Opinion
23724.
August 13, 2003.
Jaspan Schlesinger Hoffman, LLP (Steven R. Schlesinger of counsel), for petitioner.
Bee Ready Fishbein Hatter Donovan, LLP (Kenneth A. Gray of counsel), for Angelo P. Ferrara, respondent.
Lorna Goodman, County Attorney (Lee Samowitz of counsel), for Board of Elections of County of Nassau, respondent.
Petitioner seeks an Order declaring invalid, insufficient and void the petitions (the "Designating Petitions") heretofore filed in the office of THE BOARD OF ELECTIONS OF THE COUNTY OF NASSAU (the "BOARD") purporting to designate ANGELO P. FERRARA as a nominee of the Independence Party for election to the public office of Town Councilman, Town of North Hempstead, 3rd District, County of Nassau, in the Primary Election scheduled to be held on the 9th day of September, 2003 or in the General Election to be held on the 4th day of November, 2003. The petitioner had previously filed with the BOARD specific objections to the Designating Petitions pursuant to Election Law § 6-154. On July 28, 2003, the BOARD ruled that the Designating Petitions were valid, inasmuch as the Commissioners could not agree upon the validity of the objections. Petitioner commenced the instant proceeding, pursuant to Election Law § 16-102, by Order to Show Cause dated July 22, 2003. Oral argument was held before the Court on August 6, 2003.
Petitioner contends that the nomination is invalid because of a defect in the Designating Petitions. In order to designate a party nominee, the petitions submitted on behalf of such candidate must contain, at minimum, a requisite number of valid signatures. With respect to the Designating Petitions at issue here, twenty-four (24) valid signatures were required. See Minutes of Meeting of the Commissioners of the Board of Elections, dated July 28, 2003. Of the 29 signatures contained in the Designating Petitions, petitioner claims that 16 are invalid. Particularly, petitioner claims, the signatures on pages 2 and 3 of the Designating Petitions are rendered invalid by the failure to include, in the Witness Identification Information, the town or city of the subscribing witness, as mandated by Election Law § 6-132[2]. Petitioner contends that the Designating Petitions must therefore be deemed insufficient because they contain a total of only 13 valid signatures, as opposed to the 24 necessary to designate a candidate. In opposition, respondents argue that the petition pages in question contain the subscribing witness's complete address, which is sufficient to identify the witness and the town of his residence. Therefore, respondent contends, there is no basis to invalidate the 16 signatures gathered by that witness.
The Court's determination turns on whether the failure to specify a subscribing witness's town or city in the Witness Identification Information is a fatal defect rendering the petition invalid. To resolve this question, it is necessary to examine the law pertaining to Election Law § 6-132[2] in its historical context. Prior to the Election Reform Act of 1992 (L. 1992, ch. 79, § 10), which became effective in January 1993, the law was clear that the statement of a witness had to contain a designation of the witness's town or city, even where the witness's residential address was clearly designated. See Matter of Frome v. Board of Elections of Nassau Cty., 57 N.Y.2d 741. The Court of Appeals held:
"The designation of the 'city or town' in the statement of a witness to a designating petition is a matter of the legislatively mandated content of the petition; i.e., a matter of substance and not of form. It follows then that omission to include the prescribed information is fatal." Id.
The Election Reform Act of 1992 amended several aspects of the Election Law, largely with the intent to facilitate access to the ballot. See Matter of Barrett v. Brodsky, 196 A.D.2d 603 (citing L. 1992, ch. 79). Among other things, it took the "town or city" designation out of the subscribing witness's statement. The form of designating petition was amended so that the Witness Identification Information, including a space for the town or city, was placed below the witness's signature line. This allowed the town or city of the subscribing witness to be filled in, after the fact, by someone other than the subscribing witness herself.
Respondent argues, essentially, that the Election Reform Act of 1992 and subsequent case law liberalized construction of the Election Law and cast doubt upon the continued viability of the rule in Frome, supra. In August 1992, the First Department stated, in dicta, that the amended law would require "only that any attesting witness furnish a residence (and additionally, a postal residence if different)." Matter of Falu v. Wagner, 185 A.D.2d 791. The law "entirely eliminates any requirement for inclusion of the election district or other political subdivision where the witness resides." Id. Two later cases decided simultaneously by the Second Department in August 1993 held that "the failure of the subscribing witness to include the town or city in the 'Statement of Witness' is no longer a fatal defect which renders the petition invalid." Matter of Barrett v. Brodsky, 196 A.D.2d 603; Matter of Goodstein v. Ross, 196 A.D.2d 615.
According to respondent, these cases stand for the proposition that the petitions remain valid, even if incomplete, so long as there is sufficient information to identify the witness and locate his residence. The Court disagrees. The above cases merely hold that the town or city need not be included in the witness's statement; i.e., above the signature line. They do not hold that the information may be omitted from the form entirely. To the contrary, Matter of Barrett, supra, states that "[t]his witness identification information must now be added beneath the witness's signature prior to filing the petition with the Board of Elections ( see, Election Law § 6-132)."
Conversely, the respondent's view is bolstered by a recent case in which the Third Department articulated what is essentially a substantial compliance standard with respect to the filing of an independent nominating petition pursuant to Election Law § 6-140. In Matter of Hurst v. Board of Elections of Broome County [ 265 A.D.2d 590], on an equivalent form of designating petition, the witness identification information was left blank. The Court held that
"[i]nasmuch as the petition contains sufficient information to clearly demonstrate that petitioner is a resident of the political subdivision in which the office is to be voted, all of the substantive requirements of witness eligibility have been satisfied ( see Election Law § 6-140[1][b]) and the omission of redundant witness identification information was an inconsequential violation of the statute." Id. at 591.
Indirectly, however, Hurst is contradicted by a later holding of the Court of Appeals. In Matter of Stoppenbach v. Sweeney [ 98 N.Y.2d 431], the Court held that compliance with the requirements of Election Law § 6-130 was a matter of substance and not of form, and, accordingly, the failure of a person signing a petition to set forth the town of his residence invalidated that person's signature.
The Court finds that, although applicable by analogy, neither Stoppenbach nor Hurst is directly controlling here. Neither case deals with the specific statutory section at issue in this proceeding, and both holdings may reflect the peculiar history or rationale of the statute with which they are concerned. See, e.g., O'Dwyer v. Urbankski, 197 A.D.2d 579 (Holding that failure to adhere to the mandates of Election Law § 6-130 was fatal, the Second Department in 1993 distinguished and declined to follow recent cases, including Matter of Barratt v. Brodsky, supra, construing Election Law § 6-132, on the basis that Section § 6-130, unlike Section § 6-132, had not been amended by the Election Law Reform Act of 1992.)
Absent controlling authority, the Court must refer to the statute itself for guidance. Election Law § 6-132[2] reads, in relevant part:
"Witness identification information: The following information must be completed prior to filing with the board of elections in order for this petition sheet to be valid.
Town or City County. . . ."
The language could not be more explicit. The town or city must be provided or the petition is not valid. If the Election Law Reform Act of 1992 and corresponding case law cast doubt upon the Legislature's intent regarding this provision, such doubt is dispelled by subsequent legislative developments. Specifically, the Legislature amended Election Law § 6-132 four times in the years from 1995 through 2000, eliminating, among other things, the requirement to designate wards, assembly districts and election districts, but it left intact the language cited above, mandating the inclusion of the subscribing witness's town or city. See L. 1995, c. 476, § 1; L. 1996, c. 197, § 1; L. 1996, c. 709, § 2; L. 2000, c. 235, § 1, eff. Aug. 16, 2000.
This Court finds that the Legislature intended to require strict compliance with the provisions of Election Law § 6-132[2]. This interpretation comports with a broad reading of Matter of Stoppenbach, supra, which expressly reaffirmed the Court of Appeals' adherence to its precedent in Matter of Frome, supra. Stoppenbach stands for the general proposition that compliance with the form of petition set forth in the Election Law is a matter of substance and not of form. Each item of information sought represents the legislatively mandated content of the petition, the absence of which invalidates the petition. A contrary interpretation would encourage carelessness in the completion of the forms. More importantly, a contrary interpretation would require the Court to embark upon a fact-dependent inquiry each time an item of required information is missing, to determine if the remaining information is sufficient to fulfill the statutory purpose. This prospect, of cumbersome Court proceedings and potentially inconsistent results, can hardly be what the Legislature intended. Moreover, in view of the practical reality that most, if not all, challenges to designating petitions are politically motivated, a clear, absolute, and uniformly-applied rule more aptly promotes the integrity of the election process.
The Court recognizes that adhering to this principle may occasionally result in the forfeiture of otherwise valid signatures on the basis of an inadvertent, arguably inconsequential violation of the statute. However, the Legislature intended a bright line rule, and this Court is not authorized to substitute its judgment for that of the Legislature.
Nor may the Court invalidate the law itself without compelling constitutional grounds. Respondent points out that Election Law § 6-132[2] was held unconstitutional by the Court of Appeals in Matter of La Brake v. Dukes, 96 N.Y.2d 913. In La Brake, however, the only provision of Election Law § 6-132[2] that was held unconstitutional was the requirement that the subscribing witness be "a resident of the political subdivision in which the office or position is to be voted for." The Court of Appeals reasoned that the residency requirement constituted a severe burden on core political speech, and thus was subject to strict judicial scrutiny. The case did not address the requirement that the subscribing witness's town or city be specifically designated on the form, apart from the witness's residence address.
In Molinari v. Powers [ 82 F. Supp.2d 57], a federal district court found New York's ballot access scheme, as a whole, unconstitutional, as applied in the context of a presidential primary election. There the Court found the town/city requirement, in itself, unconstitutional, but its rationale was based primarily on its view that the main purpose of this requirement was to facilitate verification of compliance with an unconstitutional residency requirement. In addition, the Court found that the town/city requirement was superfluous, given statewide computerization of the lists of registered voters, which allowed the State Board of Elections to easily confirm the registration status of witnesses or signers. Finally, the Court found the town/city requirement to be a "trap for the unwary." Evidence was presented to that Court that many witnesses and signers, tending to consider the village named in their postal address as their "town", filled in the form incorrectly, resulting in the invalidation of thousands of otherwise valid signatures.
This Court finds that neither La Brake nor Molinari compels the finding that the town/city requirement of Election Law § 6-132[2] is unconstitutional in the instant context. The witness identification requirement, in itself, does not unduly burden core political speech, so long as it is not tied to any residency requirement. To properly complete a simple, one-page form is not an ominous burden. It is a ministerial act, requiring only a minimum of time and attention to detail. The requirement does not hinder the process of gathering signatures as it does not impose a barrier to otherwise eligible witnesses. Although the Court does not deny the potential "trap for the unwary" posed by this requirement, there has been no evidence before the Court that such potential has been realized in this petitioning process. The Court here, unlike the Molinari Court, has no evidence of a significant number of invalidations based upon the designation of the wrong political subdivision. The issue here is the failure to fill in any town in the witness identification information, not the designation of the wrong town. The town/city requirement constitutes a simple regulation of the election process, imposing an insignificant procedural burden. Accordingly, in the present context, the Court cannot find that this requirement is subject to the highest level of judicial scrutiny.
Moreover, the Court finds that the law has a rational basis; namely, to facilitate verification of the identity and eligibility of subscribing witnesses by the local Boards of Elections. The Boards have a legitimate interest in locating a witness within a particular jurisdiction for purposes of identification, as opposed to preclusion. There was no testimony here, as in Molinari, that such information was rendered superfluous by the easy access to, and routine use of, computerized voter registration lists by local Boards of Elections. Although such town/city information may not be necessary, in every instance, to identify a witness, there is no question that it can be useful, especially where the name or street address is not unique, or the street runs through more than one jurisdiction. The law is not rendered invalid by the exemption of notaries public or commissioners of deeds from the town/city requirement. S ee Election Law § 6-132[3]. A reasonable distinction can be made based upon the fact that, pursuant to state registration requirements, current identifying information with respect to these individuals is systematically maintained by the County Clerk. See, Public Officers Law § 8; Executive Law § 131.
Finding no constitutional transgression, this Court must uphold the express will of the Legislature. The Court determines that the Legislature intended strict compliance with the requirements of Election Law § 6-132. Failure to furnish the witness's town or city in the Witness Identification Information prior to submission of the petition to the Board Elections invalidates the signatures on that petition. Accordingly, it is
ORDERED, that the petition is granted as follows: The July 28, 2003 determination of the BOARD is reversed, and the Designating Petitions are declared invalid, void and of no effect. The BOARD shall not place or print the name of respondent ANGELO P. FERRARA on the official ballot to be used for such purpose, as a designee or nominee of the Independence Party for election to the public office of Town Councilman, Town of North Hempstead, 3rd District, County of Nassau, in the Primary Election scheduled to be held on the 9th day of September, 2003 or in the General Election to be held on the 4th day of November, 2003.