Ye v. New York Board of Elections

Background

Ning Ye filed an urgent petition asking for a temporary restraining order, an emergency court order, against the New York Board of Elections concerning the November 3, 2020 presidential election. Ye was proceeding without a lawyer, and the court stated that he is an attorney. He had not filed a complaint.

The court understood Ye to be asking it to stop the Board from continuing to count votes, deduct certain votes from New York’s total, and explain why the court should not order a recount or a new election. Ye alleged that he voted at a Flushing, Queens polling place after completing an affidavit, but later received a letter stating that his ballot was not counted because he had voted at the wrong polling place. He claimed that the Board had invalidated his ballot because he voted for President Donald J. Trump. Shuqin Xu provided an affidavit describing similar events involving her ballot.

Ye also alleged that the Board engaged in election fraud and disenfranchised him and other New Yorkers. The petition referred to several federal statutes and the Equal Protection Clause of the Fourteenth Amendment. The court noted that one cited statute, “42 USC § 1965,” was not a section of the United States Code and that it could not determine which statute Ye intended to cite. The court treated Ye’s reference to 42 U.S.C. § 1974 as a reference to 52 U.S.C. § 20701 because the former had later been codified as the latter.

Legal standard

The court explained that, in the Second Circuit, the standards for a temporary restraining order and a preliminary injunction are the same. A person seeking this extraordinary remedy must show a likelihood of success on the legal claims, likely irreparable harm without the order, that the balance of hardships favors the person seeking relief, and that the public interest would not be harmed.

Court’s analysis

The court first held that Ye’s failure to file a complaint was independently enough to deny the petition. Under Federal Rule of Civil Procedure 3, a civil case begins when a complaint is filed. The court stated that, before a complaint is filed, it lacks authority to grant preliminary emergency relief. Because Ye sought an emergency order without a pleading explaining a legal claim, the court could not determine whether he was likely to succeed.

The court declined to treat Ye’s petition as a complaint. Although people representing themselves generally receive some leniency in how their filings are read, the court said that Ye, because he is an attorney, was not entitled to that special treatment.

The court also considered what would happen if it treated the petition as both a complaint and a request for a temporary restraining order. It concluded that Ye’s allegations were conclusory and speculative and did not explain the legal basis for his claims. He offered no facts showing that the Board rejected his ballot because of his vote for President Trump. He also did not explain why the requested recount, statewide new election, or other remedies were legally available. In addition, he did not show that stopping the Board would remedy the alleged harm, particularly because the petition did not establish that New York was still counting ballots or that the Electoral College had not already voted.

The court further found that Ye had not shown likely irreparable harm, that the balance of hardships favored him, or that the public interest would be served by intervening in a past election based on the limited allegations.

Disposition

Judge John P. Cronan denied Ye’s motion for a temporary restraining order. The Clerk of Court was directed to terminate the motion at Docket Number 1. The court also stated that Ye had to file a complaint by January 11, 2021, to initiate the litigation; if he did not, the court would direct the Clerk to close the case. The opinion did not state that the motion or case was dismissed with or without prejudice.