United States District Court, D. Massachusetts
DR. SHIVA AYYADURAI
THE UNIVERSITY OF MASSACHUSETTS, MARTY MEEHAN, and DAVID CASH
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR A
RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE
Shiva Ayyadurai brought this equitable action against the
University of Massachusetts, its President, Marty Meehan, and
Dean David Cash,  alleging that his exclusion by the
University from three publicly televised U.S. Senate
candidate debates violates the First and Fourteenth
Amendments of the U.S. Constitution. He prays for injunctive
relief in the form of a court order compelling the sponsors
of the debates to include him as a co-equal participant in
the remaining debate(s).
Ayyadurai is running as an Independent for the Massachusetts
Senate seat presently occupied by Senator Elizabeth Warren.
Compl. ¶ 2. His is a serious candidacy. He has raised
roughly $5 million in campaign contributions, recruited a
campaign organization, and has earned some media attention
from, among other publications, the Boston Globe and the New
York Times. Compl. ¶ 13. In the three most recent polls
conducted by Boston Globe/Suffolk University, WBUR/MASSInc,
and UMASS Lowell/Boston Globe, Dr. Ayyadurai was preferred by
5%, 3%, and 8% of potential voters, respectively. Pl.'s
Suppl. Br., Ex. B (dkt # 22-2) App. A.
August 30, 2018, Dr. Ayyadurai was invited by Dean Cash to
take part in an October 15, 2018 televised debate, contingent
upon his showing of a threshold level of support in a
reputable voter survey. Compl. ¶ 17. On September 5,
2018, before the invitation was formalized or withdrawn,
Senator Warren announced she would not participate and the
debate was cancelled.
second Senatorial candidate debate was hosted by The Western
Massachusetts Media Consortium on October 21, 2018. Dr.
Ayyadurai was not invited. However, as the court noted at the
October 3, 2018 hearing on the instant motion, the University
of Massachusetts played no role in the planning or
sponsorship of the debate, and consequently, Dr. Ayyudarai
had no constitutional standing to challenge his
not the case, however, with a final debate being planned for
October 30, 2018. While WCVB-TV is the principal organizer of
this debate, the station is working with the University
(through President Meehan's Office), in addition to the
Boston Globe and Western Mass. News, in planning the event.
While the University claims that its role is limited to
decisions regarding the use of its mark in branding and
publicizing the event, and the designating of a
University-affiliated panelist-moderator, these are
sufficient indicia of State participation, at least for
present purposes, to implicate constitutional norms and
October 2, 2018, the debate hosts announced four criteria to
be used in determining the eligibility of a candidate to
participate. See Pl.'s Suppl. Decl. Ex. 2 (dkt #
17-2). First, the candidate must be qualified, meaning that
he or she is on the ballot and eligible to serve as a United
States Senator. Second, “[t]he candidate must have
clear evidence of a formal campaign.” Id.
Third, the candidate must have the support of at least 10% of
likely voters in two recent independent polls published by
October 19, 2018. Finally, the candidate must have raised at
least $50, 000 in individual contributions. It is conceded by
defendants that Dr. Ayyadurai meets all but the third
test governing the award of a preliminary injunction . . .
requires consideration of (1) the movant's likelihood of
success on the merits, (2) the potential for irreparable
harm, (3) a balancing of the relevant equities, and (4) the
effect on the public interest.” Campbell Soup Co.
v. Giles, 47 F.3d 467, 470 (1st Cir. 1995).
“Likelihood of success is the main bearing wall of the
four-factor framework.” Ross-Simons of Warwick,
Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996).
This is one of those instances in which a Supreme Court
decision is squarely on point: To succeed, Dr. Ayyadurai must
prove that the criteria under which he was excluded from the
October 30 debate are not reasonable or viewpoint neutral.
Arkansas Educ. Television Comm'n v. Forbes, 523
U.S. 666, 682 (1998) (“To be consistent with the First
Amendment, the exclusion of a speaker from a nonpublic forum
must not be based on the speaker's viewpoint and must
otherwise be reasonable in light of the purpose of the
challenging the criteria, Dr. Ayyadurai focuses, as would be
expected, on the polling requirement, arguing that it is
unreasonable as it sets an arbitrary threshold of 10% that
most independent candidates would find
insurmountable. He also relies on the opinion of Dr.
Devavrat Shah, a Massachusetts Institute of Technology
statistician, that the post-primary polls err in calculating
head-to-head favorability as a function of the total number
of respondents regardless of their familiarity with Dr.
Ayyadurai's name. In Dr. Shah's view, favorability
should be determined by dividing a candidate's favorables
by the number of respondents who recognize his or her
name. Putting aside that a candidate's
visibility a month before election day is a fair measure of a
political campaign's success,  Dr. Shah overlooks the fact
that perfect knowledge of the competing candidates is not a
prerequisite in the actual voting.
second argument, Dr. Ayyadurai advances the non sequitur that
because the eligibility criteria, however neutral they may
appear on their face, operate to exclude only him from the
debate, it follows that they are not viewpoint neutral. Why
it so follows is never explained. His political and social
views, whatever they may be, are no doubt personal and
idiosyncratic to him, and may differ in many material
respects from those of the major party candidates. But he
offers no evidence that animus towards a particular opinion
or opinions that he holds motivated the debate sponsors in
setting the 10% polling eligibility threshold.
the legitimacy of the threshold itself, Arkansas Educ.
Television Comm'n is directly on point. In that
case, the Supreme Court held that a state-owned public
television broadcaster's decision to exclude an
independent political candidate “was a reasonable,
viewpoint-neutral exercise of journalistic discretion.”
523 U.S. at 669. There, the Court observed that the
disappointed candidate's lack of public support, meager
financial backing, and limited media coverage justified the
conclusion that he “was excluded not because of his
viewpoint but because he had generated no appreciable public
interest.” Id. at 682. Here, the criteria used
- requiring qualified candidates with a formal campaign and
demonstrated public and monetary support - are similarly
reasonable, including the ten percent threshold in public
polling.See Johnson v. Suffolk Univ.,
2002 WL 31426734, at *2 (D. Mass. 2002) (upholding the
“[e]xclusion of a candidate because her candidacy has
generated no appreciable voter interest, according to
objective criteria, ” namely at least 15% standing in
the relevant polls). In short, the ...