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RESPONDENT CANDIDATE FOR THE NYS ASSEMBLY DID NOT DEMONSTRATE HE MAINTAINED A RESIDENCE IN NEW YORK FOR FIVE YEARS; PETITIONERS’ APPLICATION TO INVALIDATE RESPONDENT’S CANDIDACY SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined respondent, a candidate for the NYS Assembly, did not establish he maintained a residence in New York for five years. Therefore the petitioners’ application to invalidate respondent’s candidacy should have been granted:

Petitioners brought this proceeding pursuant to Election Law § 16-102 to declare invalid the designating petitions naming respondent. Petitioners alleged that, because respondent lived continuously in Illinois from 2009 until 2016, he failed to satisfy the New York residency requirements of article III (§ 7) of the State Constitution. Section 7 provides: “No person shall serve as a member of the legislature unless he or she . . . has been a resident of the state of New York for five years” … . …

Petitioner presented evidence that, in April 2009, respondent left Germany and briefly relocated to Albany, New York, the home of his father and aunt. He visited there for approximately four months until August 2009, at which time he moved to Chicago, Illinois. Respondent took up residence … [in] Chicago, Illinois, from which he: obtained an Illinois driver’s license; registered to vote in the State of Illinois; enrolled in a graduate school program; obtained employment; paid Illinois state and Federal income taxes using the Chicago residence address; and obtained a cell phone with a Chicago area code.

We note that respondent’s having voted in Illinois during the five year period preceding the upcoming election is inconsistent with his claim to have maintained New York as his residence throughout that five year period … . While we have held that being registered to vote in another state, standing alone, is not necessarily dispositive … , in this case, respondent’s time in Illinois … does not support his argument that he “always intended to return” to New York as required by Election Law § 1-104 (22). Matter of Patch v Bobilin, 2020 NY Slip Op 05172, First Dept 9-29-20

 

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BECAUSE THE DESIGNATING PETITIONS OF THE INITIAL CANDIDATE FOR STATE SENATE WERE INVALIDATED, THE PETITION TO VALIDATE CERTIFICATES OF SUBSTITUTION FOR ANOTHER CANDIDATE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition to validate certificates of substitution for a candidate (Sammut) for State Senate after the designating petitions of the initial candidate (LaLota) were invalidated should not have been granted. Because there was no valid designating petition, substitution was barred:

“[P]ursuant to Election Law § 6-148(1), a valid designating petition is a prerequisite to the creation of a vacancy” … . Where a designating petition is ” invalid,'” another candidate may not be substituted by a committee to fill vacancies … . On the prior appeal, we specifically granted the appellants’ petition to invalidate LaLota’s designating petitions. * * *

Moreover, Election Law § 3-200(6) provides: “An election commissioner shall not be a candidate for any elective office which he [or she] would not be entitled to hold under the provisions of [Election Law article 3], unless he [or she] has ceased by resignation or otherwise, to be commissioner prior to his [or her] nomination or designation therefor. Otherwise such nomination or designation shall be null and void” … . Where an original nomination or designation is void, no vacancy is created which can be filled by substitution … .  Matter of Ferrandino v Sammut, 2020 NY Slip Op 04229, Second Dept 7-23-20

 

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GOVERNOR HAD THE AUTHORITY TO CANCEL THE SPECIAL ELECTION FOR QUEENS BOROUGH PRESIDENT IN RESPONSE TO THE COVID-19 PANDEMIC (SECOND DEPT).

The Second Department, converting the Article 78 proceeding to a declaratory judgment action, determined the Executive Order canceling the June, 2020, special election for Queens Borough President was a valid exercise of the Governor’s authority in response to the COVID-19 pandemic:

… [T]he Governor demonstrated, prima facie, that the canceling of the special election, which would have been held pursuant to New York City Charter § 81, was the minimum deviation necessary to assist or aid in coping with the COVID-19 pandemic, and was authorized pursuant to the emergency powers granted to the Governor by Executive Law § 29-a(1). Additionally, to the extent that New York City Charter § 81 required the special election to be held, pursuant to the language of Executive Order (Cuomo) No. 202.3 (9 NYCRR 8.202.3), those provisions of the New York City Charter have been suspended … . Matter of Dao Yin v Cuomo, 2020 NY Slip Op 03046, Second Dept 5-28-20

 

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THE ‘COVID-19’ EXECUTIVE ORDER GENERALLY TOLLING THE STATUTE OF LIMITATIONS DID NOT EXTEND THE TIME FOR FILING A PETITION TO VALIDATE A DESIGNATING PETITION, WHICH IS GOVERNED BY ANOTHER ‘COVID-19’ EXECUTIVE ORDER (SECOND DEPT). ​

The Second Department determined the petition to validate the appellant’s designating petition was not timely commenced pursuant to Executive Order No. 202.8 passed in response to the COVID-19 pandemic:

… [T]he statute of limitations for commencing this Election Law article 16 proceeding was not tolled by a provision of Executive Order (Cuomo) No. 202.8 (9 NYCRR 8.202.8), issued on March 20, 2020, in response to the COVID-19 pandemic, which generally tolled limitations periods. Rather, this matter is governed by chapter 24 of the Laws of 2020, passed by the Legislature and signed into law by the Governor two days before the issuance of Executive Order No. 202.8, also in response to the COVID-19 pandemic … . That legislation set a new date for the filing of designating petitions and specifically provided that the time to commence an Election Law article 16 proceeding “shall be adjusted accordingly” … . Indeed, tolling the statute of limitations when the primary election will take place on June 23, 2020, is unworkable … for commencing Election Law article 16 proceedings, pertaining to the validity of designating petitions. We note that while the courts ceased accepting papers for filing in many legal matters due to the pandemic, they continued to accept filings of emergency Election Law applications, as such matters were deemed “essential” by the Chief Administrative Judge … . Matter of Echevarria v Board of Elections in the City of N.Y., 2020 NY Slip Op 02992, Second Dept 5-21-20

 

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DESIGNATING PETITION PERMEATED BY FRAUD INVALIDATED; THREE JUDGE DISSENT (CT APP).

The Court of Appeals, in an opinion per curiam, reversing the Appellate Division, over a three-judge dissent, determined the designating petition was permeated by fraud and must be invalidated:

… [W]here appropriate, a court may … conclude that, “because of its magnitude[,]” fraud and irregularity established by clear and convincing evidence “so permeated’ the [designating] petition as a whole to call for its invalidation” … .

Based on the undisputed facts of this matter, which establish, among other things, “that 512 out of 944 signatures submitted in the [designating] petition are backdated to dates preceding the candidate’s receipt of the blank petition pages,” and that “14 of the 28 subscribing witnesses” swore that those signatures were placed on the designating petition before the blank petition pages were obtained from the printer (… cf. Election Law § 6-134 [3]), the lower courts should have concluded that this is one of those rare instances in which the designating petition is so “permeated” by fraud “as a whole as to call for its invalidation” … . Matter of Ferreyra v Arroyo, 2020 NY Slip Op 02994, CtApp 5-21-20

 

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DESPITE THE HARDSHIP IMPOSED BY THE COVID-19 PANDEMIC, THE FAILURE TO TIMELY FILE A COVER SHEET ACCOMPANYING A DESIGNATING PETITION IS A FATAL DEFECT (CT APP).

The Court of Appeals, in an opinion per curiam, reversing the First Department and affirmed the Third Department, over two comprehensive dissenting opinions, determined that, despite the hardship imposed by Covid-19, the failure to timely file a cover sheet accompanying a designating petition is a fatal defect:

In Matter of Seawright v Board of Elections in the City of New York, the Appellate Division, First Department, held that — in light of the “unique circumstances” created by the COVID-19 pandemic — the candidate’s belated filing of a cover sheet and certificate of acceptance did not constitute a fatal defect (2020 NY Slip Op 02900, *1 [1st Dept May 14, 2020]). In Matter of Hawatmeh v New York State Board of Elections, the Appellate Division, Third Department, rejected the First Department’s approach and reached the opposite conclusion, holding that — notwithstanding the “unprecedented circumstances created by the COVID-19 pandemic” — the candidate’s belated filing of a certificate of acceptance was a fatal defect (2020 NY Slip Op 02907, *1-2 [3d Dept May 15, 2020]). …

We granted leave to resolve this departmental split. We now reverse in Seawright and affirm in Hawatmeh. * * *

The COVID-19 pandemic has undoubtedly presented uniquely challenging circumstances for Seawright and Hawatmeh — among countless other candidates for public office. Nonetheless, as in our prior cases, we remain constrained by the express directive of the Election Law: the complete failure to file, by the applicable deadline, either a cover sheet with a designating petition or a certificate of acceptance constitutes a “fatal defect” (Election Law § 1-106 [2]). The First Department’s analysis, employed in Seawright, Mejia (___ NY3d ___ [decided herewith]), and Mujumder (___ NY3d ___ [decided herewith]), directly conflicts with that well-established statutory mandate … . Matter of Seawright v Board of Elections in the City of New York, 2020 NY Slip Op 02993, CtApp 5-21-20

 

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FAILURE TO FILE A COVER SHEET ACCOMPANYING A DESIGNATING PETITION IS A FATAL DEFECT (CT APP).

The Court of Appeals reversing these two election matters, determined the failure to timely file a cover sheet accompanying a designating petition is a fatal defect:

For the reasons stated in Matter of Seawright v Board of Elections in the City of New York (____ NY3d ____ [decided herewith]), the failure to timely file a cover sheet accompanying a designating petition constitutes a fatal defect.

For each case: Order reversed, without costs, and petition to validate the designating petitions denied, in a memorandum. Chief Judge DiFiore and Judges Stein, Fahey, Garcia and Feinman concur. Judge Wilson dissents for reasons stated in his dissenting opinion in Matter of Seawright v Board of Elections in the City of New York and Matter of Hawatmeh v New York State Board of Elections (decided today). Matter of Mejia v Board of Elections in the City of New York, 2020 NY Slip Op 02995, CtApp 5-21-20

 

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OBJECTIONS TO A DESIGNATING PETITION WERE NOT SERVED BY CERTIFIED OR REGISTERED MAIL AS REQUIRED BY THE ELECTION LAW AND WERE NOT TIMELY SERVED UNDER THE TERMS OF THE ELECTION LAW (THIRD DEPT).

The Third Department determined service of objections to the Weinstock designating petition by express mail overnight was not the equivalent of service by registered or certified mail as required by the Election Law. The court also determined that the proceeding was not timely commenced:

Although petitioners argue that express mail overnight is the “functional equivalent” of registered or certified mail, the provisions of 9 NYCRR 6204.1 (b), which are “mandatory and may not be disregarded”… , as well as the service requirements set forth in Election Law § 6-154 (2), have long required strict and literal compliance … . …

“A petitioner raising a challenge under Election Law § 16-102 must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)” … . In order to properly complete service, actual delivery must occur no later than the last day upon which the proceeding may be commenced …— here, April 3, 2020.

As evidenced by the proofs of delivery contained in the record on appeal, the order to show cause and the accompanying petition were delivered to Weinstock on April 4, 2020 and to the State Board on April 6, 2020. Inasmuch as service was not completed within the statutory period ending on April 3, 2020, Supreme Court properly found that this proceeding was not timely commenced … . Matter of Sauberman v Weinstock, 2020 NY Slip Op 02906, Third Dept 5-15-20

 

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FAILURE TO TIMELY FILE A CERTIFICATE OF ACCEPTANCE OF A DESIGNATION REQUIRED INVALIDATION OF THE DESIGNATING PETITION, NOTWITHSTANDING A REASONABLE EXPLANATION OF THE ONE-DAY-LATE MAILING DUE TO COVID-19 (THIRD DEPT).

The Third Department determined the COVID-19 crisis did not excuse the late filing of a certificate of acceptance of a designation. The designating petition was properly invalidated:

… [P]etitioner was required to file her certificate of acceptance of designation no later than March 24, 2020 (see Election Law § 6-158 [2]). Although petitioner completed the acceptance form on March 24, 2020, the record confirms, and petitioner does not dispute, that it was mailed on March 25, 2020. As the acceptance was not “postmarked prior to midnight of the last day of filing,” her acceptance was untimely (Election Law § 1-106 [1]). Contrary to petitioner’s contention and the dissent’s characterization, the failure to abide by the prescribed timelines set forth in the Election Law for the filing of a certificate of acceptance is not a technical violation, but, by the plain statutory language, “a fatal defect” (Election Law § 1-106 [2] …). …

Citing to the unprecedented circumstances created by the COVID-19 pandemic, petitioner also seeks equitable relief to have her acceptance deemed timely filed. We are sympathetic to the difficult situation that petitioner was placed in due to the pandemic and the shortened political calendar but, even assuming that she has articulated a reasonable explanation for her untimely filing of the certificate of acceptance, the equitable remedy that she seeks is unavailable. Matter of Hawatmeh v New York State Bd. of Elections, 2020 NY Slip Op 02907, Third Dept 5-15-20

 

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TAKING A LEAVE OF ABSENCE FROM A POSITION ON THE COUNTY BOARD OF ELECTIONS TO RUN FOR STATE SENATE IS NOT THE EQUIVALENT OF RESIGNING FROM THE BOARD OF ELECTIONS, WHICH IS REQUIRED BY THE ELECTION LAW; THE DESIGNATING PETITION SHOULD HAVE BEEN INVALIDATED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the designating petition of LaLota should have been invalidated under the provisions of the Election Law. LoLota was a Commissioner of the Suffolk County Board of Elections. He took a “leave of absence” from that position to allow him to seek office as a State Senator. The Second Department held that taking a leave of absence was not the equivalent of resigning, which is required by the Election Law:

The purpose of the statute is readily apparent—to prevent the conflict of interest, and potential abuse of authority, that would arise if a person is simultaneously both a candidate for public office and an election commissioner charged with the responsibility for overseeing the casting and canvassing of votes for that office. The concern that the statute addresses would not be assuaged by an election commissioner simply stepping aside momentarily while reserving the right to act as commissioner at any time of his or her own choosing. Additionally, because the Deputy Commissioner is appointed by, and serves at the pleasure of, the Commissioner … , LaLota’s designation of his deputy to act for him during his leave of absence does not serve to ameliorate the conflict of interest concerns against which the statute seeks to guard. Matter of LaLota v New York State Bd. of Elections, 2020 NY Slip Op 02905, Second Dept 5-15-20

 

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