# EH Fusion Party v. Suffolk County Board of Elections

> District Court, E.D. New York · August 13, 2019

URL: https://www.frixlaw.com/law-library/cases/10302827

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 13, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10302827. Public record. Not legal advice.