CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 8/15/2023 1

Excluding an Office from Absentee Ballots 

Price v. Albany County Board of Elections 

(Gary L. Sharpe, N.D.N.Y. 1:06-cv-1083) 

The complaint alleged that New York’s excluding county partycommittee positions from absentee ballots in a primary election, to 

be held in four days, violated the First Amendment. The judge issued as limited a temporary restraining order as possible: he ordered absentee ballots prepared for the party positions, but he ordered them segregated so that a determination of whether to count 

them could be made after the election. The court of appeals ruled 

that excluding county-committee positions from absentee ballots 

was unconstitutional. 

Subject: Absentee and early voting. Topics: Absentee ballots; 

party procedures; ballot segregation; primary election; attorney fees. 

Four days before New York’s September 12, 2006, primary election, the Albany County Republican Committee, a committee candidate, and two voters 

filed a federal complaint in the Northern District of New York’s Albany 

courthouse alleging that New York’s excluding county party-committee positions from absentee ballots violated the First Amendment.1

 With their complaint, the plaintiffs filed a motion for a temporary restraining order.2

In New York, each political party had a county committee in each county.3

 An important committee function was the selection of party nominees 

when vacancies arose between early July and early November in an election 

year for that office.4 Committee members were elected at the time of primaries in even years, the years of election for federal and state offices, rather 

than odd years, the years of election for local offices.5 Terms expired immediately upon the holding of elections for committee positions; candidates 

usually run unopposed.6

 New York argued that allowing absentee votes for 

committee positions could result in a prolonged vacancy if the absentee votes 

decided an election.7

The lead plaintiff was one of three candidates for two positions in an 

election with approximately twenty-seven eligible voters.8

1. Complaint, Price v. Albany Cty. Bd. of Elections, No. 1:06-cv-1083 (N.D.N.Y. Sept. 8, 

2006), D.E. 1; Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 104–05 (2d Cir. 2008); see

Amended Complaint, Price, No. 1:06-cv-1083 (N.D.N.Y. Sept. 28, 2006), D.E. 9. 

2. Temporary-Restraining-Order Motion, Price, No. 1:06-cv-1083 (N.D.N.Y. Sept. 8, 

2006), D.E. 3; Price, 540 F.3d at 105. 

3. Price, 540 F.3d at 104. 

4. Id. at 104. 

5. Id. at 104, 111. 

6. Id. at 105 & n.2, 111. 

7. Id. at 110. 

8. Opinion, Price v. Albany Cty. Bd. of Elections, No. 1:06-cv-1083 (N.D.N.Y. Oct. 22, 

2007), D.E. 32 [hereinafter Oct. 22, 2007, Opinion], 2007 WL 3104327. 
Excluding an Office from Absentee Ballots 

2 Federal Judicial Center 8/15/2023 

On September 11, Judge Gary L. Sharpe held a hearing and decided to 

“grant a temporary restraining order as limited as is possible.”9

 He ordered 

absentee ballots prepared for Albany County party committees, but ordered 

that the ballots be segregated so that it could be determined after the election 

whether they would be counted.10

Not counting the votes of the two plaintiffs who voted absentee, the lead 

plaintiff received ten votes and each of the other two candidates received seven votes.11

On October 22, 2007, after full briefing and argument, Judge Sharpe determined that exclusion of county-committee positions from absentee ballots 

passed constitutional muster.12 The parties and the judge agreed that the two 

absentee votes would not be counted and the committee-position election 

would remain uncertified.13

On August 22, 2008, the court of appeals determined that excluding 

county-committee positions from absentee ballots did not pass constitutional 

muster.14 The appellate court found justifications for excluding the offices 

contrived and unpersuasive.15 On December 4, 2009, Judge Sharpe awarded 

the plaintiffs $105,695.74 in attorney fees and costs.16

9. Transcript at 41, id. (Sept. 11, 2006, filed Jan. 24, 2007), D.E. 19; see Minutes, id. (Sept. 

11, 2006), D.E. 4. 

10. Order, id. (Sept. 11, 2006), D.E. 6. 

11. Oct. 22, 2007, Opinion, supra note 8, at 9; see Brian Nearing, Legal Threat Called Tool 

for Ending County GOP Dispute, Albany Times Union, Sept. 19, 2006, at B7 (reporting that 

the lead plaintiff won a seat on the committee). 

12. Oct. 22, 2007, Opinion, supra note 8. 

13. Order, Price, No. 1:06-cv-1083 (N.D.N.Y. Nov. 21, 2007), D.E. 36. 

14. Price v. N.Y. State Bd. of Elections, 540 F.3d 101 (2d Cir. 2008). 

15. Id. at 110–12. 

16. Order, Price, No. 1:06-cv-1083 (N.D.N.Y. Dec. 4, 2009), D.E. 63, 2009 WL 4730698.