Opinion
903485-20
05-05-2020
In the Matter of the application of Sukhibnar SAINI, Candidate-Aggrieved, Petitioner, v. The NEW YORK STATE BOARD OF ELECTIONS, Peter Kosinski, Andrew Spano, and Douglas Kellner, Commissioners Constituting the Board, and the Suffolk County Board of Elections, Erin McTiernan and Anita Katz, Commissioners Constituting the Board and Blay Tarnoff and Paul Grindle, Objectors, Respondents, For an order pursuant to sections 16-100, 16-102 and 16-116 of the Election Law, And related sections of the Election Law, CPLR 3001 and Article 78 of the CPLR Declaring Valid the Petitioner's Designating Petitions for the nomination of the Libertarian Party, and to order the said Board of Elections to place the name off said Candidate upon the Official Ballots of Said Primary Election.
SINNRIECH, KOSOKOFF & MESSINA, Attorneys for Petitioner, John Ciampoli, Esq., Of Counsel, 267 Carleton Avenue Ste 301 Central Islip, NY 11722 LAW OFFICE OF GARY L. DONOYAN, Attorney for Objector-Respondent Grindle, Gary L. Donoyan, Esq., Of Counsel, 565 Plandome Road #209, Manhasset, New York 11030 BLAY TARNOFF, Objector-Respondent, NEW YORK STATE BOARD OF ELECTIONS, Kimberly Galvin, Esq., Of Counsel, 40 N. Pearl Street, Albany, New York 12207 SUFFOLK COUNTY DEPARTMENT OF LAW, Attorneys for Suffolk County Board of Elections, Alyssa L. Garone, Esq., Of Counsel, H. Lee Dennison Building, 100 Veterans Memorial Highway, P.O. Box 6100, Hauppauge, New York 11788
SINNRIECH, KOSOKOFF & MESSINA, Attorneys for Petitioner, John Ciampoli, Esq., Of Counsel, 267 Carleton Avenue Ste 301 Central Islip, NY 11722
LAW OFFICE OF GARY L. DONOYAN, Attorney for Objector-Respondent Grindle, Gary L. Donoyan, Esq., Of Counsel, 565 Plandome Road #209, Manhasset, New York 11030
BLAY TARNOFF, Objector-Respondent, NEW YORK STATE BOARD OF ELECTIONS, Kimberly Galvin, Esq., Of Counsel, 40 N. Pearl Street, Albany, New York 12207
SUFFOLK COUNTY DEPARTMENT OF LAW, Attorneys for Suffolk County Board of Elections, Alyssa L. Garone, Esq., Of Counsel, H. Lee Dennison Building, 100 Veterans Memorial Highway, P.O. Box 6100, Hauppauge, New York 11788
Justin Corcoran, J.
By order to show cause filed April 30, 2020, petitioner Sukhbinar Saini ("petitioner" or "Saini") brings this Election Law article 16 proceeding for an order declaring valid her designating petition for the party office of Member of the Libertarian Party State Committee, 10th Judicial District ("the Saini petition"). Saini, a registered voter residing in Suffolk County, timely filed her designating petition with respondent New York State Board of Elections ("SBOE"), after which objectors-respondents Blay Tarnoff and Paul Grindle ("objectors") timely filed objections to the Saini petition, claiming that she was not eligible to run for party office because she was not a duly enrolled member of the Libertarian Party when the Saini petition was filed.
As described below, Saini changed her voter enrollment from a "blank" (not enrolled in a political party) to Libertarian by filing an application form with the Nassau County Board of Elections ("Nassau BOE") on February 14, 2020, the last day on which a voter could change enrollment and be eligible to vote in the 2020 primary election pursuant to Election Law § 5-304. On February 14, 2020, Nassau BOE mailed Saini's change of enrollment form to its proper recipient, respondent Suffolk County Board of Elections ("Suffolk BOE") for filing. Saini contends that Suffolk BOE considered her application timely but failed to advise SBOE that Saini timely changed her enrollment to the Libertarian Party, such that SBOE records erroneously showed that she was not enrolled in a political party; SBOE thus found her ineligible to run for any Libertarian Party position. SBOE sustained the objections to the Saini petition and ruled it invalid, removing her name from the primary ballot. Saini brings this special proceeding for an order: (1) finding that SBOE erred in sustaining the objections, (2) validating her designating petition, (3) declaring her Libertarian Party enrollment valid, or alternatively (4) allowing a candidate to be substituted in her stead if she is found to be unqualified to hold party office.
This matter was made returnable on May 4, 2020. The parties and/or counsel appeared at a virtual hearing conducted on the return date. Objector-respondent Grindle answered the petition and moved to disqualify Saini's counsel John Ciampoli, Esq. based on counsel's representation of clients involved in an ongoing contest for control of the Libertarian Party. Objector-respondent Tarnoff appeared and orally opposed the petition. The parties entered into stipulations admitting certain facts and admitting certain documents into evidence.
The gravamen of petitioner Saini's argument is that she complied with the statutory deadline to file a form changing her enrollment from "blank" to the Libertarian Party by leaving a form with Nassau BOE on February 14, 2020, the last day on which voters could change party enrollment to be eligible to vote in the 2020 primary elections. Saini also claims, in conclusory fashion, that because each county BOE is obliged to forward registration and/or enrollment forms to the BOE in the county where the filer resides, the filing of her form must be measured from the date that it was left at Nassau BOE rather than any later date on which it was received by Suffolk BOE. In effect, Saini argues that the statute requires the SBOE and every county BOE to treat a change of enrollment form as filed on the date it is presented to any county BOE in the state because each BOE is obliged to forward such forms to the appropriate, ultimate recipient. Saini also argues that the Court need not reach this legal question because Suffolk BOE staff marked her application "timely" but neglected to send updated information to SBOE.
The Court is unpersuaded that objectors were required to challenge the Suffolk BOE notation of "timely" to preserve their rights because objectors obtained complete relief when SBOE sustained their objections. The import of the notation "timely" remains unclear, as Suffolk BOE apparently did not update Saini's party enrollment in the weeks after it received her application. Objectors contend that Suffolk BOE was without legal authority to disregard a statutory deadline and that the Court must construe the filing requirements as a matter of law.
According to SBOE, there is lack of universal agreement among county boards of elections about how to measure the date on which various papers effectively are "filed" and that different statutes lead to different conclusions. Suffolk BOE, through counsel, advised orally on the return date that its staff marked Saini's application "timely" upon its receipt after the statutory deadline. Objectors argue in relevant part that SBOE correctly invalidated the petition with regard to Saini and that regardless of how Suffolk BOE marked petitioner's change of enrollment form, because it was received by Suffolk BOE on February 18, 2020 (i.e. after the February 14, 2020 deadline), her change of enrollment was received too late for her to be eligible to run for a party position to be elected at the 2020 primary election. The material facts are undisputed. Saini's change of enrollment form was filed at the office of Nassau BOE on February 14, 2020, the last day for an unenrolled voter to enroll in a new party and still be eligible to vote in the 2020 primary election(s). Saini resides and votes in Suffolk County. Suffolk BOE maintains the enrollment and registration records of Saini. SBOE receives daily updates from each county BOE concerning new registrations, new enrollments and changes in voter enrollment. Nassau BOE received Saini's change of enrollment form on February 14, 2020 and mailed it to Suffolk BOE the same day. Suffolk BOE received the form by mail on February 18, 2020. Saini filed a designating petition purporting to nominate her (and several other candidates whose positions are not at issue) for the party position of Member, Libertarian Party State Committee, 10th Judicial District on March 20, 2020. Saini's petition contained the requisite number of valid signatures to qualify a candidate for the party position she seeks. The NYS Voter System records of the SBOE stated that Saini was not enrolled in a political party. Objectors filed general and specific objections including that Saini was ineligible to run for the party position because she was not a duly enrolled party member at the legally relevant time. SBOE staff sustained the objections. Saini's "voter data extract details" maintained by SBOE stated that her political party affiliation is "BLK" signifying "blank." SBOE ruled on April 27, 2020 that the Saini petition was invalid. Saini timely filed this Election Law article 16 proceeding to validate her designating petition within the three-days limitations period. SBOE contended that its invalidation of the Saini petition does not constitute an action that allows for another candidate to be substituted in the stead of Saini if the Court finds that her designating petition is invalid.
Saini's alternative argument complaining of a violation of her equal protection rights arising from alleged discrepancies in how various county board of elections handle papers filed at the wrong BOE is supported only by anecdotal hearsay, such that it cannot constitute any basis for relief. Raised for the first time on the return date, this argument is not plead sufficiently in the petition to place the parties or the Court on notice of the basis for relief.
Petitioner's counsel argues that an error in updating Saini's voter information explains why her voter report states she is not enrolled in a political party. The special proceeding record is bereft of any evidentiary facts on this issue. SBOE updates its database daily to incorporate information from county boards of elections.
In effect, Saini argues that SBOE and every county BOE must deem a change of enrollment form "received" on the date it is presented to any county BOE in the state because each BOE is obliged to forward such forms to their proper, ultimate recipient.
Several statutes govern enrollment of voters in political parties including Election Law article 5, titles 2 ("Registration and Enrollment) and 3 ("Enrollment"). In order to determine when a change of enrollment is "received" and therefore effective, several statutes must be read together. The deadline for a voter to change enrollment in order to be eligible to participate as a party member in the current year's primaries is February 14. Election Law § 5-304 (3). This statute provides that "[a] change of enrollment received by the board of elections will take effect immediately, provided however, any change of enrollment received by the board of elections after February fourteenth and before or on seven days after the June primary shall take effect on the seventh day after the June primary." Election Law § 5-304 (3). The Legislature amended this statute in 2019 to reduce the amount of time that voters changing party enrollment were required to wait before becoming eligible to vote in primary elections conducted by their new party. 2019 Sess. Laws News of New York Ch. 316 (S. 6532-A) (McKinney's). Before the amendment, according to its supporters, "voters who wished to change their enrollment would have had to apply for a change in enrollment 193 days before the Presidential Primary." June 18, 2019, New York Committee Report, 2019 NY S.B. 6532 (NS).
The parties agree that February 14, 2020 was the deadline for Saini to change her party enrollment in order to be eligible to run for a party position in 2020. They disagree about when and how such change of enrollment becomes legally effective. The resolution of this disagreement requires analysis of the statutory scheme for a change of enrollment that imposes different obligations and procedures depending on whether the application to change enrollment is delivered to the board of elections in the county where the voter resides or to a different board of elections. Upon receipt of a change of voter enrollment form, a county BOE must compare the information and signature on it with the applicant's registration record. Specifically, "[i]f the application form is for a voter [like Saini] who has previously registered and not enrolled, then the board of elections shall compare the information and the signature appearing on each application form received with that on the registration poll record of the applicant and if found to correspond in all particulars shall, not earlier than the Tuesday following the next general election and not later than the thirtieth day preceding the last day for publishing enrollment lists, proceed in the manner specified in subdivision one hereof to enter such enrollment on such voter's registration poll card." Election Law § 5-302. The Suffolk BOE maintains the registration poll record for Saini such that it constituted the board obliged to receive her application to enroll in the Libertarian Party and compare it to her registration record. By amending § 5-304 (3) in 2019, the Legislature shortened the waiting period for new party members to be able to vote in primaries, but it did not otherwise "liberalize" the mandatory steps to process and approve (where appropriate) a change in enrollment. Thus, when Nassau BOE received Saini's application to enroll in a political party, it did not (and could not) compare her application to her registration poll record because that file was maintained by the Suffolk BOE.
Through state initiatives to expand voter participation by encouraging registration through the Department of Motor Vehicles, and by implementation of the federal Help America Vote Act, some prospective registrants file applications with agencies other than the BOE in the county where they reside. Thus, Election Law article 5, title 2 also governs voter registration and enrollment, including when a voter submits certain applications to a BOE outside they county where she resides. The Legislature devised a procedure for county boards to process such applications under § 5-210, which states:
"Any board of elections receiving an application form from a person who does not reside in its jurisdiction but who does reside elsewhere in the state of New York, shall forthwith forward such application form to the proper board of elections. Each board of elections shall make an entry on each such form of the date it is received by such board."
The Legislature expressed its intention that voters who used a "statewide" application form to register, enroll or change party enrollment (rather than applying at their county BOE) would complete the process when their "home" BOE received the form. Specifically, the statewide application form must provide applicants with notices including a "[n]otice that registration and enrollment is not complete until the form is received by the appropriate county board of elections." Election Law § 5-210. Where the statutory scheme to process changes in enrollment allows the filing of forms at a BOE outside the voter's home county, it evinces its intent that the filing is effective when received by the "appropriate" BOE, not "any" BOE, casting doubt upon Saini's statutory construction argument. See Independence Party State Committee v. New York State Bd. of Elections , 297 A.D.2d 459, 461, 746 N.Y.S.2d 330 (3d Dep't 2002) ("[S]tatutes relating to the same subject matter*** must be read together and applied harmoniously and consistently" [internal quotation and citations omitted] ).
The Court relies on analysis of the statutory scheme for voter enrollment because the parties have not cited any case applying § 5-304 to analogous facts and the Court's own research has not discovered any case directly on point. Indeed, the parties seemingly agree that the issue of when an enrollment form is "received" under § 5-304 (3) is a case of first impression. The statute provides that an enrollment change is effective immediately upon receipt by "the board of elections." Several cases have addressed instances in which a candidate has mistakenly filed a certificate or designating petition with the "wrong" BOE. See, e.g. Maurer v. Monescalchi, 264 A.D.2d 542, 694 N.Y.S.2d 251 (3d Dep't) lv. den . 93 N.Y.2d 816, 697 N.Y.S.2d 563, 719 N.E.2d 924 (1999) ; Lozano v. Scaringe , 253 A.D.2d 569, 677 N.Y.S.2d 404 (3d Dep't) 92 N.Y.2d 806, 678 N.Y.S.2d 592, 700 N.E.2d 1228 (1998) ; Tobin v. May , 72 A.D.2d 648, 421 N.Y.S.2d 441 (3d Dep't 1979). However, these cases do not address submission of a change of enrollment application to a county BOE where the applicant does not reside, and those cases involve papers the Legislature has expressly deemed "filed" so long as postmarked before a deadline. To the extent these cases are instructive, they stand for the proposition that a certificate or designating petition that was filed with the incorrect BOE need not be invalidated if it is later received by the appropriate recipient before the statutory deadline expired. Conversely, a document timely filed with the wrong office is not deemed valid if it is received by the proper office after the deadline. Notably, though, these cases do not construe statutes that impose the more specific procedural mandates for enrollment under titles 2 and 3 of article 5.
Here, the form was delivered to a BOE that could not process it in accordance with § 5-210 ; it was then mailed to the proper BOE on the last day for it to be timely received. There is no suggestion that Nassau BOE notified SBOE of the change in enrollment nor that it should have done so. The appropriate board, Suffolk BOE, received it on February 18, 2020, four days after the deadline. The Court agrees with objectors-respondents that it was not timely "received" by Suffolk BOE as contemplated by the statute. Where the Legislature allows voters to file registration and enrollment forms with a board of elections other then the board where the voter resides, it requires the BOE with custody of the voter's registration data to compare the applicant's information with its records (including review of the signatures on the enrollment form and the existing registration form). More importantly, the Legislature requires the voter who delivers an application to change party enrollment to a BOE outside of the jurisdiction where she resides to be notified that the enrollment is not complete until the form is received by the appropriate board of elections. Based upon Saini's residence and registration in Suffolk County, the "appropriate board" here is Suffolk BOE. Suffolk "received" the form on February 18, 2020, such that it was effective that date, four days after the deadline for new party enrollees to obtain eligibility to participate in 2020 primary elections. Unlike other election law provisions that allow filing by mail (and measure the filing date by postmark), a change in enrollment is effective only when "received" by "the" board of elections.
The Legislature has specified procedures for a board to accept applications from voters outside its geographic jurisdiction: it requires the board to forward the application to the "appropriate board" and requires the application form to notify the applicant that her enrollment is not complete until received by the "proper board." That the Legislature specifically addressed these procedures militates against concluding that Election Law § 1-106's arguably more permissive general definitions of "filing" apply here.
Petitioner suggests that filing provisions found in § 1-106 may apply here. The Legislature added specific requirements for measuring the effective date of enrollment applications, though, such that the general provisions applicable to petitions and certificates, for example, do not apply. There is no record evidence of the actual "postmark" for the mailing to Suffolk BOE, nor is there an indication that SBOE considered this argument in invalidating the petition. Thus, the Court finds § 1-106 does not provide a basis to grant petitioner relief.
Accordingly, the Court agrees with objectors-respondents that Saini's enrollment in the Libertarian Party, a condition of eligibility to run for party office, was not effective until it was received by Suffolk BOE on February 18, 2020, after the February 14, 2020 deadline. The instant petition seeking to validate the designating petition with respect to Saini is therefore denied. A different conclusion would not be required even if Suffolk BOE had reported the change of enrollment promptly to SBOE because no board is authorized to disregard the statutory deadline for changing party enrollment.
The Court next addresses petitioner's request for alternative relief directing SBOE to permit a substitution in the stead of Saini. SBOE confirmed at argument that petitioner correctly states that SBOE has advised that it will not accept a certificate of substitution for Saini because a substitution is not permitted by SBOE's interpretation of the governing statute. Here, the distinction between disqualification and invalidation requires analysis. Substitution for a candidate who is disqualified is governed by § 6-148. SBOE advised petitioner that no substitution is permitted because her petition was invalid. Objectors-respondents argue that SBOE correctly advised that substitution is impermissible because the petition was invalidated as to Saini, and invalidation does not trigger the right to substitution, which is reserved solely for declinations and disqualifications.
Pursuant to Election Law § 6-120, except in circumstances inapplicable here, " no party designation or nomination shall be valid unless the person so designated or nominated shall be an enrolled member of the political party referred to in the certificate of designation or nomination at the time of filing of such certificate." Election Law § 6-120. Party membership is a condition precedent to a valid designation or nomination. If nomination of a non-party member for a party office is "void," then no substitution is permitted. Hunter v. New York State Bd. of Elections , 32 A.D.3d 662, 663, 820 N.Y.S.2d 191 (3d Dep't 2006). The invalidation of a designating petition does not create a vacancy that may be filled by a committee to fill vacancies. Cotten v. Greene County Bd. Of Elections , 65 A.D.3d 810, 884 N.Y.S.2d 290 (3d Dep't 2009) ; Elgin v. Smith , 10 A.D.3d 483, 781 N.Y.S.2d 182 (4th Dep't 2004) (internal citations omitted). Saini was not an enrolled party member, so the petition purporting to designate her was invalid as to her. SBOE properly concluded that no substitution is permitted and that part of the petition seeking a declaration that a substitution is permissible is denied.
The cases cited by petitioner, Notaristefano v. Marcantonio, 164 A.D.3d 721, 83 N.Y.S.3d 540 (2d Dep't) lv. den . 31 N.Y.2d 1210, 82 N.Y.S.3d 797, 107 N.E.3d 1267 (2018) and Chaimowitz v. Calcaterra , 76 A.D.3d 685, 909 N.Y.S.2d 76 (2d Dep't 2010), where candidates were disqualified for failing to meet durational residency requirements, do not require a different result. Neither case addresses the substitution of a candidate after his petition was invalidated.
[Portions of opinion omitted for purposes of publication.]
Accordingly, it is hereby ORDERED AND ADJUDGED that the petition is DENIED , and this special proceeding is DISMISSED , without costs. All other relief not specifically granted has been considered and denied or alternatively rendered academic by the foregoing.
SO ORDERED AND ADJUDGED .