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Marchant v. New York City Board of Elections

United States District Court, Second Circuit

August 16, 2013

GARTH MARCHANT, et al., Plaintiffs,



Plaintiffs, proceeding pro se, seek a preliminary injunction requiring the New York City Board of Elections (the "Board") to place the name of Plaintiff He Gin Lee ("Lee") on the Democratic primary ballot for the office of Mayor of New York City (the "primary ballot"). For the reasons set forth in the remainder of this Opinion, the request is DENIED.


A. He Gin Lee's Mayoral Petition

The following facts are taken from Plaintiffs' Complaint ("Compl."), or from the transcript ("Tr.") of the hearing on the Order to Show Cause held on August 14, 2013 (the "August 14 hearing"). Plaintiffs are New York City voters. (Compl. ¶ 3). Three Plaintiffs are African-American, and five Plaintiffs are Asian-American. ( Id. ¶ 10).[1] Plaintiff Lee is a Democratic candidate for mayor, and the first Korean-American to run for that office. ( Id. ¶¶ 5, 12).

On July 11, 2013, Lee filed a designating petition (the "petition") with the Board in order to be included as a mayoral candidate on the ballot for the Democratic Party primary that is to be held on September 10, 2013. (Tr. 3-4, 44). See generally Rivera-Powell v. New York City Bd. of Elections, 470 F.3d 458, 461-62 (2d Cir. 2006) ("To be placed on a party's primary ballot, New York law requires an individual to submit a designating petition' meeting certain formal requirements. A designating petition comprises petition volumes' (bound groupings of sheets bearing the signatures of registered voters), each with an identification number, and a cover sheet, ' which contains a variety of information including the identification numbers of the petition volumes the candidate is claiming." (internal citations omitted)). Lee's petition contained approximately 6, 000 signatures, along with the required cover sheet. (Compl. ¶¶ 5-6; July 13, 2013 Lee Cover Sheet).[2] The next day, on July 12, 2013, the Board mailed Lee a letter confirming that it had received the petition and stating its understanding that he was a Democratic candidate for mayor. (Tr. 19, 41-42; July 12, 2013 Board of Elections Letter).[3]

On July 15, 2013, the Board sent Lee a non-compliance letter stating that "the name of the party [i.e., his political party affiliation] was omitted from the cover sheet." (Compl. ¶ 7; see also July 15, 2013 Board of Elections Letter; Tr. 4). Lee was given an opportunity to provide that information, and did so in an amended cover sheet, which he filed with the Board on July 17, 2013. ( Id. ¶¶ 8-9; July 17, 2013 Lee Amended Cover Sheet). The amended cover sheet, however, contained a different error. It failed to comply with Primary Rule C4, which requires an amended cover sheet to contain a signed and dated authorization that states: "This is to certify that I am authorized to file this amended cover sheet." See Designating Petition and Opportunity to Ballot Petition Rules for the September 10, 2013 Primary Election, promulgated by the Board of Elections in the City of New York, and pre-cleared by the U.S. Attorney General on June 11, 2013 (the "Primary Rules").[4] Consequently, on July 19, 2013, the Board invalidated Lee's amended petition, and notified Lee that his name would be removed from the primary ballot because the amended cover sheet did not contain "the authentication required by Rule C4." (Compl. ¶ 9; July 19, 2013 Board of Elections Letter).

B. The Instant Litigation

Plaintiffs commenced this action on August 6, 2013, by filing, in addition to the Complaint, a proposed Order to Show Cause and Preliminary Injunction. (Dkt. #1, 2).[5] On August 7, 2013, the Court issued an Order to Show Cause, directing the Board to appear for a show cause hearing on August 14, 2013, to demonstrate why the requested relief should not be granted. (Dkt. #4). A hearing and oral argument was held before the Court on August 14, 2013, and was attended by Plaintiffs and counsel for the Defendant.


A. Legal Standards

The issue presently before the Court is whether to grant Plaintiffs' request for injunctive relief. If a party seeks injunctive relief pursuant to which the Court commands some "positive action, " it is properly considered a mandatory injunction, and is subject to a more exacting standard than a preliminary injunction. Tom Doherty Assoc., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995); see also Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985); compare Latino Officers Ass'n, New York, Inc. v. City of New York, 196 F.3d 458, 462 (2d Cir. 1999) (explaining that preliminary injunctions, which maintain the status quo before a trial on the merits, require the moving party to demonstrate irreparable harm in the absence of an injunction and a likelihood of success on the merits). Indeed, mandatory injunctions should be issued "only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Doherty, 60 F.3d at 34 (internal quotations and citations omitted); see also SEC v. Unifund SAL, 910 F.2d 1028, 1039 (2d Cir. 1990) (holding that an injunction going beyond the preservation of the status quo requires "a more substantial showing of likelihood of success").

Plaintiffs seek a mandatory injunction by asking the Court to order the Board to place Lee's name on the primary ballot, which it is currently not. The Court therefore considers whether Plaintiffs have demonstrated a "substantial ...

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