Elfvin, Judge.
Plaintiff Rider filed a complaint against Ralph M. Mohr and Laurence F. Adamczyk, Commissioners of the Erie County Board of Elections, Ralph C. Lorigo, the Chairman of the Erie County Committee of the Conservative Party of the State of New York, and the Erie County Committee of the Conservative Party of New York State (collectively "defendants"), alleging that the defendants have violated his rights under the First and Fourteenth Amendment to the Constitution of the United States, and under 28 U.S.C. § 1983 by not allowing his name to appear on the ballot for the Conservative Party's primary elections scheduled for September 11, 2001. The State of New York is also joined as a defendant because the constitutionality of Election Law § 6-120(3) is being attacked. Francis M. Modica and Beverly A. Muscarella, duly enrolled members of the Conservative Party, join this action as plaintiffs arguing that their constitutional rights are being violated because, by not permitting Rider's name to appear on the primary ballot, they cannot vote for the candidate of their choice.
Rider is a duly enrolled member of the Republican Party and a candidate for the position of Councilman of the Town of Tonawanda. He filed with the Erie County Board of Elections a petition to be placed on the ballot of the Conservative Party, said petition containing the signatures of ninety-five members of said party residing in the Town of Tonawanda. This number represents approximately twice the number of registered Conservative Party voters required by law. Rider, who is not a member of the Conservative Party, was authorized by a committee of the Erie County Conservative Party to have his name appear on the ballot for the Conservative Party primary under section 6-120(3). Another non-member of the Conservative Party was also authorized by this committee. On July 16, 2000, Lorigo indicated to the Chairman of the Town of Tonawanda Republican Party that, as punishment for the involvement of the Republican Party in other unrelated countywide petitions, only one of the certificates of authorizations would be filed. The candidate chosen was not Rider.
On August 24, 2001 the Supreme Court of the State of New York, Erie County, in Lorigo v. Adamczyk, index number 2001/7675, directed the removal of Rider's name from the election ballot based upon the lack of a certificate authorizing the designation pursuant to section 6-120(3). Rider then filed the instant action and applied to this Court for a preliminary injunction preventing the Erie County Board of Elections and its Commissioners Mohr and Adamczyk from mailing out absentee and military ballots for the September 11, 2001 primary which do not contain his name and from removing his name from the official ballots and voting machines.
The party "seeking a preliminary injunction must establish that it will suffer irreparable harm in the absence of an injunction and demonstrate either (1) `likelihood of success on the merits' or (2) `sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of the hardships tipping decidedly in the movant's favor.'" Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996), quoting Waldman Publishing Corp. v. Landoll, Inc., 43 F.3d 775, 779-780 (2d Cir. 1994). Further the party seeking the injunction must show a "clear" or "substantial" likelihood of success where the injunction sought is either (1) mandatory — i.e., it will "alter, rather than maintain, the status quo," or (2) where it will "provide the movant with substantially all the relief sought, and that relief cannot be undone even if the defendant prevails at a trial on the merits." Jolly, at 473 quoting Tom Doherty Associates, Inc. v. Saban Entertainment Inc., 60 F.3d 27, 33-34 (2d Cir. 1995).
Section 6-120(3) provides that
"[t]he members of the party committee representing the political subdivision of the office for which a designation or nomination is to be made *** may, by a majority vote of those present at such meeting provided a quorum is present, authorize the designation or nomination of a person as candidate for any office who is not enrolled as a member of such party ***."
Here, even if this Court was to assume that there is in fact a federal question, the injunction will be denied because there is no likelihood of success on the merits. Facial attacks to the Constitutionality of section 6-120(3) have long failed in the Second Circuit. Clark v. Rose, 379 F. Supp. 73, 76-77 (S.D.N.Y. 1974), aff'd, 531 F.2d 56, 57-58 (2d. Cir. 1976). Rider acknowledges this precedent and tries to avoid it by arguing that section 6-120(3) is unconstitutional as applied to him. Specifically, he claims that his constitutional rights were violated because the committee approved his nomination but Lorigo refused to file it.
This Court is unconvinced that Rider, by attacking the statute as unconstitutional as applied to him instead of on its face, has met his burden to show a probability of success on the merits. Even though Clark held that section 6-120(3) was facially valid, the holding was written broad enough to encompass and withstand the present challenge to its application. Clark recognized that "a state such as New York has a `legitimate interest in regulating the number of candidates on the ballot'", Clark at 76, quoting Bullock v. Carter, 405 U.S. 134, 145 (1972), and in "`avoiding confusion, deception, and even frustration of the democratic process. . .' that can result from the excessive number of non-party candidates." Clark at 76, quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971). All of these concerns are present here. Rider was not a member of the Conservative Party and, even though the committee may have felt that he was in line with their political ideals, Lorigo did not. He has a duty to the members of his party to prevent candidates from deceiving them into thinking that he or she is in line with their political philosophy when in fact they are not. Also, while the committee may not have been concerned with the excessive number of names on the ballot, Lorigo may have been. Therefore, Rider's attempt to attack the statute as applied to him will fail for the same reasons as will a facial attack to the statute. Because plaintiffs have not shown that there is a probability of their success on the merits as is necessary for a preliminary injunction, their application for injunctive relief will be denied.
Accordingly it is hereby ORDERED that plaintiffs' motion for a preliminary injunction preventing the defendants from mailing out additional absentee ballots without his name or from removing his name from voting machines is hereby denied.