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In Silk Sock SDNY Slugfest Koffman Supporters Insist They Have Standing As Voters Writ Large

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, May 10 – Cameron Koffman wants to unseat Assemblyman Dan Quart on the Upper East Side of Manhattan.

 But Koffman most recently voted in Connecticut. Alongside a New York State lawsuit, two Koffman supporters are the named plaintiffs in a case against the New York City Board of Elections. 

 On May 7 a hearing was held before U.S. District Court for the Southern District of New York Judge Valerie E. Caproni. Inner City Press covered it, below.

 Now, the TRO has been re-requested, and argued for on Sunday, May 10: "Re: Tucker v. Bd. of Elections in the City of New York, No. 20-cv-03111 (VEC) Dear Judge Caproni: On behalf of Plaintiffs in the above-referenced action, we write to briefly respond to the New York City Board of Elections (“NYCBOE”) Defendants’ letter May 9, 2020 letter (Dkt. 42). First, the NYCBOE’s claim that Plaintiffs do not have standing to assert their claims as “voters writ large”—a position for which they provide no authority whatsoever—is contrary to Supreme Court precedent. The Supreme Court has long recognized that “[t]he impact of candidate eligibility requirements on voters implicates basic constitutional rights.” Anderson v. Celebrezze, 460 U.S. 780, 786 (1983) (emphasis added). It is disingenuous for the NYCBOE to argue that Plaintiffs do not have standing because they are mere voters without bothering to confront this clear Supreme Court precedent. Second, and similarly, the NYCBOE continues to ignore the three-part balancing test created by the Supreme Court nearly four decades ago in Anderson and further refined in Burdick. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Anderson, 460 U.S. at 789. The Anderson-Burdick balancing test “serves as a single standard for evaluating challenges to voting restrictions,” Green Party of Tenn. v. Hargett, 791 F.3d 684, 692 (6th Cir. 2015), and the NYCBOE cannot simply will it away. The test must be applied here because Plaintiffs challenge a law that burdens their “overlapping” rights “to associate for the advancement of political beliefs” and to “cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23, 30 (1968).

Under the required Anderson-Burdick analysis, the Court “must first determine the character and severity of the alleged burdens” on Plaintiffs’ rights, including their associational rights.” Green Party of N.Y. State v. New York State Bd. of Elections, 389 F.3d 411, 420 (2d Cir. 2004) (applying Anderson-Burdick). Here, the burden is severe—Plaintiffs are being completely deprived of their ability to associate with and cast their votes effectively for their qualified candidate of choice. The Court must then “consider the legitimacy and strength of the rationale put forward by [the NYCBOE], and determine whether it justifies the extent of the burden on Plaintiffs’ . . . rights under the applicable framework.” Yang v. Kellner, 20 Civ. 3325, 2020 WL 2129597, at *8 (May 5, 2020) (applying Anderson-Burdick to grant a preliminary injunction brought by New York Democratic primary voters). The NYCBOE and Mr. Quart still stubbornly refuse to assert a single state interest in support of their position that Cameron Koffman must be excluded from the ballot."

 From May 7: Judge Caproni asked the plaintiffs' lawyers, Are you conceding that Mr. Koffman will lose in state court? 

   The answer: No, it's that the plaintiffs want the opportunity to vote for Mr. Koffman. 

  Judge Caproni asked, So the last work is likely to be the Appellate Division, next week?  

 They answered that the Appellate Division has jurisdiction over facts, like the question of residency.  

  Judge Caproni said, Thanks for that lesson in appellate practice, it was not what I worked on. 

   Plaintiff's lawyer Richard Emery said, We will be back to this court if we have to, if you do not issue a TRO today. The absentee ballots will be critical since many will not come out. The critical moment is approaching, when absentee ballots are being printed.

 Defendants' (NYC's) lawyer Kitzinger said, Currently being printed are absentee ballots and *applications* for absentee ballots, of which 5 million will have to be mailed out.  

 Plaintiffs' lawyers cited SDNY Judge Analisa Torres decision "two days ago" - the Andrew Yang v Board of Ed case which Inner City Press covered. 

  Judge Caproni noted, New York law only allows you to have one electoral residence. And he voted in Connecticut.  

 The answer was, It's only that you can't vote in both places.  

At the end Judge Caproni ruled, "WHEREAS Plaintiffs did not dispute BOE's representations and acknowledged that, if the absentee ballots indeed name Mr. Koffman as a candidate, no emergency relief is required at this time; IT IS HEREBY ORDERED that Plaintiffs' motion for a temporary restraining order is DENIED as moot, or, alternatively, for the lack of any injury. The Clerk of Court is respectfully directed to terminate docket entry 33. IT IS FURTHER ORDERED that Plaintiffs must submit any supplemental authorities in support of their motion for a preliminary injunction, as set forth during the hearing, no later than 5:00 P.M. on May 7, 2020; Defendants' responses are due by May 9, 2020, at 5:00 P.M. (Signed by Judge Valerie E. Caproni on 5/7/2020)."

 Inner City Press will stay on the case, and on the issues. The case is Tucker et al v. Board of Elections, 20-cv-3111 (Caproni). 


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