Nichols v. Hochul

76 Misc.3d 379

173 N.Y.S.3d 829

Paul NICHOLS, Gavin Wax, Gary Greenberg, Petitioner,

v.Governor Kathy HOCHUL, Senate Majority Leader and President Pro Tempore of the Senate Andrea Stewart-Cousins, Speaker of the Assembly Carl Heastie, New York State Board of Elections, New York State Legislative Task Force on Demographic Research and Reapportionment, Respondent.

Index No.154213/2022

Supreme Court, New York County, New York.

Decided on May 25, 2022

Walden Macht & Haran, LLP, New York City (James Walden of counsel), for Paul Nichols and another, petitioners.

Law Office of Aaron S. Foldenauer, New York City (Aaron Shane Foldenauer of counsel), for Gavin Wax, petitioner.

Letitia James, Attorney General, New York City (Seth Farber of counsel), for Kathy Hochul, respondent.

Phillips Lytle, LLP, Buffalo (Craig R. Bucki of counsel), for Carl Heastie, respondent.

New York State Board of Elections, Albany (Brian Quail of counsel), for New York State Board of Elections, respondent.

Laurence L. Love, J.

The decision on Petitioners’ Order to Show Cause, seeking an Order 1. Declaring pursuant to CPLR § 3001 that the 2022 state assembly map, ("New Assembly Map") see 2021—2022 NY Reg. Sess. Leg. Bills A.9040-A and A.9168, is void based upon the constitutional flaws in its adoption previously found by the Court of Appeals; 2. Appointing a special master to adopt a legally compliant state assembly map; 3. Enjoining Respondents to adjourn the primary election date for state and local elections to August 23, 2022, or, alternatively, September 13, 2022; 4. Enjoining Respondents to open designating and independent nominating petition periods, see NY Elec. Law §§ 6-134, 6-138, for statewide, congressional, state assembly, state senate, and local offices with deadlines sufficient for current candidates to obtain new designating petition signatures or run independently, and for potential candidates to newly qualify for primary elections or as an independent in the general election; and 5. Suspending or enjoining the operation of any other state laws, or vacating any certifications or other official acts of the acts of the New York State Board of Elections or other governmental body, that would undermine this Court's ability to offer effective and complete relief for the November 2022 elections and related primaries and seeking a Temporary Restraining Order and Preliminary Injunction for related relief is as follows:

Petitioners commenced the instant Petition on May 15, 2022 seeking a declaration, pursuant to CPLR § 3001, that the New Assembly Map is void based upon the related ruling of the Court of Appeals in Harkenrider v. Hochul , ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 N.Y. Slip Op. 02833, 2022 WL 1236822 (" Harkenrider III ")(affirming as modified the Appellate Division, Fourth Department's ruling in Harkenrider v. Hochul , 204 A.D.3d 1366, ––– N.Y.S.3d ––––, 2022 N.Y. Slip Op. 02648, 2022 WL 1193180 [" Harkenrider II "]) and the present Order to Show Cause was presented to this Court on May 18, 2022.

The Court heard oral argument in this matter on May 23, 2022, wherein all parties had an opportunity to highlight their positions. To be clear, there were representations made by both sides via hearsay and speculation as to motives of various parties, alleged investigations and conspiracy theories. Said representations are irrelevant, have no place in the matter before this Court and are therefore being disregarded.

The Court is fully aware of the prior litigation initiated in the Supreme Court of the State of New York, Steuben County, which was appealed to the Appellate Division, Fourth Department and thereafter the New York State Court of Appeals which resulted in the matter being remanded to Steuben County, where a special master was appointed, who created new congressional and state senate maps on May 20, 2022 The instant matter cannot be properly addressed without a clear understanding of the timeline concerning the adoption of and resulting challenges to the redistricting maps for the New York state assembly, the state senate and congress in New York. On February 2, 2022 the New York State Legislature passed and Governor Kathy Hochul signed into law the aforementioned new maps. On the same day, Petitioners, Tim Harkenrider, et al. filed a Petition in the Supreme Court of the State of New York, Steuben County, entitled Harkenrider v. Hochul , under Index No. E2022-0116CV, 2022 WL 1721444, challenging the constitutionality of the redistricting map for the United States congress and thereafter on February 8, 2022, Petitioners filed an Amended Petition further challenging the constitutionality of the redistricting map for the New York state senate, which specifically stated that no challenge was being pursued related to the New Assembly Map. No parties, including but not limited to Petitioners in the present action, sought to intervene or otherwise challenge the New Assembly Map at that time. On March 31, 2022, following a bench trial, the Hon. Patrick F. McAllister, A.J.S.C. issued an Order declaring not only that the United States congressional and state senate maps are unconstitutional based upon partisan gerrymandering, but also sua sponte ruled that the New Assembly Map was similarly invalid. On April 21, 2022 the Appellate Division, Fourth Department, issued a ruling in pertinent part reversing the lower court's ruling as to the New York state senate and assembly maps. Thereafter, on April 27, 2022, the Court of Appeals issued a decision affirming, as modified, the Appellate Division's holding in Harkenrider II , invalidating the congressional and state senate maps and remanding the matter to the Supreme Court, Steuben County to, with the assistance of the special master and other relevant submissions adopt constitutional maps with all due haste, recognizing that "Although it will likely be necessary to move the congressional and senate primary elections to August, New York routinely held a bifurcated primary until recently, with some primaries occurring as late as September. We are confident that, in consultation with the Board of Elections, Supreme Court can swiftly develop a schedule to facilitate an August primary election, allowing time for the adoption of new constitutional maps, the dissemination of correct information to voters, the completion of the petitioning process, and compliance with federal voting laws, including the Uniformed and Overseas Citizens Absentee Voting Act (see 52 USC § 20302 )." Vital to the matter before this Court, the Court of Appeals found that "Inasmuch as petitioners neither sought invalidation of the 2022 state assembly redistricting legislation in their pleadings nor challenge in this Court the Appellate Division's vacatur of the relief granted by Supreme Court with respect to that map, we may not invalidate the assembly map despite its procedural infirmity." Harkenrider v. Hochul , ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 WL 1236822, at *11, footnote 15.

Following the Court of Appeals ruling in Harkenrider III , Petitioners Gavin Wax and Gary Greenberg moved pursuant to CPLR § 1012 and § 1013 to intervene in the Steuben County case for the express purpose of having the assembly map declared unconstitutional and redrawn by the special master. On May 11, 2022, the Supreme Court denied the Petitioners’ motion to intervene. In denying said motion, Acting Justice McAllister specifically found that,

From the time the Petitioners filed their Amended Petition in early to mid-February it was clear that the Petitioners were not specifically challenging the Assembly maps. (pg. 1)

Although this court's ruling on March 31, 2022 sua sponte threw out the Assembly maps there was nothing in the proceedings leading up to the court's decision that would have led these putative intervenors to think that the Assembly District maps were being included in this action. (pg. 2)

both Greenberg and Wax were aware of this pending action shortly after it was commenced in February, 2022. Hence, it cannot be said the putative intervenors did not know about the action or the potential impact it could have on them. Yet they chose to do nothing at that time. (pg. 3)

Not only do intervenors, Greenberg and Wax, want new Assembly maps, but they are asking the court to invalidate all the signatures previously gathered, create new time periods for gathering signatures after new maps are enacted, change the signature requirements for both primary and independent petitions, etc. Overseas primary ballots for the June 28, 2022 primary are scheduled to be mailed out this week on May 13th. (pg. 3)

The court is mindful that a change in the Assembly Districts would impact several other elected officials. This would include delegates to the State Supreme Court judicial nominating conventions, representatives to county party committees, and the New York State Democratic Committee. In the case of the judicial nominating conventions they are normally held in early August which would be well before the August 23rd primary. So the judicial nominating conventions would have to be pushed back until some time in September making it difficult, if not impossible, for their work to be completed so candidates could be placed on the November ballot. The overseas ballots for the November election must be mailed in September to meet Federal election requirements.

For the above reasons, said motion was denied as untimely. Said ruling was not appealed. Instead, petitioners filed the instant Petition and the instant Order to Show Cause seeking a Temporary Restraining Order and Preliminary Injunction on or about Sunday, May 15, 2022.

A preliminary injunction is appropriate when the party seeking injunctive relief establishes: (1) likelihood of ultimate success on the merits; (2) irreparable injury if the injunction is not granted; and (3) a balancing of the equities in its favor. See Four Times Square Assocs., L.L.C. v. Cigna Investments, Inc. , 306 A.D.2d 4,...