Tucker v. Board of Elections in the City of New York

S.D. New York

Tucker v. Board of Elections in the City of New York

DecidedMay 5, 2020

Docket1:20-cv-03111

StatusUnknown

This text of Tucker v. Board of Elections in the City of New York (Tucker v. Board of Elections in the City of New York) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tucker v. Board of Elections in the City of New York, (S.D.N.Y. 2020).

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Opinion

AM J E ILO AN AA N RD NT A LRT NT E SH H MW .E A WW . NG M A D S. R AC .. D AABE ZL BR EL AIN LI D, CJ YKR .E RHOFF 600 FIFT NH E A WV A YET ONT RUO 1 KER 0 , AN T NHTE F E Y R L WS OO A YOCT K OR E L RF KA EW L 1 L 0E 0R 20 C ENTER E SM H CM D A OA A R U V V TL I E . D K YF AB R P TEE R ORE A VM M G IAA CE HNN R

H D O E KLA A A. IAL N TZ HAI NR E EBDL. R ERL J ITE NI . H E WK EB

S O RE F .RR . OS NM W SAS EA YIT NLN LE FS OI EON R LN D FT wAE wXL: : w ( ( .2 2 e1 1 c2 2 b) ) a 7 7 la6 6 w3 3 .- - c5 5 o0 0 m0 00 1 USDC SDNY ANDRN AEI NWC A MK K N B AD. O XJ AOU S BNR ED UL LA RA VN RH ED A RL

DEBRA L. GREENBERGER DOCUMENT Z SAO ME S SA HL AZ PM IRA ON ELECTRONICALLY FILED DOC #: DATE FILED: 05/05 /2020 May 5, 2020 By ECF Hon. Valerie E. Caproni MEMO ENDORSED United States District Court Southern District of New York 40 Foley Square New York, New York 10007 Re: Tucker, et al. v. Bd. of Elections in the City of N.Y., et al., No 1:20-cv-03111 Dear Judge Caproni: We write on behalf of Plaintiffs in the above-referenced action in response to the Court’s Order to Show Cause (Dkt. 32). In light of critical new information disclosed by Defendant New York City Board of Elections (“NYCBOE”) to Plaintiffs this afternoon, Plaintiffs now respectfully request that the Court enter a temporary restraining order (“TRO”) to preserve the status quo by ordering the NYCBOE to halt printing and distribution of the absentee ballots for the 73rd State Assembly District Democratic primary election. Earlier today, Plaintiffs served the Court’s Order to Show Cause and Plaintiffs’ related papers on the NYCBOE via email. See Ex. A at 3–4. Plaintiffs then asked the NYCBOE’s counsel to clarify when the NYCBOE intended to print the ballots for the District 73 Democratic primary election. See id. at 2. In response, the NYCBOE General Counsel informed Plaintiffs for the first time that military ballots for the District 73 primary “are being printed and have to be distributed by Friday, May 8, 2020” and “Absentee and Special ballots” are to be printed “as soon thereafter as practicable.” Id. at 1–2. Absent a Court order preserving the status quo and directing the ballots not to be printed, there is a substantial risk that Plaintiffs’ constitutional rights to cast their votes effectively and politically associate with Cameron Koffman, their candidate of choice, will be irreparably violated before the Court has the opportunity to consider the merits of Plaintiffs’ preliminary injunction motion. See Garcia v. Yonkers School Dist., 561 F.3d 97, 107 (2d Cir. 2009) (“The purpose of a temporary restraining order is to preserve an existing situation in statu EMERY CELLI BRINCKERHOFF & ABADY LLP Page 2 quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.”) (citation omitted). For all the reasons set forth in our brief in support of Plaintiff’s motion for a preliminary injunction (Dkt. 28), Plaintiffs are entitled toa TRO. See Sterling v. Deutsche Bank. Trust Co., 368 F. Supp. 3d 723, 726 (S.D.N.Y. 2019) (it is well settled in the Second Circuit that the standards for granting a TRO and a preliminary injunction are “identical”) (citations omitted). Plaintiffs respectfully request that the Court grant Plaintiffs’ TRO and order the NYCBOE to halt the printing and distribution of any absentee ballots for the June 23, 2020 Democratic primary election for the 73rd State Assembly District.

Respectfully submitted, /s/ Richard D. Emery Samuel Shapiro Nick Bourland

Encl. Ex. A— May 5, 2020 email exchange with NYCBOE counsel c. Stephen Kitzinger, Assistant Corporation Counsel, via email Steven H. Richman, General Counsel, NYCBOE, vie email Martin Connor, attorney for Dan Quart, via email N.Y.S. Office of the Attorney General, via email (service@ag.ny.gov). The parties are directed to appear for a telephonic hearing on Plaintiffs’ request for a TRO on May 7, 2020, at 10:00 A.M. Plaintiffs are responsible for distributing this Order to Defendants immediately. All parties and interested members of the public must attend the hearing by dialing 1-888-363-4749, using the access code 3121171 and the security code 3111. While members of the public are welcome to join the call, they are directed to mute their phone for the duration of the call. Every participant must identify himself or herself each time they speak. If Defendants wish to submit a response before the hearing, they should do so by 5:00 P.M. on May 6, 2020. Counsel for Defendants must file a notice of appearance as soon as possible. SO ORDERED. Date: 05/05/2020

HON. VALERIE CAPRONI UNITED STATES DISTRICT JUDGE

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AM J E ILO AN AA N RD NT A LRT NT E SH H MW .E A WW . NG M A D S. R AC .. D AABE ZL BR EL AIN LI D, CJ YKR .E RHOFF 600 FIFT NH E A WV A YET ONT RUO 1 KER 0 , AN T NHTE F E Y R L WS OO A YOCT K OR E L RF KA EW L 1 L 0E 0R 20 C ENTER E SM H CM D A OA A R U V V TL I E . D K YF AB R P TEE R ORE A VM M G IAA CE HNN R

H D O E KLA A A. IAL N TZ HAI NR E EBDL. R ERL J ITE NI . H E WK EB

S O RE F .RR . OS NM W SAS EA YIT NLN LE FS OI EON R LN D FT wAE wXL: : w ( ( .2 2 e1 1 c2 2 b) ) a 7 7 la6 6 w3 3 .- - c5 5 o0 0 m0 00 1 USDC SDNY ANDRN AEI NWC A MK K N B AD. O XJ AOU S BNR ED UL LA RA VN RH ED A RL

DEBRA L. GREENBERGER DOCUMENT Z SAO ME S SA HL AZ PM IRA ON ELECTRONICALLY FILED DOC #: DATE FILED: 05/05 /2020 May 5, 2020 By ECF Hon. Valerie E. Caproni MEMO ENDORSED United States District Court Southern District of New York 40 Foley Square New York, New York 10007 Re: Tucker, et al. v. Bd. of Elections in the City of N.Y., et al., No 1:20-cv-03111 Dear Judge Caproni: We write on behalf of Plaintiffs in the above-referenced action in response to the Court’s Order to Show Cause (Dkt. 32). In light of critical new information disclosed by Defendant New York City Board of Elections (“NYCBOE”) to Plaintiffs this afternoon, Plaintiffs now respectfully request that the Court enter a temporary restraining order (“TRO”) to preserve the status quo by ordering the NYCBOE to halt printing and distribution of the absentee ballots for the 73rd State Assembly District Democratic primary election. Earlier today, Plaintiffs served the Court’s Order to Show Cause and Plaintiffs’ related papers on the NYCBOE via email. See Ex. A at 3–4. Plaintiffs then asked the NYCBOE’s counsel to clarify when the NYCBOE intended to print the ballots for the District 73 Democratic primary election. See id. at 2. In response, the NYCBOE General Counsel informed Plaintiffs for the first time that military ballots for the District 73 primary “are being printed and have to be distributed by Friday, May 8, 2020” and “Absentee and Special ballots” are to be printed “as soon thereafter as practicable.” Id. at 1–2. Absent a Court order preserving the status quo and directing the ballots not to be printed, there is a substantial risk that Plaintiffs’ constitutional rights to cast their votes effectively and politically associate with Cameron Koffman, their candidate of choice, will be irreparably violated before the Court has the opportunity to consider the merits of Plaintiffs’ preliminary injunction motion. See Garcia v. Yonkers School Dist., 561 F.3d 97, 107 (2d Cir. 2009) (“The purpose of a temporary restraining order is to preserve an existing situation in statu EMERY CELLI BRINCKERHOFF & ABADY LLP Page 2 quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction.”) (citation omitted). For all the reasons set forth in our brief in support of Plaintiff’s motion for a preliminary injunction (Dkt. 28), Plaintiffs are entitled toa TRO. See Sterling v. Deutsche Bank. Trust Co., 368 F. Supp. 3d 723, 726 (S.D.N.Y. 2019) (it is well settled in the Second Circuit that the standards for granting a TRO and a preliminary injunction are “identical”) (citations omitted). Plaintiffs respectfully request that the Court grant Plaintiffs’ TRO and order the NYCBOE to halt the printing and distribution of any absentee ballots for the June 23, 2020 Democratic primary election for the 73rd State Assembly District.

Respectfully submitted, /s/ Richard D. Emery Samuel Shapiro Nick Bourland

Encl. Ex. A— May 5, 2020 email exchange with NYCBOE counsel c. Stephen Kitzinger, Assistant Corporation Counsel, via email Steven H. Richman, General Counsel, NYCBOE, vie email Martin Connor, attorney for Dan Quart, via email N.Y.S. Office of the Attorney General, via email (service@ag.ny.gov). The parties are directed to appear for a telephonic hearing on Plaintiffs’ request for a TRO on May 7, 2020, at 10:00 A.M. Plaintiffs are responsible for distributing this Order to Defendants immediately. All parties and interested members of the public must attend the hearing by dialing 1-888-363-4749, using the access code 3121171 and the security code 3111. While members of the public are welcome to join the call, they are directed to mute their phone for the duration of the call. Every participant must identify himself or herself each time they speak. If Defendants wish to submit a response before the hearing, they should do so by 5:00 P.M. on May 6, 2020. Counsel for Defendants must file a notice of appearance as soon as possible. SO ORDERED. Date: 05/05/2020

HON. VALERIE CAPRONI UNITED STATES DISTRICT JUDGE

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