SUPREME

COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
-------------------------------------------------------------X Index No.:
MARK WARREN MOODY,
Individually and as Class Representative,
Petitioner,
-against
THE NEW YORK STATE BOARD OF ELECTIONS;
PETER S. KOSINSKI, DOUGLAS A. KELLNER,
ANDREW J. SPANO, GREGORY P. PETERSON
in their official capacities; and THE NEW YORK
CITY BOARD OF ELECTIONS; BIANKA PEREZ,
FREDERIC M. UMAME, JOSE MIGUEL ARAUJO,
JOHN FLATEAU, LISA GREY, MARIA R.
GUASTELLA, MICHAEL MICHEL, MICHAEL A.
RENDINO, ALAN SCHULKIN and SIMON
SHAMOUN in their official capacities,

Respondents.
-------------------------------------------------------------X


MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS APPLICATION FOR
PRELIMINARY INJUNCTIVE RELIEF




Mark Warren Moody, Esquire
43 West 43rd Street
New York, New York 10036
t. 917-414-7886
e. mwm@mwmoody.com

PRELIMINARY STATEMENT

No member of this state shall be disfranchised1 is the very first line of the
Constitution of the State of New York. Together with approximately three million
other New Yorkers2, I was disfranchised on Tuesday April 19, 2016, as were
presidential candidate Donald J. Trumps children Ivanka and Eric.
That disfranchisement occurred because New York voters were arbitrarily and
nonsensically required to choose party affiliation on or before October 9, 2015 six
months and ten days in advance of the primary election; at a time when the vast
majority of the media and punditocracy did not believe that Bernie Sanders or Mr.
Trump had a chance of becoming their partys nominee. That date (October 9, 2015)
strikes hard at our State Constitutional guarantee.
New Yorks closed primary system is not constitutional pursuant to the New
York State Constitution and the 2016 New York presidential primary election
highlights why.
This application seeks a preliminary, interim, injunction enjoining the New
York City and State Boards of Election from tabulating or certifying any results from
the April 19, 2016 presidential primary election until all affidavit ballots cast have
been counted pending this special proceedings outcome.



1 N.Y.S. Const. Art. I 1.

2 See http://www.nydailynews.com/news/politics/3-million-residents-barred-
voting-n-y-primary-article-1.2601866 (approximately one million of the three
million are in New York City).

FACTS
On March 24, 2016, I (a New York City lawyer) registered to vote (Petition,
9)3. On or about April 15, 2016, I received a Transfer Notice from Defendant
Board of Elections in the City of New York (Petition, 32, Exhibit 2). Exhibit 2
categorizes my party as NONE and my Future Party as DEMOCRATIC. Except it
wasnt the future. On April 19, 2016, Id chosen the Democratic Party in the past (on
March 24, 2016).
Having no idea that I would fall into exactly the same boat, when I heard the
news (on or about April 13, 2016) that Ivanka and Eric Trump would be unable to
vote for their father in the New York State primary, I laughed.4
I thought it risible that they consummately resource powerful voters that
they are could have missed a deadline (Petition, 35). How could it have been
possible, I thought, that with all that power, and their father as a candidate could
they have missed a deadline?
They are among the most privileged (financially at least) people in America.
Their father is worth (at least) north of one billion dollars, and hes running for
President of the United States. Mr. Trumps own army of lawyers and advisors could
not, however, advise his children of the October 9, 2015 date. Put differently, Mr.
Trumps children are under any reckoning amongst the least likely people ever

3 Petition, _ refers to the Verified Petition in this special proceeding sworn to
April 26, 2016, and annexed herewith as Exhibit 1.

4 See http://www.startribune.com/disenfranchised-trump-children-not-along-
among-would-be-voters/375909251/.

to be disfranchised. Yet in the 2016 New York State primary (together with
approximately three million (3,000,000,000) other New Yorkers) they were.
On October 9, 2015, few Americans had even heard of Bernie Sanders, and far
fewer considered him to be a possible Democratic Party nominee, and while Mr.
Trump already had 100% name recognition, the punditocracy uniformly believed
that there was no way that he would be the Republican Party nominee (Petition,
20).
I attended my polling place on April 19, 2016 (Petition, 36). My name did not
appear on the computer generated list (Petition, 37). The workers and officials
explained that I would be denied the right to vote except by affidavit which would
not be counted (Petition, 38-42). I went to the New York City Board of Elections
in order to get an order from a judge giving me the right to vote by ballot (Petition,
44-46). The New York City Board of Elections produced my prior registration
indicating no party-affiliation, and I returned to my voting place to vote by what I
knew to be a likely uncounted affidavit ballot (Petition, 48).
According to its website, the New York City Board of Elections is responsible
for, inter alia, registration, outreach and processing and Voter education,
notification and dissemination of election information5.





5 See http://www.vote.nyc.ny.us/html/about/about.shtml.

ARGUMENT

POINT I

THIS COURT HAS JURISDICTION TO HEAR THIS MATTER.

Election Law 16-100 provides: The supreme court is vested with jurisdiction
to summarily determine any question of law or fact arising as to any subject set
forth in this article, which shall be construed liberally.
Election Law 16-106.1. provides: The casting or canvassing or refusal to cast
[] ballots voted in affidavit envelopes by persons whose registration poll records
were not in the ledger or whose names were not on the computer generated list on
the day of election may be contested in a proceeding instituted in the supreme or
county court [] by any voter with respect to the refusal to cast such voters ballot,
against the board of canvassers of the returns from such district, if any, and
otherwise against the board of inspectors of election of such district. If the court
determines that the person who cast such ballot was entitled to vote at such
election, it shall order such ballot to be cast and canvassed [].
Election Law 16-100.2 provides: The canvass of returns by the state, or
county, city, town or village board of canvassers may be contested, in a proceeding
instituted in the supreme court by any voter [].
Election Law 16-100.4 provides: The court may direct a recanvass or the
correction of an error, or the performance of any duty imposed by law on such a
state, county, city, town, or village board of inspectors or canvassers.
Pursuant to Election Law 16-116: A special proceeding under the foregoing
provisions of this article shall be heard upon a verified petition and such oral or

written proof as may be offered, and upon such notice to such officers, persons or
committees as the court or justice shall direct, and shall be summarily determined.
The proceeding shall have preference over all other proceedings in all courts.
POINT II

ELECTION LAW 5-304 (AS WELL AS ALL OF ITS COROLLARIES) IS
UNCONSTITUTIONAL ON ITS FACE
UNDER THE NEW YORK STATE CONSTITUTION.

No member of this state shall be disfranchised N.Y.S. Const. Art. I 1.
Every citizen shall be entitled to vote at every election for all
officers elected by the people and upon all questions submitted to the vote of
the people [emphases supplied]. N.Y.S. Const. Art. II 2.
Given these powerful words (articulated in our Constitution), the right to vote
is guaranteed Panio v. Sunderland, 4 N.Y.3d 123, 129 (fn 3) (2005) and may only
be taken away or diminished [] under extraordinary circumstances Esler v.
Walters, 56 N.Y.2d 306, 310 (1982).
Article II of the New York State Constitution titled suffrage carefully
delineates permissible requirements for the registration of voters, and inarguably
provides much more rigorous protection to voters than the United States
Constitution.6 In Article IIs 9 detailed sections, which provide narrow possible

6 Art. II 1 establishes residence and age requirements. Art. II 2 provides the
legislature with powers to establish the manner of absentee voting (last amended by
vote of the people on November 5, 1963). Art. II 3 prohibits voters who are paid to
vote in a particular way or gamble on elections (last amended by vote of the people
on November 6, 2001). Art. II 4 provides restrictions on the States capacity to
limit voting based on residency requirements as a result of a voters occupation (for
example her service in the military)(last amended by vote of the people on
November 6, 2001). Art. II 5 provides for the legislatures passing laws to ascertain
the registration status of voters (last amended by vote of the people on November 7,

restrictions upon the legislatures (or any other bodys) capacity to disfranchise a
voters broadly guaranteed Article I 1 and Article II voting rights there is no
mention of party affiliation being a possible impediment to a New Yorkers right to
vote.
It is, thus, axiomatic that voting is of the most fundamental significance under
our constitutional structure [citation omitted] Walsh v. Katz, 17 N.Y.3d 336, 343
(2011). It may not be gainsaid that particularly under the broadly protective and
restrictive regime of the New York State Constitution a member of New York
states right to vote constitutes core political speech LaBrake v. Dukes, 96 N.Y.2d
913, 914 (2001).
Both the actual operation and public perception of the electoral process as
one that seeks regularity and evenhanded application must not be distorted. The
Election Law must have a neutral application unaffected by party affiliation
[emphases supplied] Staber v. Fidler, 65 N.Y.2d 529 at 530 (1985).
Of course, a party attacking the facial constitutionality of a statute bears a
heavy burden [citations omitted]. Wood v. Irving, 85 N.Y.2d 238, 244-245 (1995).
Plaintiffs believe they easily meet that burden.

1995). Art. II 6 provides for the legislatures ability to create a system of
registration that permits an individual voter to continue her registration as long as
she remains a resident (last amended by vote of the people on November 6, 2001).
Art. II 7 provides for a methodology of voting (approved by vote of the people on
November 8, 1938). Art. II 8 guarantees that any laws relating to voting be bi-
partisan (last amended by vote of the people on November 7, 1995). Art. II 9
provides for residency requirements for voters newly resident of New York voting
in presidential elections)(last amended by vote of the people on November 6, 2001).

 The United States Supreme Court in a (5 (Stewart, Burger, White, Blackmun,

Rehnquist JJ) 4 (Powell, Douglas, Brennan, Marshall, JJ)) decision upheld the
federal constitutionality of New Yorks closed primary under the United States
Constitution. Rosario v. Rockefeller, 410 U.S. 752 (1973).7
The Rosario Court was not asked to consider New Yorks closed primarys
constitutionality pursuant to the New York State Constitution. Nor was the Neale
Court or the Fotopoulos Court.
At least three reasons strongly compel the conclusion that this Court should
not follow the Rosario majority, but should rather follow the Rosario minority.
First, Rosario did not determine the closed primarys constitutionality pursuant
to the New York State Constitution. It is, of course axiomatic that a State (including
New York) may provide broader constitutional protections to its citizens than those
provided by the United States Constitution to the nations citizens. See e.g. People v.
Robinson, 97 N.Y.2d 341, 350 (2001).8 Any cursory comparison of the New York
State Constitutions voter protection scheme with that of the United States
Constitutions reveals that the New York State Constitution provides much broader

7 The Court of Appeals has acknowledged Rosario. See Neale v. Hayduk, 35 N.Y.2d
182, 185 (1974); Fotopoulos v. Board of Elections of City of New York, 45 N.Y.2d 807
(1978). Though the Court of Appeals has never been asked to consider the question
at issue here.

8 Holding: We have observed that because the search and seizure language of the
Fourth Amendment and of article I, 12 is identical, they generally confer similar
rights [citations omitted]. Nevertheless, this Court has not hesitated to expand the
rights of New York citizens beyond those required by the Federal Constitution when
a longstanding New York interest was involved [citations omitted]. Id.

protections. Accord Robinson, supra (which found broader protections for New
Yorkers even though the language of the state and federal constitutions is identical).
Second, if we are to take seriously Article I 1s prohibition ([n]o member of
this state shall be disfranchisd) on at least one prong of its reasoning, the Rosario
majority was proven absolutely wrong by the 2016 presidential primary election.
The Court reasoned and held: The petitioners do not say why thy did not enroll
prior to the cutoff date; however, it is clear that they could have done so, but chose
not to. Hence, if their plight can be characterized as disenfranchisement at all, it was
not caused by [the then operative statute, now 5-304 of the Election Law], but by
their own failure to take timely steps to effect their enrollment. Rosario, supra, 410
U.S. at 757.
I am a practicing attorney who is fairly politically active. I had no idea of the
October 9, 2015 cutoff date. In my view, that fact alone should be sufficient to
warrant strict scrutiny by the Courts. There are likely millions of New Yorkers who
before they knew that Bernie Sanders or Donald Trump stood any chance of being
their partys nominee for President would have had to have in fact chosen who they
wanted to vote for in order to have any meaningful vote.9 That sufficien[cy] to

9 As the Rosario minority presciently stated: Political parties in this country
traditionally have been characterized by a fluidity and overlap of philosophy and
membership. And citizens generally declare or alter party affiliation for reasons
quite unconnected with any premeditated intention to disrupt or frustrate the plans
of a party with which they are not in sympathy. Citizens customarily choose a party
and vote in its primary simply because it presents candidates and issues more
responsive to their immediate concerns and aspirations. Such candidates or issues
often are not apparent eight to 11 months before a primary. That a citizen should be
absolutely precluded so far in advance from voting in a party primary in response to
a sympathetic candidate, a new or meaningful issue, or changing party philosophies
in his State, runs contrary to the fundamental rights of personal choice and

warrant becomes a categorical imperative when Ivanka and Eric Trump children
of the local billionaire who is actually running for President were caught flat-
footed by the closed primary rules and were thus unable to vote for their father.
Weighing matters with any care, can it really be believed that Ms. Trump and
her brother were disenfranchised by their own failure to take timely steps, or does
Election Law 5-304 simply disfranchise members of this State in stark derogation
of Articles I and II of the New York State Constitution?
Petitioner urges that this Court should conclude the latter.
Whether analyzed under a strict scrutiny10 (which it should be),
intermediate scrutiny11 or rational basis12 standard of constitutional legislative
justification, Election Law 5-304 fails as a violation of New York State Constitution
Articles I 1. and II, and Article I 11 (equal protection).

expression which voting in this country was designed to serve. Id. 410 U.S. at 769-
770.

10 Requiring the State to justify legislation that is narrowly drawn to advance a
state interest of compelling importance [citation omitted] LaBrake v. Dukes, 96
N.Y.2d 913, 914 (2001)

11 Under intermediate scrutiny, [the State] must show that the ordinance is
substantially related to the achievement of important government interests
[citation omitted] Anonymous v. City of Rochester, 13 N.Y.3d 35, 48 (2009).
[A]lthough the government need not produce evidence of the relationship to a
scientific certainty [citation omitted], the purpose of requiring [proof of] that close
relationship is to assure that the validity of a classification is determined through
reasoned analysis rather than through the mechanical application of traditional,
often inaccurate, assumptions [citation omitted]. Id.

12 Thus requiring the State to justify legislation on any reasonably conceivable state
of facts that could provide a rational basis for the classification [I]ndeed, a court
may even hypothesize the motivations of the State Legislature to discern any
conceivable legitimate objective promoted by the provision under attack [citation
omitted] Dalton v. Pataki, 5 N.Y.3d 243, 265 (2005)

10

 Under the New York State Constitution, and numerous Court of Appeals
decisions the right to vote (while abridgeable under extraordinarily narrow
circumstances) constitutes core political speech that is of fundamental significance
and that no member of this state shall be disfranchised. Accordingly, it appears
beyond cavil that the State must demonstrate that Election Law 5-304 is both
narrowly drawn and supports a compelling state interest.
The State can do neither.
Once again, this election cycle proves the closed primarys unconstitutionality
beyond cavil. On October 9, 2015, very few people had heard of Bernie Sanders and
the entirety of the punditocracy were uniformly certain that Donald Trump would
fizzle out and fade into nothing (Petition, 20). How can a voter at that stage of the
election be forced to choose what party to vote for? Indeed, one can imagine a
democratic voter registering for the Republican primary to vote against Trump and
one can imagine a Republican voter registering for the Democratic Party to vote
against Hillary Clinton. Why on earth shouldnt a voter be entitled to do that and
thereby lose the opportunity to vote in their own real party primary? Theres
certainly nothing prohibiting a registered Democrat from voting Republican in the
general election, or vice versa. Why should there be any difference in a primary?
What possible state interest is served? The very essence of voting in a free society is
being able to vote against your party should you so choose. How many Republicans

11

this year may be compelled to vote against Donald Trump? Even Charles Koch has
indicated the possibility that he might do so, according to the Wall Street Journal.13
The state interest that the 5 judge majority in Rosario, supra, found
compelling was the closed primarys bastion against party raiding or election
raiding whereby voters in one party attempt to skew the results of a primary
election so as someone who those voters see as unelectable gets walloped in a
general election. There are several issues with this. First and arguably most
importantly how is that a state interest? Its certainly a party interest, but its got
nothing to do with the State. If a voter wants to potentially squander their primary
election vote for their favored candidate in the hope that their favored candidate
still gets elected without their vote, why shouldnt that citizen have the right to do
so? Why shouldnt the right to vote for someone that you dislike be as absolute as
the right to vote for your favored candidate, or the right not to vote at all? Its YOUR
vote in other words your core political speech.
But mostly, it affects those who register as Independent so as they can have the
opportunity to vote for whoever seems best to them for the United States at that
time.14 Why should they be disfranchised at the primary level? Again, in the 2016

13 See http://blogs.wsj.com/washwire/2016/04/24/could-charles-koch-rally-
behind-hillary-clinton/?mod=WSJBlog (Its possible Its possible, Mr. Koch said
on ABCs This Week Sunday in response to a question about whether Mrs. Clinton
would make a better leader in the White House than the three remaining
Republicans.)

14 As the Rosario minority presciently stated: The danger of voters in sympathy
with one party "raiding" another party is insubstantial where the voter has made no
prior party commitment at all. Certainly, the danger falls short of the overriding
state interest needed to justify denying petitioners, so far in advance, the right to

12

presidential primary there was no way to know which way you might vote in
October 2015. Accordingly, there is no way that the legislation is narrowly tailored
such as it can withstand strict scrutiny and there is equally little way that the
legislation is rational since it took away the right to vote before people in this state
had had any opportunity to make up their minds the very antithesis of having the
right to vote. It is obvious that the two political parties would like to lock up closed
primaries for only those loyal to them, but that is certainly not a state interest and
to the extent it is a state interest, I respectfully submit that the state should be
vehemently opposed to it as it imposes heavily upon one of New Yorkers most
hallowed and cherished rights: our right to vote; not to mention being absolutely
contrary to and in derogation of the dictates of the New York State Constitution.
Nor is there any legitimate state administrative type argument. That is
evidenced by my own registration notice which I mailed in on March 24, 2016
(Petition 15). The registration states that my current party is NONE and that my
future party is DEMOCRATIC (Exhibit 2). In short, the state (the only entity whose
interests need to be justified here) determined that March 25, 2016 was plenty of
time to submit registrations for voting at the primary and my Transfer Notice
(Exhibit 2) proves that the State was capable of changing party affiliation there and
then. Whether styled as narrowly tailored to a compelling state interest (which it
should be) or rationally related to a comprehensible state policy, there is no rational
argument that justifies requiring party enrollment to vote in a primary any later

declare an initial party affiliation and vote in the party primary of their choice. Id.
410 U.S. at 770.

13

than March 25, 2016 for the April 19, 2016 primary election and certainly none
that could justify October 9, 2015.
In conclusion, the 2016 presidential primary election demonstrates that Mark
Moody and all those similarly situated including presumably Ivanka and Eric
Trump (no matter how strange that seems to write) are beyond a reasonable
doubt able to demonstrate that in any degree and in every conceivable
application, Election Law 5-304 (and all of its closed primary relatives) has
wrought wholesale constitutional impairment15 to vast numbers of peoples right
to vote guaranteed by the New York State Constitution, and should be summarily
struck down.

POINT III

ELECTION LAW 5-304.3 IS UNCONSTIUTIONALLY VAGUE.

Election Law 5-304.3 provides: A change of enrollment received by the
board of elections not later than the twenty-fifth day before the general election
shall be deposited in a sealed enrollment box, which shall not be opened until the
first Tuesday following such general election. Such change of enrollment shall be
then removed and entered as provided in this article.
As I understand it (following at least ten (10) hours of research by a licensed
New York attorney), it is this provision of the Election Law that resulted in the
October 9, 2015 deadline for a change in party enrollment. I have no idea if Im
correct about this conclusion as if that were the case presumably the time for a
party enrollment change would have been 25 days before the last general election

15 Each quote is from Moran Towing Corp. v. Urbach, 99 N.Y.2d 443, 448 (2003)

14

which would have been Obama v. Romney and thus the date would have been
October 13, 2012 (as that general election was held on November 6, 2012).
Apparently, though, the phrase the general election refers to the last general
election held in New York State which was on November 3, 2015 for among others,
town council members and various level judges.16 Surely any voter of ordinary
intelligence cannot be expected to conclude that an election for a town council
member or a supreme court judge sufficiently notifies them that they should be
thinking about the election for the President of The United States? Apart from
anything else, judges and district attorneys dont make policy at least not in the
same way as the President of the United States does.
The phrase general election is not defined in the Election Law. Yet there are
numerous provisions that refer to and expressly define rules in presidential
elections.17
Legislation is void for vagueness unless there is a reasonable degree of
certainty [] that individuals of ordinary intelligence are not forced to guess at the
meaning of statutory terms Foss v. City of Rochester, 65 N.Y.2d 247, 250 (1985).
My foray into the Election Law as a whole reveals legislation that is literally
replete with incomprehensibility. Many hours of research left me unable to
ascertain where the date October 9, 2015 came from, and even given that

16 Which was for numerous offices in New York State, including District Attorneys,
Supreme Court and County judges, and Town Council Members. See
http://politics.newsday.com/voters-guide/long-island/results/november-3-2015-
general/

17 See e.g. Election Law 3-222.3.; 4-122.2.; 5-202.3. and 6.; 6-102; 7-104.3.(a); and
7-124.

15

understanding I still dont know if my understanding, tentatively set forth above, is

right.
I am still being forced to guess. There is little doubt in my mind that the vast
majority of New Yorkers would be forced to guess, as I am, at the meaning of
Election Law 5-304s terms.
New Yorks laws closing primaries should, accordingly, be summarily struck
down as unconstitutionally vague.
POINT IV

THE MOOTNESS DOCTRINE IS INAPPLICABLE.

Further, while the primary election had concluded [as in the matter at bar] at
the time that petitioners initiated this proceeding and, thus, the proceeding is moot
because Supreme Court could no longer compel compliance with Election Law 2-
126, we conclude that the exception to the mootness doctrine is applicable here.
Courts have discretion to review a case if the controversy or issue involved is likely
to be repeated, typically evades review, and raises substantial and novel questions
[citations omitted]. Here, the issue raised is important and novel, likely to recur and,
most notably, will typically evade judicial review in light of the fact that the
challenged expenditures are often made immediately before the primary election, as
they were here, and may not be disclosed in campaign finance records until after the
primary election has concluded [citation omitted]. Accordingly, we decline to
dismiss the petition as moot. Avella v. Batt, 33 A.D.3d 77, 80-81 (3rd Dept 2006).
Moreover, since this proceeding is brought, in part, pursuant to Election Law
16-106. subdivs. 1. and 2., it would appear that the mootness doctrine is in any

16

event wholly inapplicable as [a] proceeding under subdivision[] one [] of this

section must be instituted within twenty days and under subdivision two, within
thirty days after the election
POINT V

A PRELIMINARY INJUNCTION SHOULD ISSUE PENDING THE HEARING AND
DETERMINATION OF THIS PROCEEDING PURSUANT TO CPLR 6301.

Election Law 9-202 provides: The state board of elections upon receipt by it
from boards of elections of the tabulated statements of votes at a primary election
required to be filed with it shall proceed forthwith to canvass such statements. Upon
the completion of the canvass it shall make, certify and file in its office tabulated
statements of the number of votes cast for all the candidates for nomination to each
public office or for election to each party position, and the number of votes cast for
each such candidate. The candidate receiving the highest number of votes shall be
the nominee of his party for such office or shall be elected to such party position, as
the case may be, and the board, if requested, shall furnish to the elected candidates a
certificate of election.
This Court should issue a preliminary injunction enjoining the New York City
Board of Elections from providing tabulated statements of votes consistent with
Election Law 9-202 until such time as all affidavit ballots cast on April 19, 2016
have been counted, and enjoining the New York State Board of Elections from
certifying the number of votes cast for all the candidates until the instant application

17

for an injunction has been decided.

Dated: New York, New York
April 27, 2016

___________________S/________________________
Mark Warren Moody, Esquire
Pro Se and
On behalf of all those similarly situated

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