CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 2/15/2023 1

Promptness of a Special Election 

to Fill a Congressional Vacancy 

Fox v. Paterson (David G. Larimer, W.D.N.Y. 6:10-cv-6240), 

Rossito-Canty v. Cuomo (Jack B. Weinstein, 

E.D.N.Y. 1:15-cv-568), and Seubert v. Cuomo 

(Frank P. Geraci, Jr., W.D.N.Y. 6:18-cv-6303) 

A 2010 federal lawsuit sought an injunction requiring a prompt special election to fill a congressional vacancy. After the complaint was 

filed, the governor decided to combine the special election with the 

general election occurring in six months. The district judge determined that the Constitution did not require a special election more 

prompt than that. A 2015 case filed in another district within the 

same state concerned a vacancy occurring much more in advance of 

the regular general election, and the district judge ordered the governor to promptly set a special-election date. A 2018 case with a timeline similar to the 2010 case had a result similar to the 2010 case’s. 

Subject: Election dates. Topic: Enjoining elections. 

District judges in New York heard cases on how long the governor could allow 

a congressional seat to remain vacant before a special election to fill it. 

2010 in the Western District of New York 

Three voters filed a federal complaint in the Western District of New York on 

Monday, May 3, 2010, seeking an order requiring the governor to call a special 

election to fill a congressional vacancy created by a resignation on March 9.1

With their complaint, the voters filed motions for a temporary restraining order and a preliminary injunction2

 and expedited hearing.3

Judge David G. Larimer heard the motions on Friday and ordered briefing 

on venue.4

 On the following Wednesday, the governor announced that he 

would call a special election for the day of the general election, November 2, 

1. Complaint, Fox v. Paterson, No. 6:10-cv-6240 (W.D.N.Y. May 3, 2010), D.E. 1; Fox v. 

Paterson, 715 F. Supp. 2d 431, 432–33 (W.D.N.Y. 2010); see Ray Finger, Lawsuit Filed for Special Election, Elmira Star-Gazette, May 5, 2010, at A3; Jim O’Hara, Local Attorney’s Suit Seeks 

Special Election in 29th District, Syracuse Post-Standard, May 7, 2010, at A5; Joseph Spector, 

Paterson: Special Election for Massa Seat Not Imminent, Poughkeepsie J., May 5, 2010, at A9; 

Jill Terreri, Lawsuit Seeks Special Election in 29th District, Elmira Star-Gazette, May 4, 2010, 

at A12; see also Jerry Zremski, Massa to Resign Southern Tier House Seat, Buffalo News, Mar. 

6, 2010, at A1. 

2. Motion, Fox, No. 6:10-cv-6240 (W.D.N.Y. May 3, 2010), D.E. 3. 

3. Motion, id. (May 3, 2010), D.E. 2. 

4. Docket Sheet, id. (May 3, 2010) (D.E. 5) [hereinafter Fox Docket Sheet]. 

In advance of [the hearing], the Court advised counsel by letter that they “should be 

prepared to discuss whether venue is proper in the Western District of New York in a 

suit against Governor Paterson, who performs his official duties in, and is therefore 

deemed a ‘resident’ of, the Northern District of New York.” 

Opinion at 3, id. (May 13, 2010), D.E. 9 [hereinafter May 13, 2010, Fox Opinion]. 
Promptness of a Special Election to Fill a Congressional Vacancy 

2 Federal Judicial Center 2/15/2023 

so that the winner of the special election would serve until January, at which 

time the winner of the regular election would assume the office.5

 On Thursday, 

May 13, 2010, Judge Larimer ruled that venue in the Western District was 

proper, because the congressional district at issue was wholly within the district and the governor had an office there.6

Following a May 25 hearing,7 Judge Larimer decided on June 4 against requiring the governor to order a special election in advance of the general-election date.8

 Judge Larimer determined that the U.S. Constitution required the 

governor to call a special election, but a decision to hold the special election 

on November 2 was within the governor’s discretion.9

 In fact, a special election 

was held on November 2.10

On April 21, 2011, Judge Larimer denied the plaintiffs a recovery of attorney fees because (1) the motion for fees was not filed promptly after the June 

4, 2010, ruling, and (2) the June 4 ruling did not grant the plaintiffs an election 

earlier than the date the governor had already announced.11

2015 in the Eastern District of New York 

A federal class-action complaint filed in the Eastern District of New York on 

February 5, 2015, by eight voters sought a special-election date to fill a congressional vacancy that arose much longer in time before a general congressional election: January 5, 2015.12 Judge William F. Kuntz II set the case for 

hearing before Judge Jack B. Weinstein on February 13.13 At the hearing, “Defense counsel contended that the Governor would ultimately issue a proclamation for a special election; they denied that this court could decide timing.”14

5. Fox, 715 F. Supp. 2d at 432–33; May 13, 2010, Fox Opinion, supra note 4, at 3–4 & n.1; 

see Tom Precious, Vote for Massa Seat Will Be Nov. 2, Buffalo News, May 13, 2010, at B1. 

6. May 13, 2010, Fox Opinion, supra note 4, at 6–14; see Ray Finger, Judge Upholds Special 

Election Lawsuit, Elmira Star-Gazette, May 14, 2010, at A3. 

7. Fox Docket Sheet, supra note 4 (D.E. 18); see Ray Finger, Decision Delayed on Election 

Lawsuit, Elmira Star-Gazette, May 27, 2010, at A3. 

8. Fox, 715 F. Supp. 2d at 433; see Jill Terreri, Judge Upholds Nov. 2 Date for 29th District 

Election, Elmira Star-Gazette, June 5, 2010, at A4. 

9. Fox, 715 F. Supp. 2d at 442. 

10. Opinion at 2 n.1, Fox v. Paterson, No. 6:10-cv-6240 (W.D.N.Y. Apr. 21, 2011), 2011 

WL 1549475. 

11. Id. at 3–9. 

12. Complaint, Rossito-Canty v. Cuomo, No. 1:15-cv-568 (E.D.N.Y. Feb. 5, 2015), D.E. 1; 

Rossito-Canty v. Cuomo, 86 F. Supp. 3d 175, 182–83 (E.D.N.Y. 2015). 

13. Order to Show Cause, Rossito-Canty, No. 1:15-cv-568 (E.D.N.Y. Feb. 5, 2015), D.E. 6; 

Rossito-Canty, 86 F. Supp. 3d at 183. 

Judge Weinstein retired in 2020 and died on June 15, 2021. Federal Judicial Center Biographical Directory of Article III Federal Judges, www.fjc.gov/history/judges; see Alan Feuer, 

At 98, a Judicial Lion Lays Down His Gavel to Pursue New Interests, N.Y. Times, Feb. 18, 2020, 

at A19; Laura Mansnerus, Jack B. Weinstein, Activist Judge Both Revered and Feared, Dies at 

99, N.Y. Times, June 16, 2021, at A22. 

14. Rossito-Canty, 86 F. Supp. 3d at 183; see Minutes, Rossito-Canty, No. 1:15-cv-568 

(E.D.N.Y. Feb. 13, 2015), D.E. 19. 
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Federal Judicial Center 2/15/2023 3

On February 16, concluding that the “plaintiffs have made a prima facie 

case for a preliminary injunction,”15 Judge Weinstein ruled, “Unless the Governor announces the date for a special election on or before noon on Friday, 

February 20, 2015, or justifies a further delay at a hearing to be conducted by 

this court at that time and date, this court will fix the date for a special election 

as promptly as the law will allow.”16

Judge Weinstein concluded, “Special elections in New York to fill vacant 

congressional seats must be conducted in the shortest space of time reasonably 

possible.”17

There are three categories of critical losses when a seat in our nation’s 

legislature body is unfilled: first, the loss to persons and institutions in the 

district who forfeit their power to help decide both the nation’s policies at 

large, and those national decisions that impact the particular needs and views 

of the district; second, the loss to those in the district of a vital, powerful, individual channel to and from the government’s bureaucracy and its benefits—the Congressperson and his or her staff acting as an ombudsperson for 

those in the district; and, third, the loss to the nation as a whole which gives 

up the input from a unique group of people represented by an individual with 

the opportunity to contribute meaningfully to national debates and policy 

and whose views should be available to temper those of colleagues.18

On February 20, the governor set May 5 as the date for the special election, 

so Judge Weinstein dismissed the action as moot.19

2018 in the Western District of New York 

Seven voters filed a federal class-action complaint in the Western District on 

April 17, 2018, seeking an order, by writ of mandamus or otherwise, compelling the governor to schedule a special election to fil a congressional vacancy—

which occurred because of a March 16 death—at the same time as a June 26 

primary election.20 With their complaint, the plaintiffs filed a proposed order 

to show cause.21

15. Rossito-Canty, 86 F. Supp. 3d at 200. 

16. Id. at 180; see Alexander Burns, Cuomo Given Deadline to Schedule House Election, 

N.Y. Times, Feb. 18, 2015, at A18. 

17. Rossito-Canty, 86 F. Supp. 3d at 195; see id. at 180 (“The right to representation in 

government is the central pillar of democracy in this country. Unjustified delay in filling a 

vacancy cannot be countenanced.”). 

18. Id. at 181. 

19. Order, Rossito-Canty, No. 1:15-cv-568 (E.D.N.Y. Feb. 23, 2015), D.E. 18; Minutes, id.

(Feb. 20, 2015), D.E. 20; see Jesse McKinley, Special Vote Is Set to Fill Seat Vacated by Grimm, 

N.Y. Times, Feb. 21, 2015, at A16; see also Alexander Burns, Staten Island Prosecutor Wins 

Congressional Seat Grimm Held, N.Y. Times, May 6, 2015, at A19 (“The victory makes Mr. 

Donovan the lone Republican from New York City in the House.”). 

20. Complaint, Seubert v. Cuomo, No. 6:18-cv-6303 (W.D.N.Y. Apr. 17, 2018), D.E. 1; see

Will Cleveland & Jon Campbell, Gov. Andrew Cuomo Sued for Not Declaring Special Election, 

Rochester Democrat & Chron., Apr. 20, 2018, at A2. 

21. Motion, Seubert, No. 6:18-cv-6303 (W.D.N.Y. Apr. 17, 2018), D.E. 2. 
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Louise Slaughter, the oldest member of Congress, fell in her home and died 

about a week later.22 The district included Rochester and surrounding suburbs.23

On April 26, Judge Frank P. Geraci, Jr., ruled, “The Court does not have 

the power . . . to issue a writ of mandamus compelling a state official to perform a duty.”24

In August, the governor determined that the vacancy would be filled by 

special election at the same time as the general election on November 6.25

On March 15, 2019, noting that the “Plaintiffs have taken no further action; they have not served their complaint on Defendants and no Defendant 

has appeared,” Judge Geraci issued an order that the plaintiffs show cause why 

the case should not be dismissed.26 Noting no response, Judge Geraci dismissed the action on April 19.27

22. See Victoria E. Freile, Louise Slaughter Hospitalized After Falling in Her D.C. Home, 

Rochester Democrat & Chron., Mar. 15, 2018, at A5; Joseph P. Fried, Louise Slaughter, Liberal 

Congresswoman in 16th Term, Dies at 88, N.Y. Times, Mar. 17, 2018, at A24. 

23. See Jon Campbell & Steve Orr, Slaughter’s Seat to Be Filled by Election, Rochester Democrat & Chron., Mar. 17, 2018, at A14; Jon Campbell & Joseph Spector, Joe Morelle to Run for 

Congress, Rochester Democrat & Chron., Mar. 26, 2018, at A2. 

24. Order, Seubert, No. 6:18-cv-6303 (W.D.N.Y. Apr. 26, 2018), D.E. 8; see Brian Sharp, 

Judge Tosses Lawsuit Over Slaughter Seat, Rochester Democrat & Chron., Apr. 28, 2018, at A6. 

25. See Date of Special Election for Slaughter’s Seat Set for Nov. 6, Rochester Democrat & 

Chron., Aug. 12, 2018, at A17. 

26. Order, Seubert, No. 6:18-cv-6303 (W.D.N.Y. Mar. 15, 2019), D.E. 9. 

27. Order, id. (Apr. 19, 2019), D.E. 10.