Brooklyn Branch of Nat'l Ass'n for Advancement of Colored People v. Kosinski

657 F.Supp.3d 504

The BROOKLYN BRANCH OF the NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE, Plaintiff, v. Peter S. KOSINSKI, in his official capacity as Co-Chair of the State Board of Elections; Douglas A. Kellner, in his official capacity as Co-Chair of the State Board of Elections; Anthony J. Casale, in his official capacity as Commissioner of the State Board of Elections; Kristen Zebrowski Stavisky, in her official capacity as Co-Executive Director of the State Board of Elections; Simon Shamoun, in his official capacity as Commissioner of the New York City Board of Elections; Rodney L. Pepe-Souvenir, in her 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; Michael J. Coppotelli, in his official capacity as Commissioner of the New York City Board of Elections; Gino A. Marmorato, in his official capacity as Commissioner of the New York City Board of Elections; Jodi Morales, in her official capacity as Commissioner of the New York City Board of Elections; Keith Sullivan, in his official capacity as Commissioner of the New York City Board of Elections; Patricia Anne Taylor, in her official capacity as Commissioner of the New York City Board of Elections; and Frederic M. Umane, in his official capacity as President of the New York City Board of Elections, Defendants.¹

21 Civ. 7667 (KPF)

United States District Court, S.D. New York

Signed February 23, 2023

Abha Khanna, Elias Law Group LLP, Seattle, WA, Alexi Machek Velez, John Michael Geise, Meaghan Elysia Mixon, Richard Alexander Medina, Elias Law Group LLP, Washington, DC, Andrew G. Celli, Nairuby L. Beckles, Emery Celli Brinckerhoff & Abady, LLP, New York, NY, Adam Hugh Schuman, Perkins Coie LLP, New York, NY, for Plaintiff.

Brian Lee Quail, New York State Board of Elections, Albany, NY, Daniel Robert Lecours, Harris Beach PLLC, Albany, NY, Elliot Aaron Hallak, Albany, NY, Thomas John Garry, Harris Beach PLLC, Uniondale, NY, for Defendants Peter S. Kosinski, Andrew J. Spano, Anthony J. Casale, Todd D. Valentine, Robert A. Brehm.

Brian Lee Quail, New York State Board of Elections, Albany, NY, Daniel Robert Lecours, Harris Beach PLLC, Albany, NY, Douglas A. Kellner, Kellner Herlihy Getty & Friedman LLP, New York, NY, Elliot Aaron Hallak, Albany, NY, Thomas John Garry, Harris Beach PLLC, Uniondale, NY, for Defendant Douglas A. Kellner.

Stephen Edward Kitzinger, New York City Law Depart. Office of the Corporation Counsel, New York, NY, for Defendants Frederic M. Umane, Miguelina Camilo, Jose Miguel Araujo, Gino A. Marmorato, Michael Michel, Rodney L. Pepe-Souvenir, Simon Shamoun, Patricia Anne Taylor, Tiffany Townsend, John Wm. Zaccone.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

The right to vote is among the most fundamental of the rights secured to Americans by our Constitution. It is one of the only methods by which We the People can directly participate in our democracy; it is "preservative of other basic civil and political rights[.]" Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); see also Martin Luther King Jr., Give Us the Ballot Address, Prayer Pilgrimage for Freedom (May 17, 1957) ("Give us the ballot, and we will no longer have to worry the federal government about our basic rights.... [W]e will by the power of our vote write the law on the statute books of the South and bring an end to the dastardly acts of the hooded perpetrators of violence.").

Perceiving the hours-long voting lines in New York's 2020 general election as a threat to the free exercise of this most precious right, the Brooklyn Branch of the National Association for the Advancement of Colored People ("Plaintiff") determined to protest voter suppression and to encourage voters to endure lengthy delays by offering food and drinks to people waiting in line to vote. This practice, colloquially known as "line warming," is a misdemeanor in New York. In this suit, Plaintiff challenges that criminal statute as violative of its and its members' rights under the First and Fourteenth Amendments. Defendants have moved to dismiss Plaintiff's operative complaint on a variety of grounds. For the reasons that follow, Plaintiffs' constitutional claims can proceed to discovery.

BACKGROUND²

A. Factual Background

1. New York's Line Warming Ban and Its Administration

It has long been a crime in New York State to provide food, drink, or other sundries to individuals waiting in line to vote. (See AC ¶ 5). The current iteration of this restriction is Section 17-140 of the New York Election Code ("Section 17-140" or the "Line Warming Ban"), which is titled "Furnishing money or entertainment to induce attendance at polls." In full, Section 17-140 provides:

Any person who directly or indirectly by himself or through any other person in connection with or in respect of any election during the hours of voting on a day of a general, special or primary election gives or provides, or causes to be given or provided, or shall pay, wholly or in part, for any meat, drink, tobacco, refreshment or provision to or for any person, other than persons who are official representatives of the board of elections or political parties and committees and persons who are engaged as watchers, party representatives or workers assisting the candidate, except any such meat, drink, tobacco, refreshment or provision having a retail value of less than one dollar, which is given or provided to any person in a polling place without any identification of the person or entity supplying such provisions, is guilty of a Class A misdemeanor.

N.Y. Elec. Law § 17-140. In New York, Class A misdemeanors are punishable by up to one year's imprisonment or up to three years' probation and a monetary fine. (AC ¶ 23).

The New York State Board of Elections (the "State Board") is a bipartisan agency responsible for enforcing New York's election laws, including the Line Warming Ban. (AC ¶ 14). See also N.Y. Elec. Law §§ 3-102, 107. Defendants Peter S. Kosinski, Douglas A. Kellner, Andrew J. Spano, Anthony Casale, and Kristen Zebrowski Stavisky (the "State Defendants") are members of the State Board and are sued in their official capacities. (AC ¶ 14).³

The New York City Board of Elections (the "City Board") is a bipartisan administrative body composed of commissioners who serve four-year terms. (AC ¶ 15). New York law tasks the City Board with administering elections and operating poll sites within New York City. (Id.). The City Board is responsible for enforcing election laws, including the Line Warming Ban, at the polling sites it manages. (Id.). Defendants Simon Shamoun, Rodney L. Pepe-Souvenir, Jose Miguel Araujo, Michael J. Coppotelli, Gino A. Marmorato, Jodi Morales, Keith Sullivan, Patricia Anne Taylor, Frederic M. Umane (the "City Defendants" and, collectively with the State Defendants, "Defendants"), are members of the City Board and are sued in their official capacities. (Id.).⁴

2. New York's Voting Lines

New York law seeks to ensure that voters do not wait more than thirty minutes to cast their ballots. (AC ¶ 26 (citing N.Y. Elec. Law §§ 3-400(9), 6210.19(c)(3), 6210.19(d)(1), 6211.1(b)(2))). Despite these regulations, many New York voters had to endure long lines to vote in the 2020 general election. (Id. ¶¶ 4, 26). Early voters and election-day voters alike had to wait in voting lines for "upwards of three and four hours." (Id. ¶ 4). Long wait times disproportionately affect poor and minority voters, who routinely must wait three to four times longer to vote than voters in affluent and majority-white communities. (Id. ¶ 27). Long lines also pose a disproportionate challenge to elderly and disabled voters, who may have physical limitations that make standing in line for extended periods difficult. (Id.).

3. Plaintiff's Mission and Activities

Plaintiff is a nonpartisan organization dedicated to "remov[ing] all barriers of racial discrimination through democratic processes, educat[ing] voters on their constitutional rights, and tak[ing] all lawful action to secure the exercise of those rights." (AC ¶¶ 13, 29). For more than a century, Plaintiff has engaged in "voter outreach, education, and activism" to improve access to the franchise, including hosting get-out-the-vote rallies at which it "provides food, refreshments, and entertainment to convey its message of support for voters." (Id. ¶ 29). Plaintiff has concentrated its voter education efforts on New York elections in the past; for instance, it hosted virtual information sessions and candidate forums in the lead-up to the 2021 New York City primary election. (Id.).

Excessively long voting lines are contrary to Plaintiff's mission of expanding the franchise, so Plaintiff "advocates for and hopes that" New York's long voting lines will someday be reduced. (AC ¶ 30; see also id. ¶ 34 ("Supporting voters braving long lines on election day is central to [Plaintiff's] mission[.]")). But so long as long lines are a reality, Plaintiff endeavors to support voters by "mak[ing] the burdensome and difficult experience of waiting in line to vote more bearable, especially for voters in Black and brown communities that have historically suffered disproportionately longer wait times to vote." (Id. ¶ 30). To that end, it has "set aside resources and plans to provide nonpartisan support and assistance to those voters already in line and waiting to cast their ballot to convey the importance of them staying in line, the importance of voting, and emphasizing that everyone's vote counts." (Id. ¶ 32). If not for the Line Warming Ban, Plaintiff and its members and volunteers "would provide sundries such as bottled water, donuts, potato chips, or pizza to voters already waiting in line." (Id. ¶ 30). These efforts would be nonpartisan; Plaintiff does not intend to participate in any partisan activities, including electioneering or other...