1 20

- 1494

- c v Yang, et al. v. Kosinski , et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the not ation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York , on the 19 th day of May , two thousand twenty

.

PRESENT: A MALYA L. K EARSE
, D ENNIS J ACOBS
, J OSÉ A. C ABRANES
, Circuit Judges

.

A NDREW Y ANG
, INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED ; J ONATHAN H ERZOG
, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED ; H ELLEN S UH , INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILA RLY SITUATED ; B RIAN V OGEL
, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED ; S HLOMO S MALL
, INDIVIDUALLY AND ON BEHALF

OF ALL OTHERS SIMILA RLY SITUATED ; A LISON H WANG
, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED ; K RISTEN M EDEIROS
, INDIVIDUALLY AND ON

BE HALF OF ALL OTHERS S IMILARLY SITUATED ; R OGER G REEN , INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY

SITUATED
,
Plaintiff s

-

Appell ees, 20

- 1494

- cv

J AY B ELLANCA
, T RACI S TRICKLAN D
, E MILY A DAMS
, N ESTOR M EDINA
, S IMRAN N ANDA
, K ATHRYN L EVY , J OSHUA S AUB ERMAN
, C ARI G ARD N ER , S TEPHEN C ARPINETA
, N ANCY D E D ELVA
, T ING B ARROW
, P ENNY M INTZ
, G EORGE A LBRO
,

Intervenors

- Plaintiffs

- Appellees

,2 v.

P ETER S. K OSINSKI
, C O

- C HAIR A ND C OMMISSIONER
, INDIVIDUALLY AND IN HIS OFFICIAL CAPACIT IES AT THE NYS BOE; T ODD D. V ALENTINE
, C O

- E XECUTIVE D IRECTOR
, INDIVIDUALLY

AND IN HIS OFFICIAL CAPACITIES AT THE NYS BOE ; R OBERT A.
B REHM , C O

- E XECUTIVE D IRECTOR
, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITIES AT THE NYS BOE,

Defendant s

-

Appell ants
,

A NDREW S PANO
, C OMM ISSIONER
, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITIES AT THE NYS BOE

,

Intervenor

- Defendant

- Appellant

,

N EW Y ORK S TATE B OARD OF E LECTIONS ; D OUGLAS A. K ELLNER , C O

- C HAIR AND C OMMISSIONER
, INDIVIDUALLY AND IN HIS OFFICIAL

CAPACITIES AT THE NYS BOE

,

ADR Providers

- Intervenors

- Defendants

- Appellants

,

A NDREW C UOMO , AS G OVERNOR OF THE S TATE OF N EW Y ORK ,
Defendant

.

FOR PLAINTIFF S

- APPELL EES : J EFFREY M. K URZON , Kurzon Kohen

LLP

, New York , NY.

FOR INTERVENORS

- PLAINTIFFS

- APPELLEES: J. R EMY G REEN ( Elena L. Cohen, Jonathan Wallace, on the brief ) Cohen & Green P.L.L.C., Ridgewood, NY; A RTHUR
Z. S CHWARTZ , Advocates for Justice, New York, NY.

FOR DEFENDANT S

- APPELL ANTS : J UDITH N. V ALE , Senior Assistant Solicitor General (Barbara D. U nderwood, Solicitor General, Steven C. Wu, Deputy Solicitor General, Jennifer L. Clark, Assistant Solicitor General, on the brief )

, for Letitia James, Attorney General, State of New York, New Yo r k , NY.3 FOR AMICI CURIAE BERNIE SANDERS AND BERNIE 202 0 INC.: Malcolm Seymour, David R. West, Foster Garvey, P.C., New York, NY.

FOR AMICI CURIAE NEW YORK STATE VOTERS : Ezra Ishmael Young, Law Office of Ezra Young, Brooklyn, NY.

FOR AMICI CURIAE MEDICAL PROFESSIONALS : Robert Rickner, Rickner PLLC, New York, NY.

FOR AMICI CURIAE HEATHER KEY, ET AL.: Walter H. Hackett, III

, Law Office of Walter Hackett, Walnut

, CA

.

Appeal from a May 5 , 20 20 order of the United States District Court for the Southern District of New York ( Analisa Torres

, J udge ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the May 5 , 20 20 order of the District Court granting the application for preliminary injunction be and hereby is AFFIRMED

. An opinion of the Court explaining its reasoning in further detail will follow.

Defendants

- A ppellant s (“Defendants”) appeal from a May 5, 2020 order of the District Court grant ing an application of preliminary injunction to requir e them 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. Defendant s argue that the decision of the New York State Board of Elections (“Board”) to remove from the ballot the candidates who had suspended their campaigns (along with their pledged delegates) is supported by
reasonable concerns about harms to the public healt h and election administration workers in light of
the current COVID

- 19 pandemic. Accordingly, Defendants argue, the Board’s decision did not violate the First Amendment rights of Plaintiffs and Intervenors

- Plaintiffs. We assume the parties’ familiarity wit h the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo the District Court’s legal conclusions in connection with its decision to grant the application for preliminary injunction, see Am. Express Fin. Advisors Inc. v. Thorley , 147 F.3d 229, 231 (2d Cir. 1998), but review its ultimate decision to issue the injunction for abuse of
discretion

, see Goldman
, Sachs & Co. v. Golden Empire Schs. Fin. Auth., 764 F.3d 210, 214 (2d Cir. 2014).4 After reviewing the record, we affirm the order granting the application for preliminary injunction for substantially the reasons given by the District Court in its thorough May 5, 2020 Opinion and Order. See Yang v. Kellner , No. 20

- cv

- 3325 (AT),

--- F. Supp. 3d

--- , 2020 WL 21 29597, at

*1

– 14 (S.D.N.Y. May 5, 2020).

CONCLUSION

We have reviewed all of the remaining arguments raised by Defendants on appeal and find
them to be without merit. For the foregoing reasons, we AFFIRM the May 5, 2020 order of the

District Court

.

T he man date shall issue forthwith. An opinion of this Court will follow explaining its reasoning in further detail.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court