20

- 3047

- cv SAM Party of N.Y. v. Kosinski

1 

# United States Court of Appeals 2 

# for the Second Circuit 3 4 August Term, 20 20 5 6 ( Argued : December 15 , 20 20 Decided: February 10, 2021 ) 7 8 Docket No

. 20

- 3047

- cv 9

_____________________________________ 10 11 SAM PARTY OF NEW YORK, MICHAEL J. VOLPE , 12 Plaintiff s

- A ppellant s , 13

v. 14 15 PETER S. KOSINSKI, as the Co

- Chair of the New York State Board of Elections , 16 DOUGLAS A. KELLNER, as the Co

- Chair of the New York State Board of 17 Elections , ANDREW J. SPANO, as a Commissioner of the New York State Board 18 of Election s , TODD D. VALENTINE, as Co

- Executive Director of the New York 19 State Board of Elections , ROBERT A. BREHM, as Co

- Executive Director of the 20 New York State Board of Elections , 21 Defendant s

- Appellee s, 22 23 ANDREW CUOMO, as the Governor of the State of New York , ANDREA 24 STEWART

- COUSINS, as the Temporary President and Majority Leader of the 25 New York State Senate , JOHN J. FLANAGAN, as the Minority Leader of the 26 New York State Senate , CARL E. HEASTIE, as the Speaker of the New York State 27 Assembly , BRIAN M. KOLB, as the Minority Leader of the New York State 28 Assembly , 29 Defendants. 30

_____________________________________ 312 Before: 1 2 S ACK , P ARK , and M ENASHI , Circuit Judge s
. 3 4 The State of New York enacted new party

- qualification requirements in the 5
s pring of 2020. Political organizations must now earn the greater of 130,000 votes 6 or 2% of the vote in elections for President and for G overnor to achieve party status 7 and the auto matic place on the ballot it confers. Appellants SAM Party of New 8 York and its chairman Michael J. Volpe appeal an order of the United States 9 District Court for the Southern D istrict of New York ( Koeltl , J .) denying their 10 motion for a preliminary injunction against the party

- qualification requirements

. 11 We hold that Appellants are not likely to succeed on the merits of their First 12 Amendment claim because the burden imposed by the presidential

- election 13 requirement is (1) not severe and ( 2) justified by the State’s interest in uncluttered 14 ballots, effective electoral competition, and the preservation of resources dedicated 15 to public financing of elections. AFFIRM ED

. 16 17 E RIC A. S TONE ( Kannon K. Shan mu gam, 18 Robert A. Atkins, Brette Tannenbaum, on the 19 brief ), Paul, Weiss, Rifkind, Wharton & 20 Garrison LLP, New York, New York for 21 Plaintiff s

- Appellant s
. 22 23 E LLIOT A. H ALLAK ( Daniel R. LeCours, 24 Thomas J. Garry, Kyle D. Gooch , on the brief ), 25 Harris Beach PLLC, Albany, New York for 26 Defendants

- Appellees

. 27 28 P ARK , Circuit Judge : 29

New York recently amended its election laws to condition status as a 30 “political party” on an organization’s performance in presidential elections. The 31 SAM Party of New York (“SAM Party”) is a political organization that, for a mix 32 of ideological and practical reasons, chose not to participate in the 2020 333 presidential election. It argues that th e new presidential

- election requirement 1

violates its members’ First and Fourteenth Amendment rights

. But unless the 2 burden on such rights is severe or unjustified , “States may condition access to the 3 general election ballot by a minor

- party or independent candidate upon a showing 4 of a modicum of support among the potential voters for the office.” Munro v. 5

Social ist Workers Party , 479 U.S. 189, 193 (1986). New York law provides reasonable 6

avenues for ballot a ccess to organizations that do not participate in the presiden tial 7

election

. T he presidential

- election requirement can also be justified by the State’s 8 interest in decluttering its ballots, preventing voter confusion, and preserving the 9 public fisc

. The district court appropriately denied the SAM Party’s motion for a 10 preliminary injunction , and we affirm

. 11

I. BACKGROUND 12

A. April 2020 Electoral Reforms 13

New York law distinguishes between political parties and independent 14

bodies. Compare N.Y. Elec. Law § 1

- 104(3), with id . § 1

- 104(12). Parties, which have 15 more popular support, enjoy certain privileges but are subject to structural and 16 filing requirements. One of the principal privileges of party status is a designated 17

ballot line or “berth

. ” Id. § 7

- 104(4). F or several major offices, the winner of a 184 party’s nomination process is automatically inc luded on the ballot . But 1 independent bodies seeking to place candidates on the ballot must gather the 2 requisite number of signatures for each candidate

. Id. §§ 6

- 102, 6

- 104, 6

- 106, 6

- 114 , 3

6

- 142

. Parties also enjoy access to primaries administered by the government , 4 automatic membership enrollment from voter

- registration forms, and permission 5 to maintain a financial account, exempt from ordinary contrib ution limits, to pay 6

for office space and staff. Id. §§ 5

- 300, 14

- 124(3)

. 7
For 85 years , New York conferred party status on a political organization if 8

it won at least 50,000 votes in the quadrennial gubernatorial election. As the 9

number of voters in New York increased, this threshold became relatively low, as 10

did the number of signatures required on an independent bod y’ s nominating 11
petition

. Apparently as a result, the State has seen its share of colorful

- if

- quixotic 12

runs for office. See, e.g. , William F. Buckley, Jr., The Unmaking of a Mayor (1966); 13 Rent is Too Damn High Party, http://www.rentistoodamnhigh.org (last visited 14

Feb. 8 , 202 1 ). Eight organizations met the party

- status threshold in th e 2018 15 gubernatorial election. 16

The State amended its party

- qualification requirements in April 2020. It 17 raised the threshold from 50,000 votes to the greater of 130,000 votes or 2% of the 185 total vote. See N.Y. Elec. Law § 1

- 104(3). And instead of requali fying every four 1 years, political organizations must now requalify by meeting the higher threshold 2 in the gubernatorial and presidential election s , one of which occurs every two 3

years

. Id. T he New York State Campaign Finance Review Commission proposed 4

th ese changes as part of a larger package of reforms that include s public financing 5 for qualifying candidates in state races . The New York State Legislature passed 6 and Governor Andrew Cuomo signed the package into law as part of the budget 7

for fiscal year 2 021. See 2020 N.Y. Laws Ch. 58 (S. 7508

- B). Public financing is 8

scheduled to begin after the 2022 general election

. I d. pt. ZZZ, § 12. 9

B. The SAM Party’s Challenge 10 The SAM Party describes itself as a “new kind of candidate

- focused, 11

process
- driven political party, rather than one predicated on shared substantive 12 policy positions or ideologies.” App ’ x at 457 ( Decl. of Michael J. Volpe in Supp. of 13

Pls.’ Mot. f or Prelim. Inj. ( May 18, 2020 ) , ¶ 2 )

. SAM stands for Serve America 14
Movement, and the SAM Party subjects candidates for village, town, county, 15 regional, and statewide office to a scorecard based on the four “pillars” of 16 “transparency, accountability, electoral reform, and problem solving.” Id. at 459 17
( ¶ 8 )

. Although the SAM Party has nominated several of its own candidates for 186 office, most of its candidates are shared with another political party. New York 1

has a “fusion voting” system, by which the same candidate for office can be listed 2

on each of several parties’ designated ballot line s and earns the total votes cast on 3

all his or her ballot lines. See N.Y. Elec. Law § 7

- 104. 4 SAM became a political party in 2018 when it ran a gubernatorial ticket of 5 Stephanie Miner, the former mayor of Syracuse , a Democrat, and Michael J. Volpe, 6 the former mayor of Pelham , a Republican. Because it was then just an 7 independent body, to get Miner and Volpe on the ballot , the SAM Party was 8

req uired to obtain signatures from 15,000 New York voters, including at least 100 9

from each of one

- half of the State’s congressional districts

. See id. § 6

- 142 (2018). 10

The Miner

- Volpe ticket earned 55,4 4 1 votes, just exceeding the party

- status 11 qualification threshold then in place

. In the three years since becoming a political 12
party, the SAM Party has nominated dozens of successful candidates. In the most 13

recent election cycle , the SAM Party endorsed nineteen successful candidates

— 14 from village trustee to t he House of Representatives

— all of whom appeared on its 15

ballot line and were also nominated by either the Republican or Democratic Party. 1 16

1 See Press Release, SAM Party of New York Gives Voters a Choice in 2020 Elections , SAM Party of NY (Dec. 11, 2020), http://joinsamny.org/uncategorized/sam

- party

- of

- new
- york

- gives

voters

- a
- choice

- in

- 2020

- elections

.7 The new requirements jeopardize the SAM Party ’s status as a political party

. 1

It wishes to “ avoid getting prematurely embroiled in, or associated with, one side 2

or the other of the ideological divide,” fearing that taking positions on substantive 3 issues or entering high

- profile contests would detract from its process

- driven 4 mission and message. App ’ x at 461 (Volpe Decl. ¶ 13 )

. The SAM Party is thus 5 “very careful” about the races it chooses to enter. App ’ x at 556 ( Decl. of Scott W. 6 Muller in Supp. of Pls.’ Mot. f or Prelim. Inj. ( May 18, 2020 ) , ¶ 15 )

. 7

When New York adopted the presidential

- electi on requirement in the 8 spring of 2020 , the SAM Party chose not to contest the race for President and filed 9

this lawsuit instead

. The SAM Party decided not to cross

- nominate Donald Trump 10
or Jo seph Biden because doing so would be “brand suicide,” tagging its elf 11 “forever” with a set of positions on hot

- button issues it has to this point eschewed. 12 Appellants’ Br. at 24. It also determined that running its own candidate for 13

P resident would be futile because the SAM Party is organized as a n official party 14 only in New York. Indeed, t he only two minor parties to retain party status after 15 the November 2020 presidential election are the Conservative Party and the 168 Working Families Party, each of which cross

- nominated one of the two major 1

candidates. 2 2

Th e SAM Party challenge s New York’s new presidential

- election party

3 qualification requirement , alleging that it unconstitutionally burdens the 4 associational rights of its members and compels their speech

. The SAM Party does 5 not challenge the increase to the qualification threshold for the gubernatorial 6

election. 7 The SAM Party moved for a preliminary injunction to enjoin the S tate from 8
stripping it of party status in the wake of the 2020 presidential election

. T he United 9

States District Court for the South ern District of New York (Koeltl, J. ) entered an 10 opinion and order den ying the motion. The district court concluded that the SAM 11 Party had “failed to demonstrate that allowing the amended party qualification 12 requirements to take effect would violate their Constitutional rights, otherwise 13 cause irreparable harm to the plaintiffs, or be against the public interest.” SAM 14 Party v. Kosinski , --- F. Supp. 3d

--- , No. 20

- cv - 323, 2020 WL 5359640, at *2 (S.D.N.Y. 15

S e pt. 1, 2020). T he SAM Party and Volpe now appeal from that order. See 28 U.S.C. 16
§§ 1292(a)(1), 1331, 1343. 17

2 See N.Y. Bd. of Elections, Certified Results for the 11/3/2020 General Election (Dec. 3, 2020), http://www.elections.ny.gov/2020ElectionResults.html.9 II. DISCUSSIO N 1

To obtain a preliminary injunction against government enforcement of a 2

statute , the SAM Party must establish (1) that it is likely to succeed on the merits, 3 (2) that it is likely to suffer irreparable harm if the injunction is not granted, (3) that 4 the balance of the equities tips in its favor, and (4) that the injunction serves the 5 public interest. Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008 )

. “We 6 review a district court’s decision to deny a preliminary injunction for abuse of 7

discretion.” Libertarian Party of C onn . v. Lamont , 977 F.3d 173 , 176 (2d Cir. 2020)

. 8

“ A district court abuses its discretion when it rests its decision on a clearly 9 erroneous finding of fact or makes an error of law.” Id. (quoting Almontaser v. 10 N.Y.C. Dep’t of Educ. , 519 F.3d 505, 508 (2d Cir. 2008)). 11

A. Likelihood of Success on the Merits 12

T he U

. S

. Constitution grants States “ broad power to prescribe the ‘Times, 13 Places and Manner of holding Elections for Senators and Representatives,’ Art. I, 14 § 4, cl. 1, which power is matched by state control over the election process for 15

state offices.” Wash. State Grange v. Wash. State Repu blican Party , 552 U.S. 442, 451 16
(2008) (quoting Clingman v. Beaver , 544 U.S. 581, 586 (2005)). “The F irst 17

A mendment protects the right of citizens to associate and to form political parties 1810 for the advancement of common political goals and ideas .” Timmons v. Twin Cities 1 Area New Party , 520 U.S. 351, 357 (1997)

. C ourt s have recognized that t he exercise 2

of this right to associate and to form political parties depends on an effective

— and 3 effectively democratic

— electoral process. “ State s may, and inevitably must, enact 4 reasonable regulations of parties, elections, and ballots to reduce election

- and 5
campaign

- rela ted disorder

. ” Id. at 35 8 ; accord Anderson v. Celebrezze , 460 U.S. 780, 6
788 (1983). Courts have thus eschewed strict scrutiny in challenges to party

7 qualification requirements. “ [T] o subject every voting regulation to strict scrutiny 8 and to require that the regulation be narrowly tailored to advance a compelling 9

state interest

. . . would tie the hands of States seeking to assure that elections are 10 operated equitably and efficiently. Accordingly, the mere fact that a State ’ s system 11

creates barriers tend ing to limit the field of candidates from which voters might 12 choose does not of itself compel close scrutiny.” Burdick v. Takushi , 504 U.S. 428, 13
433 (1992) ( cleaned up ). 14 Instead of strict scrutiny, courts apply what has come to be known as the 15

Anderson

– Burdick framework. “Under this standard, the rigorousness of our 16 inquiry into the propriety of a state election law depends upon the extent to which 17 a challenged regulation burdens First and Fourteenth Amendment rights.” Id. at 1811 434. First, if the restri ctions on those rights are “severe , ” then strict scrutiny 1 applies

. Id. “But when a state election law provision imposes only ‘reasonable, 2 nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights 3
of voters, ‘the State ’ s important regulatory interests are generally sufficient to 4 justify’ the restrictions.” Id. (quoting Anderson , 460 U.S. at 788). 5 This latter, lesser scrutiny is not “pure rational basis review.” Price v. N.Y. 6 State Bd. of Elections , 540 F.3d 101, 108 (2d Cir. 2008)

. Rather, “the court must 7 actually ‘weigh’ the burdens imposed on the plaintiff against ‘the precise interests 8 put forward by the State , ’ and the court must take ‘into consideration the extent to 9 which those interests make it necessary to burden the plaintiff ’s rights .’” Id. at 10

108

– 09 (quoting Burdick , 504 U.S. at 434 ). Review under this balancing test is 11 “quite deferential , ” and no “elaborate, empirical verification” is required. Id. at 12

109 (quoting Timmons , 520 U.S. at 364 ). 13

1. Severity of the Burden 14

Courts have identified three types of s evere burdens on the right of 15

individuals to associate as a political party. First are regulations meddling in a 16 political party’s internal affairs. See, e.g. , Cal. Democratic Party v. Jones , 530 U.S. 567, 17

581

– 82, 586 (2000); Eu v. S.F. C n ty. Democratic Cent. Comm. , 489 U.S. 214, 229

– 31 1812 (1989); Tashjian v. Republican Party of Conn. , 479 U.S. 208, 215

– 16 (1986). Second are 1 regulations restricting the “core associational activities” of the par ty or its 2

members. Timmons , 520 U.S. at 360. See, e.g. , Eu , 489 U.S. at 223. 3 Third are 3 regulations that “make it virtually impossible ” for minor parties to qualify for the 4

ballot. Williams v. Rhodes , 393 U.S. 23, 25 (1968)

. See, e.g. , Norman v. Reed , 502 U.S. 5
279, 289 (1992) ; Ill. State Bd. of Elections v. Socialist Workers Party , 440 U.S. 173, 185

– 6
86 (1979) ; Green Party of N.Y. State v. N.Y. State Bd. of Elections , 389 F.3d 411, 420 (2d 7
Cir. 2004)

. The SAM Party likens the presidential

- election req uirement’s burden 8 to these latter two types. 9 We disagree. First, the presidential

- election requirement does not severely 10 burden the SAM Party’s core associational activities. The SAM Party argues that 11

the presidential

- election requirement compels it to speak on the hot

- button issues 12 at stake in a presidential election. But we are not persuaded

. A law that ties party 13 status to a political organization’s demonstrated support in a designated race does 14

not “f orce” the organization “to divert its resources in any particular way.” Person 15

3 Direct regulation of “core political speech” arguably falls into this category. Lerman v. Bd. of Elections , 232 F.3d 135, 146 (2d Cir. 2000). Such restrictions are per se severe, so courts effectively bypass the Anderson

– Burdick framework. See McIntyre v. Ohio Elections Comm’n , 514 U.S. 334, 344

– 45 (1995); Buckley v. Am. Const

. Law Found., Inc. , 525 U.S. 182, 207

– 08 (1999) (Thomas, J ., concurring in the judgment ).13 v. N.Y. State Bd. of Elections , 467 F.3d 141 , 144 (2d Cir. 2006) (upholding the 1 challenge of a candidate for Attorney General to the gubernatorial

- election 2 requirement). That is because parties remain “free to choose not to seek official 3

status.” Id. An independent body may still operate in the political arena and run 4

candidates. I ndeed, this is how the SAM Party made its way onto the ballot three 5 years ago. We thus reject the claim that the presidential

- election requirement 6 compels speech. 7 The SAM Party’s second theory

— that the presidential

- election requirement 8 is a “severe” impediment to the development of minor parties like itself

— also 9

fails

. As we have recent ly explaine d, “the hallmark of a severe burden is exclusion 10

or virtual exclusion from the ballot.” Libertarian Party of Conn. , 977 F.3d at 177 11
(quoting Libertarian Party of Ky. v. Grimes , 835 F.3d 570, 574 (6th Cir. 2016) 12
(alterations omitted) ). To gauge whether mi nor parties have been so burdened, 13

w e look at the “combined effect of [New York’s] ballot

- access restrictions.” 14 Libertarian Party of Ky. , 835 F.3d at 575 (internal quotation marks omitted)

. 15
As an initial matter, the presidential

- election requirement does not 16

“ virtually exclude ” minor parties from the ballot. New York’s 2% threshold is in 17 the middle of the pack among the three

- dozen states that require parties to obtain 1814 a certain level of support in a statewide r ace. Several federal courts of appeals 1 have approved of thresholds as high and higher. See, e.g. , id. (upholding 2% 2 presidential

- election requirement) ; Green Party of Ark. v. Martin , 649 F.3d 675 , 682

– 3 83 (8th Cir. 2011) (upholding 3% presidential

- electio n requirement); McLaughlin v. 4 N.C. Bd. of Elections , 65 F.3d 1215, 1222

– 23 (4th Cir. 1995) (upholding 10% 5 presidential

- election requirement to requalify as a party) ; Arutunoff v. Okla. State 6

Election Bd. , 687 F.2d 1375, 1379 (10th Cir. 1982) (same)

. In fa ct, t wo minor parties

— 7 the Conservative Party and the Working Families Party

— easily cleared the 8 presidential threshold during the most recent cycle. 9

T here is also no “ severe burden” because the SAM Party could compet e as 10 an independent body. Under the current signature thresholds ( which were also 11

amended in April 2020 ) , an independent body can place a candidate on the ballot 12 for a statewide race by collecting 45,000 signatures, a number that will never 13

exceed 1% of the off

- year electorate. See N.Y. Elec. Law §§ 6

- 138, 6

- 142(1). And in 14 the county and State Assembly offices in which the SAM Party has participated , 15 the number is 1,500 signatures or 5% of the off

- year electorate, whichever is less. 16

Id. § 6

- 142(2)(a), (g). These requirements p ale in comparison to the ones the 17 Supreme Court upheld in Jenness v. Fortson , 403 U.S. 431 (1971). In Jenness , political 1815 organizations receiving less than 20% of the vote in the most recent gubernatorial 1 or presidential election

— i.e. , all minor parties

— wo uld need to amass signatures 2 representing 5% of the electorate to place a candidate for statewide office on the 3

ballot. Id. at 433

– 34. While a 15% signature requirement imposes a severe burden, 4

see Williams v. Rhodes , 393 U.S. 23, 25 (1968), a requiremen t as high as 5% “in no 5 way freezes the status quo” and thus does not “abridge[] the rights of free speech 6 and association secured by the First and Fourteenth Amendments.” Jenness , 403 7

U.S. at 439

– 40 ; see also Libertarian Party of Ill. v. Rednour , 108 F.3d 768, 775 (7th Cir. 8
1997); Rainbow Coal. of Okla. v. Okla. State Election Bd. , 844 F.2d 740, 741

– 44 (10th 9
Cir. 1988) . The signature requirements set by the State of New York are 10 significantly lower than these, and “a reasonably diligent [organization] cou ld be 11 expected to satisfy [New York’s] signature requirement.” Libertarian Party of 12

Conn. , 977 F.3d at 179. 4 13

4 The SAM Party also argues that having to compete as an independent body imposes a burden that is particularly significant for its chosen strategy of lending an “impr imatur” to candidates nominated by other parties. But the Constitution does not require any state to “compromise the policy choices embodied in its ballot

- access requirements to accommodate [a political organization ’ s] strategy.” Timmons , 520 U.S. at 365

.16 In short, the presidential

- election requirement does not impose a severe 1 burden on the SAM Party. It does not compel speech, and New York law provides 2

alternative means for political organizations to compete in elections. 3

2. Weighing the State’s Interests 4 We agree with the district court that the SAM Party is not likely to show that 5

the S tate’s interests fail to justify the presidential

- election requirement. T he 6 balancing test at the second stage of the Anderson

– Burdick framework is “quite 7

deferential.” P rice , 540 F.3d at 109. “ [ A ] State’s important regulatory interests will 8 usually be enough to justify reasonable, nondiscriminatory restrictions.” Timmons , 9
520 U.S. at 358 ( cleaned up ). Otherwise, we would “hamper the ability of States 10

to run efficient a nd equitable elections, and compel federal courts to rewrite state 11

electoral codes.” Clingman , 544 U.S. at 593. 12 The State contends that the presidential

- election requirement is a justifiable 13 means of gauging whether a party continues to enjoy a sufficie nt “modicum” of 14 support deserving automatic ballot access. “There is surely an important state 15
interest in requir ing some preliminary showing of a significant modicum of 16 support before printing the name of a political organization’s candidate on the 17

ballot

— the interest, if no other, in avoiding confusion, deception, and even 1817 frustration of the democratic process at the general election.” Jenness , 403 U.S. at 1

442. And t his interest is more than a matter of uncluttered ballot layout or 2 simplified election administration

. In enacting regulations that limit the number 3
of candidates on the ballot, “the State understandably and properly seek s to

. . . 4 assure that the winner is the choice of a majority, or at least a strong plurality, of 5 those voting .” Bullock v. Carter , 405 U.S. 134, 145 (1972). 6

The State has a second reason for its new party

- status threshold : its interest 7 in conserving limited resources devoted to public financing of state elections. 8 Following the 2022 general election, New York will match funds raised by 9

candidates. According to the State, more minor political parties will mean more 10 public dollars spent on unpopular candidacies. That is in part because matching 11 funds are used in primary elections and only political parties have primary 12 elections, and it is in part because only those candidates appearing on the ballot 13 will be eligible. See N.Y. Elec. Law § 14

- 203 (ef fective Nov. 9, 2022). The 14 government’s “interest in not funding hopeless candidacies with large sums of 15 public money necessarily justifies the withholding of public assistance from 16 candidates without significant public support.” Buckley v. Valeo , 424 U. S. 1, 96 17
(1976) (citation omitted)

. 1818 The SAM Party does not dispute the legitimacy of these interests. It argues 1

instead that the presidential

- election threshold will not meaningfully further those 2 interests. According to the SAM Party, “[t]he presidenti al

- election requirement is 3 too blunt an instrument to gauge whether an organization has that bare modicum 4 of support among the New York electorate.” Appellants’ Br. at 34. But “popular 5 vote totals in the last election are a proper measure of public suppo rt.” Green Party 6 of Conn. v. Garfield , 616 F.3d 213, 231 (2d Cir. 2010) (quoting Buckley , 424 U.S. at 99

– 7

100 )

. Parties run individual candidates and not lists as in some countries, so it is 8 reasonable to gauge a party’s support by its candidate’s performance in the top

9

of

- the

- ticket race. The SAM Party also contends that the increased qualification 10

thresholds for gubernatorial elections suffice to vindicate th e State’ s interest in 11 ensuring that official parties enjoy adequate popular support , making the 12 presidential

- election requirement unnecessary

. But the State may seek to measure 13 popular support in a more timely fashion , and the presidential election is the only 14 statewide race that always occurs off

- cycle from the State’ s gubernatorial election. 15

T he SAM Party also relies on reports from the Brennan Center for Justice 16 and the Campaign Finance Institute to argue that the spending caps and other 17 eligibility requirements built into the fund

- matching formula s will cause public 1819 spending on minor parties to be insubstantial. But we do not require “elaborate, 1 empirical verification” of the State’s justifications

. Timmons , 520 U.S. at 364. 2
Moreover, e ven if the S tate has installed other measures aimed at preventing 3

nonviable candidacies from receiv ing public funds, it may pursue multiple 4 avenues towards that goal

. 5 The State has set forth a coherent account of why the presidential

- election 6
requirement will help t o guard against disorder and waste. Under the “quite 7 deferential” review at this step, Price , 540 F.3d at 109, that is enough to justify the 8 burden the requirement imposes on the SAM Party ’s members . We thus conclude 9 that the SAM Party is not likely to s ucceed on the merits of its claim. 10

B. Irreparable Harm 11 Without an injunction, the SAM Party will lose its status as a political party 12

after failing to meet the vote threshold in the 2020 presidential election. The SAM 13
Party argues that this will harm its members ’ First Amendment associational and 14 speech rights. T he presence of irreparable injury to First Amendment rights, 15
however, “turns on whether the plaintiff has shown a clear likelihood of success 16

on the merits , ” which SAM has failed to do. Beal v. Stern , 184 F.3d 117, 123

– 24 (2d 17
Cir. 1999) ; see also Bronx Household of Faith v. Bd. of Educ. , 331 F.3d 342, 349

– 50 (2d 1820 Cir. 2003) (holding that the presumption of irreparable harm applies only when 1 the challenged law “directly limits speech” and not, as here, where the law “may 2 only potentially affect speech”). Thus, the SAM Party has not met its burden of 3

demonstrat ing that it will be irreparably h armed without an injunction. 4

C. Public Interest 5 In a suit against the government, balancing of the equities merges into our 6 consideration of the public interest. New York v. U.S. Dep ’ t of Homeland Sec. , 7

969 F.3d 42, 58

– 59 (2d Cir. 2020). As explained abo ve, the presidential

- election 8
requirement serves important regulatory interests. Certainly, “securing First 9 Amendment rights is in the public interest,” N.Y. Progress & Prot. PAC v. Walsh , 10
733 F.3d 483, 488 (2d Cir. 2013), but that is of no help to a plaintiff like the SAM 11
Party that is not likely to succeed on its First Amendment claim. Moreover, w hile 12 some voters would surely like to see the SAM Party automatically included on 13 their ballot in the next cycle, the interest of those voters does not outweigh the 14 broader public interest in administrable elections, ensuring that parties enjoy a 15 modicum of electoral support , and the conservation of taxpayer dollars. 16

I II

. CONCLUSION 17

For the reasons set forth above , the district cour t’s judgment is affirmed

. 18