MANHATTAN (CN) — A provision of New York State’s election law is “an unconstitutional infringement” on residents’ right to vote, according to a local elected official, who pleaded to a Second Circuit panel on Thursday to revive her suit challenging the rule.
Grand Island, New York Town Clerk Patricia Frentzel, a Republican, claims that she was cost votes in the 2023 primary election by the supposedly unjust law. Joining Frentzel in the lawsuit is a group of Working Families Party voters, who say their votes for Frentzel were tossed because of it.
The rule in question states that “a write-in ballot cast in a party primary for a candidate not enrolled in such party shall be void and not counted.”
In addition to raising concerns of constitutionality, the plaintiffs claim that this rule could allow party leaders to manipulate the way votes are counted by, for example, booting a candidate out of the party prior to a primary. In this instance, the plaintiffs claim that voters wouldn’t be able to cast votes for the now-partyless candidate — doing so would void their ballot.
But a lower court denied the plaintiffs’ request for preliminary injunction, finding that candidates like Frentzel have ample opportunities to get on any party’s ballot, despite the provision. Additionally, it found that the potential burdens are justified by the state’s interest in preventing party raiding, a practice in which blocs of voters swap between parties to manipulate election outcomes.
On Thursday, the plaintiffs asked a panel of Second Circuit judges to revive their suit, claiming that the law denies them a number of constitutional rights.
“In summary, my clients wanted to exercise their fundamental right to vote for the candidate of their choice in the working families parties during the 2023 primary,” said Chad Davenport, counsel for the plaintiffs. “But votes were not counted, which violated their rights of free speech, freedom of association, equal protection and also due process.”
Judge Reena Raggi, a George W. Bush appointee, questioned why the plaintiffs were appealing at this stage, as the denial of their preliminary injunction was not yet a definitive decision on the law’s constitutionality.
“Your client was the victor, even despite the errors you’re alleging,” Raggi said. “So to that extent, why isn’t it moot as to a preliminary injunction? And insofar as you're challenging the constitutionality of the statute and all of that, you can go back to the district court, it'll be resolved finally and then it'll come up to us if you get a decision you're dissatisfied with.”
Sarah Rosenbluth, counsel for the state defendants, agreed with that assessment.
“It is possible that there does remain some live controversy with respect to the constitutionality of [the law],” she said. “But I think as Judge Raggi indicated, that can be litigated on remand in the district court.”
Davenport replied that time is of the essence — the lower court’s ruling could still affect his clients come the 2024 primary election in June.
“This is still an election law that is on the books,” he said. “It will still prevent my clients from being able to write in the primary candidates who are not members of the party.”
Rosenbluth reiterated the state’s interest in protecting against election manipulation by implementing rules like this one.
“The state does have an interest in preserving party integrity,” she said. “And the state does have an interest… in ensuring the ideological coherence of political parties, and that’s really been well accepted for a long time.”
Joining Raggi on the judicial panel were Judges Debra Livingston, a George W. Bush appointee, and Beth Robinson, a Joe Biden appointee. The three-judge panel didn’t immediately issue a ruling on Thursday.
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