Davis v. New York State Board of Elections
Opinion of the Court
SUMMARY ORDER
Plaintiff-appellant Evan A, Davis brought an action against the New York City and New York State Boards of Elections (collectively, the “Boards”) and the
I. Background
Article 19 of the New York State Constitution requires that, once every twenty years, the citizens of New York State vote to determine whether to hold a State Constitutional Convention. The next vote for a Constitutional Convention is set for November 2017. If a majority of New Yorkers vote in favor of holding a Constitutional Convention, then an election to select Delegates for the Convention will be held in November 2018. The Constitutional Convention itself, if one were to take place, would be held in April 2019.
Davis is currently campaigning to urge a majority of New Yorkers to vote in favor of calling a Constitutional Convention. If the vote for a Convention succeeds, Davis intends to run for election as a non-partisan Delegate. To secure a position on the (presently hypothetical) ballot listing candidates for Delegate, Davis would have to secure 3,000 voter signatures. Davis wants to campaign for the Convention and, if the voters elect to hold a Convention, to campaign for the position of Delegate, on a reform platform premised on the idea that voters should elect Delegates that are unaffiliated with any political party or group. He believes that this specific message is critical to his goals because, according to Davis, if voters think that partisan interests will dominate a Constitutional Convention, then they will vote against calling one.
Davis alleges that the Candidate Laws prevent him from running as an independent candidate for Delegate and from campaigning for a Convention on the platform of his choice. The Candidate Laws, in sum and substance, require that all individuals seeking to be elected as Delegates to the New York State Constitutional Convention, who are not nominated by a party whose candidate for Governor of the State of New York received at least 50,000 votes, must include a nominating body name and emblem on their nominating petitions, which will appear alongside a candidate’s name on the ballot. See N.Y. Elec. Law §§ 6-140, 6-146, and 7-104. If a candidate does not include a nominating body name and emblem on his nominating petition, the “officer or board.in whose office the petition is filed shall select an emblem or name or both to distinguish the candidates nominated thereby.” Id. at § 6-138(3)(f). There is no requirement that the nominating body and emblem selected by the potential candidate reflect an actual, existing, or formal organization. For example, the name of the nominating body could be “Voters for Davis,” “Unaffiliated,” or “No Party.”
II. Davis Lacks Standing to Challenge the Candidate Laws
In dismissing Davis’s challenge to the constitutionality of the Candidate Laws for lack of standing, the District Court concluded that neither of his two alleged injuries satisfied Article Ill’s requirement that a plaintiff suffer an “injury in fact.” See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). We agree.
We review de novo the District Court’s dismissal of Davis’s complaint for lack of standing. See Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir. 1994). To satisfy the requirements of Article III standing, a plaintiff must establish three elements:
(1) the plaintiff must have suffered an injury in fact, i.e., an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013) (internal quotation marks omitted). Constitutional ripeness, which is an overlapping doctrine, is best thought of as “a specific application of the actual injury aspect of Article III standing.” Id. Thus, “to say a plaintiffs claim is constitutionally unripe is to say that plaintiffs claimed injury, if any, is not actual or imminent, but instead conjectural or hypothetical.” Id. To determine “whether a litigant has standing to challenge governmental action as a violation of the First Amendment” in particular, the litigant must demonstrate “a claim of specific present objective harm or a threat of specific future harm.” Meese v. Keene, 481 U.S. 465, 472, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987) (internal quotation marks omitted).
As an initial matter, Davis contends that, when the District Court was evaluating whether he had established the existence of subject-matter jurisdiction, the District Court held him to a higher standard of proof than was appropriate at the motion to dismiss stage. The District Court concluded that Davis “b[ore] the burden of proving the Court’s jurisdiction by a preponderance of the evidence.” Davis v. Kosinsky, No. 16-CV-1750 (JGK), 217 F.Supp.3d 706, 707, 2016 WL 6581300, at *1 (S.D.N.Y. Nov. 4,2016) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)) (emphasis added). Davis argues that the correct legal standard, which the District Court did not apply, is that a plaintiff “must allege facts that affirmatively and plausibly suggest that it has standing to sue.” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (emphasis added). We need not address this dispute because we conclude that Davis fails to satisfy the requirements of Article III standing under either a preponderance or a plausibility standard.
The District Court construed Davis’s complaint as alleging two possible
Davis’s second alleged injury is that the Candidate Laws hamper his ability to campaign for a Constitutional Convention. The District Court concluded that this alleged injury was not an “injury-in-fact” because Davis was already engaging in the political speech he claimed was being unconstitutionally burdened, i.e., campaigning for the Convention. Davis, 217 F.Supp.3d at 710, 2016 WL 6581300, at *4. On appeal, Davis argues that the District Court misconstrued his injury: while the Candidate Laws did not prohibit him from campaigning for the Convention, they prevented him from truthfully advocating for a Convention by assuring voters that they could elect delegates who were “non-partisan and independent of any political party or group.” A 42. The alleged injury, according to Davis, was not that the Candidate Laws prevented him from telling voters they could elect independent Convention Delegates, but that, because the Candidate Laws required each Delegate to select a nominating body name and emblem, he risked damaging his reputation with voters if he told them (in his view “lied” to them) that they could elect non-partisan Delegates.
Allegations that a particular law caused a “subjective chill” in a plaintiffs speech are not “an adequate substitution for a claim of specific present objective harm or a threat of specific future harm,” which is necessary for establishing standing in a First Amendment action. Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). However, as the Supreme Court observed in Meese v. Keene, if a law puts a plaintiff “to the Hobson’s choice” of not speaking in a particular way or “suffering an injury to his reputation” by exercising his right to speak in that way, that plaintiff has standing to challenge the constitutionality of the law in question. 481 U.S. at 475, 107 S.Ct. 1862. The underlying theory is that reputational damage to an individual, particularly a political figure, is a cognizable injury for purposes of Article III standing.
Contrary to Davis’s arguments on appeal, the Meese theory of reputational harm is not applicable in the circumstances presented. Nothing about the Candidate Laws require any future candidate for Delegate to be affiliated, with any political party or group. For that reason, Davis
While the law obliges prospective candidates for Delegate to list the name and emblem of a nominating body on their nominating petition it does not require that that body be a political organization. In fact, the “nominating body” need not be a “body” at all; it can be an entirely fictional construction invented for the sole purpose of meeting the requirements of the Candidate Laws. See N.Y. Elec. Law § 6-138(3)(f) (explaining that the purpose of having a nominating body name and emblem listed on a ballot is “to distinguish the candidates nominated thereby”). Moreover, the mere fact that a prospective candidate provides a name purporting to represent the 3,000 voters who signed his or her nominating petition does not transform that collection of voters into a cohesive political body in the manner alleged by Davis. To that end, Davis could select a name for his nominating body, such as “Unaffiliated,” “No Party,” or “Non-Partisan,” which signals his lack of affiliation with any political group. He might even choose the name of his already existing finance committee, “Friends of E. Davis,” which, despite identifying a group of individuals supportive of Davis’s candidacy for Delegate, paradoxically does not cause Davis the same reputational harm allegedly caused by the Candidate Laws.
In sum, we agree with the District Court that Davis has failed to allege any “injury in fact” and, therefore, has not established that he has standing, at this moment, to challenge the constitutionality of the Candidate Laws. See Walsh, 714 F.3d at 688. In addition, because Davis argues that he has third-party standing on the basis of the same alleged injuries, we conclude that he lacks third-party standing as well. Finally, we need not address the District Court’s alternative grounds for dismissing Davis’s complaint — a lack of prudential ripeness — because we have already concluded that the District Court lacks subject-matter jurisdiction.
CONCLUSION
We have considered all of the arguments raised by Davis and find them to be without merit. For the foregoing reasons, the November 7, 2016 order is AFFIRMED.
. The physical constraints of the ballot prevent more than fifteen letters of a party’s or a nominating body’s name from appearing on a printed ballot. Names that are longer than fifteen letters may "be printed on the ballot in an abbreviated form.” N.Y. Elec. Law § 7-104(2).
Reference
- Full Case Name
- Evan A. DAVIS v. NEW YORK STATE BOARD OF ELECTIONS, Peter S. KosinskI, in his official capacity as Commissioner of the New York State Board of Elections, Douglas A. Kellner, in his official capacity as Commissioner of the New York State Board of Elections, Andrew J. Spano, In his official capacity as Commissioner of the New York State Board of Elections, Gregory P. Peterson, in his official capacity as Commissioner of the New York State Board of Elections, New York City Board of Elections, Bianka Perez, in her official capacity as Commissioner of the New York City Board of Elections, John Flateau, in his official capacity as Commissioner of the New York City Board of Elections, Michael A. Rendino, in his official capacity as Commissioner of the New York City Board of Elections, Alan Schulkin, in his official capacity as Commissioner of the New York City Board of Elections, Lisa Grey, in her official capacity as Commissioner of the New York City Board of Elections, Simon Shamoun, in his official capacity as Commissioner of the New York City Board of Elections, Maria R. Guastella, in her official capacity as Commissioner of the New York City Board of Elections, Michael Michel, in his official capacity as Commissioner of the New York City Board of Elections, Frederic M. Umane, in his official capacity as Commissioner of the New York City Board of Elections, Jose Miguel Araujo, in his official capacity as Commissioner of the New York City Board of Elections, City John Doe, Officers of the New York City Board of Elections, State John Doe, Officers of the New York State Board of Elections
- Cited By
- 4 cases
- Status
- Published