The Federal district court just issued a very bad decision from the point
of view of anybody wanting to challenge the right or the authority of the
Board of Elections to throw candidates off the ballot. This I believe runs
against many other decisions where the federal courts have restored
candidates to the ballot. Here is the decision. What does anybody think
about this? What should I do or what can I do if anything? In short, the
bad guys won.
noon8window.pdf (36 Bytes)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LORNA G. SCHOFIELD, District Judge:
On September 3, 2015, Plaintiff Samuel H. Sloan, proceeding pro se, filed a
Complaint and a proposed Order to Show Cause seeking to “restor[e] Sam
Sloan and 10 other candidates for Judicial Delegate plus one candidate for
Supreme Court Judge to the Primary Election to be held on September 10,
2015.” Based on the facts alleged and relief requested therein, the Court
construes the Complaint as a request for injunctive relief. The Complaint
purports to be brought under 42 U.S.C. § 1983, 42 U.S.C. § 1988, the First
Amendment and Fourteenth Amendment. For the following reasons, the request
for injunctive relief is denied.
*I. LEGAL STANDARD*
To obtain a preliminary injunction, a plaintiff “must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of equities
tips in his favor, and that an injunction is in the public interest.” *Winter
v. Natural Res. Def. Council, Inc.*, 555 U.S. 7, 20 (2008). If, as here, a
party seeks “a mandatory injunction (one that will alter the status quo)
rather than a prohibitory injunction (one that maintains the status quo),”
the burden is more onerous and the party seeking the mandatory injunction
“must show a clear or substantial likelihood of success.” *Hoblock v.
Albany County Bd. of Elections*, 422 F.3d 77, 97 (2d Cir. 2005).
*II. DISCUSSION*
Plaintiff has failed to make the requisite showing of a clear or
substantial likelihood of success on the merits of his claims for at least
three reasons. First, Plaintiff’s claims may be precluded as a matter of
law as they appear to have been heard and decided in New York state court.
“[A] final judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have been raised
in that action.” *SEC v. First Jersey Sec.*, *Inc.*, 101 F.3d 1450, 1463
(2d Cir. 1996) (quoting *Federated Dep’t. Stores, Inc. v. Moitie*, 42 U.S.
394, 398). Here, the Complaint asserts that Plaintiff filed an action in
New York state court on or around July 23, 2015, related to the same issues
alleged in this action and appears to state that Plaintiff obtained an
unfavorable ruling in New York state court. Plaintiff’s claims therefore
are likely be precluded.
Second, although Plaintiff asserts claims under the First and Fourteenth
Amendments, the gravamen of Plaintiff’s claims is that his exclusion from
the ballot was erroneous under state law. In particular, the Complaint
alleges that the Board of Election improperly conducted a line-byline
review of the petitions at issue “when no proper objection by a voter ha[d]
been filed.”These claims appear to be untimely. New York Election Law §
16-102 requires that proceedings regarding ballot petitions must be filed
within the later of fourteen days after the petition was filed or three
business days after a determination that the petition was invalid. Here,
the Complaint asserts that the petitions at issue were filed on July 8,
2015, and ruled invalid by July 23, 2015. Plaintiff, however, did not
commence this action until September 3, 2015. This litigation therefore
appears to be untimely. *See, e.g.*, *Harris v. Diaz*, No. 04 Civ. 9124,
2004 WL 2912888, at *5-6 (S.D.N.Y. Dec. 14, 2004); *Herrington v. Cuevas*,
No. 97 Civ. 5806, 1997 WL 703392, at *3-5 (S.D.N.Y. Nov. 10, 1997); *Matter
of Gangemi v. Bd. of Elections of the City of N.Y.*, 109 A.D.3d 541, 541-42
(2d Dep’t 2013).
Third, to the extent Plaintiff asserts that he is deprived of his
“constitutional First Amendment right to vote,” this claim appears unlikely
to succeed as Plaintiff does not allege that he is prevented from accessing
the polls or casting any vote for any candidate. Rather, Plaintiff
challenges his ability to vote for the candidate of his choice, which is
not an absolute right. The rights to “vote in any manner” and “to associate
for political purposes through the ballot” are not absolute because
regulation of elections is necessary for the fair, honest, and orderly
administration of elections, and election laws “invariably impose some
burden upon individual voters.” *Burdick v. Takushi, *504 U.S. 428, 433
(1992); *accord Rivera–Powell v. N.Y.C. Bd. Of Elections, *470 F.3d 458,
469 n. 15 (2d Cir. 2006) (“Many restrictions, such as signature
requirements, not only do not burden voters’ constitutional rights to
associate, but are, as a practical matter, necessary to ensure the orderly
functioning of elections.”). Here, the Complaint makes conclusory
allegations that Plaintiff’s right to vote is violated as “[t]he right for
a candidate to appear on the ballot is integral to the right to vote . . .
.” Accordingly, Plaintiff has not shown a likelihood of success that his
right to vote for a specific candidate, even if impeded by election laws
governing signatures required for a candidate to appear on the ballot, is a
recognized constitutional injury.
Beyond likelihood of success, Plaintiff also has failed to demonstrate that
the balance of equities “tip[s] decidedly” in his favor or that an
injunction is in the public’s interest. *See Otoe-Missouria Tribe of
Indians v. N.Y. Dep’t of Fin. Servs.*, 769 F.3d 105, 110 (2d Cir. 2014).
*III. CONCLUSION*
For the foregoing reasons, Plaintiff has failed to demonstrate that he is
entitled to mandatory injunctive relief. Accordingly, Plaintiff’s request
for mandatory injunctive relief is DENIED.
The Clerk of Court is respectfully directed to mail a copy of this Order to
the pro se Plaintiff.
SO ORDERED.
Dated: September 9, 2015
New York, New York