CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/14/2023 1

Exclusion from Primary-Election Ballots 

for Not Being Members of the Party 

Rider v. Mohr (John T. Elfvin, W.D.N.Y. 1:01-cv-610), 

Sementilli v. Commissioners of Elections (Richard 

Conway Casey, S.D.N.Y. 1:04-cv-6936), and Soleil v. 

Board of Election (Brian M. Cogan, E.D.N.Y. 1:10-cv-3565) 

In 2001, a candidate for town board filed a federal complaint in the 

Western District of New York challenging his exclusion from the 

primary-election ballot for the Conservative Party, of which he was 

not a member. The district judge concluded that the party was entitled to scrutinize nonmembers for adherence to party philosophy 

before accepting them as candidates. Three years later, a district 

judge in the Southern District of New York determined that a prospective candidate for a state-assembly primary-election ballot who 

was excluded for not being a member of the party was not entitled 

to name a replacement candidate. In 2010, a district judge in the 

Eastern District of New York denied relief to a pro se attorney who 

refused to file a certificate accepting the Independence Party’s permission to run in the party’s assembly primary election. 

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

primary election; party procedures; pro se party; recusal; case 

assignment. 

A federal complaint filed in the Western District of New York’s Buffalo 

courthouse on August 30, 2001, challenged the exclusion of the lead plaintiff 

from the Conservative Party’s September 11 primary-election ballot for 

member of Tonawanda’s town board.1 Candidates in a New York primary 

election had to be members of the party or receive the party’s permission to 

run.2

 The plaintiff, an incumbent and a member of the Republican Party, alleged that he was excluded as improper punishment aimed at the Republican 

Party; another candidate who was not a member of the Conservative Party 

was allowed to remain on the ballot.3 With their complaint, the would-be 

candidate and two voters filed a motion for a preliminary injunction4 and an 

ex parte motion for an expedited hearing.5

1. Docket Sheet, Rider v. Mohr, No. 1:01-cv-610 (W.D.N.Y. Aug. 30, 2001) [hereinafter 

Rider Docket Sheet] (D.E. 1); Rider v. Mohr, No. 1:01-cv-610, 2001 WL 1117157, at *1 

(W.D.N.Y. Sept. 6, 2001). 

2. N.Y. Elec. Law § 6-120. 

3. Rider, 2001 WL 1117157, at *1; see T.J. Pignataro, Rider Presses Bid for Conservative 

Line, Buffalo News, Sept. 6, 2001, at B3 (reporting that to appear in the party’s primary election a person who was not a member of the party needed the party’s endorsement, which the 

plaintiff did not obtain). 

4. Rider Docket Sheet, supra note 1 (D.E. 3). 

5. Id. (D.E. 2). 
Excluding from the Primary Ballot a Candidate Who Is Not a Member of the Party 

2 Federal Judicial Center 9/14/2023 

Judge John T. Elfvin set the case for hearing on September 4.6 On September 6, he denied the plaintiffs immediate relief.7

 He noted that the party’s 

county chair “has a duty to the members of his party to prevent candidates 

from deceiving them into thinking that he or she is in line with their political 

philosophy when in fact they are not.”8

On April 22, 2002, Judge Elfvin dismissed the action for failure to prosecute.9

On August 26, 2004, supporters of a prospective candidate’s inclusion as 

a candidate in a September 14 Democratic primary election for New York’s 

assembly filed a federal complaint in the Southern District of New York.10

Judge Richard Conway Casey set the case for hearing on September 1.11

The party denied another prospective candidate a spot on its primary 

ballot, so she named the plaintiff candidate as her replacement.12 Judge Casey 

ruled that a candidate never eligible to be on the ballot cannot name a replacement as if the candidate were removed by circumstance.13 Judge Casey 

found New York’s restrictions on eligibility for a party’s primary-election 

ballot to be reasonable.14

An attorney member of the Democratic Party, who wished to run in the 

September 14, 2010, Independence Party primary election for state assembly, 

filed a pro se federal complaint in the Eastern District of New York on August 3 challenging the requirement that he file a certificate accepting the Independence Party’s permission for him to run in its primary election.15

Because of recusals by Judges David G. Trager and Eric N. Vitaliano, the 

court assigned the case to Judge Brian M. Cogan,16 who set the case for hear6. Id. (D.E. 4); see id. (Minutes, D.E. 13). 

Judge Elfvin died on January 6, 2009. Federal Judicial Center Biographical Directory of 

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

judges. 

7. Rider, 2001 WL 1117157; see T.J. Pignataro, Rider Denied Conservative Party Slot, Buffalo News, Sept. 7, 2001, at C3. 

8. Rider, 2001 WL 1117157, at *2. 

9. Rider Docket Sheet, supra note 1 (D.E. 22). 

10. Docket Sheet, Sementilli v. Comm’rs of Elections, No. 1:04-cv-6936 (S.D.N.Y. Aug. 

26, 2004) (D.E. 1); Injunction Denial, id. (Sept. 2, 2004), D.E. 6 [hereinafter Rider Injunction 

Denial]. 

11. Order, id. (Aug. 26, 2004), D.E. 2. 

Judge Casey died on March 22, 2007. FJC Biographical Directory, supra note 6. 

12. Rider Injunction Denial, supra note 10, at 2. 

13. Id.

14. Id. at 3. 

15. Complaint, Soleil v. Bd. of Election, No. 1:10-cv-3565 (E.D.N.Y. Aug. 3, 2010), D.E. 1. 

16. Docket Sheet, id. (Aug. 3, 2010) [hereinafter Soleil Docket Sheet]. 

Judge Vitaliano recused himself because of his previous two decades of service in the 

state assembly. Interview with Hon. Eric N. Vitaliano, Sept. 23, 2015; FJC Biographical Directory, supra note 6. 

Tim Reagan interviewed Judge Vitaliano for this report by telephone. 

Judge Trager died on January 5, 2011. FJC Biographical Directory, supra note 6. 
Excluding from the Primary Ballot a Candidate Who Is Not a Member of the Party 

Federal Judicial Center 9/14/2023 3

ing on August 9.17 The parties agreed to a postponement until August 13, 

noting that there would be no Independence Party primary election for the 

assembly seat that the plaintiff wished to run for because no other candidate 

qualified for the ballot.18 Following an August 13 trial on the merits, Judge 

Cogan ruled in favor of the defendants.19

17. Order to Show Cause, Soleil, No. 1:10-cv-3565 (E.D.N.Y. Aug. 4, 2010), D.E. 4. 

18. Letter, id. (Aug. 5, 2010), D.E. 6. 

19. Soleil Docket Sheet, supra note 16; Judgment, Soleil, No. 1:10-cv-3565 (E.D.N.Y. Aug. 

16, 2010), D.E. 10.