16-3822-cv
Evan A. Davis v. New York State Board of Elections, 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 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 3rd day of May, two thousand seventeen.

PRESENT:            AMALYA L. KEARSE,
                    GUIDO CALABRESI,
                    JOSÉ A. CABRANES,

                                        Circuit Judges.


EVAN A. DAVIS,

                              Plaintiff-Appellant,                16-3822-cv

                              v.

NEW YORK STATE BOARD OF ELECTIONS, PETER S. KOSINSKI, in his official capacity as
Commissioner of the New York State Board of Elections, DOUGLAS A. KELLNER, in his official
capacity as Commissioner of the New York State Board of Elections, ANDREW J. SPANO, In his
official capacity as Commissioner of the New York State Board of Elections, GREGORY P.
PETERSON, in his official capacity as Commissioner of the New York State Board of Elections, NEW
YORK CITY BOARD OF ELECTIONS, BIANKA PEREZ, in her official capacity as Commissioner of the
New York City Board of Elections, JOHN FLATEAU, in his official capacity as Commissioner of the
New York City Board of Elections, MICHAEL A. RENDINO, in his official capacity as Commissioner
of the New York City Board of Elections, ALAN SCHULKIN, in his official capacity as Commissioner
of the New York City Board of Elections, LISA GREY, in her official capacity as Commissioner of
the New York City Board of Elections, SIMON SHAMOUN, in his official capacity as Commissioner
of the New York City Board of Elections, MARIA R. GUASTELLA, in her official capacity as
Commissioner of the New York City Board of Elections, MICHAEL MICHEL, in his official capacity
as Commissioner of the New York City Board of Elections, FREDERIC M. UMANE, in his official


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capacity as Commissioner of the New York City Board of Elections, JOSE MIGUEL ARAUJO, in his
official capacity as Commissioner of the New York City Board of Elections,

                        Defendants-Appellees,

CITY JOHN DOE, OFFICERS OF THE NEW YORK CITY BOARD OF ELECTIONS, STATE JOHN DOE,
OFFICERS OF THE NEW YORK STATE BOARD OF ELECTIONS,

                        Defendants.


FOR PLAINTIFFS-APPELLANTS:                                   LAWRENCE B. FRIEDMAN and Joaquin P.
                                                             Terceño, Cleary Gottlieb Steen &
                                                             Hamilton LLP, New York, NY.

FOR MUNICIPAL DEFENDANTS-APPELLEES: MELANIE T. WEST and Claude S. Platton,
                                    for Zachary W. Carter, Corporation
                                    Counsel of the City of New York, New
                                    York, NY.

FOR STATE DEFENDANTS-APPELLEES:                              PHILIP V. TISNE, Assistant Solicitor
                                                             General, Barbara D. Underwood, Solicitor
                                                             General, and Steven C. Wu, Deputy
                                                             Solicitor General, on the brief, for Eric T.
                                                             Schneiderman, Attorney General of the
                                                             State of New York, New York, NY.

       Appeal from an order of the United States District Court for the Southern District of New
York (John G. Koeltl, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the November 7, 2016 order is AFFIRMED.

         Plaintiff-appellant Evan A. Davis brought an action against the New York City and New
York State Boards of Elections (collectively, the “Boards”) and the Boards’ commissioners, alleging
that Sections 6-138, 6-140, 6-146, and 7-104 of the New York Election Law (the “Candidate Laws”)
violate the First and Fourteenth Amendments to the United States Constitution. The District Court
dismissed his claims for lack of subject-matter jurisdiction, holding that Davis lacked standing to
challenge the Candidate Laws. On appeal, Davis argues that the District Court erred in concluding
that he is not suffering a current “injury in fact,” that his claims were not prudentially ripe, and that
he lacked third-party standing. We assume the parties’ familiarity with the factual and procedural
history of the case, though we summarize the critical portions of that history below.




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                                          I.      Background

        Article 19 of the New York State Constitution requires that, once every twenty years, the
citizens of New York State vote to determine whether to hold a State Constitutional Convention.
The next vote for a Constitutional Convention is set for November 2017. If a majority of New
Yorkers vote in favor of holding a Constitutional Convention, then an election to select Delegates
for the Convention will be held in November 2018. The Constitutional Convention itself, if one
were to take place, would be held in April 2019.

        Davis is currently campaigning to urge a majority of New Yorkers to vote in favor of calling
a Constitutional Convention. If the vote for a Convention succeeds, Davis intends to run for
election as a non-partisan Delegate. To secure a position on the (presently hypothetical) ballot listing
candidates for Delegate, Davis would have to secure 3,000 voter signatures. Davis wants to
campaign for the Convention and, if the voters elect to hold a Convention, to campaign for the
position of Delegate, on a reform platform premised on the idea that voters should elect Delegates
that are unaffiliated with any political party or group. He believes that this specific message is critical
to his goals because, according to Davis, if voters think that partisan interests will dominate a
Constitutional Convention, then they will vote against calling one.

        Davis alleges that the Candidate Laws prevent him from running as an independent
candidate for Delegate and from campaigning for a Convention on the platform of his choice. The
Candidate Laws, in sum and substance, require that all individuals seeking to be elected as Delegates
to the New York State Constitutional Convention, who are not nominated by a party whose
candidate for Governor of the State of New York received at least 50,000 votes, must include a
nominating body name and emblem on their nominating petitions, which will appear alongside a
candidate’s name on the ballot. See N.Y. Elec. Law §§ 6-140, 6-146, and 7-104. If a candidate does
not include a nominating body name and emblem on his nominating petition, the “officer or board
in whose office the petition is filed shall select an emblem or name or both to distinguish the
candidates nominated thereby.” Id. at § 6-138(3)(f). There is no requirement that the nominating
body and emblem selected by the potential candidate reflect an actual, existing, or formal
organization. For example, the name of the nominating body could be “Voters for Davis,”
“Unaffiliated,” or “No Party.”1

       According to the declaration Davis submitted to the District Court, his campaign for both
the Constitutional Convention and his own candidacy for Convention Delegate are substantially
under way. He has already “registered the [finance] committee Friends of Evan Davis with the


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      The physical constraints of the ballot prevent more than fifteen letters of a party’s or a
nominating body’s name from appearing on a printed ballot. Names that are longer than fifteen
letters may “be printed on the ballot in an abbreviated form.” N.Y. Elec. Law § 7-104(2).

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[Boards,] . . . established a website, www.friendsofevandavis.org . . . [and] started soliciting
contributions.” A 41–42. He has also already “organized, met, and corresponded with an informal
discussion group of persons . . . who favor calling a Constitutional Convention.” Id. at 42.

                 II.     Davis Lacks Standing to Challenge the Candidate Laws

       In dismissing Davis’s challenge to the constitutionality of the Candidate Laws for lack of
standing, the District Court concluded that neither of his two alleged injuries satisfied Article III’s
requirement that a plaintiff suffer an “injury in fact.” See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). We agree.

        We review de novo the District Court’s dismissal of Davis’s complaint for lack of standing. See
Thompson v. County of Franklin, 15 F.3d 245, 248 (2d Cir. 1994). To satisfy the requirements of Article
III standing, a plaintiff must establish three elements:

        (1) the plaintiff must have suffered an injury in fact, i.e., an invasion of a legally
        protected interest which is (a) concrete and particularized and (b) actual or imminent,
        not conjectural or hypothetical; (2) there must be a causal connection between the
        injury and the conduct complained of; and (3) it must be likely, as opposed to merely
        speculative, that the injury will be redressed by a favorable decision.

Nat'l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 688 (2d Cir. 2013) (internal quotation marks
omitted). Constitutional ripeness, which is an overlapping doctrine, is best thought of as “a specific
application of the actual injury aspect of Article III standing.” Id. Thus, “to say a plaintiff’s claim is
constitutionally unripe is to say that plaintiff’s claimed injury, if any, is not actual or imminent, but
instead conjectural or hypothetical.” Id. To determine “whether a litigant has standing to challenge
governmental action as a violation of the First Amendment” in particular, the litigant must
demonstrate “a claim of specific present objective harm or a threat of specific future harm.” Meese v.
Keene, 481 U.S. 465, 472 (1987) (internal quotation marks omitted).

         As an initial matter, Davis contends that, when the District Court was evaluating whether he
had established the existence of subject-matter jurisdiction, the District Court held him to a higher
standard of proof than was appropriate at the motion to dismiss stage. The District Court concluded
that Davis “b[ore] the burden of proving the Court’s jurisdiction by a preponderance of the evidence.”
Davis v. Kosinsky, No. 16-CV-1750 (JGK), 2016 WL 6581300, at *1 (S.D.N.Y. Nov. 4, 2016) (citing
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)) (emphasis added). Davis argues that the
correct legal standard, which the District Court did not apply, is that a plaintiff “must allege facts
that affirmatively and plausibly suggest that it has standing to sue.” Amidax Trading Grp. v. S.W.I.F.T.
SCRL, 671 F.3d 140, 145 (2d Cir. 2011) (emphasis added). We need not address this dispute because
we conclude that Davis fails to satisfy the requirements of Article III standing under either a
preponderance or a plausibility standard.

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         The District Court construed Davis’s complaint as alleging two possible injuries. The first
alleged injury is that the Candidate Laws prevent Davis from appearing on the ballot for Convention
Delegate as a non-partisan candidate. The District Court concluded that this alleged injury was
“conjectural or hypothetical” and not “actual or imminent” because the claim was based entirely on
contingent future events. Davis, 2016 WL 6581300, at *5. For example, the District Court correctly
observed that for Davis to reach the point of even appearing on the ballot a majority of New
Yorkers would have to vote in favor of calling the Convention and 3,000 voters would have to sign
a petition nominating Davis. While Davis provides reasons why, in his opinion, these events are
likely to happen, they remain entirely hypothetical. Consequently, any injury that would result from
the forced association between his name and a nominating body on any future ballot is speculative.
See Thomas v. City of N.Y., 143 F.3d 31, 34 (2d Cir. 1998) (“[W]hen resolution of an issue turns on
whether ‘there are nebulous future events so contingent in nature that there is no certainty they will
ever occur,’ the case is not ripe for adjudication.” (quoting In re Drexel Burnham Lambert Group Inc.,
995 F.2d 1138, 1146 (2d Cir. 1993))). For that reason, we agree with the District Court that this
alleged injury does not provide Davis with standing to challenge the Candidate Laws.

         Davis’s second alleged injury is that the Candidate Laws hamper his ability to campaign for a
Constitutional Convention. The District Court concluded that this alleged injury was not an “injury-
in-fact” because Davis was already engaging in the political speech he claimed was being
unconstitutionally burdened, i.e., campaigning for the Convention. Davis, 2016 WL 6581300, at *4.
On appeal, Davis argues that the District Court misconstrued his injury: while the Candidate Laws
did not prohibit him from campaigning for the Convention, they prevented him from truthfully
advocating for a Convention by assuring voters that they could elect delegates who were “non-
partisan and independent of any political party or group.” A 42. The alleged injury, according to
Davis, was not that the Candidate Laws prevented him from telling voters they could elect
independent Convention Delegates, but that, because the Candidate Laws required each Delegate to
select a nominating body name and emblem, he risked damaging his reputation with voters if he told
them (in his view “lied” to them) that they could elect non-partisan Delegates.

         Allegations that a particular law caused a “subjective chill” in a plaintiff’s speech are not “an
adequate substitution for a claim of specific present objective harm or a threat of specific future
harm,” which is necessary for establishing standing in a First Amendment action. Laird v. Tatum, 408
U.S. 1, 13–14 (1972). However, as the Supreme Court observed in Meese v. Keene, if a law puts a
plaintiff “to the Hobson’s choice” of not speaking in a particular way or “suffering an injury to his
reputation” by exercising his right to speak in that way, that plaintiff has standing to challenge the
constitutionality of the law in question. 481 U.S. at 475. The underlying theory is that reputational
damage to an individual, particularly a political figure, is a cognizable injury for purposes of Article
III standing.




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        Contrary to Davis’s arguments on appeal, the Meese theory of reputational harm is not
applicable in the circumstances presented. Nothing about the Candidate Laws require any future
candidate for Delegate to be affiliated with any political party or group. For that reason, Davis
would not mislead voters if he tells them that they can elect non-partisan Convention Delegates and,
thus, Davis is not subject to a threat of reputational harm if he campaigns for the Convention on his
desired platform. If Davis cannot successfully explain to voters the differences between the required
“nominating body” and existing partisan political groups, the fault lies with Davis and not the
Candidate Laws.

         While the law obliges prospective candidates for Delegate to list the name and emblem of a
nominating body on their nominating petition it does not require that that body be a political
organization. In fact, the “nominating body” need not be a “body” at all; it can be an entirely
fictional construction invented for the sole purpose of meeting the requirements of the Candidate
Laws. See N.Y. Elec. Law § 6-138(3)(f) (explaining that the purpose of having a nominating body
name and emblem listed on a ballot is “to distinguish the candidates nominated thereby”).
Moreover, the mere fact that a prospective candidate provides a name purporting to represent the
3,000 voters who signed his or her nominating petition does not transform that collection of voters
into a cohesive political body in the manner alleged by Davis. To that end, Davis could select a
name for his nominating body, such as “Unaffiliated,” “No Party,” or “Non-Partisan,” which signals
his lack of affiliation with any political group. He might even choose the name of his already existing
finance committee, “Friends of E. Davis,” which, despite identifying a group of individuals
supportive of Davis’s candidacy for Delegate, paradoxically does not cause Davis the same
reputational harm allegedly caused by the Candidate Laws.

        In sum, we agree with the District Court that Davis has failed to allege any “injury in fact”
and, therefore, has not established that he has standing, at this moment, to challenge the
constitutionality of the Candidate Laws. See Walsh, 714 F.3d at 688. In addition, because Davis
argues that he has third-party standing on the basis of the same alleged injuries, we conclude that he
lacks third-party standing as well. Finally, we need not address the District Court’s alternative
grounds for dismissing Davis’s complaint—a lack of prudential ripeness—because we have already
concluded that the District Court lacks subject-matter jurisdiction.

                                          CONCLUSION

       We have considered all of the arguments raised by Davis and find them to be without merit.
For the foregoing reasons, the November 7, 2016 order is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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