19-2526 

EH Fusion, et al. v. Suffolk Cty. 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 NOTATION 

“SUMMARY ORDER”). A PARTY CITING TO 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 10th day of September, two thousand nineteen. 

PRESENT: 

JOHN M. WALKER, JR., 

SUSAN L. CARNEY, 

RICHARD J. SULLIVAN, 

Circuit Judges. 

_________________________________________ 

EH FUSION PARTY, DAVID GRUBER, BONNIE BRADY,

ELIZABETH A. BAMBRICK, RONA S. KLOPMAN, DELL R.

CULLUM, RICHARD P. DREW, II, SUSAN M. VORPAHL,

STEPHEN M. LESTER, DAVID TALMAGE, FALLON NIGRO,

MICHAEL HAVENS, SIMON V. KINSELLA, 

 Plaintiffs-Appellants, 

 v. No. 19-2526 

SUFFOLK COUNTY BOARD OF ELECTIONS,

COMMISSIONER ANITA S. KATZ, COMMISSIONER NICK 

LALOTA, 

 Defendants-Appellees.

*

_________________________________________

 

* The Clerk of Court is directed to amend the caption as set forth above. 
 

2 

FOR APPELLANTS: J. REMY GREEN, Cohen & Green, 

P.L.L.C., Ridgewood, N.Y. 

FOR APPELLEES: DANIEL E. FURSHPAN, Suffolk County 

Department of Law, Hauppauge, N.Y. 

Appeal from a judgment of the United States District Court for the Eastern District 

of New York (Matsumoto, J.). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on August 13, 2019, is 

AFFIRMED.1

Plaintiffs-Appellants EH Fusion Party, David Gruber, Bonnie Brady, Elizabeth A. 

Bambrick, Rona S. Klopman, Dell R. Cullum, Richard P. Drew, II, Susan M. Vorpahl, 

Stephen M. Lester, David Talmage, Fallon Nigro, Michael Havens, and Simon V. Kinsella 

(together, “Plaintiffs”) appeal from an order entered in the United States District Court for 

the Eastern District of New York (Matsumoto, J.) granting summary judgment in favor of 

Defendants-Appellees Suffolk County Board of Elections (the “Board”), Commissioner 

Anita S. Katz, and Commissioner Nick LaLota. The EH Fusion Party, a local political 

organization and “independent body” for the purposes of New York election law,2

nominated the individual Plaintiffs, by independent petition, to run as candidates for various 

local elected offices in the Town of East Hampton. The Board declared the Plaintiffs’ 

nominations null and void, however, when no Plaintiff complied with New York Election 

Law § 6-146. Section 6-146 requires certain candidates to timely file “signed and 

acknowledged” certificates of acceptance of their nomination. Section 6-146 imposes this 

 

1 Pursuant to our order dated August 20, 2019 (Dkt. 39), we considered this appeal on an expedited schedule 

and heard oral argument on September 4, 2019. On September 6, 2019, we issued an order (Dkt. 77) 

affirming the District Court’s judgment and announcing that a summary order explaining our decision would 

follow. This summary order provides that explanation. 

2 An “independent body” is any nominating organization or group of voters that nominates a candidate for 

office and is not a “party.” N.Y. Elec. Law § 1-104(12). Under the statute, a “party” means only a political 

organization that polled at least fifty thousand votes for its candidate for governor in the preceding 

gubernatorial race. Id. § 1-104(3). 
 

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requirement only on candidates nominated by independent bodies, multiple parties, or 

parties in which the nominees are not enrolled members. It does not apply to those who are 

nominated by a “party” in which they are enrolled members. See supra n.2. 

Plaintiffs charge that Section 6-146 violates their First and Fourteenth Amendment 

rights by impermissibly discriminating against minor political bodies. The district court 

rejected the challenge, and Plaintiffs now appeal that ruling. We assume the parties’ 

familiarity with the underlying facts, procedural history, and issues on appeal, to which we 

refer only as necessary to explain our decision to affirm the district court’s judgment. 

In brief, we identify no error in the district court’s ruling, and affirm its grant of 

summary judgment for substantially the reasons set forth in its thorough and well-reasoned 

opinion and order. As the court pointed out there, this case is controlled by our decision in 

Unity Party v. Wallace, 707 F.2d 59 (2d Cir. 1983), in which we rejected a substantially identical 

challenge to the constitutionality of Section 6-146. In Unity Party, as here, the plaintiffs 

argued that the certificate of acceptance requirement of Section 6-146 “impermissibly 

burden[ed] their First and Fourteenth Amendment rights both of political association and 

voting,” and also violated the Equal Protection Clause by “improperly discriminat[ing] 

against small political parties, candidates of those parties and those who support their 

candidates.” Id. at 61. We acknowledged then that the burden imposed by Section 6-146 

“falls somewhat more heavily upon independent and minor party candidates than on major 

party candidates.” Id. at 63. Nevertheless, we determined that the burden was a minor one 

and was subject only to rational basis review for purposes of the plaintiffs’ First Amendment 

and Equal Protection challenges. Id. at 62-63. The state demonstrated a rational basis for the 

requirement, we held, in its “legitimate, even compelling, interest in protecting the integrity 

and efficiency of its electoral process,” which Section 6-146 furthers by preventing 

fraudulent nominations by petition from small independent bodies whose nominations are 

“not subject to the same public scrutiny” as those of major parties. Id. at 63. 

Plaintiffs urge us to disregard our decision in Unity Party, contending that it gave 

insufficient consideration to the Supreme Court’s then-recent decision in Anderson v. 

Celebrezze, 460 U.S. 780 (1983). In Anderson, the Court established the applicable standards 
 

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for judicial evaluation of First and Fourteenth Amendment challenges to state election laws. 

Although we rendered our Unity Party decision only weeks after the Court announced its 

decision in Anderson, we discussed Anderson in Unity Party, 707 F.2d at 61-62, and our 

decision is entirely consistent with the principles that Anderson established. In Anderson, the 

Supreme Court directed courts, when evaluating challenges to a state’s election laws, to 

“consider the character and magnitude of the asserted injury to the rights protected by the 

First and Fourteenth Amendments” in relation to “the legitimacy and strength” of the 

“precise interests put forward by the State as justifications for the burden imposed by its 

rule.” 460 U.S. at 789. This is precisely the analysis that we undertook in Unity Party. 

Plaintiffs point to no intervening developments in either New York election law or 

U.S. constitutional law that give us cause to disturb our earlier conclusions. The burden 

imposed by Section 6-146 remains slight, as neatly illustrated in this case by the fact that all 

but three individual Plaintiffs successfully complied with this obligation with regard to their 

nominations by other parties and independent bodies in this same election cycle. App’x 360-

70; 416-18. New York’s strong interest in protecting its elections is unchanged. We therefore 

find Plaintiffs’ arguments unpersuasive. 

Finally, Plaintiffs shift their focus on appeal to argue that New York Election Law 

§ 6-148, which allows for the substitution of nominees in certain circumstances, violated the 

Constitution by denying Plaintiffs the opportunity to remedy their failure to comply with 

Section 6-146. As a preliminary matter, we agree with the Board and the district court’s 

interpretation of Section 6-148. The nominee substitution provision provides a route by 

which a new nominee may fill a “vacancy” on the ballot. N.Y. Elec. Law § 6-148. It may not 

be used to remedy a failure to comply with Section 6-146 because “a valid nomination is a 

prerequisite to the creation of a vacancy.” Testa v. Ravitz, 84 N.Y.2d 893, 895 (N.Y. 1994). 

Since Plaintiffs were never validly nominated, there were no vacancies to fill. Plaintiffs’ 

constitutional challenge to this interpretation of Section 6-148, raised only cursorily in the 

District Court, suffers the same deficiencies as does Plaintiffs’ constitutional challenge to 

Section 6-146. 

* * * 
 

5 

 We have considered Plaintiffs’ remaining arguments and conclude that they are 

without merit. For the foregoing reasons, the District Court’s judgment is AFFIRMED. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court