In the Case of Harley v. Kosinski, Matthew Harley, and 9 other Individuals, Sued the Election Officials of Seven States: Georgia; Kentucky; New York; Ohio; Pennsylvania; Texas; and Wisconsin. The Plaintiffs, U.S. Citizens living Abroad, said that Voting-by-Mail, from Abroad, has become so Slow and Unreliable that these States should be Forced to let them Vote-by-Internet.
The Lawsuit was filed, September 30th, 2020, Requesting a Preliminary Injunction requiring Online Ballot Return. The State Defendants responded in Writing by, the Court’s Deadline of, October 9th. On October 13th, Federal District Judge, Brian Cogan, Denied the Plaintiffs’ Motion for a Preliminary Injunction.
Each of the Seven States filed a Reply Brief arguing, as usual for Preliminary Injunctions, that the Plaintiffs Lack Standing, they’re Suing the Wrong Parties, they have Not Established a Clear Likelihood of Success on the Merits, and they have Not Demonstrated Irreparable Harm.
Lack of New York Standing: The New-York-Resident Plaintiff “cannot establish an injury in fact that is traceable to any challenged conduct of the New York State Defendants”. Mr. Harley is “concerned” that his Completed Ballot will Not be Received on Time. It wasMmailed to him on September 18th, but he does Not say when he Received it or when he Mailed it back. His “concern” is not an “actual” or “imminent” Injury.
Sued the Wrong Parties: Election Officials are just following State Law, which does Not provide them the Discretion to Permit Internet Ballot Return. Go Sue the Post Office.
No Likelihood of Success on the Merits: It Serves a Compelling State Interest to Avoid Internet Voting. The Secret Ballot is a Compelling State Interest, to Protect Voters from Intimidation and Vote-Buying Fraud. Internet Voting cannot Guarantee Protection the Secrecy of the Ballot.
Judge Cogan explained his Ruling: Second Circuit Case Law imposes a very High Hurdle for a Preliminary Injunction that Imposes a Mandate on State Government. There must be a Strong showing of Irreparable Harm and a Clear showing of likely Success on the Merits. Plaintiffs could Not show Jurisdiction over the Six States other than New York. That Mail might Pass through the JFK International Processing Center was Not a Sufficient Basis for Jurisdiction. Plaintiffs could Not Show Standing because None showed an Injury in fact, only a Speculative Chain of Possibility.
Judge Cogan referred to the Purcell Principle, that Courts must be Extremely Cautious before Granting Injunctive Relief on the Eve of an Election.
The U.S. Constitution does Not Guarantee Overseas Voters the Right to Vote and Overseas Voters do Not have a Constitutional Right to a Particular Method for Returning a Ballot beyond what Congress Authorized in The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Voters do Not take their Right to Vote with them when they Move Abroad.
A Change this Close to the Election would Undermine Voter Confidence in the System. States need Time to Set-Up Systems. He Acknowledged Potential Security Risks, which have a Significant Effect on Voters’ Confidence in the System. Recent Problems that New York Experienced Implementing Expansion of Absentee Voting Underscore the Concern that Any Court-Ordered Changes could be Difficult to Implement.
A Few Hours after the Court Denied the PreliminaryIinjunction, the Plaintiffs moved to Dismiss the Case, without Prejudice.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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