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EVEN THOUGH THE STATE ASSEMBLY REDISTRICTING MAP WAS DECLARED INVALID BY THE COURT OF APPEALS IN APRIL 2022, THE MAP WILL BE USED UNTIL THE GENERAL ELECTION IN 2024 (FIRST DEPT).

The First Department determined the state assembly redistricting mag declared invalid by the Court of Appeals on April 27, 2022, shall be used in the upcoming 2022 elections and any new map will not be used before the 2024 general election:

… [T]he February 2022 map is invalid, based on its procedural infirmity as previously determined by the Court of Appeals in Matter of Harkenrider v Hochul (__ NY3d __, 2022 NY Slip Op 02833 [Apr. 27, 2022]), … will remain in effect for the 2022 assembly primary election to be held on June 28, 2022 and the general election to be held on November 8, 2022, and … , upon the formal adoption and implementation of a new legally compliant state assembly map, for use no sooner than the 2024 regular election, the February 2022 map will be void and of no effect … . Matter of Nichols v Hochul, 2022 NY Slip Op 03809, First Dept 6-10-22

Practice Point: The Court of Appeals, in April 2022, declared the state assembly redistricting map invalid. Here the First Department determined the map will continue to be used until the general election in 2024.

 

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THE VALIDATING PETITION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE PETITION WAS NOT VERIFIED; THE FAILURE TO RAISE THE OBJECTION WITH DUE DILIGENCE WAIVED IT; ALTHOUGH THE LANGUAGE IN THE PETITION WAS NOT EXACTLY THAT IN CPLR 3021, THE PETITION WAS IN FACT VERIFIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioner’s validating petition petition should not have been dismissed on the ground that the petition was not verified because: (1) the respondents waived the issue by not objecting with due diligence; and (2) although the exact words re: verification in CPLR 3021 were not used, the language used in the petition had the same effect as verification:

“Section 16-116 of the Election Law requires that a special proceeding brought under article 16 of the Election Law shall be heard upon a verified petition. The requirement is jurisdictional in nature” … . However, the objection to the alleged lack of verification of the validating petition was waived by the objectors’ failure to raise that objection with due diligence as required by CPLR 3022 … .

Moreover, the mere fact that a petition does not use the exact words set forth in CPLR 3021 does not mean that the petition is not verified, so long as the language used has the same effect as a verification … . Here, the language used in the validating petition had the same effect as a verification and, therefore, the validating petition was “verified” within the meaning of Election Law § 16-116. Matter of Francois v Rockland County Bd. of Elections, 2022 NY Slip Op 03190, Second Dept 5-12-22

Practice Point: Under the Election Law a validating petition must be verified and the absence of verification is a jurisdictional defect. The failure raise the issue with due diligence, however, waives the objection pursuant to CPLR 3021. In addition, to constitute a valid verification, the exact language in CPLR 3021 need not be used. Here he language in the validating petition. although not exactly as prescribed in CPLR 3021, was deemed sufficient to verify it.

 

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THE 2022 CONGRESSIONAL AND STATE SENATE REDISTRICTING MAPS DECLARED VOID BECAUSE THEY WERE DRAWN WITH AN UNCONSTITUTIONAL PARTISAN INTENT (CT APP). ​

The Court of Appeals declared the 2022 congressional and state senate redistricting maps void, finding they were drawn with “an unconstitutional partisan intent.” “Opinion by Chief Judge DiFiore. Judges Garcia, Singas and Cannataro concur. Judge Troutman dissents in part in an opinion, in which Judge Wilson concurs in part in a dissenting opinion, in which Judge Rivera concurs in part. Judge Rivera dissents in a separate dissenting opinion, in which Judge Wilson concurs:”

In 2014, the People of the State of New York amended the State Constitution to adopt historic reforms of the redistricting process by requiring, in a carefully structured process, the creation of electoral maps by an Independent Redistricting Commission (IRC) and by declaring unconstitutional certain undemocratic practices such as partisan and racial gerrymandering. No one disputes that this year, during the first redistricting cycle to follow adoption of the 2014 amendments, the IRC and the legislature failed to follow the procedure commanded by the State Constitution. A stalemate within the IRC resulted in a breakdown in the mandatory process for submission of electoral maps to the legislature. The legislature responded by creating and enacting maps in a nontransparent manner controlled exclusively by the dominant political party — doing exactly what they would have done had the 2014 constitutional reforms never been passed. On these appeals, the primary questions before us are whether this failure to follow the prescribed constitutional procedure warrants invalidation of the legislature’s congressional and state senate maps and whether there is record support for the determination of both courts below that the district lines for congressional [*2]races were drawn with an unconstitutional partisan intent. We answer both questions in the affirmative and therefore declare the congressional and senate maps void. As a result, judicial oversight is required to facilitate the expeditious creation of constitutionally conforming maps for use in the 2022 election and to safeguard the constitutionally protected right of New Yorkers to a fair election. Matter of Harkenrider v Hochul, 2022 NY Slip Op 02833, CtApp 4-27-22

Practice Point: The Fourth Department’s determination the 2022 redistricting maps unconstitutionally favored democrats was here upheld by a divided Court of Appeals.

 

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THE 2022 CONGRESSIONAL REDISTRICTING MAP FAVORED DEMOCRATS IN VIOLATION OF ARTICLE III OF THE NYS CONSTITUTION (FOURTH DEPT). ​

The Fourth Department, over a two-justice concurrence and a two-justice partial dissent, determined the NYS 2022 congressional redistricting map was drawn to favor democrats in violation of Article III of the NYS Constitution:

… [W]e agree with petitioners and the court that the congressional map was unconstitutional in that it violated article III, § 4 (c) (5), which provides as relevant here that “[d]istricts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties.”  * * *

We conclude that evidence of the largely one-party process used to enact the 2022 congressional map, a comparison of the 2022 congressional map to the 2012 congressional map, and the expert opinion and supporting analysis of Sean P. Trende, met petitioners’ burden of establishing that the 2022 congressional map was drawn to discourage competition and favor democrats in violation of article III, § 4 (c) (5). First, democratic leaders in the legislature drafted the 2022 congressional redistricting map without any republican input, and the map was adopted by the legislature without a single republican vote in favor of it. Second, under the 2012 congressional map there were 19 elected democrats and 8 elected republicans and under the 2022 congressional map there were 22 democrat-majority and 4 republican-majority districts. Matter of Harkenrider v Hochul, 2022 NY Slip Op 02648, Fourth Dept 4-22-22

 

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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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