Gallagher v. New York State Board of Elections
- Analisa Torres
- 1:20-cv-05504
- U.S. District Court · Southern District of New York
- 19
In Gallagher v. New York State Board of Elections, Judge Torres granted amendment but denied expanded election injunction for lack of standing.
The order directly affected the plaintiffs seeking broader absentee-ballot protections and permission to add Alessandra Biaggi; it left the earlier August 3 order in place for the June 23 primary but denied expansion of the injunction.
What happened
In Gallagher v. New York State Board of Elections, voters and candidates challenged New York’s requirement that mailed absentee ballots receive timely postmarks. After problems during the June 2020 primary, they asked the court to expand an earlier order to cover the November 2020 election and future elections.
The plaintiffs sought broader rules requiring election boards to send absentee materials promptly, count otherwise valid ballots without regard to postmarks, or give voters notice and a chance to correct late or missing postmarks. They also asked to add State Senator Alessandra Biaggi as a plaintiff.
Judge Analisa Torres granted permission to add Biaggi but denied the request to expand the preliminary injunction. The court ruled that the plaintiffs had not shown the required concrete and likely future harm, and that Maria Lazewatsky had not shown that her alleged harm was caused by the defendants or could be fixed by the requested order.
The detailed version
- Gallagher v. New York State Board of Elections · No. 1:20-cv-05504
- Analisa Torres
- Oct. 23, 2020
Background
The plaintiffs challenged New York Election Law § 8-412(1), which requires certain absentee ballots received after Election Day to bear a postmark dated no later than Election Day. The plaintiffs previously challenged the same requirement after the June 23, 2020 primary, when some ballots arrived without postmarks or with late postmarks. On August 3, 2020, the court issued a preliminary injunction covering that primary and directed the New York State Board of Elections to tell local boards to count certain absentee ballots.
As the November 3, 2020 general election approached, the plaintiffs sought to expand that injunction. They asked the court to extend it to all upcoming elections; require local boards to send absentee-ballot applications and ballots promptly after voters requested them; and require local boards to count otherwise valid absentee ballots without regard to whether they had postmarks. Alternatively, they sought advance notice and an opportunity to correct absentee ballots with late or missing postmarks. They also sought permission to add Alessandra Biaggi as a plaintiff.
Amending the Complaint
The court granted the request to file a second amended complaint adding Biaggi. It explained that permission to amend a complaint should generally be freely given and that the defendants had not shown bad faith, undue delay, undue prejudice, or another sufficient reason to deny the amendment.
Standing
Standing is the constitutional requirement that a plaintiff show a concrete injury, a connection between that injury and the defendant’s conduct, and a likelihood that the requested relief would remedy the injury. The court held that standing had to be assessed separately for the new relief sought, even though the plaintiffs had standing when the court issued the August 3 order.
The court held that the voter plaintiffs had not shown a substantial risk that their votes would be rejected in the general election. Most had not said that they intended to mail their absentee ballots, much less mail them close to Election Day. They could instead vote in person, drop off ballots at designated locations, or mail ballots early enough to avoid the postmark rule. The non-party declarants likewise had not explained how they planned to vote in the general election.
The court also held that the candidate plaintiffs had not shown the required future injury. Patel was not on the November ballot. Gallagher was on the ballot, but her race was uncontested, and the record did not show that the postmark requirement was likely to cause significant ballot invalidation in her race. The court also found Biaggi’s anticipated injury speculative because the record did not show that postal problems affecting parts of New York City during the primary would affect her district. The court noted that New York had adopted changes intended to reduce the risk of ballot rejection, including earlier absentee-ballot applications, notice and correction procedures for certain defects, counting some ballots received the day after Election Day without a postmark, and additional ballot drop-off options.
The court separately considered Lazewatsky, who said she planned to vote in person because she feared that an absentee ballot might not be counted. Even assuming that voting in person during the pandemic created an injury, the court held that she had not shown traceability or redressability. Her declaration tied her decision to the problems in the June primary, not to defendants’ conduct concerning the general election. She also had not said that she would vote by mail if the court granted the requested relief; instead, she said she would vote in person regardless. The court therefore concluded that Lazewatsky, like the other plaintiffs, lacked standing.
Disposition
Judge Analisa Torres granted the plaintiffs’ request for leave to file a second amended complaint and denied the plaintiffs’ motion to expand the preliminary injunction. The order did not state that the action itself was dismissed.
Read the full 19-page opinion on CourtListener, the free public archive maintained by the Free Law Project.