CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/13/2023 1

Failure to Qualify for a Primary Election 

Because of Filing Defects 

Matheson v. New York City Board of Elections 

(Edward R. Korman, 1:03-cv-4170), Marchant v. New York 

City Board of Elections (Kiyo A. Matsumoto, 1:11-cv-4099), 

and Marchant v. New York City Board of Elections 

(Roslynn R. Mauskopf, 1:10-cv-3847) (E.D.N.Y.) 

and Marchant v. New York City Board of Elections 

(Katherine Polk Failla, 1:13-cv-5493), Escoffery-Bey 

v. New York City Board of Elections (Jesse M. Furman, 

1:13-cv-5656), Keeling v. Sanchez (Paul A. Engelmayer, 

1:13-cv-5731), and Newsome v. New York City Board 

of Elections (Ronnie Abrams, 1:13-cv-5787) (S.D.N.Y.) 

In 2003, 2010, 2011, and 2013, supporters of a perennial New York 

primary-election candidate filed federal actions—the first three in 

the Eastern District of New York and the last in the Southern District of New York—challenging the candidate’s exclusion from the 

ballot for insufficient ballot-petition signatures. The first action was 

successful. Similar actions on behalf of other candidates filed in the 

Southern District of New York in 2013 were unsuccessful, in one 

case because relief had been obtained in parallel state-court proceedings. 

Subject: Getting on the ballot. Topics: Getting on the ballot; 

primary election; matters for state courts; pro se party; case 

assignment; attorney fees; intervention. 

On August 22, 2003, 11 voters filed a federal complaint in the Eastern District of New York seeking an injunction placing Everly Brown on the September 9 Democratic primary-election ballot for New York’s city council, 

alleging that some of the candidate’s ballot-petition signatures were improperly ruled invalid.1

 Judge John Gleeson set the case for hearing before Judge 

Nicholas G. Garaufis on August 28.2 On August 25, the court reassigned the 

case to Judge Edward R. Korman.3

At a three-hour proceeding on Wednesday, August 27, Judge Korman 

concluded that there might have been enough valid signatures improperly 

invalidated, and because inspection of voting machines was scheduled for 

1. Complaint, Matheson v. N.Y. City Bd. of Elections, No. 1:03-cv-4170 (E.D.N.Y. Aug. 

22, 2003), D.E. 1. 

2. Order to Show Cause, id. (Aug. 22, 2003), D.E. 2. 

Judge Gleeson resigned on March 9, 2016. Federal Judicial Center Biographical Directory 

of Article III Federal Judges [hereinafter FJC Biographical Directory], www.fjc.gov/history/ 

judges. 

3. Docket Sheet, Matheson , No. 1:03-cv-4170 (E.D.N.Y. Aug. 22, 2003). 
Failure to Qualify for a Primary Election Because of Filing Defects 

2 Federal Judicial Center 9/13/2023 

early the following week, there was time to remedy a ballot-exclusion error.4

Judge Korman and the parties agreed that they would reassemble in two 

days, after the parties clarified the factual record.5 Judge Korman and the 

parties discussed and debated the facts for a few hours on Friday.6

On September 2, Judge Korman ruled from the bench that the plaintiffs 

should be granted a preliminary injunction.7 As there was only one other 

candidate for the office at issue in the primary election, an erroneous finding 

in favor of the plaintiffs could easily be cured by declaring the opposing candidate the victor, which would be the same result as keeping the plaintiffs’ 

candidate off of the ballot.8 Determining that the two previous proceedings 

amounted to a de facto evidentiary hearing, because participants had firsthand knowledge of facts, although no one was sworn, Judge Korman concluded that Brown had filed 901 valid signatures, one more than required.9

These included fifty-six signatures that were invalidated because of what 

Judge Korman concluded was a scrivener’s error included when Brown 

cured a filing error of omitting a cover sheet.10 Judge Korman also included 

sixteen signatures invalidated because of what another judge had previously 

concluded was an unconstitutional requirement that signature witnesses be 

members of the party conducting the primary election.11 Judge Korman denied a stay pending appeal.12 In 2007, the City of New York agreed to pay the 

plaintiffs’ counsel $20,000 in attorney fees.13

An amended complaint filed on May 26, 2006, challenged the constitutionality of New York City’s board of elections and how New York’s supreme-court judges were selected.14 Judge Korman dismissed the complaint 

4. Audio Transcript, id. (Aug. 27, 2003). 

5. Id.

6. Audio Transcript, id. (Aug. 29, 2003). 

7. Audio Transcript, id. (Sept. 2, 2003) [hereinafter Sept. 2, 2003, Matheson Audio Transcript]; Order, id. (Sept. 5, 2003), D.E. 14. 

8. Sept. 2, 2003, Matheson Audio Transcript, supra note 7. 

9. Id. 

10. Id. 

11. Id.; see Amended Opinion at 28, Kaloshi v. N.Y. City Bd. of Elections, No. 1:02-cv4762 (E.D.N.Y. Sept. 13, 2002), D.E. 9, 2002 WL 31051530, rev’d on other grounds, Kaloshi v. 

Spitzer, 69 F. App’x 17 (2d Cir. 2003). 

Following a 2008 Supreme Court decision in New York State Board of Elections v. López 

Torres, 552 U.S. 196 (2008), that selecting partisan nominees for judicial offices in New York 

by primary-election-informed party convention rather than direct primary election did not 

violate the constitutional rights of potential candidates disfavored by party leaders, the court 

of appeals ruled that New York could require signature witnesses to be party members, 

Maslow v. Bd. of Elections, 658 F.3d 291, 294 (2d Cir. 2011), cert. denied, 565 U.S. 1275 

(2012). 

12. Sept. 2, 2003, Matheson Audio Transcript, supra note 7; see Order, Matheson v. N.Y. 

City Bd. of Elections, No. 03-7920 (2d Cir. May 12, 2004) (dismissing an appeal as moot), 

filed as Order, Matheson, No. 1:03-cv-4170 (E.D.N.Y. May 24, 2004), D.E. 23. 

13. Stipulation, Matheson, No. 1:03-cv-4170 (E.D.N.Y. Jan. 18, 2007), D.E. 47. 

14. Amended Complaint, id. (May 26, 2006), D.E. 36. 
Failure to Qualify for a Primary Election Because of Filing Defects 

Federal Judicial Center 9/13/2023 3

on December 18, 2007.15

Eight voters filed a federal complaint and an application for an “Order to 

showcase” on August 20, 2010, seeking to put Brown on the September 14 

Democratic primary-election ballot for state senate.16 The voters alleged that 

disqualification of ballot-petition signatures for the plaintiffs’ voterregistration defects violated the National Voter Registration Act and the 

Help America Vote Act.17 Judge Carol B. Amon set the case for hearing before Judge Roslynn R. Mauskopf on September 2.18 On August 26, one of the 

plaintiffs announced that he would proceed pro se.19 At the hearing, Judge 

Mauskopf denied the plaintiffs immediate relief.20 Judge Amon signed a stipulated dismissal of the action on February 16, 2011.21

Twenty-four supporters of Brown’s candidacy for Queens County’s district attorney in the September 13, 2011, Democratic primary election filed a 

pro se federal complaint on August 23, challenging the invalidation of ballotpetition signatures for mismatches between signers’ and witnesses’ petition 

addresses and their registration addresses.22 Judge Sandra Townes set the 

case for hearing before Judge Kiyo A. Matsumoto on August 30.23

At the hearing, the first-named plaintiff appeared pro se, and an attorney 

appeared on behalf of fourteen plaintiffs, but he never filed a notice of appearance.24 On September 2, Judge Matsumoto denied the plaintiffs immedi15. Opinion, id. (Dec. 18, 2007), D.E. 61. 

16. Complaint, Marchant v. N.Y. City Bd. of Elections, No. 1:10-cv-3847 (E.D.N.Y. Aug. 

20, 2010), D.E. 1 [hereinafter Marchant 2010 Complaint]. 

A 1997 election action by Brown was unsuccessful. Docket Sheet, Brown v. Cohen, No. 

1:97-cv-6064 (E.D.N.Y. Oct. 21, 1997). 

17. Marchant 2010 Complaint, supra note 16; see NVRA, Pub. L. No. 103-31, 107 Stat. 77 

(1993), as amended, 52 U.S.C. §§ 20501–20511; HAVA, Pub. L. No. 107-252, 116 Stat. 1666 

(2002), as amended, 52 U.S.C. §§ 20901–21145. See generally Robert Timothy Reagan, Motor 

Voter: The National Voter Registration Act (Federal Judicial Center 2014); Marie Leary & 

Robert Timothy Reagan, The Help America Vote Act (Federal Judicial Center 2012); Symposium, HAVA @ 10, 12 Election L.J. 111 (2013). 

18. Order to Show Cause, Marchant, No. 1:10-cv-3847 (E.D.N.Y. Aug. 20, 2010), D.E. 3. 

Judge Mauskopf became director of the Administrative Office of the U.S. Courts in 2021. 

FJC Biographical Directory, supra note 2. 

19. Notice, Marchant, No. 1:10-cv-3847 (E.D.N.Y. Aug. 26, 2010), D.E. 5. 

A 1996 action by the pro se party was resolved by stipulation placing him on the Republican primary-election ballot for state senate. Docket Sheet, McCabe v. Comm’rs of Elections, No. 1:96-cv-4121 (E.D.N.Y. Aug. 20, 1996). 

20. Minutes, Marchant, No. 1:10-cv-3847 (E.D.N.Y. Sept. 2, 2010), D.E. 12. 

21. Stipulated Dismissal, id. (Feb. 16, 2011), D.E. 17. 

22. Complaint, Marchant v. N.Y. City Bd. of Elections, No. 1:11-cv-4099 (E.D.N.Y. Aug. 

23, 2011), D.E. 1; Marchant v. N.Y. City Bd. of Elections, 815 F. Supp. 2d 568, 571–73 

(E.D.N.Y. 2011). 

23. Order to Show Cause, Marchant, No. 1:11-cv-4099 (E.D.N.Y. Aug. 25, 2011), D.E. 5; 

Marchant, 815 F. Supp. 2d at 572. 

Judge Townes died on February 8, 2018. FJC Biographical Directory, supra note 2. 

24. Transcript at 3–6, Marchant, No. 1:11-cv-4099 (E.D.N.Y. Aug. 30, 2011, filed Sept. 

14, 2012), D.E. 41; Marchant, 815 F. Supp. 2d at 574. 
Failure to Qualify for a Primary Election Because of Filing Defects 

4 Federal Judicial Center 9/13/2023 

ate relief.25 Judge Matsumoto signed a stipulated dismissal of the case on June 

18, 2012.26

Just over one month before the September 10, 2013, Democratic primary 

election for mayor of New York City, Brown and seven other voters filed a 

pro se federal complaint in the Southern District of New York seeking to 

overturn Brown’s disqualification from the election for errors and omissions 

in his ballot application papers.27

On August 7, the day after the complaint was filed, Judge Katherine Polk 

Failla issued an order to show cause on August 14 why relief should not be 

granted.28 At the conclusion of the August 14 hearing, Judge Failla asked 

counsel for the board of elections to order a copy of the transcript.29 Judge 

Failla announced that she would review the filings and the transcript and 

rule within a week.30

On August 16, Judge Failla denied the plaintiffs immediate relief, finding 

no violations of equal protection or due process in the city’s stringent filing 

requirements.31 On September 25, she accepted the plaintiffs’ dismissal of the 

action.32

Meanwhile, four voters filed a federal pro se action on August 13 challenging the exclusion of a candidate from the Democratic primary election 

for city council.33 The court initially referred the case to Judge Failla as possibly related to the mayoral-primary-election case, but three days later the 

court assigned the case to Judge Jesse M. Furman.34 On the day that he got 

the case, Judge Furman ordered service on the defendant city board of elections and a response from them by August 23.35 On August 27, observing no 

record of service or response, and noting a “reason to believe that Plaintiffs 

have obtained the relief they were seeking here in a parallel state court action,” Judge Furman ordered the plaintiffs to show cause by September 4 

25. Marchant, 815 F. Supp. 2d 568. 

On December 3, 2013, Judge Jack B. Weinstein dismissed a pro se complaint filed by 

Brown on May 3 challenging various ballot-petition requirements preventing Brown’s attorney-general candidacy. Opinion, Brown v. N.Y. City Bd. of Elections, No. 1:13-cv-2729 

(E.D.N.Y. Dec. 3, 2013), D.E. 21, 2013 WL 6248451; see Amended Complaint, id. (May 14, 

2013), D.E. 7; Complaint, id. (May 3, 2013), D.E. 1. Judge Weinstein died on June 15, 2021. 

FJC Biographical Directory, supra note 2. 

26. Stipulated Dismissal, Marchant, No. 1:11-cv-4099 (E.D.N.Y. June 18, 2012), D.E. 39. 

An appeal was dismissed for lack of prosecution. Order, Marchant v. N.Y. City Bd. of 

Elections, No. 11-4453 (2d Cir. May 8, 2012), D.E. 37. 

27. Complaint, Marchant v. N.Y. City Bd. of Elections, 1:13-cv-5493 (S.D.N.Y. Aug. 6, 

2013), D.E. 2. 

28. Order, id. (Aug. 17, 2013), D.E. 4. 

29. Transcript at 59, id. (Aug. 14, 2013, filed May 15, 2014), D.E. 13. 

30. Id. 

31. Opinion, id. (Aug. 16, 2013), D.E. 9, 2013 WL 4407098. 

32. Order of Discontinuance, id. (Sept. 25, 2013), D.E. 12. 

33. Complaint, Escoffery-Bey v. N.Y. City Bd. of Elections, No. 1:13-cv-5656 (S.D.N.Y. 

Aug. 13, 2013), D.E. 1. 

34. Docket Sheet, id. (Aug. 13, 2013). 

35. Order, id. (Aug. 16, 2013), D.E. 2. 
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Federal Judicial Center 9/13/2023 5

why the case should not be dismissed as moot.36 Observing no response to 

this order, Judge Furman dismissed the case on September 9.37

On August 15, a prospective candidate for city council filed a pro se federal complaint challenging her exclusion from the primary-election ballot.38

The defendants explained that the candidate was disqualified for filing too 

few petition signatures.39 Judge Paul A. Engelmayer issued an order that defendants show cause on August 23 why relief should not be granted.40 At the 

hearing, he denied the plaintiffs immediate relief.41 Because the plaintiff filed 

nothing further in response to three orders to show cause,42 Judge Engelmayer dismissed the case on January 21, 2014.43

A fourth federal pro se complaint filed on August 16, 2013, challenged 

the exclusion of one of the three plaintiffs from the city-council primary election.44 Again, the problem was errors and omissions in the ballot-petition 

filing.45 Judge Ronnie Abrams issued an order that the defendant board of 

elections show cause why relief should not be granted on August 29.46 Later, 

the hearing was moved to September 6.47 At the hearing, Judge Abrams denied the plaintiffs immediate relief.48 She dismissed the action on May 23, 

2014, for failure to prosecute it, because the plaintiffs did not respond to the 

board’s September 27, 2013, motion to dismiss the complaint.49

36. Order, id. (Aug. 27, 2013), D.E. 3; see Jennifer H. Cunningham & Denis Slattery, Off 

to the Races, N.Y. Daily News, Sept. 3, 2013, at 28. 

37. Order, Marchant, 1:13-cv-5493 (S.D.N.Y. Sept. 9, 2013), D.E. 4. 

38. Complaint, Keeling v. Sanchez, No. 1:13-cv-5731 (S.D.N.Y. Aug. 15, 2013), D.E. 2. 

39. Defendants’ Brief, id. (Aug. 22, 2013), D.E. 12. 

40. Order, id. (Aug. 15, 2013), D.E. 3. 

41. Order, id.(Aug. 23, 2013), D.E. 18. 

42. Order, id. (Dec. 17, 2013), D.E. 22; Order, id. (Nov. 14, 2013), D.E. 21; Order, id.

(Sept. 30, 2013), D.E. 19. 

43. Order, id. (Jan. 21, 2014), D.E. 23. 

44. Complaint, Newsome v. N.Y. City Bd. of Elections, No. 1:13-cv-5787 (S.D.N.Y. Aug. 

16, 2013), D.E. 2. 

45. See Defendant’s Brief, id. (Sept. 3, 2013), D.E. 14. 

46. Order, id. (Aug. 16, 2013), D.E. 3. 

47. Order, id. (Aug. 26, 2013), D.E. 6. 

48. Order, id. (Sept. 6, 2013), D.E. 18. 

49. Order, id. (May 23, 2014), D.E. 24; see Order, id. (Apr. 21, 2014), D.E. 23; Order, id.

(Jan. 6, 2014), D.E. 22; Motion to Dismiss, id. (Sept. 27, 2013), D.E. 19.