Silberberg v. Bd. of Elections of N.Y.
| Decision Date | 03 November 2016 |
| Docket Number | 16-cv-8336 (PKC) |
| Citation | 216 F.Supp.3d 411 |
| Parties | Eve SILBERBERG, Jennifer Rebecca White, and Michael Emperor, Plaintiffs, v. BOARD OF ELECTIONS OF THE STATE OF NEW YORK, Co-Chairs Peter S. Kosinski and Douglas A. Kellener, Commissioners Andrew J. Spano and Gregory P. Peterson; Board of Elections of the City of New York President Maria R. Guastella, Secretary Frederic M. Umane, and Commissioners Jose Miguel Araujo, John Flateau, Ph.D., Lisa Grey, Michael Michel, Michael A. Rendino, Alan Schulkin, Simon Shamoun, Rosanna Vargas; New York County District Attorney's Office, District Attorney Cyrus Vance; Kings County District Attorney's Office, District Attorney Eric Gonzalez, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Leo Glickman, Amy Robinson, Stoll, Glickman & Bellina, LLP, Brooklyn, NY, for Plaintiffs.
John Michael Schwartz, State of New York Office of the Attorney General, Douglas A. Kellner, Kellner Herlihy Getty & Friedman LLP, Stephen Edward Kitzinger, New York City Law Depart. Office of the Corporation Counsel, New York, NY, for Defendants.
This is an action to enjoin the enforcement of a provision of New York Election Law. According to the parties, the provision bars the taking of "ballot selfies," the act of photographing one's image together with one's marked ballot for the purpose of posting the photograph on a social media site. Celebrities, politicians and government leaders, even Pope Francis and the Dali Lama, have had selfies taken, posted, and viewed thousands or millions of times. They are a potent form of speech presumptively entitled to First Amendment protections.
Plaintiffs' important First Amendment rights must be reconciled with the cherished right to vote. Courts have held that an individual's right to speech related to a political campaign must give way, for example, to a state-imposed restriction that prohibits campaigning within 100 feet of an entrance to a polling place. Burson v. Freeman , 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992).
At issue is N.Y. Elec. Law § 17–130(10), which provides that "[a]ny person who ... [s]hows his ballot after it is prepared for voting, to any person so as to reveal the contents ... is guilty of a misdemeanor." The provision, enacted 126 years ago, was part of 19th century legislation popularly known as the Australian ballot reforms. The statute did not merely offer the voter the option of voting in secrecy, but mandated it, and for good reason.1 As Justice Blackmun noted in Burson , the nation had been plagued with voter bribery prompted by ballots that political parties "often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance." 504 U.S. at 200, 112 S.Ct. 1846. The problem was not resolved by standardized ballots because "the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box." Id.
Because of the statute, those who would engage in ballot policing, for the purpose of bribery or to enforce orthodoxy among members of a group, whether members of union, employees of a company, or members of a religious group, have longed been deprived of an essential tool for success.2
The absence of recent evidence of this kind of voter bribery or intimidation does not mean that the motivation to engage in such conduct no longer exists. Rather, it is consistent with the continued effectiveness of the New York statute.
This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well-intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.
For reasons that will be further explained, the motion for a preliminary injunction is denied.
While neither party cites to recent prosecutions under the statute at issue, none of the defendants have disclaimed an intent to enforce it on election day. Therefore, the threat of prosecution, as it appears at the preliminary injunction stage, is "concrete and particularized" rather than "conjectural or hypothetical." Lujan v. Defs. of Wildlife , 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotation marks omitted).
At the outset, the Court notes that the plaintiffs only have standing to challenge section 17–130(10) as it applies to in-person voting and not to absentee ballots. Plaintiffs' affidavits assert only that they each "intend to vote in the General Election to be held on November 8, 2016." (Emperor Aff. 1; Silberberg Aff. 1; White Aff. 1.) There is no suggestion in any of the plaintiffs' submissions that they intend to vote via absentee or military ballot. In fact, the Complaint alleges that "[p]laintiffs are registered voters in New York who wish to take ballot selfies when they vote on November 8, 2016." (Compl. ¶ 21) (emphasis added). Considering that ballots completed outside of a polling place, like absentee or military ballots, are generally marked and filed prior to election day, the Complaint strongly implies that plaintiffs intend to vote in person on November 8.
When confronted with this issue at oral argument, plaintiffs' counsel offered that his clients had standing to challenge section 17–130(10) as it applied to absentee ballots because they could change their minds and decide not to vote in person, or could have some kind of emergency and need to vote by absentee ballot. Plaintiffs' counsel points out that they could obtain ballots from the Board of Elections up until the day before the election. (Hearing Tr. 39); https://www.elections.ny.gov/VotingAbsentee.html. But, the mere possibility that injury may occur is not enough to confer standing, particularly where "the acts necessary to make the injury happen are at least partly within the plaintiff's own control." Lujan , 504 U.S. at 564 n.2, 112 S.Ct. 2130 ; id. (); see also Clapper v. Amnesty Int'l USA , 568 U.S. 398, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) () (citations and quotation marks omitted). Photographs of absentee, overseas, or military ballots present unique issues that have not been briefed by the parties. The Court concludes that the plaintiffs do not have standing to assert claims based on the application of section 17–130(10) to ballots completed outside of a polling site and accordingly does not address that situation.
A preliminary injunction is an "extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Grand River Enter. Six Nations, Ltd. v. Pryor. , 481 F.3d 60, 66 (2d Cir. 2007) (citation omitted). Ordinarily, a plaintiff seeking a preliminary injunction must show "(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Christian Louboutin S.A. v. Yves Saint Laurent Am. Holding s , Inc. , 696 F.3d 206, 215 (2d Cir. 2012). But "[w]hen, as here, the preliminary injunction will affect government action taken in the public interest pursuant to a statutory or regulatory scheme, it should be granted only if the moving party meets the more rigorous likelihood-of-success standard." Red Earth LLC v. United States , 657 F.3d 138, 143 (2d Cir. 2011) (quotation marks omitted). "Additionally, the moving party must show that a preliminary injunction is in the public interest," Oneida Nation of N.Y. v. Cuomo , 645 F.3d 154, 164 (2d Cir. 2011) (citing Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 19–20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ), and that "the balance of equities tips in his favor," Winter , 555 U.S. at 20, 129 S.Ct. 365.
The state defendants contend that because the injunction "will provide the [plaintiffs] with substantially all the relief sought and that relief cannot be undone even if the defendant[s] prevail[ ] at a trial on the merits," a heightened preliminary injunction standard should apply. N.Y. ex rel. Schneiderman v. Actavis PLC , 787 F.3d 638, 650 (2d Cir. 2015) (quoting Tom Doherty Assocs., Inc. v. Saban Entm't, Inc. , 60 F.3d 27, 33–34 (2d Cir. 1995) ). Under this heightened standard, the Second Circuit requires the movant to show a "clear or substantial likelihood of success on the merits and make a strong showing of irreparable harm in addition to showing that the preliminary injunction is in the public interest." Schneiderman , 787 F.3d at 650 (citations and quotation marks omitted).
Under either standard, the plaintiffs have failed to make the necessary showing for a preliminary injunction.
"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns , 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Specifically, "[w]here a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed." Bronx Household of Faith v. Bd. of Educ. of City of N.Y. , 331 F.3d 342,...
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