New York City

First ruling goes against ranked-choice voting opponents

Shutterstock

A lawsuit to delay ranked-choice voting in New York City has hit its first roadblock: the state judge in the case has denied a request for a temporary restraining order. The ruling could be a death knell for the lawsuit, which would result in ranked-choice voting proceeding unimpeded next year, even as the plaintiffs continue to fight.

After hearing arguments, Judge Carol Edmead denied a request from a half-dozen City Council members, including Adrienne Adams and I. Daneek Miller, and several community groups seeking a temporary restraining order to stop ranked-choice voting from being used in the upcoming special election to replace former Council Member Rory Lancman in Queens. Scheduled for Feb. 2, it would be the first election in the city to use the new system approved by voters in 2019.

At issue were the military ballots for the election, which must be mailed out no later than Dec. 18, according to the New York City Board of Elections. If the judge granted the temporary restraining order, it would have forced the city to mail military ballots that did not use ranked-choice voting when a final decision about the election is still pending. “This Court is disinclined to take any action that may result in the disenfranchisement of even one voter or take any action that may result in even one voter’s ballot being nullified,” Edmead wrote in a decision that seemed to leave little pathway forward for delaying ranked-choice voting next year.

Granting the temporary restraining order would have been a major victory for Adams, Miller and others who filed the lawsuit. It would have set the tone for future and more permanent decisions about the Feb. 2 election, as ballots using the old plurality system would have already been mailed. If the judge thought she was likely to rule in the plaintiffs favor, she would have presumably issued the order, although neither side has yet argued the overall merits of the case yet.

The rejection of the temporary restraining order is the beginning of the end of the lawsuit, according to Arthur Schwartz, an attorney arguing against the lawsuit. “I think their case is pretty much dead in the water,” Schwartz told City & State. The judge also rejected the plaintiff’s request of an expedited preliminary injunction hearing, citing concerns over potential delays to mailing military ballots. Schwartz explained that means that any further decisions in the case will take longer than the plaintiffs originally wanted, as Feb. 2 fast approaches. “Stopping an election where there's already early voting and absentee ballots and whatever is pretty impossible to do,” Schwartz said.

Schwartz also said that a temporary restraining order “cannot restrain the government from carrying out a statutory duty,” meaning that it could not stop the Board of Elections from running a ranked-choice election as mandated by the City Charter. “The minute we raised that, that's when their case started going downhill,” Schwartz said. Edmead cited this argument in her decision to reject the temporary restraining order.

Schwartz represents Moumita Ahmed, a candidate in Council District 24, Lancman’s district, who is intervening to argue against any delays. She has also filed a counterclaim to dismiss the lawsuit outright. About a dozen other candidates, Black Lives Matter of Greater New York and the New York Prgoressive Action Network will also seek to intervene and are represented by Schwartz and his co-counsel J. Remy Green. “We intervened because we were really concerned that the Board of Elections and the Campaign Finance Board in the city weren't going to give wholehearted support to the ranked-choice voting program,” Schwartz said. “And we were right.”

Denial of the temporary restraining order means that military ballots will get mailed designed for ranked-choice voting, which allows voters to rank up to five candidates by preference. If no person gets 50% outright based on an initial tally of first-choice votes, the last place candidate gets eliminated, and their votes redistributed the second choice candidates on the ballot. This happens until only two candidates remain. Given that in two days, ballots designed for this system will be mailed out, an argument to change how the election is run becomes much harder to make. If the Feb. 2 election runs with ranked-choice voting, the part of the lawsuit demanding further delays for future elections in 2021 would essentially be moot as the city would have already implemented ranked-choice voting. However, a judge could still order the city to hit certain benchmarks for education and preparedness before the June primaries.

Issuing the order would have delayed the mailing, as the Board of Elections would have to design and print new ballots, which could take more than two days. “Although we did not get to the substantive merits, the Court was clearly concerned about the timing to mail overseas ballots to our service men and women,” Frank Carone, a lawyer for the plaintiffs, said in an email. But he said it’s their belief that the military ballots do not need to be mailed by Friday, arguing that federal law regulating those ballots does not apply here and that state law only requires absentee ballots be sent “as soon as practicable.” Carone added that it would not be practical to send them “until these issues are resolved.”

Carone said that they plan on going to the Appellate Division to overturn Edmead’s decision to reject the temporary restraining order, although they seem unlikely to get a judicial ruling before Friday to prevent the city BOE from mailing ranked-choice voting ballots. But that doesn’t mean their case is done for, according to Carone. He argued that even if ranked-choice ballots get mailed to military members, those voters would not be disenfranchised since their first choice votes would still count, despite what Edmead said in her decision. So, theoretically, a judge could still prevent the Feb. 2 election from proceeding with ranked-choice voting despite those ballots being mailed.

The plaintiffs are also seeking a preliminary injunction to stop ranked-choice voting in February, even if the temporary restraining order is rejected again upon appeal. An injunction is more enduring than a temporary restraining order, but also harder to get, requiring more extensive arguments before a judge and a strong likelihood of the plaintiff’s case succeeding. The timeline on getting that injunction remains up in the air, since Edmead did not expedite litigation and the next public hearing has not been set. Carone said that they are currently determining whether there is enough time to get an injunction to affect the Feb. 2 election, but said they “have confidence in the application” they will make to the judge to proceed. 

Should they fail to stop ranked-choice voting for the Feb. 2 election, Carone said they would still argue for better preparedness by requiring the city to hit benchmarks before the June primaries. “Our lawsuit is and has been about the City’s failure to comply both with the charter and State Law and the Court may in fact and can still set those benchmarks as a remedy,” Carone wrote in the email.

A spokesperson for the city BOE said it would not comment on ongoing litigation.

NEXT STORY: Understanding mayoral control

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.