Supreme Court, Monroe County, April 14, 2023

Cerulli, Massare & Lembke (Matthew R. Lembke of counsel) for plaintiff.

John P. Bringewatt, County Attorney (Brendon S. Fleming and Maria E. Rodi of counsel), for defendants.

Kenneth MacDonald (hereinafter plaintiff) initiated this action on March 3, 2023, seeking to invalidate the legislative district map (hereinafter the map) recently drawn and adopted{**79 Misc 3d at 552} by the Monroe County Legislature on December 29, 2022.^[FN1] Plaintiff alleges that the map contains legislative districts favoring incumbents, denies the voting rights of Black voters, and contains districts that are not as compact as practicable, in violation of the anti-gerrymandering provisions contained in Municipal Home Rule Law § 34 (4).

The local law adopting the legislative maps was signed by Monroe County Executive Adam Bello on January 5, 2023, and was subject to a permissive referendum as required by Municipal Home Rule Law § 24 (1) (a) and (2) (j). No petition seeking a permissive referendum was filed, and the law became effective February 19, 2023.

On March 17, 2023, plaintiff sought an order to show cause with an application for a temporary restraining order (TRO) and preliminary injunction seeking an order (1) temporarily restraining and enjoining the County of Monroe, the Monroe County Legislature, and the Monroe County Board of Elections (hereinafter defendants) from conducting elections and all activities related to these elections, including but not limited to accepting designating petitions, holding primary elections, and any other such activities under the legislative district map; (2) restraining [*2]and enjoining defendants from conducting elections for Monroe County Legislature under the map pending final judgment in this action; and (3) suspending and enjoining the operation of any state or local laws that would undermine this court's ability to provide effective and complete relief to plaintiff for the November 2023 elections for Monroe County Legislature, including primary elections preceding the November 2023 general elections for Monroe County Legislature.^[FN2]{**79 Misc 3d at 553}

For the reasons that follow, the application for a temporary restraining order and preliminary injunction is denied.

On May 8, 2022, the defendants herein appointed a Legislative District Revision Commission to make recommendations to the Monroe County Legislature "as to changes in the boundaries of legislative districts" as required by the Monroe County Charter.^[FN3] Thereafter, a series of public forums were conducted, and the Commission held 13 meetings between March 24th and December 23rd of 2022.^[FN4] On September 6, 2022, the Commission recommended a legislative district map, and it was adopted by the Monroe County Legislature, but it was vetoed by the Monroe County Executive. On December 23, 2022, the Commission recommended a second map which was adopted by the Legislature by a vote of 27-2.^[FN5] The County Executive signed the local law approving the map on January 5, 2023.

Plaintiff's complaint (filed Mar. 3, 2023—almost two months after the local law was signed by the County Executive) alleges that the map violates Municipal Home Rule Law § 34 (4) (b) in that it denies voting rights to Black voters; section 34 (4) (d) in that it contains districts that are not as compact in form as practicable; and section 34 (4) (e) in that the map was drawn to favor incumbents, candidates, and political parties. Plaintiff alleges that he has standing pursuant to[*3]"Article III, Section 5 of the New York State Constitution and New York State Unconsolidated Laws of § 4221,"^[FN6] and seeks declaratory judgment that the map is invalid, and that a new map be developed either by the defendants, or by the court with the assistance of a special master, and a permanent injunction preventing the defendants from conducting elections under the existing map.{**79 Misc 3d at 554}

In support of the complaint plaintiff attached the six-page report of Jeanne Clelland, Ph.D. (titled "Incumbency Protection In 2022 Legislative Redistricting For Monroe County, NY") in which she opined that based upon her analysis of the map, "it [is] extremely unlikely that the 2022 plan was drawn without a deliberate intention to favor incumbent members running for reelection."^[FN7]

On March 17, 2023 (two weeks after filing the complaint), plaintiff brought the instant application for a temporary restraining order and preliminary injunction. In addition to the allegations in the complaint and Dr. Clelland's report, plaintiff submitted the affidavit of Monroe County Legislator Rachel Barnhart. In her affidavit, Legislator Barnhart avers that during negotiations between the Republican and Democratic caucuses current legislators made statements indicative of a desire to fashion advantageous districts in which to run for reelection.^[FN8] Additionally, she avers that one version of the proposed map did not contain the number of Black majority voting districts required by Municipal Home Rule Law § 34 and federal law, and that the districts that were created as purportedly Black districts were done to protect Republican Party interests, or protect specific Democratic incumbents.^[FN9] Finally, she avers that given the advantage the Monroe County Democratic Party has in registered voters compared to the Republican Party, the proposed districts favored Republican Party interests disproportionally to the number of voters who are registered in the Republican Party in Monroe County.

Based on the above submissions, plaintiff, citing Matter of Harkenrider v Hochul (38 NY3d 494 [2022]), requests injunctive{**79 Misc 3d at 555} relief as outlined above, or moving the scheduled date for the primary election (and other statutory deadlines) for Monroe County legislator candidates to allow time for the court to draw a new map.

In opposition to plaintiff's application for a TRO/preliminary injunction the defendants submit the combined affidavit of Lisa P. Nicolay, Republican Commissioner for the Monroe [*4]County Board of Elections, and Jackie Ortiz, the Democratic Commissioner for the Monroe County Board of Elections. In the affidavit Commissioners Nicolay and Ortiz aver that given the required deadlines in the New York State Election Law (known as the "Political Calendar")^[FN10] granting a preliminary injunction would necessitate a second primary election for Monroe County Legislature seats at an estimated cost of $1,291,360.^[FN11] They further aver that a second primary election would create a significant risk of voter confusion and possible disenfranchisement.^[FN12]

The defendants argue that: (1) given the complexities of the primary process, the schedule proposed by the plaintiff to develop a new map in time for the June 27, 2023 primary is not feasible; (2) plaintiff's reliance on Harkenrider as support for a preliminary injunction is misplaced; (3) plaintiff cites to no other law or authority which would allow for the issuance of a preliminary injunction under the facts alleged by plaintiff; (4) the Barnhart affidavit is based upon speculation and conjecture, and most factual averments contained therein are applicable to prior, proposed maps, and thus does not support the requested relief; (5) the Barnhart affidavit relies upon inadmissible hearsay; (6) the Barnhart affidavit relies upon inadmissible nonexpert opinion; (7) plaintiff has not shown likelihood of success on the merits, as plaintiff has not established sufficient standing and the doctrine of laches would operate to dismiss the complaint; (8) the plaintiff's complaint is deficient;^[FN13] (9) the balance of the equities favors denial of the requested TRO and preliminary injunction; and (10) the{**79 Misc 3d at 556} plaintiff must provide an undertaking, should the relief be granted, and $1,291,360 should be the appropriate amount.

Plaintiff, in addition to the arguments made in his initial papers, responds that any delay in initiating the action should be excused given the defendants' delay in passing the map as well as the 45-day waiting period required by Municipal Home Rule Law § 24 (1) (a).^[FN14] Plaintiff also argues the defendants had "unclean hands" and this precludes their assertion of the laches defense.

Plaintiff also argues that rescheduling the primary election is within the court's authority as granted by Harkenrider, that the Barnhart affidavit and its allegations are admissible, and that the plaintiff would suffer irreparable harm should the election proceed under the current map.

As to standing, plaintiff submits that as Municipal Home Rule Law § 34 (4) is the analogous provision to the New York State constitutional provisions prohibiting "gerrymandering" of state legislative and [*5]congressional maps, the standing provision in article III, § 5, which grants standing to "any citizen," should be applied to Municipal Home Rule Law § 34 (4) cases. Furthermore, plaintiff submits that as he lives in a district that "cracked" or "packed" voters, he has standing under Gill v Whitford (585 US —, —, 138 S Ct 1916, 1931 [2018]).

Finally, plaintiff submits that an undertaking should not be required as the necessity of a rescheduled primary "falls squarely at the feet of the defendants themselves" due to their delay in passing the local law implementing a new apportionment map.^[FN15]

"In order to prevail on a motion for a preliminary{**79 Misc 3d at 557} injunction, the moving party has the burden of demonstrating, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury in the absence of injunctive relief, and (3) a balance of equities in its favor (see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839 [2005]; Emerald Enters. of Rochester v Chili Plaza Assoc., 237 AD2d 912 [1997])." (Eastman Kodak Co. v Carmosino, 77 AD3d 1434, 1435 [4th Dept 2010].)

Plaintiff has failed to establish the likelihood of success on the merits.

[1] As a threshold matter, it does not appear that the plaintiff has standing to support all three causes of action in the complaint under either the federal standard for standing in gerrymandering cases, or under a challenge to Municipal Home Rule Law § 34 (4) (a New York State law challenge to gerrymandering). Plaintiff alleges in the complaint that he is an elector who resides in Legislative District (hereinafter LD) 16. In his first cause of action (impermissible gerrymandering to favor incumbents) plaintiff makes claims related to LDs 11 and 18, and references to "at least ten legislative districts" which he does not identify. In his second cause of action (impermissible racial gerrymandering) the plaintiff alleges the dilution of Black voters and references LDs 22 and 29—but not LD 16. In his third cause of action (violation of compactness of districts) plaintiff cites LDs 17, 22, 26, and 29 as violating the relevant provisions—but not LD 16, the district within which he resides. Instead, plaintiff argues that he has standing pursuant to article III, § 5 of the New York State Constitution and McKinney's Unconsolidated Laws of NY § 4221 (as added by L 1911, ch 773, § 1).

Under the federal standard for standing in racial gerrymandering cases,

"a plaintiff who alleges that he is the object of a racial gerrymander—a drawing of district lines on the basis of race—has standing to assert only that his own district has been so gerrymandered. See United States v. Hays, 515 U.S. 737, 744-745 (1995). A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, 'assert[s] only a generalized grievance against governmental conduct of which he or she does not approve.' Id., at 745. Plaintiffs who complain of racial gerrymandering in their State cannot sue to invalidate{**79 Misc 3d at 558} the whole State's legislative districting map; such complaints must proceed 'district-by-district.' Alabama Legislative Black Caucus v. Alabama, 575 U.S. —, — (2015)." (Gill v Whitford, 585 US at —, 138 S Ct at 1930 [2018].)

Similarly, plaintiff did not allege that he resides in a district suffering from the infirmities prohibited by Municipal Home Rule Law § 34 (4) or federal law. Although he makes vague allegations of "cracking" or "packing" in "at least ten" LDs, and specifically claims LDs 11 and 18 suffer from that infirmity, his complaint is devoid of any allegations that his district, LD 16, was formed in violation of the provisions of Municipal Home Rule Law § 34 (4) or relevant federal law. Nor does plaintiff claim his district violates the provision against non-compact districts. Thus, it would not appear that plaintiff satisfies the standing threshold under federal article III principles. (Gill v Whitford.)

Nor does it appear that plaintiff satisfies the traditional standing principles under New York law.

"Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation (Matter of Dairylea Coop. v Walkley, 38 NY2d 6, 9). Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria (see, Comment, Standing of Third Parties to Challenge Administrative Agency Actions, 76 Cal L Rev 1061, 1067-1068 [1988]; see also, Warth v Seldin, 422 US 490, 498). That an issue may be one of 'vital public concern' does not entitle a party to standing." (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991].)

"The test for determining a litigant's standing is well settled. A plaintiff has standing to maintain an action upon alleging an injury in fact that falls within his or her zone of interest. 'The existence of an injury in fact—an actual legal stake in the matter being adjudicated—ensures that the party seeking review has some concrete interest in prosecuting the action which casts the dispute "in a form traditionally capable of judicial resolution" ' (Society{**79 Misc 3d at 559} of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [citation omitted])." (Silver v Pataki, 96 NY2d 532, 539 [2001].)

As noted above, plaintiff does not allege that he resides in a district that was impermissibly gerrymandered in violation of Municipal Home Rule Law § 34. As it appears plaintiff instead is seeking to vindicate the rights of others living in alleged impermissibly gerrymandered districts, he would not have standing to maintain the present action. Although the Court of Appeals has stated that the principles of standing should not be overly restrictive (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 413 [1987]), something more than the interest of the public at large must be present before standing is conferred on a person seeking to challenge an administrative determination. (Id.)

Having not pleaded sufficient facts to establish standing under federal or New York State principles, plaintiff relies upon article III, § 5 of the New York State Constitution and Uncons Laws § 4221 to establish his standing. If plaintiff were challenging the state legislative maps, those provisions would entitle plaintiff to standing to challenge congressional districts, as well as a map developed by the independent redistricting commission (Harkenrider v Hochul at 508). NY Constitution, article III, § 5 states, in part: "An apportionment by the legislature, or other body, shall be subject to review by the supreme court, at the suit of any [*6]citizen, under such reasonable regulations as the legislature may prescribe."^[FN16] However, it is not clear that these constitutional provisions apply to establish standing to challenge local laws which implement maps for county legislative districts. The terms are clearly referring to the New York State Legislature.

Furthermore, Uncons Laws §§ 4221^[FN17] (cited by plaintiff) and 4222,^[FN18] and the accompanying provisions, apply to challenges to New York State Legislature{**79 Misc 3d at 560} apportionments of senate, assembly, and congressional districts. The reference in Uncons Laws § 4222 to "any other body" pertains to challenges to apportionments of assembly districts by bodies other than the New York State Legislature, but clearly applies only to challenges to assembly districts. (See Matter of Goldstein v Rockefeller, 45 Misc 2d 778, 780 [Sup Ct, Monroe County 1965]; Matter of Richardson [Stark], 307 NY 269 [1954].)

Plaintiff argues that as Municipal Home Rule Law § 34 (4) is an analogous provision to the anti-gerrymandering provisions in the New York Constitution (art III, § 4 [c]) the standing provision contained in article III, § 5 must also apply to challenges to local laws. Plaintiff points out that as the statutory text of the Municipal Home Rule Law § 34 (4) provision is similar to the language contained in article III, § 4, ergo the Legislature must also have intended that the standing provisions of article III, § 5 apply as well.^[FN19] However, the exclusion by the Legislature of the standing provision in article III, § 5 when it passed Municipal Home Rule Law § 34 (4) must be presumed to be intentional. (See Commonwealth of the N. Mariana Is. v Canadian Imperial Bank of Commerce, 21 NY3d 55, 60 [2013] ["the {**79 Misc 3d at 561}failure of the legislature to include a term in a statute is a significant indication that its exclusion was intended"]; People v Finnegan, 85 NY2d 53[*7] [1995].)^[FN20]

Plaintiff also argues that the language in article III, § 5 granting standing to "any citizen" applies only to challenging the apportionment of assembly districts (he cites no case law in support of this claim), and the Court of Appeals ignored that in holding that the plaintiffs in Harkenrider had standing to challenge the senate and congressional maps. He argues, inferentially, that this court should do the same and apply that provision to the plaintiff herein. However, plaintiff's position is meritless. Although the relevant language is contained in article III, § 5 which is titled "[a]pportionment of assembly members; creation of assembly districts" its terms do not apply solely to challenges to the apportionment of assembly districts. The language clearly applies to all apportionments done by the Legislature. (See Matter of Sherrill v O'Brien, 188 NY 185, 195 [1907] ["This constitutional provision is new, and it was intended to and does set at rest any further claim that the legislature in passing an act reapportioning the state for legislative purposes is so far exercising a political, as distinguished from a legislative power, that its action cannot be reviewed by the courts. The jurisdiction of the Supreme Court of this state to review an apportionment by the legislature or other body is now express"]; see also Schieffelin v Komfort, 212 NY 520, 529 [1914] ["The fact that the Constitution makes express provision for a review by the Supreme Court of an act of the Legislature apportioning the state into districts, at the{**79 Misc 3d at 562} suit of any citizen, and refrains from providing for such a review in other cases, is of itself evidence that it was not the intention of the people by the Constitution to confer upon the judicial branch of government general authority at the suit of a citizen as such to sit in review of the acts of other branches of government"].) The Court of Appeals in Harkenrider applied the clear language of the constitutional provision contained in article III, § 5 and held that the plaintiffs therein had the requisite standing.

Assuming arguendo plaintiff does have standing to proceed with the underlying action, he did not meet his burden to show, by clear and convincing evidence, that he would succeed on the merits in the underlying action.

Plaintiff's claims that the districts were unlawfully gerrymandered are subject to a high burden—proof beyond a reasonable doubt that the districts were drawn in violation of Municipal Home Rule Law § 34 (4).

"Legislative enactments, including those implementing redistricting plans, are entitled to a[*8]'strong presumption of constitutionality' and redistricting legislation will be declared unconstitutional by the courts ' "only when it can be shown beyond reasonable doubt that it conflicts" ' with the Constitution after ' "every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible" ' (Matter of Wolpoff v Cuomo, 80 NY2d 70, 78 [1992] [some internal quotation marks omitted], quoting Matter of Fay, 291 NY 198, 207 [1943]; see Cohen v Cuomo, 19 NY3d 196, 201-202 [2012])." (Harkenrider v Hochul at 509; see also Rochester Gas & Elec. Corp. v Public Serv. Commn. of State of N.Y., 71 NY2d 313 [1988].)

Although plaintiff invokes the statutory prohibition against gerrymandering as opposed to the constitutional provisions applicable to the drawing of state legislative districts, to ultimately prevail his burden is the same—proof beyond a reasonable doubt that the districts were drawn in violation of Municipal Home Rule Law § 34 (4).

On an application for a TRO/preliminary injunction plaintiff need not satisfy that burden at this stage, but he must prove by clear and convincing evidence the likelihood that he would do so at trial. Plaintiff's evidentiary submissions fall below that exacting standard.{**79 Misc 3d at 563}

As defendants correctly argue, the Barnhart affidavit contains information that may be relevant to a determination that the local law violates Municipal Home Rule Law § 34 (4) but it is not sufficient to establish by clear and convincing evidence that plaintiff will likely prevail after trial. The significant majority of the averments contained in the affidavit concern the political haggling that occurred prior to the development of the final map. This evidence may be relevant as to the intent of the defendants and the individual legislators who prepared the final map contained in the local law, but it is not dispositive.

Nor is Legislator Barnhart's analysis of the districts she denominated "one-to-one" compelling enough to conclude plaintiff will likely prevail.^[FN21] Most citizens would think that a legislative district in which the ratio of registered Democratic voters and Republican/Conservative voters was approximately equal, and thus provides the Democratic candidates and Republican candidates an equal "playing field," to be a non-gerrymandered district. Instead, Ms. Barnhart alleges that districts in which there are up to 120 Democratic voters for every 100 Republican/Conservative voters to be gerrymandered in favor of the Republicans. To support this claim, Legislator Barnhart relies upon prior election results which purport to show that in odd-year [*9]elections, a greater number of Republican/Conservative voters vote than voters registered as Democrats.^[FN22]{**79 Misc 3d at 564}

Municipal Home Rule Law § 34 (4)—and the concomitant New York constitutional provision contained in article III, § 4 (c) (5)—state that "[d]istricts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties"; that does not compel the conclusion that districts drawn as "equal" as far as the number of registered voters in each party violate that provision. Although Ms. Barnhart's analysis of prior elections may be relevant evidence, it is not dispositive as she fails to account for the impact of the other mandated factors which may have influenced how the districts were drawn.^[FN23] {**79 Misc 3d at 565}She has not shown that the lines of each district "impactfully and unduly favor or [*10]disfavor a political party or reduce competition." (Harkenrider v Hochul at 519.)

Ms. Barnhart is not an expert in redistricting or statistics, and the court declines to recognize her analysis as sufficiently supported to provide it the deference given to the reports of expert witnesses.

Although the court accepts Jeanne Clelland, Ph.D. as an expert in redistricting, her report does not establish the likelihood that plaintiff will prevail in establishing at trial, beyond a reasonable doubt, that the districts were drawn in violation of Municipal Home Rule Law § 34 (4) (e). A portion of the report relies upon unidentified hearsay to determine which incumbents were running for reelection (the report is dated Jan. 13, 2023—six weeks prior to the date designating petitions could be circulated for candidates for Monroe County Legislature).^[FN24] Furthermore, as Dr. Clelland concedes, there are other factors that may influence how the districts were drawn that may result in a legal map in which the final districts have the{**79 Misc 3d at 566} incumbents' residences located in the new districts. Municipal Home Rule Law § 34 (4) lists the factors to be considered in drawing new districts, in order of priority, and the consideration of those factors may have resulted in the final map in which most incumbents resided in their new district. Dr. Clelland's conclusions that this is statistically unlikely has not been tested by cross-examination and although it may be sufficient support to defeat a motion to dismiss the complaint, it is not sufficient support to meet the plaintiff's heavy burden on a TRO/preliminary injunction application.

Plaintiff has failed to establish the equities are in his favor.

The doctrine of laches applies to preclude plaintiff from his requested relief.

"Laches is 'an equitable bar, based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party' (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 816 [2003]; see Matter of Barabash, 31 NY2d 76, 81 [1972]). 'The essential element . . . is delay prejudicial to the opposing party' (Matter of Barabash, 31 NY2d at 81; see Saratoga County Chamber of Commerce v Pataki, 100 NY2d at 816-818; Matter of Schulz v State of New York, 81 NY2d at 348)." (Matter of League of Women Voters of N.Y. State v New York State Bd. of Elections, 206 AD3d 1227, 1229 [3d Dept 2022], lv denied 38 NY3d 909 [2022], rearg denied 38 NY3d 1120 [2022].)

[2] As noted above, the local law was signed by the County Executive on January 5, 2023. Plaintiff did not initiate this action until March 3, 2023—almost two months after the local law was signed. Plaintiff's explanation for the delay was that as the local law could not become effective until February 19, 2023 (due to the provisions of Municipal Home Rule Law § 24 [1] [a]), he could not initiate this action. That contention is without merit. A challenge to the local law became ripe for adjudication as soon as it was signed by the County Executive. (See Matter of Fossella v Dinkins, 114 AD2d 340 [2d Dept 1985].) Had there been a petition for a referendum (none was filed) the issue would still have been ripe for adjudication as soon as the local law was signed, as the court would have the authority to determine whether an unconstitutional local law{**79 Misc 3d at 567} should remain on the ballot. As noted by the Court of Appeals in New York Pub. Interest Research Group v Carey (42 NY2d 527 [1977]):

"That is not to say that the courts may never consider the validity of proposed legislation. This has been done on several occasions, although with reluctance and then only incidentally to resolve a dispute as to whether the proposition should be placed or remain on the ballot (see, e.g., Matter of McCabe v Voorhis, supra; Matter of Tierney v Cohen, 268 NY 464; Matter of Osborn v Cohen, 272 NY 55; Matter of Mooney v Cohen, 272 NY 33; Johnson v Etkin, 279 NY 1; Matter of Stroughton v Cohen, 281 NY 343; Matter of [Astwood] v Cohen, 291 NY 484).

"These are not advisory opinions. The effect of the court's determination in those cases does not depend on the outcome of the election. On the contrary, those orders have the immediate and practical effect of determining whether the proposition should be submitted to the voters, or whether all the expense and human effort involved in the election process would be wasted because of fatal defects in the law." (Id. at 531-532.)

New York Pub. Interest Research Group v Carey involved a proposed law subject to a mandatory referendum, an important distinction to the local law herein and the plaintiff's claims that it is unconstitutional on its face. "Facial challenges 'are generally ripe the moment the challenged regulation or ordinance is passed' (Suitum v Tahoe Regional Planning Agency, 520 US 725, 736 n 10 [1997]; see also Kittay v Giuliani, 252 F3d 645, 646-647 [2d Cir 2001])." (Matter of Real Estate Bd. of N.Y., Inc. v City of New York, 165 AD3d 1, 9 [1st Dept 2018].) Unlike the situation in New York Pub. Interest Research Group v Carey where the voters may have voted down the proposed legislation at the mandatory referendum stage, thus rendering the request for a declaratory judgment that the legislation was unconstitutional not ripe for review, here the law was final unless a petition had been filed seeking a referendum. Had a petition for a referendum been filed, the local law still would have been subject to judicial review as of January 5, 2023. (New York Pub. Interest Research Group v Carey at 531-532 [cases cited therein].){**79 Misc 3d at 568}

However, assuming the local law did not become ripe for judicial review until February 19th, plaintiff fails to explain his delay from February 19, 2023, until the filing of the complaint [*11]on March 3, 2023, and the additional two-week delay in filing the application for the TRO/preliminary injunction (Mar. 17, 2023). Plaintiff's expert's report is dated January 13, 2023, and none of the facts alleged in the complaint occurred after that date. Ms. Barnhart's affidavit avers facts that occurred prior to January 5, 2023. In short, nothing prevented the plaintiff from filing this action and application on February 19th (or on Jan. 6th).^[FN25]

The plaintiff's unreasonable and unexcused delay in filing the complaint, and in seeking the TRO/preliminary injunction results in extreme prejudice to the defendants and the voters of Monroe County. (Matter of League of Women Voters of N.Y. State v New York State Bd. of Elections, 206 AD3d 1227, 1230 [3d Dept 2022] ["election matters are exceedingly time sensitive and protracted delays of this nature impose impossible burdens upon respondent, who is obligated to comply with the strict timelines set forth in the Election Law"], lv denied 38 NY3d 909 [2022], rearg denied 38 NY3d 1120 [2022].)

The relief requested by plaintiff would upend the political calendar in Monroe County. Plaintiff's proposal to change the dates for collecting signatures on designating petitions and other dates set by the Election Law (see n 2, supra) to meet the June 27th primary date fails to consider important deadlines and would result in disenfranchising voters. For instance, plaintiff proposed changing the dates to accept or decline designations from April 10th to May 8th, changing the last date to fill a vacancy after declination from April 14th to May 12th, and changing the last day to file authorization of substitution after declination of a designation from April 18th to May 16th. But these provisions ignore the statutory requirement that the county board of elections certify the primary ballot by May 4th{**79 Misc 3d at 569} (Election Law § 4-114), and the requirement that military ballots be transmitted by May 12th (Election Law §§ 10-108 [1] [b]; 11-204 [4]). Granting the plaintiff's application would necessitate disenfranchising some voters.

Alternatively, during oral argument on the application for a TRO/preliminary injunction, the plaintiff argued for alternative relief in ordering that there be a second primary election in late summer or early fall of 2023 (for only Monroe County Legislature seats). However, even if the court were inclined to grant such extraordinary relief on the limited showing made by plaintiff, plaintiff has not established that the equities in doing so are in his favor. (See Matter of Nichols v Hochul, 206 AD3d 463, 464 [1st Dept 2022] ["Supreme Court properly denied the petition to the extent it seeks to obtain a new state assembly map for use in the 2022 assembly elections. To this extent, the petition, which includes a request for an order delaying the 2022 assembly primary election to August or September 2022, is barred by the doctrine of laches, given petitioners' unreasonable and prejudicial delay in bringing this proceeding. The request for a delay of the 2022 assembly primary elections is denied in any event, because the redrawing and implementing of a new assembly map before a 2022 primary election delayed even until September is, at this late date, no longer feasible"].)[*12]

The court accepts the representations of Lisa P. Nicolay, Republican Commissioner for the Monroe County Board of Elections, and Jackie Ortiz, the Democratic Commissioner for the Monroe County Board of Elections, that a second primary election would result in voter confusion and voter disenfranchisement. According to the unrefuted averments contained in their affidavit, a second primary date creates a danger that voters would be assigned to different polling locations than those previously assigned for the June 27th primary. Furthermore, there would be the possibility that fewer polling locations would be available. Both possibilities would undoubtedly lead to voter confusion and lower turnout. As plaintiff has not established a likelihood of success on the merits, these significant, potential harms outweigh the plaintiff's speculative claim that he will be harmed by having to proceed with an election under the current map.{**79 Misc 3d at 570}

Plaintiff cannot post the required undertaking.

CPLR 6312 (b) requires that prior to the issuance of a preliminary injunction, the plaintiff provide an undertaking in an amount to be determined by the court.^[FN26] "Significantly, when moving for a preliminary injunction, a plaintiff is required to post an undertaking in an amount fixed by the court (see, CPLR 6312 [b]) and this requirement may not be waived (see, Smith v Boxer, 45 AD2d 1054)." (Rourke Devs. v Cottrell-Hajeck, Inc., 285 AD2d 805, 805 [3d Dept 2001].)

"The amount of that undertaking is left to the sound discretion of the court, although 'it should be rationally related to the potential damages' that defendants could recover if an injunction is ultimately deemed unwarranted (Bonded Concrete, Inc. v Town of Saugerties, 42 AD3d 852, 854-855 [2007]; see Livas v Mitzner, 303 AD2d 381, 383 [2003])." (Cooperstown Capital, LLC v Patton, 60 AD3d 1251, 1253-1254 [3d Dept 2009].)

Defendants have submitted the affidavit of David W. Reilich, the Finance Administrator for the Monroe County Board of Elections.^[FN27] Mr. Reilich avers that the cost of a second primary election would be at least $1,291,360. Mr. Reilich's estimate is supported by averments as to each individual cost (e.g., ballot printing, renting machines and polling locations, wages for polling workers) necessary to conduct a primary election. Those averments were not disputed by the plaintiff.

The court determined that a reasonable undertaking would be $1.2 million. However, the plaintiff conceded during oral argument that he possesses insufficient funds to pay this undertaking and argued for a reduced amount as any such undertaking would "undermine the [*13]ability of a citizen to bring an action" challenging the apportionment of local districts. The court rejects his argument. The necessity of such a large undertaking is due to the plaintiff's delay in initiating the action. Had it been initiated in early January of 2023 the court{**79 Misc 3d at 571} would have been able to resolve the issues in the complaint without the necessity of a second primary election or modifying the dates on the political calendar to the detriment of defendants and the voters of Monroe County.

Despite plaintiff's argument that the court's refusal to grant injunctive relief "would be an abrogation of its responsibilities"^[FN28] the court must balance the equities involved in determining whether a preliminary injunction is warranted. Plaintiff has not met his heavy burden to show a likelihood of success, and absent such a showing a preliminary injunction cannot be issued. Furthermore, given the risk of voter disenfranchisement should the court adopt plaintiff's proposed schedule of Election Law deadlines to maintain the June 27th primary, or by ordering a second primary election, the equities do not favor the plaintiff.

The denial of the preliminary injunction does not deprive the plaintiff of his opportunity to proceed with his litigation seeking to invalidate the local law. However, the primary and general elections must proceed under the map defined by Local Law No. 3 of 2023 (absent intervention by the Appellate Division).{**79 Misc 3d at 572} Should plaintiff prevail after a trial, the court may then fashion an appropriate[*14] remedy.^[FN29]

Based upon the foregoing, the papers submitted, and the oral argument of the application on March 29, 2023, it is hereby ordered that the plaintiff's motion for a temporary restraining order and preliminary injunction is denied; and it is further ordered that any prayers for relief not specifically addressed herein are denied.

"A local law adopted by a county, city or town and subject to referendum on petition as provided in this section or in any other state statute, if not also subject to mandatory referendum, shall not take effect until at least forty-five days after its adoption; nor until approved by the affirmative vote of a majority of the qualified electors of the local government voting on a proposition for its approval if within forty-five days after its adoption there be filed with the clerk a petition protesting against such local law." (Municipal Home Rule Law § 24 [1] [a].)

The local law adopted by the defendants was subject to a permissive referendum (see Municipal Home Rule Law § 24 [2] [j]).

Footnote 15: NYSCEF Doc No. 28, plaintiff's reply mem of law at 21.

Footnote 16: The "reasonable regulations" are contained in Uncons Laws § 4221 et seq. These provisions clearly contemplate actions brought to challenge state legislative apportionment, not challenges to local apportionment laws. (See e.g. McKinney's Uncons Laws of NY § 4223, as added by L 1911, ch 773, § 3, as amended ["The court may enter an order directing any officer of the state charged with the duty of issuing notices of election to issue notices of any ensuing election in accordance with its determination" (emphasis added)].)

Footnote 17: