Opinion
Index No. 903388-23
04-27-2023
In the Matter of the Application of Jennifer Whalen, Petitioner, v. Ansel Asch and the Albany County Board of Elections, Respondents.
MATTHEW J. CLYNE, ESQ., Attorney for Petitioner FUSCO LAW OFFICE Attorneys for Respondent/Republican Commissioner Stefano Perez, Esq. REBEKAH N. KENNEDY, ESQ. Attorney for Respondent Asch GREENBERG TRAURING Attorneys for Respondent/ Democratic Commissioner Joshua L. Oppenheimer, Esq.
Unpublished Opinion
MATTHEW J. CLYNE, ESQ., Attorney for Petitioner
FUSCO LAW OFFICE Attorneys for Respondent/Republican Commissioner Stefano Perez, Esq.
REBEKAH N. KENNEDY, ESQ. Attorney for Respondent Asch
GREENBERG TRAURING Attorneys for Respondent/ Democratic Commissioner Joshua L. Oppenheimer, Esq.
Justin Corcoran, Supreme Court Justice.
By Order to Show Cause filed on April 17, 2023, petitioner-candidate Jennifer Whalen ("petitioner") commenced this Election Law article 16 proceeding to invalidate the designating petition of respondent-candidate Ansel Asch ("respondent") purporting to nominate him as a Democratic Party candidate for the public office of Member of the Albany County Legislature, 21st District. Petitioner is a Republican Party candidate for the same public office. Respondent Asch answered and appeared in opposition on the April 25, 2023 return date. The Democratic and Republican Commissioners comprising the Albany County Board of Elections also separately answered and appeared with counsel. The parties stipulated to certain facts and presented legal arguments on the return date, then submitted supplemental legal arguments on April 26, 2023. Counsel agreed that no hearing was required. The proceeding is fully submitted. For reasons described below, the petition is denied.
The parties agree that 1,659 voters enrolled in the Democratic Party reside within the 21st legislative district, such that respondent needed to file a designating petition containing valid signatures from 83 Democratic voters, representing five percent of enrolled Democrats in the political subdivision, to qualify for designation as a Democratic Party candidate. Election Law §6-136 (2). According to the official political calendar, candidates could file designating petitions for this election between April 3 and April 10, 2023. On April 3, 2023, respondent filed with the Albany County Board of Elections ("the Board") a designating petition comprised of 133 total signatures, accompanied by a cover page. Petitioner claims that 59 of those 133 signatures are defective because they fail to set forth statutorily prescribed content, namely the town where the voter resides or the date when the voter signed the petition. Election Law §6-130.
Specifically, "Election Law §6-130 provides that '[t]he sheets of a designating petition must set forth in every instance the name of the signer, his or her residence address, town or city (except in the city of New York, the county), and the date when the signature is affixed." Salka v Magee, 164 A.D.3d 1084, 1085-1086 (3d Dept. 2018) quoting Matter of Stark v Kelleher, 32 A.D.3d 663, 664 (3d Dept. 2006), lv. den. 7 N.Y.3d 707 (2006). "The requirements of this statute 'must be strictly complied with, as it is a matter of prescribed content.'" Id. quoting Matter of Tischler v Hikind, 98 A.D.3d 926, 927 (2d. Dept. 2012) (other internal citations omitted); see Matter of Canary v New York State Bd. Of Elections, 131 A.D.3d 792, 793 (3d Dept. 2015) (voter's failure to include his town on designating petition required his signature to be invalidated). There is no dispute here that the first volume, filed on April 3, 2023, would not suffice alone to qualify respondent as a Democratic Party candidate since too many signatures in the first volume filed on April 3, 2023, are invalid because (1) signers who reside in the Town of Colonie either omitted their town completely, mistakenly inserted the name of a hamlet in place of the town, or mistakenly noted their municipal mailing address, rather than stating "Colonie" or (2) the date on which the person signed the petition was omitted entirely, i.e., the month, date, and year were not entered. Salka v Magee, supra; Avella v Johnson, 142 A.D.3d 1111, 1111-1113 (2d Dept.) lv. den. 28 N.Y.3d 904 (2016). According to petitioner, if each objection to the designating petition filed on April 3, 2023, were sustained, the petition would be supported by only 74 valid signatures, i.e., nine fewer than required under the statute.
However, respondent timely filed a second volume of the same designating petition purporting to designate him as a Democratic Party candidate for county legislator for the 21st legislative district on April 6, 2023. The parties agree that the outcome of this proceeding depends on whether respondent could permissibly file a second volume three days after filing the first volume, and whether the cover sheets submitted with the later volume were proper. This volume, accompanied by a cover sheet, consists of 30 additional signatures, all facially valid. Respondent contends that the additional 30 valid signatures contained in this volume bring his total to at least 104 valid signatures, comfortably exceeding the 83 required signatures. Petitioner concedes that if these 30 additional valid signatures had been filed with the original designating petition, respondent's petition would contain enough signatures. Stated differently, without calculating the exact number of valid signatures, the parties stipulated that if respondent was lawfully allowed to submit, and rely upon, the additional signatures filed as a second volume on April 6, 2023 with amended cover sheets, then his designating petition is valid. Conversely, if respondent's second volume was improper, his designating petition would be invalid.
Petitioner claims that "[t]he attempt to bootstrap the original petition, which was facially defective, with a subsequent submission - under the guise of a second volume - is a legal nullity since there is no statutory authority for the piecemeal filing of a designating or nominating petition, a practice which, if permitted, would obviously inject confusion, delay and prejudice into the petitioning process, and would frustrate the statutory scheme for the filing of objections." Petition ¶ 13. Respondent contends that a candidate may timely file additional volumes of the same designating petition if the later filing does not deceive or confuse other candidates, the board of elections, or the public.
Accordingly, the Court analyzes the competing arguments concerning the alleged irregularity of the successive filing of separate volumes of an otherwise regular designating petition and then amending the cover sheets filed with each volume. Initially, the cover sheets substantially resemble the form approved in the regulations of the State Board of Elections. 9 NYCRR 6215.2 (b), 6215.8. Likewise, each cover sheet contains required details about the public office and district number, the name and residence address of the candidate, an identification of the volumes comprising the petition and the total number of volumes in the petition. The volumes are numbered sequentially, and the cover sheet filed with the first volume, as amended, accurately states the total number of volumes comprising the petition. 22 NYCRR 6215.2 (2). However, petitioner contends that respondent was not authorized to supplement his designating petition with a second volume, filed on a later date within the filing period, because such procedure is not expressly authorized by statute or regulation, and it allegedly would frustrate petitioner's right to examine the designating petition for flaws and to file objections.
Notably, the regulatory scheme promulgated by the State Board of Elections expressly permits a petition in multiple volumes, but neither expressly authorizes nor prohibits volumes to be filed on different days. It also authorizes a candidate who submits a petition with technical defects, including defects on the cover page, to file an amended, corrected cover sheet within three business days after receiving notice of the defect. 9 NYCRR 6215.7. Because the Appellate Division, Third Department has approved the timely, successive filing of designating petitions, so long as the process does not create confusion or frustrate the notice and informational purposes of the Election Law, the Court rejects petitioner's argument that respondent's petition is invalid because it was filed in separate volumes on different dates. See, Potiker v Bohlke, 205 A.D.3d 1203, 1206-1207 (3d Dept. 2022).
The cover sheet filed on April 3, 2023, with a single volume consisting of 16 pages of signatures properly and accurately described respondent's designating petition for Albany County Legislature, 21st District, all in compliance with statute and rules. The Board affixed a timestamp upon it and assigned a file number to it. Three days later, on April 6, 2023 (still during the period for candidates to file designating petitions), respondent filed the second volume of the same designating petition, as well as a cover sheet describing the additional volume as "2 of 2." NYSCEF Doc. No. 1 at pages 8, 26-27 of 31. His designated agent, or "contact person", filed an amended cover sheet, edited (and initialed) to reflect that the designating petition now consisted of two volumes, such that the first volume was now "1 of 2" instead of "1 of 1." The original cover page, bearing the April 3, 2023 timestamp, was filed as amended on April 6, 2023, such that it bears time stamps by the BOE for both April 3, 2023, and April 6, 2023, respectively. This amended cover sheet, titled "Amended cover sheet," makes plain that the later cover sheet replaced the earlier cover sheet, as evidenced by the later timestamp, the edited number of total volumes, and the initials of the "contact person." Notably, regulations allow cover sheet deficiencies to be corrected by the filing of an amended cover sheet. Election Law §6-134 (2); 9 NYCRR 6215.7 (d) (corrected cover sheet must be received no later than third business day after board determines original cover sheet is deficient); see Magelaner v Park, 32 A.D.3d 487, 488 (2d Dept. 2006). There is no evidence that the Board notified respondent of any curable cover sheet deficiency.
Nonetheless, petitioner seeks to invalidate respondent's designating petition because, she claims, respondent lacked authority to file an additional volume on April 6, 2023, and, if the second volume was not considered, then the first volume, by itself, lacked sufficient valid signatures. The cases cited by petitioner, Matter of Saunders v Egriu (183 A.D.3d 1292 [4th Dept.] lv. den. 35 N.Y.3d 905 [2020]) and Matter of Armwood v McCloy (109 A.D.3d 558 [2d Dept. 2013]), are inapposite and do not support invalidation under these circumstances.
In Matter of Saunders v Egriu, on the last day for filing, a Congressional candidate filed a designating petition comprised of three volumes of signature sheets, with a separate cover sheet for each volume. The first cover sheet was labeled "Libertarian Party" and stated that it was volume one of three. The other two cover sheets were labeled "Democratic Party" and stated that they were volumes two of three and three of three, respectively. Thus, the candidate filed one designating petition for his Congressional candidacy, with a cover sheet to the first volume that inaccurately identified all three volumes as parts of a single petition for the Libertarian Party. Only further inspection of the second and third cover pages would reveal that the same candidate had in fact filed signatures purporting to qualify him to also seek the Democratic Party designation for the same office. The Board of Elections notified the candidate that his Libertarian and Democratic petitions failed to comply with regulations and gave him three days to cure the defects. After the deadline to file designating petitions, but within the three-day cure period, he filed "amended" cover sheets, one of which was labeled "Libertarian Party" and stated it was volume one of one. The second and third were labeled "Democratic Party" and stated they were volumes one of two and two of two, respectively. 183 A.D.3d at 1293. Thus, the candidate in Saunders belatedly sought to "split" his original three-volume petition (all ostensibly supporting his quest for the Libertarian Party line) into two petitions: one petition for the Libertarian Party line and another petition (supported by two volumes) supporting his attempt to qualify for the Democratic Party line.
Though the Board of Elections in Saunders accepted the amended cover sheets as sufficient, a challenger sued to invalidate, arguing the three volumes constituted an improper multiparty designating petition and that the candidate failed to file a timely Democratic Party petition because the initial cover sheet identified all three volumes as a single petition for the Libertarian Party, constituting a fatal substantive defect not subject to an opportunity to cure. Supreme Court invalidated the designating petition. The Appellate Division, Fourth Department affirmed, holding that the cover sheets originally identified only one petition, i.e. for the Libertarian Party, and that allowing the candidate to separate two volumes of the originally-filed petition into a new Democratic Party petition (after the filing deadline) would "undermine procedural safeguards against both fraud and confusion inasmuch as the original filing would lead interested parties to conclude that no separate Democratic Party designating petition had been filed." 183 A.D.3d at 1294 (internal quotation marks and citations omitted). Moreover, "because the errors in the original cover sheet could serve to frustrate the filing of general objections pursuant to Election Law §6-154, they were not technical violations subject to cure." Id.
The other case cited by petitioner, Armwood v McCloy, supra, is distinguishable because the unbound, multi-volume designating petition at issue there was delivered without any cover sheet, a substantive violation not subject to cure by the purported filing of "amended" cover sheets attached to photocopies of the designating petition.
In contrast, the timely filing here by respondent of a second volume of valid signatures for the Democratic Party designation for county legislator, accompanied by the amendment to the cover sheet, does not implicate procedural safeguards against fraud and confusion like the Saunders petition did because interested parties who inquired after the filing deadline here would see (and did see) that a two-volume Democratic Party petition had been filed timely, posing no impediment to filing general objections. Under nearly identical circumstances, the Appellate Division, Third Department found no impropriety when candidates filed a second volume of a designating petition, after filing of an initial volume, where the cover sheet was amended to reflect the later filing of a second volume. Potiker v Bohlke, supra.
In Potiker v Bohlke, candidates for delegate and alternate delegate to a Conservative Party judicial nominating convention filed a designating petition, along with a cover sheet indicating it was volume one of one, with the State Board of Elections on April 4, 2022, purporting to nominate two candidates for delegate and two candidates for alternate delegate. Three days later, on April 7, 2022, the candidates filed a second volume of the designating petition with the Board, along with a cover sheet indicating it was volume two of two, again purporting to designate the same individuals as candidates for the same party positions in the same primary election. On the following day, April 8, 2022, an amended cover sheet was filed for volume one, stating that it was now volume one of two. The designating petition was challenged by an enrolled voter residing in the political subdivision who argued, as relevant here, that the designating petition was invalid because the cover sheets, as amended, failed to comply with the requirements set forth in the Election Law and the Board's regulations. Supreme Court dismissed the challenge. 2022 WL 1572850, 2022 NY Slip Op. 31250 (U) (Saratoga Co. Sup. Ct. Index No. EF2022892). The Appellate Division, Third Department affirmed, as relevant here, finding that the designating petition filed on different days did "not intend to hide, bury or otherwise seek to designate additional (or different) candidates which would obviously frustrate the notice and informational purposes of the Election Law." 205 A.D.3d at 1206-1207 citing Matter of Saunders v Egriu, supra (other internal citations and quotation marks omitted).
The voter also challenged the over-designation of candidates, resulting in several pages being invalidated on that basis. The Appellate Division affirmed the trial court's ruling invalidating only those pages of the petition that contained signatures that over-designated. 205 A.D.3d at 1205-1206. The over-designation of candidates is immaterial to the legal arguments here.
Thus, in Potiker, the Appellate Division, Third Department found no basis to invalidate a designating petition where an initial single-volume was augmented by a successive, timely second volume and the cover sheets were amended in the same manner as respondent filed them here. Petitioner has not established any resulting confusion here nor proven any frustration in her ability to file general objections. An interested party who inquired about competing designating petitions after the expiration of the filing deadline would have discovered respondent's timely-filed two-volume petition and amended cover sheets. As established at the argument on the return date, petitioner filed objections to respondent's two-volume designating petition, triggering the Board's administrative review process, dispelling any claim of prejudice or surprise. It is clear upon the face of the amended cover page that it was edited to reflect a second volume was filed on April 6, 2023, alerting even an early inquirer that more signatures had been filed between April 3, 2023, and April 6, 2023. Unlike the candidates in Potiker, who waited one day after filing the second volume to file an amended cover sheet, respondent simultaneously filed an amended cover sheet with the second volume containing 30 valid signatures, further ameliorating any possibility for confusion. The procedure used by respondent did not violate any statute or rule, nor did it create confusion or frustrate the ability of the Board and interested parties to timely review and analyze his designating petition.
The procedure described, and approved, in Potiker casts doubt upon petitioner's assertion that under 9 NYCRR 6215.1 (e) (3), an amended cover sheet must be secured to the front of the volume by the filer, as the Board would have control over the previously filed designating petition. The rule cited by petitioner seemingly applies only to petitions that are not assigned an identification number by a board of elections; such rule does not seem to apply here because the Albany County Board of Elections assigned an identification number to the petition. See 9 NYCRR 6215.1 (e) (2). In any event, such an interpretation would be more restrictive than reasonably necessary for the Board to process petitions, especially when the documents are scanned and distributed digitally.
Petitioner and the Republican Commissioner contend that the amended cover sheets are confusing or deceptive in form, rendering them distinguishable from the amended cover sheets that the Third Department deemed sufficient in Potiker. Comparison of the cover sheets here with the cover sheets in Potiker reveals that the cover sheets in that case, also edited with handwritten notations, arguably are less clear than the amended cover sheets here. See, Potiker v Bohlke, supra (2022 WL 1572850; EF2022892, NYSCEF Doc. No. 4 and 5; Doc. No. 37 at pages, 40, 41, and 69 of 341). Nonetheless, even though that amended cover sheet was filed one day after the additional petition volume was filed, the Appellate Division found no frustration of the electoral process nor any basis to disregard the additional volume or amended cover sheets.
Accordingly, the Court concludes that the designating petition filed by respondent properly consists of the volumes filed on both April 3, 2023, and April 6, 2023. The cover sheet filed with the first volume on April 3, 2023, is not challenged here. The second petition volume and amended cover sheets filed on April 6, 2023 (one of which constitutes the "new" cover sheet for a two-volume petition and the other of which accompanied the second volume of 30 signatures) substantially comply with regulations, did not create confusion in this case, and did not hide, bury, or purport to designate additional or different candidates. All signatures supporting respondent were filed by April 6, 2023, four days before the filing deadline. Applying the parties' stipulation to these legal conclusions, when considering both volumes of respondent's designating petition (including the 30 signatures filed on April 6, 2023), respondent's designating petition exceeds the number of valid signatures to satisfy the statutory requirements of Election Law §6-136 (2). Accordingly, the petition to invalidate respondent's designating petition is denied, and this special proceeding is dismissed.
WHEREFORE, it is hereby
ORDERED AND ADJUDGED that the petition of Jennifer Whalen seeking an order and judgment invalidating the designating petition of respondent Ansel Asch seeking to designate him as a candidate for nomination by the Democratic Party for the public office of Member, Albany County Legislature, 21st Legislative District, is DENIED; and it is further
ORDERED, ADJUDGED and DECLARED that the designating petition of respondent Ansel Asch seeking to designate him as a candidate for nomination by the Democratic Party for the public office of Member, Albany County Legislature, 21st Legislative District is valid; and it is further
ORDERED and ADJUDGED that the petition of Jennifer Whalen is hereby DISMISSED.
SO ORDERED AND ADJUDGED.
This constitutes the Decision, Order and Judgment of the Court. The Court has uploaded the original Decision/Order/Judgment to the case record in this matter as maintained by the NYSCEF website whereupon it is to be filed and entered by the Office of the Albany County Clerk. Counsel for Respondent Asch shall comply with the applicable provisions of CPLR §2220 and §202.5b(h)(2) of the Uniform Rules of Supreme and County Courts relating to service and notice of entry of the filed document upon all other parties to the action/proceeding, whether accomplished by mailing or electronic means, whichever may be appropriate depending on the filing status of the party, within 2 days of entry by the Clerk.