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A Manhattan lawyer's challenge to the state's more-than-century-old requirement that a voter declare a political party far in advance of a primary election in order to vote in it has been rejected again—this time by the Appellate Division, First Department.

But attorney Mark Warren Moody remains as “furious” as ever about being denied the opportunity to vote in the 2016 presidential primary. And he says he'll now try to appeal to the state's high court.

On April 19, 2016, the solo practitioner had hustled out of his Midtown law office to a nearby voting site to cast a primary ballot for Bernie Sanders over Hillary Clinton. But as a registered independent with no party affiliation, he was turned away.

Surprised and boiling mad, he next bolted downtown to a building on Varick Street to try to get an at-the-ready election judge to affirm he had the right to vote. A clerk interrupted, though, before he could ever see a judge. His frustration nearing an all-time high, Moody finally showed up at the New York University Palladium on East 14th Street, where he voted by affidavit—an effort allowed by officials, but one that is rarely counted when they tally the final votes.

Moody's putative class-action lawsuit, filed pro se, followed eight days later. But in December 2016, Manhattan Supreme Court Justice Arthur Engoron rejected it. The action had sought a declaratory judgment stating that the state's closed primary election regime—which requires voters to select a party affiliation at least 25 days prior to the general election preceding the primary in which they intend to vote—violated the state constitution.

Now, a unanimous Appellate Division, First Department panel has upheld Engoron's ruling. The panel wrote that it is “settled law” that the early-party affiliation requirement under state Election Law § 5-304 is “rationally related to the legitimate state interests in protecting the viability of the political party system by 'inhibit[ing] party raiding,'” quoting Rosario v. Rockefeller.

Added the panel, “The Election Law gives persons of ordinary intelligence fair notice of what they must do to meet the primary enrollment deadline, and likewise provides 'officials with clear standards for enforcement,'” quoting People v. Stuart.

But to the surprise of few who know Moody as an aggressive litigator and “generalist,” he may not be done yet. He had tried to get his case to the Court of Appeals, by citing an obscure procedural point, before it went to the First Department. Now, he said he intends to seek leave to appeal to the high court—a long shot, but one he'll take.

In an interview Tuesday, the lawyer pointed to 36 words found in Article 1 and Article 2 of the state constitution that he characterizes “as extremely protective” of voter enfranchisement. Further, he argued, “At least the 3.2 million registered independent New Yorkers were disenfranchised in the 2016 primary, because by Oct. 9, 2015—the date by which you had had to change your party enrollment—most people had not heard of Bernie Sanders, and nobody but nobody believed that Donald Trump had a chance to be his party nominee, much less be the president.”

“How can you meaningfully decide who you are going to vote for, at a point at which you don't even know who were the candidates?” the 48-year-old attorney said, adding, “The New York Democratic party said in its rules that you couldn't even begin to petition [to be a candidate] until sometime in September 2015. So it was literally impossible to know who was going to be on the ballot.”

In addition, Moody called New York state the “worst in the nation” in how far in advance primary voters must choose or switch party affiliation before a primary.

It's a point that the political and data-reporting blog FiveThirtyEight appeared to back up in an April 19, 2016, post.

“New York's deadline for switching party registration was Oct. 9, 193 days before the primary,” FiveThirtyEight wrote at the time, before including a chart titled, “New York makes switching your party difficult.” The chart showed that among states without open-voting primaries, New York had the earliest deadline by which citizens must switch party registration.

“Activists have tried to loosen New York's rules, but with few successes,” the blog also noted, adding that “the Voter Empowerment Act, the most recent attempt, is still stalled in committee in the state Senate.” The 2016 post also said that “New York had one of the lowest [voter] turnout rates in the country in 2014, which could help incumbents who have to reach only a small pool of voters.”

Still, First Department Justices John Sweeny, Peter Tom, Ellen Gesmer, Cynthia Kern and Peter Moulton, in their Oct. 11 decision in Moody's case, wrote that “the New York Constitution's voter franchise protection provisions do not require that any heightened scrutiny, beyond that afforded under the U.S. Constitution, be applied to the primary deadline provision. Thus, while the disenfranchisement protections of [state constitution] Article I, § 1, do extend to primary elections, the state nonetheless retains 'plenary power … to promulgate reasonable regulations for the conduct of elections,'” quoting Matter of Davis v. Board of Elections of City of New York.

The justices also said, “Likewise, Article II, § 1, 'was not intended to regulate the mode of elections, but rather the qualification of voters,'” quoting Matter of Schulz v. Horseheads Central School District Board of Education and Matter of Blaikie v. Power, “and thus does not curtail the Legislature's otherwise 'broad authority … to establish rules regulating the manner of conducting both special and general elections,'” quoting Eber v. Board of Elections of County of Westchester.

On Tuesday, Moody could not hide what he called his “extreme disappointment” in the panel's decision.

“It is jurisprudentially false to say that silence on the issue [of the right to vote] in the federal constitution,” which he said the panel pointed to by citing Rosario v. Rockefeller, ”is the equivalent of 36 state constitutional words on the franchise of voters,” he said. He added, “It is intellectual sophistry to conclude that the two are the same, or mean the same thing.”

Then, addressing the panel's concern over “party raiding”—in which one party could use its voters to quickly register for a competing party in a primary and then have them vote for a weak candidate—Moody pointed to the number of open primary states around the country.

He further said, “If there is a concern about party raiding, then it's the state's obligation to show evidence of a real concern. But on this motion to dismiss, there was no evidence provided.”

The state Board of Elections could not be reached for comment on Tuesday. The state Attorney General's Office, which represented the state Board of Elections in Moody's case, also could not be reached. The New York City Law Department, which represented the city Board of Elections, did not return an email seeking comment.