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UNITED STATES DISTRICT COURT

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LORI S. MASLOW, in her capacity as Democratic State
Committee Female Member and Assembly District
Leader from the 41st Assembly District, as a member of
the Executive Committee of the Kings County COMPLAINT
Democratic County Committee, and as a Female
Member of the Kings County Democratic County
Committee from the 18th Election District of the 41st
Assembly District; KINGS COUNTY DEMOCRATIC DOCKET NO.
COUNTY COMMITTEE; EXECUTIVE COMMITTEE
OF THE KINGS COUNTY DEMOCRATIC COUNTY
COMMITTEE; BENJAMIN C. STEINBERG, as a Male
Member of the Kings County Democratic County
Committee elected to such position for the 47th Election
District of the 41st Assembly District by the Executive
Committee of the Kings County Democratic County
Committee; MARJORIE COHEN, as a Female Member
of the Kings County Democratic County Committee
elected to such position for the 70th Election District of
the 59th Assembly District by the Executive Committee
of the Kings County Democratic County Committee;
WILLA M. WILLIS JOHNSON, as a Female Member
of the Kings County Democratic County Committee
elected to such position for the 42nd Election District of
the 59th Assembly District by the Executive Committee
of the Kings County Democratic County Committee;

Plaintiffs,

-against-

ANDREW M. CUOMO, in his capacity as Governor of

Defendants.
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Plaintiffs, by their attorneys, Abrams, Fensterman, Fensterman, Eisman, Formato,

Ferrara, Wolf, & Carone, LLP, allege as follows:

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NATURE OF THE ACTION

1. Plaintiffs bring this action under the First and Fourteenth Amendments to the

United States Constitution because New York State law, as applied by a State Court Justice

mandating Plaintiff Kings County Democratic County Committee to hold an organizational

meeting virtually by December 17, 2020, violates the rights of the Plaintiffs to determine the

boundaries of their own association, the right to choose the structure which best allows them to

pursue their political goals, restricts and limits their discretion in how to organize themselves,

conduct their affairs, and select their officers, and infringes upon the party’s right to free

association.

2. Plaintiffs are entitled to declaratory and injunctive relief to prevent the violation

of rights and guarantees afforded them under the United States Constitution.

JURISDICTION AND VENUE

3. This Court has jurisdiction pursuant to 28 U.S.C. § 1343 over claims arising under

the First Fourteenth Amendments to the United States Constitution which seek to redress the

deprivation, under color of state law, or rights, privileges and immunities secured by said

Amendments. This Court also has jurisdiction pursuant 28 U.S.C. § 1331, as this action arises

under the laws of the United States.

4. Pursuant to 28 U.S.C. §§ 2201 and 2202, this Court has the authority to grant

declaratory and injunctive relief.

5. Pursuant to 52 U.S.C. § 10310(e), this Court has authority to award costs and

attorneys’ fees.

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6. All of the Plaintiffs reside or are located in the district of this Court and this Court

has personal jurisdiction over Defendants, all of whom reside and conduct their official business

in the State of New York.

7. Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. §

1391(b) because a substantial part of the events giving rise to the claims brought by Plaintiffs

have occurred in this district and because the Plaintiffs reside or are located in the district.

PARTIES

8. Plaintiff Lori S. Maslow is the Democratic State Committee Female Member and

Assembly District Leader from the 41st Assembly District, is a member of the Executive

Committee of the Kings County Democratic County Committee, and is a Female Member of the

Kings County Democratic County Committee from the 18th Election District of the 41st

Assembly District. As the Democratic State Committee Female Member and Assembly District

Leader from the 41st Assembly District, Lori S. Maslow plays a substantial role in directing the

internal workings of the Democratic Party in her Assembly District, such as (1) recruiting

members to serve on the County Committee from within her Assembly District, (2) advocating

Democratic Party positions to elected public officials, (3) endorsing candidates for President,

United States Senator, City Council, State Assembly, State Senate, Representative in Congress,

Civil Court Judge, and State Supreme Court Justice, (4) recruiting candidates for local public

offices, (5) helping raise contributions for Democratic Party candidates, (6) urging young people

to register to vote to enroll as Democrats, (7) engaging in activities of a charitable nature and

persuading others to do so on behalf of the Democratic Party, such as the Toys for Tots initiative

and assisting at the distribution of food to those who have lost jobs due to the Covid-19

pandemic, (8) helping maintain a Democratic Party clubhouse in her Assembly District, (9)

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working together with her male counterpart member of the State Committee and Assembly

District Leader, (10) recommending the appointment of Democratic Party representatives as poll

workers at elections, (11) representing Democrats in her Assembly District at State Committee

meetings, and (12) working together with the Kings County Democratic Party leadership, the

other State Committee members and Assembly District Leaders, and County Committee

members to perform all of the foregoing.

9. Plaintiff Kings County Democratic County Committee (“KCDCC”) is a political

organization that represents Democrats from every corner of the borough of Kings County in the

City of New York, State of New York. The affairs of the Kings County Democratic Party are

governed by the Rules for the Government of the Kings County Democratic County Committee.

Until the events described below took place, the said Rules provided that there shall be either one

male and one female, or two males and two females, as members of the KCDCC for each

Election District in Kings County.

10. Plaintiff Executive Committee of the Kings County Democratic County

Committee (“Executive Committee”) is a political committee which determines the affairs of the

Kings County Democratic Party when the KCDCC is not in session. It is comprised of the two

State Committee members (also known as Assembly District Leaders) elected from within each

Assembly District in Kings County. Its creation is provided for in the Rules for the Government

of the Kings County Democratic County Committee. The Executive Committee is a committee

authorized to amend the Rules for the Government of the Kings County Democratic County

Committee pursuant to Article X of said Rules.

11. Plaintiff Benjamin C. Steinberg is a Male Member of the Kings County

Democratic County Committee elected to such position for the 47th Election District of the 41st

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Assembly District by the Executive Committee of the Kings County Democratic County

Committee at the Executive Committee meeting on December 2, 2020.

12. Plaintiff Marjorie Cohen is a Female Member of the Kings County Democratic

County Committee elected to such position for the 70th Election District of the 59th Assembly

District by the Executive Committee of the Kings County Democratic County Committee at the

Executive Committee meeting on December 2, 2020.

13. Plaintiff Willa M. Willis Johnson is a Female Member of the Kings County

Democratic County Committee elected to such position for the 42nd Election District of the 59th

Assembly District by the Executive Committee of the Kings County Democratic County

Committee at the Executive Committee meeting on December 2, 2020.

14. Defendant Andrew M. Cuomo is the duly elected Governor of the State of New

York -- the Chief Executive of the State of New York charged with enforcement of the Laws of

the state of New York and the Constitution of the State of New York, as well as the enforcement

of rights and privileges guaranteed by the United States Constitution and guaranteed to the States

and its citizens through the Fourteenth Amendment of the United States Constitution.

15. Defendant Leticia James is the Attorney General of the State of New York -- the

chief legal officer of the State of New York charged with defending actions and proceedings

brought against the State of New York and the Chief Executive of the State of New York.

[Intentionally Left Blank]

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BACKGROUND

KCDCC’s Rule Amendment

16. On March 12, 2020, Governor Andrew M. Cuomo issued the first of what would

become many and numerous COVID-19 related Executive Orders which limit the number of

individuals who could gather in one location.1

17. As a result of the Covid-19 pandemic and the Governor’s Executive Orders

(“EO’s”) which prevented the gathering of large bodies, KCDCC, through its Executive

Committee acting on September 28, 2020, adopted an amendment to the Rules for the

Government of the Kings County Democratic County Committee (“the Rules”).

18. Article III of the Rules was amended to add a new section (§7) to deal with

“Emergency Provisions during COVID-19 Pandemic.” See Exhibit 1 (KCDCC Rules with

Adopted Rule Amendments). The new section (“the Amendment”) provides that the Chair of the

Executive Committee “shall not convene any meeting of the County Committee, in which voting

may occur, via teleconference of video teleconference to prevent the disenfranchisement of

members of limited economic means and/or without access to the internet or smart phone

technology.” Id. at §7(D). The Amendment also contains two sunset provisions. One provision

directs a meeting “be held in a public physical setting within 45 days after the Governor or the

Mayor of the City of New York authorize public gatherings in excess of 500 persons” (id. at

§7(E)) and the other provision provides for the expiration of the Amendment upon “the earlier of

the public declaration that the COVID-19 pandemic has ended or the legal authorization for

1
Executive Order 202.1, issued on March 12, 2020 limited gathering or events that anticipated to be few than five
hundred people to 50% occupancy and Executive Order 202.3, issued on March 16, 2020, which modified EO 202.1
to provide that “any large gathering or event . . . shall be cancelled or postponed if more than fifty persons are
expected in attendance, at any location in New York State until further notice.”

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public meetings in excess of two thousand (2000) attendees to be convened within the city of

New York” (id. at §7(I)).

19. In addition to the sunset provisions, the Amendment also provides for “the

members of the County Committee elected or deemed elected at the primary election held on

June 23, 2020 . . . be deemed seated and authorized to act as of the date of such organization or

at midnight, October 7, 2020, whichever first occurs.” Id. at §7(H).

20. In Kings County, the County Committee roughly consists of 2,200 individuals2

and its meetings have been regularly attended for decades by roughly 1,000 individuals.

State Court Compels KCDCC to Conduct a Virtual County Committee Meeting

21. On October 27, 2020, pursuant to an action commenced by individuals elected as

members of KCDCC, the New York State Supreme Court for the County of Kings (“State trial

court”) issued an Order annulling § 7 of KCDCC’s Rules Amendment “to the extent that it

conflicts with Election Law § 2-112” and ordered KCDCC to conduct a virtual organizational

meeting of the County Committee of the KCDCC within forty-five (45) days of service of a copy

of the October 27 Order with notice of entry. See Exhibit 2, State trial court Order.3

22. On November 3, 2020, KCDCC filed an application for a stay of the State trial

court’s Order with the New York State Supreme Court Appellate Division for the Second

Department (“the State Appellate court”) and on November 25, 2020, the State Appellate court

denied KCDCC’s motion for a stay. See Exhibit 3 (State Appellate court Order).

23. KCDCC argued that by mandating KCDCC to hold an organizational meeting, the

lower court’s Order violates EO 202.68 (which both continues and further circumscribes prior

COVID-19 Executive Orders that placed prohibitions on “non-essential gatherings”) as KCDCC

2
See https://www.kingscountypolitics.com/bichotte-consolidates-grip-on-bklyn-dem-party/
3
Although the State trial court caused the decision and Order to be filed twice (NYSCEF Doc. No. 29 and Doc. No.
30), and thus KCDCC filed two Notices of Entry, there is only one decision and Order.

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cannot hold a meeting, other than an in-person meeting, without disenfranchising a large

proportion of its members who either do not have access to electronic equipment to access a

virtual platform and/or do not have the knowledge and/or capability to use a virtual platform.

Plaintiff Lori S. Maslow is an individual who would not be able to fully participate virtually due

to her physical disabilities. See Affirmation of Lori S. Maslow attached and incorporated herein.

24. The State trial court’s October 27 Order mandates the occurrence of an option

provided by the Chief Executive in EO 202.47 (“any party caucus, party meeting or party

convention held pursuant to the Election Law in the year two thousand twenty may be held by

telephonic or video conferencing means . . . . ”). See Exhibit 4 (EO 202.47) (emphasis added).

25. The State trial court’s October 27 Order declared that “the amendment to Article

III of the Rules, § 7 is hereby annulled to the extent that it conflicts with Election Law § 2-112 . .

. .” See Exhibit 2. Pursuant to the State trial court’s Order, KCDCC must hold a virtual

organizational meeting by December 17, 2020.

26. KCDCC specifically informed the State court that it was not presenting nor

raising any issue before the State court related to KCDCC’s “structure[ing]” of its “internal party

process” (New York State Board of Election v. Lopez Torres, 552 U.S. 196, 203 [2008]) or its

“conduct of its internal party affairs” (Seergy v. Kings Cty. Republican Cty. Comm., 459 F.2d

308, 314 [2d Cir. 1972]); and, it was not consenting to the State court’s jurisdiction to determine

matters not before it (England v. Louisiana State Board of Medical Examiners, 375 U.S. 411

[1964]).

Filling Vacancies and Membership Composition of KCDCC

27. New York Election Law § 2-118 provides that vacancies in the membership of a

party committee may be filled only by the remaining members of that committee.

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28. New York State Election Law § 2-104 contains provisions directing political

parties how to structure their county committees. Said section provides that a county committee

shall be constituted by the election of at least two members in each Election District. There can

be not more than two additional members per Election District proportional to the vote for

governor. Also, as set forth in subdivision 2 of that section, “If, pursuant to section one of article

thirteen of the constitution, such committee or a state convention of the party shall provide by

rule for equal representation of the sexes on such committee, the rules of such committee relative

to additional members, either from election districts or at large, shall be formulated and applied

in such manner that the whole membership shall consist of an even number, equally divided

between the sexes. When any such rule provides for equal representation of the sexes, the

designating petitions and primary ballots shall list candidates for such party positions separately

by sexes.” New York State Election Law § 2-104 (2).

29. The Rules of the Kings County Democratic County Committee had previously

provided for equal membership of males and females, in furtherance of the aforesaid Election

Law § 2-104, until said rules were changed as hereinafter described because nonbinary

Democrats do not associate as traditionally identified genders of male or female.

30. The affairs of the Kings County Democratic Party are governed by the Rules for

the Government of the Kings County Democratic County Committee. They can be amended by

either the County Committee or the Executive Committee. See Exhibit 1 at Article X.

31. In early August of this year, 2020, Rodneyse Bichotte, as Chair of the Executive

Committee of the KCDCC appointed the Kings County Democratic Task Force (“Task Force”)

on Gender Discrimination and Representation, to review and recommend a rule change because

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nonbinary Democrats do not associate as male or female members of the KCDCC. See

Declaration of Aaron Maslow attached and incorporated herein.

32. At the Task Force meeting of November 23, 2020, the Task Force adopted a

resolution recommending to the Executive Committee of the KCDCC that it adopt a Rules

amendment. Id.

33. The proposed rule amendment sought to create at large positions for Democrats,

to be filled as vacancies by people without regard to how they identify on the gender spectrum

and who need not have to declare a male or female sex designation. Id. It also provided for the

Executive Committee’s filling of all vacancies in the membership of the Kings County

Democratic County Committee existing prior to the time of the organizational meeting of the

County Committee. Id. The rule amendment invoked the First and Fourteenth Amendment rights

of the Kings County Democratic County Committee. Id. The rule amendment was sought as

temporary, to last until 2022. Id. at ¶ 38.

34. The proposed rule amendment read as follows:

(1) Article II [The County Committee: Membership] of the Rules for the
Government of the Kings County Democratic County Committee is amended by
adding the following §5 to read as follows:

§5. (a) Notwithstanding anything herein to the contrary in these Rules or in the
Election Law, in addition to members representing Election Districts, there shall
be four members at large of the County Committee for each Assembly District.
Said members at large shall be enrolled Democrats residing within the Assembly
District for which they are elected, without regard to how they identify on the
gender spectrum and who need not have to declare a male or female sex
designation. Such membership positions shall be treated as vacancies as of the
date that this section is enacted.

(b) Each member at large of the County Committee shall be entitled to cast one
vote at any meeting of the County Committee, at any meeting of the Assembly
District Committee of the Assembly District which such member at large
represents, and at any meeting of County Committee members provided for in
Article VIII, Section 5, Subdivision (b) of these Rules when the Assembly District

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which said member at large represents contains at least one Election District
within the respective political subdivision.

(c) This section shall expire, and the terms of office of the members at large
provided for herein shall terminate, at the commencement of the organizational
meeting of the County Committee members elected in the year 2022.

(2) Article II [The County Committee: Membership] of the Rules for the
Government of the Kings County Democratic County Committee is amended by
adding the following §3a to read as follows:

§3a. (a) Notwithstanding anything herein to the contrary in these Rules or in the
Election Law, vacancies in the membership of the County Committee existing
prior to the time of the organizational meeting of the County Committee shall be
filled for the unexpired term by the Executive Committee. Nominations to fill
such vacancies shall be made in writing by either of the following methods: (i)
upon a majority vote of the Assembly District Committee in and for the Assembly
District wherein such vacancy occurs, upon certification by the Chairperson and
Secretary of the said Assembly District Committee, (ii) upon the written
nomination of five members of the County Committee elected from Election
Districts within the Assembly District wherein such vacancy occurs, or (iii) upon
the written nomination of a State Committee member elected from the Assembly
District wherein such vacancy occurs. Said written nominations shall be
submitted to a person at a location and address, by a date and time certain,
designated by the Chair of the Executive Committee.

(b) This section shall expire at the commencement of the organizational meeting
of the County Committee members elected in the year 2022.

(3) In enacting the within provisions, the Kings County Democratic County
Committee relies on its rights guaranteed by the First and Fourteenth
Amendments to the United States Constitution, including but not limited to those
explicated in decisions of the United States Supreme Court holding that a political
party possesses a right to limit its membership as it wishes, New York State Bd. of
Elections v. Lopez Torres, 552 U.S. 196, 202 (2008); a right to structure its
internal party processes, id. at 203; the freedom to identify the people who
constitute its associating members, Democratic Party of United States v.
Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981); the freedom to join
together in furtherance of common political beliefs and the right to broaden the
base of public participation in and support for its activities, Tashjian v.
Republican Party of Conn., 479 U.S. 208, 214 (1986); and the right to determine
the boundaries of its own association and the right to choose the structure which
best allows it to pursue its political goals, id. at 224. Restrictions limiting a
political party’s discretion in how to organize itself, conduct it affairs, and select
its officers infringes upon the party’s right to free association. Eu v. San
Francisco County Democratic Central Committee, 489 U.S. 214 (1989).

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35. The provision regarding the filling of all vacancies by the Executive Committee

was designed to elicit maximum support. See Declaration of Aaron Maslow at ¶ 39. There might

be members who would not support the filling of vacancies by the Executive Committee for only

one class (at large) of County Committee members. Id. To ensure that nonbinary Democrats

could participate at the County Committee organizational meeting, the provision for filling of all

vacancies was included. Id. Due to Governor Cuomo’s Executive Order stopping petitioning in

March due to the onset of Covid-19, many people who were petitioning for County Committee

had been forced to stop and they were unable to submit valid petitions with the minimum number

of signatures. Id. The Task Force believed that its members and Executive Committee members

would be sympathetic to having many Democrats elected to fill vacancies prior to the County

Committee organizational meeting, and thus they could actually participate in it instead of

waiting for another meeting to begin participating. Id. Maximum participation at the Executive

Committee was the goal. Id. The positions -- except for the at large ones -- had existed prior to

the Primary Election and now more people could fill them. Id.

36. The process for nominating Democrats to fill vacancies would be in the same

manner as already in the Party’s Rules -- by an Assembly District Committee or five members

already elected signing a nominating form -- but to minimize exposure to others and avoid five

members getting together and touching the same piece of paper due to the virus, a provision was

added to the proposal that nominations could be signed by just a State Committee member for

the respective Assembly District. Id. at ¶ 40. This was part of the proposed rule amendment

brought before the Task Force. Id.

37. As stated by the Task Force Chair, this process would entail filling a vacancy as

any other vacancy. Id. at ¶ 41. The problem is the Election District positions are designated right

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now for males and females. Id. Vacant Election District positions are thus also designated as

male and female. Id. The change was deemed necessary so that everybody could participate, for

the next two years. Id.

38. Following the adoption by the Task Force on November 23, 2020 of the

resolution for the Executive Committee to amend the party’s rules, a meeting notice was issued

by County Chair Bichotte on November 24, 2020 for the Executive Committee of the KCDCC to

meet on November 29, 2020. See Exhibit B to Declaration of Aaron Maslow attached and

incorporated herein.

39. The Executive Committee of the KCDCC met on November 29, 2020. It adopted

the foregoing rule amendment, including the Whereas clauses explaining the reasons for the

amendment it was adopting. See Declaration of Aaron Maslow at ¶ 44.

40. On November 30, 2020, County Chair Bichotte issued a meeting notice to the

Executive Committee of the County Committee for it to meet on December 2, 2020, for the

purpose of filling vacancies in the membership of the Kings County Democratic County

Committee existing prior to the time of the County Committee’s organizational meeting. See

Exhibit C to Declaration of Aaron Maslow attached and incorporated herein.

41. At the December 2, 2020 meeting of the Executive Committee of the KCDCC,

said Executive Committee elected approximately 2400 Democrats to fill vacancies in the County

Committee membership, and this included noncisgender individuals to fill the newly created at

large County Committee positions as well as the other individuals who were elected to fill

Election District positions so that all of the elected individuals could participate equally in the

party’s business. See Declaration of Aaron Maslow at ¶ 46.

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42. On December 3, 2020, a certificate of election of Members of the Kings County

Democratic County Committee to fill vacancies was filed at 2:19 p.m., at the office of the Board

of Elections in the City of New York, at 32 Broadway, 7th floor, in Manhattan, New York, NY.

See Exhibit D to Declaration of Aaron Maslow attached and incorporated herein.

43. The Kings County Democratic Party made a determination -- first through the

aforementioned Task Force and subsequently by the Executive Committee -- that nonbinary

Democrats should be able to serve in the current term of the County Committee, that vacant

positions should be created for them, and that all vacancies in the County Committee should be

filled prior to its organizational meeting by the Executive Committee so that there can be

maximum participation at that meeting. See Declaration of Aaron Maslow at ¶ 50. This would

benefit the interests of the Kings County Democratic Party in having more inclusive participation

in party affairs. Id.

44. On December 3, 2020, eleven individuals commenced an action in State Supreme

Court, Kings County (Stein v. Kings County Democratic County Committee, and assigned Index

No. 524201/20), in which they asserted that pursuant to Election Law § 2-118, vacancies in the

County Committee membership must be filled by the remaining members of the County

Committee and not by the Executive Committee.

45. The plaintiffs in Stein v. Kings County Democratic County Committee seek to

enforce New York Election Law § 2-118’s provision that compels a county committee to fill

vacancies in its own membership, and in effect prohibits the party’s Executive Committee from

filling said vacancies, and said plaintiffs seek to nullify the election by the Executive Committee

of KCDCC of the approximate 2400 Democrats including (1) the noncisgender individuals

elected to fill the newly created at large membership positions, (2) Plaintiffs Benjamin C.

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Steinberg, Marjorie Cohen, and Willa M. Willis Johnson, elected for Election Districts, and (3)

all other Democrats who were elected to the County Committee on December 2, 2020.

46. In carrying out its First Amendment right to govern itself, the Executive

Committee elected approximately 2400 Democrats to fill vacancies in the County Committee

membership, and this included noncisgender individuals to fill the newly created at large County

Committee positions as well as the other individuals who were elected to fill Election District

positions so that all of the elected individuals could participate equally in the party’s business.

47. The December 2, 2020 rule amendment serves to eliminate a discriminatory

application of New York State Election Law §2-104 and specifically provides for the inclusion

of noncisgender individuals.

48. The State application, and the application which the Stein plaintiffs seek to

impose, amount to an impermissible State infringement upon Plaintiffs’ First Amendment rights

in violation of the Fourteenth Amendment.

COUNT I
FIRST AND FOURTEENTH AMENDMENT VIOLATION
COMPELLING KCDCC TO CONDUCT A VIRTUAL MEETING

49. The freedom to associate with others for the common advancement of political

beliefs and ideas is a form of orderly group activity that is protected by the First and Fourteenth

Amendments. This right constitutes a basic constitutional freedom that is protected from federal

encroachment under the First Amendment and is protected from State infringement under the

Fourteenth Amendment.

50. The aforesaid State trial court’s Order compelling KCDCC to conduct an

organizational meeting in a virtual manner impermissibly infringes upon KCDCC’s associational

rights.

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51. The State trial court’s Order restricts KCDCC’s political party discretion to

organize itself, conduct its affairs, and select its leaders in violation of KCDCC’s associational

rights, and to determine that holding meetings in person advances the party’s interests much

more than does holding a virtual meeting where many cannot participate due to physical

disabilities as identified in the attached affirmation of Lori Maslow, or due to economic

disadvantages.

52. The State trial court substituted its judgment for that of KCDCC as to the

desirability of a particular internal party structure.

53. No compelling State interest can be shown. The Governor’s Executive Order (EO

202.47) states that a party “may” conduct a meeting by telephonic or video conferencing means.

It does not mandate that a meeting be held, nor does it mandate that a meeting be held by such

means.

54. As the United States Supreme Court stated in Eu v. San Francisco Cty.

Democratic Cent. Comm., 489 U.S. 214 (1989) and as the Second Circuit recognized in Price v.

New York State Bd. Of Elections, 540 F.3d 101 (2d Cir. 2008), “a state does not have a

compelling interest in “sav[ing] a political party from pursuing self-destructive acts because the

state cannot substitute[e] its judgment for that of the party.” (internal quotation marks omitted)

(alteration in the original).

55. Supreme Court jurisprudence dictates that a state may not even direct a political

party as to how it engages with non-party members in terms of inviting outsiders to vote in its

own primary election. All the more so, it cannot assert a compelling interest to justify directives

that control how a party organizes itself internally. See Tashjian v. Republican Party of

Connecticut, 479 U.S. 208 (1986).

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56. Unless enjoined by order of this Court, Plaintiffs will be required to comply with

the aforesaid State trial court’s Order in violation of their rights guaranteed by the First and

Fourteenth Amendments to the United States Constitution.

COUNT II
FIRST AND FOURTEENTH AMENDMENT VIOLATION
NO COMPELLING STATE INTEREST FOR INTEREFERENCE IN
KCDCC’S INTERNAL PARTY MATTERS

57. The freedom to associate with others for the common advancement of political

beliefs and ideas is a form of orderly group activity that is protected by the First and Fourteenth

Amendments. This right constitutes a basic constitutional freedom that is protected from federal

encroachment under the First Amendment and is protected from State infringement under the

Fourteenth Amendment.

58. Enforcement by the State of New York of Election Law § 2-104 violates the

Plaintiffs’ First and Fourteenth Amendment rights to determine that non-binary individuals are

entitled to serve as KCDCC members alongside individuals identified as traditional male and

female sexes.

59. Enforcement by the State of New York of Election Law § 2-118 violates the

Plaintiffs’ First and Fourteenth Amendment rights to determine that vacancies in the KCDCC

shall be filled by the Executive Committee of KCDCC.

60. Enforcement by the State of New York of Election Law § 2-104 and § 2-118

violates the rights of the Kings County Democratic Party and Plaintiffs to conduct their internal

party governing structure in a manner which it deems best to advance the political interests of the

party and its candidates.

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61. Enforcement by the State of New York of Election Law § 2-104 and § 2-118

violates the First and Fourteenth Amendment rights of the Kings County Democratic Party and

Plaintiffs to elect nonbinary individuals as at large members of the KCDCC inasmuch as said

statutory provisions make no provision for the election of at large members without regard to

sex, gender, or gender orientation.

62. Enforcement by the State of New York of Election Law § 2-104 and § 2-118

violates the First and Fourteenth Amendment rights of the Kings County Democratic Party and

Plaintiffs to organize the Democratic Party in Kings County, conduct its affairs, and select its

leaders in violation of KCDCC’s associational rights.

63. The State of New York has substituted its judgment for that of Plaintiffs as to the

desirability of a particular internal party structure.

64. No compelling State interest can be shown for the interference by the State of

New York in the internal party matters of how the Kings County Democratic Party wishes to

organize itself, constitute its County Committee, and fill vacancies in the KCDCC membership.

65. As the United States Supreme Court stated in Eu v. San Francisco Cty.

Democratic Cent. Comm., 489 U.S. 214 (1989) and as the Second Circuit recognized in Price v.

New York State Bd. Of Elections, 540 F.3d 1010 (2d Cir. 2008), “a state does not have a

compelling interest in “sav[ing] a political party from pursuing self-destructive acts because the

state cannot substitute[e] its judgment for that of the party.” (internal quotation marks omitted)

(alteration in the original).

66. As the United States Supreme Court stated in Eu v. San Francisco Cty.

Democratic Cent. Comm., 489 U.S. 214, 232-233 (1989), “[A] State cannot substitute its

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judgment for that of the party as to the desirability of a particular internal party structure, any

more than it can tell a party that its proposed communication to party members is unwise.”

67. Unless the enforcement of New York Election Law § 2-104 and § 2-118 as

applied to the Plaintiffs and the Kings County Democratic Party is enjoined by order of this

Court, rights guaranteed by the First and Fourteenth Amendments to the United States

Constitution will be violated.

TEMPORARY RESTRAINING ORDER WARRANTED

68. Pursuant to Federal Rule of Civil Procedure 65(a), notice of a request for a

Temporary Restraining Order (“TRO”) was given to Defendants on December 7, 2020. See

Exhibit 5.

69. The notice set forth that Plaintiffs would be asking for an order enjoining the

defendants during pendency of this action from compelling Plaintiff KCDCC and Plaintiff

Executive Committee of KCDCC to hold an organizational meeting on or before December 17,

2020; and, enjoining the defendants from enforcement of New York Election Law § 2-104 and §

2-118 as applied to the Plaintiffs and the Kings County Democratic Party.

70. If an organizational meeting of the KCDCC is to take place by December 17,

2020 per the State trial court’s Order, the associational rights of the Plaintiffs to have the

Democrats – including the noncisgender individuals elected at the December 2, 2020 Executive

Committee meeting –will be violated.

71. If enforcement of Election Law § 2-104 and § 2-118, as applied by the State and

as the aforesaid Stein plaintiffs are looking to apply the state law, is not stayed, the associational

rights of the Plaintiffs will be violated.

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72. The appellate court in this Circuit has stated that “[w]here speed is needed, the

rules of procedure provide for temporary restraining orders, even without notice, to prevent

irreparable harm.” Garcia v. Yonkers School Dist., 561 F.3d 97 (2d Cir. 2009), quoting Standard

Microsystems Corp. v. Texas Instruments, Inc. 916 F.2d 58, 62 (2d Cir. 1990), citing

Fed.R.Civ.P. 65.

73. The Second Circuit has also held that allegations of violations of First and

Fourteenth Amendment rights to associate with one another as a political party, are commonly

considered irreparable injuries for purposes of a preliminary injunction. Green Party of New

York State v. New York State Bd. of Elections, 267 F.Supp. 2d 342 (E.D.N.Y. 2002), quoting

Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996).

74. The irreparable harm attendant with the State trial court’s Order mandating an

organization meeting to be held along with the enforcement of Election Law § 2-104 and § 2-

118, as applied by the State and as the aforesaid Stein plaintiffs are looking to apply the state

law, warrant the imposition of a Temporary Restraining Order to prevent irreparable harm.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request judgment from the Court:

a. Declaring the State trial court’s Order unconstitutional as applied insofar as it

impermissibly infringes upon KCDCC’s associational rights guaranteed by the First

and Fourteenth Amendments;

b. Ordering injunctive relief enjoining imposition of the State trial court’s Order;

c. Declaring that New York Election Law § 2-104 violates the First and Fourteenth

Amendment rights of Plaintiffs as applied to them;

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d. Declaring that New York Election Law § 2-118 violates the First and Fourteenth

Amendment rights of Plaintiffs as applied to them;

e. Ordering injunctive relief enjoining enforcement of New York Election Law § 2-104

as applied to Plaintiffs;

f. Ordering injunctive relief enjoining enforcement of New York Election Law § 2-118

as applied to Plaintiffs;

g. Retaining jurisdiction to render any and all further orders that this Court may deem

appropriate; and

h. Ordering such other relief that this Court may deem just and reasonable.

Dated: December 7, 2020

___________________________
Amy Marion
Abrams, Fensterman, Fensterman, Eisman,
Formato, Ferrara, Wolf, & Carone, LLP,
3 Dakota Drive, Suite 300
Lake Success, New York 11042
(516) 328-2300

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