EH Fusion Party v. Suffolk County Board of Elections

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------X

EH FUSION PARTY, DAVID GRUBER, BONNIE

BRADY, ELIZABETH A. BAMBRICK, RONA S.

KLOPMAN, DELL R. CULLUM, RICHARD P.

DREW, II, SUSAN M. VORPHAL, STEPHEN M.

MEMORANDUM AND ORDER

LESTER, DAVID TALMAGE, FALLON NIGRO,

MICHAEL HAVENS, and SIMON V. KINSELLA, 19-CV-3511 (KAM)(SJB)

Plaintiffs,

-against-

SUFFOLK COUNTY BOARD OF ELECTIONS,

COMMISSIONER ANITA S. KATZ, and

COMMISSIONER NICK LALOTA,

Defendants.

--------------------------------------X

MATSUMOTO, United States District Judge:

On June 13, 2019, plaintiffs, the EH Fusion Party1,

David Gruber, Bonnie Brady, Elizabeth A. Bambrick, Rona S.

Klopman, Dell R. Cullum, Richard P. Drew II, Susan M. Vorphal2,

Stephen M. Lester, David Talmage, Fallon Nigro, Michael Havens,

1 The EH Fusion Party is not an established “party” as defined by N.Y. Elec.

L a w § 1 - 1 0 4 ( 3 ) . I n s t e a d , it is an “independent body,” which is any

nominating organization or group of voters that is not a party as defined by

Section 1-104(3). N.Y. Elec. Law § 1-104(12). EH Fusion Party refers to the

12 named individual plaintiffs, as well as 3 non-plaintiffs: Lisa R. Rana,

Jill Massa, and Jeanne W. Nielsen. (ECF No. 24-49, Def. Resp. to Pl. 56.1 ¶¶

1-2.) An additional individual, Stephen Lynch was associated with the EH

Fusion Party, but he ultimately declined his nomination and plaintiffs do not

refer to him as a non-plaintiff member of the EH Fusion Party. (ECF No. 24-

5, Lynch Substitution Letter; ECF No. 24-49, Def. Resp. to Pl. 56.1 ¶¶ 1-2.)

2 The court notes that although the caption and some of the parties’ filings

refer to this plaintiff’s last name as “Vorphal,” others filings spell the

name as “Vorpahl.” There is no indication that these are separate

individuals.

and Simon Kinsella brought this action against defendants, the

Suffolk County Board of Elections (“the Board”), Commissioner

Anita S. Katz, and Commissioner Nick LaLota. (ECF No. 1.)

Plaintiffs argue that New York’s election law requirement, N.Y.

Elec. Law § 6-146(1), that candidates nominated by independent

bodies, multiple parties, or parties in which they are not

members file certificates of acceptance or have their

candidacies declared invalid, see N.Y. Elec. Law § 1-106(2),

violates their due process, equal protection, and First

Amendment rights. (ECF No. 1, Compl. at 7-9.) The plaintiffs

also argue that defendants violated New York’s election law by

failing to accept plaintiffs’ certificates of substitution after

their candidacies were found invalid for failure to comply with

Elec. Law § 6-146(1).

Pending before the court are plaintiffs’ motion for

summary judgment, and defendants’ motion for summary judgment or

for a stay and/or abstention in the alternative. For the

reasons set forth below, the court denies defendants’ motion for

abstention and/or a stay, grants defendant’s motion for summary

judgment, and denies plaintiffs’ motion for summary judgment.

BACKGROUND

I. Factual Background

The facts in this section are taken from the parties’

Rule 56.1 statements, responses to 56.1 statements,

declarations, affidavits, and exhibits in support of the

parties’ motions and are considered in the light most favorable

to the non-moving party. The facts presented are pared down to

those relevant and material to understanding what occurred for

purposes of applying the relevant law. Although there are

asserted disputes of fact, those disputes concern facts

immaterial to resolving the legal issues presented regarding the

constitutionality of the election law or refer to assertions

that the court does not rely upon because they are legal

conclusions, are unsupported with any evidence, or the evidence

proffered would be inadmissible or is otherwise defective.

On or about May 21 and May 28, 2019, independent

nominating petitions for the EH Fusion party were timely filed

with the Suffolk County Board of Elections by plaintiff Rona

Klopman. (ECF No. 23-16, Pl. Resp. to Def. 56.1 ¶ 1; ECF No.

24-49, Def. Resp. to Pl. 56.1 ¶ 9.) The petitions listed all of

the individual plaintiffs, as well as Stephen K. Lynch, Jill

Massa, Lisa Rana, and Jeanne Nielson. (See, e.g., ECF No. 24-

16, Designating and Independent Petitions Cover Sheet – EH

Fusion Party Volume 1 at 100; id. Volume 2 at 1.) On May 21,

2019, the board sent notice letters to “accept or decline” an EH

Fusion nomination to each person listed in the filed petitions,

except for Lisa Rana. (ECF No. 24-2, Accept or Decline

Letters.) The letters “notified [the plaintiffs] that

nominations ha[d] been submitted in [plaintiffs’] name[s] by the

EH Fusion party[.]” (See, e.g., id. at 1.) The notices

expressly stated that they were “not a statement of the validity

of said nomination[.]” (Id.) The letters also stated that the

“last day to Accept OR Decline such nomination is Friday, May

31, 2019.” (Id. (emphasis in original).) Rana, as a judicial

nominee, received only a decline letter. (ECF No. 24-6, Rana

Letter (“The last day to Decline such nomination is Friday, May

31, 2019.”) (emphasis in original).)

Although the court does not rely on either side’s

assertions about the interactions of the parties regarding the

filing of nominating petitions, the court describes the party’s

views of what occurred when plaintiff Klopman filed the

petitions. In her declaration, Klopman states that she visited

the Board’s office on May 21, 2019 to file the EH Fusion Party’s

petitions and met with Debbie Monaco, who represented the

Democratic Party, and Rose Ann Weis, who represented the

Republican Party. (ECF No. 24-29, Klopman Decl. ¶ 19.) Klopman

states that she “asked if any further filings or formalities

were necessary, and [she] was told that they were not.” (Id. ¶

20.)

During a second visit on May 28 to drop off additional

petition signatures, Klopman met Weis again, along with James

Anthony, who represented the Democratic Party. (Id. ¶ 21.)

Klopman says that she “asked if there was anything else [she]

had to know about the filing because [she] felt responsible for

[the] signatures and wasn’t leaving until they told [her]

everything was perfect.” (Id. ¶ 22.) Klopman says she asked

Weis and Anthony if she “needed to do anything more for [her]

candidates, or tell them anything, or if there were any further

formalities,” to which they said no and that she and her

candidates were “good to go.” (Id. ¶ 31.) She also states that

she asked a third employee who was present on May 28 if

everything was “good” and that this third employee said

everything was good, and that the only challenge to the

petitions would be if any of the signatures were found to be

fraudulent. (Id. ¶ 28.)

Klopman summarized her experiences by stating that she

”had been to the BOE twice, and asked whether additional

paperwork was required both times[.]” (Id. ¶ 28.) Klopman

noted that in all of her conversations with Board staff, “no one

so much as mentioned in response to her inquiries that [the EH

Fusion members] were required to file Certificates of Acceptance

or do anything else for [their] nominations to be valid.” (Id.

¶ 32.) Klopman described these conversations as “consistent and

uniform representations of at least four different BOE employees

that no further paperwork was required for [the] nominating

petitions to successfully place [their] candidates on the EH

Fusion Party ballot line, and that the only real challenge

available to [their] Petition would be by challenging [the]

signatures.” (Id. ¶ 33.)

The defendants present a different view of these

interactions. Deborah Monaco, the Senior Assistant Commissioner

who reports to defendant Commissioner Anita Katz, states in an

affidavit that she and Rose Ann Weis were asked by plaintiff

Klopman on May 21, 2019 whether Klopman needed to file anything

else for the petitions to be accepted. (ECF No. 24-48, Klopman

Aff. ¶¶ 1, 8.) Monaco states that she and Weis informed Klopman

that they would provide her with a copy of the first page of the

petitions and cover sheet as proof of filing. (Id. ¶ 8.) She

denies that Monaco asked whether any other documents or

formalities were necessary or that she offered any information

regarding any other documents or formalities. (Id. ¶ 9.) She

further stated that if so asked, she would have informed Klopman

that she was not permitted to give such legal advice or

guidance. (Id. ¶ 9.) Rose Ann Weis, the Republican Executive

Director for the Board, recounted the May 21, 2019 interaction

with Klopman in the same manner as Monaco did. (ECF No. 29-1,

Weis Aff. ¶¶ 1, 8-10.)

James Anthony, an assistant to Commissioner Katz,

states in his affidavit that Klopman asked Weis and him on May

28, 2019 whether she needed to file anything else to make sure

that the additional petition signatures would be added to the

first set of petition signatures filed on May 21, 2019. (ECF

No. 29-2, Anthony Aff. ¶¶ 1, 7.) Anthony and Weis reviewed the

cover sheet and advised Klopman that the papers would be

considered a second volume of signatures. (Id. ¶ 7.) Anthony

denied that Klopman asked whether she needed to do “anything

further for her candidates,” “tell them anything,” or “if there

were any other formalities.” (Id. ¶ 10.) Weis’s recollection

is the same as Anthony’s. (ECF No. 29-1, Weis Aff. ¶¶ 11-13.)

Commissioner LaLota has identified himself as the

third person Klopman spoke with on May 28. (See ECF No. 24-47,

LaLota Decl. ¶ 14.) He recalls telling Klopman that the number

of signatures the EH Fusion Party had gathered for the petition

well-exceeded the number required, but states that he never

expressed that the number of valid signatures was the sole

criteria to be considered for the petition’s candidates to

ultimately be granted access to the November 2019 ballot. (Id.

¶ 14.) LaLota stated that the “person who was submitting the

petitions did not ask, nor did [he] offer, anything about other

relevant election documents—such as Acceptances, which would be

against the Board’s policy of not providing legal guidance or

advice to any individual concerning compliance with Election Law

requirements whether in person, or by phone.” (Id.)

Although the court rejects the parties’ hearsay

offerings regarding the conversations at the Board’s office and

need not rely on the substance of those conversations to resolve

this issue, the court is aware of an exchange that is consistent

with defendants’ position that the Board and its employees do

not provide legal advice regarding compliance with the election

law. On April 26, 2019, plaintiff Gruber emailed defendant

Commissioners Katz and LaLota with questions regarding

independent nominating petitions for the “EH Fusion Party (a new

independent body seeking a ballot line)[.]” (ECF No. 24-41,

Def. Ex. J.) Katz responded that because she and LaLota would

have to rule on the petitions if challenged, they “[could] not

give . . . legal advice.” (Id.) Katz advised Gruber to

“contact a private attorney and or review the New York State

Board of Elections website which has information regarding

independent petitions.” (Id.)

Regardless of the events surrounding the filing of the

EH Fusion Party petitions, after the Board sent the plaintiffs

accept or decline notices on May 21, 2019, none of the

plaintiffs filed acknowledged certificates of acceptance.

Plaintiff Kinsella filed a letter seeking to accept the

nomination, but it was not acknowledged as required by the

election law. (ECF No. 24-4 at 8, Kinsella Letter.) Non-

plaintiff Stephen Lynch filed a letter declining his EH Fusion

nomination. (See ECF No. 24-5, Lynch Substitution Letter; see

also ECF No. 24-49, Def. Resp. to Pl. 56.1 ¶ 83 (explaining that

Lynch’s declination was postmarked May 31, 2019, but received on

June 3, 2019, which is why the Lynch Substitution Letter is

dated June 4, 2019).) In her declaration, Klopman offers

hearsay that she “under[stood] that [Lynch] declined [the EH

Fusion] nomination after being told, in sum and substance, if he

accepted the EH Fusion Party nomination, he would never receive

the Democratic Party nomination again.” (ECF No. 24-29, Klopman

Decl. ¶ 39.)

On June 5, 2019, the Board declared the plaintiffs’

petitions invalid because the plaintiffs did not file duly

signed and acknowledged acceptances. (ECF No. 24-14, June 5,

2019 Board Minutes.) On June 5, 2019, the Board sent letters

notifying the plaintiffs that the nominating petitions were

“declared to be invalid.” (See, e.g., ECF No. 24-7, Invalidity

Letters at 1.) On June 7, June 10, and June 11, 2019, the

plaintiffs filed certificates of substitution by committee to

fill vacancies, attempting to substitute themselves as

candidates for the same offices for which they were originally

nominated. (ECF No. 24-15, June 13, 2019 Board Minutes.) On

June 13, 2019, the Board ruled that no vacancies were created by

invalidation of the independent nominating petitions and that,

for the sake of argument, the same candidates could not be named

as substitute. (Id.)

Defendants note, and plaintiffs do not dispute, that

each plaintiff previously filed certificates of acceptance for

nominations for other political parties of which they were not

members. (ECF No. 23-16, Pl. Resp. to Def. 56.1 ¶ 5.)

Plaintiffs, however, “dispute that plaintiffs filed any

certificates knowingly or understanding anything other than, in

essence, ‘I am signing the party paperwork.’” (Id.) But see

ECF No 24-34, Certificates of Acceptance at 1-2 (Gruber filled

out and executed acknowledged certificates for the Independence

and Republican parties); at 3 (Brady did the same for the

Republican and Independence parties); at 4, 6 (Klopman did the

same for the Republican, Independence, Working Families, and

Conservative parties); at 5 (Drew did the same for the

Democratic, Republican, and Independence parties); at 7 (Vorpahl

signed an acknowledged pre-filled acceptance form for

designations for nominations for the Democratic, Conservative,

Independence, Green, Working Families, Libertarian, and SAM

parties); at 8 (the same for Talmage); at 9 (the same for

Nigro); at 10 (the same for Bambrick); and at 11 (the same for

Havens); ECF No. 24-18, Pl. Ex. 15 at 584-610 (containing

signed, acknowledged certificates of acceptance for the

plaintiffs already mentioned and plaintiffs Cullum and Lester).

The candidate list (ECF No. 23-14) establishes that

all the plaintiffs, except Kinsella, who failed to file an

acknowledged certificate of acceptance, and Gruber, who declined

the Democratic party nomination, will be on the ballot with the

following associations:

•

Brady: Conservative, Independence

•

Bambrick: Conservative, Independence

•

Drew: Democratic, Conservative, Independence

•

Klopman: Conservative, Working Families,

Independence

•

Lester: Conservative, Independence

•

Cullum: Conservative, Independence

•

Nigro: Republican, Conservative, Independence

•

Vorpahl: Republican, Conservative, Independence

•

Havens: Republican, Conservative, Independence

•

Talmage: Republican, Conservative, Independence

The EH Fusion party affiliates who are not plaintiffs

will be on the ballot with the following associations:

•

Rana: EH Fusion, Republican, Conservative,

Independence

•

Massa: EH Fusion, Democratic, Republican,

Conservative, Independence

•

Nielsen: EH Fusion, Democratic, Conservative,

Independence

Finally, Stephen Lynch, who declined his EH Fusion

nomination will be on the ballot and associated with the

Democratic, Conservative, and Independence Parties.

II. Procedural History

On June 11, 2019, before this action was filed,

plaintiffs commenced a proceeding in state court pursuant to

Election Law §16-102(2) which states, in part, that a

“proceeding with respect to a petition shall be instituted

within fourteen days after the last day to file the petition, or

within three business days after the officer or board with whom

or which such petition was filed, makes a determination of

invalidity with respect to such petition, whichever is later . .

. .” (See ECF No. 10-1, State Petition.)

The state petition asserts causes of action under the

New York Election Law, New York State Constitution, and United

States Constitution. (ECF No. 10-1, State Petition.) The case

was assigned to Supreme Court Justice Robert F. Quinlan. (ECF

No. 10, Def. Pre-Motion Conference Ltr. at 3.) Defendants filed

their opposition to the petition on June 19, 2019, and

plaintiffs served a reply affirmation on June 27, 2019, on which

date the matter was submitted to the state court for decision.

(ECF No. 23-15, Def. Memo at 4.)

On June 13, 2019, two days after the state action was

commenced, plaintiffs filed a similar complaint in federal court

based on the same set of alleged facts and the same or similar

causes of action. (ECF No. 1, Compl.) Both parties filed pre-

motion conference letters regarding resolution of the federal

court action. (ECF Nos. 8 & 10.)

The court held a pre-motion conference on June 26,

2019. Plaintiffs announced that they would move for a stay of

the state action and that it would be made by order to show

cause the next day. Plaintiffs filed their order to show cause

for a stay of the state action on June 27, 2019, and defendants

filed opposition thereto on July 11, 2019, at which time the

motion was submitted for decision. (ECF No. 23-15, Def. Memo at

4.) On July 29, 2019, the state court granted the stay “as a

result of the [federal court] action” pending a conference in

state court, scheduled for August 19, 2019. (ECF No. 21-1, Stay

Order.) Defendants informed plaintiffs that the stay order

“does not change any of [their] positions or requests on the

motion.” (ECF No. 21, July 29, 2019 Status Letter.)

After the parties filed their motions, this court

heard oral argument on August 12, 2019.

III. Defendants’ Motion for Summary Judgment or for a Stay

and/or Abstention in the alternative.

Defendants argue that New York state election law

sections 16-100 and 16-102 provide the state court with

jurisdiction over cases arising under the election statute.

(ECF No. 23-15, Def. Memo. at 5.) Defendants also argue that

the abstention doctrine in Younger v. Harris, 401 U.S. 37

(1971), prevents this court from entertaining the action because

hearing the case would undermine the integrity of the state

court proceedings. (Id. at 6-8.) They further argue that

abstention is warranted under the abstention doctrine in

Railroad Commission of Texas v. Pullman Co., 312 U.S. 496

(1941), because the state court’s resolution of this action

would moot the issues raised in the federal action. (Id. at 8-

10.) Defendants also assert that this court should stay or

abstain from this action because plaintiffs’ commencement of

separate state and federal court actions amounts to forum

shopping. (Id. at 10-11.)

Defendants argue that the court should grant summary

judgment in their favor on the merits because the certificate of

acceptance requirement has been upheld by the Second Circuit as

constitutional and plaintiffs’ challenge, therefore, fails as a

matter of law. (ECF No. 23-15, Def. Memo. at 12.) Defendants

further contend that failure to properly file certificates of

acceptance does not create a vacancy that can be filled by a

certificate of substitution; nor may the individual who failed

to file the acceptance be the substitute candidate. (Id. at 20-

21.) Defendants also assert that the certificate of

substitution claim was untimely filed. (Id. at 23.) Finally,

defendants argue that the plaintiffs’ allegation that plaintiff

Klopman was misinformed by Board employees regarding the

nomination requirements does not change the outcome of this

case. (Id. at 23-25.)

Plaintiffs respond that abstention is the exception

and that this court should exercise jurisdiction over the

action. (ECF No. 23-18, Pl. Opp. at 5-7.) They also argue that

Younger abstention is limited to situations inapplicable to this

litigation: state criminal prosecution, civil enforcement

proceedings, and civil proceedings involving orders that are

uniquely in furtherance of state courts’ ability to perform

their judicial functions. (Id. at 7-10.) Plaintiffs argue that

Pullman abstention also does not apply to this case because

there is no unclear state law at issue and because courts in the

Second Circuit entertain state election law cases even when the

law is ambiguous. (Id. at 10-11.)

On the merits, plaintiffs argue that they are entitled

to summary judgment or a trial. (Id. at 11.) They argue that

defendants have not offered any arguments defending their

position on any scrutiny level more searching than rational

basis. (Id.) Plaintiffs argue that a necessary factual

finding, whether the burden imposed by the Certificate of

Acceptance requirement is trivial, is in dispute. (Id. at 12-

15.) Plaintiffs further argue that similarly situated major

party candidates are treated differently from candidates from

small parties and independent organizations. (Id. at 15-17.)

They also argue that their claims are timely under either 42

U.S.C. § 1983 or the state election law. (Id. at 17-19.)

Plaintiffs argue that their “official petition carrier[‘s]”

reliance on representations made by Board employees should be

considered as part of their burden. (Id. at 19-22.)

In reply, defendants maintain that a stay or

abstention is warranted. (ECF No. 23-19, Reply at 1-4.) They

respond that there is no due process violation because

plaintiffs do not have a liberty or property interest in an

elected office and the Board properly followed the election law

and procedures regarding potential candidacy. (Id. at 4-6.)

Defendants argue that plaintiffs have not proven that similarly

situated people were treated differently by the Board or under

the election law. (Id at 6-7.) Defendants argue that the

election law survives any tier of scrutiny, weighing the

“trivial, reasonable and non-discriminatory” acceptance

requirement against the state’s interest in protecting the

integrity and efficiency of its electoral process by preventing

fraudulent acceptances or declinations, and preventing placement

on the ballot of individuals with no desire to run for office.

(Id. at 7-10.)

IV. Plaintiffs’ Motion for Summary Judgment

Plaintiffs argue that under any level of scrutiny, the

certificate of acceptance requirement as implemented is

unconstitutional and discriminates against local parties and

independent bodies against state-wide and major parties. (ECF

No. 24-2, Pl. Memo at 10.) They argue that the certificate of

acceptance requirement explicitly treats candidates of

independent nominating organizations differently from major

party candidates. (Id. at 12-16.) They contend that the law

severely burdens plaintiffs because failure to comply results in

wholesale denial of access to the ballot. (Id. at 16-18.) They

argue that strict scrutiny should apply and that a fact-

intensive balancing inquiry under Anderson-Burdick prevents past

case precedent from having “sweeping applicability” to

plaintiffs’ case. (Id. at 19-20.)

Plaintiffs dispute the applicability of the Second

Circuit case Unity Party v. Wallace, 707 F.2d 59 (2d Cir. 1983),

which previously found the statute at issue to be

constitutional. They argue that the accept or decline letters

issued to plaintiffs was less informative than the letter issued

in the Unity Party case and that Unity Party relied on the fact

that only one candidate in 1982 failed to properly file a

certificate of acceptance, in contrast to the current situation

in which there is not clear data regarding how many potential

candidates failed to file certificates of acceptance. (Id. at

20-22.)

Plaintiffs also argue that the Second Circuit panel in

Unity Party “did not really consider Anderson” and had not

received briefing or heard argument regarding Anderson v.

Celebrezze, 460 U.S. 780 (1983), which was decided three weeks

prior to the decision in Unity Party. (Id. at 23.) They also

note that one of the panel members passed away before the

decision was issued. (Id.) Plaintiffs rely on a later-decided

district court case, Hirschfeld v. Board of Elections in the

City of New York, 799 F. Supp. 394 (S.D.N.Y. 1992), in which a

candidate was told that he did not need to perform any

additional formalities and therefore did not timely file a

certificate of acceptance; the court stated that there was no

state policy that would justify denying the candidate’s

certificate of acceptance, which the candidate filed as soon as

he learned of its requirement. (Id.) Plaintiffs cite this case

as analogous to their situation. (Id.)

Plaintiffs also argue that they would prevail on

rational basis scrutiny because there is no rational basis or

government interest advanced by the state’s current regime of

requiring strict compliance with the acceptance requirement, in

contrast to a scheme in which courts could order nunc pro tunc

filing, certificates of substitution were accepted by the Board,

or notarization of the acceptance forms were not required for a

certificate of acceptance. (Id. at 26.) Plaintiffs also

discuss the history of the acceptance requirement in support of

their position. (Id. at 26-29.)

In opposition to plaintiffs’ motion and in support of

defendants’ motion, defendants argue that the acknowledgment

requirement of the election law for a certificate of acceptance

has to be strictly construed and supports the state’s interest

in preventing a fraudulent acceptance or declination of a

nomination, an interest which has been recognized as a valid

state interest by both the New York Court of Appeals and the

Second Circuit. (ECF No. 24-50, Def. Opp. at 14-15.)

Defendants argue that only plaintiff Klopman claims to have

received misleading information regarding the nominations, but

that there is no due process issue in this case because (1)

there has been no deprivation of life, liberty, or property, (2)

negligence of a state actor would not implicate due process, and

(3) the plaintiffs have the option to seek expedited judicial

review in state court under N.Y. Election Law § 16-102. (Id. at

18-19.)

Defendants also argue that the acceptance requirement

is rationally connected to the state interest in protecting the

integrity, fairness, and efficiency of ballots and the election

process. (Id. at 20.) Defendants assert that Unity Party is on

point and controlling. (Id. at 21-25.) Defendants distinguish

the instant case from Hirschfeld, noting that the instant

plaintiffs were afforded notice regarding the need to accept

their nominations through the May 21, 2019 accept or decline

letters. (Id. at 27.) Defendants also argue that this action

is untimely. (Id. at 29.)

In their reply, plaintiffs argue that rational basis

is not the appropriate standard governing this case. (Id. at 5-

6.) They assert that the defense has not offered any

explanation for the different treatment of independent

candidates and that only an intent to keep minor parties from

political viability can explain the law. (Id. at 7.)

LEGAL STANDARD

I. Motion for a Stay and/or Abstention

“The [New York] supreme court is vested with

jurisdiction to summarily determine any question of law or fact

arising as to any subject set forth in this article, which shall

be construed liberally.” N.Y. Elec. Law § 16-100. “The

nomination or designation of any candidate for any public office

or party position or any independent nomination . . . by reason

of a petition for an opportunity to [appear on the] ballot

having been filed . . . may be contested in a proceeding

instituted in the supreme court by any aggrieved candidate[.]”

N.Y. Elec. Law § 16-102(1). “A proceeding with respect to a

petition shall be instituted within fourteen days after the last

day to file the petition, or within three business days after

the officer or board with whom or which such petition was filed,

makes a determination of invalidity with respect to such

petition, whichever is later[.]” Id. § 16-102(2). “A special

proceeding under the foregoing provisions of this article shall

be heard upon a verified petition and such oral or written proof

as may be offered, and upon such notice to such officers,

persons or committees as the court or justice shall direct, and

shall be summarily determined. The proceeding shall have

preference over all other causes in all courts.” N.Y. Elec. Law

§ 16-116(1).

“[F]ederal courts and state courts often find

themselves exercising concurrent jurisdiction over the same

subject matter, and when that happens a federal court generally

need neither abstain (i.e., dismiss the case before it) nor

defer to the state proceedings (i.e., withhold action until the

state proceedings have concluded).” Growe v. Emison, 507 U.S.

25, 32 (1993). “[D]eferral, causing a federal court to ‘sta[y]

its hands,’ [is required] when a constitutional issue in the

federal action will be mooted or presented in a different

posture following conclusion of the state-court case.” Id.

(citing Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496,

501 (1941)). “Designed to avoid federal-court error in deciding

state-law questions antecedent to federal constitutional issues,

the Pullman mechanism remitted parties to the state courts for

adjudication of the unsettled state-law issues. If settlement

of the state-law question did not prove dispositive of the case,

the parties could return to the federal court for decision of

the federal issues.” Arizonans for Official English v. Arizona,

520 U.S. 43, 76, (1997).

Under the Younger abstention doctrine, “federal courts

must abstain where a party seeks to enjoin an ongoing, parallel

state criminal proceeding, to preserve the ‘longstanding public

policy against federal court interference with state court

proceedings’ based on principles of federalism and comity.”

Disability Rights New York v. New York, 916 F.3d 129, 133 (2d

Cir. 2019) (citing Younger v. Harris, 401 U.S. 37, 43-44

(1971)). The Younger abstention doctrine was extended to

include particular state civil proceedings akin to criminal

prosecutions and cases that implicate a state’s interest in

enforcing the orders and judgments of its courts. Id. “In

Sprint, the Supreme Court held that Younger's scope is limited

to these three ‘exceptional’ categories – ‘ongoing state

criminal prosecution,’ ‘certain civil enforcement proceedings,’

and ‘civil proceedings involving certain orders uniquely in

furtherance of the state courts' ability to perform their

judicial functions.’” Id. (citing Sprint Commc’ns, Inc. v.

Jacobs, 571 U.S. 69, 78 (2013)).

II. Motion for Summary Judgment

Summary judgment is appropriate where “the movant

shows that there is no genuine dispute as to any material fact,”

Fed. R. Civ. P. 56(a), “and the facts as to which there is no

such issue warrant the entry of judgment for the moving party as

a matter of law.” Kaytor v. Electric Boat Corp., 609 F.3d 537,

545 (2d Cir. 2010); see also Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986). “All ambiguities must be resolved in favor

of the non-moving party and all permissible inferences from the

factual record must be drawn in that party's favor.” Zalaski v.

City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.

2010).

If the moving party can show that “there is no genuine

issue as to any material fact and that it is entitled to

judgment as a matter of law, the nonmoving party must come

forward with specific facts showing that there is a genuine

issue for trial.” Peterson v. Regina, 935 F. Supp. 2d 628, 634

(S.D.N.Y. 2013) (citing Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986)). “When opposing parties

tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott

v. Harris, 550 U.S. 372, 380 (2007).

To defeat a motion for summary judgment, the non-

moving party must identify probative, admissible evidence from

which a reasonable factfinder could find in his favor. Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986). It

“requires the nonmoving party to go beyond the pleadings and by

[his or] her own affidavits, or by the depositions, answers to

interrogatories, and admissions on file, designate specific

facts showing that there is a genuine issue for trial.” 477

U.S. at 261 n.2 (citations omitted). “Only disputes over facts

that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment. . . .

[I]t is the substantive law’s identification of which facts are

critical and which facts are irrelevant that governs.” 477 U.S.

at 248. If, as to the issue on which summary judgment is

sought, there is any evidence in the record from any source from

which a reasonable inference could be drawn in favor of the

nonmoving party, summary judgment is improper. Chambers v. TRM

Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (citations

omitted).

DISCUSSION

I. Abstention

Pullman abstention is not appropriate here because

there is not an unsettled matter of state law regarding the

meaning or requirements of the election law. State court

resolution would only moot the federal court as a matter of

claim or issue preclusion, answering the same question this

court has been asked to determine: whether the election law is

constitutional.

Younger abstention also is not appropriate here. None

of the circumstances outlined in Sprint are present. There is

no parallel criminal proceeding or civil proceeding akin to a

criminal prosecution here. Moreover, this court’s ruling

regarding the constitutionality of a state statute does not

implicate the state court’s ability going forward to perform its

judicial functions.

Although the election law provides New York state

courts with jurisdiction to hear expedited challenges arising

under the election law, it does not purport to provide exclusive

jurisdiction. Plaintiffs’ decision to commence two lawsuits

raising identical issues created the potential conflict between

the court systems, but the plaintiffs’ litigation strategy does

not command that the state suit must proceed ahead of this

federal court action, particularly where the plaintiffs asked

the state court to stay its case. Moreover, because the state

court has stayed its case in light of the federal action, this

court, mindful of the looming deadline to prepare ballots,

declines to stay this action.

Having determined that the court will entertain this

case, the court considers the merits below. Plaintiffs assert

that the strict requirement of acknowledged acceptances

prescribed by N.Y. Election Law Section 6-146(1) is

unconstitutional. As mandated by Section 6-146(1), “[a] person

. . . designated or nominated for a public office other than a

judicial office by a party of which he is not a duly enrolled

member, or if designated or nominated for a public office other

than a judicial office by more than one party or independent

body or by an independent body alone, . . . shall, in a

certificate signed and acknowledged by him, and filed as

provided in this article, accept the designation or nomination

as a candidate of each such party or independent body other than

that of the party of which he is an enrolled member[;] otherwise

such designation or nomination shall be null and void.” N.Y.

Elec. Law § 6-146(1). See also N.Y. Elec. Law § 1-106(2) (“The

failure to file any petition or certificate relating to the

designation or nomination of a candidate for party position or

public office or to the acceptance or declination of such

designation or nomination within the time prescribed by the

provisions of this chapter shall be a fatal defect.”).

II. Due Process

Plaintiffs assert in their complaint that “by

explicitly telling plaintiffs that there were no further

formalities or filings necessary, defendants independently

deprived Plaintiffs of due process of law by stopping their

inquiries into any further formalities.” (ECF No. 1, Compl. at

7.)

“[T]o determine whether a constitutional violation has

occurred, it is necessary to ask what process the State

provided, and whether it was constitutionally adequate.”

Zinermon v. Burch, 494 U.S. 113, 126 (1990). “When the state

conduct in question is random and unauthorized, the state

satisfies procedural due process requirements so long as it

provides [a] meaningful post-deprivation remedy.” Rivera-Powell

v. New York City Bd. of Elections, 470 F.3d 458, 465 (2d Cir.

2006). “In contrast, when the deprivation is pursuant to an

established state procedure, the state can predict when it will

occur and is in the position to provide a pre-deprivation

hearing.” Id.

“[A]fter the Board’s action, [there is] the

opportunity to obtain full judicial review under New York

Election Law section 16-102, which provides for expedited

proceedings as to designations.” Id. at 467. This is an

adequate post-deprivation remedy that “satisfies due process.”

See id.; see also Dekom v. Nassau Cty., 595 F. App'x 12, 14 (2d

Cir. 2014) (“As we held in Rivera–Powell v. N.Y.C. Board of

Elections, 470 F.3d 458 (2d Cir.2006), New York Election Law §

16–102 provides an adequate post-deprivation remedy for random

and unauthorized deprivations of due process in disputes over

failure to list a candidate's name on the ballot in a New York

election.”).

Although the parties dispute the substance of the

conversations surrounding the nominating petitions, which

dispute the court finds to be immaterial, plaintiffs appear to

assert that the allegedly misleading statements were made in

response only to Klopman’s questions, rather than that the state

has a policy of volunteering misleading information. Defendants

explain that board employees are instructed not to furnish

advice regarding compliance with the election law. Thus,

assuming Klopman’s statements are true, any state misconduct

that may have occurred would be random and unauthorized, and the

existence of a post-deprivation remedy, of which plaintiffs

availed themselves by filing a state court action, satisfies

procedural due process. And if the defendants’ version of

Klopman’s interactions with Board employees is true, there is no

due process violation.

The court, therefore, grants summary judgment in the

defendants’ favor on the due process claim.

III. Associational Rights and Equal Protection

Plaintiffs argue that the defendants’ actions violated

their equal protection and first amendment rights. (ECF No. 1,

Compl. at 7-9.) “A burden that falls unequally on new or small

political parties or on independent candidates impinges, by its

very nature, on associational choices protected by the First

Amendment.” Anderson v. Celebrezze, 460 U.S. 780, 793 (1983).

“The laws at issue . . ., according to plaintiffs, place

discriminatory burdens on minor political parties.” Green Party

of New York State v. New York State Bd. of Elections, 389 F.3d

411, 420 (2d Cir. 2004). “As the alleged violations of the

plaintiffs' First Amendment rights form the basis of both the

First Amendment and Fourteenth Amendment claims, we are faced

with a situation where the plaintiffs' First Amendment claims

substantially overlap with their equal protection claims.

Accordingly, the analyses of plaintiffs' claims under the two

amendments also substantially overlap.” Id.

Over thirty years ago, in Unity Party v. Wallace, 707

F.2d 59 (2d Cir. 1983), the Second Circuit ruled that N.Y. Elec.

Law Section 6-146, the acknowledged acceptance requirement

statute, is constitutional. “At issue [was] whether the State,

pursuant to this statute, [could] constitutionally deny a

nominee for office a place on the ballot for his failure to file

timely an acknowledged acceptance.” Id.

After candidate Rhodes filed his nominating petition

with a sufficient number of signatures, the election board’s

director “sent a letter to Rhodes informing him that the Board

had received the Unity Party's nominating petition, and that

‘[p]ursuant to Section 6–158 of the Election Law ... the last

date to accept or decline said nomination by duly acknowledged

document is September 10, 1982’ (emphasis added).” Id. at 60–

61. By a letter sent on September 9, Rhodes stated that he was

accepting the nomination. Id. at 61. He was informed on

September 20 that his nomination was invalid due to his failure

to comply with the acknowledgment requirement in Section 6-

146(1). Id. Rhodes immediately tried to resubmit his earlier

letter with an acknowledgment appended. Id. However, per

Section 1-106(2), his failure to file a timely acceptance was a

fatal defect. Id. Rhodes subsequently brought actions in state

and federal court. Id.

The Unity Party, Rhodes, and his supporters argued

that Section 6-146 “impermissibly burden[ed] their First and

Fourteenth Amendment Rights both of political association and

voting” and that the statute “improperly discriminat[ed] against

small political parties, their candidates, and [their

supporters]” in violation of the Equal Protection Clause. Id.

The Second Circuit stated that it “must . . . examine the

nature, extent, and likely effect of the law on the interests of

those claiming to be fenced out by it.” Id. at 61 (citing,

among other cases, Anderson v. Celebrezze, 460 U.S. 780 (1983)).

“Under the Election Law a ‘party’ is defined as a

political organization which polled at least 50,000 votes for

its gubernatorial candidate in the last preceding election.” Id.

at 62 (citing N.Y. Elec. Law § 1–104(3)). “An ‘independent

body’ is a nominating group or organization which is not a

‘party’ under section 1–104(3).” Id. (citing § 1–104(12)). The

election law establishes different procedures according to the

nature of the nominating organization and the office. Id. For

example, “party” senatorial candidates are ordinarily nominated

through the primary election process, whereas independent

nominations are made by petition. Id. Simply obtaining

signatures does not guarantee one a place on the ballot. Id.

“What the Constitution condemns are restrictions that,

without compelling justification, significantly encroach upon

the rights to vote and to associate for political purposes.”

Id. at 62. Section 6-146(1) did not place a weighty burden on

the plaintiffs, as they had the alternative of casting write-in

ballots. Id. Regardless, the Second Circuit found that “any

encumbrance on appellants' rights to vote and politically

associate [was] at best de minimis and New York [could] justify

the restriction by advancing a rational basis for it.” Id.

Considering the effect of Section 6-146(1) on Rhodes’s

candidacy, “[n]othing before [the court] indicate[d] that

compliance with the acknowledged acceptance requirement [was]

difficult.” Id. There was no evidence that compliance was

“time-consuming, complex or impose[d] any financial hardship,”

and Rhodes was the only person out of 148 candidates required to

file a timely acknowledged acceptance who failed to do so in

1982. Id. Two candidates for the Unity Party complied and were

on the ballot. Id. “Only the ‘careless or inadvertent failure

to follow the mandate of the statute,’ . . . is what g[ave] rise

to Rhodes' complaint[.]” Id. “New York did not erect some sort

of ponderous portcullis barring access to the ballot that

triggers heightened scrutiny to justify it. Instead, the

restriction [was] no more than a flimsy wicket kind of bar—an

insignificant hurdle.” Id.

As for equal protection, “not all minor variations in

the application of a state's laws to different groups violate

the Fourteenth Amendment's command.” Id. at 63. “The impact of

Section 6-146(1) concededly [fell] somewhat more heavily upon

independent and minor party candidates than on major party

candidates,” a difference which arose from the election law’s

distinction between a “party” and an “independent body.” Id.

But the acknowledged acceptance requirement applied not only to

candidates nominated by independent bodies, but also to

candidates nominated by parties in which they were not members

or nominated by multiple parties. Id.

The Second Circuit in Unity Party also noted that

Section 6-146 does not create a classification that so heavily

weighed down independent candidates or small parties, as had the

burdens in other cases, that strict scrutiny was required. Id.

Additionally, the court noted that the statute does not employ a

scheme based on a suspect classification such as race or

economic status. Id. “[B]y enacting § 6–146(1), New York did

not hang a millstone around the necks of small or minor

political parties to sink them in discriminate fashion,

violative of their Fourteenth Amendment rights.” Id.

“When the nature and extent of the statute and its

effect on the interests of those claiming to be impacted by it

are looked at realistically, neither of the two constitutional

avenues of argument raised by appellants mandates heightened

scrutiny. The challenged restriction is subject only to a

rational basis analysis.” Id. New York had a “legitimate, even

compelling, interest, in protecting the integrity and efficiency

of its electoral process[.]” Id. The requirement of an

acknowledged acceptance reflected the legislative purpose of

preventing election fraud. Id.

The Second Circuit noted that nominees from major

parties are ordinarily chosen at party conventions or primaries

and have already publicly accepted their nominations when

winning the nomination. Id. Thus, there was no concern

regarding fraudulent acceptances or declinations after the

“thorough public screening” experienced by those party

candidates. Id. By contrast, independent body candidates do

not face the same public scrutiny and state ballots could become

unnecessarily crowded and confused with nominees who have no

express desire to run for office absent an acknowledged

acceptance requirement. Id. at 63-64. “The statute's

difference in treatment thus arises rationally from a difference

in the electoral process and constitutes no denial of equal

protection.” Id. at 64.

In subsequent cases, the Second Circuit does not

appear to have questioned Unity Party’s continuing validity.

See, e.g., Schulz v. Williams, 44 F.3d 48, 55 (2d Cir. 1994)

(“The [Unity Party] court rightly concluded that this ‘flimsy

wicket” of a requirement [that candidates of independent bodies

file in a timely manner a form acknowledging their acceptance of

a nomination secured by petition] imposed only a de minimis

burden on voters’ rights . . . .”).

In addition to the existence of circuit precedent on

the identical issue presented by the instant action, this court

also relies on Supreme Court precedent to guide its analysis.

In Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), a

case cited by neither of the parties here, the Supreme Court

held that a state antifusion law does not violate the First and

Fourteenth Amendment. Id. at 354. The state antifusion law in

Timmons prevented candidates from appearing on the ballot under

multiple parties, even when the candidate accepted the

nomination of an additional party, and the candidate’s primary

party did not object to the candidate’s acceptance of additional

nominations. Id. at 354-55.

“When deciding whether a state election law violates

First and Fourteenth Amendment associational rights, [courts]

weigh the ‘character and magnitude’ of the burden the State's

rule imposes on those rights against the interests the State

contends justify that burden, and consider the extent to which

the State's concerns make the burden necessary.” Id. at 358

(citing Anderson and Burdick v. Takushi, 504 U.S. 428 (1992)).

“Regulations imposing severe burdens on plaintiffs' rights must

be narrowly tailored and advance a compelling state interest.

Lesser burdens, however, trigger less exacting review, and a

State's important regulatory interests will usually be enough to

justify reasonable, nondiscriminatory restrictions.” Id.

(citations and internal quotation marks omitted).

“That 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. As the

court in Timmons recognized, Burdick explicitly stated that

“limiting the choice of candidates to those who have complied

with state election law requirements is the prototypical example

of a regulation that, while it affects the right to vote, is

eminently reasonable.” Id. (citing Burdick, 504 U.S. at 440, n.

10). The law in question did “not directly preclude[] minor

political parties from developing and organizing[,]” nor did it

“exclude[] a particular group of citizens, or a political party,

from participation in the election process.” Id. at 361. The

minor party “remain[ed] free to endorse whom it likes, to ally

itself with others, to nominate candidates for office, and to

spread its message to all who will listen.” Id.

The Supreme Court was “unpersuaded . . . by the

party's contention that it ha[d] a right to use the ballot

itself to send a particularized message, to its candidate and to

the voters, about the nature of its support for the candidate.

Ballots serve primarily to elect candidates, not as forums for

political expression.” Id. at 362-63. Similar to the EH Fusion

Party, the party in Timmons “retain[ed] great latitude in its

ability to communicate ideas to voters and candidates through

its participation in the campaign, and party members [could]

campaign for, endorse, and vote for their preferred candidate

even if he [was] listed on the ballot as another party's

candidate.” Id. at 363.

Given the burden imposed, the state’s “asserted

regulatory interests need[ed] only be ‘sufficiently weighty to

justify the limitation’ imposed on the party’s rights” and

“elaborate, empirical verification of the weightiness of the

state’s asserted justifications” was not required. Id. at 364.

The Supreme Court recognized that “states certainly have an

interest in protecting the integrity, fairness, and efficiency

of their ballots and election processes as means for electing

public officials,” including the prevention of fraudulent

candidacies and misrepresentation. Id. at 364-65. “And while

an interest in securing the perceived benefits of a stable two-

party system will not justify unreasonably exclusionary

restrictions, . . . States need not remove all of the many

hurdles third parties face in the American political arena

today.” Id. at 367.

Even if the Second Circuit’s decision in Unity Party

did not control this court’s decision here, the reasoning in

Timmons also suggests that New York’s election law is

constitutional. As in Timmons, the plaintiffs in this action

are not severely burdened by their inability to have their

candidates of choice placed on the ballot with an EH Fusion

Party designation, nor are they severely burdened by a

requirement that they accept their nominations to be placed on

the ballot. Plaintiff Klopman stated in her declaration that

the EH Fusion Party was formed to “express that various formerly

adversarial political forces . . . have joined forces to oppose

a political machine” and that EH Fusion “gives context to

[their] organizied political efforts and informs voters of the

stakes.” (ECF No. 24-29, Klopman Decl. ¶ 4.) She further

stated that the plaintiffs sought to “formally create an ‘EH

Fusion Party’ ballot line, giving voters critical information as

to the nature of [their] joint political efforts.’” (Id. ¶ 8.)

The Supreme Court has explained that the purpose of

the ballot is to elect candidates, not to serve as a forum for

political expression. EH Fusion has three candidates on the

ballot affiliated with the group and all but two of the named

plaintiffs are on the ballot associated with multiple other

established political parties. EH Fusion can still promote

these candidates and these candidates can communicate the

group’s message.

Given that there is no severe burden, the state’s

interest need only be of sufficient weight to justify the

limitation imposed on the party. The state has asserted its

desire to protect the integrity and efficiency of its electoral

process by preventing fraudulent acceptances or declinations and

placement on the ballots of people with no desire to run for

office. These are interests the Supreme Court recognized as

valid state interests in Timmons. Plaintiffs argue that

information concerning the number of people who failed to comply

with the acceptance requirement could implicate whether the

state’s interest is valid, as opposed to a smokescreen for a

secret motivation to keep small parties and independent parties

off the ballot. But the Supreme Court has stated that

“elaborate, empirical” evidence is not required. Moreover, this

litigation itself demonstrates how the acceptance requirement

supports the state’s interest.

Each individual plaintiff received an accept or

decline letter on May 21, 2019. The candidates now assert that

they were confused and should be allowed to rectify their

mistake, suggesting that the Board should not have construed

their non-compliance as meaningful, while presumably still

validating the responses that timely and properly responded to

the accept or decline letters and complied with Section 6-146.

Although all the plaintiffs failed to file acknowledged

acceptances for the EH Fusion party (in contrast to filing

acknowledged acceptances regarding their nominations for

multiple other parties), two of the three EH Fusion candidates

who are not plaintiffs (Massa and Nielsen) properly accepted

their nominations and will be on the ballot.3 Stephen Lynch, who

was named in the nominating petition and is no longer associated

with the EH Fusion party, properly declined his nomination.

Although the court need not accept plaintiff Klopman’s

explanation as true, given the questionable relevance and

multiple layers of hearsay upon which she relies, Klopman has

asserted that Lynch declined his EH Fusion nomination in order

to preserve his future eligibility as a nominee for the

Democratic Party. Assuming for the sake of argument that

3 The third candidate who will be associated with the Fusion party, Rana, did

n o t h a v e t o f o r m a l l y a c c e pt because the acceptance requirement does not apply

to judicial candidates. See ECF No. 24-6, Rana Decline Letter (“The last day

to Decline such nomination is Friday, May 32, 2019.”).

Klopman’s assertion is correct, though Lynch was at liberty to

decline his nomination for any reason, Lynch’s decision to avoid

the adverse consequences of affiliating with the EH Fusion Party

demonstrates precisely why reliance on the nominating petitions

alone is insufficient. Although plaintiff Kinsella filed an

acceptance, it was not acknowledged as required. But

considering that accepting a nomination can have adverse

consequences, as asserted by plaintiff Klopman regarding Lynch,

it is sensible for the state to ensure that a potential

candidate actually personally accepts the nomination, which is

accomplished by the acknowledgment requirement of Section 6-146.

Plaintiffs argue that the certificate of acceptance

requirement is a burden that is unique to independent bodies.

This is inaccurate. Certificates of acceptance must be filed

not only by individuals wishing to run under the banner of an

independent body, but also by anyone wishing to run as a

candidate for a party in which the person is a not a member.

This means, by definition, that established parties require

certificates of acceptance for at least some of their candidates

to accept party nominations. Indeed, plaintiffs in this case

filed certificates of acceptance for placement on the ballot for

multiple parties in which they may not be members.

Although the Supreme Court has recognized that failure

to have one’s candidate on the ballot is not a severe burden,

this court also addresses the relationship between an acceptance

requirement and independent bodies. As the Unity Party decision

notes, established parties, through their primaries,

conventions, and caucuses provide their own party candidates the

opportunity to be informed of and accept their nominations.

Rather than limiting elections to members of major established

parties, New York has established a system in which people may

be nominated for office outside of their own party or any

established party, and the acknowledged certificate of

acceptance is the equivalent method of formal acceptance. The

state certainly has an interest in attempting to ensure that all

candidates accept (or reject) their nominations and that

candidates are not compelled to run for office or forced into

political associations, whether through the party process and

the party’s own rules, or by an acknowledged acceptance for

candidates unaffiliated with an established party.

Plaintiffs’ argument, in essence, that New York must

provide two bites at the apple for candidates who fail to

research, be informed of, and comply with the election law is

unpersuasive. Plaintiffs here have attempted to assert a

constitutional violation, based on their own admitted mistake

(see ECF No. 23-17, Pl. 56.1(b) Statement ¶ 10), that is, the

failure to file forms they had previously filed in the same

election cycle for other party nominations and that other

nominated members of their EH Fusion party filed timely and

correctly. Moreover, plaintiffs appear to assert that a

statutory framework that allows candidates to run for office

outside of their membership in a major party is evidence that

the creation of rules governing such a framework is

constitutionally suspect on equal protection grounds. Not so.

Rather, plaintiffs failed to accept their nominations via the

mechanism that allows potential candidates to temporarily

associate with established parties they have chosen not to

formally join, to associate with independent political

organizations that are not established political parties (and

otherwise could never run candidates under their name), and to

avoid being forced into association with an organization on the

ballot at the whim of petition signature collectors. The

classification of being an independent body does not

unconstitutionally burden such organizations, their candidates,

or their members. And, as the Unity Party court noted, this is

not a scheme that relies on suspect classifications like race.

Finally, the plaintiffs’ reliance on Hirschfeld is

misplaced. Whatever the actual nature of the conversation

Klopman had with Board employees during her two trips to Board’s

office, the court relies on the material fact that each

plaintiff received an accept or decline letter. These letters,

and not the subsequent letters notifying the plaintiffs of

invalidation, served as their notice that action needed to be

taken to accept their EH Fusion Party nominations. The letters

provided plaintiffs with notice that they needed to accept or

decline their nominations by a date certain, and plaintiffs bore

the responsibility of complying or seeking further information

if needed.

Plaintiffs have not established that the strict

acknowledged acceptance requirement of Section 6-146 violates

their First or Fourteenth Amendment rights. Accordingly, the

defendants are entitled to summary judgment.

IV. Certificate of Substitution

To the extent that plaintiffs maintain their claim

that the board violated New York’s election law by rejecting

plaintiffs’ certificates of substitution, plaintiffs’ claim is

denied. “Under Election Law § 6-148, a valid nomination is a

prerequisite to the creation of a vacancy.” Testa v. Ravitz, 84

N.Y.2d 893, 895, 644 N.E.2d 1348 (N.Y. 1994). No vacancies were

created because there were no valid nominations.

CONCLUSION

For the foregoing reasons, the court denies

defendants’ motion for a stay and/or abstention, grants

defendants’ motion for summary judgment, and denies plaintiffs’

motion for summary judgment. The Clerk of Court is respectfully

directed to enter judgment in favor of the defendants and close

this case.

SO ORDERED.

Dated: August 13, 2019

Brooklyn, New York

_________/s/_________________

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York