CASE STUDIES IN EMERGENCY ELECTION LITIGATION

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Election Day on the Last Day of Passover 

Herzfeld v. District of Columbia Board of Elections 

and Ethics (Emmet G. Sullivan, D.D.C. 1:11-cv-721) 

A rabbi filed a federal complaint when he realized that a special 

election to fill municipal vacancies was going to be held on the last 

day of Passover, a day when he could not vote until after the polls 

would be closed. The district judge scolded the board of elections 

for not seeking a court order allowing them to adjust the statutorily 

mandated special-election date, but the judge denied the plaintiff 

immediate injunctive relief, because the rabbi had early and absentee voting alternatives. The statute was subsequently amended by 

an act of Congress. 

Subject: Election dates. Topics: Polling hours; intervention; 

absentee ballots. 

On April 3, 2011, Rabbi Shmuel Herzfeld was taking a walk with his children 

and he noticed a sign for an April 26 special election to fill vacancies in the 

city council and board of education for the District of Columbia.1 This was 

an issue, because April 26 was the last day of Passover, so Rabbi Herzfeld 

would not be able to vote on election day unless voting hours were extended.2

 On April 13, he filed a federal complaint in the District of Columbia 

seeking such a remedy.3 With his complaint, he filed a motion for a temporary restraining order and a preliminary injunction.4

The court assigned the case to Judge Emmet G. Sullivan, who held a telephonic status conference on the day that the complaint was filed.5

 Judge Sullivan set a hearing for April 15 and granted the district’s oral motion to intervene.6

When Judge Sullivan was presented with a motion for a temporary restraining order, it was his practice to look for two types of opportunity: (1) to 

consolidate the motion for a temporary restraining order with consideration 

of a more durable injunction or an otherwise more conclusive determination 

of the case’s merits and (2) settlement possibilities, perhaps with the assistance of a magistrate judge.7

 In this case, he also employed a common prac1. See Transcript at 6–7, Herzfeld v. D.C. Bd. of Elections & Ethics, No. 1:11-cv-721 

(D.D.C. Apr. 15, 2011, filed Jan. 9, 2012), D.E. 42; Shmuel Herzfeld, Op-Ed, Voting Rights 

Denied on a Religious Holiday, Wash. Post, Apr. 24, 2011, at C5. 

2. See Herzfeld, supra note 1. 

3. Complaint, Herzfeld, No. 1:11-cv-721 (D.D.C. Apr. 13, 2011), D.E. 1; see Second 

Amended Complaint, id. (May 27, 2011), D.E. 17; Amended Complaint, id. (Apr. 22, 2011), 

D.E. 12; see also Mike DeBonis, Rabbi Sues Over Timing of Special Vote: During Passover, 

Wash. Post, Apr. 14, 2011, at B6. 

4. Motion, Herzfeld, No. 1:11-cv-721 (D.D.C. Apr. 13, 2011), D.E. 3. 

5. Docket Sheet, id. (Apr. 13, 2011); see Transcript, supra note 1, at 18. 

Tim Reagan interviewed Judge Sullivan for this report by telephone on August 1, 2012. 

6. Docket Sheet, supra note 5. 

7. Interview with Hon. Emmet G. Sullivan, Aug. 1, 2012. 
Election Day on the Last Day of Passover 

2 Federal Judicial Center 3/6/2023 

tice of his in emergency cases between parties with sufficient resources: he 

required the parties to present to the court binders of authorities on which 

the parties would be relying in advance of the scheduled hearing, so that resolution of the matter would not be delayed by court staff hunting down authorities and making photocopies.8

On April 15, Judge Sullivan denied the rabbi immediate injunctive relief.9

Before I issue my ruling, I want to put on the record my extreme, I emphasize that, disappointment that this issue could not have been resolved by 

the parties. While I agree with the D.C. Board of Elections that it does not 

have the authority to extend the polling hours as requested by plaintiff, this 

court does. . . . 

What I wish had happened in this case is that the District, with the 

Board of elections or both, upon learning that the April 26th election was 

scheduled for the last day of Passover, would have come to this court with a 

consent motion requesting that, given the unique and indeed unprecedented facts presented in this case, the Court ordered that the polls be held open 

for two additional hours in order to afford observant Jewish voters the opportunity to go to the poll and vote on Election Day. This court would have 

happily granted such a motion, but that unfortunately is not what happened 

in this case.10

Despite Judge Sullivan’s sympathy for the rabbi’s position, the judge noted that early and absentee voting options were available.11 “While the Court 

is profoundly sympathetic to Plaintiff’s desire to be able to vote in the Special 

Election by going to his local polling station, the Court cannot conclude, as a 

matter of law, that plaintiff’s right to vote has been severely restricted based 

on his inability to do so.”12 The elections board agreed to offer additional early voting on Easter Sunday, April 24.13

On September 14, the case was reassigned to Judge James S. Gwin of the 

Northern District of Ohio, who frequently assisted the District of Columbia 

court as a visiting judge.14 On January 10, 2012, Judge Gwin approved a stipulated dismissal of the action without prejudice.15 The mayor had agreed to 

propose legislation that would give the board of elections greater flexibility to 

avoid religious holidays when setting election dates.16 On February 10, the 

parties filed a stipulated dismissal with prejudice.17

8. Id. 

9. Transcript, supra note 1, at 93, 107–08; Docket Sheet, supra note 5; see Mike DeBonis, 

Judge Denies Rabbi’s Bid to Extend D.C. Election, Wash. Post, Apr. 16, 2011, at B6. 

10. Transcript, supra note 1, at 90–91. 

11. Id. at 102–06; see DeBonis, supra note 9. 

12. Transcript, supra note 1, at 102. 

13. See DeBonis, supra note 9.

14. Order, Herzfeld v. D.C. Bd. of Elections & Ethics, No. 1:11-cv-721 (D.D.C. Sept. 15, 

2011), D.E. 32 (chief circuit judge’s order); Order, id. (Sept. 15, 2011), D.E. 33 (district 

court’s reassignment order); Interview with Hon. Emmet G. Sullivan, Aug. 1, 2012. 

15. Order, Herzfeld, No. 1:11-cv-721 (D.D.C. Jan. 10, 2012), D.E. 43. 

16. See City Settles Rabbi’s Suit Over Special Election Scheduled During Passover, Wash. 

Post, Jan. 10, 2012, at B2. 

17. Stipulation, Herzfeld, No. 1:11-cv-721 (D.D.C. Feb. 10, 2012), D.E. 44. 
Election Day on the Last Day of Passover 

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On July 18, the President signed the District of Columbia Special Election 

Reform Act, which gives the board of elections flexibility to schedule special 

elections more quickly and to avoid religious holidays.18

18. Pub. L. No. 112-145, 126 Stat. 1133 (2012).