First ruling goes against ranked-choice voting opponents

New York County Supreme Court
New York County Supreme Court
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New York State Supreme Court building.

First ruling goes against ranked-choice voting opponents

A judge refused to delay the new system before the Feb. 2 special election.
December 16, 2020

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.

Rebecca C. Lewis
is deputy state politics reporter at City & State.
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