20-1494-cv 

Yang, et al. v. Kosinski, et al.

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2019

No. 20-1494-cv

ANDREW YANG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS 

SIMILARLY SITUATED; JONATHAN HERZOG, INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED; HELLEN SUH,

INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;

BRIAN VOGEL, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY 

SITUATED; SHLOMO SMALL, INDIVIDUALLY AND ON BEHALF OF ALL 

OTHERS SIMILARLY SITUATED; ALISON HWANG, INDIVIDUALLY AND ON

BEHALF OF ALL OTHERS SIMILARLY SITUATED; KRISTEN MEDEIROS,

INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED;

ROGER GREEN, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS 

SIMILARLY SITUATED,

Plaintiffs-Appellees,

JAY BELLANCA, TRACI STRICKLAND, EMILY ADAMS, NESTOR MEDINA,

SIMRAN NANDA, KATHRYN LEVY, JOSHUA SAUBERMAN, CARI 

GARDNER, STEPHEN CARPINETA, NANCY DEDELVA, TING BARROW,

PENNY MINTZ, GEORGE ALBRO,

Intervenors-Plaintiffs-Appellees,

v.
2

PETER S. KOSINSKI, CO-CHAIR AND COMMISSIONER, INDIVIDUALLY AND 

IN HIS OFFICIAL CAPACITIES AT THE NYS BOE; TODD D. VALENTINE, COEXECUTIVE DIRECTOR, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITIES 

AT THE NYS BOE; ROBERT A. BREHM, CO-EXECUTIVE DIRECTOR,

INDIVIDUALLY AND IN HIS OFFICIAL CAPACITIES AT THE NYS BOE,

Defendants-Appellants,

ANDREW SPANO, COMMISSIONER, INDIVIDUALLY AND IN HIS OFFICIAL 

CAPACITIES AT THE NYS BOE,

Intervenor-Defendant-Appellant,

NEW YORK STATE BOARD OF ELECTIONS; DOUGLAS A. KELLNER, COCHAIR AND COMMISSIONER, INDIVIDUALLY AND IN HIS OFFICIAL 

CAPACITIES AT THE NYS BOE,

ADR Providers-Intervenors-Defendants-Appellants,

ANDREW CUOMO, AS GOVERNOR OF THE STATE OF NEW YORK,

Defendant.

On Appeal from the United States District Court

for the Southern District of New York

ARGUED: MAY 15, 2020

DECIDED: JUNE 1, 2020

Before: KEARSE, JACOBS, AND CABRANES, Circuit Judges.
3

Defendants-Appellants the New York State Board of Elections 

and its officials (jointly, the “Board”) appeal from an order of 

preliminary injunction entered in the United States District Court for 

the Southern District of New York (Analisa Torres, Judge) in favor of

Democratic presidential candidate Andrew Yang and candidates for 

delegate seats who, if elected, would be pledged to Yang and fellow 

Democratic candidate, Senator Bernie Sanders. Yang, his delegates, 

and the Sanders delegates have challenged the Board’s decision to 

remove all qualified candidates from the ballot, with the exception of 

former Vice President Joseph Biden, and cancel the Democratic 

presidential primary. Without the presidential primary, the 

candidates for delegates may not have an opportunity to participate in 

the proceedings of the Democratic National Convention. 

The question presented in this case is whether Yang, his 

delegates, and the Sanders delegates have demonstrated an 

entitlement to preliminary injunctive relief that reverses the effects of 

the Board’s decision by requiring Yang and Sanders to be reinstated to 

the ballot, and the Democratic presidential primary to be conducted 

along with the other primary elections set for June 23, 2020. 

On review, we conclude, as the District Court did, that 

preliminary injunctive relief is warranted in the circumstances 

presented and, therefore, we AFFIRM the District Court’s carefully 

tailored order of preliminary injunction.
4

JEFFREY M. KURZON, Kurzon Kohen LLP, 

New York, NY, for Plaintiffs-Appellees.

J. REMY GREEN (Elena L. Cohen, Jonathan 

Wallace, on the brief), Cohen & Green 

P.L.L.C., Ridgewood, NY; and ARTHUR Z.

SCHWARTZ, Advocates for Justice, New York, 

NY, for Intervenors-Plaintiffs-Appellees.

JUDITH N. VALE, Senior Assistant Solicitor 

General (Barbara D. Underwood, Solicitor 

General, Steven C. Wu, Deputy Solicitor 

General, and Jennifer L. Clark, Assistant 

Solicitor General, on the brief), for Letitia 

James, Attorney General, State of New York, 

New York, NY, for Defendants-Appellants.

Malcolm Seymour, David R. West, Foster 

Garvey, P.C., New York, NY, for Amici Curiae 

Senator Bernie Sanders and Bernie 2020 Inc. in 

Support of Appellees.

Ezra Ishmael Young, Law Office of Ezra 

Young, Brooklyn, NY, for Amici Curiae New 

York State Voters in Support of Appellees.

Rob Rickner, Rickner PLLC, New York, NY, 

for Amici Curiae Medical Professionals in 

Support of Appellees.
5

Walter H. Hackett, III, Law Office of Walter 

Hackett, Walnut, CA, for Amici Curiae Heather 

Key, et al. in Support of Appellees.

JOSÉ A. CABRANES, Circuit Judge:

On April 27, 2020, New York became the only State or Territory

in the United States to cancel its 2020 Democratic presidential primary. 

Specifically, on that day, two Democratic commissioners of the New 

York State Board of Elections (the “Board”) removed the names of ten 

Democratic presidential candidates who had qualified to appear on 

the ballot, but had publicly announced that they were suspending

their campaigns and/or no longer seeking the party nomination for the 

office of President of the United States. By virtue of that decision, only

former Vice President Joseph Biden, the now-presumptive Democratic 

nominee, remained on the ballot. The Democratic presidential 

primary, described by the Board as nothing more than a “beauty 

contest,” was thus canceled.1 The stated reason for this action: the

current coronavirus pandemic (“COVID-19”). According to the Board, 

the cancellation of the Democratic presidential primary would further 

the State’s interests in minimizing social contacts to reduce the spread 

of the virus and in focusing its limited resources on the management 

of other contested primary elections. 

1 Joint App’x at 118. 
6

Some Democratic presidential candidates were not pleased 

with the Board’s decision. Several candidates had already chosen to 

“suspend,” rather than formally terminate, their campaigns. They 

claimed to have done so with the understanding that, among other 

things, they would remain on the primary ballot in the hopes of 

electing delegates to attend the Democratic National Convention. The 

candidates’ decision arguably was predicated on the longstanding and 

well-understood notion that presidential candidates and their elected 

delegates play an important role at national party conventions, even 

when there is a presumptive presidential nominee.

Dissatisfied with the Board’s decision, Andrew Yang—a 

businessman, a New York registered voter, and a Democratic 

presidential candidate who had suspended his campaign for 

President—and several of his pledged delegates, sued the Board. Yang 

and his delegates (jointly, “Plaintiffs”) challenged the Board’s 

decision, alleging that the removal of their names from the ballot and 

the ensuing cancellation of the Democratic presidential primary 

violated their free speech and associational rights under the First and 

Fourteenth Amendments to the Constitution.2

2 The Free Speech, Assembly, and Petition Clauses of the First Amendment 

provide that “Congress shall make no law . . . abridging the freedom of speech . . . 

or the right of the people peaceably to assemble, and to petition the Government 

for a redress of grievances.” U.S. CONST. amend. I. The Due Process Clause of the 

Fourteenth Amendment provides in relevant part that “[n]o State shall . . . deprive 

any person of . . . liberty . . . without due process of law.” U.S. CONST. amend. XIV, 

§ 1. The Supreme Court has made clear that the protections afforded by the First 

Amendment, including the principles of freedom of speech and association, are “an 
7

Joined by a group of intervenors-delegates pledged to another 

presidential candidate, Senator Bernie Sanders (“Sanders delegates”),

Plaintiffs sought a temporary restraining order and a preliminary 

injunction requiring that the names of all duly qualified candidates be 

restored to the ballot and the presidential primary be held as 

scheduled.

On May 5, 2020, the United States District Court for the Southern 

District of New York (Analisa Torres, Judge) granted the application 

for emergency injunctive relief and ordered the Board “to reinstate to 

the Democratic primary ballot those presidential and delegate 

candidates who were duly qualified as of April 26, 2020, and to hold 

the primary election on June 23, 2020.”3 The Board now appeals from 

the order granting the application for preliminary injunction. 

On review, we conclude, substantially for the reasons stated in 

the District Court’s careful and well-reasoned decision, that Plaintiffs 

and the Sanders delegates have adequately established their 

entitlement to preliminary injunctive relief on the basis that the 

Board’s April 27 decision unduly burdened their rights of free speech 

and association. 

inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the 

Fourteenth Amendment.” Tashjian v. Republican Party of Conn., 479 U.S. 208, 214 

(1986) (quoting NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958)).

3 Yang v. Kellner, No. 20-cv-3325 (AT), ---F. Supp. 3d---, 2020 WL 2129597, at 

*14 (S.D.N.Y. May 5, 2020). 
8

Accordingly, the May 5, 2020 decision and order of the District 

Court is AFFIRMED.4

I. BACKGROUND

A. The Facts5

The Democratic presidential primary in New York is a head-tohead electoral contest between the various presidential candidates

who are competing for pledged delegates to the Democratic National 

Convention and seeking the Democratic nomination. The votes cast in 

the primary for each candidate are tallied and then provided to the 

New York Democratic Party so that it can determine the number of 

“elected” or “pledged” delegates that will represent each candidate at

the Democratic National Convention.6 According to New York’s 

4 In the interest of time and efficiency, on May 19, 2020, this Court affirmed 

the District Court’s decision and order by summary order and indicated that our 

opinion would follow. See Yang v. Kosinski, No. 20-1494-cv, ---F. App’x---, 2020 WL 

2530191, at *1 (2d Cir. May 19, 2020). This is the promised opinion.

5 We draw the facts from the District Court’s recitation of the allegations in 

the pleadings and the undisputed record before us. See Yang, 2020 WL 2129597, at 

*1–3. The record in this case consists primarily of the various materials presented 

to the District Court relating to the application for preliminary injunction, as well 

as the transcript of the telephonic hearing before the District Court. 

6 The majority of the delegates at the Democratic National Convention are

elected delegates, who are “pledged” to a presidential candidate and are thus 

“required to vote for a particular candidate at the Convention based on the result 

of their state’s (or territory’s) primary election, caucus, or convention.” Id. at *1 n.1. 

(internal quotation marks and citation omitted). There are also some non-elected, 

“unpledged” delegates, formally known as “automatic delegates” (and commonly 

referred to as “superdelegates”), who may vote for the candidate of their choice. 
9

delegate-selection plan, “a candidate for the presidency may send 

delegates to the Convention if he or she receives at least 15 percent of 

the vote in a congressional district, and 15 percent of the vote

statewide.”7

The New York Democratic presidential primary was originally 

set for April 28, 2020. Eleven different candidates had qualified to 

appear on the ballot. Between February and April, all but Vice

President Biden “publicly announced that they are no longer seeking 

the nomination for the office of president of the United States, or that 

they are terminating or suspending their campaign.”8 Among those 

See id. (internal quotation marks and citation omitted). Notably, under the current 

procedural rules and the “call for the convention” of the National Democratic Party, 

the voting power of the so-called “superdelegates” is more limited, as they cannot 

vote, for example, on the first nominating ballot at the convention if no candidate 

wins a majority of the delegates by the end of the primary season. See CALL FOR 

THE 2020 DEMOCRATIC NATIONAL CONVENTION: ISSUED BY THE DEMOCRATIC PARTY 

OF THE UNITED STATES art. IX.C.7 (adopted August 25, 2018), available at 

https://democrats.org/wp-content/uploads/2019/02/2020-Call-for-ConventionWITH-Attachments-2.26.19.pdf (last visited May 25, 2020). Only if the vote by the 

pledged delegates is insufficient to decide the nomination after the first ballot, can 

the superdelegates cast their vote at a contested convention to break any putative 

stalemate. See id.; see also Joint App’x at 300. 

The Yang and Sanders delegates would all be “pledged” delegates if their 

candidates receive the necessary votes under the terms of the delegate-selection 

plan for New York. 

7 Yang, 2020 WL 2129597, at *1 (describing the requirements for a 

presidential candidate to collect elected, pledged delegates); see also Joint App’x at 

183, 185.

8 Joint App’x at 124.
10

candidates are Yang, who suspended his campaign on February 11, 

and Sanders, who followed suit on April 8. Despite “suspending”

their campaigns and subsequently endorsing Biden as the Democratic 

presumptive nominee, Yang and Sanders publicly announced that 

they intended to remain on the ballot in all remaining primaries to 

collect delegates for the convention. 

But the rules of the contest were changed as a result of the 

COVID-19 pandemic. On March 28, 2020, New York Governor 

Andrew Cuomo issued an executive order directing the presidential 

primary to be “postponed and rescheduled for June 23, 2020.”9 Then, 

on April 3, Governor Cuomo signed an omnibus budget bill that

altered the various procedures for holding presidential primaries in 

New York and selecting elected delegates to the Democratic National 

Convention.

Newly enacted New York Election Law § 2-122-a(13) authorizes 

the Board to “omit” those presidential candidates “from the [primary] 

ballot” if the candidates: (1) “publicly announce[ ] that they are no 

longer seeking the nomination”; (2) “publicly announce[ ] that they are 

terminating or suspending their campaign”; or (3) “send[ ] a letter to 

the state board of elections indicating that they no longer wish to 

appear on the ballot.”10 If a candidate were omitted from the ballot as 

9 N.Y. Exec. Order 202.12; see also Joint App’x at 56, 112. 

10 N.Y. ELEC. LAW § 2-122-a(13). The statute further provides that “for any 

candidate of a major political party, such determination shall be solely made by the 

commissioners of the state board of elections who have been appointed on the 
11

a result of one of these three circumstances, the statute further 

provides that the “candidates for delegates and/or alternate delegates 

who are pledged” to the omitted presidential primary candidate also 

be removed from the ballot.11

On April 20, 2020, more than two weeks after the omnibus bill

became law, the two Democratic commissioners of the Board of 

Elections announced their intention to hold a vote on April 22—later 

postponed to April 27—on whether to exercise their new authority.12

Yang and Sanders vigorously objected to the proposed change;

“thousands of emails” to the Board from displeased voters followed.13

Sanders, for example, submitted a letter through his attorney 

explaining that he “announced the limited suspension of his 

presidential campaign, [while] emphasizing that he intended to 

remain on the ballot in upcoming primaries, gather delegates, and 

attend the Democratic National Convention, with an eye to 

influencing the party’s platform.”14

recommendation of such political party or the legislative leaders of such political 

party.” Id.

11 Id. § 2-122-a(14).

12 See Joint App’x at 113 (declaration of the Board’s Co-Executive Director 

Robert Brehm reciting, among other things, the Board’s actions following the 

enactment of the law).

13 Id. at 114 (same).

14 Id. at 99–100 (Sanders Letter to the Board). 
12

The objections fell on deaf ears. On April 27, the Democratic 

commissioners adopted a resolution (the “April 27 Resolution”) 

removing all of the qualified candidates and their pledged delegates

from the ballot, with the exception of Vice President Biden and his 

pledged delegates. The two commissioners did so on the basis of 

“public declarations made by the relevant presidential candidates”

that they had suspended their presidential campaigns or were no 

longer seeking the nomination.15 With Biden left as the only 

presidential candidate on the ballot, the Democratic commissioners 

effectively canceled the presidential primary pursuant to the 

longstanding New York statute that provides that when there is only 

one candidate on the ballot, the sole candidate “shall be deemed 

nominated or elected . . . without balloting.”16

B. Procedural History

On April 28, 2020, Plaintiffs filed suit challenging the April 27 

Resolution as unconstitutional and seeking, among other things, a 

preliminary injunction to reverse the Board’s decision to remove their 

names from the ballot.17 The Sanders delegates intervened in the suit 

15 Id. at 125 (April 27 Resolution).

16 N.Y. ELEC. LAW § 6-160(2).

17 In addition to Plaintiffs’ claims for injunctive relief arising under the U.S. 

Constitution, Plaintiffs alleged that the April 27 Resolution violates their rights 

under various provisions of the Constitution of the State of New York. See Joint 

App’x at 65–70. Plaintiffs also sought actual or statutory damages against the Board 

and the Board officials in both their official and individual capacities. See id. at 73. 

We do not consider those claims here. See Yang, 2020 WL 2530191, at *6 (“[F]or the 
13

with leave of the District Court, filing their own complaint, and joining

the Plaintiffs’ request for emergency equitable relief. 

On May 4, the District Court held telephonic argument on the 

application for a preliminary injunction.18 A day later, on May 5, the 

District Court issued its Opinion and Order granting the application. 

The instant appeal followed. 

II. DISCUSSION

On appeal, the Board argues that the District Court erred in 

issuing a preliminary injunction reversing the effects of the April 27 

Resolution. Specifically, the Board contends that it has “compelling 

interests in protecting health, safety, and the efficient administration 

of elections during the COVID-19 pandemic.”19 The Board further 

argues that the April 27 Resolution meaningfully advances those

purposes of resolving the request for a preliminary injunction, the Court addresses 

only prospective injunctive relief against the [Board] Officials in their official 

capacity brought under the U.S. Constitution.”). 

18 Although the District Court “held a telephonic hearing on the request for 

a preliminary injunction,” that hearing did not involve any “live” testimony. Id. at 

*3. As the District Court explained, an “evidentiary hearing” was not required 

because the “entitlement to relief is clear from the undisputed record” presented 

by the parties. Id at n.2. (collecting cases). 

19 Appellants’ Br. at 17. 
14

interests and “does not necessarily foreclose” Plaintiffs and the 

Sanders delegates “from pursuing [their associational] interest[s].”20

Although the interests set forth by the Board are certainly 

important, its argument sweeps too broadly. The Board overstates the 

strength of its justifications for enacting the April 27 Resolution in 

furtherance of its interests. In doing so, it unduly encroaches on the 

competing constitutional interests of Plaintiffs and the Sanders 

delegates.21

A. Standard of Review and Legal Standard

We review de novo the District Court’s legal conclusions in 

deciding to grant a motion for a preliminary injunction,22 but review 

its ultimate decision to issue the injunction for “abuse of discretion.”23

20 Id. at 19. 

21 We note that the District Court’s holding on Article III standing was not 

challenged on appeal. Nevertheless, to satisfy our independent obligation to 

determine our subject-matter jurisdiction over the case, we have examined sua 

sponte the question of Article III standing and concluded that Plaintiffs and the 

Sanders delegates have standing to challenge the Board’s April 27 Resolution.

22 See Am. Express Fin. Advisors Inc. v. Thorley, 147 F.3d 229, 231 (2d Cir. 1998).

23 See Goldman, Sachs & Co. v. Golden Empire Schs. Fin. Auth., 764 F.3d 210, 214 

(2d Cir. 2014). “A district court has ‘abused its discretion if it based its ruling on an 

erroneous view of the law or on a clearly erroneous assessment of the evidence,’

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 . . . (1990), or rendered a decision 

that ‘cannot be located within the range of permissible decisions,’ Zervos v. Verizon

N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001).” In re Sims, 534 F.3d 117, 132 (2d Cir. 

2008) (alteration omitted).
15

Ordinarily, to obtain a preliminary injunction against 

governmental action taken pursuant to a statute, the movant has to 

“demonstrate (1) irreparable harm absent injunctive relief, (2) a 

likelihood of success on the merits, and (3) public interest weighing in

favor of granting the injunction.”24 The movant also must show that 

“the balance of equities tips in his [or her] favor.”25

But where the movant is seeking to modify the status quo by 

virtue of a “mandatory preliminary injunction” (as opposed to seeking 

a “prohibitory preliminary injunction” to maintain the status quo),26 or 

where the injunction being sought “will provide the movant with 

substantially all the relief sought and that relief cannot be undone even 

if the defendant prevails at a trial on the merits,”27 the movant must

also: (1) make a “strong showing” of irreparable harm,28 and (2)

24 Friends of the E. Hampton Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 

143 (2d Cir. 2016) (citing Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 

2011)).

25 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

26 Mastrovincenzo v. City of New York, 435 F.3d 78, 89 (2d Cir. 2006) (emphasis 

in original).

27 New York ex. rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 

2015) (internal quotation marks and citation omitted).

28 Doe v. New York Univ., 666 F.2d 761, 773 (2d Cir. 1981).
16

demonstrate a “clear or substantial likelihood of success on the 

merits.”29

We need not choose between these two standards of review 

because we are confident that Plaintiffs and the Sanders delegates 

would prevail regardless of the standard we apply. Like the District 

Court, we assume, for the sake of argument only, that the more 

rigorous standard applies here.30

B. Analysis of the Injunction Factors

The Board argues that the District Court “erred in concluding 

that” Plaintiffs and the Sanders delegates “are likely to succeed on the 

merits of their claims, and . . . that the balance of equities and public 

interest support[s] the preliminary injunction.”31 Notably, the Board 

does not appear to challenge, and therefore concedes, the District 

Court’s finding that Plaintiffs and the Sanders delegates have 

established “the single most important prerequisite for the issuance of 

a preliminary injunction”32: that they would be irreparably injured in 

the absence of preliminary injunctive relief.

29 Mastrovincenzo, 435 F.3d at 89 (internal quotation marks and citation 

omitted).

30 See Yang, 2020 WL 2530191, at *6.

31 Appellants’ Br. at 24. 

32 Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) 

(internal quotation marks and citation omitted).
17

Indeed, the Board’s brief on appeal does not bother to discuss 

the irreparable-harm prong—for good reason.33 Beyond alleging the 

violation of their constitutional rights, there can be no question that 

Plaintiffs and the Sanders delegates have demonstrated that, without 

the requested injunctive relief reversing the effects of the April 27 

Resolution, they could neither compete nor participate in New York’s 

Democratic presidential primary.34 Accordingly, Plaintiffs and the 

Sanders delegates have made a strong showing of irreparable harm.35

With that in mind, we now address the injunction factors that 

are contested by the parties.

1. Clear or Substantial Likelihood of Success on the Merits. 

33 Although the Board states in passing that “each of the preliminaryinjunction factors weighs against ordering the Board to conduct an uncontested 

presidential primary during the COVID-19 pandemic,” Appellants’ Br. at 23 

(emphasis added), there is no mention, let alone a substantive discussion, of the 

irreparable-harm prong of the standard for injunctive relief. Rather, the Board 

focuses exclusively on the merits of the claim and the balancing of the equities. See 

id. at 24–37; see also generally Appellants’ Reply Br. at 2–21. The only reference to 

“irreparable harm” relates to the alleged harms to the Board’s interests, see 

Appellants’ Br. at 28—a reference that has no bearing on the irreparable-harm 

prong that the movant must establish. 

34 See Faiveley, 559 F.3d at 118 (requiring a showing that, “absent a 

preliminary injunction,” the movants “will suffer an injury that is neither remote 

nor speculative, but actual and imminent, and one that cannot be remedied if a 

court waits until the end of trial to resolve the harm” (internal quotation marks and 

citation omitted)).

35 See ante note 24.
18

To dispose of the Board’s appeal at this stage, we do not need to 

decide whether § 2-122-a(13) is constitutional on its face. As the 

District Court explained, it may well be that the statute “reflect[s] 

reasonable policy objectives in the abstract.”36 And, as counsel for 

Plaintiffs explained at oral argument, the application of § 2-122-a(13) 

in 2024 may raise different issues that are not implicated in the 

circumstances presented at this stage of the case. Those questions, if 

ever presented, must be addressed at a later date. 

Rather, here, we are called upon to consider the constitutionality 

of § 2-122-a(13) as applied by the Board to Plaintiffs and the Sanders 

delegates through the adoption of the April 27 Resolution. There is no 

“litmus-paper test” to answer that question.37 Instead, we conduct a 

two-step inquiry that applies to election-related restrictions. 

First, we ascertain the extent to which the challenged restriction 

burdens the exercise of the speech and associational rights at stake. 

The restriction could qualify as “reasonable [and] nondiscriminatory” 

or as “severe.”38 Once we have resolved this first question, we proceed 

to the second step, in which we apply one or another pertinent legal 

standard to the restriction. 

36 Yang, 2020 WL 2129597, at *9.

37 Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (internal quotation marks

omitted). 

38 Burdick v. Takushi, 504 U.S. 428, 434 (1992).
19

If the restriction is “reasonable [and] nondiscriminatory,” we 

apply the standard that has come to be known as the Anderson-Burdick

balancing test: we “must first consider the character and magnitude of 

the asserted injury to the rights protected by the First and Fourteenth

Amendments that the plaintiff seeks to vindicate,” and “then . . .

identify and evaluate the precise interests put forward by the State as 

justifications for the burden imposed by its rule.”39 “In passing 

judgment” under this more flexible standard, we must “determine

[both] the legitimacy and strength of each of those interests” and “the 

extent to which those interests make it necessary to burden the 

plaintiff’s rights.”40

If the restriction is “severe,” then we are required to apply the 

more familiar test of “strict scrutiny”: whether the challenged 

restriction is “narrowly drawn to advance a state interest of 

compelling importance.”41 It follows then that the “rigorousness of our 

inquiry into the propriety of a state election law depends upon the 

extent to which a challenged [restriction] burdens First and Fourteenth 

Amendment rights.”42

It may be hard to imagine a more “severe” election-related 

restriction than the removal of ten out of eleven qualified candidates 

39 Anderson, 460 U.S. at 789.

40 Id.

41 Burdick, 504 U.S. at 434 (internal quotation marks omitted).

42 Id.
20

from a ballot, resulting in the cancellation of the election. That said, in 

these circumstances, we need not decide whether the strict-scrutiny 

test applies here, since Plaintiffs and the Sanders delegates are clearly 

or substantially likely to prevail on the merits of their claim even under 

the more flexible and less exacting standard. As the District Court 

aptly observed, “the Court ultimately need not determine whether this 

burden was so severe that strict scrutiny is warranted, because even 

under the more lenient balancing test,” the Board’s “justifications 

cannot support their weighty imposition on Plaintiffs’ and [the 

Sanders delegates’] right to free association.”43

i. The burden on the asserted constitutional 

rights.

The nature of the constitutional rights asserted by Plaintiffs and 

the Sanders delegates “is evident.”44 As discussed above, they wish to 

appear on the ballot of New York’s Democratic presidential primary 

and they wish to vote in the primary election. That interest “to engage 

in association for the advancement of beliefs and ideas”45 and “to cast 

their votes effectively”46 falls squarely within the ambit of the 

protection afforded by the First Amendment. That interest is “an 

43 See Yang, 2020 WL 2129597, at *10.

44 Tashjian, 479 U.S. at 214. 

45 Id. (quoting NAACP, 357 U.S. at 460). 

46 Williams v. Rhodes, 393 U.S. 23, 30 (1968).
21

inseparable aspect of the ‘liberty’ assured by the Due Process Clause 

of the Fourteenth Amendment,” which is applicable to the States.47

It is settled that “[t]he right to associate with the political party 

of one’s choice is an integral part of this basic constitutional freedom 

[of association],”48 which in turn “necessarily presupposes” the party’s 

right to define its internal structure and “the freedom to identify the 

people who constitute the association.”49 Parties exercise that freedom

in a number of ways, including through elections to choose their

nominees for public office. And although States have a “broad power 

to regulate the time, place, and manner of [such] elections,” they have 

a “‘responsibility to observe the limits established by the First 

Amendment rights of the State’s citizens.’”50

The State’s power cannot be used, for example, to create barriers 

that unduly burden a person’s right to participate in a state-mandated 

presidential primary.51 Indeed, “[a]ny interference with the freedom 

of a party” to determine how it will choose its delegates “is 

47 Tashjian, 479 U.S. at 214 (quoting NAACP, 357 U.S. at 460); see ante note 2. 

48 Id. (quoting Kusper v. Pontikes, 414 U.S. 51, 57 (1973)). 

49 Id. at 214–15 (quoting Democratic Party of U. S. v. Wisconsin ex rel. La Follette, 

450 U.S. 107, 122 (1981)).

50 Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 222, (1989) (quoting 

Tashjian, 479 U.S. at 217). 

51 See N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 204 (2008) (“We 

have indeed acknowledged an individual’s associational right to vote in a party 

primary without undue state-imposed impediment.”).
22

simultaneously an interference with the freedom of its adherents.”52

The question thus becomes: what exactly is the burden imposed by the 

Board, in adopting by action of two of its members the April 27 

Resolution, on the constitutional rights of Plaintiffs and the Sanders 

delegates? 

a.

Yang wants an opportunity to compete for delegates. And so

does Sanders, who filed an amicus brief before this Court in support 

of the claims of Plaintiffs and the Sanders delegates. By the same token, 

the Yang and Sanders delegates also want to compete for an 

opportunity to attend the Democratic National Convention. These are 

not trivial interests. Those familiar with the internal structure of the 

Democratic Party and the history of its National Convention will have 

no difficulty appreciating their significance. 

At the Democratic National Convention, delegates have many 

important responsibilities, some with long-term consequences. In 

addition to participating in the selection of the presidential nominee,

they vote on the procedural rules of the Convention; the National 

Democratic Party electoral platform; issues of party governance; and

52 Tashjian, 479 U.S. at 215 (quoting Democratic Party, 450 U.S. at 122).
23

not insignificantly, the selection of the vice-presidential nominee.53

Furthermore, the power of the elected delegates extends beyond the 

quadrennial national convention. The delegates of the National 

Convention remain “the highest authority [and governing body] of the 

Democratic Party” until new delegates are selected.54 Accordingly, the 

programs and policies adopted at the Democratic National 

Convention will continue to influence state party rules or actions of 

the Democratic National Committee.55

53 See, e.g., Rockefeller v. Powers, 74 F.3d 1367, 1380 (2d Cir. 1995); Yang, 2020 

WL 2129597, at *9 (collecting citations to the record); Joint App’x at 300, 305–06.

54 THE CHARTER & THE BYLAWS OF THE DEMOCRATIC PARTY OF THE UNITED 

STATES (“CHARTER & BYLAWS”), Charter art. II, §§ 2, 4 and Bylaws art. I, § 1 (as 

amended August 25, 2018), available at https://democrats.org/wpcontent/uploads/2018/10/DNC-Charter-Bylaws-8.25.18-with-Amendments.pdf 

(last visited May 22, 2020); see also Br. for Amici Curiae Senator Bernie Sanders and 

Bernie 2020 Inc. at 4–5 (describing the role of delegates and the National 

Convention under the Democratic Party’s Charter & Bylaws) (citing, e.g., CHARTER 

& BYLAWS, Charter art. III, § 1; id., art. IV, § 1; id., art. V, § 1).

55 The Democratic Party is familiar with how unsuccessful presidential 

candidates have influenced the party’s governance and shaped the party’s rules in 

a way that has transformed the internal structure and politics of the Democratic 

Party moving forward. For example, after an unsuccessful run to obtain the 

Democratic nomination for President in the midst of the tumultuous 1968 

Democratic National Convention, Senator George McGovern led an effort to reform 

the Party’s internal structure and nominating procedures. See Democratic Party of

U.S., 450 U.S. at 116–17. The effort concluded in the adoption of “guidelines to 

eliminate state party practices that limited the access of rank-and-file Democrats to 

the candidate selection procedures, as well as those that tended to dilute the 

influence of each Democrat who took advantage of expanded opportunities to 

participate”—which are commonly known as the “McGovern Rules,” and which 

were formally “incorporated into the Call to the 1972 Convention, which set forth 
24

The process for determining the number of pledged delegates

per candidate is complex, but it is indisputable that, under the current 

rules of the National and New York Democratic Party, the only way 

for a candidate for delegate to compete for the opportunity to 

participate in the work of the Democratic National Convention is if the 

name of that delegate’s presidential candidate appears on the ballot. 

Put another way: the Board’s cancellation of the presidential primary 

has deprived Plaintiffs and the Sanders delegates not only of their 

right to cast a ballot in the presidential primary, but also of their right 

to seek an entitlement to attend the Democratic National Convention

as delegates. This is a substantial burden on the rights of speech and 

association of Plaintiffs and the Sanders delegates. 

As the District Court explained:

the formal requirements of the delegate selection and nominating processes for the 

Convention.” Id. at 116–17 & nn. 15–16; see also Eli Segal, Delegate Selection Standards: 

The Democratic Party’s Experience, 38 GEO. WASH. L. REV. 873, 880–881 (1970), cited 

in Democratic Party of U.S., 450 U.S. at 116 n.15. See generally BYRON E. SHAFER, QUIET 

REVOLUTION: STRUGGLE FOR THE DEMOCRATIC PARTY & THE SHAPING OF POSTREFORM POLITICS (1983).

More recently, after an unsuccessful run for the Democratic presidential 

nomination in 2016, “Senator Sanders and his delegation actively participated in 

the Convention and its Committees, securing important reforms to the Democratic 

Party’s platform, rules and bylaws,” which included the promulgation of new rules 

that substantially limited the voting power assigned to the so-called 

“superdelegates” at the National Convention—rules that have been adopted in the 

“Call for the 2020 Convention.” Br. for Amici Curiae Senator Bernie Sanders and 

Bernie 2020 Inc. at 1. 
25

[T]he removal of presidential contenders from the 

primary ballot not only deprived those candidates of the 

chance to garner votes for the Democratic Party’s 

nomination, but also deprived their pledged delegates of 

the opportunity to run for a position where they could 

influence the party platform, vote on party governance 

issues, pressure the eventual nominee on matters of 

personnel or policy, and react to unexpected 

developments at the Convention. And it deprived 

Democratic voters of the opportunity to elect delegates 

who could push their point of view in that forum.56

The character and magnitude of this burden becomes more 

apparent as we consider the circumstances in which the April 27 

Resolution came into being. New York election law has long 

provided—since at least 1976—that uncontested elections can be

resolved “without balloting.”57 It is not disputed that an election under 

New York law is “uncontested” if there is only one candidate on the 

ballot for a particular office—either because that candidate was the 

only one who qualified to be on the ballot, or because the other

candidates who had qualified expressly asked to be removed through 

a notarized request sent to the Board.58

56 Yang, 2020 WL 2129597, at *9.

57 N.Y. ELEC. LAW § 6-160(2).

58 Joint App’x at 183–84 (describing the qualifying requirements for a 

presidential primary to appear on the ballot and explaining that a qualified 

candidate “shall appear as such a Candidate on the Primary ballot throughout the 

State unless, that individual files a declination of candidacy with the State Board”); 
26

Therefore, absent “declination” or other circumstances not 

present here (e.g., a challenge to the validity of the signatures 

submitted by the candidate), it had long been understood that once a 

candidate qualifies to participate in the primary, the candidate is 

entitled to appear on the ballot. It was based on this understanding 

that, for example, Yang suspended his campaign in February 2020. 

When § 2-122-a(13) was enacted on April 3, 2020, to authorize 

the removal from the ballot of those candidates who had publicly 

announced that they were suspending their campaigns or no longer 

seeking the nomination, the State changed the longstanding rules 

governing the New York Democratic Party’s primary process. It did 

so, notably, at the eleventh hour. As a result, when the Board exercised 

its newly enacted, discretionary authority under § 2-122-a(13) to adopt 

the April 27 Resolution, the Board “upended the candidates’ settled 

expectation that they would stay on the ballot; after all, when Yang 

and [most of] the other contenders suspended their campaigns, there 

was no threat that doing so would bar them from competing for 

delegates.”59

b.

see also Sanders Delegates’ Br. at 39 (“Within New York’s Election Law, it is all but 

impossible to get off the ballot, ‘however reasonable [the reason for removal] might 

appear.’” (quoting Matter of Biamonte v Savinetti, 87 A.D.3d 950, 954 (2d Dept. 2011)). 

59 Yang, 2020 WL 2129597, at *9.
27

The Board argues that “both Yang and Senator Sanders had an 

opportunity to prevent the Board from removing their names from the 

ballot and thus to prevent the cancellation of the presidential 

primary.”60 The Board emphasizes the fact that “Sanders suspended 

his campaign [on April 8] after the Legislature enacted Election Law 

§ 2-122-a(13), and [that] Yang could have reactivated his campaign 

before the Board issued its determination.”61 We are not persuaded.

As a threshold matter, nothing in the text of § 2-122-a(13)

suggests that candidates who “reactivate” their campaigns may 

restore their eligibility to remain on the ballot. That omission is 

significant in light of the fact that § 2-122-a(13) was enacted as part of 

an omnibus budget bill—without much, if any, public discussion and 

without a traceable legislative history. In light of the text of the new 

statute and the absence of contemporaneous guidance accompanying 

its enactment, the Board’s argument that the candidates “could have 

reactivated” their campaigns between April 3 and April 27 carries little 

weight. 

Significantly, on April 20, when the two Democratic

commissioners of the Board announced their intention to vote on 

whether to exercise their new authority under § 2-122-a(13), Yang and 

Sanders vigorously objected to the Board’s proposal and made it clear 

to the Democratic commissioners that they wished to remain on the 

60 Appellants’ Br. at 20. 

61 Id. 
28

ballot. Indeed, Sanders, through his counsel, sent a detailed letter to 

the Board to that effect.62 In the circumstances presented here, the 

Board’s insistence on the candidates’ formal reactivation of their 

campaign appears to put form over substance, as it should have been 

clear by April 27 that Yang and Sanders wished to remain on the ballot 

and compete for delegates. By removing candidates who qualified to

be, and clearly intended to remain, on the ballot, the Board, through 

its two Democratic commissioners, effectively manufactured an 

“uncontested” election within the meaning of New York election law

and thereby canceled the primary by operation of law.63 It did so

without apparent regard to the burden that its decision would impose 

on the Plaintiffs and the Sanders delegates under the existing 

delegate-selection plan.

c.

The Board next argues that the April 27 Resolution does not 

preclude “the associational activity that” Plaintiffs and the Sanders 

delegates seek because the Democratic National Committee and the 

presidential candidates (specifically, Biden and Sanders) can “provide 

alternate means for selecting delegates to the convention.”64 Because

the Democratic National Committee or the presidential candidates

could in theory reach an agreement that renders the presidential 

delegate-selection primary unnecessary, we are invited to draw the 

62 See Joint App’x at 99–100. 

63 See N.Y. ELEC. LAW § 6-160(2).

64 Appellants’ Br. at 35. 
29

conclusion that the Board’s actions, as they currently stand, are 

constitutional. 

We decline this invitation to “overlook an [alleged]

unconstitutional restriction upon some First Amendment activity 

simply because it leaves other First Amendment activity 

unimpaired.”65 And we decline to reserve our judgment on a 

constitutional claim based on what could happen in an imagined 

universe, especially when that universe includes major third-party 

actors (e.g., the Democratic National Committee and Vice President 

Biden) not present before us.

With this analysis in mind, we turn to the interests asserted by 

the Board to justify the burden that the April 27 Resolution placed on 

the constitutional rights of Plaintiffs and the Sanders delegates. 

ii. The justifications for the April 27 Resolution.

The Board contends that the April 27 Resolution is justified to 

further the State’s compelling interests in: (1) protecting the public 

from the health risks posed by COVID-19 by, for example, minimizing 

social contacts and interactions; and (2) utilizing the Board’s limited 

resources to make sure that other (contested) elections can be 

conducted safely and efficiently during the current pandemic. We 

examine each justification in turn and consider whether they “make it 

65 Cal. Democratic Party v. Jones, 530 U.S. 567, 581 (2000).
30

necessary to burden the [constitutional] rights” of Plaintiffs and the 

Sanders delegates.66

As explained below, upon closer examination, the Board 

overstates the strength of its justifications in an effort to sustain the 

considerable limitations that it has placed on the constitutional rights

asserted by Yang and the Sanders delegates.

a.

With respect to the first justification, the Board explains that 

approximately “eighteen of New York’s sixty-two counties contain 

subdivisions, such as cities, towns, or election districts, that will not 

need to conduct any election at all absent the Democratic presidential 

primary,” and that in approximately “seven of these counties” no 

election would need to be held.67 According to the Board, “[n]ot 

holding an election in these counties, municipalities, and districts will 

significantly reduce the number of voters, poll sites, and poll workers 

who will have to be physically present, thereby decreasing the risk of 

the virus spreading in the community.”68

This justification is overstated for at least two reasons. First, 

Governor Cuomo has authorized every voter in the State to request an 

absentee ballot and has ordered that absentee ballot applications be 

66 Anderson, 460 U.S. at 789.

67 Appellants’ Br. at 27 (citing Joint App’x at 118). 

68 Id.
31

mailed to all voters.69 We agree with the District Court that, in light of 

these measures and the circumstances they are designed to address, 

“in-person turnout is likely to be dramatically lower, allowing the state 

to safely accommodate those voters who need to vote at a polling 

location.”70 Those who do choose to vote in person may cast their votes 

by practicing “social distancing,” as recommended by the guidelines

of the Centers for Disease Control and Prevention,71 or through

innovative methods, such as secure drop-off boxes (if available).72

Second, primaries for other races will be held on June 23 in the 

vast majority of counties in the State. Approximately, “90% or more of 

New York’s Democratic Party electorate will be voting in other 

primaries” on June 23, “ranging from Congressional seats, State Senate 

and Assembly seats, State Democratic Committee, judgeships, and 

many other positions.”73 And the counties that will be conducting 

elections include “Kings, Queens, New York, Suffolk, Bronx, and 

Nassau Counties, each of which has a population exceeding one 

69 See Joint App’x at 286. 

70 Yang, 2020 WL 2129597, at *11.

71 CTRS. FOR DISEASE CONTROL AND PREVENTION, Recommendations for 

Election Polling Locations: Interim Guidance to Prevent Spread of Coronavirus Disease 

2019 (COVID-19) (updated March 27, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/community/election-polling-locations.html (last visited May 22, 2020). 

72 Yang, 2020 WL 2129597, at *11 n.4.

73 Joint App’x at 288. 
32

million,”74 and each of which is among the counties of New York (and 

the country) most afflicted by the pandemic. These facts stand in stark 

contrast to those counties where no election would need to be 

conducted absent the Democratic presidential primary,75 which, as 

counsel for the Board conceded at oral argument, are all located in

upstate New York in areas that are not heavily populated. And, 

notwithstanding the fact that the pandemic has left the whole country 

at a standstill, as counsel for the Board also confirmed at oral 

argument, New York is the only State or Territory of the United States 

that has canceled the Democratic presidential primary. 

b.

The second justification—the Board’s assertedly limited 

resources—warrants little discussion. The Board explains that its 

limited resources will need “to be diverted from the task of preparing 

for and conducting the remaining contested primaries and elections 

on June 23” to conduct the presidential primary and potentially 

accommodate “a surge in absentee balloting.”76 This assertion is 

simply too conclusory and vague to support the cancellation of the 

presidential primary and, in any event, does not warrant the burden 

imposed on Plaintiffs and the Sanders delegates. 

74 Yang, 2020 WL 2129597, at *11.

75 See Joint App’x at 118. 

76 Appellants’ Br. at 30–31.
33

As the Supreme Court teaches, in a related context, “[e]ven 

assuming the factual accuracy of these contentions . . . the possibility 

of future increases in the cost of administering the election system is 

not a sufficient basis here for infringing [Plaintiffs’ and the Sanders 

delegates’] First Amendment rights.”77 If limited resources need to be 

diverted from other elections or budgetary sources to conduct the 

presidential primary as scheduled, it is only because the Board 

effectively canceled the primary in the first instance, notwithstanding 

the numerous objections to the contrary. In these circumstances, the 

Board’s cost-saving justification does little to advance its position. 

2. The Balance of the Equities and the Public Interest

Under the last injunction factor, we must “balance the 

competing claims of injury and must consider the effect on each party 

of the granting or withholding of the requested relief,”78 as well as “the 

public consequences in employing the extraordinary remedy of 

injunction.”79

Our analysis of the competing interests under the AndersonBurdick framework demonstrates that the balance of equities tips in 

favor of Plaintiffs and the Sanders delegates, and in favor of upholding 

the preliminary injunction entered by the District Court. It bears 

77 Tashjian, 479 U.S. at 218.

78 Winter, 555 U.S. at 24 (quoting Amoco Prod. Co. v. Village of Gambell, 480 

U.S. 531, 542 (1987)). 

79 Id. (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). 
34

recalling that, under the current rules of the Democratic Party and its 

New York delegate-selection plan, a presidential primary must take 

place in order for the Yang and Sanders delegates to be able to 

participate in the deliberations of the Democratic National 

Convention. And in light of the importance of the right to political 

participation in a primary election and the pivotal role that delegates 

play within the structure of the Democratic Party, Plaintiffs and the 

Sanders delegates have shown that, absent injunctive relief, their First 

Amendment rights likely would be forever extinguished. That is 

surely a “significant” hardship that the Board has not adequately 

justified.80

We are mindful that the cost of the preliminary injunction on the 

Board may not be trivial. But as the District Court aptly stated, it is a 

cost that the State of New York chose to bear “when it assumed the 

responsibility of regulating and holding the [Democratic Party’s] 

primary election,” and that it was required “to shoulder . . . before the 

adoption of the April 27 Resolution.”81 We agree that the balance 

struck by the District Court between the various competing interests 

promotes, rather than undermines, the public interest.82

80 New York Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013); 

see also Yang, 2020 WL 2129597, at *12 (collecting cases).

81 Yang, 2020 WL 2129597, at *12. 

82 See id. 
35

III. CONCLUSION

To summarize: we conclude that Plaintiffs and the Sanders 

delegates have: (1) made a strong showing of irreparable harm absent 

injunctive relief; (2) demonstrated a clear or substantial likelihood of 

success on the merits of their claims under the First and Fourteenth

Amendments; and (3) demonstrated that the balance of the equities 

tips in their favor and that the public interest would be served 

adequately by the District Court’s preliminary injunction. We hold 

that the District Court did not err or abuse its discretion in granting 

the application for a preliminary injunction, which was carefully 

tailored to secure the constitutional rights at stake and to afford the 

Board sufficient time and guidance to carry out its obligations to the 

electorate and to the general public. 

The District Court’s May 5, 2020 order entering a preliminary 

injunction is AFFIRMED.