The opinion of the court was delivered by: David G. Larimer United States District Judge
Federal and state law provide procedures for filling vacancies that exist in the United States House of Representatives ("House"). The procedures envision calling a special election to fill the vacancy. The Governor of the State of New York has publicly stated that he plans to call for a such an election to be held some five months from now, on the date of the general election, to fill a vacancy that exists in the Twenty-Ninth New York Congressional District ("29th District"). The issue before this Court is whether a federal judge can order the Governor to schedule the election sooner, at a time the Court believes best.
A vacancy now exists in the 29th District because the incumbent Congressman, Eric J. Massa, resigned his office effective March 9, 2010.*fn1 The three plaintiffs, who allege that they are residents and voters in the 29th District, commenced this action seeking declaratory and injunctive relief against David A. Paterson, the Governor of New York ("Governor"). In sum, plaintiffs seek a mandatory injunction from this Court directing the Governor to call a special election to fill the vacancy in the 29th District.
When the action was originally filed, on May 3, 2010, the Governor had not issued a formal proclamation for a special election and there had been published reports that he was disinclined to do so.
On May 12, 2010, however, while the action was pending, and just prior to the date set for the Governor to file his responses to plaintiffs' injunction motion, the Governor announced in a press release that he would issue a special election proclamation in October, for a special election to be held on November 2, 2010, the same date as the next general election.
Plaintiffs rely, in part, on Article I, § 2, clause 4 of the United States Constitution, which states that "[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." Plaintiffs now contend that, despite the Governor's stated intention to proclaim a special election this fall, the action is not moot, because the Governor has not formally issued a proclamation for a special election. Plaintiffs contend that this Court should direct him to do so forthwith, so that the special election could be held as soon as possible and well before the general election on November 2. Plaintiffs contend that their constitutional rights to due process and equal protection and their rights under the First Amendment are being violated by the Governor's delay in issuing the proclamation for a special election.
The date the Governor issues the proclamation or call for a special election is critical because New York law provides a very narrow window within which such an election must be held after issuance of the proclamation. Section 42(3) of the New York Public Officers Law provides that if a vacancy occurs in the House prior to July 1, and if a special election is called to fill that vacancy, it must be held no more than forty days nor sooner than thirty days from the date of issuance of the proclamation. Plaintiffs contend that this Court should compel the Governor to issue the proclamation now, so that the election can be held within the next thirty to forty days. In a nutshell, the Governor contends that he intends to issue the proclamation for a special election and, therefore, that he has fulfilled, or will fulfill, his duties under Article I, § 2, clause 4 of the United States Constitution.
The Governor further contends that the Constitution vests discretion in the Governor as to the timing of issuance of the proclamation for a special election. The Governor contends that Article I, § 4, clause 1 of the United States Constitution, and a federal statute, at 2 U.S.C. § 8(a), provide that the times, places and manner of holding elections for representatives shall be prescribed by the various state legislatures, and that New York law has vested discretion in the Governor as to when a special election may be called. See Pub. Off. Law § 42(3). So, the issue now is whether this Court can mandate that the Governor call a special election forthwith, or at least sooner than the time selected by the Governor for holding the special election. Under the circumstances presented here, I do not believe that such a mandatory injunction against the Governor is warranted.
I. Preliminary Injunction Standards
The Court of Appeals for the Second Circuit has explained that,
[i]n general, the district court may grant a preliminary injunction if the moving party establishes (1) irreparable harm and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving party.
Lynch v. City of New York, 589 F.3d 94, 98 (2d Cir. 2009) (internal quotation marks omitted).
"However, a plaintiff cannot rely on the 'fair ground for litigation' alternative in challenging 'governmental action taken in the public interest pursuant to a statutory or regulatory scheme.'" Monserrate v. New York State Senate, 599 F.3d 148, 154 (2d Cir. 2010) (quoting Plaza Health Labs., Inc. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)). In such cases, the moving party must establish a likelihood of success on the merits. Id.
The bar is raised even higher where, as here, the requested injunction is mandatory in nature--in other words, where the movants seek to compel, rather than prohibit, governmental action. A "district court may enter a mandatory preliminary injunction against the government only if it determines that, in addition to demonstrating irreparable harm, the moving party has shown a 'clear' or 'substantial' likelihood of success on the merits." Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006) (citing No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001)).
II. The Merits of Plaintiffs' Claims
A. Duty to Issue Writ of Election
As stated, Article I of the Constitution provides, in part, that "[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." In New York, that is accomplished by the governor's "proclamation" of a special election. Section 42(3) of the Public Officers Law provides in part that "upon the occurrence of a vacancy in any elective office which cannot be filled by appointment for a period extending to or beyond the next general election at which a person may be elected thereto, the governor may in his discretion make proclamation of a special election to fill such office ... ."
Notwithstanding Article I's use of the mandatory verb "shall," the Governor appears to contend that on the facts of this case, he is not required ...