CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 10/7/2023 1

Section 5 Preclearance 

and Holding a Special Election 

on the Same Day as a General Election 

Barron v. New York City Board of Elections 

(Raymond J. Dearie, E.D.N.Y. 1:08-cv-3839) 

A federal complaint sought a court-ordered special election at the 

time of the general election to fill out the last two months of a vacancy in the state’s assembly. The complaint included a claim that 

failure to fill the final two months had not been precleared pursuant 

to section 5 of the Voting Rights Act. The district judge denied the 

plaintiffs immediate relief because the candidate that the plaintiffs 

supported was running unopposed for the seat, so omission from 

absentee ballots would not be injurious. A three-judge district court 

found that section 5 preclearance was not required for the unusual 

circumstances. 

Subject: Election dates. Topics: Getting on the ballot; section 5 

preclearance; three-judge court; laches; matters for state courts. 

Five voters supporting the Democratic nominee for a seat in New York’s assembly that became vacant in April 2008 because of the incumbent’s felony 

convictions filed a federal complaint in the Eastern District of New York on 

September 19 seeking an injunction for a special election on the day of the 

November 4 general election to fill out the last two months of the vacant 

term.1

On September 4, New York’s court of appeals resolved the candidate’s 

state-court suit by determining that state law contemplated that a vacancy 

arising after April 1 would remain vacant until the next legislative session.2

The federal complaint alleged that not including on the November 4 ballot a 

special election for the remainder of the term was a change in practice that 

had not received preclearance pursuant to section 5 of the Voting Rights 

Act,3

 which applied to Kings County (Brooklyn).4

1. Complaint, Barron v. N.Y. City Bd. of Elections, No. 1:08-cv-3839 (E.D.N.Y. Sept. 19, 

2008), D.E. 1; Opinion, id. (Nov. 4, 2008), D.E. 39 [hereinafter Section 5 Opinion], 2008 WL 

4809450; see Amended Complaint, id. (Oct. 6, 2008), D.E. 18. 

2. Barron v. Bd. of Elections, 11 N.Y.3d 745, 896 N.E.2d 658, 867 N.Y.S.2d 23 (2008). 

3. Complaint, supra note 1, at 15–16; see Voting Rights Act of 1965, Pub. L. No. 89-110, 

§ 5, 79 Stat. 437, 439, as amended, 52 U.S.C. § 10304 (requiring preclearance of changes to 

voting procedures in jurisdictions with a certified history of discrimination and requiring 

that preclearance disputes be heard by a three-judge district court). 

On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the 

Court did hold unconstitutional the criteria for which jurisdictions require section 5 preclearance. Shelby County v. Holder, 570 U.S. 529 (2013). 

4. U.S. Dep’t of Justice, Jurisdictions Previously Covered by Section 5, justice.gov/crt/ 

jurisdictions-previously-covered-section-5. 
Section 5 Preclearance and Holding a Special Election on the Same Day as a General Election 

2 Federal Judicial Center 10/7/2023 

The plaintiffs filed a motion for a temporary restraining order and a preliminary injunction on September 22.5

 Judge Raymond J. Dearie met with the 

parties that day and ordered expedited briefing.6 Following a September 29 

telephone conference, Judge Dearie denied the plaintiffs immediate relief on 

October 1.7

The Court has been advised by counsel that while the printing of absentee, 

military, and special ballots for the November 4, 2008 election will commence in short order, changes to the regular ballots can be made for at least 

several more weeks. In light of the fact that Ms. Barron is the only candidate 

to have filed a valid petition for the term expiring on December 31, 2008, 

and would therefore run unopposed if the relief plaintiffs seek is ultimately 

granted, plaintiffs will not suffer irreparable harm if Ms. Barron’s name 

does not appear on the military, absentee, and special ballots for the expiring term. 8

Moreover, the span of fifteen days between the court of appeals’ decision and 

the filing of the federal complaint “does call into question the emergent nature of the request for equitable intervention.”9

Judge Dearie requested from the circuit’s chief judge a three-judge district court to hear the section 5 claim.10 Circuit Judge Reena Raggi, Judge 

Dearie, and Eastern District of New York District Judge Frederic Block heard 

the case on October 8 and denied the section 5 claim on November 3.11 Lamenting “the factually wanting submissions of both parties,”12 the court determined that a special election held in 2000 according to the plaintiffs’ desired scheme may have been an anomaly, so failure to follow that pattern 

would not be a change requiring section 5 preclearance.13

Noting the candidate’s general-election success, Judge Dearie dismissed 

the case as moot on July 29, 2009.14

5. Motion, Barron, No. 1:08-cv-3839 (E.D.N.Y. Sept. 21, 2008), D.E. 4, 7; Section 5 Opinion, supra note 1, at 3. 

6. Order at 1, Barron, No. 1:08-cv-3839 (E.D.N.Y. Oct. 1, 2008), D.E. 16 [hereinafter Oct. 

1, 2008, Order]; Section 5 Opinion, supra note 1, at 3. 

7. Oct. 1, 2008, Order, supra note 6; Section 5 Opinion, supra note 1, at 3. 

8. Oct. 1, 2008, Order, supra note 6, at 3. 

9. Id. at 3–4. 

10. Id. at 3. 

11. Section 5 Opinion, supra note 1; Minutes, Barron, No. 1:08-cv-3839 (E.D.N.Y. Oct. 8, 

2008), D.E. 29. 

12. Section 5 Opinion, supra note 1, at 6. 

13. Id. at 6–8. 

14. Order, Barron, No. 1:08-cv-3839 (E.D.N.Y. July 30, 2009), D.E. 40.