MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Plaintiff Norma Gonsalves, along with fifty-five other individuals (the "plaintiff candidates"), are candidates for various public offices throughout Nassau County. Each plaintiff candidate has been validly nominated as a candidate of a political party, as well as a candidate of the Tax Revolt Party, which is defined as an independent body under New York Election Law.
As set forth in more detail infra, New York State allows fusion politics, whereby a candidate that has been nominated by more than one party or independent body may appear on a ballot multiple times, and all votes for that candidate are pooled in determining the results of the election. Pursuant to Section 7-104, on a typical ballot in Nassau County, the leftmost column lists the names of political parties and independent bodies, and each adjacent column lists the candidate nominated by that party or independent body for each election. When a candidate has been nominated by two or more political parties, as well as an independent body, the candidate's name appears only in the lines associated with the political parties that have nominated her. The independent body does not receive its own ballot line; instead, the independent body's name and emblem appears next to the candidate's name on a political party's ballot line. Plaintiffs argue that this scheme, which does not require a separate ballot line for the Tax Revolt Party in every instance in which it has validly nominated a candidate for public office, violates the First and Fourteenth Amendments.
For the reasons set forth below, the Court denies plaintiffs' motion for a preliminary injunction and a temporary restraining order because it is clear that Section 7-104 does not violate the First and Fourteenth Amendment, either facially or as applied to the facts of this case. Specifically, the Court finds that the burdens placed on the plaintiff candidates and the plaintiff voter are not severe. Because the State's expressed interest in minimizing ballot confusion and promoting ballot integrity outweighs the non-severe burdens placed on the plaintiff candidates and the plaintiff voter, the Court concludes, based upon the record before it, that the statute does not violate plaintiffs' First and Fourteenth Amendment rights. Plaintiffs' motion must fail because they have not demonstrated a likelihood of success on the merits or even sufficiently serious questions going to the merits making them a fair ground for litigation.
A. Factual Background
The following facts are taken from the complaint, as well as the parties' submissions to the Court.
The terms "party" and "independent body" are defined terms under New York election law. A party is "any political organization which at the last preceding election for governor polled at least fifty thousand votes for its candidate for governor." N.Y. Elec. Law. § 1-104(3). An independent body is "any organization or group of voters which nominates a candidate or candidates for office to be voted for at an election, and which is not a party as herein provided." Id. § 1-104(12).
New York election ballots are formatted as a grid. For example, on a typical ballot
New York State allows fusion politics, whereby a candidate that has been nominated by more than one party or independent body may appear on a ballot multiple times, and all votes for that candidate are pooled in determining the results of the election. A candidate nominated by multiple parties will appear in the row of each party that nominated her. Id. § 7-104(4)(b).
However, the Election Law becomes more complicated when a candidate has been nominated by a party and an independent body. If a candidate has been nominated by only one party and one or more independent bodies, the candidate's name appears twice, once in the row associated with the party that nominated her and once in a row associated with an independent party. If a candidate has been nominated by multiple political parties and at least one independent body, the candidate's name appears in the rows associated with each nominating political party, but no separate line associated with the independent body is created on the ballot. Instead, the independent body's name and emblem is printed next to the candidate's name alongside one of the political parties that nominated the candidate. Moreover, under Section 7-104, where the independent body has obtained a separate ballot line — because it has nominated at least one candidate for an elected position on the ballot who does not meet the above-referenced criteria for use of the emblem — the other candidates for that independent body who do meet the criteria for an emblem still do not appear on the independent body's line and simply maintain the emblem on a political party's line, thereby leaving a blank space for that particular elected office in the column for that independent body.
The Tax Revolt Party is an independent body under New York Election Law. (Compl. ¶ 4.) Plaintiffs state that the "Tax Revolt Party has a long history in the State of New York, extending back to the 1980's and 1990's where independent bodies [used] names such as `Tax Cut Party,' `Tax Revolt Party' and `Tax Cut Now.'" (Id. ¶ 5.) According to Biamonte, the Tax Revolt Party is "a de facto arm of the Republican Party in Nassau County" and was "invented as a method for the Nassau County Republican Party to support the candidacy of the Republican Party's nominee, plaintiff candidate Edward P. Mangano, for the public office of Nassau County Executive in the 2009 general election." (Mem. of L. in Opp'n to Pls.' Mot. for a TRO & Prelim. Inj. ("Biamonte Opp'n") at 3-5.)
B. Procedural History
On September 13, 2013, plaintiffs filed the complaint in this action, as well as a motion for a preliminary injunction and temporary restraining order. The Court denied plaintiff's motion for a temporary restraining order for the reasons set forth on the record at the September 13, 2013 conference. On September 18, 2013, the Court granted the State's motion to intervene to defend the constitutionality of the Election Law. On September 20, 2013, the State Board filed an answer, taking no position on the constitutionality of the statute. Also on September 20, 2013, Savinetti filed an answer, as well as a memorandum of law in support of plaintiffs' motion, and the State and Biamonte filed separate memoranda in opposition to plaintiffs' motion. Plaintiffs filed a reply in support of their motion on September 23, 2013. The Court held an order to show cause hearing on September 24, 2013. The Court has fully considered all of the arguments of the parties.
A. Preliminary Injunction Standard
"The preliminary injunction `is one of the most drastic tools in the arsenal of judicial remedies.'" Grand River Enters.
"All election laws necessarily implicate the First and Fourteenth Amendments." Dillon v. N.Y. Bd. of Elections, No. 05 CV 4766, 2005 WL 2847465, at *3 (E.D.N.Y. Oct. 31, 2005); see also Prestia v. O'Connor, 178 F.3d 86, 87 (2d Cir.1999) (per curiam) (analyzing whether a New York election law violates "the freedoms of speech and association guaranteed by the First and Fourteenth Amendments"). Although "[t]he First Amendment protects the right of citizens to associate and to form political parties for the advancement of common political goals and ideas, ... it is  clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357-58, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997).
In determining the constitutionality of a state's election law, a court "must weigh `the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against `the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration `the extent to which those interests make it necessary to burden the plaintiff's rights.'" Burdick v.
1. Severity of the Burdens
Plaintiffs argue that Section 7-104 places severe burdens on their First and Fourteenth Amendment rights. First, the plaintiff candidates argue that the law "impairs their ability to associate with other Tax Revolt Party candidates, and to be identified as clearly as possible as a candidate of the Tax Revolt Party." (Mem. of L. in Supp. of Pls.' Mot. for a TRO & Prelim. Inj. ("Pls.' Mem.") at 8.) Second, plaintiffs claim that it interferes with the ability of voters to exercise their right to free expression by voting for a candidate "under the Tax Revolt Party banner." (Id.)
Based on the Supreme Court's decision in Timmons, this Court finds that the restrictions imposed on the plaintiff candidates and the plaintiff voter are not severe. In Timmons, the Supreme Court held that Minnesota's election laws, prohibiting a candidate from appearing on the ballot as the candidate of more than one party, did not violate the First and Fourteenth Amendment. 520 U.S. at 354, 117 S.Ct. 1364. According to the Supreme Court, although a political party has a right to select its own candidates, "[t]hat a particular individual may not appear on the ballot as a particular party's candidate does not severely burden that party's associational rights." Id. at 359, 117 S.Ct. 1364. The Court rejected the party's argument that the ban "burdens [that party's] right to communicate its choice of nominees on the ballot on terms equal to those offered other parties, and the right of the party's supporters and other voters to receive that information." Id. at 362, 117 S.Ct. 1364 (alteration, citation, and internal quotation marks omitted). The Court stated:
Id. at 362-63, 117 S.Ct. 1364.
Minnesota's law, which forbids candidates from appearing multiple times on the ballot, imposes a more severe restriction than Section 7-104. In New York, candidates that have been nominated by two parties, as well as by the Tax Revolt Party, are not being denied access to the ballot, nor are they restricted from appearing multiple times as in Minnesota. Instead, the only restriction relevant to this case that New York imposes is that a candidate that has been nominated by more than one political party cannot also appear on the ballot on a line for an independent body. However, New York allows the name and emblem of the independent body to appear next to the candidate's name.
Therefore, the law does not impose a severe restriction on the right of the plaintiff candidates to associate with other members of the Tax Revolt Party because Section 7-104 does not restrict their ability: (1) to be nominated by the Tax Revolt Party; (2) appear on the ballot as a member of the Tax Revolt Party; or (3) fundraise or make speeches with other members of the Tax Revolt Party. Most importantly, the law does not deny these candidates the ability to get elected, as nearly all of the plaintiff candidates will appear at least twice on the ballot in the upcoming election. If denying the ability of an individual to "appear on the ballot as a particular party's candidate does not severely burden that party's associational rights," id. at 359, 117 S.Ct. 1364, then requiring an individual nominated by two parties to be designated as a candidate of an independent body in a less prominent fashion cannot severely burden that candidate's rights.
In addition, the rights of the plaintiff voter are not being severely restricted. The Supreme Court in Timmons rejected the plaintiff voter's argument that election laws must allow voters to cast ballots for parties, as well as candidates, stating that "[b]allots serve primarily to elect candidates, not as forums for political expression." Id. at 363, 117 S.Ct. 1364.
Two other courts in this district have ruled on similar or identical challenges to Section 7-104, and both determined that the law's restrictions were not severe. In Dillon, the plaintiff sued for the same reason as in this case; he was nominated by two parties and one independent body, and, thus, New York Election Law restricted him to two lines on the ballot. Judge Gleeson held that the law placed a "minor burden" on "independent bodies and their candidates." 2005 WL 2847465, at *8. In Credico v. N.Y. Board of Elections, No. 10 CV 4555, 2013 WL 3990784 (E.D.N.Y. Aug. 5, 2013) (Report and Recommendation), a plaintiff candidate was nominated by two independent bodies (but no parties) and was required by New York Election Law to only appear on the ballot one time — next to the name of only one
Accordingly, this Court concludes that the burdens imposed by Section 7-104 on the plaintiff candidates and the plaintiff voter are not severe.
2. Balancing the State's Interests with the Burden on Plaintiffs' Rights
Although the burdens imposed on plaintiffs are not severe, this Court must still balance the restrictions imposed by the law against the State's asserted interests. See Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) ("However slight [a] burden may appear, ... it must be justified by relevant and legitimate state interests sufficiently weighty to justify the limitation." (citation and internal quotation marks omitted)); Burdick, 504 U.S. at 434, 112 S.Ct. 2059; Price v. N.Y. Bd. of Elections, 540 F.3d 101, 108-09 (2d Cir.2008) (reviewing Supreme Court precedent and stating that a court is not to apply "pure rational basis review" by considering "every conceivable basis which might support the challenged law," but instead, to "actually weigh the burdens imposed on the plaintiff against the precise interests put forward by the State, [taking] into consideration the extent to which those interests make it necessary to burden the plaintiff's rights" (citations and internal quotation marks omitted)).
The State asserts that it "has a legitimate interest in having a clear and uncluttered ballot that reduces the risk of voter confusion," and, thus, the State should not have to include a line for the Tax Revolt Party in every election in which it nominated a candidate. (Intervenor State of N.Y. Mem. of L. in Supp. of the Constitutionality of N.Y. Elec. Law § 7-104 ("State Mem.") at 13.) Biamonte elaborates on this point, claiming that the "statute serves to discourage major parties from exploiting New York State's fusion voting scheme by creating various sham entities to nominate the major party's candidates as candidates of newly invented independent bodies...." (Biamonte Opp'n at 13.)
At oral argument, in response to the Court's concern that plaintiffs' position would cause a complete undoing of a fair and rational ballot, plaintiffs argued that the State could restrict the number of times a candidate could appear by increasing the number of signatures required to place an independent body's candidate on the ballot. In short, plaintiffs argue that New York has made the wrong choice about how to promote ballot integrity. The Court need not make such a policy determination. "[B]ecause the burdens [Section 7-104] imposes on the [the plaintiff candidates' and the plaintiff voter's] rights are not severe, the State need not narrowly tailor the means it chooses to promote ballot integrity." Id. at 365, 117 S.Ct. 1364. Instead, all that is required is that the State's expressed legitimate interest outweighs the burdens imposed on plaintiffs' rights, and, for the reasons discussed supra, the Court finds that it does.
In Dillon, the State argued that limiting the number of times a candidate could appear was necessary due to restrictions on the size of the ballot. See Dillon, 2005 WL 2847465, at *5 (stating that "defendants' ballot space concerns are real" and holding that state's interest outweighs the burden of the law). Here, plaintiffs argue that the State's expressed interest in limiting the number of lines on the ballot is inapplicable to this year's election in Nassau County because, even if the Tax Revolt Party received a separate line on every ballot throughout the County, there is enough space to fit every party and independent body on one-side of a ballot. However, the Court does not rely on this justification in upholding the law. Although the State has tangentially argued that striking down this law would lead to increased costs in this election, the State does not justify the law on the basis of space as it did in Dillon. Instead, the State repeatedly argues that the restriction is to prevent, ballot confusion and promote ballot integrity, regardless of the potential space and cost concerns in this election. In addition, even if this election would not require the printing of larger or double-sided ballots, the State should not be required to modify its ballot requirements every election depending on how
Accordingly, because the State's expressed interest in minimizing ballot confusion and promoting ballot integrity outweighs the burden placed on the plaintiff candidates and the plaintiff voter, the Court finds that the Nassau County Board of Elections is not required to include a Tax Revolt Party line on every ballot in which a Tax Revolt Party candidate has been nominated by two political parties.
Having found that the Tax Revolt Party should not receive a line on every ballot, the Court turns to one additional question: whether Section 7-104(4)(d) violates the First and Fourteenth Amendments when it forbids a candidate's name from appearing in the Tax Revolt Party row in situations where the Tax Revolt Party will already be receiving a row on the ballot. Under the reading of the statute advanced by the State, where the Tax Revolt Party will already receive a line on the ballot (because, for example, a candidate in one election has only received the nomination of one political party and the Tax Revolt Party), candidates in other elections on that same ballot that are nominated by the Tax Revolt Party and by two parties will not have their name placed in the Tax Revolt Party row. This will result in a blank space in the Tax Revolt Party row for that election, even though the Tax Revolt Party has nominated an individual for that office. At oral argument, counsel for all parties appeared to agree that this situation would affect at least one plaintiff candidate (and possibly a second, depending on a lawsuit challenging the signatures gathered by plaintiff candidate Steven Rhoads).
As to this scenario, plaintiff contends that, if the State is genuinely interested in reducing ballot confusion, having a blank next to an independent body that validly nominated an individual for elected office actually promotes ballot confusion by indicating to voters that the Tax Revolt Party has not nominated someone for an elected office when they in fact have. This argument has been accepted by at least two courts in finding Section 7-104 to be unconstitutional. See Credico, 2013 WL 3990784, at *23; Sherwood v. N.Y. Bd. of Elections, 17 Misc.3d 922, 847 N.Y.S.2d 428, 431 (N.Y.Sup.Ct. Dutchess Cnty. 2007); see also Dillon, 2005 WL 2847465, at *7 (stating in dicta that leaving a blank space when an independent body had nominated a candidate for that office to be an "anomalous" and "absurd" result and a "remorseless reading of the statute").
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The Court understands that it must proceed with great caution when candidates for elected office and voters argue that an election law restricts their constitutional rights, as "voting is of the most fundamental significance under our constitutional structure." Burdick, 504 U.S. at 433, 112 S.Ct. 2059 (citation and internal quotation marks omitted). However, "[c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Id. (citation and internal quotation marks omitted). The burdens imposed by Section 7-104 are justifiable regulations with the goal of promoting "fair and honest" elections. The statute does not: (1) restrict a candidate from appearing on the ballot; (2) forbid a candidate from identifying with the Tax Revolt Party on the ballot; or (3) deny citizens the right to vote for any of the plaintiff candidates. Having weighed the non-severe burdens imposed on the plaintiff candidates and the plaintiff voter against New York's legitimate goal of promoting ballot integrity and reducing voter confusion, the Court finds, based upon the record before it, that Section 7-104 does not violate plaintiffs' First and Fourteenth Amendment rights. Thus, plaintiffs' motion must fail because they have failed to demonstrate a likelihood of success on the merits or even sufficiently serious questions going to the merits to make them a fair ground for litigation.
For the foregoing reasons, plaintiffs' motion for a preliminary injunction and a temporary restraining order is denied.