Case: Conservative Party of New York State v. New York State Board of Elections
1:10-cv-06923 | U.S. District Court for the Southern District of New York
Filed Date: Sept. 14, 2010
Closed Date: Nov. 6, 2018
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Case Summary
This case was a challenge by minor political parties as to the constitutionality of New York Election Law § 9-112(4). New York permits a political candidate to accept the nomination of multiple political parties. As a result, such candidate’s name can appear on a ballot multiple times, once for each party for which the candidate accepted a nomination. Under New York Election Law § 9-112(4), if a voter “double votes” by voting for one candidate on more than one party line, only the “first” vote is counted. The New York State Board of Election (NYSBOE) then credits the vote to the party listed first on the ballot. Consequently, where a voter has “double voted,” the vote will generally be credited to one of the two major political parties, which are listed first on the ballot. Crediting votes to specific political parties has an effect on two issues: ballot access and ballot order. A party must earn 50,000 votes in a gubernatorial race to be deemed a full-fledged political party, thereby gaining access to guaranteed placement on future ballots. Additionally, the number of votes earned by a particular party in a gubernatorial race determines the order in which the parties appear on the ballot for the next four years.
Two minor political parties, the Conservative Party of New York and the Working Families Party, filed suit in the U.S. District Court for the Southern District of New York on September 14, 2010 against the NYSBOE. The plaintiffs were represented by private counsel and the Brennan Center for Justice at New York University School of Law. The plaintiffs sued under 42 U.S.C. § 1983, seeking injunctive relief and attorney's fees. The case was assigned to District Judge Jed S. Rakoff.
The plaintiffs argued that the freedom of association, right to due process, and right to equal protection protected by the First and Fourteenth Amendments of the U.S. Constitution include the fundamental right to engage in partisan political organization, to vote for the candidates and parties of one’s choice, and to have one’s votes counted. The plaintiffs alleged that the statute placed severe burdens on voters and minor political parties, was blatantly discriminatory, stifled political competition from minor political parties, and could not be justified by a compelling or important government interest. Prior to 2010, most votes in New York were cast using lever machines that physically prevented a voter from double voting, so the statute at issue was not generally applicable. Beginning in 2010, however, most votes were cast with optical scanner voting machines, which could not physically prevent double voting.
The plaintiffs sought preliminary injunctive relief in advance of the 2010 general election to ensure that New York State’s optical scanner voter machines would notify voters who cast “double votes” to allow such voters to vote for their selected candidate only on one party line, or, alternatively, to credit all “double votes” in the 2010 general election to all parties receiving a double vote, for purpose of ballot access and ballot order. The plaintiffs also sought permanent injunctive relief to ensure that optical scanner voting machines would adequately inform voters who cast “double votes” that only one vote on one party line could be submitted. In addition, the plaintiffs sought reasonable attorney's fees and costs.
The plaintiffs filed a motion for a preliminary injunction on October 1, 2010 to ensure that voting machines would inform voters of “double votes,” notify voters about the consequence of voting for a candidate on more than one party line, and provide voters with the opportunity to correct their ballots; or, in the alternative, to segregate and preserve all ballots with double votes in the 2010 general election. On October 15, 2010, the court denied the motion, finding that the plaintiffs had filed their complaint too close—a mere six weeks prior —to the November 2010 election to grant the relief sought.
The NYSBOE moved to dismiss the complaint on November 9, 2010. The Court found that the complaint lacked sufficient precision and granted the plaintiffs leave to replead. On December 20, 2010, a First Amended Complaint was filed with the addition of the New York Taxpayers Party as an additional plaintiff. The NYSBOE moved to dismiss again on January 10, 2011 arguing that the plaintiffs were technically unincorporated associations, which, under New York General Association Law § 12, did not have standing to bring suit. As a result, the NYSBOE argued that only a president, treasurer, or other officer could bring suit on behalf of the minor parties, as unincorporated associations. The Court permitted the plaintiffs to file a Second Amended Complaint to correct this technical point, which the plaintiffs filed on February 3, 2011. The Second Amended Complaint modified the First Amended Complaint only with regard to having certain officers file suit on behalf of the minor political parties.
Under the Second Amended Complaint, the plaintiffs alleged that the double vote counting law discriminated against minor political parties because minor political parties received no credit for double votes. Moreover, the law severely burdened minor parties’ ability to compete with major parties by severely restricting such parties’ ability (1) to affect public policy, (2) to raise money and attract new members, (3) to recruit candidates, (4) to secure a place on future ballots, (5) to secure favorable placements on ballots, and (6) to ensure that their own voters could express support for the minor party. Based on available election data, the plaintiffs alleged that there likely had been tens of thousands of double votes in the 2010 general election that could have affected the plaintiffs’ ability to appear on ballots for the subsequent four years. Finally, the plaintiffs alleged that the effect of the double vote counting rule was exacerbated by the failure to provide voters with any meaningful warning that a double vote would automatically be credited to a major party. The plaintiffs therefore sought (1) to have the double voting law declared unconstitutional, (2) to permanently enjoin the NYSBOE from enforcing the policy of crediting double votes to a major party, (3) to order the NYSBOE to implement a double vote counting rule not discriminatory against minor parties, and (4) to order the NYSBOE to ensure that optical scanner voting machines would notify voters of double votes and to provide those voters with an opportunity to correct their ballots. In addition, the plaintiffs sought reasonable attorney's fees and costs.
The court denied the motion to dismiss on February 10, 2011 (although signed on February 9, 2011), the reasoning for which was set out in an opinion dated May 10, 2011. In the NYSBOE’s motion to dismiss, it argued that the plaintiffs did not have standing to sue because they had failed to allege any actual injury to themselves. This argument was dismissed from the bench, with the Court reasoning that the case law was clear that the “injury in fact” for an equal protection case is the denial of equal treatment from the imposition of a barrier, rather than the ultimate ability to obtain benefits if the barrier is eliminated. Furthermore, the court found that the plaintiffs' factual allegations were sufficient to raise a right to relief above the speculative level. The court agreed that the distinction between a minor political party and an independent body was important in terms of ballot access, and that the double vote count rule burdened minor parties and independent bodies by making it difficult for them to earn enough votes to be treated as a party. Additionally, the court agreed that, although the plaintiffs were not arguing that they deserved to appear at the top of the ballot, the statute did appear to discriminate in the process of determining ballot order. The court also agreed that the statute imposed a burden on the ability of minor parties to influence public policy, and to recruit candidates and members. The court also agreed that the statute allowed the NYSBOE to distort how voters actually intend to vote.
The NYSBOE argued that New York State had a compelling interest in ensuring that candidates with the most support actually won their races and that elections were run smoothly and efficiently. The NYSBOE claimed that those goals were met by the method of counting double votes. The NYSBOE argued that the statute was the only option that (1) assured that a voter’s choice of candidate was captured and recorded, (2) assured that only one vote for a candidate was counted, (3) treated all minor parties the same, (4) counted the vote for a party whose ballot position was already secure, (5) operated so that the vote was typically credited to the candidate’s own party, and (6) was nondiscriminatory because it was objectively neutral.
The court, however, was not persuaded that the statute was the least restrictive means available for achieving the interest of protecting the integrity, fairness, and efficiency of ballots and the election process. The court found that the plaintiffs had sufficiently alleged that the statute burdened their First and Fourteenth Amendment rights and that New York State had not established the least restrictive alternative to achieve its purported justification of the statute.
Ultimately the court approved a consent decree on September 8, 2011. Until the earlier of the amendment of the statute or the completion of the 2018 general election, the NYSBOE agreed that it would: (1) reprogram optical scan voting machines to alert voters to double voting, explain the consequences of double voting, and provide voters with a meaningful opportunity to change their ballots, (2) arrange for optical scan voting machines to be reprogrammed to capture and record the total number of double votes cast on any machine and have each county’s Board of Elections (BOE) configure its voting machines as such, (3) provide each county’s BOE with a notice warning voters against and explaining the consequences of double voting and make such notices easily visible in the polling location, near voter booths, and available for poll workers to provide to voters, (4) include instructions concerning double voting in all poll worker training materials and have each county’s BOE distribute those instructions, (5) instruct each county’s BOE to provide voters a meaningful opportunity to change their ballots in case of a double vote, (6) instruct all employees, agent, and representatives of the NYSBOE and each county’s BOE to abide by the terms of the Consent decree; (7) instruct each county’s BOE of an obligation to inform voters on the proper way to vote to avoid casting a double vote; and (8) notify the plaintiffs immediately if voting machines could not be programmed in accordance with the previous stipulations so that the parties could engage in good faith negotiations to amend those stipulations as necessary.
Programming changes were required to be implemented in time for the November 2012 general election and all other provisions were to be implemented no later than the November 2011 General election. Additionally, the NYSBOE was ordered to pay $199,000 in attorneys fees and costs. As of October 2022, this case was closed.
Summary Authors
Shannon Shen (10/25/2022)
People
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4348129/parties/conservative-party-of-new-york-state-v-new-york-state-board-of-elections/
Celli, Andrew G. (New York)
Bee, Peter A (New York)
Brown, Patrick E. (New York)
Bucki, Craig R. (New York)
Camhi, Stanley Albert (New York)
Documents in the Clearinghouse
Docket
See docket on RECAP: https://www.courtlistener.com/docket/4348129/conservative-party-of-new-york-state-v-new-york-state-board-of-elections/
Last updated April 16, 2026, 5:01 a.m.
Case Details
State / Territory:
Case Type(s):
Special Collection(s):
Law Firm Antiracism Alliance (LFAA) project
Key Dates
Filing Date: Sept. 14, 2010
Closing Date: Nov. 6, 2018
Case Ongoing: No
Plaintiffs
Plaintiff Description:
Minor Political Parties, specifically, the Conservative Party, the Working Families Party, and the Taxpayers Party
Plaintiff Type(s):
Attorney Organizations:
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
Defendants
State
New York State
Defendant Type(s):
Case Details
Causes of Action:
Ex parte Young (federal or state officials)
Constitutional Clause(s):
Other Dockets:
Southern District of New York 1:10-cv-06923
Available Documents:
Injunctive (or Injunctive-like) Relief
Outcome
Prevailing Party: Plaintiff OR Mixed
Relief Granted:
Injunction / Injunctive-like Settlement
Source of Relief:
Form of Settlement:
Court Approved Settlement or Consent Decree
Amount Defendant Pays: $199,000
Order Duration: 2011 - 2018
Issues
Voting:
Case Summary of Conservative Party of New York State v. New York State Board of Elections, Civil Rights Litig. Clearinghouse, http://www.dev.clearinghouse.net/case/43382/ (last updated 10/25/2022).