THE STATUTE ALLOWING ONLY MEMBERS OF THE RELEVANT PARTY TO SUBMIT WRITE-IN BALLOTS IN A PRIMARY ELECTION IS CONSTITUTIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional:

The statute, which became effective on October 8, 2021, amended three sections of the Election Law to limit the universe of permissible write-in primary votes to enrolled members of the relevant party. Election Law § 6-164 was amended to specify that the opportunity to ballot process could be carried out on behalf of only candidates enrolled in the relevant party (see L 2021, ch 480, § 1). Section 6-166 (2) was amended to change the language required on the opportunity to ballot petition correspondingly (see L 2021, ch 480,§ 2). Finally, section 8-308 was amended to state: “A write-in ballot cast in a party primary for a candidate not enrolled in such party shall be void and not counted” (Election Law § 8-308 [4]; see L 2021, ch 480, § 3). * * *

… [T]he intended effect of the statute is to limit the universe of permissible write-in candidates in a party primary election to individuals who are members of that party. Political parties have protected associational rights, which include the right to identify their own members and to select candidates who best represent their ideals and preferences … and the “right to exclude non-members from their candidate nomination process” … . We conclude that the restrictions imposed by the statute were intended to protect those rights, and that petitioners have no associational right to involve non-members in the nomination process of their parties … .  Matter of Kowal v Mohr, 2023 NY Slip Op 02480, Fourth Dept 5-9-23

Practice Point: The statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional.