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BUFFALO MAYOR’S CONSTITUTIONAL CHALLENGE TO THE ELECTION-LAW DEADLINE FOR FILING AN INDEPENDENT NOMINATING PETITION, WHICH WAS ACCEPTED BY SUPREME COURT, REJECTED BY THE 4TH DEPARTMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined Election Law 6-158 (9) was not unconstitutional as applied to a Buffalo mayoral race. The petitioner, who had lost in a primary, attempted to file an independent nominating petition in August but the Election Law required filing in May:

The degree of scrutiny used to analyze the constitutionality of a state election regulation depends on the severity of the regulation’s burden on the constitutional rights of candidates and their supporters … . If that burden is severe, the law “must be narrowly drawn to advance a state interest of compelling importance” … . A provision imposing “only reasonable, nondiscriminatory restrictions,” however, can be justified by a state’s “important regulatory interests” … and is subject to a review that is “quite deferential” and requires “no elaborate, empirical verification” … . The totality of a state’s overall plan of election regulation should be considered in determining the severity of the restrictions … . * * *

Because a “reasonably diligent candidate” could be expected to meet New York’s requirements for independent candidates and gain a place on the ballot … and because those requirements do not unfairly discriminate against independent candidates … , we conclude that Election Law § 6-158 (9) places only a minimal burden on the constitutional rights of those candidates and their voters. Matter of Brown v Erie County Bd. of Elections, 2021 NY Slip Op 05014, Fourth Dept 9-16-21

 

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IN THIS ELECTION LAW CASE, THE SIGNATORIES’ NAMES WERE PRINTED ON THE DESIGNATING PETITION BUT WERE INSCRIBED ON THE VOTER REGISTRATION FORMS; SUPREME COURT PROPERLY ACCEPTED PROOF THAT THE SIGNATORIES WHOSE NAMES WERE PRINTED WERE IN FACT THE SAME AS THOSE WHOSE SIGNATURES WERE ON THE REGISTRATION FORMS (FOURTH DEPT).

The Fourth Department determined Supreme Court properly received evidence that signatories whose names were printed on the independent nominating petition were in fact the same as those whose signatures were inscribed on the voter registration forms:

It is well settled that [t]o prevent fraud and allow for a meaningful comparison of signatures when challenged, a signature on a designating petition should be made in the same manner as on that signatory’s registration form” … . Nevertheless, where there is “credible evidence from the signatories or from any of the subscribing witnesses attesting to the fact that the individuals who signed the registration forms were the same individuals whose signatures appeared on the independent nominating petition,” the signatures are valid, notwithstanding a discrepancy with the voter registration forms … . Here, respondents submitted affidavits from 21 of the 47 signatories with printed signatures in which they attested that they were the same individuals whose signatures appeared on the independent nominating petition. Based on those affidavits, which the court properly received in evidence, we conclude that the court did not err in determining that petitioner failed to meet her burden of proof with respect to the invalidity of those 21 signatures … . Matter of Maclay v Dipasquale, 2021 NY Slip Op 05013, Fourth Dept 9-16-21

 

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SUPREME COURT PROPERLY ANNULLED THE ELECTION BOARD’S DESIGNATION OF AN EARLY VOTING POLLING PLACE BECAUSE THE BOARD DID NOT DEMONSTRATE THE LOCATION MET THE ELECTION LAW REQUIREMENTS MANDATING A LOCATION ACCESSIBLE TO CITY RESIDENTS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined Supreme Court properly annulled the determination of the Rensselaer County Board of Elections designating an early voting polling pace pursuant to Election Law section 8-600. The 3rd Department also granted the motion to intervene in the Article 78 proceeding brought by the NAACP and three minority and/or disabled residents who argued for a polling place accessible to city residents dependent on public transportation:

… [I]n designating early voting polling places, the Board “shall have at least one polling place” in the City (as Rensselaer County’s most populous municipality) and, because the City has public transportation, “such polling place shall be situated along such transportation routes” (Election Law § 8-600 [2] [a]). Election Law § 8-600 (2) (e) further states that any early voting polling place “shall be located so that voters in the county have adequate and equitable access, taking into consideration population density, travel time to the polling place, proximity to other early voting poll sites, public transportation routes, commuter traffic patterns and such other factors the board of elections deems appropriate” (see 9 NYCRR 6211.1 [c]). * * *

… [W]e conclude that the Board did not adequately address “whether the early voting site[s are] on or near public transportation” (9 NYCRR 6211.1 [c] [2] [iv]). The failure to address that mandatory factor “precludes meaningful review of the rationality of” the Board’s siting determination, renders the decision arbitrary and capricious and, by itself, warrants annulment … . The Board failed to meaningfully address most of the other factors as well. Accordingly, Supreme Court properly granted the petition and annulled the Board’s determination designating early voting polling places for the 2021 election … . Matter of People of the State of New York v Schofield, 2021 NY Slip Op 04785, Third Dept 8-26-21

 

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THE STATUTE OF LIMITATIONS FOR SERVICE OF THE PETITION TO INVALIDATE A CERTIFICATE OF NOMINATION RAN OUT ON JULY 12; THE FACT THAT THE ORDER TO SHOW CAUSE ORDERED SERVICE BY JULY 19 DID NOT EXTEND THE STATUTE OF LIMITATIONS BEYOND JULY 12 (THIRD DEPT).

The Third Department determined the petition to invalidate a certificate of nomination was properly dismissed as untimely. The fact that the order to show cause directing service of the petition by a date which was beyond the statute of limitation was of no consequence:

… Election Law § 16-102 (2) provides … that “[a] proceeding with respect to a primary, convention, meeting of a party committee, or caucus shall be instituted within [10] days after the holding of such primary or convention or the filing of the certificate of nominations made at such caucus or meeting of a party committee.” A special proceeding, in turn, is commenced by the filing of a petition … . Notably, “[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” … . As the certificate of nomination … was filed on July 2, 2021, the last day upon which to commence this proceeding was July 12, 2021.

Even accepting as true that the petition was timely filed on July 12, 2021, the fact remains … that none of the named respondents was served with the petition prior to the expiration of the statute of limitations. To the extent that petitioners rely upon the service provisions embodied in the order to show cause, which permitted service by various means on or before July 19, 2021, such reliance is misplaced. A court cannot extend the time within which to commence an action or proceeding (see CPLR 201 ,,,). Matter of Facteau v Clinton County Bd. of Elections, 2021 NY Slip Op 04743, Third Dept 8-18-21

 

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THE DESIGNATING PETITIONS INCLUDED THE NAMES OF CANDIDATES WHO DID NOT AGREE TO BE LISTED; THE PETITIONS WERE THEREFORE PROPERLY INVALIDATED ON THE GROUND OF FRAUD (SECOND DEPT).

The Second Department determined Supreme Court properly invalidated appellants’ designating petitions because they included the names of candidates who did not consent to be listed on the petitions:

… [A] designating petition will be invalidated upon a showing that the entire petition is permeated with fraud … . Here, the petitioners demonstrated by clear and convincing evidence that the designating petitions of the appellants … were permeated with fraud, as it is undisputed that those designating petitions included the names of several candidates who never affirmatively agreed to be listed thereon, and the hearing evidence amply supported the Supreme Court’s determination that their inclusion was intentional and designed to mislead others. Thus, these designating petitions were properly invalidated on the ground of fraud … . Matter of Ariola v Maio, 2021 NY Slip Op 03988, Second Dept 6-17-21

 

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THE DESIGNATING PETITION WAS PERMEATED BY FRAUD AND SHOULD HAVE BEEN INVALIDATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the designating petition was permeated by fraud and should have been invalidated:

… [P]etitioner submitted clear and convincing evidence demonstrating that several subscribing witnesses attested to many signatures on the designating petition that they had not actually witnessed, and thus we agree with petitioner that the candidate’s designating petition is permeated with fraud. The parties correctly agree that the candidate was required to obtain signatures from 600 voters registered in the Democratic Party … . Numerous subscribing witnesses, acting on the candidate’s behalf, gathered 1,657 signatures, approximately 700 of which the Board invalidated. Petitioner challenged the signatures collected by five subscribing witnesses, who collected the overwhelming majority of the signatures on the designating petition; indeed, only slightly less than 200 valid signatures were collected by all of the other people who circulated petitions for the candidate. Supreme Court concluded that numerous signatures collected by those five subscribing witnesses were fraudulently procured for various reasons, including that there was no such voter, the voter had died, the voter had signed the designating petition more than once, or the voter was not the person who signed the designating petition. …

It is well settled that, “where the court finds misrepresentations in numerous instances, as it finds here, and nothing is [established] in rebuttal, it may well indulge in the presumption that there were many other misrepresentations and irregularities which time did not permit to be uncovered … . ” Matter of Saunders v Mansouri, 2021 NY Slip Op 03157, Fourth Dept 5-18-21

 

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INCONSEQUENTIAL VIOLATIONS OF THE ELECTION LAW DID NOT INVALIDATE THE DESIGNATING PETITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the inclusion of extraneous district numbers under the names of the candidates did not invalidate the designating petition:

Election Law § 6-134, setting forth rules for designating petitions, states that its provisions “shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud” … . Further, an error in the required information for a designating petition is not grounds for invalidation when the designating petition is sufficiently informative to preclude confusion or deception of the signers or the BOE [NYC Board of Elections] … . Thus, when an innocent and inconsequential violation of a technical rule of the Election Law pertaining to designating petitions is involved, by which a candidate has nothing to gain, and the violation creates no difficulty in reviewing the designating petition for its validity and accuracy and presents no potential for fraud or prejudice, said violation must be deemed inconsequential and the designating petition should be said to have complied with the requirements of the Election Law … . Applying this standard to the circumstances presented herein, we find that the extraneous inclusion in the designating petition pages of election district numbers is inconsequential … . Matter of Wagner v Elasser, 2021 NY Slip Op 03135, Second Dept 5-12-21

 

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THE FAILURE TO INCLUDE THE DATE OF THE PRIMARY ELECTION IN THE CERTIFICATE OF AUTHORIZATION DID NOT INVALIDATE IT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the fact that the date of the primary election was not stated on the certificate of authorization did not invalidate it:

… [T]he statute at issue here, Election Law § 6-120 (3), does not specifically prescribe that the date of the primary election be specified in the certificate of authorization … . We therefore conclude that there was substantial compliance with section 6-120 (3) inasmuch as the omission of the date of the primary election was ” ‘neither a defect invalidating the certificate nor a matter presenting an opportunity for prejudice or possibility of fraud’ ” … . Further, “[t]here is no question that the objectives of Election Law § 6-120 (3) were met here, as no issue was raised as to whether the subject authorization expressed the will of the party committee of the political subdivision involved” … . Matter of Kowal v Bargnesi, 2021 NY Slip Op 03014, Fourth Dept 5-11-21

 

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THE COUNTY CHARTER PROVISION PROHIBITING SERVICE AS A COUNTY LEGISLATOR “FOR MORE THAN 12 CONSECUTIVE YEARS” DOES NOT PRECLUDE A NEW TERM THAT IS NOT CONSECUTIVE TO THE PRECEDING TERM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the provision of the Suffolk County Charter which prohibits serving as a county legislature “for more than 12 consecutive years” did not preclude petitioner from running for a new term that was not consecutive to the preceding term:

“[T]he plain language of the statute . . . is the clearest indication of legislative intent” … .Here, the relevant provision of the Suffolk County Charter states that “[n]o person shall serve as a County Legislator for more than 12 consecutive years” (Suffolk County Charter art II, § C2-5[B]). This provision does not expressly impose any total or lifetime term limit. Further, the plain language of the provision only prohibits a County Legislator from serving more than 12 consecutive years. In construing a statute, “words must be ‘harmonize[d]’ and read together to avoid surplusage” … . Therefore, the provision should not be interpreted as prohibiting an individual who has previously served as a County Legislator for 12 consecutive years from thereafter seeking a new term in that office, so long as the new term sought is not consecutive to the preceding term … . Matter of Doyle v Browning, 2021 NY Slip Op 02838, Second Dept 5-5-21

 

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PETITIONER, A JOURNALIST, UNDER THE ELECTION LAW, DID NOT HAVE THE CAPACITY OR STANDING TO EXAMINE 353 BALLOTS CAST IN THE PRIMARY ELECTION FOR QUEENS COUNTY DISTRICT ATTORNEY, WHICH WAS WON BY ONLY 55 VOTES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Wooten, determined petitioner, a journalist, was not entitled under the Election Law to examine 353 ballots cast in the primary election for Queens County District Attorney which was won by only 55 votes:

Election Law § 16-112 … only empowers the court to direct the examination of a ballot by a candidate whose name appeared thereon (or his or her agent). Thus, insofar as Election Law § 3-222 provides that voted ballots may be examined by court order, the court would not be empowered to direct the examination of ballots by the petitioner, who was not a candidate (or a designated agent of a candidate). Further, the petitioner has not set forth a purpose for examination of the affidavit ballots which could possibly have been intended by the legislature in enacting Election Law § 3-222 … .

Moreover, insofar as the petitioner does not claim to have any interest in the outcome of the primary election, the petitioner has failed to set forth any injury which the subject proceeding is intended to address so as to confer standing. In fact, the petitioner has not set forth any interest different from any other member of the public, aside from his desire to obtain access to information to aid in his career as a journalist. Moreover, any determination that the petitioner has standing to petition the court for access to the affidavit ballots at issue would be in contravention of the legislature’s clear intent “to guard against unjustified erosion of the policies of ballot secrecy and finality” … . Matter of Hamm v Board of Elections in the City of New York, 2021 NY Slip Op 08232, Second Dept 3-17-21

 

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