THE APPELLATE DIVISION'S ADJUDICATION OF CHALLENGES TO POLITICAL PARTY NOMINATIONS IN 2018, AND ITS MEANING FOR BALLOT ACCESS IN NEW YORK.

• Author: Bucki, Craig R.

After generations of authorizing the removal of prospective electoral candidates from the ballot for dubious technical reasons, New York State enacted the Ballot Reform Act in order to alleviate trivial hurdles, as detailed as designating petition cover sheet requirements, that had traditionally compromised opportunities for new candidates to run for office. (1) By allowing certain aspects of the Election Law to "be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud," (2) the Act sought to achieve the New York State Legislature's goals of "easing those requirements which govern access to the ballot," (3) and to end the status of "New York's ballot access laws... [as] the laughingstock of the nation." (4)

Even so, at least two 2018 appellate division decisions that rejected potential candidacies on technical grounds--for which the candidates had no control to ensure compliance--demonstrate that more remains to be done to achieve the promise of equitable ballot access in New York. In Matter of Fuentes v. Catalano, (5) the Second Department invalidated the nominations of two Democratic candidates for New York State Supreme Court in Richmond County, solely because it concluded that the Chair and the Secretary of the nominating convention had not filed minutes of the convention with the New York City Board of Elections ("NYCBOE") within seventy-two hours after the convention's adjournment. (6) This was so, even though a word-for-word convention transcript notarized by a stenographer--a more complete and detailed record of the convention's proceedings than mere minutes--was indeed timely filed with the NYCBOE. (7)

Several days later, in Matter of Cox v. Spoth, (8) the Fourth Department rejected the nomination of Francina J. Spoth to seek election on the Democratic line for the position of Town Clerk in the Town of Amherst, New York, solely because the certificate reflecting that nomination had been issued by the Erie County Democratic Party's Executive Committee that had been constituted in 2016, rather than by a new Executive Committee constituted after the September 2018 primary election. (9) The New York Court of Appeals had expressly permitted "an outgoing executive committee... to file a certificate of nomination if it was 'effectively impossible to canvass and certify the newly elected committee members, convene an organizational meeting, elect a [new executive committee], and file a proper certificate of nomination' within the applicable time frame" required by statute. (10) Yet, in this case, the Fourth Department invalidated the certificate of nomination nonetheless, because it concluded that the Erie County Democratic Party could have convened more than forty reorganization meetings, on at least four days' notice each, to take place in only six days throughout the towns and cities of Erie County to choose a new executive committee to issue the certificate. (11)

The difficult outcomes for prospective candidates in Fuentes and Cox--denying ballot access for than technical reasons over which the candidates had little power to ensure compliance (12)--counsel that further reform is necessary to expand opportunities for New Yorkers to compete for election to public office. Such reform could arise from appropriate action by either the New York State Legislature or the judiciary. (13) As the Legislature enacted Election Law section 6-134(10) more than twenty years ago to moderate New York's rules for the petitioning process, so could it amend the Election Law again to apply liberal construction "not inconsistent with substantial compliance thereto and the prevention of fraud," (14) to New York's rules that govern ballot access via methods other than the collection and filing of petition signatures. Alternatively, the New York State Courts could choose more often to apply already available common-law precedent that would excuse candidate nomination "procedural defect[s]... where... the defect alleged did not constitute a 'substantive deficiency' implicating the integrity of the electoral process." (15) Either option would avoid limiting voters' choices among prospective elected officials for technical reasons bearing no relation to candidates' merit or ability to follow the rules of political engagement.

1. MATTER OF FUENTES v. CATALANO

   Each political party chooses its candidate(s) for most New York State and local public offices to be filled at the annual November general election via a closed primary among the party's registrants in the jurisdiction served by the subject office. (16) A party member may participate as a candidate in the party's primary by collecting and filing with the appropriate county board of elections or with the New York State Board of Elections (in the case of offices to be elected in districts that cross county lines) a sufficient number of valid signatures of the jurisdiction's party registrants on so-called "designating petition[s]." (17) Whether a prospective candidate successfully qualifies onto the primary ballot depends principally upon the candidate's and his or her supporters' industry and attention to detail--such as in preparing the petitions, gathering enough signatures from eligible party registrants, and timely submitting the petitions to the proper board of elections--all in compliance with the rules set forth in New York Election Law Article 6. (18)

   Prospective candidates for election to New York State Supreme Court judgeships, by contrast, cannot petition their way onto the primary ballot. (19) "Party nominations for the office of justice of the [New York State] supreme court shall be made by the judicial district convention." (20) In a particular judicial district that must elect one or more state supreme court justices in a given election year, the political party's convention is "constituted by the election at the preceding primary of delegates and alternate delegates, if any, from each [State] assembly district," pursuant to a formula established by New York Election Law section 6-124 and the party's internal rules. (21) Hence, a potential candidate for a New York State Supreme Court seat cannot depend solely upon self-sufficiency in order to attain ballot access: rather, he or she must rely upon the selection by a sufficient number of delegates at a convention duly assembled and conducted by others in accordance with the New York Election Law's requirements. (22)

   In Fuentes, the petitioners challenged those requirements' satisfaction at the convention by which the Democratic Party had timely nominated Anthony Catalano and Orlando Marrazzo, Jr., as its candidates for election on November 6, 2018, to two open seats on the New York State Supreme Court bench in the Thirteenth Judicial District, which consists entirely of Staten Island, New York. (23) At the time of the convention on September 20, 2018, Catalano held office as Staten Island's Public Administrator, while Marrazzo was an elected New York City Civil Court Judge serving as an Acting State Supreme Court Justice. (24)

   Pursuant to New York Election Law section 6-158(6),

   a certificate of party nomination made at a judicial district convention shall be filed not later than the day after the last day to hold such convention and the minutes of such convention, duly certified by the chair[ ] and secretary, shall be filed within seventy-two hours after adjournment of the convention. (25) "On September 24, 2018, a transcript of the convention proceedings, signed only by a stenographer, was filed with the Board of Elections in the City of New York." (26) Because this transcript was not certified by the Chair and the Secretary of the convention that nominated Catalano and Marrazzo, the petitioners argued that their nominations were invalid, even absent any dispute that the separate certificate reflecting their nominations was indeed timely filed with the NYCBOE. (27)

   The trial court disagreed, and initially allowed Catalano's and Marrazzo's candidacies to proceed. (28) Recognizing that "judicial convention minutes are entitled to a presumption of regularity," the trial court noted that appellate aivision precedent "support[ed] viewing the convention minutes in a different light than a certificate of nomination." (29) For the Democratic Party convention that nominated Catalano and Marrazzo, there was "a 31-page transcript of what transpired, including: placing names in nomination, calling the roll, electing officers and remarks of candidates." (30) This, the Trial Court concluded, effectively satisfied the purpose of the convention's required minutes to "inform us as to what happened at the convention," and the transcript's timely filing of the transcript with the NYCBOE substantially complied with New York Election Law section 6-158(6). (31)

   The Second Department disagreed, however, reversed the Trial Court, and ordered Catalano and Marrazzo off the Democratic line in the race for State Supreme Court Justice on Staten Island in the 2018 general election. (32) The Second Department acknowledged that, whereas New York "Election Law [section] 1-106(2) renders the failure to file a petition or certificate relating to a designation or nomination a fatal defect[,] [t]hat statute does not speak directly to the minutes of a judicial nominating convention which... recite what actions transpired at the convention." (33) As such, the Appellate Division had previously "held that the failure to file convention minutes was not a fatal defect where [any] delay was brief and did not prejudice the integrity of the electoral process or disrupt the electoral machinery." (34) "[I]nvocation of judicial discretion may be appropriate," therefore, "to remediate the harsh consequences" of invalidating a prospective candidacy for State Supreme Court, for "both the affected candidates and... the public interest in having competitive elections." (35)

   Yet the Second Department declined...