OPINION AND ORDER The Libertarian Party of New York (the “Libertarian Party”) and the Green Party of New York (the “Green Party”), together with individual members, have sued the New York Board of Elections (the “NYBOE”), and its chairs, commissioners, and executive directors (together, the “NYBOE Defendants”), alleging that the amendments to the New York Election Law found in Sections 9 and 10 of Part ZZZ of the 2020-2021 Fiscal Year New York State Budget Bill (“Part ZZZ”), violate the plaintiffs’ First and Fourteenth Amendment rights. Section 10 of Part ZZZ amended the overall number of votes required for a political organization to qualify as a “party” and the frequency with which parties must requalify (“Party Qualification Requirement”). Section 9 of Part ZZZ increased the number of signatures required for a candidate to gain access to the ballot by an independent nominating petition (“Petition Requirement”). As amended, the New York Election Law now requires that a political organization’s chosen candidate must receive the greater of 130,000 votes or 2 percent of votes cast in the previous presidential or gubernatorial election, whichever is more recent, to qualify as a recognized party. Because the respective presidential candidates of the Libertarian Party and the Green Party both failed to achieve the required vote threshold in the 2020 presidential election, both have been decertified as recognized political parties by the NYBOE. Thus, to gain access to the ballot in 2022, candidates from the Libertarian Party and the Green Party must file independent nominating petitions. For gubernatorial candidates, such nominating petitions must be submitted with signatures from 1 percent of the number of votes cast in the last gubernatorial election (up to 45,000), and at least 1 percent of such enrolled voters (up to 500) must reside in each of one-half of New York’s 27 congressional districts. The plaintiffs have moved for a preliminary injunction to require the NYBOE to reinstate the Libertarian Party and the Green Party as recognized parties for the 2022 gubernatorial election, and to enjoin the NYBOE Defendants from continuing to implement Sections 9 and 10 of Part ZZZ. Because the plaintiffs have failed to demonstrate that the challenged amendments violate their Constitutional rights, otherwise cause irreparable harm to the plaintiffs absent relief at this time, or be against the public interest, their motions are denied. I. The plaintiffs have challenged Sections 9 and 10 of Part ZZZ, and thus, this case involves substantially similar facts to those at issue in SAM Party v. Kosinski, 483 F. Supp. 3d 245 (S.D.N.Y. 2020), aff’d sub nom. SAM Party of New York v. Kosinski, 987 F.3d 267 (2d Cir. 2021).1 A. Under the New York Election Law, a political organization that supports candidates for public office can be designated either as a “party” or an “independent body.” N.Y. Elec. Law §§1-104(3), (12). Following the challenged amendments contained within Section 10 of Part ZZZ, that took effect on April 3, 2020, a political organization’s candidate for governor or president must have received the greater of 130,000 votes, or 2 percent of the total votes cast, in the most recent presidential or gubernatorial election for that organization to qualify as a recognized “party.” N.Y. Elec. Law §1-104(3). A political organization that fails to satisfy such requirements is an “independent body.” N.Y. Elec. Law §1-104(12). Recognized parties enjoy certain practical benefits that independent bodies do not, such as the authority to maintain a segregated financial account, to which ordinary contributions limits do not apply, for certain expenditures. N.Y. Elec. Law §14-124(3). Registered parties also appear on voter-registration forms so that voters can register as party members, N.Y. Elec. Law §§5-210(5) (k) (x), 5-300, enabling parties greater ease in connecting with potential supporters. Compl. 25. And, as particularly relevant for this case, each recognized party receives a “berthing” for the winner of the party’s nomination process on general election ballots for certain state-wide elections. Brehm Decl. 5; N.Y. Elec. Law §§6-102, 6-104, 6-106, 6-114.2 By contrast, independent bodies are not provided with a guaranteed ballot “berth” and must nominate candidates directly onto the general election ballot, by submitting independent nominating petitions. N.Y. Elec. Law §6-142. The candidates of independent bodies appear with their political organization’s name and emblem on the nominating petition, and, if successful in satisfying the Petition Requirement, on the ballot. N.Y. Elec. Law §6-138(2)-(3); Compl. 26. Following the challenged amendments in Section 9 of Part ZZZ, nominating petitions for statewide office must be signed by the lesser of 45,000 registered voters or 1 percent of the votes cast in the last gubernatorial election. N.Y. Elec. Law §6-142. The signatures are required to be from registered voters who have not yet signed a different petition for the same office. N.Y. Elec. Law §6-138(1). In addition, of the required signatures, at least 500 (or 1 percent of enrolled voters, whichever is less) must be from signatories residing in each of one-half of the State’s 27 congressional districts. N.Y. Elec. Law §6-142(1). Finally, the petition can only be circulated during a specific, prescribed 6-week period. N.Y. Elec. Law §6-138(4). For 85 years, New York conferred recognized “party” status on any political organization whose candidate in the prior gubernatorial election received at least 50,000 votes. Declaration of Elliot A. Hallak, ECF No. 52 (“Hallak Decl.”), Ex. D 12. Similarly, the number of signatures required for independent nominating petitions was set in 1911 at 6,000, which was then raised in 1922 at 15,000, and then raised again in 1971 to 20,000, before being lowered, in 1992, to 15,000. Declaration of Robert A. Brehm, ECF No. 51 (“Brehm Decl.”)
66.3 The 6-week or 42-day collection period for signatures was adopted in 1946. 1946 N.Y. Sess. Laws, Ch. 17, §137(4). The amended Party Qualification Requirement and Petition Requirement that the plaintiffs challenge developed from the recommendations of a special commission, established to design a public campaign finance system for New York State and recommend electoral reforms. Part XXX of the 2020 Fiscal Year Enacted Budget created the New York State Campaign Finance Review Commission (the “Commission”) as a “public campaign financing and election commission to examine, evaluate and make recommendations for new laws.” 2019 N.Y. Sess. Laws, Ch. 59, Part XXX, §1(a). Part XXX instructed the Commission to make its recommendations “in furtherance of the goals of incentivizing candidates to solicit small contributions, reducing the pressure on candidates to spend inordinate amounts of time raising large contributions for their campaigns, and encouraging qualified candidates to run for office.” Id. The Commission was also instructed to “determine and identify new election laws” relating to, among other things, “rules and definitions governing: candidates’ eligibility for public financing; party qualifications; multiple party candidate nominations and/or designations…” Id. §2(j). In addition, Section 3 of Part XXX required that the Commission design the public campaign finance system such that it could be administered with costs under $100 million annually. 2019 N.Y. Sess. Laws Ch. 59, Part XXX §3. Part XXX required the Commission to submit its report by December 1, 2019 and stated that its recommendation “shall have the full effect of law unless modified or abrogated by statute prior to December 22, 2019. 2019 N.Y. Sess. Laws Ch. 59, Part XXX §1. The Commission’s Report to the Governor and the Legislature (hereafter, the “Report”) included a series of recommendations to, among other things, establish a voluntary public campaign finance system with matching of small-dollar donations up to certain caps for candidates for state office in primary and general elections. Declaration of Michael Kuzma, ECF No. 46-5 (“Kuzma Decl.”) Ex. D. At issue here, the Commission also recommended changing the Party Qualification Requirement’s vote threshold to 2 percent of the total votes cast for a party’s candidate in the previous gubernatorial or presidential race, or 130,000 votes, whichever is greater. The Commission explained that it made this recommendation because, among other reasons, the “ability of a party to demonstrate bona fide interest from the electorate is paramount in ensuring the success of a public campaign finance system,” and that “setting a rational threshold for party ballot access, based on a demonstration of credible levels of support from voters in this state, helps to ensure that the political parties whose candidates will draw down on public funds under the public matching program reflect the novel and distinct ideological identities of the electorate of New Yorkers who ultimately fund this public campaign finance program.” Kuzma Decl. Ex. D, at 28; Compl. 106. The Commission noted its belief that raising the Party Qualification Requirement’s threshold to a level that “retained a measure of proportionality” would “actually increase voter participation and voter choice, since voters will now be less confused by complicated ballots with multiple lines for parties that may not have any unique ideological stances,” and that the higher thresholds will enable voters to “make more resolute choices between candidates” because they can “rely upon the knowledge that such parties have sufficient popular support from the electorate of this state.” Report at 14-15. The Commission also noted the changes to the Party Qualification Requirement were also important for “craft[ing] a public campaign finance system that remains within the enabling statute’s limitation of $100 million annual cost.” Id. at 14. The Commission detailed in its Report that in. seeking to arrive at a “rational” threshold, it considered New York’s historical experience, as well as the party qualification criteria and nominating petition thresholds from other states. Report at 41-47. The Commission considered the frequency with which other states required parties to requalify, the number of votes required to requalify, whether qualification thresholds were made in reference to presidential and/or gubernatorial elections, whether states had public campaign finance systems, and whether states permitted fusion voting. Id. Minutes from the Commissions’ meetings and statements from the individual Commissioners, included as part of the Report, reveal that a proposal of a 3 percent vote threshold for the Party Qualification Requirement was considered and rejected, that the appropriate threshold was actively debated, and that the 2 percent vote threshold was a compromise based upon the information considered and competing policy views. See, e.g., Report at 48 (Statement of Commissioner Kimberly A. Galvin), 52 (Statement of Commissioner Denora Getachew), 62-64 (Statement of Commissioner Jay Jacobs), 67 (Statement of Commissioner John M. Nonna), 81 (Statement of Commissioner David C. Previte), and 133 (Minutes from November 25 Meeting at Westchester Community College). As a “corollary” to the recommended changes to the Party Qualification Requirement, the Committee also recommended increasing the number of signatures required for independent nominating petitions, used by a candidate supported by independent bodies or otherwise unaffiliated with a party to access the general election ballot. Report, at 15. From 1922 to November 2020, New York experienced over a four-fold increase in the number of enrolled voters. Brehm Decl. 67. The Commission’s recommendation of 45,000 signatures amounts to 0.74 percent of the voters who voted in the 2018 New York gubernatorial election and only 0.33 percent of New York’s 13.55 million registered voters. Brehm Decl. Exs. A, B. The Commission issued its Report on December 1, 2019. Because the New York State Legislature did not pass any statutes modifying or abrogating the Commission’s recommendations, the recommendations putatively acquired the “full effect of law” by December 22, 2019, and the relevant amendments to the party qualification requirements took effect on January 1, 2020. In an unrelated proceeding, a group of plaintiffs challenged the Commission and its Report in New York state court. On March 12, 2020, the New York State Supreme Court ruled that the New York State Legislature improperly delegated legislative authority to the Commission, and as a result the Commission’s recommendations did not have the force of law. Compl. 48. In response, Part ZZZ was added to the 2020-2021 Fiscal Year New York State Budget Bill, which the New York State Legislature passed, and Governor Cuomo signed into law on April 3, 2020. Compl. 72. Part ZZZ amended the New York Election Law to enact the recommendations of the Commission, including an amendment to Section 1-104(3) to modify the definition of “party” to include the new Party Qualification Requirement and an amendments to Section 6-142(1) to include the amended Petition Requirement. 2020 N.Y. Sess. Laws Ch. 58, Part ZZZ. B. The Libertarian Party is the New York State “affiliate” of the national Libertarian Party, which the plaintiffs allege is the third-largest political party in the United States. Compl. 7. Anthony D’Orazio is the Chair of the New York State Libertarian Party, and Larry Sharpe was the Libertarian Party candidate for governor in 2018. Compl.
