Common Cause/New York v. SBOE (U.S. District Court, NY Southern District 1:17-cv-06770AJN).
Plaintiff, Common Cause of New York, alleges that New York’s Procedure of Not including “Inactive” Voters in Poll Books constitutes an Unlawful Removal in Violation of Section 8 of the National Voter Registration Act (“NVRA”).
Specifically, the practice of Not Printing the Names of “Inactive” Voters in Poll Books, in combination with Alleged Deficiencies in the Voting Process, constitutes and Unlawful “de facto” Removal of the “Inactive” Voter from the Official Voter Registry in Violation of Section 8 of the NVRA.
The State Board of Elections has filed a Motion to Dismiss for Failure to State a Cause of Action and for Lack of Standing.
The Court finally turns to whether Plaintiffs allegations are sufficient to state a claim for relief under Section 8 of the NVRA. Defendants argue that the allegations are too conclusory to support an as-applied theory, particularly because of the "unspecified numbers" in which Plaintiff alleges it received hotline calls and assisted voters who did not appear on the rolls at their polling places, and particularly when Plaintiff has not identified a single disenfranchised voter as a plaintiff or in the pleadings.
The Court disagrees. These allegations are not detailed, but they are not, as a matter of law, insufficient to state a claim. Rather than legal conclusions or conclusory statements, they are summaries of plaintiffs experience as an organization fielding questions and providing assistance to its members. Failure to identify specific instances of a claimed problem renders the claim less plausible, but is not necessarily fatal to the claim. See, e.g., Irrera v. Humphreys, 859F .3d 196, 199 (2d Cir. 2017) (finding plaintiff stated claim of retaliation based on alleged negative job references notwithstanding plaintiffs failure to identify specific reference).
In this case, Plaintiffs charges about affidavit balloting deficiencies are supported both by its own allegations and the New York State Attorney General's Office allegations as incorporated by reference into the complaint.
The Court finds that these two sets of allegations are sufficient, for now, to allege that New York State did not implement its affidavit ballot procedures in compliance with the NVRA. Any remaining infirmities are best tested through discovery.
Finally, Defendants cite no law suggesting that Plaintiffs status as an organizational plaintiff, or its failure to identify the specific individuals burdened by New York election law, is fatal to its as-applied claims at this phase. Nor do Defendants make any standing-related concerning as to whether an organizational plaintiff may bring an as-applied challenge.
Accordingly, the Court declines to dismiss Plaintiff's claim that New York election law, as applied, violates the NVRA.
Conclusion: For the foregoing reasons, Defendants' motion to dismiss is GRANTED in part and DENIED in part.
An initial pretrial conference will be scheduled in a separate order.
NYC Wins When Everyone Can Vote! Michael H. Drucker
