees, securing important reforms to the Democratic
Party’s platform, rules and bylaws,” which included the promulgation of new rules
that substantially limited the voting power assigned to the so-called
“superdelegates” at the National Convention—rules that have been adopted in the
“Call for the 2020 Convention.” Br. for Amici Curiae Senator Bernie Sanders and
Bernie 2020 Inc. at 1.
24
[T]he 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. 56
The character and magnitude of this burden becomes more
apparent as we consider the circumstances in which the April 27
Resolution came into being. New York election law has long
provided—since at least 1976—that uncontested elections can be
resolved “without balloting.” 57 It is not disputed that an election under
New York law is “uncontested” if there is only one candidate on the
ballot for a particular office—either because that candidate was the
only one who qualified to be on the ballot, or because the other
candidates who had qualified expressly asked to be removed through
a notarized request sent to the Board. 58
56 Yang, 2020 WL 2129597, at *9.
57 N.Y. ELEC. LAW § 6-160(2).
58 Joint App’x at 183–84 (describing the qualifying requirements for a
presidential primary to appear on the ballot and explaining that a qualified
candidate “shall appear as such a Candidate on the Primary ballot throughout the
State unless, that individual files a declination of candidacy with the State Board”);
25
Therefore, absent “declination” or other circumstances not
present here (e.g., a challenge to the validity of the signatures
submitted by the candidate), it had long been understood that once a
candidate qualifies to participate in the primary, the candidate is
entitled to appear on the ballot. It was based on this understanding
that, for example, Yang suspended his campaign in February 2020.
When § 2-122-a(13) was enacted on April 3, 2020, to authorize
the removal from the ballot of those candidates who had publicly
announced that they were suspending their campaigns or no longer
seeking the nomination, the State changed the longstanding rules
governing the New York Democratic Party’s primary process. It did
so, notably, at the eleventh hour. As a result, when the Board exercised
its newly enacted, discretionary authority under § 2-122-a(13) to adopt
the April 27 Resolution, the Board “upended the candidates’ settled
expectation that they would stay on the ballot; after all, when Yang
and [most of] the other contenders suspended their campaigns, there
was no threat that doing so would bar them from competing for
delegates.” 59
b.
see also Sanders Delegates’ Br. at 39 (“Within New York’s Election Law, it is all but
impossible to get off the ballot, ‘however reasonable [the reason for removal] might
appear.’” (quoting Matter of Biamonte v Savinetti, 87 A.D.3d 950, 954 (2d Dept. 2011)).
59 Yang, 2020 WL 2129597, at *9.
26
The Board argues that “both Yang and Senator Sanders had an
opportunity to prevent the Board from removing their names from the
ballot and thus to prevent the cancellation of the presidential
primary.” 60 The Board emphasizes the fact that “Sanders suspended
his campaign [on April 8] after the Legislature enacted Election Law
§ 2-122-a(13), and [that] Yang could have reactivated his campaign
before the Board issued its determination.” 61 We are not persuaded.
As a threshold matter, nothing in the text of § 2-122-a(13)
suggests that candidates who “reactivate” their campaigns may
restore their eligibility to remain on the ballot. That omission is
significant in light of the fact that § 2-122-a(13) was enacted as part of
an omnibus budget bill—without much, if any, public discussion and
without a traceable legislative history. In light of the text of the new
statute and the absence of contemporaneous guidance accompanying
its enactment, the Board’s argument that the candidates “could have
reactivated” their campaigns between April 3 and April 27 carries little
weight.
Significantly, on April 20, when the two Democratic
commissioners of the Board announced their intention to vote on
whether to exercise their new authority under § 2-122-a(13), Yang and
Sanders vigorously objected to the Board’s proposal and made it clear
to the Democratic commissioners that they wished to remain on the
60 Appellants’ Br. at 20.
61 Id.
27
ballot. Indeed, Sanders, through his counsel, sent a detailed letter to
the Board to that effect. 62 In the circumstances presented here, the
Board’s insistence on the candidates’ formal reactivation of their
campaign appears to put form over substance, as it should have been
clear by April 27 that Yang and Sanders wished to remain on the ballot
and compete for delegates. By removing candidates who qualified to
be, and clearly intended to remain, on the ballot, the Board, through
its two Democratic commissioners, effectively manufactured an
“uncontested” election within the meaning of New York election law
and thereby canceled the primary by operation of law. 63 It did so
without apparent regard to the burden that its decision would impose
on the Plaintiffs and the Sanders delegates under the existing
delegate-selection plan.
c.
The Board next argues that the April 27 Resolution does not
preclude “the associational activity that” Plaintiffs and the Sanders
delegates seek because the Democratic National Committee and the
presidential candidates (specifically, Biden and Sanders) can “provide
alternate means for selecting delegates to the convention.” 64 Because
the Democratic National Committee or the presidential candidates
could in theory reach an agreement that renders the presidential
delegate-selection primary unnecessary, we are invited to draw the
62 See Joint App’x at 99–100.
63 See N.Y. ELEC. LAW § 6-160(2).
64 Appellants’ Br. at 35.
28
conclusion that the Board’s actions, as they currently stand, are
constitutional.
We decline this invitation to “overlook an [alleged]
unconstitutional restriction upon some First Amendment activity
simply because it leaves other First Amendment activity
unimpaired.” 65 And we decline to reserve our judgment on a
constitutional claim based on what could happen in an imagined
universe, especially when that universe includes major third-party
actors (e.g., the Democratic National Committee and Vice President
Biden) not present before us.
With this analysis in mind, we turn to the interests asserted by
the Board to justify the burden that the April 27 Resolution placed on
the constitutional rights of Plaintiffs and the Sanders delegates.
ii. The justifications for the April 27 Resolution.
The Board contends that the April 27 Resolution is justified to
further the State’s compelling interests in: (1) protecting the public
from the health risks posed by COVID-19 by, for example, minimizing
social contacts and interactions; and (2) utilizing the Board’s limited
resources to make sure that other (contested) elections can be
conducted safely and efficiently during the current pandemic. We
examine each justification in turn and consider whether they “make it
65 Cal. Democratic Party v. Jones, 530 U.S. 567, 581 (2000).
29
necessary to burden the [constitutional] rights” of Plaintiffs and the
Sanders delegates. 66
As explained below, upon closer examination, the Board
overstates the strength of its justifications in an effort to sustain the
considerable limitations that it has placed on the constitutional rights
asserted by Yang and the Sanders delegates.
a.
With respect to the first justification, the Board explains that
approximately “eighteen of New York’s sixty-two counties contain
subdivisions, such as cities, towns, or election districts, that will not
need to conduct any election at all absent the Democratic presidential
primary,” and that in approximately “seven of these counties” no
election would need to be held. 67 According to the Board, “[n]ot
holding an election in these counties, municipalities, and districts will
significantly reduce the number of voters, poll sites, and poll workers
who will have to be physically present, thereby decreasing the risk of
the virus spreading in the community.” 68
This justification is overstated for at least two reasons. First,
Governor Cuomo has authorized every voter in the State to request an
absentee ballot and has ordered that absentee ballot applications be
66 Anderson, 460 U.S. at 789.
67 Appellants’ Br. at 27 (citing Joint App’x at 118).
68 Id.
30
mailed to all voters. 69 We agree with the District Court that, in light of
these measures and the circumstances they are designed to address,
“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.” 70 Those who do choose to vote in person may cast their votes
by practicing “social distancing,” as recommended by the guidelines
of the Centers for Disease Control and Prevention, 71 or through
innovative methods, such as secure drop-off boxes (if available). 72
Second, primaries for other races will be held on June 23 in the
vast majority of counties in the State. Approximately, “90% or more of
New York’s Democratic Party electorate will be voting in other
primaries” on June 23, “ranging from Congressional seats, State Senate
and Assembly seats, State Democratic Committee, judgeships, and
many other positions.” 73 And the counties that will be conducting
elections include “Kings, Queens, New York, Suffolk, Bronx, and
Nassau Counties, each of which has a population exceeding one
69 See Joint App’x at 286.
70 Yang, 2020 WL 2129597, at *11.
71 CTRS. FOR DISEASE CONTROL AND PREVENTION, Recommendations for
Election Polling Locations: Interim Guidance to Prevent Spread of Coronavirus Disease
2019 (COVID-19) (updated March 27, 2020), https://www.cdc.gov/coronavirus/2019-
ncov/community/election-polling-locations.html (last visited May 22, 2020).
72 Yang, 2020 WL 2129597, at *11 n.4.
73 Joint App’x at 288.
31
million,” 74 and each of which is among the counties of New York (and
the country) most afflicted by the pandemic. These facts stand in stark
contrast to those counties where no election would need to be
conducted absent the Democratic presidential primary, 75 which, as
counsel for the Board conceded at oral argument, are all located in
upstate New York in areas that are not heavily populated. And,
notwithstanding the fact that the pandemic has left the whole country
at a standstill, as counsel for the Board also confirmed at oral
argument, New York is the only State or Territory of the United States
that has canceled the Democratic presidential primary.
b.
The second justification—the Board’s assertedly limited
resources—warrants little discussion. The Board explains that its
limited resources will need “to be diverted from the task of preparing
for and conducting the remaining contested primaries and elections
on June 23” to conduct the presidential primary and potentially
accommodate “a surge in absentee balloting.” 76 This assertion is
simply too conclusory and vague to support the cancellation of the
presidential primary and, in any event, does not warrant the burden
imposed on Plaintiffs and the Sanders delegates.
74 Yang, 2020 WL 2129597, at *11.
75 See Joint App’x at 118.
76 Appellants’ Br. at 30–31.
32
As the Supreme Court teaches, in a related context, “[e]ven
assuming the factual accuracy of these contentions . . . the possibility
of future increases in the cost of administering the election system is
not a sufficient basis here for infringing [Plaintiffs’ and the Sanders
delegates’] First Amendment rights.” 77 If limited resources need to be
diverted from other elections or budgetary sources to conduct the
presidential primary as scheduled, it is only because the Board
effectively canceled the primary in the first instance, notwithstanding
the numerous objections to the contrary. In these circumstances, the
Board’s cost-saving justification does little to advance its position.
2. The Balance of the Equities and the Public Interest
Under the last injunction factor, we must “balance the
competing claims of injury and must consider the effect on each party
of the granting or withholding of the requested relief,” 78 as well as “the
public consequences in employing the extraordinary remedy of
injunction.” 79
Our analysis of the competing interests under the Anderson-
Burdick framework demonstrates that the balance of equities tips in
favor of Plaintiffs and the Sanders delegates, and in favor of upholding
the preliminary injunction entered by the District Court. It bears
77 Tashjian, 479 U.S. at 218.
78 Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531, 542 (1987)).
79 Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).
33
recalling that, under the current rules of the Democratic Party and its
New York delegate-selection plan, a presidential primary must take
place in order for the Yang and Sanders delegates to be able to
participate in the deliberations of the Democratic National
Convention. And in light of the importance of the right to political
participation in a primary election and the pivotal role that delegates
play within the structure of the Democratic Party, Plaintiffs and the
Sanders delegates have shown that, absent injunctive relief, their First
Amendment rights likely would be forever extinguished. That is
surely a “significant” hardship that the Board has not adequately
justified. 80
We are mindful that the cost of the preliminary injunction on the
Board may not be trivial. But as the District Court aptly stated, it is a
cost that the State of New York chose to bear “when it assumed the
responsibility of regulating and holding the [Democratic Party’s]
primary election,” and that it was required “to shoulder . . . before the
adoption of the April 27 Resolution.” 81 We agree that the balance
struck by the District Court between the various competing interests
promotes, rather than undermines, the public interest. 82
80 New York Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013);
see also Yang, 2020 WL 2129597, at *12 (collecting cases).
81 Yang, 2020 WL 2129597, at *12.
82 See id.
34
III. CONCLUSION
To summarize: we conclude that Plaintiffs and the Sanders
delegates have: (1) made a strong showing of irreparable harm absent
injunctive relief; (2) demonstrated a clear or substantial likelihood of
success on the merits of their claims under the First and Fourteenth
Amendments; and (3) demonstrated that the balance of the equities
tips in their favor and that the public interest would be served
adequately by the District Court’s preliminary injunction. We hold
that the District Court did not err or abuse its discretion in granting
the application for a preliminary injunction, which was carefully
tailored to secure the constitutional rights at stake and to afford the
Board sufficient time and guidance to carry out its obligations to the
electorate and to the general public.
The District Court’s May 5, 2020 order entering a preliminary
injunction is AFFIRMED.
35