Walden v. Kosinski

• Court: Court of Appeals for the Second Circuit
• Decided: August 21, 2025
• Docket: 25-764
• Status: Published

Opinion

25-764-cv Walden v. Kosinski

In the United States Court of Appeals For the Second Circuit

August Term, 2024 Argued: April 29, 2025 Decided: May 2, 2025 Opinion Issued: August 21, 2025

No. 25-764-cv ___________________________

JIM WALDEN,

Plaintiff-Appellant,

v.

PETER S. KOSINSKI, as the Co-Chair of the New York State Board of Elections, HENRY T. BERGER, as the Co-Chair of the New York State Board of Elections, ESSMA BAGNUOLA, as a Commissioner of the New York State Board of Elections, ANTHONY J. CASALE, as a Commissioner of the New York State Board of Elections, KRISTEN ZEBROWSKI STAVISKY, as Co-Executive Director of the New York State Board of Elections, RAYMOND J, RILEY, as Co-Executive Director of the New York State Board of Elections, NEW YORK CITY BOARD OF ELECTIONS,

Defendants-Appellees.

Before: LYNCH, LEE, and NATHAN, Circuit Judges.

Plaintiff-Appellant Jim Walden appeals an interlocutory order entered in the United States District Court for the Eastern District of New York (DeArcy Hall, J.) denying his motion for a preliminary injunction. Walden sought to enjoin officials

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of the New York State Board of Elections (the “State Board defendants”), as well as the New York City Board of Elections (the “City Board”), from prohibiting him from using the word “Independence” or “Independent” as a part of the name of an independent body through which Walden seeks to run as a prospective nominee for the 2025 New York City mayoral election. See N.Y. Elec. Law §§ 2- 124(2) and 6-138(3)(f) (collectively, the “Naming Provisions”). Walden contends that, as applied to him, the Naming Provisions violate his First Amendment rights to speech and association.

The district court denied Walden’s motion, concluding that he failed to demonstrate a likelihood of success on the merits of his First Amendment claim or show irreparable harm in the absence of the requested injunction. On appeal, Walden argues that the district court erred in finding that the Naming Provisions are reasonable, nondiscriminatory regulations that impose no more than a minimal burden on his First Amendment rights. Walden argues the laws constitute an impermissible content-based restriction on core political speech. We conclude that the district court did not abuse its discretion in denying the motion for a preliminary injunction. Accordingly, we AFFIRM the judgment of the district court.

JOHN R. CUTI, Cuti Frisch PLLC, New York, NY, for Plaintiff-Appellant.

DANIEL S. MAGY, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Ester Murdukhayeva, Deputy Solicitor General, on the brief), for Letitia James, Attorney General, State of New York, New York, NY, for State Board Defendants-Appellees.

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EUNICE C. LEE, Circuit Judge:

Plaintiff-Appellant Jim Walden appeals an interlocutory order entered in the

United States District Court for the Eastern District of New York (DeArcy Hall, J.)

denying his motion for a preliminary injunction. Walden sought to enjoin officials

of the New York State Board of Elections (the “State Board defendants”), as well

as the New York City Board of Elections (the “City Board”), from prohibiting him

from using the word “Independence” or “Independent” as a part of the name of

an independent body through which Walden seeks to run as a prospective

nominee for the 2025 New York City mayoral election. See N.Y. Elec. Law §§ 2-

124(2) and 6-138(3)(f) (collectively, the “Naming Provisions”). Walden contends

that, as applied to him, the Naming Provisions violate his First Amendment rights

to speech and association.

The district court denied Walden’s motion, concluding that he failed to

demonstrate a likelihood of success on the merits of his First Amendment claim or

show irreparable harm in the absence of the requested injunction. On appeal,

Walden argues that the district court erred in finding that the Naming Provisions

are reasonable, nondiscriminatory regulations that impose no more than a

minimal burden on his First Amendment rights. Walden argues the laws

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constitute an impermissible content-based restriction on core political speech. We

conclude that the district court did not abuse its discretion in denying the motion

for a preliminary injunction. Accordingly, we AFFIRM the judgment of the

district court.

BACKGROUND

I. Statutory Overview

Under New York State’s election law, a prospective candidate for public

office can obtain access to the general election ballot as the nominee of either a

political party or an independent body. A political party is an organization whose

candidates for Governor of New York and President of the United States, in their

respective preceding elections, each received at least two percent of the total votes

cast or 130,000 votes, whichever is greater. N.Y. Elec. Law § 1-104(3). The State of

New York recognizes four political parties: Democratic, Republican, Conservative,

and Working Families. Political parties are given automatic access to the ballot for

national, statewide, and local elections, without the need to solicit and submit

signatures from registered voters. See id. §§ 6-104, 6-110, 6-120. Political parties

are also automatically listed on New York’s voter registration form. See App’x at

105. On this form, voters are given the option to enroll as a member of a political

party or register as an “independent voter.” Id.

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An independent body is defined as “any organization or group of voters

which nominates a candidate or candidates for office to be voted for at an election,

and which is not a [political] party.” N.Y. Elec. Law § 1-104(12). Unlike a political

party, an independent body is not given automatic access to the ballot at elections.

Rather, to run as the nominee of an independent body, a prospective candidate

must obtain a prescribed number of signatures from registered voters on an

independent nominating petition, submit that petition to the local board of

elections, and have the petition deemed valid by the local board of elections. See

id. §§ 6-138, 6-142, 6-144, 6-158. Independent nominating petitions “for an office

or position to be voted for wholly within the city of New York,” such as mayor,

must be filed with the City Board. Id. § 6-144. Any challenge to a local board of

elections’ validity determination regarding a nominating petition must be filed in

the state supreme court in the relevant judicial district. Id. § 16-102(1).

As relevant to this appeal, New York’s election law places certain

restrictions on the naming of political parties and independent bodies. Section 2-

124(2) prohibits prospective political parties from adopting a name that is “similar

to or likely to create confusion with” the name of an existing party or independent

body. Id. § 2-124(2). Since 1954, section 2-124(2) has also prohibited political

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parties from using the words “American,” “Empire State,” “United States,”

“National,” or “New York State” in their name. Id. In 2022, the New York State

Legislature amended the provision to add the words “Independence” and

“Independent” to the list of prohibited words. See 2022 N.Y. Sess. Laws ch. 671.

The Legislature was ostensibly motivated to make this amendment to “remove a

major source of voter confusion” after “evidence suggest[ed] that many voters

who [were] registered as members of the” now-defunct Independence Party of

New York, a political party that existed from 1991 to 2020, “d[id] not realize [that]

they [were] registered in the Party,” as “they intended to register as independent

(i.e. unaffiliated) voters but were confused by the name of the Independence

Party.” N.Y. Sponsor Mem., 2021 S.B. S1851A.

While section 2-124(2) governs the names of political parties, section 6-138(3)

governs the names of independent bodies. See N.Y. Elec. Law § 6-138(3). Section

6-138(3)(a) provides that prospective independent bodies are barred from

adopting a name that includes the “name or part of the name,” or “create[s] the

possibility of confusion with the . . . name of a then existing political party” or the

name that was previously selected by another independent body. Id. Although

the provision does not set forth any restrictions on specific words, section 6-

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138(3)(f) provides, in part, that the name of an independent body “shall also

conform to the requirements of this chapter with respect to the names . . . permitted

to be selected by a [political] party.” Id. § 6-138(3)(f). As a result, though no court

has ruled as such, the parties in this case agree that section 2-124(2)’s naming

restrictions on political parties also extend to independent bodies. See Appellant’s

Br. at 8–9; Appellees’ Br. at 7; see also Healy-Case v. Garcia, 152 N.Y.S.3d 265, 266

(Erie Sup. Ct. 2021) (assuming, without discussion, that section 6-138(3)(f) extends

section 2-124’s prohibitions to independent bodies).

A prospective candidate for an independent body can obtain petition

signatures from any registered voter, whether enrolled in a political party or not.

See N.Y. Elec. Law § 6-138(1). A candidate’s nominating petition must state the

name of the independent body circulating the petition. Id. § 6-140(1)(a). The

nominating petition requires that every person who signs the petition attest: “I do

hereby nominate the following named person . . . as a candidate . . . for election to

public office . . . to be voted for at the election to be held on the ____ day of ____,

20__, and that I select the name ______ . . . as the name of the independent body

making the nomination.” Id. The name chosen for an independent body in a valid

nominating petition becomes the name of the independent body that is printed on

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the ballot. See App’x at 99; see also N.Y. Elec. Law § 7-104(7) (“The ballot shall have

printed upon it in black ink . . . at the head of the column or the beginning of the

row containing the names of candidates, the name of the party or independent

body and the designating letter of the row or column.”).

II. Factual and Procedural History

On October 24, 2024, Walden publicly announced that he was running to

become the next mayor of New York City. Walden, who had not been enrolled in

any political party since 2006, sought the nomination of an independent body that

he and his supporters wished to name the “Independence Party.” App’x at 7.

Walden asserted that the name “Independence Party” expressed his and his

supporters’ “desire for political change and [to] associate together to form a viable

alternative to the major political parties,” i.e., the Democratic and Republican

parties. Id. at 8.

On January 6, 2025, Walden filed a complaint against the State Board

defendants and the City Board (collectively, the “Defendants”). In the complaint,

Walden alleged that any enforcement of the Naming Provisions to prohibit him

from using the words “Independent” or “Independence” in the name of his

prospective independent body would violate his First Amendment rights to

freedom of speech and association, as well as the Equal Protection Clause of the

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Fourteenth Amendment by treating him and his supporters worse than the major

political parties. On January 15, 2025, Walden moved for a preliminary injunction

premised solely on his First Amendment claim. Specifically, Walden contended

that the Naming Provisions constitute a “content-based restriction of core political

speech [that] unjustifiably imposes a severe burden on [his] fundamental First

Amendment rights.” Pl.’s Mem. in Support of Mot. for Prelim. Inj. at 1, Walden v.

Kosinski, 777 F. Supp. 3d 120 (E.D.N.Y. 2025) (No. 25-cv-72), Dkt. No. 15-1. He

therefore sought to enjoin the Defendants from enforcing the Naming Provisions

against him, and, more specifically, from rejecting his prospective nominating

petition with the name “Independence Party” therein. See id. at 2.

On January 31, 2025, the State Board defendants opposed the motion for a

preliminary injunction, arguing that Walden’s claims against them were non-

justiciable, given that Walden lacked standing to sue them because the City Board

would be the body to determine the validity of his petition and that the State

Board, moreover, had sovereign immunity. The State Board defendants also

argued that Walden could not otherwise establish entitlement to his requested

relief. That same day, counsel for the City Board sent a letter to the district court

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stating that “[t]he Board is not taking a position in this litigation,” and asked to

“be excused from further participation in th[e] matter.” App’x at 20.

At a hearing regarding Walden’s motion, the State Board defendants

asserted that while it is the State Board’s position that the names of independent

bodies must comply with section 2-124(2)’s naming restrictions for political

parties, the State Board’s interpretation about “the applicability of Section 2-124

. . . to 6-138 [regarding independent bodies] will not be enforced as against local

Boards of Election, and also as against [] Mr. Walden’s candidacy.” Id. at 145. On

March 17, 2025, in response to the district court’s directive to explain its position

on the enforcement of the Naming Provisions against Walden, the City Board filed

a letter “restat[ing] that it takes no position with regard to the claims in this

litigation – that is, the constitutionality of the [Naming Provisions].” Id. at 155.

The City Board stated that it is a “ministerial agency” and “lacks the authority to

take any position on the constitutionality of the law,” while also acknowledging

that it “appears to be a proper defendant here, insofar as it will be required to

determine the overall validity of [Walden]’s [] independent nominating petition,

should it be duly filed with the agency for review.” Id. (emphases omitted). The

City Board further explained that “[i]f the [Naming Provisions] remain[] in effect,

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the City Board will be obligated to apply such law as written, consistent with the

State’s position on the law. If the law is repealed or otherwise rendered

unenforceable, the City Board will not apply the [Naming Provisions] to any duly

filed independent nominating petitions.” Id.

On April 1, 2025, the district court issued a text order denying Walden’s

motion for a preliminary injunction and indicated that a memorandum and order

would follow. 1 The district court filed its memorandum opinion and order on

April 5, 2025. In it, the district court found that although “the State B[oard] does

not make the determination about the approval or rejection of [Walden]’s

independent nominating petition,” because the State Board “possesses general

enforcement powers under New York election law,” it “has the authority to coerce

the City B[oard] into enforcing the [Naming Provisions] against [Walden].”

Walden, 777 F. Supp. 3d at 128–29. Therefore, the district court concluded that

Walden had standing to sue the State Board defendants. Id. at 129. 2 However, the

district court held that Walden was not entitled to a preliminary injunction because

1 Walden filed his notice of appeal on the same day the district court issued its text order denying his motion for a preliminary injunction. 2 The district court did not expressly address the State Board defendants’ sovereign

immunity defense. See generally Walden, 777 F. Supp. 3d 120.

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he failed to establish a likelihood of success on the merits of his First Amendment

claim. See id. at 129–36.

Applying the Anderson-Burdick framework generally applicable to First

Amendment challenges to state election laws, 3 the district court determined that

the Naming Provisions were not subject to review under strict scrutiny, but rather

a more deferential standard, because the law neither imposed a severe burden on

core political speech nor amounted to an unconstitutional content-based

restriction on speech. See id. Specifically, the district court found that the Naming

Provisions did not prevent Walden from spreading his “core political message”

about “independence from the major parties” to his supporters and voters at large,

nor did it “proscribe[] his ability to engage in petition circulating activity.” Id. at

131–32. The district court further found that a nominating petition is a nonpublic

forum and as such, the Naming Provisions only needed to be reasonable and

viewpoint neutral to withstand constitutional scrutiny. See id. at 135–36.

Under the more deferential standard of review, the district court concluded

that the Naming Provisions were reasonable because the State’s articulated

3 The Anderson-Burdick framework derives from the Supreme Court cases Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). The application of this framework to cases such as the present one is addressed in further detail below.

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interests in preventing voter confusion sufficiently justified the Naming

Provisions’ enforcement. See id. at 133–34. The district court also determined that

because the prohibition against using the words “Independence” and

“Independent” applied equally to political parties and independent bodies, the

Naming Provisions were viewpoint neutral. Id. at 136. The district court

ultimately held that Walden failed to show a likelihood of success on the merits of

his claim that, as applied to him, the Naming Provisions violate the First

Amendment—a determination that also prevented Walden from showing a

likelihood of irreparable harm in the absence of his requested injunctive relief. Id.

Walden appealed. 4 Following oral argument, we issued an order on May 2,

2025, summarily affirming the district court’s ruling and indicating that an opinion

would follow. Walden v. Kosinski, No. 25-764 (2d Cir. May 2, 2025), Dkt. No. 44.

We now write to explain our decision.

4The City Board elected not to participate in this appeal. Thus, the arguments considered here are those made by Walden and the State Board defendants. Accordingly, this opinion uses “Appellees’ Brief” to refer to the brief submitted by the State Board defendants.

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DISCUSSION

I. Standard of Review

We review questions of Article III standing and sovereign immunity de novo.

See Lacewell v. Off. of Comptroller of Currency, 999 F.3d 130, 140 (2d Cir. 2021)

(standing); Rogers v. Petroleo Brasileiro, S.A., 673 F.3d 131, 136 (2d Cir. 2012)

(sovereign immunity). “We review a district court’s decision to deny a preliminary

injunction for abuse of discretion.” Libertarian Party of Conn. v. Lamont, 977 F.3d

173, 176 (2d Cir. 2020). “A district court has abused its discretion if it has (1) based

its ruling on an erroneous view of the law, (2) made a clearly erroneous assessment

of the evidence, or (3) rendered a decision that cannot be located within the range

of permissible decisions.” Warren v. Pataki, 823 F.3d 125, 137 (2d Cir. 2016) (quoting

Lynch v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009)).

II. Applicability of Section 2-124(2) to Walden’s Nominating Petition

Before considering the merits of Walden’s appeal, we first address a

threshold matter: whether the naming restrictions for political parties under section

2-124(2) apply to Walden, as a potential nominee of an independent body, such that

there is a basis for a constitutional challenge here. By its plain text, section 2-124(2),

as relevant here, prohibits only political parties, as opposed to independent bodies,

from using the word “Independence” in their name. See N.Y. Elec. Law § 2-124(2).

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Despite this, both Walden and the State Board defendants assert that section 2-

124(2)’s naming restrictions also apply to independent bodies pursuant to the

second sentence of section 6-138(3)(f), which provides, in part, that the names of

independent bodies shall “conform to the requirements of this chapter with

respect to the names . . . permitted to be selected by a [political] party.” Id. § 6-

138(3)(f). Though the parties agree that section 2-124(2) applies to independent

bodies, we must nevertheless assess whether they are correct before ruling on the

provision’s constitutionality; if section 2-124(2) does not apply to Walden’s case as

a statutory matter, then a potential finding of the law’s unconstitutionality ought

to be avoided. See LaValle v. Hayden, 98 N.Y.2d 155, 161 (2002) (“[C]ourts must

avoid, if possible, interpreting a presumptively valid statute in a way that will

needlessly render it unconstitutional.”); People v. Lo Cicero, 14 N.Y.2d 374, 378

(1964) (“We are . . . obligated to construe [New York] statutes so as to avoid

constitutional doubts.”).

The district court accepted the parties’ proposition that “by reference

to Section 2-124(2), Section 6-138(3)(f) extends the naming prohibitions in

Section 2-124(2) . . . to independent bodies.” Walden, 777 F. Supp. 3d at 126. But

the district court expressed “skepticism that Section 2-124(2)’s prohibition on the

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use of certain words, including ‘Independence,’ applied wholesale to independent

bodies.” Id. at 126 n.2. That skepticism was rooted in the fact that while section 6-

138(3)(f) provides, in part, that the names of independent bodies “shall also

conform to the requirements of this chapter with respect to the names . . . permitted

to be selected by a party,” one possible reading of the provision would suggest it

applies only to a particular subset of independent body nominating petitions, not

all of them. N.Y. Elec. Law § 6-138(3)(f). On that reading, because there is

language within section 6-138(3)(f) that cross references paragraphs (b) and (e) of

the section—which pertain to the process for selecting a name when a prospective

independent body has chosen a name that is taken by or too similar to that of

another independent body with a candidate running for the same political office

or in the U.S. Presidential race—the requirement in paragraph (f) of “conformity”

with other naming requirements applies to nominating petitions only in the

circumstances of paragraphs (b) and (e). See id. § 6-138(3)(b), (e), (f).

Section 6-138(3)(f), in pertinent part, reads as follows:

[I]f the [nominating] petition shall fail to select a name for such independent body, or if pursuant to the provisions of paragraph b or paragraph e of this subdivision, a candidate shall fail to select another . . . name for such independent body, the officer or board in whose office the petition is filed shall select a[] . . . name [for the independent body] . . . to distinguish the candidates nominated

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thereby. The name . . . shown upon such petition or selected by a candidate authorized to make such selection by paragraph b or paragraph e of this subdivision, or selected by an officer or board shall also conform to the requirements of this chapter with respect to names . . . permitted to be selected by a party.

Id. § 6-138(3)(f) (emphases added). If one were to read “such petition” in the

second sentence of paragraph (f) to refer to only the petitions discussed in the first

sentence of the paragraph, then section 6-138(3)(f) would mean that conformity to

section 2-124(2)’s naming requirements is not demanded of all independent

bodies, but only those that failed to select a name in the first instance or whose

name must be changed as required under paragraphs (b) and (e)—circumstances

not at issue in this appeal.

But as the parties’ arguments demonstrate, that is not the only reasonable

reading of the statute. “Where the language is ambiguous or where a literal

construction would lead to absurd or unreasonable consequences that are contrary

to the purpose of the [statute’s] enactment, courts may [r]esort to legislative

history.” Anonymous v. Molik, 32 N.Y.3d 30, 37 (2018) (alterations in original)

(internal quotation marks omitted). That is because, “[w]hen presented with a

question of statutory interpretation, a court’s primary consideration is to ascertain

and give effect to the intention of the Legislature.” Lemma v. Nassau Cnty. Police

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Officer Indemnification Bd., 31 N.Y.3d 523, 528 (2018) (internal quotation marks

omitted). Accordingly, to determine whether section 2-124(2) applies to

independent bodies, and to Walden specifically, we must do more than a

formalistic analysis of the statute’s language. Here, the parties argue that to

understand the Legislature’s intent with respect to section 2-124(2)’s applicability

to independent bodies, section 6-138(3)’s legislative history must be considered.

We agree with the parties that this history indicates that the Legislature intended

for the naming restrictions to apply to all independent bodies, regardless of how

their names were selected.

The originally-enacted version of section 6-138(3) was a subdivision without

enumerated paragraphs that generally described the same prohibitions as the

current version; it prohibited independent bodies from selecting names that could

lead to confusion. See 1976 N.Y. Laws, ch. 233, § l. Notably, the subdivision ended

with near identical language as the current version requiring the selected name to

“conform to the requirements of this chapter with respect to names . . . permitted

to be selected by a [political] party.” Id. When viewed in its entirety, 5 the most

5 The original version of section 6-138(3) provided, in pertinent part: The name selected for the independent body making the nomination shall be in English characters and shall not include the name or part of the name

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natural reading of the first, undivided iteration of section 6-138(3) is that the names

of independent bodies must conform with section 2-124’s naming requirements,

regardless of whether the name was first chosen in the independent nominating

petition or selected through other means. See id. Indeed, it appears that this was

the accepted interpretation of § 6-138(3). See App’x at 40–44 (two formal opinions

issued by the State Board in 1978 and 1980 interpreting section 6-138(3) to require

independent bodies to comply with the naming restrictions for parties enumerated

in section 2-124(2)).

It was only after the Legislature amended section 6-138(3) in 1992 that the

subdivision was split into paragraphs and the conformity language was modified

and moved to the second sentence of the new paragraph (f). See 1992 N.Y. Laws,

ch. 79, § 16, ch. 305, § 1. Nothing about the 1992 amendments to section 6-138(3)

suggests that rather than requiring all independent bodies to comply with

or an abbreviation of the name or part of the name, nor shall the . . . name . . . create the possibility of confusion with the . . . name of a then existing party, or a previously filed independent nominating petition. If such a petition . . . shall fail to select a name for such independent body, the officer or board in whose office the petition is filed shall select a[] . . . name . . . to distinguish the candidates nominated thereby. The name . . . shown upon such petition or selected by an officer or board shall also conform to the requirements of this chapter with respect to names . . . permitted to be selected by a party.

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section 2-124(2)’s naming requirements, the Legislature intended to limit such

compliance only to the circumstances set forth in paragraphs (b) and (e) of the

provision’s current iteration, where an independent body entirely fails to select a

name or the name must be changed. In fact, it would be odd for the Legislature to

have intended for the amendment to require some independent bodies to adhere

to the naming restrictions but not others, for no expressed or otherwise obvious

purpose. For those reasons, we conclude that as a matter of New York law, section

2-124(2)’s naming restrictions apply to independent bodies. Accordingly, Walden,

as the would-be candidate of an independent body, can bring this as-applied

challenge to the Naming Provisions.

III. Justiciability

The State Board defendants first argue that Walden’s First Amendment

claim, as raised against them, is not justiciable. Specifically, the State Board

defendants argue that (1) Walden lacks Article III standing to sue them, and (2) as

members of the State Board sued in their official capacities, they are protected by

sovereign immunity. We address each argument in turn.

A. Standing

To satisfy Article III’s standing requirement, Walden must show: (1) an

injury-in-fact, (2) that is “fairly traceable” to the State Board defendants’ alleged

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actions, and (3) “a non-speculative likelihood that the injury can be remedied by

the requested relief.” Tweed-New Haven Airport Auth. v. Tong, 930 F.3d 65, 70 (2d

Cir. 2019) (internal quotation marks omitted). “In pre-enforcement challenges,”

such as the present action, “the second and third requirements for standing—

causation and redressability—are ‘often flip sides of the same coin.’” Bochner v.

City of New York, 118 F.4th 505, 518 (2d Cir. 2024) (quoting Food & Drug Admin. v.

All. for Hippocratic Med., 602 U.S. 367, 380 (2024)). “As the Supreme Court has

explained, the future injury asserted in a pre-enforcement challenge to a particular

law must be ‘the result of a statute’s actual or threatened enforcement.’” Id.

(alteration and emphasis omitted) (quoting California v. Texas, 593 U.S. 659, 670

(2021)).

Before the district court, Walden described his injury as the “anticipated

rejection of his nominating petitions,” which he claimed prevented him from

“effectively organizing and conducting a petitioning campaign to gain access to

the ballot.” Pl.’s Mem. in Support of Mot. for Prelim. Inj. at 2. On appeal, the State

Board defendants do not challenge that this asserted injury satisfies the injury-in-

fact requirement. Rather, they argue that Walden’s injury cannot be fairly traced

to them because it is the City Board, and not the State Board, that would determine

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the validity of Walden’s nominating petition, and thus any threat of enforcement

of the Naming Provisions against Walden stems from the City Board. The State

Board defendants further contend that an injunction against them would not

redress Walden’s asserted injury, as such an injunction “would not bind the City

Board, nor would it ensure that the City Board take any particular action with

respect to Walden’s nominating petition.” Appellees’ Br. at 19. The State Board

defendants argue that given their expressed disavowal of any intent to enforce the

Naming Provisions against the City Board or Walden, the State Board’s general

enforcement powers under New York election law are insufficient to establish

Walden’s standing. We find these arguments unpersuasive.

The State Board defendants’ attempt to shift the focus onto the City Board’s

involvement in this case ignores that, in order to satisfy the traceability element of

standing, a plaintiff need not show that the “defendant’s actions are the very last

step in the chain of causation.” Bennett v. Spear, 520 U.S 154, 169 (1997). Rather, a

plaintiff can establish causation by showing “injury produced by determinative or

coercive effect upon the action of someone else.” Id. And “[w]hen third party

behavior is predictable, commonsense inferences may be drawn.” Diamond Alt.

Energy, LLC v. Env’t Prot. Agency, 145 S. Ct. 2121, 2136 (2025). The district court

22 25-764-cv Walden v. Kosinski

concluded that the State Board, through its general enforcement powers under

New York election law, has the authority to coerce the City Board into enforcing

the Naming Provisions, and consequently, the State Board has the requisite

determinative or coercive effect over the City Board’s decision to accept or reject

Walden’s nominating petition. The district court did not err in reaching this

conclusion.

Under New York’s statutory scheme, the State Board has “jurisdiction of,

and is responsible for, the execution and enforcement of statutes governing

campaigns, elections and related procedures.” Schulz v. Williams, 44 F.3d 48, 61

n.13 (2d Cir. 1994) (alterations adopted and internal quotation marks omitted).

Specifically, the State Board has “the power and duty to . . . issue instructions and

promulgate rules and regulations relating to the administration of the election

process [and] election campaign practices . . . consistent with the provisions of

law.” N.Y. Elec. Law § 3-102(1). In 1978 and again in 1980, the State Board invoked

its statutory powers to issue two opinions interpreting section 2-124(2) and section

6-138(3). In pertinent part, the State Board took the following position on the law:

“An independent body, in selecting a name . . . , must comply with both [sections

2-124(2) and 6-138(3)] of the Election Law.” App’x at 40 (emphasis added).

23 25-764-cv Walden v. Kosinski

We are persuaded that the State Board’s prior publicized views about the

applicability of section 2-124(2)’s naming prohibitions to independent bodies

would have a determinative or coercive effect upon the actions of local boards of

elections today, including the City Board. While there is no dispute that the City

Board is responsible for determining the validity of any nominating petition

submitted before it for review, both Walden and the City Board agree that the City

Board is merely a “ministerial agency,” and as such, it “lacks the authority to take

any position on the constitutionality of the law.” Id. at 155 (emphasis omitted).

Accordingly, the City Board has represented that it is “obligated to apply [the] law

as written, consistent with the State’s position on the law.” Id. (emphasis added).

Given the City Board’s representations, there can be little doubt that if the City

Board were to reject Walden’s nominating petition for failure to comply with the

Naming Provisions, such action would be rooted in the City Board’s application

of the provisions, as “consistent with the State [Board]’s position on the law,” id.,

and the determinative or coercive effect thereof.

Further, the State Board’s expressed interest in how the Naming Provisions

are interpreted and enforced—evident by the State Board’s continued interest in

litigating this action despite contending that the City Board is the only proper

24 25-764-cv Walden v. Kosinski

defendant 6—underscores to us that though the State Board defendants have

disavowed an intent to enforce the Naming Provisions against Walden, the

enforcement of the law by the City Board, acting upon the stated views of the State

Board, remains a real and non-speculative threat. Cf. Bochner, 118 F.4th at 525–26

(concluding that the appellants lacked standing to sue New York City to enjoin

enforcement of a local law when the City had “unqualifiedly disavowed any intent

to enforce the [challenged law] against the” appellants, and the appellants failed to

adduce any evidence showing the City’s likely enforcement of the challenged

provisions against them). As such, Walden’s asserted injury is fairly traceable to

the State Board defendants.

A preliminary injunction against the State Board defendants would also

redress Walden’s injury by undoubtedly swaying the City Board to not enforce a

law that a court, by issuing the injunction, determined likely violates the

6 Indeed, the State Board defendants argue that even if we were to find that Walden’s claims against them are non-justiciable, we should treat their arguments regarding the merits of Walden’s constitutional challenge as arguments raised by the New York State Attorney General acting as an “intervenor pursuant to 28 U.S.C. § 2403(b).” Appellees’ Br. at 3 n.2. That is because, unlike the City Board, the State Board defendants seek to “defend the constitutionality of the law.” Id. This ongoing defense of the provisions further supports Walden’s standing. See Diamond Alt. Energy, LLC, 145 S. Ct. at 2137 (“[I]f invalidating the regulations would change nothing . . . , why are [Respondents] enforcing and defending the regulations?”).

25 25-764-cv Walden v. Kosinski

Constitution. Further, as stated earlier, if such an injunction were issued, the State

Board would have the power to issue instructions to local boards of elections,

including the City Board, regarding the law’s enforcement. See N.Y. Elec. Law § 3-

102(1). For these reasons, we conclude that Walden has standing to sue the State

Board defendants.

B. Sovereign Immunity

The State Board defendants further argue that even if Walden has standing

to sue them, his claims are nevertheless barred by sovereign immunity. It is well-

settled that “[a]n action against a state official in his official capacity is deemed an

action against the state itself . . . which possesses sovereign immunity under the

Eleventh Amendment.” Libertarian Party of Erie Cnty. v. Cuomo, 970 F.3d 106, 122

(2d Cir. 2020) (internal citation omitted), abrogated on other grounds, N.Y. State Rifle

& Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). In Ex parte Young, 209 U.S. 123 (1908), the

Supreme Court recognized a “limited exception” to state defendants’ Eleventh

Amendment immunity. CSX Transp., Inc. v. N.Y. State Off. of Real Prop. Servs., 306

F.3d 87, 98 (2d Cir. 2002). The Ex parte Young exception to sovereign immunity

applies against officials “who threaten and are about to commence proceedings . . .

to enforce against parties affected an unconstitutional act, violating the Federal

26 25-764-cv Walden v. Kosinski

Constitution.” Ex parte Young, 209 U.S. at 156. For Ex parte Young to be invoked

against a state defendant, that defendant “‘must have some connection with the

enforcement of the act’ that is in continued violation of federal law.” In re Dairy

Mart Convenience Stores, Inc., 411 F.3d 367, 372–73 (2d Cir. 2005) (quoting Ex parte

Young, 209 U.S. at 154).

The State Board defendants argue that Walden cannot satisfy Ex parte Young

because they “have disclaimed an intent to enforce the challenged naming

provisions against Walden,” and therefore, it cannot be said that the State Board

defendants have threatened or are about to commence proceedings to enforce the

law against him. Appellees’ Br. at 22. But as noted above, the State Board

defendants’ continued interest in defending the constitutionality of the Naming

Provisions undermines their claim of an unwillingness to enforce the law against

Walden. In fact, the State Board defendants’ disavowal of any intent to enforce the

Naming Provisions against Walden is solely based on their oral representations

made in court, which do not carry the force of law. 7 Moreover, as the State Board

7 The State Board defendants did, however, acknowledge at oral argument that, if they were to renege on their promise not to enforce the Naming Provisions against Walden, they might be judicially estopped from doing so. See Oral Arg. at 40:55–42:05. The doctrine of judicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another

27 25-764-cv Walden v. Kosinski

defendants concede, a threat of the law’s enforcement also stems from the City

Board, and the City Board has stated that if the law remains in effect, it is

“obligated to apply [the] law as written, consistent with the State’s position on the

law.” App’x at 155. As explained above, the State Board’s stated position—that

the law mandates an independent body’s compliance with section 2-124(2)’s

naming restrictions—and its general powers to enforce that stated position gives

the State Board the “requisite ‘special relation’ to the contested provision[s] to

render them proper defendants” for the purposes of Ex parte Young. Schulz, 44 F.3d

at 61 n.13 (quoting Ex parte Young, 209 U.S. at 157). Accordingly, we conclude that

the State Board defendants are not entitled to sovereign immunity.

IV. Merits of the Motion for a Preliminary Injunction

We now turn to the merits of Walden’s motion for a preliminary injunction.

“[A] preliminary injunction is an extraordinary and drastic remedy, one that

should not be granted unless the movant, by a clear showing, carries the burden

of persuasion.” Sussman v. Crawford, 488 F.3d 136, 139–40 (2d Cir. 2007) (per

curiam) (alteration in original and emphasis omitted) (quoting Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997)). “To obtain a preliminary injunction against

phase.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal quotation marks omitted).

28 25-764-cv Walden v. Kosinski

government enforcement of a statute, [Walden] must establish (1) that [he] is likely

to succeed on the merits, (2) that [he] is likely to suffer irreparable harm if the

injunction is not granted, (3) that the balance of the equities tips in [his] favor, and

(4) that the injunction serves the public interest.” SAM Party of N.Y. v. Kosinski, 987

F.3d 267, 273–74 (2d Cir. 2021). “When, as here, the moving party seeks a

preliminary injunction that will affect government action taken in the public

interest pursuant to a statutory or regulatory scheme,” the party must demonstrate

“a clear or substantial likelihood of success on the merits.” Sussman, 488 F.3d at

140 (alteration adopted and internal quotation marks omitted).

A. Likelihood of Success on the Merits of First Amendment Claim

Walden argues that, as applied to him, the Naming Provisions

unconstitutionally restrict his First Amendment rights of speech and association.

The First Amendment, made applicable to the States through the Fourteenth

Amendment, “has its fullest and most urgent application to speech uttered during

a campaign for political office,” Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S.

214, 223 (1989) (internal quotation marks omitted), and “protects the right of

citizens to associate and to form political parties for the advancement of common

political goals and ideas,” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357

(1997). But because the Constitution affords States broad power to regulate the

29 25-764-cv Walden v. Kosinski

“Times, Places and Manner of holding Elections,” Art. I, § 4, cl. 1, “States may, and

inevitably must, enact reasonable regulations of parties, elections, and ballots to

reduce election- and campaign-related disorder,” Timmons, 520 U.S. at 358.

Because “[a]ll election laws impose at least some burden on the expressive

and associational rights protected by the First Amendment,” Maslow v. Bd. of

Elections in N.Y.C., 658 F.3d 291, 296 (2d Cir. 2011), the Supreme Court has

recognized that the distinction between legitimate and impermissible election

regulations ordinarily does not lend itself to a bright line or “litmus-paper test,”

Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (internal quotation marks omitted).

Rather, drawing such a distinction requires a particularized assessment of the

“character and magnitude of the asserted injury to the rights protected by” the

First Amendment and the “extent to which [the] challenged regulation burdens”

said rights. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (internal quotation marks

omitted). To that end, courts have generally evaluated challenges to state election

laws using the Anderson-Burdick sliding-scale balancing test, derived from those

two seminal Supreme Court cases. See SAM Party, 987 F.3d at 274.

Under that test, “the rigorousness of [a court’s] inquiry into the propriety of

a state election law depends upon the extent to which a challenged regulation

30 25-764-cv Walden v. Kosinski

burdens First and Fourteenth Amendment rights.” Burdick, 504 U.S. at 434. “[I]f

the restrictions on those rights are severe, then strict scrutiny applies. But when a

state election law provision imposes only reasonable, nondiscriminatory

restrictions upon the First and Fourteenth Amendment rights of voters, the State’s

important regulatory interests are generally sufficient to justify the restrictions.”

SAM Party, 987 F.3d at 274 (internal quotation marks and citations omitted). Thus,

“the court must . . . weigh the burdens imposed on the plaintiff against the precise

interests put forward by the State, and the court must take into consideration the

extent to which those interests make it necessary to burden the plaintiffs’ rights.

Review under this balancing test is quite deferential, and no elaborate, empirical

verification is required.” Id. (internal quotation marks and citations omitted).

Despite the general applicability of the Anderson-Burdick test to cases

challenging the constitutionality of state election laws, Walden contends that the

district court erred in applying the test in this case and concluding that, under the

test, the Naming Provisions are reasonable restrictions on his First Amendment

rights. Walden argues that the district court should have subjected the Naming

Provisions to review for strict scrutiny, as they are content-based restrictions on

core political speech that impose a severe burden on his rights, a burden that

31 25-764-cv Walden v. Kosinski

cannot be justified by the State’s asserted interests in the laws. In response, the

State Board defendants assert that there is no merit to Walden’s challenge to the

applicability of the Anderson-Burdick test here; and further, the district court

correctly applied the test and determined that the Naming Provisions impose

reasonable limitations on Walden’s rights that are justified by the State’s interest

in preventing voter confusion.

For the reasons that follow, we agree with the district court’s determination

that Walden is unlikely to succeed on the merits of his constitutional challenge

because (1) the Naming Provisions do not impose a severe burden on his First

Amendment rights to speech and association, and (2) the laws’ restrictions on

Walden’s rights are reasonable and justified by the State’s articulated interests.

1. Determining the Severity of the Burden

In determining the severity of the burden that the challenged laws place on

Walden’s speech and associational rights, we first address Walden’s contention

that the Anderson-Burdick balancing test cannot be applied in this case. Specifically,

Walden contends that the Anderson-Burdick test “applies only to laws that regulate

the ‘mechanics of the electoral process.’” Appellant’s Br. at 20 (quoting McIntyre

v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995)). But Walden asserts that, as

relevant to nominating petitions, the Naming Provisions do not regulate the

32 25-764-cv Walden v. Kosinski

mechanics of the electoral process because rather than regulating the time, place,

or manner of an election, the laws regulate political expression that occurs months

before the election—specifically, he asserts that they regulate what his petition

circulators can communicate to potential voters. Thus, Walden argues that the

laws impermissibly restrict protected speech rather than simply regulating the

electoral process.

Walden’s contention ignores the fact that, at its core, the nominating petition

that he and his circulators would try to persuade voters to sign is the mechanism

through which individuals, like Walden, who seek to run as the nominee of an

independent body, obtain access to the ballot. See N.Y. Elec. Law § 6-138(1). In

other words, the nominating petition itself is a tool for access to the ballot. See cf.

McIntyre, 514 U.S. at 344 (listing “ballot access” provisions as the type of electoral

laws that may be subject to the Anderson-Burdick test (citing Storer v. Brown, 415

U.S. 724 (1974))).

Moreover, the crux of Walden’s constitutional challenge centers around his

ability to name his independent body the “Independence Party,” and it is

undisputed that the name selected for the independent body in the nominating

petition becomes the label used to identify the independent body’s candidate on

33 25-764-cv Walden v. Kosinski

the ballot. As the Third Circuit has aptly described it, a law that “regulates the

words that may appear on the ballot” is “the archetypical mechanic of the electoral

process for which the Anderson-Burdick test is designed.” Mazo v. N.J. Sec’y of State,

54 F.4th 124, 144 (3d Cir. 2022). Thus, Walden is wrong to assert that the Naming

Provisions do not regulate a mechanism of the electoral process, and accordingly,

they are subject to the Anderson-Burdick balancing test.

Nevertheless, Walden contends that, even under the Anderson-Burdick test,

the district court erred in concluding that the Naming Provisions do not impose a

severe burden on his First Amendment rights because, as he argues, the provisions

restrict core political speech and should therefore be subject to strict scrutiny. We

have recognized that laws directly regulating core political speech may warrant

bypassing the Anderson-Burdick test, as they are “per se severe.” See SAM Party, 987

F.3d at 275 n.3; see also Lerman v. Bd. of Elections in N.Y.C., 232 F.3d 135, 146 (2d Cir.

2000) (“[R]estrictions on core political speech so plainly impose a severe burden

that application of strict scrutiny . . . will be necessary.”) (internal quotation marks

omitted). However, we reject Walden’s claim that the Naming Provisions restrict

core political speech, or constitute an impermissible content-based restriction,

such that the laws must necessarily be subject to strict scrutiny.

34 25-764-cv Walden v. Kosinski

a. No Restriction on Core Political Speech

As noted earlier, Walden describes his core political message as being one

about independence from the major political parties. Walden argues that he would

“engage in core political speech when he sends circulators into the field to interact

with voters to persuade them to sign a petition, which requires the signer to state

that [the signer] nominates Walden for election to office and that [the signer] selects

the name of the independent body that will make that nomination”; and here, but

for the Naming Provisions, that name would be the “Independence Party,” a name

that Walden asserts reflects his core political message. Appellant’s Br. at 18.

Walden argues that the Naming Provisions impermissibly restrict core political

speech, as was the case in Meyer v. Grant, 486 U.S. 414 (1988), Buckley v. American

Constitutional Law Foundation, 525 U.S. 182 (1999), and Lerman, 232 F.3d 135, three

cases in which state election laws restricting the ability to circulate petitions were

subject to strict scrutiny and stricken down as violative of the Constitution. See

Meyer, 486 U.S. at 415–16, 421–22 (challenging a law prohibiting paying circulators

of initiative or referendum petitions); Buckley, 525 U.S. at 186, 198–99 (challenging

a law requiring petition circulators to wear identification badges); Lerman, 232 F.3d

at 138–39, 147 (challenging a law requiring witnesses for designating petitions to

35 25-764-cv Walden v. Kosinski

be residents of the political subdivision in which the candidate was running for

office).

Although this Court and the Supreme Court have recognized that “the

circulation of a petition involves the type of interactive communication concerning

political change that is appropriately described as ‘core political speech,’” Meyer,

486 U.S. at 421–22, the circumstances here are distinct from those of the three cases

upon which Walden relies. The regulations at issue in Meyer, Buckley, and Lerman

imposed a severe burden on core political speech, and thus were subject to strict

scrutiny, because they “dramatically reduced the number of potential petition

circulators available to advance [the plaintiff’s] political message,” Lerman, 232

F.3d at 147, “ma[de] it less likely that [the plaintiffs] w[ould] garner the number of

[necessary] signatures,” Meyer, 486 U.S. at 423, and “discourage[d] participation in

the petition circulation process,” Buckley, 525 U.S. at 200. But, as the district court

noted, the Naming Provisions, unlike the laws in Meyer, Buckley and Lerman, do

not “proscribe[] [Walden’s] ability to engage in petition circulation activity[,]”

place “any restriction on who can sign his petition [or] who can help him circulate

his petition,” or “impede his ability . . . to interact and communicate with his

supporters.” Walden, 777 F. Supp. 3d at 132–33.

36 25-764-cv Walden v. Kosinski

Walden concedes this point but nevertheless argues that the Naming

Provisions “impose[] a far more direct restriction on his petitioning efforts by

explicitly limiting what his circulators can ask signatories to do,” i.e., choose

“Independence Party” as the name of the independent body that will nominate

him for the 2025 New York City mayoral election. Appellant’s Reply Br. at 10

(emphasis omitted). In other words, Walden’s argument is not that the Naming

Provisions restrict his ability to circulate his nominating petition, but rather that

they restrict his ability to circulate a nominating petition with a particular name

selected for his independent body, a name that will ultimately be used to identify

Walden on the election ballot.

However, the notion that a candidate has free rein over how he may be

identified on the ballot, or even that he may use the ballot to convey a particular

message, is foreclosed by the Supreme Court’s decision in Timmons. In that case,

the Supreme Court held that Minnesota’s ban on fusion voting—a practice that

allows a candidate to appear on the ballot as the nominee of more than one party—

did not severely burden a political party’s First Amendment associational rights.

520 U.S at 354, 359. There, the Court rejected the party’s argument that it “ha[d] a

right to use the ballot itself to send a particularized message,” stating that

37 25-764-cv Walden v. Kosinski

“[b]allots serve primarily to elect candidates, not as forums for political

expression.” Id. at 363. Evaluating the anti-fusion law under the Anderson-Burdick

framework, the Court found that while the law “prevent[ed the party] from using

the ballot to communicate to the public that it supports a particular candidate who

is already another party’s candidate,” it did not place a severe burden on the

party’s rights. Id. at 362. That was because the law did not “restrict the ability of

the [party] and its members to endorse, support, or vote for anyone they like”; the

law did not “directly limit the party’s access to the ballot”; it was “silent on parties’

internal structure, governance, and policymaking”; and the party retained “great

latitude in its ability to communicate ideas to voters and candidates through its

participation in the campaign.” Id. at 363. Therefore, the Court concluded that the

burdens the law “impose[d] on the party’s First and Fourteenth Amendment

associational rights—though not trivial—[were] not severe” and were “justified by

‘correspondingly weighty’ valid state interests in ballot integrity and political

stability.” Id. at 363, 369–70.

Timmons compels us to conclude that the Naming Provisions’ prohibition

on Walden’s ability to use the specific word “Independence” to identify his

prospective independent body in the nominating petition, and subsequently on

38 25-764-cv Walden v. Kosinski

the ballot, does not impose a severe burden on his First Amendment rights of

speech and association. Walden is not entitled to use the ballot to send a particular

message, id. at 363, and since the chosen name for the independent body on the

nominating petition is required to be used on the ballot, see App’x at 99, Walden

does not have greater naming rights with regard to the petition than he does with

the ballot—the two are inextricably intertwined. Moreover, as in Timmons, Walden

cannot legitimately argue that the Naming Provisions restrict his ability to

participate in the electoral process, his or his supporters’ ability to communicate

their core political message to voters, or an individual’s ability to support and vote

for him. 8 Indeed, it cannot be said that during the petition circulation process, the

Naming Provisions restrain Walden’s ability to publicly communicate his message

of independence from the major political parties to potential voters through

various means of communication, including through his political platform, the

media, and in-person communication by campaign workers soliciting signatures.

In sum, Walden remains free to communicate his message of independence

to voters, irrespective of the name that he desires to call his independent body and

8 Walden also does not contend that the Naming Provisions limit his access to the ballot or impose a burden on his organization’s internal structure, governance, or policymaking. See Timmons, 520 U.S. at 363.

39 25-764-cv Walden v. Kosinski

subsequently have placed on the ballot. For those reasons, we find that the

Naming Provisions do not restrict core political speech, and as was the case in

Timmons, the laws’ burden on Walden’s First Amendment rights—though not

trivial—is not severe. See Timmons, 520 U.S. at 363; see also Chamness v. Bowen, 722

F.3d 1110, 1116, 1118 (9th Cir. 2013) (concluding that, pursuant to Timmons, a state

regulation prohibiting a candidate from using the ballot label “Independent,” and

requiring him to either state he had “No Party Preference” or leave the space blank

imposed “only a slight burden on speech”); Marcellus v. Va State Bd. of Elections,

849 F.3d 169, 172, 176, 178 (4th Cir. 2017) (finding, under Timmons and Washington

State Grange v. Washington State Republican Party, 552 U.S. 442 (2008), that a Virginia

law allowing federal, state, and general assembly candidates to have party

identifiers placed with their names on the ballot, but not local candidates, “at most

minimally burdened” the plaintiffs’ associational rights); Mazo, 54 F.4th at 131–33

(upholding a law that restricts candidates from including in their ballot slogans

the name of any person or incorporated association without permission).

b. No Impermissible Content-Based Restriction

We additionally reject Walden’s alternative argument that “[s]trict scrutiny

also applies because the [Naming Provisions are] facially content-based

restriction[s]” targeting a particular message—independence from the major

40 25-764-cv Walden v. Kosinski

political parties—and are therefore “‘presumptively unconstitutional.’”

Appellant’s Br. at 26 (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)). 9

Because the Supreme Court has held that content-based restrictions in a non-

public forum are permissible so long as the restrictions are reasonable and

viewpoint-neutral, see Cornelius v. NAACP Legal Def & Educ. Fund, Inc., 473 U.S.

788, 800 (1985), as the district court noted, Walden’s argument “is only tenable if

the nominating petition is deemed to be a public forum,” Walden, 777 F. Supp. 3d

at 136.

Like the district court, we find that if “the State controls the content of the

ballot, which [the Supreme Court] ha[s] never considered a public forum,” Wash.

State Grange, 552 U.S. at 461 (Roberts, C.J., concurring), then “neither is the

nominating petition that serves as [a] vehicle for obtaining access to the ballot,”

Walden, 777 F. Supp. 3d at 136. Put differently, the nominating petition, like the

ballot, is a state-controlled document, and as we explained earlier, its purpose is

9 As support for his argument that the Naming Provisions constitute impermissible content-based restrictions on political speech, Walden cites Bachrach v. Secretary of Commonwealth, 382 Mass. 268 (1981), a case that struck down a Massachusetts statute that prohibited the word “Independent” from being a part of a candidate’s political designation and required the use of the word “Unenrolled” to define a candidate on the ballot if the candidate failed to make a political designation. But Walden’s reliance on Bachrach is unavailing. Not only is the decision a non-binding, state court opinion, but it also predates Timmons and other relevant Supreme Court and Second Circuit caselaw.

41 25-764-cv Walden v. Kosinski

to provide prospective independent nominees, like Walden, access to the ballot.

Outside of its limited purpose of providing access to the ballot in advance of an

election, it cannot be reasonably said that New York State, in creating a nominating

petition, intended for it to be “use[d] by the public at large for assembly and

speech.” Cornelius, 473 U.S. at 802; see also Minn. Voters All. v. Mansky, 585 U.S. 1,

12 (2018) (holding that a polling place “qualifies as a nonpublic forum” because

“[i]t is, at least on Election Day, government-controlled property set aside for the

sole purpose of voting”). Thus, Walden’s argument that, as applied to his

independent nominating petition, the Naming Provisions are presumptively

unconstitutional is unavailing when, like a ballot, a nominating petition does not

constitute a public forum.

* * *

Accordingly, Walden’s contention that the Naming Provisions must be

subject to strict scrutiny, as content-based regulations restricting core political

speech that severely burden his First Amendment rights, is without merit. And as

noted earlier, under the Anderson-Burdick balancing test, where a challenged law

does not impose a severe burden on First Amendment rights, “a State’s important

regulatory interests will usually be enough to justify reasonable,

42 25-764-cv Walden v. Kosinski

nondiscriminatory restrictions.” Timmons, 520 U.S. at 358 (internal quotation

marks omitted). As the district court concluded, the Naming Provisions are non-

discriminatory and viewpoint neutral since they apply equally to all political

parties and independent bodies. See Walden, 777 F. Supp. 3d at 136. And for the

following reasons, we further find that the provisions are reasonable and justified

by the State’s articulated interests.

2. Weighing the State’s Interests in the Challenged Laws

The State Board defendants have maintained that the Naming Provisions

are justified by “New York’s interest in preventing voter confusion” on registration

forms and on the ballot. Appellees’ Br. at 36. Specifically, they assert that the laws’

prohibition against the use of the words “Independence” and “Independent” in

the names of political organizations was enacted “out of concerns that unaffiliated

voters (i) were or would mistakenly enroll in the (now-defunct) Independence

Party [of New York] when they intended to be unaffiliated, or (ii) nominate or vote

for an Independence Party candidate mistakenly believing that the candidate was

the representative of all unaffiliated voters.” Id. at 37.

Undoubtedly, preventing voter confusion is a compelling state interest. See

Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality opinion) (“[A] State has a

compelling interest in protecting voters from confusion and undue influence.”).

43 25-764-cv Walden v. Kosinski

Walden concedes as much but asserts that the Naming Provisions are

unreasonable as applied to him. Walden argues that allowing his organization to

be named the “Independence Party” would impose no real risk of confusion

because his organization, as an independent body, will never appear on the voter

registration form. Walden attests that his organization will never seek to become

a political party by nominating a candidate for governor or President; thus,

because New York’s voter registration form only lists political parties and not

independent bodies, see App’x at 105, Walden argues that the desired name of his

organization would not create confusion for those registering to vote because it

would never appear on the registration form. See N.Y. Elec. Law § 1-104(3)

(defining a political party). But Walden’s argument is merely speculative and does

little to undermine the reports of unaffiliated voters being confused by the name

“Independence Party” or the Legislature’s belief that the Naming Provisions

would reduce voter confusion. See N.Y. Sponsor Mem., 2021 S.B. S1851A. The

Legislature’s findings—irrespective of any disagreement Walden may have with

their merits—set forth the kind of “coherent account” that, under the Anderson-

Burdick test, sufficiently explains why a challenged law, one that does not severely

44 25-764-cv Walden v. Kosinski

burden First Amendment rights, is supported by the asserted state interest. See

SAM Party, 987 F.3d at 278.

We are also persuaded that unaffiliated voters’ confusion about the name

“Independence Party” easily dovetails from the voter registration form to the

ballot. The State Board defendants have represented, and Walden does not

dispute, that, “[i]n common parlance, New York voters who are not affiliated with

an existing political party are referred to as ‘independents’ or ‘independent

voters.’” Appellees’ Br. at 8. As the State has put forth, in light of the direct reports

that independent voters were confused by the name “Independence Party,” there

are reasonable concerns that permitting a single party or independent body to

identify itself as the “Independence Party” or the “Independent Party” on the

ballot could lead unaffiliated voters to mistakenly believe that this designation was

intended to represent all unaffiliated/independent voters, rather than identifying

a specific political organization. 10 Thus, as the State Board defendants argue, the

10 Also unavailing is Walden’s argument that the Naming Provisions are “woefully underinclusive” because they do not prohibit the use of words or phrases like “Nonpartisan,” “Unaffiliated,” or “No Party,” which could also be used to communicate the message of independence from the major political parties. Appellant’s Br. at 31. We are unpersuaded by this argument when it is undisputed that the phrases “independents” or “independent voters,” and not any others, are commonly used in reference to New York voters who are not affiliated with an existing political party. See Appellees’ Br. at 8. Therefore, the laws’ prohibition on the use of the words

45 25-764-cv Walden v. Kosinski

challenged laws seek to prevent voters from being misled into thinking that one

singular organization—simply by virtue of taking the mantle of “independent” or

”independence” in its name—represents all voters who do not wish to be affiliated

with the established parties. 11 Again, this “coherent account” of how the Naming

Provisions aid in preventing voter confusion sufficiently justifies the laws and the

burden they may impose on Walden. See SAM Party, 987 F.3d at 278. For those

reasons, we conclude that Walden is unlikely to succeed on the merits of his claim

that the Naming Provisions violate his First Amendment rights.

B. Remaining Requirements for Preliminary Injunction

Walden is also unable to satisfy the remaining requirements for a

preliminary injunction. Walden argues that in the absence of an injunction, the

City Board would reject his anticipated nominating petition if it used

“Independence Party” as the name of the independent body, thus harming his

right to speech and ability to deliver his political message to potential supporters.

“Independence” and “Independent” is aptly connected to the particular concerns of voter confusion amongst independent voters. 11 Indeed, all groups seeking access to the ballot for a candidate not nominated by a party

are generically classified as “independent bodies.” To allow any one such body to co-opt the term applicable to all non-party candidates on the ballot would foster confusion about the status of other independent bodies that could not use the term if Walden were permitted to adopt it.

46 25-764-cv Walden v. Kosinski

We have recognized that “where a First Amendment right has been violated, the

irreparable harm requirement for the issuance of a preliminary injunction has been

satisfied.” Green Party of N.Y. State v. N.Y. State Bd. of Elections, 389 F.3d 411, 418

(2d Cir. 2004). Because, for the reasons stated above, Walden fails to demonstrate

a likelihood of success on the merits of his claim that the Naming Provisions

violate his First Amendment rights, he cannot establish irreparable harm by this

route. See SAM Party, 987 F.3d at 278. And Walden makes no other argument in

support of a finding of irreparable injury.

Finally, with respect to the factors of the public interest and the balance of

the equities, “[i]n a suit against the government, balancing of the equities merges

into [the Court’s] consideration of the public interest.” Id. Here, those factors also

weigh against granting Walden’s requested injunctive relief. Although “securing

First Amendment rights is in the public interest,” N.Y. Progress & Prot. PAC v.

Walsh, 733 F.3d 483, 488 (2d Cir. 2013), the State has a compelling interest in

preventing voter confusion. That interest—supported by evidence of voters being

confused by the word “independence” in party names—outweighs Walden’s

interest in using one specific word, ”Independence,” as a part of the name of his

independent body in his nominating petition.

47 25-764-cv Walden v. Kosinski

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.