Yang v. Kosinski

20-1494-cv

Yang, et al. v. Kosinski, et al.

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2019

No. 20-1494-cv

ANDREW YANG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS

SIMILARLY SITUATED; JONATHAN HERZOG, INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED; HELLEN SUH,

INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;

BRIAN VOGEL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED; SHLOMO SMALL, INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED; ALISON HWANG, INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED; KRISTEN MEDEIROS,

INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;

ROGER GREEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS

SIMILARLY SITUATED,

Plaintiffs-Appellees,

JAY BELLANCA, TRACI STRICKLAND, EMILY ADAMS, NESTOR MEDINA,

SIMRAN NANDA, KATHRYN LEVY, JOSHUA SAUBERMAN, CARI

GARDNER, STEPHEN CARPINETA, NANCY DEDELVA, TING BARROW,

PENNY MINTZ, GEORGE ALBRO,

Intervenors-Plaintiffs-Appellees,

v.

PETER S. KOSINSKI, CO-CHAIR AND COMMISSIONER, INDIVIDUALLY AND

IN HIS OFFICIAL CAPACITIES AT THE NYS BOE; TODD D. VALENTINE, CO-

EXECUTIVE DIRECTOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITIES

AT THE NYS BOE; ROBERT A. BREHM, CO-EXECUTIVE DIRECTOR,

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITIES AT THE NYS BOE,

Defendants-Appellants,

ANDREW SPANO, COMMISSIONER, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITIES AT THE NYS BOE,

Intervenor-Defendant-Appellant,

NEW YORK STATE BOARD OF ELECTIONS; DOUGLAS A. KELLNER, CO-

CHAIR AND COMMISSIONER, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITIES AT THE NYS BOE,

ADR Providers-Intervenors-Defendants-Appellants,

ANDREW CUOMO, AS GOVERNOR OF THE STATE OF NEW YORK,

Defendant.

On Appeal from the United States District Court

for the Southern District of New York

ARGUED: MAY 15, 2020

DECIDED: JUNE 1, 2020

Before: KEARSE, JACOBS, AND CABRANES, Circuit Judges.

2

Defendants-Appellants the New York State Board of Elections

and its officials (jointly, the “Board”) appeal from an order of

preliminary injunction entered in the United States District Court for

the Southern District of New York (Analisa Torres, Judge) in favor of

Democratic presidential candidate Andrew Yang and candidates for

delegate seats who, if elected, would be pledged to Yang and fellow

Democratic candidate, Senator Bernie Sanders. Yang, his delegates,

and the Sanders delegates have challenged the Board’s decision to

remove all qualified candidates from the ballot, with the exception of

former Vice President Joseph Biden, and cancel the Democratic

presidential primary. Without the presidential primary, the

candidates for delegates may not have an opportunity to participate in

the proceedings of the Democratic National Convention.

The question presented in this case is whether Yang, his

delegates, and the Sanders delegates have demonstrated an

entitlement to preliminary injunctive relief that reverses the effects of

the Board’s decision by requiring Yang and Sanders to be reinstated to

the ballot, and the Democratic presidential primary to be conducted

along with the other primary elections set for June 23, 2020.

On review, we conclude, as the District Court did, that

preliminary injunctive relief is warranted in the circumstances

presented and, therefore, we AFFIRM the District Court’s carefully

tailored order of preliminary injunction.

3

JEFFREY M. KURZON, Kurzon Kohen LLP,

New York, NY, for Plaintiffs-Appellees.

J. REMY GREEN (Elena L. Cohen, Jonathan

Wallace, on the brief), Cohen & Green

P.L.L.C., Ridgewood, NY; and ARTHUR Z.

SCHWARTZ, Advocates for Justice, New York,

NY, for Intervenors-Plaintiffs-Appellees.

JUDITH N. VALE, Senior Assistant Solicitor

General (Barbara D. Underwood, Solicitor

General, Steven C. Wu, Deputy Solicitor

General, and Jennifer L. Clark, Assistant

Solicitor General, on the brief), for Letitia

James, Attorney General, State of New York,

New York, NY, for Defendants-Appellants.

Malcolm Seymour, David R. West, Foster

Garvey, P.C., New York, NY, for Amici Curiae

Senator Bernie Sanders and Bernie 2020 Inc. in

Support of Appellees.

Ezra Ishmael Young, Law Office of Ezra

Young, Brooklyn, NY, for Amici Curiae New

York State Voters in Support of Appellees.

Rob Rickner, Rickner PLLC, New York, NY,

for Amici Curiae Medical Professionals in

Support of Appellees.

4

Walter H. Hackett, III, Law Office of Walter

Hackett, Walnut, CA, for Amici Curiae Heather

Key, et al. in Support of Appellees.

JOSÉ A. CABRANES, Circuit Judge:

On April 27, 2020, New York became the only State or Territory

in the United States to cancel its 2020 Democratic presidential primary.

Specifically, on that day, two Democratic commissioners of the New

York State Board of Elections (the “Board”) removed the names of ten

Democratic presidential candidates who had qualified to appear on

the ballot, but had publicly announced that they were suspending

their campaigns and/or no longer seeking the party nomination for the

office of President of the United States. By virtue of that decision, only

former Vice President Joseph Biden, the now-presumptive Democratic

nominee, remained on the ballot. The Democratic presidential

primary, described by the Board as nothing more than a “beauty

contest,” was thus canceled. 1 The stated reason for this action: the

current coronavirus pandemic (“COVID-19”). According to the Board,

the cancellation of the Democratic presidential primary would further

the State’s interests in minimizing social contacts to reduce the spread

of the virus and in focusing its limited resources on the management

of other contested primary elections.

1 Joint App’x at 118.

5

Some Democratic presidential candidates were not pleased

with the Board’s decision. Several candidates had already chosen to

“suspend,” rather than formally terminate, their campaigns. They

claimed to have done so with the understanding that, among other

things, they would remain on the primary ballot in the hopes of

electing delegates to attend the Democratic National Convention. The

candidates’ decision arguably was predicated on the longstanding and

well-understood notion that presidential candidates and their elected

delegates play an important role at national party conventions, even

when there is a presumptive presidential nominee.

Dissatisfied with the Board’s decision, Andrew Yang—a

businessman, a New York registered voter, and a Democratic

presidential candidate who had suspended his campaign for

President—and several of his pledged delegates, sued the Board. Yang

and his delegates (jointly, “Plaintiffs”) challenged the Board’s

decision, alleging that the removal of their names from the ballot and

the ensuing cancellation of the Democratic presidential primary

violated their free speech and associational rights under the First and

Fourteenth Amendments to the Constitution. 2

2 The Free Speech, Assembly, and Petition Clauses of the First Amendment

provide that “Congress shall make no law . . . abridging the freedom of speech . . .

or the right of the people peaceably to assemble, and to petition the Government

for a redress of grievances.” U.S. CONST. amend. I. The Due Process Clause of the

Fourteenth Amendment provides in relevant part that “[n]o State shall . . . deprive

any person of . . . liberty . . . without due process of law.” U.S. CONST. amend. XIV,

§ 1. The Supreme Court has made clear that the protections afforded by the First

Amendment, including the principles of freedom of speech and association, are “an

6

Joined by a group of intervenors-delegates pledged to another

presidential candidate, Senator Bernie Sanders (“Sanders delegates”),

Plaintiffs sought a temporary restraining order and a preliminary

injunction requiring that the names of all duly qualified candidates be

restored to the ballot and the presidential primary be held as

scheduled.

On May 5, 2020, the United States District Court for the Southern

District of New York (Analisa Torres, Judge) granted the application

for emergency injunctive relief and ordered the Board “to reinstate to

the Democratic primary ballot those presidential and delegate

candidates who were duly qualified as of April 26, 2020, and to hold

the primary election on June 23, 2020.” 3 The Board now appeals from

the order granting the application for preliminary injunction.

On review, we conclude, substantially for the reasons stated in

the District Court’s careful and well-reasoned decision, that Plaintiffs

and the Sanders delegates have adequately established their

entitlement to preliminary injunctive relief on the basis that the

Board’s April 27 decision unduly burdened their rights of free speech

and association.

inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the

Fourteenth Amendment.” Tashjian v. Republican Party of Conn., 479 U.S. 208, 214

(1986) (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958)).

3 Yang v. Kellner, No. 20-cv-3325 (AT), ---F. Supp. 3d---, 2020 WL 2129597, at

*14 (S.D.N.Y. May 5, 2020).

7

Accordingly, the May 5, 2020 decision and order of the District

Court is AFFIRMED. 4

I. BACKGROUND

A. The Facts 5

The Democratic presidential primary in New York is a head-to-

head electoral contest between the various presidential candidates

who are competing for pledged delegates to the Democratic National

Convention and seeking the Democratic nomination. The votes cast in

the primary for each candidate are tallied and then provided to the

New York Democratic Party so that it can determine the number of

“elected” or “pledged” delegates that will represent each candidate at

the Democratic National Convention. 6 According to New York’s

4In the interest of time and efficiency, on May 19, 2020, this Court affirmed

the District Court’s decision and order by summary order and indicated that our

opinion would follow. See Yang v. Kosinski, No. 20-1494-cv, ---F. App’x---, 2020 WL

2530191, at *1 (2d Cir. May 19, 2020). This is the promised opinion.

5 We draw the facts from the District Court’s recitation of the allegations in

the pleadings and the undisputed record before us. See Yang, 2020 WL 2129597, at

*1–3. The record in this case consists primarily of the various materials presented

to the District Court relating to the application for preliminary injunction, as well

as the transcript of the telephonic hearing before the District Court.

6 The majority of the delegates at the Democratic National Convention are

elected delegates, who are “pledged” to a presidential candidate and are thus

“required to vote for a particular candidate at the Convention based on the result

of their state’s (or territory’s) primary election, caucus, or convention.” Id. at *1 n.1.

(internal quotation marks and citation omitted). There are also some non-elected,

“unpledged” delegates, formally known as “automatic delegates” (and commonly

referred to as “superdelegates”), who may vote for the candidate of their choice.

8

delegate-selection plan, “a candidate for the presidency may send

delegates to the Convention if he or she receives at least 15 percent of

the vote in a congressional district, and 15 percent of the vote

statewide.” 7

The New York Democratic presidential primary was originally

set for April 28, 2020. Eleven different candidates had qualified to

appear on the ballot. Between February and April, all but Vice

President Biden “publicly announced that they are no longer seeking

the nomination for the office of president of the United States, or that

they are terminating or suspending their campaign.” 8 Among those

See id. (internal quotation marks and citation omitted). Notably, under the current

procedural rules and the “call for the convention” of the National Democratic Party,

the voting power of the so-called “superdelegates” is more limited, as they cannot

vote, for example, on the first nominating ballot at the convention if no candidate

wins a majority of the delegates by the end of the primary season. See CALL FOR

THE 2020 DEMOCRATIC NATIONAL CONVENTION: ISSUED BY THE DEMOCRATIC PARTY

OF THE UNITED STATES art. IX.C.7 (adopted August 25, 2018), available at

https://democrats.org/wp-content/uploads/2019/02/2020-Call-for-Convention-

WITH-Attachments-2.26.19.pdf (last visited May 25, 2020). Only if the vote by the

pledged delegates is insufficient to decide the nomination after the first ballot, can

the superdelegates cast their vote at a contested convention to break any putative

stalemate. See id.; see also Joint App’x at 300.

The Yang and Sanders delegates would all be “pledged” delegates if their

candidates receive the necessary votes under the terms of the delegate-selection

plan for New York.

7 Yang, 2020 WL 2129597, at *1 (describing the requirements for a

presidential candidate to collect elected, pledged delegates); see also Joint App’x at

183, 185.

8 Joint App’x at 124.

9

candidates are Yang, who suspended his campaign on February 11,

and Sanders, who followed suit on April 8. Despite “suspending”

their campaigns and subsequently endorsing Biden as the Democratic

presumptive nominee, Yang and Sanders publicly announced that

they intended to remain on the ballot in all remaining primaries to

collect delegates for the convention.

But the rules of the contest were changed as a result of the

COVID-19 pandemic. On March 28, 2020, New York Governor

Andrew Cuomo issued an executive order directing the presidential

primary to be “postponed and rescheduled for June 23, 2020.” 9 Then,

on April 3, Governor Cuomo signed an omnibus budget bill that

altered the various procedures for holding presidential primaries in

New York and selecting elected delegates to the Democratic National

Convention.

Newly enacted New York Election Law § 2-122-a(13) authorizes

the Board to “omit” those presidential candidates “from the [primary]

ballot” if the candidates: (1) “publicly announce[ ] that they are no

longer seeking the nomination”; (2) “publicly announce[ ] that they are

terminating or suspending their campaign”; or (3) “send[ ] a letter to

the state board of elections indicating that they no longer wish to

appear on the ballot.” 10 If a candidate were omitted from the ballot as

9 N.Y. Exec. Order 202.12; see also Joint App’x at 56, 112.

10N.Y. ELEC. LAW § 2-122-a(13). The statute further provides that “for any

candidate of a major political party, such determination shall be solely made by the

commissioners of the state board of elections who have been appointed on the

10

a result of one of these three circumstances, the statute further

provides that the “candidates for delegates and/or alternate delegates

who are pledged” to the omitted presidential primary candidate also

be removed from the ballot. 11

On April 20, 2020, more than two weeks after the omnibus bill

became law, the two Democratic commissioners of the Board of

Elections announced their intention to hold a vote on April 22—later

postponed to April 27—on whether to exercise their new authority. 12

Yang and Sanders vigorously objected to the proposed change;

“thousands of emails” to the Board from displeased voters followed. 13

Sanders, for example, submitted a letter through his attorney

explaining that he “announced the limited suspension of his

presidential campaign, [while] emphasizing that he intended to

remain on the ballot in upcoming primaries, gather delegates, and

attend the Democratic National Convention, with an eye to

influencing the party’s platform.” 14

recommendation of such political party or the legislative leaders of such political

party.” Id.

11 Id. § 2-122-a(14).

See Joint App’x at 113 (declaration of the Board’s Co-Executive Director

12

Robert Brehm reciting, among other things, the Board’s actions following the

enactment of the law).

13 Id. at 114 (same).

14 Id. at 99–100 (Sanders Letter to the Board).

11

The objections fell on deaf ears. On April 27, the Democratic

commissioners adopted a resolution (the “April 27 Resolution”)

removing all of the qualified candidates and their pledged delegates

from the ballot, with the exception of Vice President Biden and his

pledged delegates. The two commissioners did so on the basis of

“public declarations made by the relevant presidential candidates”

that they had suspended their presidential campaigns or were no

longer seeking the nomination. 15 With Biden left as the only

presidential candidate on the ballot, the Democratic commissioners

effectively canceled the presidential primary pursuant to the

longstanding New York statute that provides that when there is only

one candidate on the ballot, the sole candidate “shall be deemed

nominated or elected . . . without balloting.” 16

B. Procedural History

On April 28, 2020, Plaintiffs filed suit challenging the April 27

Resolution as unconstitutional and seeking, among other things, a

preliminary injunction to reverse the Board’s decision to remove their

names from the ballot. 17 The Sanders delegates intervened in the suit

15 Id. at 125 (April 27 Resolution).

16 N.Y. ELEC. LAW § 6-160(2).

17In addition to Plaintiffs’ claims for injunctive relief arising under the U.S.

Constitution, Plaintiffs alleged that the April 27 Resolution violates their rights

under various provisions of the Constitution of the State of New York. See Joint

App’x at 65–70. Plaintiffs also sought actual or statutory damages against the Board

and the Board officials in both their official and individual capacities. See id. at 73.

We do not consider those claims here. See Yang, 2020 WL 2530191, at *6 (“[F]or the

12

with leave of the District Court, filing their own complaint, and joining

the Plaintiffs’ request for emergency equitable relief.

On May 4, the District Court held telephonic argument on the

application for a preliminary injunction. 18 A day later, on May 5, the

District Court issued its Opinion and Order granting the application.

The instant appeal followed.

II. DISCUSSION

On appeal, the Board argues that the District Court erred in

issuing a preliminary injunction reversing the effects of the April 27

Resolution. Specifically, the Board contends that it has “compelling

interests in protecting health, safety, and the efficient administration

of elections during the COVID-19 pandemic.” 19 The Board further

argues that the April 27 Resolution meaningfully advances those

purposes of resolving the request for a preliminary injunction, the Court addresses

only prospective injunctive relief against the [Board] Officials in their official

capacity brought under the U.S. Constitution.”).

18Although the District Court “held a telephonic hearing on the request for

a preliminary injunction,” that hearing did not involve any “live” testimony. Id. at

*3. As the District Court explained, an “evidentiary hearing” was not required

because the “entitlement to relief is clear from the undisputed record” presented

by the parties. Id at n.2. (collecting cases).

19 Appellants’ Br. at 17.

13

interests and “does not necessarily foreclose” Plaintiffs and the

Sanders delegates “from pursuing [their associational] interest[s].” 20

Although the interests set forth by the Board are certainly

important, its argument sweeps too broadly. The Board overstates the

strength of its justifications for enacting the April 27 Resolution in

furtherance of its interests. In doing so, it unduly encroaches on the

competing constitutional interests of Plaintiffs and the Sanders

delegates. 21

A. Standard of Review and Legal Standard

We review de novo the District Court’s legal conclusions in

deciding to grant a motion for a preliminary injunction, 22 but review

its ultimate decision to issue the injunction for “abuse of discretion.” 23

20 Id. at 19.

21We note that the District Court’s holding on Article III standing was not

challenged on appeal. Nevertheless, to satisfy our independent obligation to

determine our subject-matter jurisdiction over the case, we have examined sua

sponte the question of Article III standing and concluded that Plaintiffs and the

Sanders delegates have standing to challenge the Board’s April 27 Resolution.

22 See Am. Express Fin. Advisors Inc. v. Thorley, 147 F.3d 229, 231 (2d Cir. 1998).

23See Goldman, Sachs & Co. v. Golden Empire Schs. Fin. Auth., 764 F.3d 210, 214

(2d Cir. 2014). “A district court has ‘abused its discretion if it based its ruling on an

erroneous view of the law or on a clearly erroneous assessment of the evidence,’

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 . . . (1990), or rendered a decision

that ‘cannot be located within the range of permissible decisions,’ Zervos v. Verizon

N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001).” In re Sims, 534 F.3d 117, 132 (2d Cir.

2008) (alteration omitted).

14

Ordinarily, to obtain a preliminary injunction against

governmental action taken pursuant to a statute, the movant has to

“demonstrate (1) irreparable harm absent injunctive relief, (2) a

likelihood of success on the merits, and (3) public interest weighing in

favor of granting the injunction.” 24 The movant also must show that

“the balance of equities tips in his [or her] favor.” 25

But where the movant is seeking to modify the status quo by

virtue of a “mandatory preliminary injunction” (as opposed to seeking

a “prohibitory preliminary injunction” to maintain the status quo), 26 or

where the injunction being sought “will provide the movant with

substantially all the relief sought and that relief cannot be undone even

if the defendant prevails at a trial on the merits,” 27 the movant must

also: (1) make a “strong showing” of irreparable harm, 28 and (2)

24Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133,

143 (2d Cir. 2016) (citing Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir.

2011)).

25 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

26 Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006) (emphasis

in original).

27 New York ex. rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir.

2015) (internal quotation marks and citation omitted).

28 Doe v. New York Univ., 666 F.2d 761, 773 (2d Cir. 1981).

15

demonstrate a “clear or substantial likelihood of success on the

merits.” 29

We need not choose between these two standards of review

because we are confident that Plaintiffs and the Sanders delegates

would prevail regardless of the standard we apply. Like the District

Court, we assume, for the sake of argument only, that the more

rigorous standard applies here. 30

B. Analysis of the Injunction Factors

The Board argues that the District Court “erred in concluding

that” Plaintiffs and the Sanders delegates “are likely to succeed on the

merits of their claims, and . . . that the balance of equities and public

interest support[s] the preliminary injunction.” 31 Notably, the Board

does not appear to challenge, and therefore concedes, the District

Court’s finding that Plaintiffs and the Sanders delegates have

established “the single most important prerequisite for the issuance of

a preliminary injunction” 32: that they would be irreparably injured in

the absence of preliminary injunctive relief.

29 Mastrovincenzo, 435 F.3d at 89 (internal quotation marks and citation

omitted).

30 See Yang, 2020 WL 2530191, at *6.

31 Appellants’ Br. at 24.

32 Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009)

(internal quotation marks and citation omitted).

16

Indeed, the Board’s brief on appeal does not bother to discuss

the irreparable-harm prong—for good reason. 33 Beyond alleging the

violation of their constitutional rights, there can be no question that

Plaintiffs and the Sanders delegates have demonstrated that, without

the requested injunctive relief reversing the effects of the April 27

Resolution, they could neither compete nor participate in New York’s

Democratic presidential primary. 34 Accordingly, Plaintiffs and the

Sanders delegates have made a strong showing of irreparable harm. 35

With that in mind, we now address the injunction factors that

are contested by the parties.

1. Clear or Substantial Likelihood of Success on the Merits.

33 Although the Board states in passing that “each of the preliminary-

injunction factors weighs against ordering the Board to conduct an uncontested

presidential primary during the COVID-19 pandemic,” Appellants’ Br. at 23

(emphasis added), there is no mention, let alone a substantive discussion, of the

irreparable-harm prong of the standard for injunctive relief. Rather, the Board

focuses exclusively on the merits of the claim and the balancing of the equities. See

id. at 24–37; see also generally Appellants’ Reply Br. at 2–21. The only reference to

“irreparable harm” relates to the alleged harms to the Board’s interests, see

Appellants’ Br. at 28—a reference that has no bearing on the irreparable-harm

prong that the movant must establish.

34 See Faiveley, 559 F.3d at 118 (requiring a showing that, “absent a

preliminary injunction,” the movants “will suffer an injury that is neither remote

nor speculative, but actual and imminent, and one that cannot be remedied if a

court waits until the end of trial to resolve the harm” (internal quotation marks and

citation omitted)).

35 See ante note 24.

17

To dispose of the Board’s appeal at this stage, we do not need to

decide whether § 2-122-a(13) is constitutional on its face. As the

District Court explained, it may well be that the statute “reflect[s]

reasonable policy objectives in the abstract.” 36 And, as counsel for

Plaintiffs explained at oral argument, the application of § 2-122-a(13)

in 2024 may raise different issues that are not implicated in the

circumstances presented at this stage of the case. Those questions, if

ever presented, must be addressed at a later date.

Rather, here, we are called upon to consider the constitutionality

of § 2-122-a(13) as applied by the Board to Plaintiffs and the Sanders

delegates through the adoption of the April 27 Resolution. There is no

“litmus-paper test” to answer that question. 37 Instead, we conduct a

two-step inquiry that applies to election-related restrictions.

First, we ascertain the extent to which the challenged restriction

burdens the exercise of the speech and associational rights at stake.

The restriction could qualify as “reasonable [and] nondiscriminatory”

or as “severe.” 38 Once we have resolved this first question, we proceed

to the second step, in which we apply one or another pertinent legal

standard to the restriction.

36 Yang, 2020 WL 2129597, at *9.

37 Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (internal quotation marks

omitted).

38 Burdick v. Takushi, 504 U.S. 428, 434 (1992).

18

If the restriction is “reasonable [and] nondiscriminatory,” we

apply the standard that has come to be known as the Anderson-Burdick

balancing test: we “must first consider the character and magnitude of

the asserted injury to the rights protected by the First and Fourteenth

Amendments that the plaintiff seeks to vindicate,” and “then . . .

identify and evaluate the precise interests put forward by the State as

justifications for the burden imposed by its rule.” 39 “In passing

judgment” under this more flexible standard, we must “determine

[both] the legitimacy and strength of each of those interests” and “the

extent to which those interests make it necessary to burden the

plaintiff’s rights.” 40

If the restriction is “severe,” then we are required to apply the

more familiar test of “strict scrutiny”: whether the challenged

restriction is “narrowly drawn to advance a state interest of

compelling importance.” 41 It follows then that the “rigorousness of our

inquiry into the propriety of a state election law depends upon the

extent to which a challenged [restriction] burdens First and Fourteenth

Amendment rights.” 42

It may be hard to imagine a more “severe” election-related

restriction than the removal of ten out of eleven qualified candidates

39 Anderson, 460 U.S. at 789.

40 Id.

41 Burdick, 504 U.S. at 434 (internal quotation marks omitted).

42 Id.

19

from a ballot, resulting in the cancellation of the election. That said, in

these circumstances, we need not decide whether the strict-scrutiny

test applies here, since Plaintiffs and the Sanders delegates are clearly

or substantially likely to prevail on the merits of their claim even under

the more flexible and less exacting standard. As the District Court

aptly observed, “the Court ultimately need not determine whether this

burden was so severe that strict scrutiny is warranted, because even

under the more lenient balancing test,” the Board’s “justifications

cannot support their weighty imposition on Plaintiffs’ and [the

Sanders delegates’] right to free association.” 43

i. The burden on the asserted constitutional

rights.

The nature of the constitutional rights asserted by Plaintiffs and

the Sanders delegates “is evident.” 44 As discussed above, they wish to

appear on the ballot of New York’s Democratic presidential primary

and they wish to vote in the primary election. That interest “to engage

in association for the advancement of beliefs and ideas” 45 and “to cast

their votes effectively” 46 falls squarely within the ambit of the

protection afforded by the First Amendment. That interest is “an

43 See Yang, 2020 WL 2129597, at *10.

44 Tashjian, 479 U.S. at 214.

45 Id. (quoting NAACP, 357 U.S. at 460).

46 Williams v. Rhodes, 393 U.S. 23, 30 (1968).

20

inseparable aspect of the ‘liberty’ assured by the Due Process Clause

of the Fourteenth Amendment,” which is applicable to the States. 47

It is settled that “[t]he right to associate with the political party

of one’s choice is an integral part of this basic constitutional freedom

[of association],” 48 which in turn “necessarily presupposes” the party’s

right to define its internal structure and “the freedom to identify the

people who constitute the association.” 49 Parties exercise that freedom

in a number of ways, including through elections to choose their

nominees for public office. And although States have a “broad power

to regulate the time, place, and manner of [such] elections,” they have

a “‘responsibility to observe the limits established by the First

Amendment rights of the State’s citizens.’” 50

The State’s power cannot be used, for example, to create barriers

that unduly burden a person’s right to participate in a state-mandated

presidential primary. 51 Indeed, “[a]ny interference with the freedom

of a party” to determine how it will choose its delegates “is

47 Tashjian, 479 U.S. at 214 (quoting NAACP, 357 U.S. at 460); see ante note 2.

48 Id. (quoting Kusper v. Pontikes, 414 U.S. 51, 57 (1973)).

49Id. at 214–15 (quoting Democratic Party of U. S. v. Wisconsin ex rel. La Follette,

450 U.S. 107, 122 (1981)).

50Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 222, (1989) (quoting

Tashjian, 479 U.S. at 217).

See N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 204 (2008) (“We

51

have indeed acknowledged an individual’s associational right to vote in a party

primary without undue state-imposed impediment.”).

21

simultaneously an interference with the freedom of its adherents.” 52

The question thus becomes: what exactly is the burden imposed by the

Board, in adopting by action of two of its members the April 27

Resolution, on the constitutional rights of Plaintiffs and the Sanders

delegates?

a.

Yang wants an opportunity to compete for delegates. And so

does Sanders, who filed an amicus brief before this Court in support

of the claims of Plaintiffs and the Sanders delegates. By the same token,

the Yang and Sanders delegates also want to compete for an

opportunity to attend the Democratic National Convention. These are

not trivial interests. Those familiar with the internal structure of the

Democratic Party and the history of its National Convention will have

no difficulty appreciating their significance.

At the Democratic National Convention, delegates have many

important responsibilities, some with long-term consequences. In

addition to participating in the selection of the presidential nominee,

they vote on the procedural rules of the Convention; the National

Democratic Party electoral platform; issues of party governance; and

52 Tashjian, 479 U.S. at 215 (quoting Democratic Party, 450 U.S. at 122).

22

not insignificantly, the selection of the vice-presidential nominee. 53

Furthermore, the power of the elected delegates extends beyond the

quadrennial national convention. The delegates of the National

Convention remain “the highest authority [and governing body] of the

Democratic Party” until new delegates are selected. 54 Accordingly, the

programs and policies adopted at the Democratic National

Convention will continue to influence state party rules or actions of

the Democratic National Committee. 55

See, e.g., Rockefeller v. Powers, 74 F.3d 1367, 1380 (2d Cir. 1995); Yang, 2020

53

WL 2129597, at *9 (collecting citations to the record); Joint App’x at 300, 305–06.

54 THE CHARTER & THE BYLAWS OF THE DEMOCRATIC PARTY OF THE UNITED

STATES (“CHARTER & BYLAWS”), Charter art. II, §§ 2, 4 and Bylaws art. I, § 1 (as

amended August 25, 2018), available at https://democrats.org/wp-

content/uploads/2018/10/DNC-Charter-Bylaws-8.25.18-with-Amendments.pdf

(last visited May 22, 2020); see also Br. for Amici Curiae Senator Bernie Sanders and

Bernie 2020 Inc. at 4–5 (describing the role of delegates and the National

Convention under the Democratic Party’s Charter & Bylaws) (citing, e.g., CHARTER

& BYLAWS, Charter art. III, § 1; id., art. IV, § 1; id., art. V, § 1).

55The Democratic Party is familiar with how unsuccessful presidential

candidates have influenced the party’s governance and shaped the party’s rules in

a way that has transformed the internal structure and politics of the Democratic

Party moving forward. For example, after an unsuccessful run to obtain the

Democratic nomination for President in the midst of the tumultuous 1968

Democratic National Convention, Senator George McGovern led an effort to reform

the Party’s internal structure and nominating procedures. See Democratic Party of

U.S., 450 U.S. at 116–17. The effort concluded in the adoption of “guidelines to

eliminate state party practices that limited the access of rank-and-file Democrats to

the candidate selection procedures, as well as those that tended to dilute the

influence of each Democrat who took advantage of expanded opportunities to

participate”—which are commonly known as the “McGovern Rules,” and which

were formally “incorporated into the Call to the 1972 Convention, which set forth

23

The process for determining the number of pledged delegates

per candidate is complex, but it is indisputable that, under the current

rules of the National and New York Democratic Party, the only way

for a candidate for delegate to compete for the opportunity to

participate in the work of the Democratic National Convention is if the

name of that delegate’s presidential candidate appears on the ballot.

Put another way: the Board’s cancellation of the presidential primary

has deprived Plaintiffs and the Sanders delegates not only of their

right to cast a ballot in the presidential primary, but also of their right

to seek an entitlement to attend the Democratic National Convention

as delegates. This is a substantial burden on the rights of speech and

association of Plaintiffs and the Sanders delegates.

As the District Court explained:

the formal requirements of the delegate selection and nominating processes for the

Convention.” Id. at 116–17 & nn. 15–16; see also Eli Segal, Delegate Selection Standards:

The Democratic Party’s Experience, 38 GEO. WASH. L. REV. 873, 880–881 (1970), cited

in Democratic Party of U.S., 450 U.S. at 116 n.15. See generally BYRON E. SHAFER, QUIET

REVOLUTION: STRUGGLE FOR THE DEMOCRATIC PARTY & THE SHAPING OF POST-

REFORM POLITICS (1983).

More recently, after an unsuccessful run for the Democratic presidential

nomination in 2016, “Senator Sanders and his delegation actively participated in

the Convention and its Committees, securing important reforms to the Democratic

Party’s platform, rules and bylaws,” which included the promulgation of new rules

that substantially limited the voting power assigned to the so-called

“superdelegates” at the National Convention—rules that have been adopted in the

“Call for the 2020 Convention.” Br. for Amici Curiae Senator Bernie Sanders and

Bernie 2020 Inc. at 1.

24

[T]he removal of presidential contenders from the

primary ballot not only deprived those candidates of the

chance to garner votes for the Democratic Party’s

nomination, but also deprived their pledged delegates of

the opportunity to run for a position where they could

influence the party platform, vote on party governance

issues, pressure the eventual nominee on matters of

personnel or policy, and react to unexpected

developments at the Convention. And it deprived

Democratic voters of the opportunity to elect delegates

who could push their point of view in that forum. 56

The character and magnitude of this burden becomes more

apparent as we consider the circumstances in which the April 27

Resolution came into being. New York election law has long

provided—since at least 1976—that uncontested elections can be

resolved “without balloting.” 57 It is not disputed that an election under

New York law is “uncontested” if there is only one candidate on the

ballot for a particular office—either because that candidate was the

only one who qualified to be on the ballot, or because the other

candidates who had qualified expressly asked to be removed through

a notarized request sent to the Board. 58

56 Yang, 2020 WL 2129597, at *9.

57 N.Y. ELEC. LAW § 6-160(2).

58 Joint App’x at 183–84 (describing the qualifying requirements for a

presidential primary to appear on the ballot and explaining that a qualified

candidate “shall appear as such a Candidate on the Primary ballot throughout the

State unless, that individual files a declination of candidacy with the State Board”);

25

Therefore, absent “declination” or other circumstances not

present here (e.g., a challenge to the validity of the signatures

submitted by the candidate), it had long been understood that once a

candidate qualifies to participate in the primary, the candidate is

entitled to appear on the ballot. It was based on this understanding

that, for example, Yang suspended his campaign in February 2020.

When § 2-122-a(13) was enacted on April 3, 2020, to authorize

the removal from the ballot of those candidates who had publicly

announced that they were suspending their campaigns or no longer

seeking the nomination, the State changed the longstanding rules

governing the New York Democratic Party’s primary process. It did

so, notably, at the eleventh hour. As a result, when the Board exercised

its newly enacted, discretionary authority under § 2-122-a(13) to adopt

the April 27 Resolution, the Board “upended the candidates’ settled

expectation that they would stay on the ballot; after all, when Yang

and [most of] the other contenders suspended their campaigns, there

was no threat that doing so would bar them from competing for

delegates.” 59

b.

see also Sanders Delegates’ Br. at 39 (“Within New York’s Election Law, it is all but

impossible to get off the ballot, ‘however reasonable [the reason for removal] might

appear.’” (quoting Matter of Biamonte v Savinetti, 87 A.D.3d 950, 954 (2d Dept. 2011)).

59 Yang, 2020 WL 2129597, at *9.

26

The Board argues that “both Yang and Senator Sanders had an

opportunity to prevent the Board from removing their names from the

ballot and thus to prevent the cancellation of the presidential

primary.” 60 The Board emphasizes the fact that “Sanders suspended

his campaign [on April 8] after the Legislature enacted Election Law

§ 2-122-a(13), and [that] Yang could have reactivated his campaign

before the Board issued its determination.” 61 We are not persuaded.

As a threshold matter, nothing in the text of § 2-122-a(13)

suggests that candidates who “reactivate” their campaigns may

restore their eligibility to remain on the ballot. That omission is

significant in light of the fact that § 2-122-a(13) was enacted as part of

an omnibus budget bill—without much, if any, public discussion and

without a traceable legislative history. In light of the text of the new

statute and the absence of contemporaneous guidance accompanying

its enactment, the Board’s argument that the candidates “could have

reactivated” their campaigns between April 3 and April 27 carries little

weight.

Significantly, on April 20, when the two Democratic

commissioners of the Board announced their intention to vote on

whether to exercise their new authority under § 2-122-a(13), Yang and

Sanders vigorously objected to the Board’s proposal and made it clear

to the Democratic commissioners that they wished to remain on the

60 Appellants’ Br. at 20.

61 Id.

27

ballot. Indeed, Sanders, through his counsel, sent a detailed letter to

the Board to that effect. 62 In the circumstances presented here, the

Board’s insistence on the candidates’ formal reactivation of their

campaign appears to put form over substance, as it should have been

clear by April 27 that Yang and Sanders wished to remain on the ballot

and compete for delegates. By removing candidates who qualified to

be, and clearly intended to remain, on the ballot, the Board, through

its two Democratic commissioners, effectively manufactured an

“uncontested” election within the meaning of New York election law

and thereby canceled the primary by operation of law. 63 It did so

without apparent regard to the burden that its decision would impose

on the Plaintiffs and the Sanders delegates under the existing

delegate-selection plan.

c.

The Board next argues that the April 27 Resolution does not

preclude “the associational activity that” Plaintiffs and the Sanders

delegates seek because the Democratic National Committee and the

presidential candidates (specifically, Biden and Sanders) can “provide

alternate means for selecting delegates to the convention.” 64 Because

the Democratic National Committee or the presidential candidates

could in theory reach an agreement that renders the presidential

delegate-selection primary unnecessary, we are invited to draw the

62 See Joint App’x at 99–100.

63 See N.Y. ELEC. LAW § 6-160(2).

64 Appellants’ Br. at 35.

28

conclusion that the Board’s actions, as they currently stand, are

constitutional.

We decline this invitation to “overlook an [alleged]

unconstitutional restriction upon some First Amendment activity

simply because it leaves other First Amendment activity

unimpaired.” 65 And we decline to reserve our judgment on a

constitutional claim based on what could happen in an imagined

universe, especially when that universe includes major third-party

actors (e.g., the Democratic National Committee and Vice President

Biden) not present before us.

With this analysis in mind, we turn to the interests asserted by

the Board to justify the burden that the April 27 Resolution placed on

the constitutional rights of Plaintiffs and the Sanders delegates.

ii. The justifications for the April 27 Resolution.

The Board contends that the April 27 Resolution is justified to

further the State’s compelling interests in: (1) protecting the public

from the health risks posed by COVID-19 by, for example, minimizing

social contacts and interactions; and (2) utilizing the Board’s limited

resources to make sure that other (contested) elections can be

conducted safely and efficiently during the current pandemic. We

examine each justification in turn and consider whether they “make it

65 Cal. Democratic Party v. Jones, 530 U.S. 567, 581 (2000).

29

necessary to burden the [constitutional] rights” of Plaintiffs and the

Sanders delegates. 66

As explained below, upon closer examination, the Board

overstates the strength of its justifications in an effort to sustain the

considerable limitations that it has placed on the constitutional rights

asserted by Yang and the Sanders delegates.

a.

With respect to the first justification, the Board explains that

approximately “eighteen of New York’s sixty-two counties contain

subdivisions, such as cities, towns, or election districts, that will not

need to conduct any election at all absent the Democratic presidential

primary,” and that in approximately “seven of these counties” no

election would need to be held. 67 According to the Board, “[n]ot

holding an election in these counties, municipalities, and districts will

significantly reduce the number of voters, poll sites, and poll workers

who will have to be physically present, thereby decreasing the risk of

the virus spreading in the community.” 68

This justification is overstated for at least two reasons. First,

Governor Cuomo has authorized every voter in the State to request an

absentee ballot and has ordered that absentee ballot applications be

66 Anderson, 460 U.S. at 789.

67 Appellants’ Br. at 27 (citing Joint App’x at 118).

68 Id.

30

mailed to all voters. 69 We agree with the District Court that, in light of

these measures and the circumstances they are designed to address,

“in-person turnout is likely to be dramatically lower, allowing the state

to safely accommodate those voters who need to vote at a polling

location.” 70 Those who do choose to vote in person may cast their votes

by practicing “social distancing,” as recommended by the guidelines

of the Centers for Disease Control and Prevention, 71 or through

innovative methods, such as secure drop-off boxes (if available). 72

Second, primaries for other races will be held on June 23 in the

vast majority of counties in the State. Approximately, “90% or more of

New York’s Democratic Party electorate will be voting in other

primaries” on June 23, “ranging from Congressional seats, State Senate

and Assembly seats, State Democratic Committee, judgeships, and

many other positions.” 73 And the counties that will be conducting

elections include “Kings, Queens, New York, Suffolk, Bronx, and

Nassau Counties, each of which has a population exceeding one

69 See Joint App’x at 286.

70 Yang, 2020 WL 2129597, at *11.

71 CTRS. FOR DISEASE CONTROL AND PREVENTION, Recommendations for

Election Polling Locations: Interim Guidance to Prevent Spread of Coronavirus Disease

2019 (COVID-19) (updated March 27, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/community/election-polling-locations.html (last visited May 22, 2020).

72 Yang, 2020 WL 2129597, at *11 n.4.

73 Joint App’x at 288.

31

million,” 74 and each of which is among the counties of New York (and

the country) most afflicted by the pandemic. These facts stand in stark

contrast to those counties where no election would need to be

conducted absent the Democratic presidential primary, 75 which, as

counsel for the Board conceded at oral argument, are all located in

upstate New York in areas that are not heavily populated. And,

notwithstanding the fact that the pandemic has left the whole country

at a standstill, as counsel for the Board also confirmed at oral

argument, New York is the only State or Territory of the United States

that has canceled the Democratic presidential primary.

b.

The second justification—the Board’s assertedly limited

resources—warrants little discussion. The Board explains that its

limited resources will need “to be diverted from the task of preparing

for and conducting the remaining contested primaries and elections

on June 23” to conduct the presidential primary and potentially

accommodate “a surge in absentee balloting.” 76 This assertion is

simply too conclusory and vague to support the cancellation of the

presidential primary and, in any event, does not warrant the burden

imposed on Plaintiffs and the Sanders delegates.

74 Yang, 2020 WL 2129597, at *11.

75 See Joint App’x at 118.

76 Appellants’ Br. at 30–31.

32

As the Supreme Court teaches, in a related context, “[e]ven

assuming the factual accuracy of these contentions . . . the possibility

of future increases in the cost of administering the election system is

not a sufficient basis here for infringing [Plaintiffs’ and the Sanders

delegates’] First Amendment rights.” 77 If limited resources need to be

diverted from other elections or budgetary sources to conduct the

presidential primary as scheduled, it is only because the Board

effectively canceled the primary in the first instance, notwithstanding

the numerous objections to the contrary. In these circumstances, the

Board’s cost-saving justification does little to advance its position.

2. The Balance of the Equities and the Public Interest

Under the last injunction factor, we must “balance the

competing claims of injury and must consider the effect on each party

of the granting or withholding of the requested relief,” 78 as well as “the

public consequences in employing the extraordinary remedy of

injunction.” 79

Our analysis of the competing interests under the Anderson-

Burdick framework demonstrates that the balance of equities tips in

favor of Plaintiffs and the Sanders delegates, and in favor of upholding

the preliminary injunction entered by the District Court. It bears

77 Tashjian, 479 U.S. at 218.

78 Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Village of Gambell, 480

U.S. 531, 542 (1987)).

79 Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)).

33

recalling that, under the current rules of the Democratic Party and its

New York delegate-selection plan, a presidential primary must take

place in order for the Yang and Sanders delegates to be able to

participate in the deliberations of the Democratic National

Convention. And in light of the importance of the right to political

participation in a primary election and the pivotal role that delegates

play within the structure of the Democratic Party, Plaintiffs and the

Sanders delegates have shown that, absent injunctive relief, their First

Amendment rights likely would be forever extinguished. That is

surely a “significant” hardship that the Board has not adequately

justified. 80

We are mindful that the cost of the preliminary injunction on the

Board may not be trivial. But as the District Court aptly stated, it is a

cost that the State of New York chose to bear “when it assumed the

responsibility of regulating and holding the [Democratic Party’s]

primary election,” and that it was required “to shoulder . . . before the

adoption of the April 27 Resolution.” 81 We agree that the balance

struck by the District Court between the various competing interests

promotes, rather than undermines, the public interest. 82

80 New York Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013);

see also Yang, 2020 WL 2129597, at *12 (collecting cases).

81 Yang, 2020 WL 2129597, at *12.

82 See id.

34

III. CONCLUSION

To summarize: we conclude that Plaintiffs and the Sanders

delegates have: (1) made a strong showing of irreparable harm absent

injunctive relief; (2) demonstrated a clear or substantial likelihood of

success on the merits of their claims under the First and Fourteenth

Amendments; and (3) demonstrated that the balance of the equities

tips in their favor and that the public interest would be served

adequately by the District Court’s preliminary injunction. We hold

that the District Court did not err or abuse its discretion in granting

the application for a preliminary injunction, which was carefully

tailored to secure the constitutional rights at stake and to afford the

Board sufficient time and guidance to carry out its obligations to the

electorate and to the general public.

The District Court’s May 5, 2020 order entering a preliminary

injunction is AFFIRMED.

35