Deutsch v. N.Y. State Bd. of Elections

HANNA ABIGAIL DEUTSCH, et al., Plaintiffs, v. NEW YORK STATE BOARD OF ELECTIONS, et al., Defendants.

20 Civ. 8929 (LGS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 30, 2020

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:

Plaintiffs, twelve prospective United States voters residing in Israel, seek an injunction requiring New York state county boards of election to accept their voter registration applications for the upcoming November 3, 2020, general election. Plaintiffs emailed their applications to registration authorities after the October 9, 2020, deadline specified by New York law. Plaintiffs claim they have been disenfranchised because New York law permits county election boards to accept applications received through traditional mail by October 14, 2020, as long as those applications were postmarked by October 9, 2020.

Plaintiffs' motion is denied because New York law treats all prospective voters equally, regardless of whether they apply to vote via email or traditional mail. All individuals seeking voter registration in New York were required to submit their applications by October 9, 2020. All individuals who failed to send their applications by that date may not register to vote. That deadline is clearly specified in New York's election law and on the New York State Board of Elections' website.

A law setting a reasonable deadline by which voters must register for an election disenfranchises no one, but instead ensures the orderly, accurate and reliable administration of elections. Indeed, registration deadlines of similar length are routinely upheld by courts nationwide, in recognition of the established principle that voters must take timely action to comply with reasonable state election restrictions. Accordingly, New York's requirement that voters submit a registration approximately three and a half weeks before the election places no undue burden on Plaintiffs' rights.

As further explained below, Plaintiffs' motion for temporary and permanent injunctive relief is denied. Defendants' motion for summary judgment as to Plaintiffs' First Amendment, equal protection and § 1983 claims is granted.

I. BACKGROUND

The New York Election Law ("NYEL") delegates administration of New York elections to fifty-eight local county boards of election, which process voter registration applications, register voters, and send and count absentee ballots. NYEL §§ 1-100 et seq. The Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20102 et seq. ("UOCAVA") is the federal law governing registration and voting for "Special Federal Voters" -- United States citizens living outside the United States, as well as their children. The UOCAVA is also referred to as the "Post Card" law, because it uses an official "Federal Post Card Application" form ("FPCA"). An FPCA serves two functions. It may be used as a registration form for overseas voters, and it may be used to apply for an absentee ballot. Generally, a Special Federal Voter registers to vote by sending an FPCA to the appropriate local state election board. If the applicant meets statutory requirements, the local board sends an absentee ballot by email, fax or mail. The voter must send the absentee ballot and a hard copy of the registration application to the board, postmarked by the date of the election in question.

The UOCAVA places requirements on state election authorities regarding procedures for Special Federal Voters. In New York, those requirements are implemented by Articles 10 and 11 of the New York Election Law ("NYEL"). See N.Y. Elec. Law. § 11-200 et seq. The New York State Board of Elections ("NYSBOE") permits Special Federal Voters to submit their FPCAs by conventional mail, fax or email. Special Federal Voters like Plaintiffs, who have never resided in the United States, may register using their parent's New York address. NYEL § 11-200(1-a).

NYEL § 11-202(1)(a) (the "Deadline Provision") specifies that Special Federal Voters may vote "by application received by the state board of elections or any local board of elections on or before the twenty-fifth day next preceding any election in which such person would be entitled to vote . . . ." The relevant registration deadline for the November 3, 2020, general election ("General Election") is twenty-five days prior, or October 9, 2020. This date matches the date by which non-Special Federal Voters must submit registration applications in New York: (i) NYEL § 5-210(3), which governs traditional mail-in registrations, specifies that a voter may not be registered unless their application form is postmarked by twenty-five days before the election and (ii) NYEL § 5-212(7), which governs online registration through the New York Department of Motor Vehicles, requires submission of completed applications by twenty-five days before the election.

NYEL § 5-210(3) also specifies that non-Special Federal Voter registration applications may be processed by county election boards if received no later than twenty days before the election. So, as relevant to the General Election, non-Special Federal Voter applications submitted pursuant to § 5-120(3) must be (i) postmarked by October 9, 2020, and (ii) received by October 14, 2020.

Consistent with NYEL § 11-202(1)(a), the portion of the NYSBOE's website addressing Special Federal Voters states that October 9, 2020, is "[t]he last day for a board of elections to receive [an] application for [a] Special Federal voter for absentee ballot by mail if NOT previously registered. Sec. 11-202(1) [the Deadline Provision]." Consistent with NYEL § 5-210(3), the portion of the NYSBOE website addressing mailed-in registrations per § 5-210(3) states that "Applications must be postmarked no later than October 9, 2020 and received by a board of elections no later than October 14, 2020 to be eligible to vote in the General Election." The website of the Federal Voting Assistance Program ("FVAP"), a federal organization responsible for promulgating information to assist overseas voters, states that New York registration requests for overseas voters like Plaintiffs must be "Received by* October 14, 2020." The asterisk notes, "General election registration requests must be postmarked by October 9, 2020."

The twelve Plaintiffs, who reside in Israel and have never lived in the United States, are children of United States citizens who previously lived in New York. On September 18, 2020, Israel entered a mandatory lockdown due to a spike in COVID-19 cases. During that lockdown, which lasted until October 18, 2020, Plaintiffs were confined to their homes. Unable to visit the post office, Plaintiffs elected to email their FPCAs to their county boards of election. After reviewing the deadlines on the NYSBOE and FVAP websites, Plaintiffs concluded that they could email their FPCAs by October 14, 2020. Plaintiffs emailed their FPCAs between October 10 and 14, 2020. Several received rejections from their local county board of election due to not sending the FPCA by October 9, as required by the Deadline Provision, while others have received no response. Plaintiffs, through counsel, corresponded with the NYSBOE fromOctober 15, 2020, to October 22, 2020. On October 22, 2020, the NYSBOE declined to accept Plaintiffs' emailed FPCAs, citing the October 9 cutoff established by the Deadline Provision.

On October 26, 2020, Plaintiffs filed their Complaint against: the NYSBOE; Peter S. Kosinski, Andrew Spano and Douglas A. Kellner, Commissioners of the NYSBOE; Todd Valentine and Robert Brehm, NYSBOE Co-Executive Directors; and Governor Andrew M. Cuomo, all in their official capacities (collectively "Defendants"). The Complaint pleads four causes of action: that (i) the statutory framework of the NYEL violates the First Amendment right to free speech by removing Plaintiffs' right to vote; (ii) the Deadline Statute violates the Fourteenth Amendment's Equal Protection Clause, either because it imposes different receipt dates for physically-mailed applications and emailed FPCAs or because some county boards of election, but not others, have accepted FPCAs emailed after October 9; (iii) the Deadline Statute is unconstitutionally vague as applied to Plaintiffs; and (iv) the alleged loss of voting rights and equal protection violations also create a right to monetary damages under 42 U.S.C. § 1983. Plaintiffs seek: (i) a declaratory judgment that their rights have been violated; (ii) preliminary and permanent injunctions requiring county boards of election to accept all FPCAs emailed on or before October 14, 2020; (iii) immediate issuance of absentee ballots to voters who emailed FPCAs on or before October 14, 2020, as well as acceptance of any Federal Write-In Absentee Ballots sent by such individuals after their FPCAs were rejected; and (iv) compensatory damages, attorneys' fees and costs.

Alongside their Complaint, Plaintiffs submitted an Emergency Motion for Preliminary Injunction, seeking injunctive relief only on the basis of the alleged First Amendment and equal protection violations. The Court merged the requests for preliminary and permanent injunctive relief into a single application, deeming Plaintiffs' emergency motion to be both a motion for apreliminary injunction and a motion for summary judgment seeking permanent injunctive relief. Defendants oppose the emergency motion and cross-move for summary judgment.

II. DISCUSSION

A. Summary Judgment¹

1. Legal Standard

When parties cross-move for summary judgment, a court must analyze the motions separately, "in each case construing the evidence in the light most favorable to the non-moving party." Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (internal quotation marks omitted). Summary judgment is appropriate where the record establishes that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine issue of material fact...