On Tuesday, September 17, the Second Circuit heard arguments in Team Kennedy v Berger, 24-2385. In New York, Kennedy is fighting to be on the ballot. The state courts had removed him, and a U.S. District Court had agreed with the state courts.

The three judges are Gerald E. Lynch (a Clinton appointee), and Beth Robinson and Sarah A. L. Merriam (Biden appointees). The panel had only allotted five minutes per side, but the argument was longer. Kennedy’s attorney correctly told the panel that if Kennedy does not appear on the New York ballot, then New Yorkers will be the only voters in the nation with only two presidential candidates’ names on the ballot. Kennedy’s attorney also made the argument that the New York definition of domicile, as applied to presidential candidates, is so narrow, the free speech provision of the First Amendment ought to protect Kennedy’s right to state his belief that he is domiciled in New York. The lower courts had rejected his ballot position because he had claimed domicile in New York.