008-15 pltfs' memo of law for prelim inj

8/9/2019 008-15 Pltfs' Memo of Law for Prelim Inj

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UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF NEW YORK

VOICE OF TEACHER EDUCATION / COMMITTEEON POLITICAL EDUCATION, ANDREWPALLOTTA, as Treasurer ofVoice ofTeacherEducation/Committee on Political Education, NEWYORK STATE UNITED TEACHERS, and RICHARDC. IANNUZZI, as President ofNew York State UnitedTeachers,

Plaintiffs,

-against NEW YORK STATE BOARD OF ELECTIONS, JAMES A. WALSH, as co-chair of the New York State Board ofElections, DOUGLAS A. KELLNER, as co-chair of the New York State Board of Elections, EVELYN 1. AQUILA, as commissioner of the New York State Board of Elections, and GREGORY P. PETERSON, as commissioner of the New York State Board of Elections,

Defendants.

Civil Action No.

PLAINTIFFS' MEMORANDUM OF LAW

JAMES R. SANDNER, ESQ.Attorney for PlaintiffsOffice & P.O. Address800 Troy-Schenectady RoadLatham, New York 12110TeL No. [email protected]

Robert T. Reilly, Esq.OfCounsel
mailto:[email protected]:[email protected]


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TABLE OF CONTENTS PAGE

PRELIMINARY STATEMENT .................................................. 1 STATEMENT OF FACTS ......................................................3 ARGUMENT

POINT I ............................................................... 8 VOTE/COPE AND NYSUT ARE ENTITLED TO A TEMPORARYRESTRAINING ORDER AND A PRELIMINARY INJUNCTION RESTRAININGAND ENJOINING DEFENDANTS FROM (1) PROHIDITING VOTE/COPEFROM MAKING INDEPENDENT EXPENDITURES DIRECTLY, (2) LIMITINGVOTE/COPE'S ABILITY TO MAKE INDEPENDENT EXPENDITURESINDIRECTLY, (3) PROHIDITING NYSUT FROM COMMUNICATING WITHITS MEMBERS REGARDING CANDIDATES OUTSIDE OF ITS REGULARPUBLICATIONS TO ITS MEMBERS, AND (4) PLACING PRIOR RESTRAINTSON THE ABILITY OF VOTE/COPE AND NYSUT TO ENGAGE IN SPEECHPROTECTED BY THE CONSTITUTION.

CONCLUSION .............................................................. 18

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PRELIMINARY STATEMENT Plaintiffs Voice ofTeacher Education/Committee on Political Education ("VOTE/COPE"),

Andrew Pallotta as treasurer of VOTE/COPE, New York State United Teachers ("NYSUT") andRichard C. Iannuzzi as president ofNYSUT bring this declaratory judgment action against the NewYork State Board ofElections ("Board ofElections") and the four commissioners that comprise theBoard ofElections to declare invalid and enjoin the Board ofElection's limitations on plaintiffs'rights guaranteed under the Constitutions of the United States and New York State to makeexpenditures to support or oppose candidates for elected state office in the primary and generalelections.

The First Amendment has its fullest and most urgent application to speech uttered during acampaign for political office. Laws that burden political speech are subject to strict scrutiny, whichrequires the government to prove that the restriction furthers a compelling interest and is narrowlytailored to achieve that interest. Defendants' actions cannot withstand such scrutiny.

Defendants prohibit political action committees such as VOTE/COPE from making anyindependent expenditures at all supporting or opposing candidates for state elected office. In effect,the Board ofElections bans outright political action committees such as VOTE/COPE from makingindependent expenditures directly.

Also, the Board ofElections subjects contributions made to political committees that makeonly independent expenditures to the contribution limits in the Election Law. Thus, not only arepolitical action committees banned from making independent expenditures directly, but also frommaking independent expenditures indirectly, to the extent that those independent expendituresexceed the applicable contribution limits.

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own members to support or oppose candidates for state elected office to including suchendorsements in their regular communications with members, unless they register with the Boardof Elections as political committees, list the candidates they intend to support or oppose and filecommittee authorization status forms all prior to engaging in such speech. In effect, unions mustdelay communicating with their own members until their next regular publication, if any, is due andunions are banned from speaking with their own members outside the context of their regularpublications, unless they first comply with a prior restraint on speech.

Plaintiffs allege that the bans, delays and limitations described herein that VOTE/COPE andNYSUT are subjected to by the Board of Elections place severe and unconstitutional burdens onVOTE/COPE's right to make independent expenditures and NYSUT's right to communicate withits members regarding the support or opposition of candidates for state elected offices. Plaintiffsseek preliminary relief, as they wish to support and oppose candidates in the primary election beingheld on September 14,2010 and the general elections being held on November 2,2010. The last day

for a voter to postmark an application for an absentee ballot is September 7, 2010.

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ST A TEMENT OF FACTS Political Action Committees

The Board of Elections prohibits VOTE/COPE as a "political action committee" frommaking any independent expenditures to support or oppose candidates for election to state office.(Reilly Affidavit ' 1 ~ 2 0 - 2 8 ) . Independent Expenditure Onlv Committees

The BoardofElections allows so-called "unauthorized committees" (which are unauthorizedin the sense that the candidate on whose behalf the committee makes expenditures did not authorizethe committee) to make independent expenditures without limitation. (Reilly Aff. ~ ~ 3 4 - 3 9 ) .

The Board of Elections, however, subjects contributions to such unauthorized committeesthat only make independent expenditures to the limitations on contributions set forth in the electionlaw. (Reilly Aff. ~ ~ 3 6 - 4 0 ) . For example, were VOTE/COPE to establish an unauthorized committeeto make independent expenditures to support the candidacy of Bill Perkins in the September 14,2010 primary election for his state senate seat, VOTE/COPE would be limited to contributing a totalof $6,000 to such committee. (Reilly Aff. ~ ~ 3 9 - 4 0 ) .

But VOTE/COPE intends to expend more than $6,000 to support Mr. Perkins by way ofpolling, canvassing, direct mail, phone calling and a get out the vote ("GOTV") drive. (Reilly Aff.~ ' 1 4 1 - 4 1 ) . In fact, $6,000 would not cover the cost of the polling, let alone any other part of theindependent expenditure campaign. (Reilly Aff. ~ ~ 4 1 - 4 2 ) . Union Member Communications

The Board ofElections may "deem" a union to be a political committee if the union makesexpenditures to support or oppose candidates for elected office, including such expenditures made

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in the course of speaking with its own members. (Reilly Aff. ' ; ~ 4 3 - 4 8 ) . The Board of Elections distinguishes between contributions and expenditures. (Reilly Aff.

' ; ~ 1 3 - 1 8 ) . The Board of Elections will not "deem" a union to be a political committee solely becauseit makes contributions. (Reilly Aff. ~ ' j 4 5 - 4 8 ) . According to the Board ofElections "i fa union placesan endorsement in a publication of its own union which it distributes to its membership on a regularbasis, it would not be considered to be a contribution" or an expenditure, as the union would nothave expended any additional funds on the publication since it would have issued the publicationregardless of the endorsement. (Reilly Aff. ' 1 ~ 4 6 - 4 8 ) . According to the Board of Elections, if aunion either circulates a special edition of its own publication to endorse a candidate or pays for aseparate literature which is enclosed with its regularly distributed union publication -- and thecandidate or the candidate's committee reports the payment as a "contribution in-kind" from theunion -- it would be considered to be a contribution, not an expenditure; and such contribution wouldnot cause the union be to "deemed" to be a political committee by the Board of Elections. (ReillyAff. 46-48).

If, however, the candidate or candidate's committee does not report the union's expendituresas "contributions in-kind," those expenditures would not be considered to be contributions and theunion would be "deemed" by the Board of Elections to be a political committee which has madeexpenditures on behalfofor against a candidate. (Reilly Aff. ':';46-48). The union will have violatedthe campaign finance provisions of the Election Law ifit had not registered as a political committee,listed the candidates it intended to support or oppose and file committee authorization status formsall prior to making such expenditures. (Reilly Aff. ~ r ' ; 4 6 - 4 8 ) .

Under a Board of Elections's advisory opinion, a union qua union can support or oppose

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candidates only in its regular publications to members. (Reilly Aff. ~ ~ 4 6 - 4 8 ) . A union newsletterpublished to members on a monthly basis would be an example of such regular publication.(Complaint '170-71). According to the Board of Elections, in those situations where the nextpublication date of such newsletter is not on the horizon or where the last published newsletterbefore the election already has been published and the election has not yet been held, the unionwould be effectively precluded from speaking with its own members in support or opposition tocandidates for state elected office. (Complaint ~ ~ 7 0 - 7 1 ) .

NYSUT intends to communicate with its members regarding candidates in the 20 10 primaryand general elections for state elected offices. (Complaint ~ 7 2 ) . NYSUT publishes newsletters toits membership; and, starting with the 2010-2011 academic year, those newsletters will be publishedon a monthly basis. (Reilly Aff. ~ ~ 4 9 - 5 0 ) . For example, NYSUT intends to communicate with itsown members to support the election of Bill Perkins in his primary election for state senate.(Complaint C T ~ 7 2 - 7 4 ) . Were NYSUT to communicate with its own members outside the context of

its regular publications, such as its monthly newsletter, to support the primary election of BillPerkins, and were Mr. Perkins to not report the expense for such communication as a contributionin-kind, the Board ofElections would deem NYSUT to be a political committee. (Complaint ~ ~ T 7 5 -76). Unless NYSUT had previously registered with the Board ofElections as a political committee,filed a statement with the Board ofElections stating that it intended to support Bill Perkins, and fileda statement stating whether or not Mr. Perkins authorized the committee the Board would find thatNYSUT had violated the Election Law. (Complaint ' 1 ~ 7 5 - 7 6 ) . Prior Restraint on Speech

Political committees must register and file statements with the Board of Elections before

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making any contributions or expenditures. (Reilly Aff. ,-r';SS-S6). The Board of Elections requiresall political committees except "political action committees" (and "constituted committees" notrelevant here) to list the names of the candidates they support or oppose and to file committeeauthorization status forms prior to making any contributions or expenditures on their behalf. (ReillyAff. ,-rSS). Pursuant to section 14-118 of the Election Law, each political committee (except a"constituted committee" not relevant here) must file with the Board of Elections a statementincluding "the candidate or candidates or ballot proposal or proposals the success or defeat ofwhichthe committee is to aid or take part" and a committee authorization status form. (Reilly Aff. ,-rSS).

The Board of Elections excepts political action committees from that requirement becausesection 14-118 also states that "a political committee which makes no expenditures, other than inthe form ofcontributions, shall not be required to list the candidates being supported or opposed bysuch committee." (Reilly Aff. ~ : S 8 ) .

According to the Board of Elections, if a committee required to file a statement listing "thecandidate or candidates or ballot proposal or proposals the success or defeat ofwhich the committeeis to aid or take part" does not file such statement prior to making any contributions or expenditures,that committee violates the campaign finance provisions of the Election Law. (Complaint ,-rS9)Were VOTE/COPE to establish an "unauthorized committee" to make independent expenditures,it would need to file a statement with the Board of Elections listing "the candidate or candidates orballot proposal or proposals the success or defeat ofwhich the committee is to aid or take part" andfile a committee authorization status form before it could make any independent expenditures onbehalf of those candidates or ballot proposals. (Complaint ';60). Were NYSUT to register as apolitical committee or be "deemed" by the Board of Elections to be a political committee it would

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need to file a statement with the Board of Elections listing "the candidate or candidates or ballotproposal or proposals the success or defeat of which the committee is to aid or take part" and file acommittee authorization status form before making any independent expenditures on behalfof thosecandidates or ballot proposals. (Complaint ~ 6 l ) .

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POINT I VOTE/COPE AND NYSUT ARE ENTITLED TO A TEMPORARYRESTRAINING ORDER AND A PRELIMINARY INJUNCTION RESTRAININGAND ENJOINING DEFENDANTS FROM (1) PROHIBITING VOTE/COPEFROM MAKING INDEPENDENT EXPENDITURES DIRECTLY, (2) LIMITINGVOTE/COPE'S ABILITY TO MAKE INDEPENDENT EXPENDITURESINDIRECTLY, (3) PROHIBITING NYSUT FROM COMMUNICATING WITHITS MEMBERS REGARDING CANDIDATES OUTSIDE OF ITS REGULARPUBLICATIONS TO ITS MEMBERS, AND (4)PLACINGPRlORRESTRAINTSON THE ABILITY OF VOTE/COPE AND NYSUT TO ENGAGE IN SPEECHPROTECTED BY THE CONSTITUTION

The standard of review applicable to applications for temporary restraining orders andmotions for preliminary injunctions is well-established. "The moving party must show (l)irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently seriousquestions going to the merits and a balance ofhardships tipping decidedly toward the party seekinginjunctive relief." Kermaniv. New York State Bd. ofElections , 487 F.Supp.2d 101, 106 (N.D.N.V.2006).1. Irreparable Harm

The First Amendment has its fullest and most urgent application to speech uttered during acampaign for political office. Citizens' United v. Federal Election Comm 'n, U.S ._ , _ , 130S.Ct. 876, 913 (2010). Limits on independent expenditures have a chilling effect extending wellbeyond the government's interest in preventingquidpro quo corruption. Citizens' United, 130 S.Ct.at 908. And, "[r]estricting spontaneous political expression places a severe burden on politicalspeech because as the Supreme Court has observed, timing is of the essence in politics and when anevent occurs, it is often necessary to have one's voice heard promptly, ifit is to be considered at all."Arizona Right to Life Political Act ion Comm. v. Bayless, 320 F 3d 1002, 1008 (9 th Cir. 2003 )(internal

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quotation marks omitted)."In matters involving allegations or claims ofFirst Amendment violations, irreparable harm

may be presumed." Kermani, 487 F.Supp.2d at 107. In the instant case, not only may irreparableharm be presumed, but also irreparable harm is evident from the facts.

Defendants have irreparably harmed VOTE/COPE by banning it from making independentexpenditures directly and by limiting it from making independent expenditures indirectly.Defendants' prohibition on VOTE/COPE as a political action committees from making anyindependent expenditures is a complete ban on speech. VOTE/COPE is effectively muzzled withrespect to the upcoming primary and general elections with respect to speaking through the use ofindependent expenditures.

In addition, the harm to VOTE/COPE caused by defendants ban on its ability to makeindependent expenditures as a "political action committee" would not be cured by forcingVOTE/COPE to establish and register an "unauthorized committee" to make independentexpenditures. See, Citizens' United, 130 S.Ct. at 897 (201 O)(the statute was a ban on corporatespeech notwithstanding that a PAC created by the corporation could still speak). A "political actioncommittee" is a "different animal" from the other types of political committees identified by theBoard ofElections, such as "unauthorized committees." See, Kermani, 487 F.Supp.2d atl04, FN4 (a political action committee was a "different animal" from the political committee at issue). Anycontributions VOTE/COPE were to make to such unauthorized committee, according to the BoardofElections, would be limited by the contribution limitations in Election Law, thus severely limitingthe ability ofVOTE/COPE and such "unauthorized committee" to make independent expenditures.For example, if VOTE/COPE were to establish an unauthorized committee to make independent

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expenditures supporting Bill Perkins in his primary election for state senate, VOTE/COPE wouldbe limited to making a $6,000 contribution to such committee.

NYSUT also has been irreparably harmed by the Board of Elections because it preventsNYSUT from engaging in spontaneous political speech. NYSUT is effectively prohibited fromspeaking with its members about candidates outside of its regular communications, unless it risksbeing "deemed" to be a political committee by the Board of Elections. If it were to make suchcommunications outside its regular publications, unless it already had registered and filed statementswith the Board ofElections as a political committee, NYSUTwould have violated the Election Law,in the Board's view, and be subject to civil and criminal penalties.

And, any political committee coming into being, either as an "an unauthorized committee"established by VOTE/COPE or by NYSUT being "deemed" to be a political committee by the BoardofElections, would need to have registered with the Board of Elections, listed those candidates itintended to support or oppose, and filed committee authorization status forms all before beingpermitted to make any expenditures. They, thus, would be subject to a prior restraint on speech andbe prohibited from engaging in spontaneous political speech.

2. Likelihood of Success on the MeritsDefendants' Prohibition on PAC Independent Expenditures is Invalid

Expenditure limitations are subject to strict scrutiny, which requires the government to provethat the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.Long Beach Area Chamber ofCommerce v. City ofLong Beach, 603 F.3d 684, 691-92 (9th Cir.2010). Defendants' actions cannot withstand such strict scrutiny. The Board of Elections cannot

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set itself up as "a First Amendment traffic cop." See, Arizona Right to Life Political Action Comm.,320 F.3d at 1014 (statute putting state in the role of a First Amendment traffic cop wasunconstitutional regulation of speech),' See also, Clear Channel Outdoor, Inc. v. City ofNew York,608 F. Supp.2d 477,508. (S.D.N.Y. 2009) ("The New York Court of Appeals has stated that theState Constitution's free speech clause 'contains language that is more expansive than its Federalcounterpart' and we have at times interpreted it in a manner that is more protective offree expressionthan the First Amendment to the Federal Constitution.").

Defendants prohibit VOTE/COPE as a political action committee from making anyindependent expenditures.

But, limitations on independent expenditures are unconstitutional. Long Beach AreaChamber ofCommerce v. City ofLong Beach, 603 F.3d 684; Kermani 487 F.Supp.2d at 695; seealso, Avella v. Batt, 33 A.D.3d 77, 84, 820 N.Y.S.2d 332, 339-40 (3d Dep't 2006)(invalidatingexpenditure prohibitions imposed on political parties by Election Law 2-126). P ACs can make

such independent expenditures. Long Beach Area Chamber ofCommerce, 603 F 3d at 696 (9th

Cir.2010). Surely, if a corporation can use its treasury funds to make independent expenditures tosupport or oppose candidates for federal elective office, a "political action committee" under NewYork law can make independent expenditures to support or oppose candidates for state office. See,Citizens' United, 130 S.Ct. at 913 (restrictions on corporate independent expenditures are invalid).

Independent expenditures do not give rise to corruption or the appearance of corruption.Citizens United, 130 S.Ct. at 909. "Limits on independent expenditures have a chilling effectextending well beyond the government 's interest in preventing quid pro quo corruption." Id. at 908.

Here, the Board cannot prove that its restriction furthers a compelling interest and is narrowly

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tailored to achieve that interest.In Citizens United the Supreme Court held that government cannot prohibit a corporation

from making independent expenditures because the only interest the government has regardingcampaign finance is the prevention of quid pro quo corruption, and there is no quid pro quocorruption with independent expenditures. Id. According to the Supreme Court '''[ t]he absence ofprearrangement and coordination of an expenditure with the candidate or his agent not onlyundermines the value of the expenditure to the candidate, but also alleviates the danger thatexpenditures will be given as a quidpro quo for improper commitments from the candidate. " Id.lfthe Federal Election Commission under FECA cannot limit independent expenditures, the BoardofElections under the Election Law cannot limit independent expenditures, either.

In Citizens United the Supreme Court found that a corporation has the same rights under theFirst Amendment to support or oppose candidates as does any other person or organization. CitizensUnited, 130 S.Ct. at 913. A "political action committee," a fortiori, has First Amendment rights atleast as great as a corporation to support ofoppose candidates by making independent expenditures.See, Long Beach Area Chamber ofCommerce ,603 F.3d at 695,696. (PACs can make independentexpenditures).

VOTE/COPE is registered with the Board of Elections as a "political action committee."The Board's rule is that "political action committees" under New York law can only makecontributions and cannot make independent expenditures. That rule, however, is invalid underCitizens United. VOTE/COPE, as a "political action committee," can make independentexpenditures under the First Amendment. See, Long Beach Area Chamber o fCommerce, 603 F.3dat 695-96.(PACs can make independent expenditures).

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Furthermore, the Board's rule preclude's only "political action committees" from makingindependent expenditures; it allows other types of "political committees" to make independentexpenditures. The concept that the government may restrict the speech of some elements of oursociety in order to enhance te relative voice of others is wholly foreign to the First Amendment.Arizona Right to Life Political Action Comm., 320 F.3d at 1014 (quotation marks, punctuation andinternal citations omitted).

Contributions to Independent Expenditure CommitteesSimilarly, were a "political action committee" to establish an "unauthorized committee" (a

"political committee" not authorized by the candidate it supports) to make only independentexpenditures, the "political action committee's" contributions to such "unauthorized committee"could not be subject to the limitations on contributions set forth in the Election Law. See,SpeechNow.Orgv. Fed Election Comm 'n, 599 F.3d 686,696 (D.C. Cir. 2010)(contribution limitsviolated the First Amendment by preve nting donations to an independent expenditure onlycommittee in excess of the limitations); see, Long Beach Area Chamber a/Commerce, 603 F .3d at695. (limitations on contributions to independent expenditure only committee unlawful),' see,Emily's List v. FEC, 581 F .3d 1, 10 (2009)("If the Fist Amendment prohibits any limitation on howmuch money an independent political committee can spend on an independent-expenditurecampaign, how can it permit limits on donation s to committees that make only independentexpenditures?")

The Board's rule is that an "unauthorized committee" (committee not authorized by thecandidate it supports) can make unlimited independent expenditures, but that any contributions tosuch "unauthorized committee" are limited by the contribution limitations in the Election Law. For

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example, were VOTE/COPE to establish and register an "unauthorized committee," although such"unauthorized committee" could make unlimited independent expenditures, the contributionsVOTE/COPE could make to that committee to fund the committee would be limited, in a primaryelection, to $6,000 for each senate candidate supported and $3,800 for each assembly candidatesupported.

But, contributions made to a committee that makes only independent expenditures cannotbe limited for the same reasons that independent expenditures themselves cannot be limited.SpeechNow.Org, 599 F.3d at 692-93. Although Buckley v. Valeo. 424 U.S. 1 (1976), upheldlimitations on contributions in certain circumstances, contribution limitations nevertheless place aburden on speech. Jd. "[C]ontribution limits still do implicate fundamental First Amendmentinterests." Jd. at 692. "When the government attempts to regulate the financing of politicalcampaigns and express advocacy through contribution limits it must have a countervailing interestthat outweighs the limit's burden on the exercise of First Amendment rights." Jd. "The Supreme

Court has recognized only one interest sufficiently important to outweigh the First Amendmentinterests implicated by contributions for political speech: preventing corruption of the appearanceof corruption." Jd. Limits on contributions to a committee that makes only independentexpenditures cannot stand. Jd.

Union Member CommunicationsLikewise, a union should not be limited in its ability to speak with its own members about

the candidates it endorses to only its regular communications or risk being deemed to be a politicalcommittee which would need to register with the Board, declare the candidates it intends to supportor oppose and file committee authorization status forms all prior to engaging in any such speech.

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See, Arizona Right to Life Political Action Comm., 320 F 3d at 1006.(restricting spontaneouspolitical expression places a severe burden on political speech).

Built-in delay mechanisms prevent the timely exercise of First Amendment rights andprohibit spontaneous political expression. Id. at 1008. "To suggest that the waiting period isminimal ignores the reality of breakneck political campaigning and the importance of getting themessage out in a timely, or, in some cases, even instantaneous manner." Id.

Prior Restraints On SpeechThe Board's rule is that an "unauthorized committee" must name the candidates it intends

to support or oppose and file committee authorization status forms at the time it registers with theBoard, and the "unauthorized committee" cannot make any contributions or independentexpenditures until after it does so. Thus, such "unauthorized committee must declare who it intendsto support or oppose and file committee authorization forms before it will be permitted to make anyindependent expenditures. This rule would apply regardless of whether the "unauthorized

committee" was established intentionally, for example by a "political action committee" orunintentionally by an organization, such as a union, who is deemed by the Board ofElections to bea political committee for having communicated with its own members outside of its regularpublications to support or oppose candidates. Such rule is invalid as it is a prior restraint on speech.

With political speech, time is of the essence. Id. In this era of such things as the internet,e-mail, YouTube, FaceBook, text-messaging and Twitter, participants in political discourse must beready to speak instantaneously. Any delay in speech may mean that their voice does not get heardin a meaningful way. Id.

"First Amendment reflects a profound national commitment to the principle that debate on

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public issues should be uninhibited, robust, and wide-open." Id. (internal quotation marks omitted).According to the court, the statute 's " built-in delay mechanism' prevents the timely exercise ofFirstAmendment rights and prohibits spontaneous political expression." !d. In its discussion of thevarious reasons why the statute violated the First Amendment, the court noted that "the delaymandated by the notice requirement places a severe burden on speech because it 'may even precludeexpression necessary to provide an immediate response to late-breaking events. " Id. at 1009.

Balance of the EquitiesPlaintiffs respectfully submit that they have established a likelihoodofsuccess on the merits.

Assuming for the sake of argument that plaintiffs have not shown a likelihood of success on themerits but have shown sufficiently serious questions going to the merits, a balance of the hardshipstips decidedly toward the plaintiffs.

On the one hand, this case concerns the rights ofVOTE/COPE and NYSUT to engage inspeech under the "fullest and most urgent" application of the First Amendment political speech.

On the other hand, this case concerns the Board's interest in preventing corruption or the appearanceof corruption in elections.

But, with respect to the Board ofElections limits on independent expenditures, according tothe Supreme Court "'[t]he absence of prearrangement and coordination of an expenditure with thecandidate or his agent not only undermines the value of the expenditure to the candidate, but alsoalleviates the danger that expenditures will be given as a quid pro quo for improper commitmentsfrom the candidate. " Citizens' United at 908.

And, with respect to the Board ofElections rules limiting a union's ability to communicationwith its members to its regular publications unless and until it first registers as a political committee,

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lists the candidates it will support or oppose and file committee authorization forms all beforeengaging in political speech, such built-in delay mechanisms prevent the timely exercise of FirstAmendment rights and prohibit spontaneous political expression. Arizona Right to Life PoliticalAction Committee, 320 F.3d at 1008.

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CONCLUSION For the reasons set forth above Plaintiffs' application for a temporary restraining order and

motion for preliminary injunction should be granted.

Dated: August (i;, 2010 Respectfully submitted,JAMES R. SANDNER, ESQ.Attorney for PlaintiffsOffice & P.O. Address800 Troy-Schenectady Road '.Latham, New York 12110Tel. No. 518-213-6000

By:Robert T. Reilly, Esq.OfCounsel

89120/cwl141

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