Petition for Writ of Certiorari — Carlanda D. Meadors, et al., Petitioners v. Erie County Board of Elections, et al.

Supreme Court briefDec 20, 2024

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No. 24-

In the Supreme Court of the United States

CARLANDA D. MEADORS, ET AL.,

PETITIONERS,

v.

ERIE COUNTY BOARD OF ELECTIONS, ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE U.S. COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BRYAN L. SELLS

THE LAW OFFICE OF

BRYAN L. SELLS, LLC

P.O. Box 5493

Atlanta, GA 31107

XIAO WANG

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW SUPREME

COURT LITIGATION CLINIC

580 Massie Road

Charlottesville, VA 22903

(434) 924-8956

x.wang@law.virginia.edu

Counsel for Petitioners

i

QUESTION PRESENTED

A controversy is “capable of repetition, yet evading

review,” and therefore not moot, if (1) the challenged

action is in its duration too short to be fully litigated

before cessation or expiration; and (2) there is a

reasonable expectation that the same complaining party

will be subject to the same action again. Weinstein v.

Bradford, 423 U.S. 147, 149 (1975). The question

presented is:

Whether the “capable of repetition, yet evading

review” doctrine requires plaintiffs in election law cases

to predict and articulate specific plans for their own future

electoral participation, as four courts of appeals have held,

or whether it is sufficient that the challenged law will

continue to affect voters and candidates in future

elections, as eight courts of appeals have held.

ii

PARTIES TO THE PROCEEDING

Petitioners Carlanda D. Meadors, Leonard A.

Matarese, Jomo D. Akono, Kim P. Nixon-Williams, and

Florence E. Baugh were plaintiffs in the district court

proceedings and appellants in the court of appeals

proceedings.

Respondents Erie County Board of Elections, Ralph

M. Mohr, and Jeremy J. Zellner were defendants in the

district court proceedings and appellees in the court of

appeals proceedings.

iii

RELATED PROCEEDINGS

United States District Court (W.D.N.Y.):

Meadors v. Erie County Board of Elections, No.

1:21-cv-982, 2023 WL 4459601 (July 11, 2023).

United States Court of Appeals (2d Cir.):

Meadors v. Erie County Board of Elections, No.

23-01054, 2024 WL 3548720 (July 26, 2024).

iv

TABLE OF CONTENTS

Question presented ........................................................................ i

Parties to the proceeding ............................................................. ii

Related proceedings .................................................................... iii

Table of authorities ....................................................................... v

Petition for writ of certiorari ....................................................... 1

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Constitutional provision involved ................................................ 1

Introduction................................................................................... 2

Statement of the case ................................................................... 5

A. Factual background. ........................................................ 5

B. Proceedings below. .......................................................... 6

Reasons for granting the petition ............................................. 10

I. Courts are divided on the standard for determining

whether an election law controversy is moot. ................... 10

A. Eight courts of appeals embrace a flexible “capableof-repetition” understanding in election law cases. ... 10

B. Four courts of appeals apply a rigid “capable of

repetition” rule in election law cases. .......................... 16

II. The Second Circuit’s decision is incorrect. ........................ 19

A. The Second Circuit’s decision misreads this Court’s

precedent. ....................................................................... 20

B. The Second Circuit’s decision is unworkable. ............. 25

III. This case presents an excellent vehicle for review. ........ 27

Conclusion ................................................................................... 31

v

TABLE OF AUTHORITIES

Page(s)

CASES

Acevedo v. Cook Cnty. Officers Electoral Bd.,

925 F.3d 944 (7th Cir. 2019) ..................................... 13

Anderson v. Celebrezze,

460 U.S. 780 (1983)................................... 21, 22, 28, 30

Barr v. Galvin,

626 F.3d 99 (1st Cir. 2010) ..................................14, 29

Benezet Consulting LLC v. Secretary of the

Commonwealth of Pennsylvania,

26 F.4th 580 (3d Cir. 2022) .............................. 4, 15, 27

Catholic Leadership Coal. of Tex. v. Reisman,

764 F.3d 409 (5th Cir. 2014) ........................ 2, 3, 11, 14

Council of Alt. Pol. Parties v. Hooks,

121 F.3d 876 (3d Cir. 1997) ...................................... 30

Credico v. N.Y. State Bd. of Elections,

2013 WL 3990784 (E.D.N.Y. Aug. 5, 2013) .......29, 30

Cromer v. South Carolina,

917 F.2d 819 (4th Cir. 1990) ..................................... 30

vi

Ctr. for Individual Freedom v. Carmouche,

449 F.3d 655 (5th Cir. 2006) ..................................... 11

Davis v. Federal Election Commission,

554 U.S. 724 (2008)...............................................23, 25

Dunn v. Blumstein,

405 U.S. 330 (1972)......................................... 13, 14, 20

Exxon Mobil Corp. v. Healey,

28 F.4th 383 (2d Cir. 2022) ......................................... 9

Federal Election Commission v. Wisconsin Right to

Life, Inc.,

551 U.S. 449 (2007)......................... 2, 16, 23, 24, 25, 29

Freedom Party of New York v. New York Board of

Elections,

77 F.3d 660 (2d Cir. 1996) ........................................ 29

Gill v. Linnabary,

63 F.4th 609 (7th Cir. 2023) ....................................... 4

Graham v. Attorney General, Georgia,

110 F.4th 1239 (11th Cir. 2024) ...................... 3, 18, 27

Graveline v. Benson,

992 F.3d 524 (6th Cir. 2021) ................ 4, 10, 12, 24, 27

Hall v. Sec’y, Ala.,

902 F.3d 1294 (11th Cir. 2018) ................................. 27

Holmes v. Fed. Election Comm’n,

99 F. Supp. 3d 123 (D.D.C. 2015) .......................19, 23

vii

Holmes v. Federal Election Commission,

823 F.3d 69 (D.C. Cir. 2016) ..................................... 19

Honig v. Doe,

484 U.S. 305 (1988)................................... 11, 13, 16, 22

Int’l Org. of Masters, Mates & Pilots v. Brown,

498 U.S. 466 (1991).................................................... 22

Joyner v. Mofford,

706 F.2d 1523 (9th Cir. 1983) ................................... 14

Kucinich v. Tex. Democratic Party,

563 F.3d 161 (5th Cir. 2009) ............................ 4, 11, 28

Lawrence v. Blackwell,

430 F.3d 368 (6th Cir. 2005) .............. 11, 12, 28, 29, 30

Libertarian Party of Ohio v. Blackwell,

462 F.3d 579 (6th Cir. 2006) ..................................... 26

Majors v. Abell,

317 F.3d 719 (7th Cir. 2003) .................... 10, 12, 13, 26

Mallory v. Norfolk Southern Ry. Co.,

600 U.S. 122 (2023).................................................... 24

Merle v. United States,

351 F.3d 92 (3d Cir. 2003) ...................................15, 28

Moore v. Ogilvie,

394 U.S. 814 (1969).................................................... 20

viii

Nader v. Brewer,

531 F.3d 1028 (9th Cir. 2008) ................................... 30

Norman v. Reed,

502 U.S. 279 (1992)...............................................16, 22

North Carolina Right to Life Committee Fund for

Independent Political Expenditures v. Leake,

524 F.3d 427 (4th Cir. 2008) ...................... 3, 15, 16, 29

Parker v. Winter,

645 F. App’x 632 (10th Cir. 2016) ............................ 16

Populist Party v. Herschler,

746 F.2d 656 (10th Cir. 1984) ................................... 30

Porter v. Jones,

319 F.3d 483 (9th Cir. 2003) ....................................... 2

Purcell v. Gonzalez,

549 U.S. 1 (2006) ....................................................... 26

Republican Nat’l Comm. v. Democratic Nat’l Comm.,

589 U.S. 423 (2020).................................................... 26

Richardson v. Ramirez,

418 U.S. 24 (1974)...................................................... 21

Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

490 U.S. 477 (1989).................................................... 24

S. Pac. Terminal Co. v. Interstate Com. Comm’n,

219 U.S. 498 (1911).................................................2, 20

ix

Schaefer v. Townsend,

215 F.3d 1031 (9th Cir. 2000) ........................ 13, 14, 29

Stop Reckless Econ. Instability Caused by Democrats

v. Fed. Election Comm’n,

814 F.3d 221 (4th Cir. 2016) ................................26, 27

Storer v. Brown,

415 U.S. 724 (1974)............................... 2, 20, 21, 23, 27

Van Wie v. Pataki,

267 F.3d 109 (2d Cir. 2001) ................... 3, 9, 17, 20, 24

Vote Choice, Inc. v. DiStefano,

4 F.3d 26 (1st Cir. 1993) ........................................... 14

Weinstein v. Bradford,

423 U.S. 147 (1975)............................................i, 10, 21

Whitfield v. Thurston,

3 F.4th 1045 (8th Cir. 2021) .......................... 18, 19, 23

Williams v. Rhodes,

393 U.S. 23 (1968)...................................................2, 28

Yick Wo v. Hopkins,

118 U.S. 356 (1886).................................................... 28

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. CONST.

ART. III, § 2 ..............................................................1, 2

x

28 U.S.C.

§ 1254(1) ....................................................................... 1

N.Y. ELEC. LAW

§ 6-110 .......................................................................... 5

§ 6-138 .......................................................................... 5

OTHER AUTHORITIES

Carolyn Thompson, Buffalo Mayor Who Lost

Primary Reelected With Write-in Votes, AP NEWS,

https://tinyurl.com/mv9ttcpd (Nov. 19, 2021) .......... 7

Circuit Approaches to Mootness in the AssociationalStanding Context, 136 HARV. L. REV. 1434, 1444

(2023) .....................................................................27, 28

1

PETITION FOR WRIT OF CERTIORARI

Petitioners Carlanda D. Meadors, Leonard A.

Matarese, Jomo D. Akono, Kim P. Nixon-Williams, and

Florence E. Baugh respectfully petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the Second Circuit is unpublished and

is reproduced in the appendix to this petition at App. 2a–

9a. The order of the district court addressing DefendantsRespondents’ motion for summary judgment is

unpublished and is reproduced at App. 10a–48a.

JURISDICTION

The Second Circuit issued its opinion and judgment on

July 26, 2024. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

Justice Sotomayor granted Petitioners’

applications for extensions of time to file a petition for writ

of certiorari, from October 24 to December 20, 2024.

CONSTITUTIONAL PROVISION INVOLVED

Article III, § 2, Clause 1 of the U.S. Constitution

provides:

The judicial Power shall extend to all Cases,

in Law and Equity, arising under this

Constitution, the Laws of the United States,

2

and Treaties made, or which shall be made,

under their Authority.

INTRODUCTION

This Court has long recognized that a case or

controversy is not moot when it is “capable of repetition,

yet evading review.” S. Pac. Terminal Co. v. Interstate

Com. Comm’n, 219 U.S. 498, 515 (1911). It has time and

again applied that understanding “in the context of

election cases,” Storer v. Brown, 415 U.S. 724, 737 n.8

(1974), reasoning that such “cases fit comfortably within

[that] established exception,” Fed. Election Comm’n v.

Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). After all,

while the right to vote is “a fundamental political right

that is preservative of all rights,” Williams v. Rhodes, 393

U.S. 23, 38 (1968) (cleaned up), “the inherently brief

duration of an election is almost invariably too short to

enable full litigation on the merits,” Porter v. Jones, 319

F.3d 483, 490 (9th Cir. 2003). The “capable of repetition,

yet evading review” doctrine is therefore critical for

ensuring that courts have jurisdiction to safeguard a

fundamental right from unconstitutional state and federal

legislation.

Although both this Court and the courts of appeals

consistently recognize that election disputes “evade

review,” there is a deep and persistent split among the

lower courts over what parties must show to establish that

a dispute is “capable of repetition.” Most courts of

appeals embrace a flexible standard. Rather than

examining what a particular plaintiff will do, they “focus[]

instead upon the great likelihood that the issue will recur

between the defendant and the other members of the

3

public at large,” or presume the controversy shall apply

again to the plaintiffs who brought suit. Cath. Leadership

Coal. of Tex. v. Reisman, 764 F.3d 409, 423 (5th Cir. 2014)

(alteration omitted); North Carolina Right to Life

Committee Fund for Independent Political Expenditures

v. Leake, 524 F.3d 427, 435 (4th Cir. 2008). Other circuits,

however, apply a far more “stringent” understanding of

the “capable of repetition” requirement, demanding that

the specific plaintiffs who bring a case show “a reasonable

expectation that the same complaining party would

encounter the challenged action in the future.” Van Wie

v. Pataki, 267 F.3d 109, 114 (2d Cir. 2001) (emphasis in

original); accord Graham v. Att’y Gen., Ga., 110 F.4th

1239, 1246 (11th Cir. 2024).

The difference between these approaches was

dispositive in this case. Petitioners here are voters who

sought to support an independent candidate for mayor of

Buffalo, New York, during the 2021 election. App. 12a. In

2019, the New York State Legislature changed the law for

independent candidates by advancing their nominating

petition deadline by twelve weeks. App. 61a. Under that

law, an independent candidate must gather significantly

more supporting signatures for their nominating

petition—25% more in this case—than a candidate who is

affiliated with a political party. App. 36a. And to appear

on the general election ballot, an independent candidate

must submit their petition in May of an election year.

App. 62a. That deadline is four weeks before the primary

election for political party candidates. App. 36a. This

deadline and its corresponding requirements prevented

Petitioners’ preferred candidate from appearing on the

general election ballot and resulted in a costly and timeconsuming write-in campaign. App. 5a; 24a.

4

Petitioners brought suit in September 2021, alleging

that New York’s filing deadline imposed an

unconstitutional burden on their right to vote in the 2021

election. App. 63a. Although that election has now

passed, New York’s law remains on the books and will

continue to be applied to independent candidates and

voters who support such candidates, just as it was applied

here to Petitioners.

These circumstances would have cleared the mootness

bar in eight of the courts of appeals, since “the issues

properly presented, and their effects . . . will persist as the

restrictions are applied in future elections.” Kucinich v.

Tex. Democratic Party, 563 F.3d 161, 165 (5th Cir. 2009)

(cleaned up). But in the Second Circuit and a minority of

the other courts of appeals, the same circumstances

necessitated dismissal, because Petitioners did not

specifically “assert that they will again seek to vote for a

late-arising independent candidate.” App. 8a. By

applying the Second Circuit’s rule, the panel here did not

reach the constitutionality of a state’s independent

candidate laws; had Petitioners brought the same case in

eight other circuits, the court of appeals would have done

so and might well have held such a law unconstitutional.

That is not a tenable result. The issue presented is

recurring: Challenges to candidate filing deadlines and

voter requirements are manifold, regularly appearing

before the courts of appeals. See, e.g., Graveline v.

Benson, 992 F.3d 524, 533 (6th Cir. 2021); Gill v.

Linnabary, 63 F.4th 609, 615 (7th Cir. 2023); Benezet

Consulting LLC v. Sec’y Commonwealth of

Pennsylvania, 26 F.4th 580, 585 (3d Cir. 2022). Such

challenges are exceptionally important, given the central

place of the right to vote within our political system. And

5

a wooden application of the “capable of repetition, yet

evading review” doctrine in election law cases threatens

to insulate potentially unconstitutional election laws from

judicial scrutiny. This case, moreover, presents the Court

with an ideal vehicle for resolving the split: Mootness was

the sole basis behind the Second Circuit’s decision, and

the facts here starkly illustrate the differences between

application of the flexible and rigid approaches. The

Court should grant review.

STATEMENT OF THE CASE

A. Factual background.

The Erie County Board of Elections administers

elections for the Mayor of the City of Buffalo, and Jeremy

Zellner and Ralph Mohr are members of that Board

(together, “Respondents”). App. 5a. As part of its duties

and responsibilities, the Board is charged with enforcing

New York’s petition deadline for independent candidates.

App. 60a.

Under New York law, candidates can appear on a

general election ballot in two ways: (1) the party-primary

process and (2) the independent-candidate process. See

N.Y. Elec. Law §§ 6-110, 6-138. In the former case, the

winner of the political party primary will, in turn, appear

on the general election ballot. N.Y. Elec. Law §§ 6-110.

In the latter scenario, independent candidates do not go

through a primary; they must instead file with the Board

a nominating petition, with a requisite number of

supporting signatures. App. 36a.

New York first adopted a petition deadline for

independent candidates in 1890, with independent

candidates required to submit their petitions at least

6

twelve days before the general election. The deadline was

moved up to four weeks in 1922, to eleven weeks in 1984,

and to twenty-three weeks (or 161 days) in 2019. App. 61a.

For the 2021 Buffalo mayoral election, that petition

deadline fell on May 25, 2021. App. 62a.

Buffalo’s incumbent mayor Byron W. Brown ran for

re-election in 2021, seeking initially to be the nominee of

the Democratic Party. App. 23a. He was defeated in the

primary by a “far-left” candidate, “whose views were ‘far

out of step with the mainstream.’” App. 24a. Following

this defeat, Brown’s supporters promptly launched an

effort to nominate him as an independent candidate by

gathering signatures from eligible voters in Buffalo. App.

62a–63a.

Carlanda Meadors, Leonard Matarese, Jomo Akono,

Kim Nixon-Williams, and Florence Baugh (together,

“Petitioners”) were among the Buffalo voters who signed

Brown’s independent nominating petition. App. 59a–60a.

That petition contained more than the requisite number

of signatures and was filed with the Board on August 17,

2021. App. 63a. The petition would have been timely

under each of New York’s petition deadlines from 1890 to

2019. App. 61a. Yet because of the change in state law in

2019, the Board rejected Brown’s petition. App. 63a.

B. Proceedings below.

Petitioners filed suit in the Western District of New

York after Brown’s nominating petition was rejected.

According to Petitioners, New York’s filing deadline as

applied to Brown violated their First and Fourteenth

Amendment rights. App. 58a.

On September 3, 2021, the district court enjoined

Respondents from enforcing the challenged statute

against Brown and ordered the Board to place Brown on

7

the general election ballot as an independent candidate.

App 56a.

Respondents thereafter moved for an

emergency stay of the district court’s order, which the

Second Circuit granted on September 16, 2021. App. 54a.

As a result, Brown’s name did not appear on the ballot,

and Brown undertook a “write-in campaign,” which was

“far more expensive and difficult than a campaign with

ballot access.” App. 24a. According to Brown, the writein campaign required 13,000 more work-hours from his

team than “would have been needed for a normal

campaign with ballot access,” and cost “$1.5 million more

than he would have spent had his name been on the

general election ballot.” Id. It took Brown a year to pay

off the debts incurred from these additional expenses. Id.

Brown ultimately prevailed in the general election,

“winning with 59% of the votes cast.” App. 20a; Carolyn

Thompson, Buffalo Mayor Who Lost Primary Reelected

With

Write-in

Votes,

AP

NEWS,

https://tinyurl.com/mv9ttcpd (Nov. 19, 2021).

Following Brown’s victory, the Second Circuit

dismissed as moot the appeal of the district court’s

preliminary injunction order requiring Brown’s name to

appear on the 2021 general election ballot. App. 51a. The

court of appeals “remanded the case back” to the district

court, to consider the constitutionality of the independent

nominating petition deadline. App. 21a. Following

discovery, Respondents moved for summary judgment.

On July 11, 2023, the district court granted

Respondents’ motion. On the question of jurisdiction, the

district court observed that “[t]he parties agreed, both

during oral argument and in their supplemental

submissions to the Court, . . . that the issues remaining in

the case are not moot.” App. 25a. It then noted that

“[c]hallenges to election laws are one of the categories of

8

cases which courts will often find” are “capable of

repetition, yet evading review.” App. 29a. “As a result,

many such cases are not deemed moot, and voters are

permitted to challenge the relevant statutes, even where

the election has already come and gone and the deadlines

are no longer an issue.” Id.

The district court held that “[t]he instant scenario

easily” qualified as a controversy evading review, since

the case’s timeline “was too short to be fully litigated prior

to when the election occurred.” App. 30a. The district

court also found there was a “reasonable expectation, as

opposed to mere speculation, that plaintiffs would

encounter the same challenge in future elections.” App.

31a. That is because “there is reason to believe that the

deadlines” prescribed by the New York Legislature “will

continue to have an effect on plaintiffs’ choice of

independent candidates appearing on the general election

ballot” and that “plaintiffs would again seek to vote for or

support [such] a candidate.” App. 31a–32a.

Having addressed mootness, the district court then

ruled for Respondents on the merits, holding that “the

petition deadline . . . does not impose a severe burden” and

that “any burden imposed by the deadline is justified by

New York’s important regulatory interests.” App. 34a–

35a.

On appeal, neither side challenged the district court’s

conclusion that “this action was not moot.” App. 5a. The

Second Circuit, however, disagreed with that

understanding.

The court noted that “the ‘capable of repetition, yet

evading review’” doctrine “applies only in exceptional

situations.” App. 6a. The panel underscored that, to show

that a case is “capable of repetition,” “there must be a

9

reasonable expectation that the same complaining party

would encounter the challenged action in the future.”

App. 7a (quoting Van Wie v. Pataki, 267 F.3d 109, 114 (2d

Cir. 2001) (emphasis in original)). “[M]ere speculation

that the parties will be involved in a dispute over the same

issue” was insufficient. Id. (quoting Exxon Mobil Corp. v.

Healey, 28 F.4th 383, 396 (2d Cir. 2022)).

Between these two poles, the Second Circuit held that

Petitioners’ claim was “speculative” and “amount[ed] to a

mere theoretical possibility that the controversy is

capable of repetition.” App. 8a (quoting Van Wie, 267

F.3d at 115). The Second Circuit acknowledged that

“New York’s challenged independent nominating petition

filing deadline remains in effect in future elections and

will exclude from the ballot candidates who, like Brown,

decide to launch an independent candidacy only after

losing a major-party primary.” App. 7a. And it likewise

acknowledged that, at oral argument, Petitioners’ counsel

had asserted that Petitioners were “‘independent-minded

voters,’ with ‘a reasonable expectation that they might

want to vote for someone in a future election who decided

to run after the early deadline.’” App. 8a. But the court

viewed this assertion as “unsupported by facts in the

record,” because Petitioners had not specifically alleged

that they “will again seek to vote for a late-arising

independent candidate” or that the law will interfere with

Petitioners’ “ability to vote in future elections.” Id. The

Second Circuit therefore dismissed Petitioners’ appeal as

moot. The panel did not reach the merits of Petitioners’

claims. App. 9a.

10

REASONS FOR GRANTING THE PETITION

I. COURTS ARE SPLIT ON HOW TO DETERMINE

WHETHER AN ELECTION LAW CONTROVERSY

IS “CAPABLE OF REPETITION.”

In Weinstein v. Bradford, 423 U.S. 147 (1975), the

Court articulated a two-prong test for analyzing whether

a non-class action is “capable of repetition, yet evading

review.” On “evading review,” “the challenged action

[must] in its duration [be] too short to be fully litigated

prior to its cessation or expiration.” Id. at 149. And on

“capable of repetition,” there must be “a reasonable

expectation that the same complaining party [will] be

subjected to the same action again.” Id.

The courts of appeals uniformly recognize that this

two-part test applies to election law challenges brought by

voters and candidates alike. See, e.g., Graveline v.

Benson, 992 F.3d 524, 528, 533 (6th Cir. 2021); Majors v.

Abell, 317 F.3d 719, 723 (7th Cir. 2003); App. 8a. Where

the circuits disagree, however, is over the interpretation

and application of the second part of this test.

A. Eight courts of appeals embrace a flexible

“capable-of-repetition”

understanding

in

election law cases.

Most circuits embrace a flexible interpretation of

Weinstein’s second prong, readily inferring a reasonable

expectation that other similarly situated persons will be

affected by an election law or, alternatively, that the

complaining party may face the same action again. These

courts do not require specific statements of intent by the

plaintiff about how they will vote in the future or a specific

candidate they will vote for.

11

1. The Fifth Circuit, for example, focuses on this

Court’s instruction that judges must only address

“‘whether the controversy was capable of repetition and

not whether the claimant had demonstrated that a

reoccurrence of the dispute was more probable than not.’”

Cath. Leadership Coal. of Tex. v. Reisman, 764 F.3d 409,

422 (5th Cir. 2014) (ellipsis omitted) (quoting Honig v.

Doe, 484 U.S. 305, 318 n.6 (1988)). Put differently, “the

Supreme Court has not always required that there be a

likelihood that the same complaining party will be subject

to the challenged action later.” Id. at 423.

From these principles, the Fifth Circuit has held that

“in election law cases,” a case is not moot so long as “(1)

the state plans on continuing to enforce the challenged

provision, and (2) that provision will affect other members

of the public.” Id. at 424. The court has thus ruled that a

dispute was not moot even though a candidate “could not

state whether” he would “run [again] in the future,”

Kucinich v. Tex. Democratic Party, 563 F.3d 161, 165 (5th

Cir. 2009); and when it was “doubtful” that a plaintiff

“would again attempt to engage in election-related

speech,” Ctr. for Individual Freedom v. Carmouche, 449

F.3d 655, 662 (5th Cir. 2006). Unlike “cases involving

‘strictly personal’ harm or cases where the plaintiffs fail

to show that the challenged illegality will again occur,”

Reisman, 764 F.3d at 424 (citation omitted), election law

challenges are not moot “because other individuals

certainly will be affected by the continuing existence” of

an election restriction, Carmouche, 449 F.3d at 662.

2. The Sixth Circuit is of a piece. In Lawrence v.

Blackwell, 430 F.3d 368 (6th Cir. 2005), the court

considered facts that closely parallel the circumstances

here.

Plaintiffs there, comprising an independent

candidate and a voter, challenged a state law “which

12

require[d] independent . . . candidates to file a statement

of candidacy and nominating petition . . . before the

primary election.” Id. at 369–70. Defendants sought to

dismiss the appeal as moot after the 2004 election, since

there was “no evidence in the record addressing whether

[the independent candidate] plans to run for office or [the

voter plaintiff] plans to vote for an independent candidate

in a future election.” Id. at 371. Lawrence rejected this

argument, outlining two bases behind its decision.

First, “an explicit statement from [a voter is not]

necessary in order to reasonably expect that in a future

election she will wish to vote for an independent candidate

who did not decide to run until after the early filing

deadline passed.” Id. Second, “[e]ven if the court could

not reasonably expect that the controversy would recur

with respect to” the specific candidate and voter who

brought the case, “the fact that the controversy almost

invariably will recur with respect to some future potential

candidate or voter” was “sufficient” to render the dispute

capable of repetition. Id. at 372.

The Sixth Circuit recently reaffirmed Lawrence in

Graveline v. Benson, 992 F.3d 524, 534 (6th Cir. 2021). In

that case, it rejected a “same plaintiff same facts”

requirement, instead noting that “our Circuit has

continued to apply [a] ‘somewhat relaxed’ repetition

standard in election cases.” Id.

3.

The Seventh Circuit embraces a similar

understanding and, in Majors v. Abell, 317 F.3d 719 (7th

Cir. 2003), Judge Posner offered a rationale behind the

court’s approach. There, a candidate challenged a state

law regulating political advertising. Id. at 721. The

district court held that this challenge was moot because

that candidate did not run for office in the next election

13

and did not make any affirmative statements about

running again. Id. at 722. The Seventh Circuit reversed,

reasoning that a plaintiff has no “duty to run in every

election in order to keep his suit alive.” Id.

As Judge Posner acknowledged, “canonical

statements of the exception to mootness for cases capable

of repetition but evading review require that the dispute

giving rise to the case be capable of repetition by the same

plaintiff.” Id. at 723 (emphasis in original). But “to avoid

complicating lawsuits with incessant interruptions to

assure the continued existence of a live controversy,”

courts “do not interpret the requirement literally, at least

in abortion and election cases.” Id. (first citing Honig, 484

U.S. at 335–36) (Scalia, J., dissenting); and then citing

Dunn v. Blumstein, 405 U.S. 330, 333 n.2 (1972)). A court

would not, regarding the former, “conduct a hearing” to

determine whether a woman would “want to become

pregnant again.” Id. And neither should a court “keep

interrogating the plaintiff to assess the likely trajectory

of his political career.” Id.

The Seventh Circuit has charted the same course in

more recent cases. For example, in a matter involving a

ballot signature requirement, the court pointed to a

plaintiff’s “requests for a declaratory judgment”—a

request that Petitioners also make here, App. 64a—as a

ground for holding that the dispute “remain[ed] live” even

after an election’s passing. Acevedo v. Cook Cnty. Officers

Electoral Bd., 925 F.3d 944, 948 n.1 (7th Cir. 2019).

4. The Ninth Circuit mirrored much of the Seventh

Circuit’s reasoning in Schaefer v. Townsend, 215 F.3d

1031 (9th Cir. 2000), a case involving candidate residency

requirements. As in Major, the defendants in Schaefer

sought to dismiss the case as moot because the candidate

14

had “demonstrated no likelihood of running for office in

th[e] state in the future.” Id. at 1033. The candidate,

indeed, had “refuse[d] to disclose his intentions” and

“argue[d] that his political aspirations are irrelevant in

evaluating the mootness exception.” Id.

The court agreed with the candidate. Citing Supreme

Court and circuit case law, the court explained that a

stringent application of the doctrine would mean that

“many constitutionally suspect election laws could never

reach appellate review.” Id. (ellipsis omitted) (first

quoting Joyner v. Mofford, 706 F.2d 1523,1527 (9th Cir.

1983); and then citing Dunn, 405 U.S. at 333 n.2). The

“capable-of-repetition prong should not,” given that

consequence, “be construed as narrowly as [defendants]

suggest[].” Id.

5. While the Fifth, Sixth, Seventh, and Ninth Circuits

generally examine whether other members of the public

might be affected by a law in the future, four other courts

of appeals—the First, Third, Fourth, and Tenth—look at

whether “there is a reasonable expectation that” a

particular plaintiff or plaintiffs “will encounter the same

barrier again.” Vote Choice, Inc. v. DiStefano, 4 F.3d 26,

37 n.12 (1st Cir. 1993). That is in theory a slightly

different and somewhat narrower approach. The former

looks at the effect a law will have on “other members of

the public,” Reisman, 764 F.3d at 424; while the latter

focuses more on the circumstances of the specific

plaintiffs at issue, Barr v. Galvin, 626 F.3d 99, 106 (1st

Cir. 2010). But because the courts of appeals in this latter

group still do not require specific allegations of intent,

there is little if any daylight between the former and latter

groups in practice.

15

6. Merle v. United States, 351 F.3d 92 (3d Cir. 2003),

is instructive. There, the plaintiff sought to run for

political office as a Green Party candidate. But as a

federal government employee, he was barred from doing

so under the Hatch Act. Id. at 94. By the time the case

reached the Third Circuit, the government sought to have

the plaintiff’s claims declared moot because the election

had passed, the plaintiff “has not alleged that he intends

to run for election” in the future, and the Green Party “has

not alleged that it wishes to nominate a candidate that

would be subject to the Hatch Act.” Id. at 95. The Third

Circuit rejected that contention: “We disagree with the

Government’s assumption that such an allegation would

be necessary.” Id. Instead, the court held that it was

“reasonable to expect that [the plaintiff] will wish to run

for” office “at some future date.” Id. Further, on appeal,

the plaintiff had noted that “he and other governmental

employees will be subject to the continuing stricture of the

Hatch Act in other federal elections.” Id. (internal

quotation marks omitted). Such expressions, the court

concluded, were sufficient to defeat mootness.

In a more recent case, Benezet Consulting LLC v.

Secretary of the Commonwealth of Pennsylvania, 26

F.4th 580 (3d Cir. 2022), the Third Circuit reaffirmed this

understanding. It held that a challenge to certain

absentee ballot requirements was not moot “[b]ecause”

the law at issue “remains in place,” and it was “entirely

likely” that the plaintiffs would be “subject to it in future

election cycles, creating the same controversy that took

place in the most recent election.” Id. at 585.

7.

The Fourth Circuit has applied a similar

understanding.

In North Carolina Right to Life

Committee Fund for Independent Political Expenditures

16

v. Leake, 524 F.3d 427, 435 (4th Cir. 2008), the defendant

argued that a candidate’s suit was moot “because he has

not alleged that he will become a candidate for judicial

office again in the future” or “an intent to participate in

future election cycles.” Id. The Fourth Circuit rejected

these arguments, reasoning instead that the plaintiffs’

claims “‘fit comfortably within the established exception

to mootness for disputes capable of repetition, yet evading

review.’” Id. (quoting Fed. Election Comm’n v. Wis.

Right to Life, Inc., 551 U.S. 449, 462 (2007)). “[W]e reject”

a requirement that an “ex-candidate specifically allege[]

an intent to run again in a future election.” Id. What

matters is that a candidate “has run for office before and

may well do so again.” Id. at 436. “[T]he plaintiffs’

claims,” therefore, were “not moot.” Id.

8. In Parker v. Winter, 645 F. App’x 632, 634 (10th

Cir. 2016), a candidate challenged a New Mexico law

requiring independent candidates to obtain more

signatures on nominating petitions than minor political

party candidates. As in Merle and North Carolina Right

to Life, there was “no evidence in the record” that the

plaintiff “intend[ed] to run for elected office again.” Id. at

635. But, drawing on this Court’s decisions in Honig v.

Doe, 484 U.S. 305 (1988), and Norman v. Reed, 502 U.S.

279 (1992), the Tenth Circuit reasoned that the capableof-repetition prong was “likely satisfied because ‘he is

certainly capable of doing so, and under the circumstances

it is reasonable to expect that he will do so.’” Id.

B. Four courts of appeals apply a rigid “capable of

repetition” rule in election law cases.

On the other side of the split, a minority of circuits

apply a rigid understanding of Weinstein’s “capable of

repetition” prong. These courts make no allowance for

17

the special context of election cases and, consistent with

the panel below, require specific facts and allegations as

to each plaintiff.

1. In Van Wie v. Pataki, 267 F.3d 109 (2d Cir. 2001),

the plaintiffs were not permitted to vote in a primary

election because they failed to satisfy certain political

party enrollment conditions; the plaintiffs filed suit

challenging the legality of these conditions.

In weighing whether the passing of the primary

election rendered plaintiffs’ suit moot, the Second Circuit

began by acknowledging a “tension” in “cases applying

the second prong of the Weinstein test in the elections

context.” Id. at 114. Some cases, the court observed,

“have not applied the same complaining party

requirement” in a “stringent manner.” Id. Conversely,

others have “required that the same complaining party

have a reasonable expectation that they will face the same

action again.” Id. (emphasis in original). The Second

Circuit “adopt[ed] the” more rigid of these two

approaches, requiring that plaintiffs demonstrate “a

reasonable expectation that the same complaining party

would encounter the challenged action in the future.” Id.

(emphasis in original). Applying that approach, the court

ruled that the plaintiffs’ suit was now moot. To be sure,

the Van Wie plaintiffs had stated, in supplemental

briefing, that they would face the same legal harm “if and

when they again attempt to enroll in a political party.” Id.

at 115 (emphasis in original). But that “assertion,” the

Second Circuit ruled, represented only “a mere

theoretical possibility that the controversy is capable of

repetition.”

The panel here cited Van Wie and applied its rule as

the basis for dismissing Petitioners’ claims. App. 7a–8a.

18

2. The Eleventh Circuit has taken a substantially

similar approach, and articulated its rule in a case decided

a week after the panel’s ruling here. In Graham v.

Attorney General, Georgia, 110 F.4th 1239, 1240 (11th

Cir. 2024), the Libertarian Party and its candidate for

Lieutenant Governor in the 2022 election sought to

challenge a Georgia campaign-finance law. That law gave

preferential financing limits for the Governor, Lieutenant

Governor, or a nominee for Governor or Lieutenant

Governor from a recognized political party. Id. at 1241.

The Libertarian Party was not, however, a recognized

political party because it had not obtained the required

number of votes in prior elections; accordingly, neither it

nor its Lieutenant Governor candidate could benefit from

these preferential financing limits. Id. at 1242.

With the passing of the 2022 election, the Eleventh

Circuit dismissed the plaintiffs’ appeal as moot. Much like

Van Wie, the plaintiffs in Graham did offer several

statements of future intent: The 2022 Lieutenant

Governor candidate “alleged his intent to run again for

statewide election as a nominee of the Libertarian Party,”

and the Party itself “ha[d] run a candidate for Governor,

Lieutenant Governor, or both, in every election since

1990.” Id. at 1246. But those statements were, like those

in Van Wie and this case, deemed “purely theoretical,”

rather than “reasonable” and “non-speculative.” Id.

3. Similarly, the Eighth Circuit dismissed an appeal

after an independent candidate’s campaign had ended and

the election had passed. See Whitfield v. Thurston, 3

F.4th 1045 (8th Cir. 2021). The candidate, the court

observed, “ha[d] not indicated whether he intends to run”

in the future. Id. at 1047. The Eighth Circuit also rejected

the candidate’s contention “that election cases are

‘different.’” Id. The court acknowledged that, in some

19

Supreme Court cases, “the Court applied the capable-ofrepetition-yet-evading-review exception in election cases

apparently without insisting on the same-complainingparty requirement.” Id. at 1048. But the Eighth Circuit

believed that the Supreme Court had “changed tack” in

“its more recent decisions,” therefore requiring lower

courts to strictly “apply[] the same-complaining-party

requirement in election cases.” Id.

4. In Holmes v. Federal Election Commission, 823

F.3d 69 (D.C. Cir. 2016), the D.C. Circuit appeared to

embrace a similar, albeit possibly less rigid,

understanding of the “capable-of-repetition” requirement

as that of the Second, Eighth, and Eleventh Circuits.

Unlike many cases from those three circuits, the D.C.

Circuit in Holmes held that the plaintiffs’ case was not

moot. Id. at 71 n.3. In making the ruling, the D.C. Circuit

pointed to the plaintiffs’ history of making campaign

contributions and noted that, in a reply brief, the plaintiffs

had stated “that they intend to make such contributions

in the future.” Id.; accord Holmes v. Fed. Election

Comm’n, 99 F. Supp. 3d 123, 139 (D.D.C. 2015).

II. THE SECOND

INCORRECT.

CIRCUIT’S

DECISION

IS

Decisions applying a stringent and wooden approach

to the “capable of repetition” standard in election law

cases contravene governing precedent and needlessly

prevent federals courts from safeguarding the

fundamental right to vote.

20

A. The Second Circuit’s decision misreads this

Court’s precedent.

1. To start, the Court has long embraced a flexible,

pragmatic understanding of mootness in election cases,

dating back at least to Moore v. Ogilvie, 394 U.S. 814

(1969). There, Justice Stewart argued that the matter

was moot because the election was over and the plaintiffs

had not “assert[ed] that the appellants inten[d] to

participate as candidates in any future Illinois election.”

Id. at 819 (Stewart, J., dissenting). The Court rejected

that contention: “[W]hile the 1968 election is over, the

burden . . . allowed to be placed on the nomination of

candidates . . . remains and controls future elections, as

long as Illinois maintains her present system.” Id. at 816.

That, the Court reasoned, makes the problem “capable of

repetition, yet evading review.” Id. (quoting S. Pac.

Terminal Co. v. Interstate Com. Comm’n, 219 U.S. 498,

515 (1911)). Three years later, the Court adopted the

same understanding in Dunn v. Blumstein, 405 U.S. 330,

333 n.2 (1972), recognizing that “the problem to voters

posed” by an election law could repeat because the

challenged law would continue to impose negative effects

on other candidates and voters.

To be sure, Dunn was brought as a class action, a fact

that the Second Circuit has pointed to in distinguishing

Dunn from the rule it applies. See Van Wie, 267 F.3d at

114; App. 7a. But two years after Dunn, the Court made

clear that courts should—just as it did in Moore—likewise

apply a flexible understanding in election law cases for

non-class actions.

In Storer v. Brown, 415 U.S. 724, 726 (1974), several

candidates and their supporters challenged a California

law requiring independent candidates to be politically

21

disaffiliated for at least one year before the primary

election. Even though the relevant election was “long

over” and “no effective relief [could] be provided to the

candidates,” the Court underscored that “this case is not

moot, since the issues properly presented, and their

effects on independent candidates, will persist as the

California statutes are applied in future elections.” Id. at

737 n.8. There was no specific allegation that either the

candidates would run again or their voters would support

them in future elections. But every Justice agreed, under

these facts, that the case was not moot.1

Similarly, in Richardson v. Ramirez, 418 U.S. 24, 36

(1974), a case regarding felon disenfranchisement, the

Court noted that “if the case were limited to the named

parties alone, it could be persuasively argued that there

was no present dispute.” But, citing Moore, this Court

held that the case was not moot. Id. at 35, 40.

The Term after Storer and Richardson, the Court

decided Weinstein v. Bradford, 423 U.S. 147, 149 (1975),

where it stated that a plaintiff must demonstrate “a

reasonable expectation that the same complaining party

would be subjected to the same action again.” But that

statement did not cabin Moore, Storer, or Richardson sub

silentio.

To the contrary, the Court substantially

reaffirmed the rule from those three pre-Weinstein cases

in Anderson v. Celebrezze, 460 U.S. 780 (1983).

The facts of Anderson closely mirror the

circumstances here. A candidate and three voters

challenged the early filing deadline for independent

candidates. Id. at 783. After the district court held that

Justice Brennan, joined by Justices Douglas and Marshall,

dissented as to the merits. Storer, 415 U.S. at 755 (Brennan, J.,

dissenting).

1

22

this deadline imposed an unconstitutional burden, the

defendant appealed to and obtained a reversal from the

Sixth Circuit. Id. at 784. The plaintiffs thereafter sought

review from this Court, which did not hear the case until

several years after the election in question. As to

mootness, the Court held, citing Storer, that the case was

“not moot” even though the relevant election had already

taken place. Id. at 784 n.3. Again, like Storer, no Justice

dissented on this jurisdictional point. On the substantive

question, Anderson held (over a dissent) that the “nature

of the burdens Ohio has placed on the voters[] . . .

unquestionably outweigh[ed] the State’s minimal interest

in imposing [an early filing] deadline.” Id. at 806 (internal

quotation marks omitted).

In several other cases post-Anderson, this Court has

inferred from a plaintiff’s prior attempts to participate in

an election that a plaintiff may do so again, without

requiring any detailed or specific allegation or evidence to

that effect. See, e.g., Int’l Org. of Masters, Mates & Pilots

v. Brown, 498 U.S. 466, 473 (1991) (“Respondent has run

for office before and may well do so again.”); Norman, 502

U.S. at 288 (“There would be every reason to expect . . . a

similar, future controversy.”).

Based on the foregoing decisions, Justice Scalia

concluded, in Honig v. Doe, that the Court’s “election law

decisions . . . dispens[e] with the same-party requirement

entirely, focusing instead upon the great likelihood that

the issue will recur between the defendant and the other

members of the public at large.” 484 U.S. at 335–36

(Scalia, J., dissenting) (emphasis in original).

2. The circuits that take a rigid approach to the

“capable of repetition” prong largely eschew this

consistent line of decisions. Instead, these courts of

23

appeals point to this Court’s rulings in Federal Election

Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449

(2007), and Davis v. Federal Election Commission, 554

U.S. 724 (2008), and argue that these more recent cases

signal a “change[]” in “tack” by this Court. Whitfield, 3

F.4th at 1048; see also, e.g., App. 7a (citing Wisconsin

Right to Life); Holmes v. Fed. Election Comm’n, 99 F.

Supp. 3d 123, 138–40 (D.D.C. 2015) (citing Davis and

Wisconsin Right to Life).

But neither Wisconsin Right to Life nor Davis

support such an understanding. True, in Wisconsin Right

to Life, the plaintiff “credibly claimed that it planned on

running materially similar future targeted broadcast

ads.” 551 U.S. at 463 (internal quotation marks omitted).

And in Davis, the candidate “subsequently made a public

statement expressing his intent” to run again. 554 U.S. at

736. The plaintiffs in these cases may have alleged more

than the plaintiffs in Moore, Storer, and Anderson, but

that does not mean Wisconsin Right to Life or Davis

overruled these earlier precedents.

To the contrary, Wisconsin Right to Life cited and

quoted Storer with approval, pointing to the decision as an

example of how the “capable of repetition, yet evading

review” doctrine should operate “in the context of election

cases.” 551 U.S. at 463 (citing 415 U.S. at 737 n.8). And

Davis said that its facts “closely resemble[d]” those in

Wisconsin Right to Life, leading the Court in both cases

to hold that the disputes at issue “fit comfortably within

the established exception to mootness for disputes

capable of repetition, yet evading review.” Wis. Right to

Life, 551 U.S. at 462; Davis, 554 U.S. at 735. That is why,

contra the Second Circuit and the other circuits that have

taken a stringent approach to Weinstein, most lower

24

courts do not understand Wisconsin Right to Life or

Davis as ushering in a sea change to mootness law. See,

e.g., Graveline, 992 F.3d at 534 (“Defendants’ argument

that [prior Sixth Circuit precedent] is no longer good law

after Wisconsin Right to Life is meritless.”).

Moreover, even if a lower court perceives that “[a]

tension has arisen in cases applying” the relevant test, it

is not their job, Van Wie, 267 F.3d at 114—as the Second

Circuit has done here—to treat Storer or Anderson as a

dead letter. Instead, as this Court has time and again

emphasized, it is axiomatic that “a lower court ‘should

follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.’”

Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023)

(quoting Rodriguez de Quijas v. Shearson/Am. Express,

Inc., 490 U.S. 477, 484 (1989)). “This is true even if the

lower court thinks the precedent is in tension with ‘some

other line of decisions.’” Id. (emphasis added). Mallory,

in short, speaks to the very situation at issue here. And it

tells the courts of appeals to continue following past

precedent, rather than trying to read the tea leaves to

craft its own rule.

Lastly, even if Wisconsin Right to Life and Davis did

cabin this Court’s past precedents and even if the Second

Circuit had license to embrace a different understanding

of the “capable of repetition” standard, it has still

misapplied that standard here. In Wisconsin Right to

Life, for instance, the plaintiff planned to run “materially

similar” ads in upcoming election cycles—but did not

commit to running “ads in the future sharing all the

characteristics that the district court deemed legally

relevant.” 551 U.S. at 463 (internal quotation marks

omitted). In Davis, the candidate plaintiff expressed an

25

intent to run again in his merits reply brief before this

Court. 554 U.S. at 736.

If that is the bar that Wisconsin Right to Life and

Davis set, Petitioners more than clear it. As Petitioners’

counsel pointed out at oral argument before the Second

Circuit, Petitioners may “want to vote for someone in a

future election who decide[s] to run after the early

deadline” for independent candidates passes. App. 8a.

That would, of course, put them in a “materially similar”

position to where they are now, just like plaintiffs in

Wisconsin Right to Life. 551 U.S. at 463. And Petitioners

made that statement at oral argument before the Second

Circuit, a far earlier stage of litigation than the Davis

plaintiff’s statement in his merits reply brief before the

Supreme Court. 554 U.S. at 736.

B. The Second Circuit’s decision prevents federal

courts

from

safeguarding

fundamental

political rights.

The Second Circuit’s approach also needlessly puts

federal courts on the sidelines of important constitutional

questions.

1.

To see why, take the panel’s response to

Petitioners’ statements from oral argument.

Such

statements, the panel asserts, are “speculative,

unsupported by facts in the record, and . . . mere[ly]

theoretical.” App. 8a. But the panel’s apparent solution

would be for Petitioners to (1) commit at the outset to vote

(2) for a future independent candidate, even though

neither Petitioners nor anyone else knows (3) who will run

in a future election, (4) who will seek to win the party

primary, (5) what positions the independent or political

party candidates might take, and (6) whether a candidate

26

that loses a party primary will then choose to become a

“late-arising independent candidate.” Id.

The panel does not explain why this latter scenario

would be any less “speculative” than Petitioners simply

stating, as in this case, that they may “vote for someone in

a future election who decide[s] to run after the early

deadline.” Id. The straightforward answer is that they

aren’t—which is exactly why most circuits do “not

require[]” plaintiffs to “forecast evidence” of their specific

future intent. Stop Reckless Econ. Instability Caused by

Democrats v. Fed. Election Comm’n, 814 F.3d 221, 232

(4th Cir. 2016); accord Majors, 317 F.3d at 723.

2. In the same vein, a flexible “capable of repetition”

standard in election cases recognizes the practical reality

that such cases often cannot be fully litigated before the

election takes place. See, e.g., Libertarian Party of Ohio

v. Blackwell, 462 F.3d 579, 584 (6th Cir. 2006) (“Legal

disputes involving election laws almost always take more

time to resolve than the election cycle permits.”); Stop

Reckless Econ. Instability, 814 F.3d at 232 (“It is

undisputed that the election cycle is too short in duration

for election disputes to be fully litigated within a single

cycle.”). That timeframe is further compressed by the

Purcell principle, which provides that “federal courts

should ordinarily not alter the election rules on the eve of

an election.” Republican Nat’l Comm. v. Democratic

Nat’l Comm., 589 U.S. 423, 424 (2020); see also Purcell v.

Gonzalez, 549 U.S. 1 (2006). If federal courts are unable

to resolve election disputes once the election has passed,

and should not resolve them close to an election,

important and recurring constitutional issues may go

undecided for an indefinite period.

27

A flexible application of the “capable of repetition”

standard accounts for these constraints. As this Court

has explained, “[t]he construction of the statute, an

understanding of its operation, and possible constitutional

limits on its application, will have the effect of simplifying

future challenges, thus increasing the likelihood that

timely filed cases can be adjudicated before an election is

held.” Storer, 415 U.S. at 737 n.8.

III. THIS CASE PRESENTS AN EXCELLENT

VEHICLE FOR REVIEW.

This case offers the Court an ideal opportunity to

resolve a significant split in the courts of appeals. That

split is deep; as outlined, every circuit (except the Federal

Circuit, which lacks jurisdiction over election law

disputes) has addressed the issue. It is persistent and

recurring, with the Second Circuit here and the Eleventh

Circuit issuing decisions a week apart from one another

this year, both holding the dispute moot for nearly

identical reasons. See App. 9a; Graham, 110 F.4th at

1245–46. In contrast, the Sixth and Third Circuits have

reached the opposite conclusion in published decisions

within the past two election cycles. See, e.g., Benezet

Consulting, 26 F.4th at 581–82; Graveline, 992 F.3d at

534.

The split has been acknowledged by courts and

commentators alike. See, e.g., Hall v. Sec’y, Ala., 902 F.3d

1294, 1311 (11th Cir. 2018) (Pryor, J., dissenting) (“By

requiring evidence of intent to run in a future election

from a plaintiff in Hall’s position, the majority creates a

circuit split.”); Stop Reckless Econ. Instability, 814 F.3d

at 230 (“[C]ourts have taken different views.”); Circuit

28

Approaches to Mootness in the Associational-Standing

Context, 136 HARV. L. REV. 1434, 1444 (2023) (“[C]ircuits

have split on the application of the same-complainingparty rule in the election-law context.”). Finally, the case

concerns an issue of unquestionable importance: As this

Court has repeatedly underscored, the right to vote is “a

‘fundamental political right’ that is ‘preservative of all

rights.’” Williams v. Rhodes, 393 U.S. 23, 38 (1968)

(quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)).

And, as to the specific questions at issue, the Court has

similarly emphasized that “[t]he impact of candidate

eligibility requirements on voters implicates basic

constitutional rights.” Anderson, 460 U.S. at 786.

This case is particularly well-suited for review because

the question is cleanly presented. The split formed the

sole basis for the panel’s decision. The Second Circuit,

following Van Wie and applying its understanding of

Wisconsin Right to Life, ruled this case moot because

Petitioners could not “rely solely on the assertion that

New York will continue to enforce its filing deadline

against [other] independent candidates.” App. 8a. But in

courts like the Fifth and Sixth Circuits, Petitioners could

have done exactly that. There, it would have been enough

that the effect of New York’s law “will persist . . . in future

elections,” Kucinich, 563 F.3d at 165, and invariably

impact “some future potential candidate or voter,”

Lawrence, 430 F.3d at 372.

Even Petitioners’ attempt at a middle ground—by

stating that they themselves might well vote for an

independent candidate again—failed here. App. 8a. But

again, in the Third Circuit and several others, Petitioners

could have done exactly that and obtained a ruling on the

merits of their claims. See Merle, 351 F.3d at 94–95;

29

Schaefer, 215 F.3d at 1033 (holding that case was not moot

“without examining the future political intentions of the

challengers”); N.C. Right to Life, 524 F.3d at 435–36.

To be sure, the panel here observed in a footnote that

it was “not decid[ing] whether plaintiffs’ challenge” would

“evade[] review,” the other half of the “capable of

repetition, yet evading review” doctrine. App. 9a n.1. But

that point does not weigh against review. It is wellestablished that election law disputes satisfy the “evading

review” requirement. Wis. Right to Life, 551 U.S. at 462.

Indeed, they are often considered “one of the

quintessential categories of [such] cases” because

“litigation has only a few months before the remedy

sought is rendered impossible by the occurrence of the

relevant election.” Lawrence, 430 F.3d at 371; see also

Barr, 626 F.3d at 106 (“Disputes concerning ballot access

procedures are often time-sensitive, and the temporal

parameters are sometimes too short to allow the issues to

be fully litigated within a single election cycle.”).

Consistent with that understanding, the district court

here held that this case “easily passes” the evading review

“prong of the analysis,” a holding that no party has

challenged throughout this litigation. App. 30a. The

panel’s citation to Freedom Party of New York v. New

York State Board of Elections, 77 F.3d 660 (2d Cir. 1996),

is inapt. “The dispute between the parties in Freedom

Party,” as courts within the Second Circuit have

recognized, “was limited to an injunction that related only

to a single special election; the preliminary injunction did

not affect future elections.” Credico v. N.Y. State Bd. of

Elections, 2013 WL 3990784, at *13 (E.D.N.Y. Aug. 5,

2013). There was, in other words, no review to evade since

the dispute was limited to one election. On the other hand,

30

a “challenge [to] an election law that sets forth a . . . rule

applicable to all future elections”—exactly the case

here—presents a far different set of circumstances. Id.;

accord Lawrence, 430 F.3d at 371–72.

Indeed, resolving the question presented here in

Petitioners’ favor could well lead to a different substantive

result and a corresponding change in New York law. Had

the Second Circuit reached the merits of this dispute, it

may well have joined this Court and several of the courts

of appeals in holding early filing deadlines for

independent candidates unconstitutional.

See, e.g.,

Anderson, 460 U.S. at 805–06 (holding that an Ohio law

requiring nominating petitions to be filed 75 days before

primary election was unconstitutional); Populist Party v.

Herschler, 746 F.2d 656, 661 (10th Cir. 1984) (“The June 1

deadline . . . . appears to run counter to the views

in Anderson.”); Nader v. Brewer, 531 F.3d 1028, 1038–40

(9th Cir. 2008) (Arizona law); Council of Alt. Pol. Parties

v. Hooks, 121 F.3d 876, 884 (3d Cir. 1997) (New Jersey

law); Cromer v. South Carolina, 917 F.2d 819, 826 (4th

Cir. 1990) (South Carolina law). But because the panel

dismissed this case as moot, it never reached the

constitutionality of New York’s filing deadline and its

burden on Petitioners’ “basic constitutional rights.”

Anderson, 460 U.S. at 786.

31

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

BRYAN L. SELLS

THE LAW OFFICE OF

BRYAN L. SELLS, LLC

P.O. Box 5493

Atlanta, GA 31107

XIAO WANG

Counsel of Record

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW SUPREME

COURT LITIGATION CLINIC

580 Massie Road

Charlottesville, VA 22903

(434) 924-8956

x.wang@law.virginia.edu

Counsel for Petitioners

December 20, 2024

APPENDIX

APPENDIX

TABLE OF CONTENTS

Page

Appendix A — Court of appeals summary order

(July 26, 2024) ................................... 2a

Appendix B — District court decision and order

(July 11, 2023) ................................. 10a

Appendix C — Court of appeals order (Mar. 8,

2022) ................................................. 49a

Appendix D — Court of appeals order (Sept. 16,

2021) ................................................. 52a

Appendix E — District court text order (Sept. 3,

2021) ................................................. 55a

Appendix F — First amended complaint (Sept. 3,

2021) ................................................. 57a

2a

APPENDIX A

3a

23-1054

Meadors v. Erie County Board of Elections

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER

JANUARY 1, 2007, IS PERMITTED AND IS

GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL

RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A

PARTY MUST CITE EITHER THE FEDERAL

APPENDIX OR AN ELECTRONIC DATABASE

(WITH THE NOTATION “SUMMARY ORDER”). A

PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT

REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall

United States Courthouse, 40 Foley Square, in the City of

New York, on the 26th day of July, two thousand twentyfour.

PRESENT: REENA RAGGI,

DENNY CHIN,

STEVEN J. MENASHI,

Circuit Judges.

4a

CARLANDA D. MEADORS, an

individual,

LEONARD

A.

MATARESE,

an

individual,

JOMO D. AKONO, an individual,

KIM P. NIXON-WILLIAMS,

FLORENCE E. BAUGH,

Plaintiffs-Appellants,

No. 23-1054-cv

v.

ERIE COUNTY BOARD OF

ELECTIONS,

RALPH

M.

MOHR, JEREMY J. ZELLNER,

Defendants-Appellees.

APPEARING FOR

APPELLANTS:

BRYAN L. SELLS, The Law

Office of Bryan L. Sells, LLC,

Atlanta, GA.

APPEARING FOR

APPELLEES:

CHARLES

GERSTEIN,

Gerstein

Harrow

LLP,

Washington,

DC

(Jason

Harrow, Gerstein Harrow

LLP, Los Angeles, CA,

Jeremy Toth, Erie County

Attorney,

Erie

County

Department of Law, Buffalo,

NY, on the brief).

The Clerk of Court is respectfully directed to amend the caption as

set forth above.

5a

Appeal from a judgment of the United States District

Court for the Western District of New York (Michael J.

Roemer, Magistrate Judge).

UPON DUE CONSIDERATION, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

appeal is DISMISSED, the judgment entered on July 11,

2023, is VACATED, and the case is REMANDED with

instructions to dismiss the case as moot.

Plaintiffs Carlanda D. Meadors, Leonard A. Matarese,

Jomo D. Akono, Kim P. Nixon-Williams, and Florence E.

Baugh appeal from an award of summary judgment in

favor of defendants Erie County Board of Elections, Ralph

M. Mohr, and Jeremy J. Zellner on their 42 U.S.C. § 1983

claim asserting an as-applied challenge to New York’s

filing deadline for independent nominating petitions. See

N.Y. Elec. L. § 6-158(9). Plaintiffs, five Buffalo voters,

allege that their First and Fourteenth Amendment rights

were violated when their preferred mayoral candidate,

Byron Brown, was excluded from the 2021 general election

ballot because his independent nominating petition was

filed only after he lost the Democratic primary election,

well past New York’s filing deadline. We assume the

parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal,

which we discuss only as necessary to explain our

mootness determination.

Although the district court concluded that this action

was not moot, and defendants do not argue otherwise,

“[w]e have an independent obligation to satisfy ourselves

of the jurisdiction of this court and the court below.”

Stafford v. Int’l Bus. Machs. Corp., 78 F.4th 62, 68 (2d Cir.

2023) (internal quotation marks omitted). We review the

question of mootness de novo. See County of Suffolk v.

Sebelius, 605 F.3d 135, 139 (2d Cir. 2010). A case becomes

6a

“moot when the issues presented are no longer live or the

parties lack a legally cognizable interest in the outcome.”

Tann v. Bennett, 807 F.3d 51, 52 (2d Cir. 2015) (internal

quotation marks omitted). “[W]henever mootness occurs,

the court . . . loses jurisdiction over the suit, which

therefore must be dismissed.” Hassoun v. Searls, 976 F.3d

121, 127 (2d Cir. 2020) (internal quotation marks omitted).

As plaintiffs conceded at oral argument, their asapplied challenge to New York’s independent nominating

petition filing deadline with respect to the 2021 general

election is moot because the election has been conducted,

and Brown was reelected by write-in votes without

appearing on the ballot. Thus, there is no effective relief

that this court can grant as to that election. See

Westchester v. U.S. Dep’t of Hous. & Urb. Dev., 778 F.3d

412, 416–17 (2d Cir. 2015) (“An action not moot at its

inception can become moot on appeal if an event occurs

during the course of the proceedings or on appeal that

makes it impossible for the court to grant any effectual

relief whatever to a prevailing party.” (internal quotation

marks omitted)). Plaintiffs nevertheless argue, and the

district court concluded, that a live controversy remains

because the injury to their associational and voting rights

caused by the filing deadline is capable of repetition yet

likely to evade review. See Freedom Party of N.Y. v. N.Y.

State Bd. of Elections, 77 F.3d 660, 662 (2d Cir. 1996)

(stating that “passage of an election does not necessarily

render an election-related case moot” where case falls

within the “capable of repetition, yet evading review”

exception to mootness doctrine); Storer v. Brown, 415 U.S.

724, 737 n.8 (1974). The “capable of repetition, yet evading

review” exception, however, “applies only in exceptional

situations, where (1) the challenged action [is] in its

duration too short to be fully litigated prior to cessation or

7a

expiration, and (2) there [is] a reasonable expectation that

the same complaining party [will] be subject to the same

action again.” Kingdomware Techs., Inc. v. United States,

579 U.S. 162, 170 (2016) (internal quotation marks

omitted); accord Exxon Mobil Corp. v. Healey, 28 F.4th

383, 395–96 (2d Cir. 2022) (“This facet of the mootness

doctrine . . . is applicable only in exceptional situations.”

(internal quotation marks omitted)). Plaintiffs bear the

burden of demonstrating that the exception applies. See

Video Tutorial Servs., Inc. v. MCI Telecomms. Corp., 79

F.3d 3, 6 (2d Cir. 1996). They have failed to carry that

burden here.

“[I]n the absence of a class action”—which this case is

not—“there must be a reasonable expectation that the

same complaining party would encounter the challenged

action in the future.” Van Wie v. Pataki, 267 F.3d 109, 114

(2d Cir. 2001) (emphasis in original); see Federal Election

Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 463 (2007)

(stating plaintiff must establish “reasonable expectation

that it will again be subjected to the alleged illegality” in

the future (internal quotation marks omitted)). “[M]ere

speculation that the parties will be involved in a dispute

over the same issue does not rise to the level of a

reasonable expectation or demonstrated probability of

recurrence.” Exxon Mobil Corp. v. Healey, 28 F.4th at 396

(internal quotation marks omitted).

Although New York’s challenged independent

nominating petition filing deadline remains in effect in

future elections and will exclude from the ballot candidates

who, like Brown, decide to launch an independent

candidacy only after losing a major-party primary,

plaintiffs have not demonstrated a reasonable expectation

that they will encounter the same issue in the future

because plaintiffs have presented no reason to think that

8a

they will, in the future, favor a candidate who chooses to

run as an independent after losing a primary. Contrary to

the district court’s conclusion, plaintiffs cannot rely solely

on the assertion that New York will continue to enforce its

filing deadline against independent candidates without

presenting a credible claim that plaintiffs will be affected

by the deadline in future elections. Plaintiffs did not, either

in the district court or on appeal, make any claims about

their ability to vote in future elections, nor did they assert

that they will again seek to vote for a late-arising

independent candidate or even any independent candidate

at all.

Counsel’s oral argument statement that plaintiffs are

“independent-minded voters,” with “a reasonable

expectation that they might want to vote for someone in a

future election who decided to run after the early

deadline,” May 14, 2024 Oral Argument at 4:30–45, is

speculative, unsupported by facts in the record, and, in any

event, “amounts to a mere theoretical possibility that the

controversy is capable of repetition with respect to

[plaintiffs].” Van Wie v. Pataki, 267 F.3d at 115 (holding

challenge to New York’s party enrollment deadline

mooted by passage of primary election because plaintiffs

“ha[d] not adequately demonstrated that they will again

try to enroll in a political party (or change enrollment) for

purposes of voting in a primary election,” but “merely”

claimed that “they will face precisely the same dilemma if

and when they again attempt to enroll in a political party

for the purpose of engaging as active participants in the

[primary] process” (emphasis in original)).

In sum, because plaintiffs fail to “establish ‘a

reasonable expectation’ that they will again be subjected

to the same dispute,” this case is moot and must be

9a

dismissed. Id.1 In so holding, we express no view on the

merits of plaintiffs’ challenge to New York’s independent

nominating petition filing deadline. Accordingly, the

appeal is DISMISSED as moot, the judgment of the

district court is VACATED, and the case is REMANDED

to the district court with instructions to dismiss the case

as moot.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE,

Clerk of Court

United States

Second Circuit

Court of Appeals

/s/ Catherine O’Hagan Wolfe

A True Copy

Catherine O’Hagan Wolfe, Clerk

United States Court of Appeals, Second Circuit

/s/ Catherine O’Hagan Wolfe

We need not decide whether plaintiffs’ challenge to New York’s

independent nominating petition filing deadline “evades review.” We

note only that it is by no means clear that the exclusion from the ballot

of a candidate who chooses to run as an independent after losing a

major-party primary is “too short to be fully litigated” prior to the

general election. Freedom Party of N.Y. v. N.Y. State Bd. of Elections,

77 F.3d at 663 (internal quotation marks omitted). After filing this

lawsuit on August 30, 2021, plaintiffs obtained a preliminary injunction

in the district court on September 3, 2021, ordering defendants to

place Brown’s name on the 2021 general election ballot. This court

granted a stay of the preliminary injunction order on September 16,

2021, and plaintiffs did not seek further review in this court before the

November 2, 2021 general election. The lawsuit was revived when,

following Brown’s victory in the general election, we vacated the

preliminary injunction order and remanded the case to the district

court for further proceedings.

1

10a

APPENDIX B

11a

UNITED STATES DISTRICT COURT

FILED

JUL 11 2023

MARY C. LOEWENGUTH, CLERK

WESTERN DISTRICT OF NY

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CARLANDA D. MEADORS,

et al.,

1:21-CV-982 MJR

Plaintiffs,

DECISION AND

ORDER

v.

ERIE COUNTY BOARD OF

ELECTIONS, et al.,

Defendants.

INTRODUCTION

The parties have consented to have the undersigned

enter a final judgment in this case as to defendants’ motion

for summary judgment. For the following reasons,

defendants’ motion for summary judgment (Dkt. No. 66)

is granted.

FACTS AND PROCEDURAL BACKGROUND1

The Complaint

The information and facts set forth in this section have been taken

from the complaint; the parties’ statements of facts, memoranda of law

and supplementary briefs submitted with respect to the motion for

summary judgment; relevant sections of the New York State Election

Law; other pleadings as well as prior orders and decisions issued in

this case and in a related New York state case; and representations

made by the parties during oral argument.

1

12a

Plaintiffs Carlanda D. Meadors, Leonard A. Matarese,

Jomo D. Akono, Kim P. Nixon-Williams, and Florence E.

Baugh are registered voters and residents of the City of

Buffalo, New York. Dkt. No. 25, ¶¶ 7-11. Plaintiffs are

supporters of Byron Brown, the current Mayor of the City

of Buffalo. Id.; Dkt. No. 66-2, ¶ 16; 68-2, ¶ 4, ¶ 21. Brown

has served as Mayor of Buffalo continuously since 2006,

and was most recently re-elected to office following a

successful independent write-in campaign in 2021. Id.

Plaintiffs’ lawsuit raises an as-applied constitutional

challenge to Section 6-158.9 of the New York State

Election Law (“Section 6-158.9”). Dkt. No. 25, ¶ 1. Section

6-158.9 provides that candidates who seek to appear on the

general election ballot by way of an independent

nominating petition must file such petition no later than 23

weeks before the general election. See N.Y. Elec. Law § 6158.9; Dkt. No. 25, ¶ 1, ¶ 20. Plaintiffs have filed suit

pursuant to Section 1983 of Chapter 42 of the United

States Code, claiming that the nominating petition

deadline in Section 6-158.9 violates their rights under the

First and Fourteenth Amendments of the United States

Constitution. Id. at ¶ 2, ¶ 31. Plaintiffs seek declaratory

and injunctive relief prohibiting the Erie County Board of

Elections; Jeremy J. Zellner, Commissioner of the Erie

County Board of Elections; and Ralph M. Mohr,

Commissioner of the Erie County Board of Elections

(collectively referred to as “defendants”) from continuing

to enforce the nominating petition deadline as set forth in

Section 6-158.9.2 Id.

Plaintiffs filed this lawsuit on August 30, 2021, a couple of months

prior to the November 2021 general election. Dkt. No. 1. At that time,

plaintiffs also sought an injunction requiring defendants to place

Byron Brown’s name on the 2021 general election ballot, as candidate

2

13a

Legislative History of New York’s Petition Deadline

for Independent Candidates

There are two avenues by which a candidate for state

or local office in New York may have their name appear on

the ballot in the general election. See N.Y. Elec. Law § 6134, § 6-138. There is the party-primary process, where

potential candidates file a designating petition signed by a

fixed number of registered voters belonging to their

political party. Id. at § 6-110, § 6-118, § 6-134; Dkt. No. 663, pgs. 18-19. If more than one party designating petition

is filed by a potential candidate, a party nominee is

selected via a primary election. Id. There is also a process

for independent nomination, wherein a candidate may

bypass the party primary process and instead seek direct

access to the general election ballot by filing an

independent nominating petition signed by a fixed number

of registered voters. See N.Y. Elec. Law § 6-138; Dkt. No.

66-3, pg. 19. Candidates pursuing the independent

nominating process may designate an “independent body”

to make the nomination, provided the name of the

independent body is not confusingly similar to that of an

established political party. Id. at § 6-138.3. In New York,

candidates for office are permitted to both compete in the

party primary process as well as to seek one or more

independent nominations. Id.; Dkt. No. 66-2, ¶¶ 1-2. This

system provides candidates an opportunity for their name

to appear on the general election ballot as a nominee on

multiple ballot lines. Dkt. No. 66-2, ¶¶ 1-2. For example, in

2013, Byron Brown appeared on the general election ballot

as a candidate for Mayor of the City of Buffalo as a

nominee of the Democratic Party, the Working Families

for Mayor of the City of Buffalo. (Id.) As explained in further detail

herein, this portion of plaintiffs’ request for relief is now moot.

14a

Party, the Independent Party, and the Conservative

Party. Id. In 2017, he appeared on the general election

ballot as a nominee of the Democratic Party, the Working

Families Party, the Independence Party, and the Women's

Equality Party. Id.

On January 10, 2019, the New York State Assembly

(the “Assembly”) proposed a bill containing amendments

to the Election Law. Dkt. No. 66-2, ¶ 3; Dkt. 66-3, pgs. 913. These amendments consisted of a general overhaul of

election dates and deadlines intended to bring state law

into compliance with the federal Military and Overseas

Voter Empowerment (“MOVE”) Act and to facilitate,

inter alia, the timely transmission of ballots to military

voters stationed overseas. Id. The proposed amendments

moved the date for New York state and local primaries

from September to the fourth Tuesday in June, to be held

at the same time as the federal non-presidential

primaries.3 Dkt. No. 66-2, ¶ 4; Dkt. No. 66-3, pg. 16. The

Assembly identified the following benefits with respect to

the new, merged primary date: (1) to ensure that military

personnel and New Yorkers living abroad would have an

opportunity to vote; (2) to eliminate barriers to voter turnout by reducing the number of primaries, in a given year,

that New Yorkers would be asked to participate in; and

In 2012, New York was sued by the federal government because its

election timelines did not provide for the transmitting of general

election ballots 45 days before the election, as was required for

elections for federal office. Dkt. No. 66-2, ¶ 4. An injunction resulting

from this lawsuit meant that, beginning in 2012, and until the new

amendments were introduced in 2019, New York held two different

primaries: a federal non-presidential primary in June and a state and

local primary in September. Id. The 2019 amendments merged the

dates of these primaries to the fourth Tuesday in June, to provide a

uniform date for non-presidential federal, state, and local primaries in

New York. Dkt. No. 66-3, pg. 16.

3

15a

(3) to incur a collective cost savings of approximately

$25,000,000 for county boards of elections by reducing the

number of primary days. Dkt. No. 66-2, ¶ 5; Dkt. No. 66-3,

pg. 13.

The proposed amendments also included a change to

the deadlines in Section 6-158.9, to provide that

independent nominating petitions must be filed no later

than 23 weeks before the general election.4 Dkt. No. 66-3,

pg. 11. Thus, the proposed amendment to Section 6-158.9

required candidates for state or local office in New York to

file their independent nominating petitions in or around

the end of May, at least 28 days before the new, merged

primary date of the fourth Tuesday in June. Id.; Dkt. No.

25, ¶ 20.

The bill containing the 2019 amendments to the

Election Law, including the change to Section 6-158.9

requiring the earlier submission of independent

nominating petitions, passed the New York State

Assembly by a vote of 120-42 on January 14, 2019, and

passed the New York State Senate by a vote of 53-8 the

next day. Dkt. No. 66-3, pg. 4; Dkt. No. 66-2, ¶ 6. On

January 16, 2019, three members of the New York State

Board

of

Elections,

including

the

Co-Chair,

Commissioner, and Co-Executive Director, authored a

memorandum recommending that then-Governor of New

York State Andrew Cuomo adopt the proposed

amendments to the Election Law. Dkt. No. 66-3, pgs. 1626. The members explained, inter alia, that the deadline

for filing an independent nominating petition was changed

Prior to this time, Section 6-158.9 required independent nominating

petitions to be filed 11 weeks prior to a general election. See N.Y. Elec.

Law§ 6-158 [former (9)]; N.Y. Elec. Laws 2019, Chap. 5; Dkt. No. 663, pg. 56.

4

16a

in order to “fairly effectuate MOVE Act compliance and

enact early voting.” Id. at pg. 18.

The Board of Elections members further explained

that the earlier petition deadline in Section 6-158.9 would

provide “political stability” since it would “prevent sore

loser candidacies in which an individual loses in a party

primary, but then chooses to seek to run in the same

election as an independent candidate.” Id. at pg. 19. The

members also explained that requiring independent

nominating petitions to be filed before the party primary

may, to some extent, discourage party candidates from

using the independent nominating process only to seek an

extra ballot position. Id. Thus, it was the members’ belief

that the new, earlier petition deadline would “encourage[]

independent nominations to be about independent ballot

access and not about party candidate sore losers getting

on the ballot or [a] party candidate seeking an extra ballot

position.” Id. Moreover, New York is one of only five states

which does not have a law prohibiting candidates who have

lost in a primary from appearing on the ballot for another

party in the general election, commonly referred to as a

“sore-loser law.” Dkt. No. 66-2, ¶ 18.

The Board of Elections members also noted that an

earlier petition deadline would promote a fairer electoral

process, since allowing independent candidates to file their

petitions at a significantly later date after the major

parties’ primaries could provide an unfair advantage to

independent candidates. Dkt. No. 66-3, pg. 19. Further,

the earlier deadline would allow voters to know all ballot

candidates around the same time and would avoid giving

major party candidates the advantage of campaigning for

two months before the nomination of independent

candidates. Id. The members further advised that the

earlier deadline would serve the workflow needs of the

17a

Board of Elections and would promote the Board of

Elections’ interest in a timely and orderly construction of

ballots by helping to ensure that any litigation over the

validity of the petitions was settled early. Id. at 20. Last,

the members remarked that the burdens on independent

candidates to file their nominating petitions pursuant to

the new deadline would be minimal, in light of: “(1) the

proximity to the party candidate petition process; (2) [the]

six-week period to collect independent nominating

signatures from a larger population of voters than party

candidates have available; and (3) the relatively low

signature requirement for independent ballot access.” Id.

On January 24, 2019, then-Govenor [sic] Cuomo signed the

bill into law. Dkt. No. 66-2, ¶ 11.

Brown’s 2021 Mayoral Campaign

In accordance with the 2019 amendments to the New

York Election Law, a primary election for various state

and local offices, including the office of Mayor of Buffalo,

was held on June 22, 2021. Dkt. No. 66-2, ¶ 12. Also in

accordance with the 2019 amendments, independent

nominating petitions were due by May 25, 2021, pursuant

to the revised Section 6-158.9. Id. at ¶ 14.

Byron Brown ran in the June 22, 2021 primary, seeking

the Democratic Party nomination for the office of Mayor

of the City of Buffalo.5 Id. at ¶ 12; Dkt. No. 68-2, ¶ 6. Brown

was defeated in the primary election by India B. Walton.6

Id. On June 28, 2021, Brown announced his write-in

candidacy for Mayor of the City of Buffalo. Dkt. No. 66-2,

As noted previously, Brown was the current Mayor of the City of

Buffalo at the time of the June 22, 2021 primary and was the

incumbent candidate.

6

Walton was previously granted intervenor status in this lawsuit but

has since been dismissed from the case. Dkt. Nos. 16, 58.

5

18a

¶ 20; Dkt. No. 68-2, ¶¶ 6-7. On August 17, 2021, almost two

months after losing the primary election, Brown filed an

independent nominating petition with the Erie County

Board of Elections, seeking to appear on the general

election ballot as an independent candidate for Mayor of

the City of Buffalo. Dkt. No. 66-2, ¶ 13; Dkt. No. 68-2, ¶¶ 89. Plaintiffs, among others, signed Brown’s independent

nominating petition and wanted Brown’s name to appear

general election ballot. Dkt. No. 25, ¶¶ 7-11. However,

because Brown’s independent nominating petition was

filed 84 days after the new petition deadline of May 25,

2021, it was deemed untimely pursuant to Section 6-158.9

and the Board of Elections rejected Brown’s petition. Dkt.

No. 66-2, ¶ 14; Dkt. No. 68-2, ¶ 11.

State and Federal lnjunction Requests

Plaintiffs filed the instant lawsuit on August 30, 2021.

Dkt. No. 1. They also moved for a temporary restraining

order prohibiting defendants from enforcing Section 6158.9 and requiring defendants to place Brown’s name on

the general election ballot as an independent candidate for

Mayor of the City of Buffalo. Dkt. No. 2. District Judge

John L. Sinatra, Jr. held a hearing on September 3, 2021,

at which time he (1) granted plaintiffs’ request for a

temporary restraining order; (2) converted the order to a

preliminary injunction at the request of the parties; and

(3) enjoined defendants from refusing to place Brown’s

name on the 2021 general election ballot. Dkt. Nos. 26, 28.

Defendants then appealed Judge Sinatra’s granting of the

preliminary injunction to the Second Circuit Court of

Appeals. Dkt. No. 32.

Around this same time, Byron Brown filed a petition in

New York State Supreme Court, Erie County, against the

Erie County Board of Elections and others, seeking to

19a

validate his independent nominating petition and

asserting that Section 6-158.9 was unconstitutional. See

Matter of Brown v. Erie County Bd. of Elections, 197

A.D.3d 1503, 1504 (4th Dept. 2021) (discussing prior

history). On September 7, 2021, New York State Supreme

Court Judge Paul Wojtaszek granted Brown’s petition and

declared that Section 6-158.9 was unconstitutional in that

the “deadline to file independent nominating petitions was

excessively early.” Id. Judge Wojtaszek further ordered

that Brown’s name was to appear on the general election

ballot of November 2, 2021, as an independent candidate

for Mayor of the City of Buffalo. Id. Defendants in the

state lawsuit appealed Judge Wojtaszek’s ruling to the

New York State Appellate Division, Fourth Department.

Id.

Rulings on Appeal by the Second Circuit and Fourth

Department

On September 16, 2021, the Second Circuit Court of

Appeals issued a stay pending appeal of Judge Sinatra’s

preliminary injunction requiring Brown’s name be placed

on the general election ballot. Dkt. No. 45. The Second

Circuit did not address the constitutionality of the

independent nominating petition deadline imposed by

Section 6-158.9 at the time it issued the stay of the

preliminary injunction, nor did the Second Circuit

otherwise discuss the merits of plaintiffs’ lawsuit. Id.

Also on September 16, 2021, the Fourth Department

issued a decision vacating the New York State Supreme

Court’s order requiring the Erie County Board of

Elections to place Brown’s name on the general election

ballot. Brown, 197 A.D.3d at 1504. The Fourth

Department concluded that Section 6-158.9, as applied to

Brown’s candidacy and petition, was constitutional, since a

“reasonably diligent candidate” could be expected to meet

20a

the petition deadline and the deadline did not unfairly

discriminate against independent candidates. Id. at 1506.

The Fourth Department also noted that the constitutional

challenge arose in the context of a local election which did

not implicate national interests and that Brown was “far

from the archetypal independent candidate” whose

interests needed the protection sought in the lawsuit. Id.

To that end, the Fourth Department noted that Brown

“has been in elective office for the last 25 years, has served

four terms as Mayor of the City of Buffalo, and first choose

to participate in the Democratic primary in lieu of filing a

timely independent nominating petition.” Id. The Fourth

Department reasoned that “states are constitutionally

permitted to preclude candidates who lose one primary

election from subsequently running on another ballot

line.” Id. Finally, the Fourth Department noted that

several legitimate state interests were justified by the

earlier deadline in Section 6-158.9, including ensuring the

integrity and reliability of the electoral process; promoting

political stability; and upholding the state’s duty to meet

federal deadlines with respect to the mailing of overseas

and military ballots. Id. at 1507.

No appeal was filed from either the Second Circuit’s

order staying the preliminary injunction or the Fourth

Department's dismissal of Brown’s petition and lawsuit.

Brown’s name did not appear on the ballot in the

November 2, 2021 general election. Dkt. No. 66- 2, ¶ 15.

Brown Wins Re-Election

On November 2, 2021, following a successful campaign

as a write-in candidate, Brown won the general election

and was re-elected to the office of Mayor of the City of

Buffalo. Dkt. No. 66-2, ¶ 16. He is currently serving his

fifth term as Mayor of Buffalo. Dkt. No. 68-2, ¶ 2.

21a

Continuation of the Present Lawsuit and Motion for

Summary Judgment

As a result of Brown’s victory in the general election,

defendants’ appeal of the District Court’s preliminary

injunction requiring Brown’s name to appear on the

general election ballot was rendered moot. Dkt. No. 53.

Thus, the Second Circuit vacated its order staying Judge

Sinatra’s preliminary injunction and remanded the case

back to this Court. Id. Presently, the only remaining claim

in this lawsuit is plaintiffs’ challenge to the

constitutionality of the independent nominating petition

deadline in Section 6-158.9. Dkt. No. 25.

On April 20, 2022, the District Court referred the case

to the undersigned for the handling of all pre-trial matters

and to hear and report on dispositive motions. Dkt. Nos.

63, 69. This Court entered a Case Management Order

which included deadlines for conducting discovery and

filing dispositive motions. Dkt. No. 65. On December 1,

2022, defendants filed the instant motion for summary

judgment. Dkt. No. 66. After the filing of responses and

replies, the parties consented to have the undersigned

render a final judgment on the motion. Dkt. Nos. 68, 70,

71. The Court heard oral argument on January 31, 2023, at

the conclusion of which it requested additional briefing,

including on the issues of standing and mootness. Dkt. No.

72. Additional responses and replies were submitted by

both parties. Dkt. Nos. 76-79.

Winger Expert Report

In support of their motion, plaintiffs have produced an

expert report by Richard Winger, an advocate for ballot

access for independent and minor party candidates. Dkt.

No. 66-3, pgs. 39-40, 53-74. Winger opposed the portion of

the 2019 amendments to the New York Election Law

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which included the earlier independent nominating

petition deadline in Section 6-158.9. Id. Winger has a B.A.

in political science; has conducted research on ballot access

laws in all 50 states; and has testified as an expert in state

and federal courts regarding ballot access issues. Id. at

pgs. 54-55. Winger also publishes a monthly newsletter,

Ballot Access News, which covers “the legal, legislative,

and political developments of interest to third party and

independent candidates.” Id.

Winger submits that he has analyzed the independent

nominating petition deadline in Section 6-158.9 and has

concluded that: (1) it is discriminatory because it “weighs

more heavily” on independent candidates as well as the

voters who support them; (2) it imposes a severe burden

on independent candidates and the voters who support

them because it prevents candidacies that arise from

genuine dissatisfaction with major party candidates and

the positions of the major political parties; and (3) it

imposes a severe burden on independent candidates and

the voters who support them because “it requires them to

gather signatures at a time when the populace is not

politically engaged and the opportunities for public

interaction are fewer.” Id.

Winger provides a legislative history of New York’s

petition deadline for independent candidates and how that

deadline has changed over the years, culminating in the

2019 amendment to Section 6-158.9 that requires

independent nominating petitions to be filed in late May.

Id. at 55-57. Winger submits that because the current

petition deadline is now 28 days before the state, local and

non-presidential primary date in New York, it precludes

new candidates from arising in response to “late-emerging

issues, shifts in the positions supported by the major

parties, or major party nominees whose views lie outside

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the political mainstream.” Id. at pg. 61. Winger also opines

that the early deadline makes it more difficult for

independent candidates to gather signatures, since they

are “forced to organize their petitioning efforts in the

winter or very early spring, when the general election is

quite remote and interest is low.” Id. at 68.

Winger’s expert report does not explain or discuss any

specific burden the earlier petition deadline imposed on

Brown, plaintiffs, or any other Brown supporters with

respect to the 2021 mayoral election. Dkt. No. 66-3, pgs.

53-74. During Wingers’ deposition, he was asked what

information he used to analyze the scope of the burdens

discussed in his expert report. Dkt. No. 66-3, pgs. 98-99.

Winger replied that he relied on his knowledge of the

history of the minor parties and independent candidacies.

Id. Winger admitted that, in opining about the general

burdens of the petition deadline in Section 6-158.9, he did

not research the specific burdens imposed on either Brown

supporters in 2021 or the plaintiffs in this case. Id.

Brown Affidavit

In response to defendants’ motion for summary

judgment, plaintiffs submitted an affidavit by Byron

Brown. Dkt. No. 68-2, pgs. 4-8. Therein, Brown states that

he is the current Mayor of the City of the Buffalo and that

he has served in this position since 2006. Id. at ¶ 2. Brown

also served as the chair of the New York Democratic Party

from May 2016 through January 2019. Id. at ¶ 4. Brown

states that he sought re-election as the Democratic Party

nominee for mayor in 2021, but was defeated in the

primary. Id. at ¶ 6. Brown explains that after his defeat, he

launched a write-in campaign and his supporters gathered

signatures of eligible voters in an effort to nominate him

as an independent candidate for mayor. Id. at ¶¶ 8-9.

Brown states that his nominating petition was filed with

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the Erie County Board of Elections on August 17, 2021,

but was rejected as untimely because it had not been filed

by the May 25, 2021 deadline pursuant to Section 6-158.9.

Id. at ¶¶ 9-11.

Brown contends that the petition deadline imposed a

severe burden on him and his supporters. Id. at ¶ 12.

Brown states that he was defeated by a “little known farleft candidate” in the primary, whose views were “far out

of step with the mainstream.” Id. at ¶ 14. Moreover,

because the early petition deadline prevented any

independent candidates from entering the mayoral race

after the primary results were known, Brown and his

supporters were going to be “left with no other choices on

the general election ballot.” Id. Brown states that it was

then, at the urging of his supporters, that he pursued a

write-in campaign. Id. Brown states that a write-in

campaign is far more expensive and difficult than a

campaign with ballot access. Id. at ¶¶ 16-21. Brown

estimates that his 2021 write-in campaign cost him $1.5

million more than he would have spent had his name been

on the general election ballot and that it took him a year to

pay off the debt he incurred for these additional expenses.

Id. Brown indicates that the write-in candidacy took

approximately 13,000 more volunteer hours than would

have been needed for a normal campaign with ballot

access. Id. at ¶¶ 19-20. Brown avers that he was able to win

in light of incumbency, name recognition, experience, and

a memorable campaign slogan. Id. at ¶ 21. He states that

any other candidate would have been unlikely to

accomplish this same feat. Id.7

The Court notes that Brown’s affidavit is dated December 16,

2022, and therefore it was obtained well after the November 1, 2022

deadline for the close of fact discovery. Dkt. Nos. 65, 68-2. Plaintiffs

argue that the affidavit should be considered timely because

7

25a

DISCUSSION

The Court’s Jurisdiction

During oral argument, the Court raised the issues of

standing and mootness. Specifically, the Court questioned

whether, in light of the fact that the 2021 general election

has already taken place and plaintiffs were able to vote for

Brown by writing-in his name on the ballot, plaintiffs have

standing to bring the instant lawsuit. The Court also

questioned whether the claims raised in the complaint are

now moot, since Brown won the 2021 general election and

is currently the Mayor of the City of Buffalo. The parties

agreed, both during oral argument and in their

supplemental submissions to the Court, that plaintiffs

have standing to continue to pursue this lawsuit and that

the issues remaining in the case are not moot.

Despite the fact that standing and mootness are not

disputed by the litigants, this Court has an independent

and continuing obligation to examine its own jurisdiction.

See Fed. R. Civ. P. 12(h)(3); Fox v. Bd. of Trustees of the

State Univ. of New York, 42 F.3d 135, 140 (2d Cir. 1994).

Thus, before turning to the merits of the controversy, the

defendants “chose not to depose Brown even though he was

identified as a witness in their initial disclosures.” Dkt. No. 68, pgs.

8-9. Plaintiffs’ argument is without merit. It is not defendants’

burden to obtain evidence in opposition to their own summary

judgment motion. Moreover, if plaintiffs believed that Brown had

evidence or personal knowledge that either supported their

position or created a genuine issue of material fact, it was their

responsibility to depose him or obtain his affidavit during the

discovery period. Thus, Brown’s declaration is untimely. However,

defendants do not object to the Court’s consideration of the

affidavit. Because there is no objection by defendants, and because

the information contained in the affidavit does not change the

outcome of the Court’s decision in this case, the Court has

considered Brown’s affidavit despite its untimeliness.

26a

Court will consider the threshold issues of standing and

mootness.

Standing

In order to establish standing, “a plaintiff must show

(1) [he or she] has suffered an injury in fact that is

(a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and

(3) it is likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.” Friends

of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOG), Inc., 528

U.S. 167 (2000). The Supreme Court has further explained

that standing need not be maintained throughout all

stages of a lawsuit, and is instead assessed under the facts

existing when the complaint is filed. Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.

49, 69 (1987); Lujan v. Defenders of Wildlife, 504 U.S. 555,

569 (1992). See Smith v. Sperling, 354 U.S. 91, 93 n. 1

(1957) (“[J]urisdiction is tested by the facts as they existed

when the action [was] brought” and “cannot be ousted by

subsequent events.”).

Courts have held that registered voters suffer a

cognizable injury sufficient to confer standing when ballot

access laws operate to deny them the opportunity to vote

for their candidate of choice. For example, in Graveline v.

Benson, plaintiff voters submitted evidence that

Michigan’s election laws governing ballot access for

independent candidates had the effect of excluding their

preferred candidate from the ballot, and therefore

prevented them from voting for their candidate of choice.

992 F.3d 524 (6th Cir. 2021). The Sixth Circuit rejected the

argument that since a preliminary injunction had been

granted requiring their preferred candidate’s name to

appear on the ballot, plaintiffs could not show an actual or

27a

imminent injury. Id. at 531-32. The Sixth Circuit instead

concluded that plaintiffs had standing to maintain the

lawsuit since, at the time the complaint was filed, they

“plainly allege[d] a concrete injury in fact that they traced

back to Michigan’s ballot access laws for independent

candidates.” Id. See also Anderson v. Celebrezze, 460 U.S.

780 (1983) (permitting voters to challenge Ohio election

law where early deadline for independent nominations

restricted their preferred candidate’s access to the ballot);

McLain v. Meier, 851 F.2d 1045 (8th Cir. 1988) (plaintiff

sufficiently alleged an injury as a voter where challenged

ballot access laws would “restrict his ability to vote for the

candidate of his choice or dilute the effect of his vote if his

chosen candidate were not fairly presented to the voting

public”); Kelly v. McCulloch, 405 Fed. Appx. 218, 219 (9th

Cir. 2010) (“Candidate eligibility requirements implicate

basic constitutional rights of voters as well as those of

candidates.”).

Courts in this Circuit had reached similar conclusions.

In Lerman v. Board of Elections, the Second Circuit held

that a plaintiff had standing to challenge a requirement

that all witnesses to ballot access petitions be residents of

the political subdivision where the election was to take

place, since “[t]he injury-in-fact [plaintiff] alleges concerns

the very process of engaging in political activity in support

of [her preferred candidate’s] candidacy, and that injury is

sufficient to confer standing under Article III.” 232 F.3d

135 (2d Cir. 2000). See also Gottlieb v. Lamont, 3:20-CV00623, 2022 U.S. Dist. LEXIS 22063 (D. Conn. Feb. 8,

2022) (plaintiffs had standing to challenge the

constitutionality of certain ballot access provisions in New

York where “all three plaintiffs have alleged injuries from

their inability to vote for their preferred candidate”); Yang

v. Kellner, 458 F. Supp. 3d 199 (S.D.N.Y. 2020) (denying

28a

voters an opportunity to cast ballots for an individual who

represented their political views constituted an “actual,

concrete and particularized injury.”).

Here, at the time the complaint was filed, plaintiffs

sufficiently alleged an injury-in-fact traceable to the

petition deadline in Section 6-185.9. Specifically, plaintiffs

alleged that they are registered voters living in the City of

Buffalo and that they were prevented from having Brown,

their candidate of choice, appear on the 2021 general

election ballot for mayoral office.8 Also, when the

complaint was filed in August 2021, the alleged injury

would have been redressed by having the petition deadline

declared unconstitutional, such that Brown’s independent

nominating petition would have been accepted by the Erie

County Board of Elections and Brown’s name would have

appeared on the general election ballot in November 2021.

Thus, plaintiffs have standing to claim that Section 6-158.9

unjustly denied them and other voters the right to cast a

ballot for Brown in the 2021 general election.

Mootness

The mootness doctrine is derived from Article III of

the Constitution, which provides that federal courts may

decide only live cases or controversies. See Irish Lesbian

and Gay Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir. 1998).

Unlike standing, which a plaintiff does not have to

maintain throughout the entire litigation, a case may be

rendered moot at any stage of the litigation. See

Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 584

While it is true that plaintiffs were able to vote for Brown in the 2021

election through write-in votes, the Supreme Court has clarified that

a write-in procedure is not an adequate substitute for having a

candidate’s name printed on the ballot. See Anderson, 460 U.S. at 780,

n. 26.

8

29a

(6th Cir. 2006). See also Thompson v. Carter, 284 F.3d 411,

415 (2d Cir. 2002) (a live or actual controversy must exist

throughout the case, not just at the time a complaint is

filed). “A case becomes moot when the issues presented

are no longer live or the parties lack a legally cognizable

interest in the outcome.” Freedom Party of New York v.

New York State Board of Elections, 77 F.3d 660, 662 (2d

Cir. 1996); quoting New York City Employees’ Retirement

Sys. v. Dole Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992).

The mootness doctrine is subject to an exception,

however, if the underlying dispute is “capable of

repetition, yet evading review.” See Irish Lesbian and

Gay Org., 143 F.3d at 647. Challenges to election laws are

one of the categories of cases which courts will often find

fit into this exception to the mootness doctrine. Indeed, the

Supreme Court has categorized voter challenges to the

constitutionality of state candidate eligibility statues as

issues “capable of repetition, yet evading review.” Ostrom

v. O’Hare, 160 F. Supp. 2d 486, 492 (E.D.N.Y. 2001); Storer

v. Brown, 415 U.S. 724, 737 n.8 (1974) (noting that the

“capable of repetition, yet evading review” doctrine, in the

context of election cases, is appropriate when there are “as

applied” challenges as well as in the more typical case

involving only facial attacks). As a result, many such cases

are not deemed moot, and voters are permitted to

challenge the relevant statutes, even where the election

has already come and gone and the deadlines are no longer

an issue. Ostrom, 160 F. Supp. 2d at 492. See also

Anderson, 460 U.S. at 784 n. 3 (1983) (reviewing

constitutionality of Ohio deadlines for registration of

independent candidates over two years after the election).

A challenge to an election law is capable of repetition, yet

evading review, where the following two criteria are met:

“(1) the challenged action [is] in its duration too short to be

30a

fully litigated prior to its cessation or expiration, and

(2) there [is] a reasonable expectation that the same

complaining party [will] be subject to the same action

again.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

The instant scenario easily passes the first prong of the

analysis. Plaintiffs’ objection to the rejection of Brown’s

independent nominating petition as a result of the deadline

in Section 6-158.9 was too short to be fully litigated prior

to when the election occurred and the controversy over

whether Brown’s name was to appear on the general

election ballot expired. Indeed, the complaint was filed on

August 30, 2021, less than three months before the general

election was scheduled to take place. See Lawrence v.

Blackwell, 430 F.3d 368, 371 (6th Cir. 2005) (“Challenges

to election laws are one of the quintessential categories of

cases which usually fit this prong because litigation has

only a few months before the remedy sought is rendered

impossible by the outcome of the relevant election.”);

Credico v. New York State Board of Election, 10 CV 4555,

2013 U.S. Dist. LEXIS 109737 (E.D.N.Y. June 19, 2013)

(finding that “[l]egal disputes involving election laws

almost always take more time to resolve than the election

cycle permits”) (internal citations omitted).

The second prong of analysis requires more detailed

consideration. Lerman v. Board of Elections in the City of

New York involved a challenge to New York’s election law

requirement that witnesses to designating petitions must

be residents of the political subdivision in which the

election was to be held. 232 F.3d 135, 141 (2d Cir. 2000).

Plaintiffs, consisting of the candidate effected [sic] by the

requirements and individuals both inside and outside the

relevant district who witnessed the petitions, argued that

the law’s residency requirement violated their First

Amendment rights. Id. Prior to addressing the merits of

31a

the constitutional challenge, the Second Circuit dismissed

defendants’ argument that the case was moot since the

primary election was over, having taken place without the

candidate-in-question’s name on the ballot. Id. The Second

Circuit found that “there [was] a reasonable expectation

that the same complaining parties would be subject to that

same action in the future” and therefore plaintiffs’ claims

fell within the exception to the mootness doctrine for

issues capable of repetition, yet evading review. Id. at 141.

Likewise, in Van Wie v. Pataki, the Second Circuit

reaffirmed that, in order for the second prong of the

exception to the mootness doctrine to apply in election

cases, “there must be a reasonable expectation that the

same complaining party would encounter the challenged

action in the future.” 267 F.3d 109, 114 (2d Cir. 2001). The

Van Wie Court further cautioned, however, that “mere

speculation that the parties will be involved in the same

dispute over the same issues does not rise to the level of a

reasonable expectation of demonstrated probability of

reoccurrence.” Id.

Here, the Court finds that the facts alleged in the

complaint provide a reasonable expectation, as opposed to

mere speculation, that plaintiffs would encounter the same

challenge in future elections. Plaintiffs are registered

voters who claim that the petition deadline in Section 6158.9 prevented them having their preferred candidate

appear on the 2021 general election ballot. There is a

reasonable expectation that, at some point in the future,

plaintiffs would again seek to vote for or support a

candidate who either (1) loses in the primary election and

then attempts to file an independent nominating petition

in order to appear on the ballot; or (2) decides to seek an

independent nomination to appear on the ballot after the

primary election has already taken place. As long as the

32a

present petition deadline remains in effect, which requires

independent nominating petitions to be filed 28 days

before the state and local primary, these types of

candidates will be precluded from appearing on the

general election ballot. Thus, plaintiff voters will continue

to be subject to Section 6-158.9 and there is reason to

believe that the deadlines contained therein will continue

to have an effect on plaintiffs’ choice of independent

candidates appearing on the general election ballot. See

Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (finding the

controversy not moot, even though the election was over,

because the burden imposed by the challenged election

law, which required a certain number of petition

signatures from a certain number of counties in each state,

“remains [in effect] and controls future elections.”);

Credico, 2013 U.S. Dist. LEXIS 109737 (because the New

York State Election Law requiring certain candidates for

office nominated by more than one independent body to

list their name on the ballot only once would continue to be

enforced in future elections, there was “every reason to

expect the same parties to generate a similar, future

controversy subject to identical time constraints”)

(internal citations omitted); Parish v. Kosinski, 5-17-CV344, 2017 U.S. Dist. LEXIS 232844 (N.D.N.Y. May 2, 2017)

(Where a reasonable expectation existed that plaintiffs will

“again find themselves faced with the prospect of wishing

to engage in petition circulation activity in the Villages of

North Syracuse and Liverpool, but [would be] chilled from

doing so in view of the witness residence requirement,”

their challenge to the section of the election law governing

party designating petitions was capable of repetition yet

evading review.).

33a

For these reasons, the Court finds that the controversy

here is not moot because it is capable of repetition yet

evading review.

Merits of the Dispute

Applicable Legal Standards

A party moving for summary judgment has the burden

of establishing that no genuine issue of material fact is in

dispute and that the moving party is entitled to judgment

as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v.

Liberty Lobby, Inc.,477 U.S. 242, 256 (1986); New York

Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d

102, 114 (2d Cir. 2010). Further, the inferences to be drawn

from the underlying facts must be viewed in the light most

favorable to the party opposing the motion for summary

judgment. Wachovia Bank, Nat. Ass’n v. VCG Special

Opportunities Master Fund., Ltd., 661 F.3d 164, 171 (2d

Cir. 2011). Once the moving party discharges its burden of

proof, the party opposing summary judgment has the

burden of setting forth “specific facts showing that there

is a genuine issue for trial,” wherein “a reasonable jury

could return a verdict for the non-moving party.” Liberty

Lobby, Inc., 477 U.S. at 248. A party opposing a properly

supported motion for summary judgment “may not rest

upon the mere allegations or denials of his pleading.” Id.

Indeed, “the mere existence of some alleged factual

dispute between the parties” alone will not defeat a

properly supported motion for summary judgment. Id. at

247-48.

States retain the power to regulate their own elections.

Burdick v. Takushi, 504 U.S. 428, 433 (1992). To that end,

states are permitted to “enact reasonable regulations of

the parties, elections, and ballots to reduce election- and

campaign-related disorder.” Timmons v. Twin Cities

34a

Area New Party, 520 U.S. 351, 358 (1997). The Supreme

Court has recognized that unduly restrictive state election

laws may “so impinge upon freedom of association as to

run afoul of the First and Fourteenth Amendments.”

Gottlieb v. Lamont, 465 F. Supp. 3d 41, 47 (Dist. Conn.

2020); accord Kusper v. Pontikes, 414 U.S. 51, 57 (1973).

However, “the mere fact that a State’s system creates

barriers tending to limit the field of candidates from which

voters might choose does not itself compel close scrutiny.”

Burdick, 504 U.S. at 433. Thus, federal courts have

eschewed applying a uniform strict scrutiny analysis in

every constitutional challenge to a voting regulation or

candidate-qualification requirement. Sam Party of N.Y. v.

Kosinski, 987 F.3d 267, 274 (2d Cir. 2021). Instead, the

degree of scrutiny used to analyze the constitutionally [sic]

of a state election regulation depends on the severity of the

regulation’s burden on the constitutional rights of

candidates and their supporters. Id.; Anderson, 460 U.S.

at 789. If the burden is severe, then strict scrutiny applies

and the law “must be narrowly drawn to advance state

interest of compelling importance.” Burdick, 504 U.S. at

434, Kosinski, 987 F.3d at 274. A provision imposing “only

reasonable, nondiscretionary restrictions,” however, can

be justified by a state’s “important regulatory interests”

and is subject to review that is “quite deferential” and

requires “no elaborate, empirical verification.” Burdick,

504 U.S. at 434; Kosinski, 987 F.3d 267. “State statutes,

like federal ones, are entitled to the presumption of

constitutionality.” Davies v. Warehouse Co. v. Bowles, 321

U.S. 144, 153 (1944). Thus, plaintiffs here have the burden

to prove that the state election law they challenge violates

the well-recognized “presumption of constitutionality.” Id.

For the following reasons, the Court finds that the

material, undisputed facts in the record prove: (1) the

35a

petition deadline in Section 6-158.9 does not impose a

severe burden and (2) any burden imposed by the deadline

is justified by New York’s important regulatory interests.

The petition deadline does not impose a severe burden.

“[T]he hallmark of a severe burden is exclusion or

virtual exclusion from the ballot.” Libertarian Party of

Connecticut v. Lamont, 977 F.3d 173, 177 (6th Cir. 2020).

The crux of this inquiry is whether a “reasonably diligent

candidate could be expected to be able to meet the

requirements to gain a place on the ballot.” Id. at 178.

Courts consider the “burden imposed by the challenged

regulation... not... in isolation, but within the context of the

state’s overall scheme of election regulations.” Lerman,

232 F.3d at 145.

The petition deadline in Section 6-158.9 neither

excludes, nor virtually excludes, independent candidates

from having access to the general election ballot. Instead,

candidates seeking an independent nomination for state or

local office in 2021 could have obtained ballot access by

collecting the requisite number of signatures starting on

April 13, 2021, and by filing their nominating petition no

later than May 25, 2021. See N.Y. Election Law §§ 6-138,

6-158.9; Brown, 197 A.D.3d 1505.

Contrary to plaintiffs’ position here, the deadline for

submitting an independent nominating petition does not

impose a discriminatory burden that weighs more heavily

on independent candidates. Major party candidates are

required to declare their involvement in the party primary

process, by filing their own designating petitions,

approximately two months before independent candidates

must declare their intent to run by filing an independent

nominating petition. See N.Y. Election Law §§ 6-158.1, 8100.1(a); Brown, 197 A.D.3d 1504. “Indeed, major party

36a

candidates have the additional burden of declaring their

candidacies sixty days before independent and minor

party candidates must file their signature petitions...and

[sic] independent and major party candidates thus are in

roughly comparable positions.” See Swanson v. Worley,

490 F.3d 894 (11th Cir. 2007). Further, independent

candidates in New York are given six weeks to collect the

necessary signatures, while major party candidates are

afforded only three weeks. Brown, 197 A.D.3d at 1505-06.

Finally, independent candidates have the ability to collect

signatures from a larger population of voters than major

party candidates have available. Id. (explaining that an

independent nominating petition for office of Mayor of

Buffalo must include 750 signatures from registered

voters of any party affiliation, while a candidate for a party

designation for that office must collect 600 signatures

specifically from the enrolled voters of that party).

Plaintiffs contend that the May petition deadline is

burdensome because it forces independent candidates to

gather signatures at a time when the voting public is less

engaged, and before the summer months when the

opportunity for public interaction is higher. However, the

independent nominating petition deadline occurs in close

proximity to the major party candidate designation

process, 28 days before the primary election, and in the

spring. Thus, it is likely that the voting public would be

relatively engaged and interested during the period of

time that independent candidates are seeking petition

signatures for state or local office in New York. The Court

therefore finds, in light of New York’s Election Law

scheme as a whole, that a reasonably diligent candidate

could be expected to meet Section 6-158.9’s requirement

37a

for independent candidates to file timely a nominating

petition. See Brown, 197 A.D.3d at 1505-07.9

Richard Winger, plaintiffs’ expert, opines that a

petition deadline of 28 days before the party primary

imposes a severe burden because it prevents independent

candidacies from arising in response to late-emerging

issues, shifts in the positions of major parties, or

dissatisfaction with major party nominees. Plaintiffs

therefore argue that the petition deadline “effectively cuts

off the opportunity for [independent] candidacies to

develop at a time that pre-dates the period during which

the reasons for their emergence are most likely to occur.”

Dkt. No. 79, pg. 3. The Court disagrees. As explained

above, independent candidates are not required to file

their nominating petitions until two months after those

individuals seeking major party nominations have filed

their designating petitions. Thus, independent candidates

have an opportunity to decide whether to enter a race after

they learn who is competing in the party primaries. At that

time, potential independent candidates would presumably

have an understanding as to the field of likely major party

nominees and their positions, even though the primary

The Court recognizes that it is not bound by the Fourth

Department’s decision in Brown declaring that Section 6-158.9 is

constitutional. However, the Court does find the Fourth’s Department

decision in Brown to be logical, well-supported by case law, and wellreasoned, and the Court has considered it as persuasive authority

here. See Industrial Consultants, Inc. v. H.S. Equities, 646 F.2d 746,

749 (2d Cir. 1981) (recognizing that district courts are “not bound to

adopt the [state] court’s interpretation of federal constitutional

principles, even as applied to [state] statutes,” but that state court

decisions on these issues are persuasive authority).

9

38a

election would not have occurred, and could base their

decision to run accordingly.10

Furthermore, independent candidates are not entitled

to know for certain the identities of major party nominees

or their positions before declaring their own intent to run

for office. To that end, federal courts have upheld a

number of ballot access laws which, like the petition

deadline at issue here, required independent candidates to

file their nominating petitions before the nominees of the

major parties were known or selected. For example, in

Lawrence v. Blackwell, the Sixth Circuit upheld an Ohio

law which required an individual interested in becoming

an independent congressional candidate in the general

election to file both a statement of candidacy and a

nominating petition by 4:00 p.m. on the day before the

primary election. 430 F.3d 368 (6th Cir. 2005). The Sixth

Circuit rejected plaintiffs’ argument that the early filing

deadline imposed a severe burden on the constitutional

rights of independent candidates since “independents

often do not decide to run until after the deadline has

passed.” Id. The Lawrence Court recognized that

“[t]hough an earlier deadline does impose more of a

burden than a later deadline, the Supreme Court has held

The Court also notes that failure to file a nominating petition in

accordance with Section 6-158.9 does not bar an independent

candidate from running for office. Indeed, an independent candidate

or minor party candidate who decides to run for office after learning

the results of a major party primary may still pursue a write-in

campaign. Admittedly, a write-in campaign is more difficult and likely

has less chance of success than a campaign with ballot access.

However, it cannot be said that such a strategy is impossible. In fact,

it is exactly what happened here, when Brown ran a successful writein campaign in 2021 for Mayor of the City of Buffalo, after he and his

supporters were dissatisfied with the results of the Democratic Party

primary.

10

39a

that little weight is given to ‘the interest the candidate and

his supporters may have in making a late rather than an

early decision to seek independent ballot status’.” Id.;

quoting Storer v. Brown, 415 U.S. 724, 736 (1974). The

Sixth Circuit also held, and the Court finds especially

applicable here, that “there is nothing in the case law

which suggests that a state is required to give independent

candidates the advantage of jumping into a race in

response to late-breaking events which impact the political

landscape when major parties do not have the same

flexibility.” Lawrence, 430 F.3d at 374.

Other federal courts have reached similar conclusions

based on the same reasoning. See e.g., Swanson, 490 F.3d

894 (upholding constitutionality of Alabama election law

which required independent candidates seeking ballot

access to submit a petition by the first primary election

date); Wood v. Meadows, 207 F.3d 708 (4th Cir. 2000)

(rejecting independent candidate’s argument that

Virginia’s petition deadline, which was the same day as the

primary election, was unconstitutional because it limited

the ability of independent candidates to react to events

after the primary elections); Council of Alternative

Political Parties v. Hooks, 179 F.3d 64 (3d Cir. 1999)

(upholding constitutionality of New Jersey law that

required independent nominating petitions to be filed the

same day as the primary and “reject[ing] the plaintiffs’

claim that they are constitutionally entitled to file their

nominating petitions after the major party candidates are

chosen so that they can recruit and nominate candidates

who capitalize on disaffection with the major political

parties’ nominees.”).11 For these reasons, the Court finds

Other courts have upheld petition deadlines for independent

candidates that were even earlier than the deadline at issue here. In

McLain v. Meier, the Eighth Circuit upheld a North Dakota statute

11

40a

that Winger’s expert report fails to create a triable issue

of fact as to the severity of the burden imposed by Section

6-158.9’s petition deadline.

Plaintiffs fare no better with their argument that the

petition deadline in Section 6-158.9 imposed a severe

burden on Brown and his supporters, with respect to

Brown’s ability to appear on the 2021 general election

ballot as an independent candidate for Mayor of the City

of Buffalo. Brown’s affidavit reflects that he did not

attempt to run as an independent candidate until after

losing in the Democratic Party primary election. In fact,

Brown’s independent nominating petition was not filed

until August 17, 2021, approximately two months after his

primary loss and almost three months after the petition

deadline had expired. Thus, the record shows that Brown

and his supporters never even tried to timely comply with

the petition deadline. In fact, Brown admits as much when

he states that he did not launch a write-in campaign or

pursue an independent route to the ballot until after he

lost in the primary and his supporters were dissatisfied

with the party nominee. Indeed, Brown offers no reason as

which required third parties to submit nominating signatures at least

fifty-five days before the primary election. 851 F. 2d 1045 [sic] (8th

Cir. 1988). The McLain Court determined that the deadline advanced

important state interests including, like here, the rescheduling of the

state primary election from September to June. Id. at 1049. See also

Libertarian Party of Washington v. Munro, 31 F.3d 759 (9th Cir.

1994) (upholding a Washington state election procedure that

effectively required minor party candidates to announce their

candidacies four to five weeks earlier than major party candidates and

finding that collecting a relatively small number of signatures just four

to five weeks before the selection of major-party candidates was not

particularly difficult); Stevenson v. State Bd. of Elections, 638 F. Supp.

547 (N.D. Ill. 1986); aff’d 794 F.2d 1176 (7th Cir. 1986) (filing deadline

of between 92 and 99 days prior to the date of the primary elections

for independent candidates was not unconstitutional).

41a

to why his timely compliance with the independent

nominating petition deadline would have been unduly

burdensome, had he timely sought an independent

nomination rather than electing only to run in the primary

as a major party candidate.12

Brown’s affidavit goes on to describe the various

logistical and financial challenges he faced in running a

write-in campaign. But these alleged burdens have

nothing to do with Brown’s ability to comply with the

petition deadline in Section 6-158.9. Brown seems to claim

that he was burdened because after losing in the primary,

the deadlines in Section 6-158.9 prevented him from then

appearing on the ballot as an independent candidate. But

this scenario neither infringes on Brown’s constitutional

rights nor proves that Section 6-158.9 imposes an undue

burden on independent candidates by requiring them to

file nominating petitions before knowing the results of a

party primary. In fact, the Supreme Court has made clear

that states are permitted to enact “sore-loser” laws in

order to expressly prohibit a candidate, like Brown, who

loses in the primary, from then seeking to run in the same

election as an independent or minor party candidate. See

Storer, 415 U.S. at 735-36 (upholding the constitutionality

of sore-loser laws); Backus v. Spears, 677 F.2d 397, 399400 (4th Cir. 1982) (“South Carolina certainly has the

power, as a permissible adjunct to promoting orderly

As explained previously, New York Election Law would not have

precluded Brown, in 2021, from both running in the party primary

and, at the same time, obtaining the requisite number of signatures to

timely file an independent nominating petition under Section 6-158.9.

In fact, Brown had proceeded on such dual tracks in previous

elections, where he appeared on the ballot both as the Democratic

Party nominee for mayor and as the nominee of various independent

groups. However, Brown chose not to pursue any independent

nominations in 2021, prior to running in a major party primary.

12

42a

primary elections, to forbid petition candidacies by

persons who have been defeated in party primaries.”). In

sum, Brown’s affidavit offers no evidentiary support for

plaintiffs’ position that the petition deadline in Section 6158.9 imposed a discriminatory or undue burden on

independent candidates and their supporters in general,

or that it is imposed an undue burden on Brown and

plaintiffs specifically.

Plaintiffs also rely heavily on Anderson v. Celebrezze,

where the Supreme Court invalidated an Ohio statute that

required independent candidates seeking a place on the

November general election ballot to file a nominating

petition 75 days before the primary election. 460 U.S. 780

(1983). However, the Court finds that Anderson is

materially different from the facts presented here. First,

Anderson involved a presidential election, and the

Supreme Court specifically noted that “the State has a less

important interest in regulating Presidential elections

than statewide or local elections[.]” Id. at 795. This lawsuit

arises in the context of a local mayoral election. See

Council of Alternative Political Parties, 179 F.3d at 73

(noting that a court “cannot mechanically adopt the

outcome” from Anderson because “the State’s interest is

appreciably greater” in regulating “state and local

elections, rather than the national presidential election.”).

Second, the Anderson Court found that Ohio’s early

filing deadline placed independent candidates at a distinct

disadvantage by forcing them to file a nominating petition

by March, or be excluded from the ballot, while major

party candidates were not chosen until party conventions

at the end of summer, and could appear on the ballot even

if they had not filed a designating petition or participated

in a primary. Id. at 790-94. Thus, major party candidates

had many more months to obtain access to the ballot, than

43a

was afforded to independent candidates. Differently here,

the New York Election Law requires all candidates, both

major party and independent, to gather signatures and file

nominating or designating petitions prior to the primary.

In addition, independent candidates in New York do not

have to file their nominating petitions until approximately

two months after the major party candidates file their

designations. Thus, the regulation at issue here does not

burden independent candidates in the same manner that

the Ohio statute burdened independent candidates in

Anderson.

Plaintiffs in this case essentially seek a petition

deadline substantially later than the date of primary. They

seek a deadline that would allow candidates such as Brown

enough time to both decide to run as an independent and

gather enough signatures for a nominating petition, after

either having lost an election bid for a major party

nomination or after having the benefit of knowing the

results of the major primary primaries. Accordingly,

“what [plaintiffs] are seeking cannot be termed equal

treatment [but instead] they are asserting a constitutional

right to preferential treatment.” See Council of

Alternative Political Parties, 179 F.3d at 74. The denial of

such preferential treatment does not impose an undue

burden on plaintiffs’ constitutional rights.13

Plaintiffs also cite cases where courts struck down early filing

deadlines that fell more than a single day before a major parties’

primary. The Court finds these cases to be inapposite. First, the

deadlines in most of the cases cited by plaintiffs were notably earlier

than the deadline here, which is only 28 days before the primary. See

e.g., Nader v. Brewer, 531 F. 3d 1028, 1039 (9th Cir. 2008) (deadline 90

days before primary, in context of national election); Cromer v. South

Carolina, 917 F.2d 819, 822 (4th Cir. 1990) (deadline 70 days before

primary); New Alliance Party of Ala. v. Hand, 933 F.2d 1568 (11th

Cir. 1991) (deadline 60 days before primary); Council of Alternative

13

44a

For all of these reasons, the Court finds that plaintiffs

have failed to raise a genuine issue of material fact as to

whether the independent nominating petition deadline in

Section 6-158.9 imposes a severe burden on their

constitutional rights. Because the Court finds that any

burdens imposed by Section 6-158.9 are reasonable and

non-discriminatory, strict scrutiny does not apply here.

The petition deadline is justified bv important state

interests.

The lesser scrutiny to be applied here is not “pure

rational basis review.” Price v. N.Y. State Bd. of Elections,

540 F.3d 101, 108 (2d Cir. 2008). Rather, “the court must

actually ‘weigh’ the burdens imposed on the plaintiff[s]

against ‘the precise interests put forward by the State,’

and the court must take ‘into consideration the extent to

which those interests make it necessary to burden the

plaintiffs rights.’” Id. at 108-09; quoting Burdick, 504 U.S.

at 434. In conducting this analysis, “a state’s important

regulatory interests will usually be enough to justify

reasonable, nondiscriminatory restrictions.” Gottlieb v.

Lamont, 22-449, 2023 U.S. App. LEXIS 8542 (2d Cir.

2023). Otherwise, courts would “hamper the ability of

States to run efficient and equitable elections, and compel

Political Parties, 121 F.3d 876 (3d Cir. 1997) (deadline 54 days before

primary). Other cases cited by plaintiffs are distinguishable in that

they involved candidates attempting to run for president in a national

election. See Populist Party v. Herscher, 746 F.2d 656, 661 (10th Cir.

1984); Nader 2000 Primary Cmte., Inc. v. Hazeltine, 110 F. Supp. 2d

1201, 1208 (D.S.D. 2000). Also, in contrast to these cases, where courts

found a severe burden based on the specific facts presented, plaintiffs

here have failed to raise any triable issue of fact showing that the

deadline in Section 6-158.9, considered in totality with New York’s

Election Law scheme, placed an undue burden on plaintiffs

themselves or on independent candidates and their supporters in

general.

45a

federal courts to rewrite state electoral codes.” Clingman

v. Beaver, 544 U.S. 581, 598 (2005).

Here, defendants assert that the petition deadline in

Section 6-158.9 effectuates the following important state

regulatory interests: (1) ensuring the integrity and

reliability of the electoral process; (2) promoting political

stability at the expense of factionalism; and (3) upholding

the state’s administrative duty to meet federal deadlines

for the mailing of overseas and military ballots. Under the

deferential standard of review just explained, these

proffered interests are sufficient to justify the filing

deadline at issue here. Kosinski, 987 F.3d at 277-78.

Moreover, the Court finds no evidence in the record upon

which a reasonable jury could conclude that the state’s

interest in promulgating the petition deadline does not

outweigh any reasonable and nondiscriminatory burdens

imposed on plaintiffs.14

The record before the Court reflects that the

independent nominating petition deadline in Section 6158.9 was enacted as part of a general overhaul of election

dates and deadlines, all designed to, inter alia, ensure

state law compliance with the federal MOVE Act and to

Plaintiffs argue that the state’s justifications for the deadline are

“disputed as a matter of fact.” Plaintiffs point to their expert

declaration wherein Winger argues as to the validity of the state

interests cited by defendants and the extent to which the petition

deadline actually effectuates those interests. (Dkt. No. 66-3, ¶¶ 55-78)

In light of the evidence put forth by defendants as to the legislative

history and intent of the 2019 amendments to the New York Election

Law, as well as the case law discussed herein acknowledging the

validity of the state interests cited by defendants, the Court finds that

Winger’s declaration fails to raise a factual dispute. Stated another

way, plaintiffs’ contention that defendants’ reasons for the

amendment to the petition deadline are not good ones does not create

an issue of material fact sufficient to defeat summary judgment.

14

46a

facilitate the timely transmission of ballots to military

voters stationed overseas. These changes also facilitated

the merging of New York state, local, and nonpresidential primaries to a single date in June. During the

legislative process, members of the Erie County Board of

Elections specifically represented that the deadline for

filing an independent nominating petition was changed in

order to “fairly effectuate MOVE Act compliance and

enact early voting.” The Court finds these reasons

consistent with a state’s right to “enact reasonable

regulations of parties, elections and ballots” and to reduce

campaign-related disorder. Timmons, 520 U.S. at 358. See

also Council of Alternative Political Parties, 179 F.3d at

79 (states have a legitimate interest in maintaining a stable

and efficient election process).

During discovery in this case, a representative from

the Erie County Board of Elections testified that, in the

course of administering an election, the Board has “38

different items that go to 851 election districts that all need

to be sorted and put together.” Dkt. No. 66-3, pg. 160.

Moreover, with respect to the 2021 general election, New

York Law required that ballots be mailed to overseas

voters by September 17, 2021. See N.Y. Elec. Law § 10108(1), § 11-204(4). The Board representative testified that

if an independent nominating petition was accepted on

August 17, 2021, it “would just create pure chaos at the

Board” and would “make it almost impossible to comply

with federal military absentee laws.” Id. Thus, the Court

finds that the filing deadline in Section 6-158.9 supported

the important state interest of allowing election officials to

timely process independent petitions in light of the new,

merged June primary date and MOVE Act requirements

governing the transmission of overseas ballots. See

Lawrence, 430 F.3d at 375 (finding that the early filing

47a

deadline for independent petitions meets Ohio’s

“administrative interest of being able to process

independent candidates’ petitions and verify signatures in

the midst of completing a host of other tasks necessary to

conduct a fair election.”). The earlier deadline also

promotes the state’s interest in a timely and orderly

construction of ballots by helping ensure that any

litigation related to the petitions is settled early.

In addition, by requiring independent candidates to file

their nominating petitions before the results of the

primary are available, the petition deadline at issue here

serves the state’s important interest in both preventing

sore-loser candidacies and potentially discouraging party

candidates from using the independent nominating

process to seek an extra ballot position. Indeed, it is wellestablished that states have an important interest in

ensuring “the stability of their political systems” and

avoiding “party splintering and excessive factionalism.”

Timmons, 520 U.S. at 366-67. See also Council of

Alternative Political Parties, 179 F.3d at 78 (New Jersey’s

interest in preventing “sore-loser” candidacies rises to the

level of a legitimate and important state interest);

Swanson, 490 F.3d at 910 (“By placing reasonable

restrictions on ballot access for independent and minor

party candidates, Alabama’s election scheme discourages

party-splintering and factionalism that could destabilize

the political system.”).

Moreover, defendants have demonstrated that moving

the petition deadline from August to May served the

legitimate state interest of promoting a fairer electoral

process. First, the earlier deadline for independent

nominating petitions ensures that voters will have

knowledge of all ballot candidates around the same time,

and also avoids giving major party candidates the

48a

advantage of campaigning for two additional months

before independent candidates are nominated. Council of

Alternative Political Parties, 179 F.3d at 78 (“The State

also has a legitimate interest in voter education.”). Also,

allowing independent candidates to continue to file their

petitions in August, when the major party candidates are

now selected in June, could provide an unfair advantage to

independent candidates. Id. (“Allowing minor parties to

file on a later date - after the major party’s primary - would

give them a significant advantage, and it is entirely

reasonable for New Jersey to regard any such advantage

as unfair.”).

The record here demonstrates that New York has

important state regulatory interests which are sufficient

to justify the reasonable and nondiscriminatory burdens

imposed by the filing deadline. Accordingly, after

considering all of the material and undisputed facts in the

record, the Court finds, as a matter of law, that the

independent nominating petition deadline in Section 6158.9 of the New York State Election Law does not violate

plaintiffs’ constitutional rights, and that defendants are

entitled to judgment as a matter of law.

CONCLUSION

For the foregoing reasons, defendants’ motion for

summary judgment is granted and plaintiffs’ complaint is

dismissed. (Dkt. No. 66) The Clerk of the Court shall take

all necessary steps to close the case.

SO ORDERED.

Dated:

July 10, 2023

Buffalo, New York

/s/ Michael J. Roemer

MICHAEL J. ROEMER

United States Magistrate Judge

49a

APPENDIX C

50a

W.D.N.Y.

21-cv-982

Sinatra, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 8th day of March, two

thousand twenty-two.

Present:

Raymond J. Lohier, Jr.,

Joseph F. Bianco,

Beth Robinson,

Circuit Judges.

Carlanda D. Meadors, an individual,

et al.,

Plaintiffs-Appellees,

v.

Erie County Board of Elections,

Defendant-Appellant,

Jeremy Zellner, Ralph M. Mohr,

Defendants,

v.

India B. Walton,

Intervenor-Appellant.

21-2137 (L)

21-2145 (Con)

51a

Appellants India B. Walton and the Erie County Board of

Elections move to dismiss their appeals as moot. Upon due

consideration, it is hereby ORDERED that the motion is

GRANTED and the consolidated appeals are

DISMISSED. The general election that was the subject

of the preliminary injunction has passed, and this Court

can no longer order any effective relief. See Church of

Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992);

In re Flanagan, 503 F.3d 171, 178 (2d Cir. 2007).

Walton also moves to vacate the district court’s

preliminary injunction. Upon due consideration, it is

hereby ORDERED that the motion is GRANTED and the

injunction is VACATED. See Hassoun v. Searls, 976 F.3d

121, 130 (2d Cir. 2020); Haley v. Pataki, 60 F.3d 137, 142

(2d Cir. 1995).

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court

United States

Second Circuit

Court of Appeals

/s/ Catherine O’Hagan Wolfe

52a

APPENDIX D

53a

W.D.N.Y.

21-cv-982

Sinatra, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 16th day of September, two

thousand twenty-one.

Present:

Debra Ann Livingston,

Chief Judge,

Denny Chin,

William J. Nardini,

Circuit Judges.

Carlanda D. Meadors, an individual,

et al.,

Plaintiffs-Appellees,

v.

Erie County Board of Elections,

Defendant-Appellant,

Jeremy Zellner, Ralph M. Mohr,

Defendants,

v.

India B. Walton,

Intervenor-Appellant,

Election Commissioners’ Association

for the State of New York,

Movant.

21-2137 (L)

21-2145 (Con)

54a

Appellants move for a stay of the district court’s order

granting a preliminary injunction pending appeal. Upon

due consideration, it is hereby ORDERED that the motion

is GRANTED. See Nken v. Holder, 556 U.S. 418, 434–35

(2009). It is further ORDERED that the motion of the

Election Commissioners’ Association for the State of New

York for leave to file an amicus brief is GRANTED.

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court

United States

Second Circuit

Court of Appeals

/s/ Catherine O’Hagan Wolfe

55a

APPENDIX E

56a

Meadors v. Erie County Board of Elections, No. 1:21-cv00982 (W.D.N.Y. Aug 30, 2021)

Docket Entry #28

Filed & Entered: 09/03/2021

Order on Motion for TRO

Docket Text: **INJUNCTION IS VACATED, SEE [53]

MANDATE of USCA** TEXT ORDER: Upon

consideration of the briefing and arguments of counsel,

and for good cause shown, it is ordered that the motion for

preliminary injunction (Dkt. #2) is GRANTED.

Accordingly, the Erie County Board of Elections, along

with its officers, agents, servants, employees, attorneys,

and all those in active concert with them, are hereby

enjoined from enforcing Section 6-158(9) of the New York

Election Law against candidate Byron W. Brown and from

failing to put his name on the 2021 general election ballot

as an independent candidate for the Mayor of Buffalo. The

Board of Elections is ordered to place Byron W. Brown on

the 2021 Election Ballot as an independent candidate for

Mayor of Buffalo. IT IS SO ORDERED. Issued by Hon.

John L. Sinatra, Jr. on 9/3/2021. (KLH) Modified on

3/9/2022 (SG).

57a

APPENDIX F

58a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NEW YORK

BUFFALO DIVISION

Carlanda D. Meadors, an

individual, et al.,

Plaintiffs,

vs.

Erie County Board of

Elections, et al.,

Case No.

1:21-cv-982-JLS

First Amended

Complaint

Defendants.

The plaintiffs hereby amend their complaint under

Rule 15(a)(1) of the Federal Rules of Civil Procedure. This

amendment adds plaintiffs and defendants and makes no

other substantive changes.

Nature of the Case

1.

This is an as-applied constitutional challenge to

New York’s petition deadline for independent candidates.

The law at issue is Section 6-158.9 of the New York

Election Code, which requires independent candidates to

file their nominating petition at least 23 weeks before a

general election—a date that fell this year in late May.

2.

The plaintiffs are three individual supporters of

an independent candidate for Mayor of Buffalo. They

allege that New York’s early deadline, as applied to the

would-be candidate, violates their rights under the First

and Fourteenth Amendments to the United States

Constitution. They seek declaratory and injunctive relief

prohibiting Erie County election officials from enforcing

59a

that deadline and requiring them to place the candidate’s

name on the 2021 general-election ballot.

Jurisdiction and Venue

3.

This Court has original jurisdiction over this

case under Article III of the U.S. Constitution and 28

U.S.C. §§ 1331 and 1343(a)(3).

4.

This suit is authorized by 42 U.S.C. § 1983.

5.

Declaratory relief is authorized by 28 U.S.C.

§§ 2201 and 2202.

6.

Venue is proper in the Western District of New

York under 28 U.S.C. § 1391(b) and 28 U.S.C. § 112(d).

Parties

7.

Carlanda D. Meadors is a resident of the City of

Buffalo. She is a registered voter and a supporter of

Brown’s independent candidacy for Mayor of the City of

Buffalo in 2021. She signed Brown’s independent

nominating petition and wants to vote for Brown on the

general-election ballot.

8.

Leonard A. Matarese is a resident of the City of

Buffalo. He is a registered voter and a supporter of Byron

W. Brown’s independent candidacy for Mayor of the City

of Buffalo in 2021. He signed Brown’s independent

nominating petition and wants to vote for Brown on the

general-election ballot.

9.

Jomo D. Akono is a resident of the City of

Buffalo. He is a registered voter and a supporter of

Brown’s independent candidacy for Mayor of the City of

Buffalo in 2021. He signed Brown’s independent

nominating petition and wants to vote for Brown on the

general-election ballot.

60a

10.

Kim P. Nixon-Williams is a resident of the City

of Buffalo. She is a registered voter and a supporter of

Brown’s independent candidacy for Mayor of the City of

Buffalo in 2021. She signed Brown’s independent

nominating petition and wants to vote for Brown on the

general-election ballot.

11.

Florence E. Baugh is a resident of the City of

Buffalo. She is a registered voter and a supporter of

Brown’s independent candidacy for Mayor of the City of

Buffalo in 2021. She signed Brown’s independent

nominating petition and wants to vote for Brown on the

general-election ballot.

12.

Defendant Erie County Board of Elections

administers elections for Mayor of the City of Buffalo and

is charged by law with enforcing New York’s petition

deadline for independent candidates in the 2021 mayoral

election. The Board exercises its authority under color of

state law within the meaning of 42 U.S.C. § 1983.

13.

Defendant Jeremy J. Zellner is a member of the

Erie County Board of Elections. As a Commissioner, he

exercises his authority under color of state law within the

meaning of 42 U.S.C. § 1983. He is sued in his official

capacity only.

14.

Defendant Ralph M. Mohr is a member of the

Erie County Board of Elections. As a Commissioner, he

exercises his authority under color of state law within the

meaning of 42 U.S.C. § 1983. He is sued in his official

capacity only.

Background

I. New York’s Petition Deadline for Independent

Candidates

61a

15.

The State of New York first adopted a petition

deadline for independent candidates in 1890. The law

provided that independent candidates for local offices

could appear on the general-election ballot by filing a

petition containing the requisite number of signatures at

least 12 days before the election. Act of May 2, 1890, ch.

262, § 8, 1890 N.Y. Laws 482, 484. c. 262 Sec. 8, p. 482, 484.

16.

In 1892, the Legislature moved the deadline to

15 days before the general election. The Election Law, ch.

680, § 59, 1892 N.Y. Laws 1602, 1622.

17.

In 1922, the deadline moved to four weeks

before the general election. The Election Law, ch. 588,

§ 140, 1922 N.Y. Laws 1326, 1401-02.

18.

In 1976, the Legislature changed the deadline

to seven weeks before the general election, a date that fell

in late September. Act of June 1, 1976, ch. 233, § 1, 1976

N.Y. Laws 1, 90-91.

19.

In 1984, the deadline moved once again to 11

weeks before the general election, a date that fell in late

August, and it stayed there until 2019. Act of July 19, 1984,

ch. 433, § 8, 1984 N.Y. Laws 2592, 2594.

20.

In 2019, the Legislature changed the deadline

to “not later than twenty-three weeks preceding” a

general election. Act of January 24, 2019, ch. 5, § 13, 2019

N.Y. Laws 9, 14 (codified at N.Y. Elec. Law § 6-158.9).

That date falls in late May, 161 days before the general

election; 28 days before the non-presidential primary

election, which is held on the fourth Tuesday in June, N.Y.

Elec. Law § 8-100(a); and 107 days before the deadline—

54 days before the general election—by which county

boards of election are required to determine the

candidates who will appear on the ballot, N.Y. Elec. Law

§ 4-114.

62a

21.

In 2020, because of the COVID-19 virus,

Executive Order 202.46 (June 30, 2020) changed the

deadline to July 30, 2020.

22.

In

2020,

incumbent

Democratic

Assemblywoman Rebecca Seawright, who had

represented Manhattan’s Upper East Side since 2015,

missed the deadline to qualify for the June primary

election. Because she faced no intra-party opposition, that

left the Democratic line open and only a Republican on the

general-election ballot in the heavily-Democratic district.

But because of Executive Order 202.46, she was able to

qualify for the general-election ballot as an independent

candidate, and she won re-election by almost 20

percentage points.

23.

In 2021, the general election is scheduled for

November 2. N.Y. Elec. Law § 8-100(c). The petition

deadline for independent candidates therefore fell on May

25, 2021. The non-presidential primary election was held

on June 22. And the deadline for county boards of election

to determine the candidates who will appear on the

general-election ballot is September 9.

II. Erie County Rejects Brown’s Independent Petition

24.

Bryon W. Brown is the current mayor of the

City of Buffalo, New York.

25.

Brown sought re-election as the nominee of the

Democratic Party but was defeated in the primary

election.

26.

Brown then launched a write-in campaign.

27.

Brown’s supporters also launched an effort to

nominate him as an independent candidate for mayor in

the general election.

63a

28.

Brown’s supporters gathered signatures of

eligible voters in the City of Buffalo and filed their

nominating petition containing more than the requisite

number of signatures with the Erie County Board of

Elections on August 17, 2021.

29.

The petition would have entitled Brown to a

place on the ballot if it had been filed on or before May 25,

2021, and it would have been timely under all of New

York’s petition deadlines in force before 2019.

30.

The Erie County Board of Elections rejected

the nominating petition on Friday, August 27, 2021,

because the petition had not been filed by the deadline set

out in Section 6-158.9 of the New York Election Code.

Claim One

31.

New York’s petition deadline for independent

candidates, as applied here to the candidacy of Byron W.

Brown for Mayor of the City of Buffalo, violates rights

guaranteed to the plaintiffs by the First and Fourteenth

Amendments to the United States Constitution, as

enforced by 42 U.S.C. § 1983.

Relief

32.

A real and actual controversy exists between

the parties.

33.

The plaintiffs have no adequate remedy at law

other than this action for declaratory and equitable relief.

34.

The plaintiffs are suffering irreparable harm as

a result of the violations complained of herein, and that

harm will continue unless declared unlawful and enjoined

by this Court.

WHEREFORE, the plaintiffs respectfully pray that this

Court:

64a

(1) assume original jurisdiction over this case;

(2) enter a declaratory judgment that New York’s

petition deadline for independent candidates, as

applied here to the candidacy of Byron W. Brown for

Mayor of the City of Buffalo, violates rights

guaranteed to the plaintiffs by the First and

Fourteenth Amendments to the United States

Constitution, as enforced by 42 U.S.C. § 1983;

(3) enjoin the Erie County Board of Elections from

enforcing New York’s petition deadline for

independent candidates against Brown’s candidacy

and from failing to place his name on the 2021 generalelection ballot as an independent candidate for Mayor

of the City of Buffalo;

(4) award the plaintiffs the costs of this action together

with their reasonable attorneys’ fees under 42 U.S.C.

§ 1988; and

(6) [sic] retain jurisdiction of this action and grant the

plaintiffs any further relief which may in the discretion

of the Court be necessary and proper.

Respectfully submitted this 3rd day of September, 2021.

/s/ Bryan L. Sells*

Georgia Bar No. 635562

Attorney for the Plaintiffs

The Law Office of Bryan L. Sells, LLC

PO Box 5493

Atlanta, Georgia 31107-0493

Telephone: (404) 480-4212

Email: bryan@bryansellslaw.com

* Admitted pro hac vice

65a

/s/ Frank C. Callocchia

Attorney for the Plaintiffs

Callocchia Law Firm, PLLC

16 Bidwell Parkway

Buffalo, New York 14222

Telephone: (716) 807-2686

Email: frank@callocchialaw.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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