Yang v. Kosinski ( 2020 )

20-1494-cv
Yang, et al. v. Kosinski, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 19th day of May, two thousand twenty.
PRESENT: AMALYA L. KEARSE,
DENNIS JACOBS,
JOSÉ A. CABRANES,
Circuit Judges.
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, 20-1494-cv
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,
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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.
FOR PLAINTIFFS-APPELLEES: JEFFREY M. KURZON, Kurzon Kohen
LLP, New York, NY.
FOR INTERVENORS-PLAINTIFFS-APPELLEES:
J. REMY GREEN (Elena L. Cohen,
Jonathan Wallace, on the brief) Cohen &
Green P.L.L.C., Ridgewood, NY; ARTHUR
Z. SCHWARTZ, Advocates for Justice, New
York, NY.
FOR DEFENDANTS-APPELLANTS: JUDITH N. VALE, Senior Assistant
Solicitor General (Barbara D. Underwood,
Solicitor General, Steven C. Wu, Deputy
Solicitor General, Jennifer L. Clark,
Assistant Solicitor General, on the brief), for
Letitia James, Attorney General, State of
New York, New York, NY.
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FOR AMICI CURIAE BERNIE SANDERS AND BERNIE 2020 INC.:
Malcolm Seymour, David R. West, Foster
Garvey, P.C., New York, NY.
FOR AMICI CURIAE NEW YORK STATE VOTERS:
Ezra Ishmael Young, Law Office of Ezra
Young, Brooklyn, NY.
FOR AMICI CURIAE MEDICAL PROFESSIONALS:
Robert Rickner, Rickner PLLC, New
York, NY.
FOR AMICI CURIAE HEATHER KEY, ET AL.: Walter H. Hackett, III, Law Office of
Walter Hackett, Walnut, CA.
Appeal from a May 5, 2020 order of the United States District Court for the Southern
District of New York (Analisa Torres, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the May 5, 2020 order of the District Court granting the application for
preliminary injunction be and hereby is AFFIRMED. An opinion of the Court explaining its
reasoning in further detail will follow.
Defendants-Appellants (“Defendants”) appeal from a May 5, 2020 order of the District
Court granting an application of preliminary injunction to require them 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. Defendants argue that the
decision of the New York State Board of Elections (“Board”) to remove from the ballot the
candidates who had suspended their campaigns (along with their pledged delegates) is supported by
reasonable concerns about harms to the public health and election administration workers in light of
the current COVID-19 pandemic. Accordingly, Defendants argue, the Board’s decision did not
violate the First Amendment rights of Plaintiffs and Intervenors-Plaintiffs. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo the District Court’s legal conclusions in connection with its decision to
grant the application for preliminary injunction, see Am. Express Fin. Advisors Inc. v. Thorley, 147 F.3d
229, 231 (2d Cir. 1998), but review its ultimate decision to issue the injunction for abuse of
discretion, see Goldman, Sachs & Co. v. Golden Empire Schs. Fin. Auth., 764 F.3d 210, 214 (2d Cir. 2014).
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After reviewing the record, we affirm the order granting the application for preliminary
injunction for substantially the reasons given by the District Court in its thorough May 5, 2020
Opinion and Order. See Yang v. Kellner, No. 20-cv-3325 (AT), ---F. Supp. 3d---, 2020 WL 2129597, at
*1–14 (S.D.N.Y. May 5, 2020).
CONCLUSION
We have reviewed all of the remaining arguments raised by Defendants on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the May 5, 2020 order of the
District Court.
The mandate shall issue forthwith. An opinion of this Court will follow explaining its
reasoning in further detail.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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