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
22a
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
23a
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
24a
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
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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.
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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.
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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:
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(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
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/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.