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PARTY OBJECTING TO CONGRESSIONAL CANDIDATES’ NOMINATING PETITION DID NOT PROPERLY NOTIFY THE CANDIDATE OF THE OBJECTIONS, STATE BOARD OF ELECTIONS SHOULD NOT HAVE INVALIDATED THE PETITION (THIRD DEPT).

The Third Department, reversing the State Election Board, determined the nominating petition of a candidate for the US House of Representatives should not have been invalidated because the objecting party did not comply with the requirements for notifying the candidate of the objections:

9 NYCRR 6204.1 (b) provides that “[n]o specifications of objections to any petition will be considered by the [State B]oard unless the objector filing the specifications personally delivers or mails by registered or certified mail a duplicate copy of the specification[s] to each candidate for public office named in the petition . . . on or before the date of filing of [the] specifications with the [State B]oard” … . Suffice it to say, the elemental prerequisite of any service requirement is that a party is served with the correct documents … . Plainly, this did not occur. Here, petitioner was not served with “a duplicate copy” of the specifications of objections, but was instead served with specifications of objections related to another candidate. Moreover, even assuming, without deciding, that the service upon petitioner of an order to show cause and supporting papers seeking to invalidate the nominating petition — which contained the specifications of objections related to petitioner — could serve to remedy the original defect, such service was not effectuated “on or before the date of filing of [the] specifications with the [State B]oard” (9 NYCRR 6204.1 [b]). Further, the fact that petitioner thereafter actually received the correct specifications is irrelevant, as “notice received by means other than those authorized . . . cannot serve to bring [the objections] within the jurisdiction of the [State Board]”…. Inasmuch as 9 NYCRR 6204.1 (b) is “'mandatory and may not be disregarded,'” we are constrained to conclude that “[Liscum's] failure to abide by the mandatory service provisions thereof deprived the [State] Board of jurisdiction to properly consider the objections and thereafter rule to invalidate the petition” … . Matter of Neal v Liscum, 2018 NY Slip Op 06070, Third Dept 9-17-18

ELECTION LAW (PARTY OBJECTING TO CONGRESSIONAL CANDIDATES' NOMINATING PETITION DID NOT PROPERLY NOTIFY THE CANDIDATE OF THE OBJECTIONS, STATE BOARD OF ELECTIONS SHOULD NOT HAVE INVALIDATED THE PETITION (THIRD DEPT))

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FRAUD WARRANTED INVALIDATION OF THE DESIGNATING PETITION (FOURTH DEPT). ​

The Fourth Department determined the designating petition was properly invalidated on the basis of fraud:

 “As a general rule, a candidate's designating petition will be invalidated on the ground of fraud only if there is a showing that the entire designating petition is permeated with that fraud” … . “Even where the designating petition is not permeated with fraud, however, when the candidate has participated in or is chargeable with knowledge of the fraud, the designating petition will generally be invalidated” (id. at 509). Here, petitioners established that multiple subscribing witnesses, including respondent, attested falsely that they had witnessed certain signatures on the designating petition inasmuch as they had allowed third-parties to sign the petition on behalf of the person named as the signatory on the designating petition … , and that respondent attested to certain signatures although he was not “in the presence of the signatories when [they] signed the [designating] petition” … . Thus, the court properly determined that respondent's participation in fraudulent acts warranted invalidating the designating petition for the Democratic Party … . Matter of Buttenschon v Salatino, 2018 NY Slip Op 05988, Fourth Dept 9-7-18

ELECTION LAW (FRAUD WARRANTED INVALIDATION OF THE DESIGNATING PETITION (FOURTH DEPT))/FRAUD (ELECTION LAW, FRAUD WARRANTED INVALIDATION OF THE DESIGNATING PETITION (FOURTH DEPT))

“OPPORTUNITY TO BALLOT” REMEDY AVAILABLE WHERE SIGNATURES ON A NOMINATING PETITION INVALIDATED FOR A TECHNICAL DEFECT AND THE PARTY WOULD BE LEFT WITHOUT A CANDIDATE (FOURTH DEPT).

The Fourth Department determined, pursuant to the “opportunity to ballot” remedy, 24 signatures on a nominating petition should not have been invalidated because the signatures had appeared on a prior nominating petition for a candidate who had withdrawn:

… [T]he equitable remedy of opportunity to ballot is appropriate here … . The remedy of an ” opportunity to ballot' . . . was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office”… . Here, the Board determined that 24 of the signatures on petitioner's nominating petition were invalid because the signers had previously signed the nominating petition of a candidate who later withdrew from the race. Although the fact that a voter has previously signed another candidate's petition is typically a substantive defect … , we conclude that such a defect is a technical one where, as here, the candidate with a prior nominating petition withdrew that petition prior to the voters signing the second nominating petition … . We thus conclude that the registered voters of the Republican Party should be afforded an opportunity to ballot for the office at issue, and we therefore modify the order accordingly. Matter of Trevisani v Karp, 2018 NY Slip Op 05966, Fourth Dept 9-5-18

ELECTION LAW (“OPPORTUNITY TO BALLOT” REMEDY AVAILABLE WHERE SIGNATURES ON A NOMINATING PETITION INVALIDATED FOR A TECHNICAL DEFECT AND THE PARTY WOULD BE LEFT WITHOUT A CANDIDATE (FOURTH DEPT))/OPPORTUNITY TO BALLOT (ELECTION LAW, “OPPORTUNITY TO BALLOT” REMEDY AVAILABLE WHERE SIGNATURES ON A NOMINATING PETITION INVALIDATED FOR A TECHNICAL DEFECT AND THE PARTY WOULD BE LEFT WITHOUT A CANDIDATE (FOURTH DEPT))

FAILURE TO SPECIFY THE GENDER OF THE CANDIDATE REQUIRED DENIAL OF THE DESIGNATING PETITION (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, determined a designating petition was properly denied because the gender of the candidate was not specified:

Election Law § 6-132 directs, among other things, that the public office or party position sought be identified on the designating petition. Further, where, as here, a political party provides by rule for equal representation of the sexes on its state committee, “the designating petitions . . . shall list candidates for such party positions separately by sexes” (Election Law § 2-102[4]). Thus, the courts below did not err in denying the petition to validate the designating petition due to the failure to specify whether the office sought was that of male or female member of the state committee … . Matter of Mintz v Board of Elections in the City of N.Y., 2018 NY Slip Op 05958, CtApp 8-29-28

ELECTION LAW (FAILURE TO SPECIFY THE GENDER OF THE CANDIDATE REQUIRED DENIAL OF THE DESIGNATING PETITION (CT APP))

POSSIBLE CONFUSION ABOUT WHICH MICHAEL YACUBICH AT THE SAME ADDRESS WAS THE “MIKE YACUBICH” SEEKING TO BE PLACED ON THE BALLOT FOR ASSEMBLY WAS NOT A PROPER GROUND FOR INVALIDATING THE DESIGNATING PETITION (SECOND DEPT).

The Second Department, reversing Supreme Court , determined petitioner's designating petition for the nomination of the Republican Party as a candidate for the Assembly should not have been invalidated on the ground that there were two voters registered at petitioner's address with similar names (father and son). Father and son are named Michael Yacubich and petitioner sought to be placed on the ballot as Mike Yacubich:

The Board exceeded its authority when it invalidated the designating petition on the ground that it could not identify which registered voter was the candidate. As amplified by the testimony of one of the Commissioners, the Board perceived that the similarity between the two names was confusing. “[B]oards of election have no power to deal with questions of fact or with objections involving matters not appearing upon the face of the petition, and . . . such extrinsic matters, if any, are to be determined in court proceedings only” … . “[T]he board's power to determine the validity of a [designating or] nominating petition extends only to ministerial examination and the board may not go behind a petition designating candidates for primary election” … . Candidates are permitted to run for office using a familiar name or nickname … . Similar to objections raising allegations of fraud  … , the issue of whether a candidate's name is confusing because it is similar to another voter's name involves a matter extrinsic to the designating petition itself and, thus, is a matter for judicial consideration and not for the Board of Elections. Accordingly, the Board lacked the authority to rule on the objection based upon its perception that the petition was confusing because of the candidate's name, which should have been raised through a judicial proceeding to invalidate. Matter of Yacubich v Suffolk County Bd. of Elections, 2018 NY Slip Op 05912, Second Dept 8-24-18

ELECTION LAW (POSSIBLE CONFUSION ABOUT WHICH MICHAEL YACUBICH AT THE SAME ADDRESS WAS THE “MIKE YACUBICH” SEEKING TO BE PLACED ON THE BALLOT FOR ASSEMBLY WAS NOT A PROPER GROUND FOR INVALIDATING THE DESIGNATING PETITION (SECOND DEPT))

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ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT).

The Third Department, over a concurrence and a two-justice dissent, determined electronic images of election ballots are accessible under the Freedom of Information Law (FOIL) after they have been preserved in accordance with the Election Law:

The dispute before us poses a question of public significance: whether electronic images of ballots cast in an election are accessible under the Freedom of Information Law … . We conclude that, once electronic ballot images have been preserved in accordance with the procedures set forth in Election Law § 3-222 (1), there is no statutory impediment to disclosure and they may be obtained through a FOIL request.

Our analysis is informed by the advent of electronic voting in New York (see generally Election Law § 7-202 [4]). As more fully set forth in the record, upon inserting a ballot into an electronic voting machine, it is scanned and an image of it is stored in a random fashion on portable flash drives, which preserve the secrecy of the ballot. The original ballot is then deposited by the scanner into a secure ballot box under the machine. After the polls close, the machine prints out a tabulated results tape containing the official record of votes cast on that particular machine. One of the flash drives is removed from the machine and returned to the applicable board of elections, while the other remains with the machine and is used during the recanvass process. As is relevant here, the content on the portable flash drives is then copied to permanent electronic storage media, such as a hard drive, after which the temporary storage media may be reused in another election … . Matter of Kosmider v Whitney, 2018 NY Slip Op 02517, Third Dept 4-12-18

​ELECTION LAW (FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC VOTING, ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))/FREEDOM OF INFORMATION LAW (FOIL) (ELECTION LAW, ELECTRONIC VOTING, ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))/ELECTRONIC VOTING (ELECTION LAW, FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))//BALLOTS (ELECTION LAW, FREEDOM OF INFORMATION LAW (FOIL), ELECTRONIC IMAGES OF ELECTION BALLOTS MAY BE OBTAINED THROUGH A FREEDOM OF INFORMATION LAW (FOIL) REQUEST (THIRD DEPT))

QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT).

The Third Department determined the certificates of nomination authorized by the Independence Party of Westchester County were invalid because the quorum requirement was not met:

Turning to the merits, Election Law § 6-114 provides that “[p]arty nominations for an office to be filled at a special election shall be made in the manner prescribed by the rules of the party.” Petitioners alleged several violations of the rules of the County Independence Party, some of which are compelling. Our discussion focuses, however, upon rules defining the Executive Committee, following an initial meeting, as having seven members … and needing “four members present . . . in person or by proxy” to form a quorum … .

The affidavit of … the secretary of the County Independence Party … reflected that the nomination process fatally deviated from those rules. Vazquez averred that she and two other individuals attended the meeting … . …[F]our members were needed for a quorum. The quorum requirement in the rules leaves no room for interpretation and, contrary to respondents’ contention, the fact that some seats on the Executive Committee were unfilled does not affect the requirement’s applicability … . Accordingly, “a duly constituted quorum of the [E]xecutive [C]ommittee was not present when [respondent] was nominated,” and those committee members present had no authority to designate [respondent] as the County Independence Party nominee … . Matter of Loftus-Doran v Mayer, 2018 NY Slip Op 02284, Third Dept 3-30-18

ELECTION LAW (QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT))/QUORUM (ELECTION LAW, QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT))/CERTIFICATES OF NOMINATION  (ELECTION LAW, QUORUM REQUIREMENT NOT MET, CERTIFICATES OF NOMINATION INVALID (THIRD DEPT))

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ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT).

The Third Department, over a concurring opinion and an extensive dissenting opinion, determined that the petitioners’ attempt to contest the NYS Board of Elections’ failure to plug the LLC loophole was properly dismissed because the petitioners did not have standing and because the petition did not present a justiciable controversy. The LLC loophole treats limited liability companies as individuals for campaign contribution purposes. LLC’s therefore can contribute more than corporations and partnerships:

Essentially, petitioners ask this Court to direct respondent to rescind its 1996 opinion on the LLC Loophole and replace it with one that would provide what they assert to be a superior application of public policy. We may not grant this request without violating the vital principle of the separation of powers. That principle dictates that each branch of government “should be free from interference, in the lawful discharge of duties expressly conferred, by either of the other branches” … . Here, the Legislature has conferred the authority to make directions pertaining to campaign financing practices upon respondent … . This Court cannot disturb respondent’s lawful directions with regard to LLCs without interfering with “policy-making and discretionary decisions that are reserved to the legislative and executive branches” … . The important issues raised here involve matters of discretion and policy that have been expressly entrusted to another branch of government and are “beyond the scope of judicial correction” … .

The nonjusticiable nature of this controversy is closely interconnected with the question of petitioners’ standing to pursue this matter — “an aspect of justiciability which, when challenged, must be considered at the outset of any litigation” … . To establish standing, petitioners must show that they have suffered an injury-in-fact and that the injury is within the zone of interests protected by the statute at issue .. Here, the dispute focuses upon the injury-in-fact element, which requires petitioners to establish that they have suffered or will suffer concrete harm that is “distinct from that of the general public” … . Matter of Brennan Ctr. for Justice At NYU Sch. of Law v New York State Bd. of Elections, 2018 NY Slip Op 02228, Second Dept 3-29-18

ELECTION LAW (LLC LOOPHOLE, ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT))/LIMITED LIABILITY COMPANY LAW (ELECTION LAW,  ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT))/CAMPAIGN CONTRIBUTIONS (ELECTION LAW, LLC LOOPHOLE, ATTEMPT TO CONTEST THE NYS BOARD OF ELECTIONS’ FAILURE TO PLUG THE LLC LOOPHOLE, WHICH ALLOWS HIGHER CAMPAIGN CONTRIBUTIONS FOR LLC’S THAN FOR CORPORATIONS AND PARTNERSHIPS, PROPERLY DISMISSED FOR LACK OF STANDING AND LACK OF A JUSTICIABLE CONTROVERSY (THIRD DEPT))

THE 2014 EXECUTIVE COMMITTEE OF THE SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY DID NOT HAVE THE AUTHORITY TO FILL VACANCIES IN THE 2016 COUNTY COMMITTEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the Executive Committee of the Suffolk County Committee of the Conservative Party did not have the authority to fill vacancies in the county committee. The 2014 Executive Committee could not fill vacancies in the 2016 County Committee:

Election Law § 6-148 does not confer upon the Executive Committee of the Suffolk County Committee of the Conservative Party of New York State the authority to fill vacancies in the county committee. Rather, that statute relates to filling vacancies in designations and nominations of candidates, not members of a political party’s county committee. The filling of vacancies in a political party’s county committee is governed by Election Law § 2-118, which provides, in pertinent part, that, in the case of a failure to elect a member of the committee, the vacancy created thereby shall be filled by the remaining members of the committee. Therefore, only the 2016 County Committee had the authority to fill the subject vacancies.

With the election of the 2016 County Committee in the primary election, the county committee that was elected in 2014 had no further official authority, and no rule of that county committee could extend the authority of its executive committee to continue to exercise functions in substantial matters after the members of the 2016 County Committee had been elected … . The filling of vacancies for the 2016 County Committee was a “substantial matter,” and therefore the actions of the 2014 Executive Committee in filling vacancies in the 2016 County Committee were improper … . Matter of Auerbach v Suffolk County Comm. of the Conservative Party of N.Y. State, 2018 NY Slip Op 01463, Second Dept 3-7-18

ELECTION LAW (THE 2014 EXECUTIVE COMMITTEE OF THE SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY DID NOT HAVE THE AUTHORITY TO FILL VACANCIES IN THE 2016 COUNTY COMMITTEE (SECOND DEPT))/CONSERVATIVE PARTY (ELECTION LAW, THE 2014 EXECUTIVE COMMITTEE OF THE SUFFOLK COUNTY COMMITTEE OF THE CONSERVATIVE PARTY DID NOT HAVE THE AUTHORITY TO FILL VACANCIES IN THE 2016 COUNTY COMMITTEE (SECOND DEPT))

2014 COUNTY COMMITTEE OF THE CONSERVATIVE PARTY DID NOT HAVE THE AUTHORITY TO FILL VACANCIES IN THE 2016 COUNTY COMMITTEE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the 2014 County Committee (of the Conservative Party) did not have the authority to fill vacancies in the 2016 County Committee. Only the 2016 County Committee had that authority:

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The filling of vacancies in a political party’s county committee is governed by Election Law § 2-118, which provides, in pertinent part, that, in the case of a failure to elect a member of the committee, the vacancy created thereby shall be filled by the remaining members of the committee. Therefore, only the 2016 County Committee had the authority to fill the subject vacancies.

With the election of the 2016 County Committee in the primary election, the 2014 County Committee had no further official authority, and no rule of the 2014 County Committee could extend the authority of its executive committee to continue to exercise functions in substantial matters after the members of the 2016 County Committee had been elected … . The filling of vacancies for the 2016 County Committee was a “substantial matter,” and therefore the actions of the 2014 Executive Committee in filling vacancies in the 2016 County Committee were improper … . Matter of Brocato v Tinari, 2018 NY Slip Op 00286, Second Dept 1-17-18

ELECTION LAW (2014 COUNTY COMMITTEE OF THE CONSERVATIVE PARTY DID NOT HAVE THE AUTHORITY TO FILL VACANCIES IN THE 2016 COUNTY COMMITTEE (SECOND DEPT))

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