CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 11/2/2023 1

Fusion Voting 

Conservative Party of New York State v. New York State 

Board of Elections (Jed S. Rakoff, S.D.N.Y. 1:10-cv-6923) 

Minor parties in a state that allows candidates to appear as nominees of multiple parties filed an action against a rule established for 

new voting technology that would give voting preferences in some 

cases to the major parties. The judge denied immediate relief because the action was brought too close to the election, but the case 

ultimately resulted in a consent judgment and an award of $199,000 

in attorney fees. 

Subject: Voting procedures. Topics: Voting technology; laches; 

attorney fees. 

Two months before the 2010 general election, which included an election for 

governor of New York, the state’s Conservative Party and the state’s Working Families party filed a federal complaint in the Southern District of New 

York challenging how minor parties would receive credit for votes in favor of 

their candidates who were also the candidates of other parties.1 A candidate 

nominated by more than one party was listed separately on the ballot for 

each nomination.2 Lever voting machines mechanically prevented a voter 

from voting for the same candidate more than once, but the state had 

switched to optical-scan voting, which allowed for multiple votes for the 

same candidate to be counted as a single valid vote.3 The plaintiffs called this 

form of double voting fusion voting.4 The party receiving credit for the vote 

was going to be the first party listed on the ballot, and parties were listed in 

the order of votes received in the last gubernatorial election.5 A party’s right 

to appear on the ballot also was determined from the votes it received in the 

last gubernatorial election.6

It was initially thought that New York’s attorney general would represent 

the defendants, but he determined that this case was not within his responsibilities.7

1. Complaint, Conservative Party of N.Y. State v. N.Y. State Bd. of Elections, No. 1:10-cv6923 (S.D.N.Y. Sept. 14, 2010), D.E. 1; Conservative Party v. Walsh, 818 F. Supp. 2d 670, 672 

(S.D.N.Y. 2011); see David W. Chen, Before Vote, City Officials Fretted About New System, 

N.Y. Times, Sept. 16, 2010, at A27. 

2. Conservative Party, 818 F. Supp. 2d at 671; Order at 1–2, Conservative Party, No. 1:10-

cv-6923 (S.D.N.Y. Oct. 15, 2010), D.E. 41 [hereinafter Order Denying Preliminary Injunction], 2010 WL 4455867.

3. Conservative Party, 818 F. Supp. 2d at 674; Order Denying Preliminary Injunction, supra note 2, at 2 n.2; Transcript at 6–7, 17, Conservative Party, No. 1:10-cv-6923 (S.D.N.Y. 

Sept. 30, 2010, filed Nov. 5, 2010), D.E. 43 [hereinafter Sept. 30, 2010, Transcript]. 

4. Complaint, supra note 1, at 1–2. 

5. Conservative Party, 818 F. Supp. 2d at 671–74; Order Denying Preliminary Injunction, 

supra note 2, at 1–2 & n.1. 

6. Conservative Party, 818 F. Supp. 2d at 674. 

7. Sept. 30, 2010, Transcript, supra note 3, at 22; Interview with Hon. Jed S. Rakoff, May 
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The court assigned the case to District Judge Jed S. Rakoff.8 It was his 

practice to communicate with the parties on how the case would move forward within a week of the case’s filing.9

 At the time this case was filed, he did 

this by telephone, but he later did it by email.10

After telephone consultation with the parties,11 Judge Rakoff scheduled a 

case-management conference for September 30, which was sixteen days after 

the complaint was filed.12 At the conference, he expressed concern about how 

close to the election the action had been filed13 and curiosity about whether 

the risk of injury was de minimus.14 He wanted legal briefing first, to be followed by an evidentiary hearing if the legal briefing did not resolve the case.15

In response to Judge Rakoff’s concerns about timeliness, the plaintiffs 

filed a motion for a preliminary injunction on Friday, October 1.16 The defendants filed their opposition brief a week later.17 Judge Rakoff asked the 

parties to exchange preliminary witness lists for the possible evidentiary 

hearing over the Columbus Day weekend,18 and Judge Rakoff held a discovery status conference on Tuesday, October 12.19

The defendants argued that the plaintiffs’ proposed remedies would require cumbersome last-minute reprogramming of the vote-scanning machines, and even the plaintiffs’ alternative proposal of posted warning signs 

would require Justice Department approval in some places and would be 

otherwise cumbersome.20 On October 15, Judge Rakoff denied the preliminary-injunction motion because the plaintiffs had waited until too close to 

the election to seek it.21

The case continued after the election.22 Following first23 and second24

amended complaints, Judge Rakoff denied New York’s motion to dismiss the 

9, 2012. 

Tim Reagan interviewed Judge Rakoff for this report by telephone. 

8. Docket Sheet, Conservative Party, No. 1:10-cv-6923 (S.D.N.Y. Sept. 14, 2010). 

9. Interview with Hon. Jed S. Rakoff, May 9, 2012. 

10. Id. 

11. Sept. 30, 2010, Transcript, supra note 3, at 22. 

12. Sept. 30, 2010, Transcript, supra note 3. 

13. Id. at 8. 

14. Id. at 10–11, 16–19, 29. 

15. Id. at 21. 

16. Preliminary-Injunction Brief, Conservative Party of N.Y. State v. N.Y. State Bd. of 

Elections, No. 1:10-cv-6923 (S.D.N.Y. Oct. 1, 2010), D.E. 24; Preliminary-Injunction Motion, id. (Oct. 1, 2010), D.E. 19; see Sept. 30, 2010, Transcript, supra note 3, at 22–23. 

17. New York Brief, Conservative Party, No. 1:10-cv-6923 (S.D.N.Y. Oct. 8, 2010), D.E. 

36; see Sept. 30, 2010, Transcript, supra note 3, at 21. 

18. Sept. 30, 2010, Transcript, supra note 3, at 28–29. 

19. Transcript, Conservative Party, No. 1:10-cv-6923 (S.D.N.Y. Oct. 12, 2010, filed Nov. 

5, 2010), D.E. 42; see Sept. 30, 2010, Transcript, supra note 3, at 27–29.

20. Order Denying Preliminary Injunction, supra note 2, at 2–3. 

21. Id. at 4–5; Conservative Party v. Walsh, 818 F. Supp. 2d 670, 672 (S.D.N.Y. 2011). 

22. Docket Sheet, supra note 8. 

23. First Amended Complaint, Conservative Party, No. 1:10-cv-6923 (S.D.N.Y. Dec. 20, 

2010), D.E. 56. 
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Federal Judicial Center 11/2/2023 3

case, concluding that the plaintiffs had articulated colorable constitutional 

claims.25 After settlement conferences in May 2011 conducted by Magistrate 

Judge Frank Maas26 and Judge Rakoff,27 Judge Rakoff signed a consent judgment on September 8, 2011.28 Among other provisions, New York agreed to 

reprogram its vote-scan machines to alert voters who voted for the same 

candidate more than once, and New York agreed to prepare polling-place 

notices of the consequences of double voting.29 The consent decree also 

awarded the plaintiffs $199,000 in attorney fees.30

Had this case required more immediate action than it did on filing, it 

might have been referred to the court’s duty-day judge, known in the district 

as the part I judge.31 Approximately every eighteen months, judges in the district’s Manhattan courthouse signed up, in order of seniority, for two weeks 

of duty days.32 Part I responsibilities included miscellaneous and emergency 

matters in civil and criminal cases.33

24. Second Amended Complaint, id. (Feb. 3, 2011), D.E. 72. 

25. Conservative Party, 818 F. Supp. 2d at 678 (“plaintiffs had adequately alleged that the 

Statute and Regulation severely burdened their First and Fourteenth Amendment rights and 

the State had not yet established, at a minimum, that the State had chosen the least restrictive alternative to achieve its purported justification”); Order Denying Motion to Dismiss,

Conservative Party, No. 1:10-cv-6923 (S.D.N.Y. Feb. 20, 2011), D.E. 74. 

26. Docket Sheet, supra note 8 (noting a settlement conference on May 2, 2011). 

Judge Maas retired on September 29, 2016. Judicial Milestones, www.uscourts.gov/judicialmilestones/frank-s-maas. 

27. Docket Sheet, supra note 8 (noting a settlement conference on May 6, 2011). 

28. Consent Judgment, Conservative Party, No. 1:10-cv-6923 (S.D.N.Y. Sept. 8, 2011), 

D.E. 86; see Sam Roberts, Minor Parties Succeed in a Voting Dispute, N.Y. Times, Sept. 10, 

2011, at A22. 

29. Consent Judgment, supra note 28. 

30. Id. 

31. Interview with Hon. Jed S. Rakoff, May 9, 2012. 

32. S.D.N.Y. R. Div. of Bus. 3; Interview with Hon. Jed S. Rakoff, May 9, 2012. 

33. S.D.N.Y. R. Div. of Bus. 3.