Yang v. Kellner
| Decision Date | 05 May 2020 |
| Docket Number | 20 Civ. 3325 (AT) |
| Citation | 458 F.Supp.3d 199 |
| Parties | 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, Plaintiffs, v. 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, 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, v. Douglas A. Kellner and Andrew Spano, as Commissioners of the New York State Board of Elections, and The New York State Board of Elections, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Leonard Moshe Kohen, Kurzon Kohen LLP, Jeffrey Mead Kurzon, Jeffrey M. Kurzon Esq., New York, NY, for Plaintiffs.
Matthew Lawrence Conrad, New York State Office of the Attorney General, New York, NY, for Defendants.
Arthur Z. Schwartz, Advocates for Justice, Chartered Attorneys, New York, NY, Elena Louisa Cohen, Brooklyn, NY, Jonathan Wallace, Astoria, NY, Remy Green, Cohen & Green, Ridgewood, NY, for Plaintiff-Intervenors.
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, 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.
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") § III(A)(3) (), ECF No. 27-6; id. § II(A)(3) ().
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/2/2019/07/2020-Call-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
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 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.
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...
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