Gallagher v. New York State Board of Elections

Background

The plaintiffs—voters and candidates in New York’s June 23, 2020 primary election—alleged that election officials were not counting otherwise valid absentee ballots that lacked a postmark dated by June 23. They attributed the missing postmarks to the use of prepaid envelopes provided under the Governor’s executive order and to the United States Postal Service’s failure to postmark many of those envelopes. The plaintiffs asserted constitutional claims against the New York State Board of Elections, identified state election officials, and Governor Andrew M. Cuomo.

Maria D. Kaufer and Ethan Felder, who were candidates for Democratic District Leader in districts in Queens County, moved to intervene five days after the complaint was filed. They asserted similar claims against the existing defendants and sought to add the New York City Board of Elections, Patricia Anne Taylor, and Michael J. Ryan as defendants. The existing plaintiffs did not oppose intervention. The existing defendants did not oppose adding the proposed New York City defendants, but opposed intervention to the extent Kaufer and Felder sought to assert claims against the existing defendants.

Legal standard

Federal Rule of Civil Procedure 24(b) permits a court, in its discretion, to allow a person to intervene when the motion is timely and the person’s claim or defense shares a common question of law or fact with the main action. The court must also consider whether intervention would unduly delay or prejudice the original parties’ rights. Judge Torres noted that courts in the Southern District of New York generally construe permissive intervention liberally.

Analysis

Judge Torres found intervention appropriate. The motion was timely because it was filed shortly after the complaint and shortly after the proposed intervenors alleged that counting had concluded in their races. The court also found that intervention would not significantly delay or prejudice the existing parties. The proposed intervenors filed before any defendant responded to the plaintiffs’ request for preliminary injunctive relief, and their arguments were largely similar to the plaintiffs’ arguments. Although they sought to add new defendants, the court determined that those defendants could be given adequate time to respond without significantly delaying the case.

The court further found a common question of law or fact. Both sets of plaintiffs alleged that officials refused to count absentee ballots lacking postmarks dated by June 23, even though many ballots were not postmarked because they were sent in prepaid envelopes. The court stated that resolving both sets of claims would require determining whether those practices violated the First or Fourteenth Amendment.

Disposition

The court granted the motion to intervene under Rule 24(b). It ordered Kaufer and Felder to promptly notify and serve the proposed New York City defendants, directed those defendants to file their opposition to the request for a preliminary injunction by July 24, 2020, and directed the Clerk to amend the caption and add the New York City Board of Elections, Patricia Anne Taylor, and Michael J. Ryan as defendants. The order did not resolve the underlying constitutional claims or the request for a preliminary injunction.