Opinion
804311/2020
04-28-2020
In the Matter of Application of Petitioner Lisa SAUNDERS, Petitioner v. Emin Eddie EGRIU, Respondent-Candidate, New York State Board of Elections, Peter S. Kosinski, Douglas Kellner, (one vacancy), and Andrew Spano, Commissioners of and Constituting the New York State Board of Elections Respondent, For an Order and Judgment pursuant to New York State Election Law Articles 6 and 16 invalidating Respondent - Candidate Emin Eddie Egriu's Multiple-Political-Party Designating Petition for the public office of Representative in Congress U.S. House of Representatives, 26th District, State of New York, filed with the New York State Board of Elections on March 20, 2020 and removing his name from the Ballot for the June 23, 2020 Primary Election.
Jerome D. Schad, Esq. Attorney for the Petitioner Lisa Saunders James M. Ostrowski, Esq. and Jeffrey M. Binder, Esq. Attorneys for Respondent Emin Egriu Brian Quail, Esq. Attorney for the New York State Board of Elections
Jerome D. Schad, Esq. Attorney for the Petitioner Lisa Saunders
James M. Ostrowski, Esq. and Jeffrey M. Binder, Esq. Attorneys for Respondent Emin Egriu
Brian Quail, Esq. Attorney for the New York State Board of Elections
Dennis E. Ward, J.
DECISION AND ORDER
This is a proceeding pursuant to Election Law § 16-102, which seeks to invalidate a designating petition timely filed by candidate Emin Eddie Egriu (hereinafter, "candidate") with the New York State Board of Elections (hereinafter, "Board"), with which he purportedly seeks the nomination for Member of Congress in the 26th Congressional District of New York State for the Democratic Party.
Petitioner Saunders (hereinafter, "petitioner") duly filed timely objections to the candidate's three volume designating petition with the Board, pursuant to Election Law, § 6-154(2) and the Board's regulation, 9 NYCRR 6204.1 No action had yet been taken by the Board when the petitioner also timely filed this anticipatory invalidation proceeding.
Facts:
The essential facts are not in dispute. The candidate circulated sheets for the signatures of enrolled party members for two political parties — the Democratic Party and the Libertarian Party.
When the candidate filed such sheets with the Board on March 20, 2020 (the last day for filing) the sheets were filed in three (3) volumes:
The first volume cover sheet indicated it was Volume One of three volumes and was titled "Libertarian Party".
The second volume cover sheet indicated it was Volume Two of the three volumes and was titled "Democratic Party".
The third volume cover sheet indicated it was Volume Three of three volumes and was titled "Democratic Party".
The Board's staff, conducting its facial review as required by 9 NYCRR 6215.7(a) of its Rules and Regulations, notified the candidate that the cover sheet did not comply with the requirements of § 6215.7(a) by timely notice given to the candidate as required by § 6215.7(b). The candidate thereafter filed an "amended" cover sheet within the three-day "cure" time period under § 6215.7(d), indicating that Volume 2 and Volume 3 were actually a Democratic Party designating petition for the same office, separate and distinct from the Libertarian designating petition.
Objections:
The petitioner timely filed general and specific objections to the designating petition as originally filed, pursuant to Election Law, § 6-154(2) and 9 NYCRR 6204.1.
The full Board thereafter reviewed the objections, as the preliminary notice issued upon the Board's facial review is without prejudice for a full review under a heightened level of scrutiny, when valid objections are filed. See , 9 NYCRR 6215.7(a).
At its meeting on April 27, 2020, the Board denied the Petitioner's objection as it relates to a Democratic Party designating petition of the candidate. The Board did invalidate the candidate's Libertarian Party designating petition for the (unrelated) failure to file an authorization of candidacy as required by Election Law, § 6-120.
Due to the tight time frame for election matters, and any appellate review thereof, this court heard argument prior to the Board's decision and then again after such determination. A decision was withheld until after the Board acted.
Discussion :
Although the filing by the candidate is extremely unusual, there is really a single issue to be determined. That is, whether the document filed by the candidate in three volumes was a single designating petition or whether it was two designating petitions (one for the Libertarian Party and one for the Democratic Party).
If the document filed is actually two designating petitions, and each with its own cover sheet, then the candidate would be afforded the right to correct the cover sheet. It is undisputed that the candidate here did submit an amended cover sheet, indicating a separate Democratic Party petition of two volumes, within the three-day "cure" period to file such corrections as required under 9 NYCRR 6215.7(d).
The ultimate issue, however, is whether the original three-volume document, as indicated by the cover sheet on the first volume, was filed as a single designating petition, whether for the Libertarian Party, as would appear from the cover sheet on the first volume or as a "multi-party petition" of both the Democratic Party and the Libertarian Party.
The cover sheet of the first volume is of somewhat greater importance since it must contain the number of volumes in the entire petition. 9 NYCRR 6215.2(a)(2). It is that cover sheet which not only contains information as to the candidate and office but also directs the Board, opposing candidates and potential objectors as to the political party for which the designation is being sought.
When the candidate files the first of three volumes with a cover sheet stating it is for the Libertarian Party, interested parties will likely rely upon that — in a case such as the present one, interested members of the Democratic Party.
If the candidate's position herein were sustained, any potential Democratic Party objector might miss the strict three-day general objection deadline imposed by Election Law § 6-154 (2). If the candidate is thereafter given his three day "cure" period, the potential objectors would be barred from any challenge to the Democratic Party designating petition, for any number of potential defects in the petition. They would then also lack standing under Election Law, § 16-102(1) and would similarly be foreclosed from initiating an invalidation proceeding.
The Board, and more importantly, potential objectors, all have the right to rely upon the information on the cover sheet (here, of the first volume). In the present case, that information was that there was a single three-volume designating petition filed for the Libertarian Party ( Matter of Balberg v. Board of Elections in the City of NY , 109 AD3d 910 [2nd Dept. 2013] ).
The candidate's characterization of the issue as one of a cover sheet on a Democratic Party designating petition with a defect (and which is therefore curable) is misplaced.
On its face, the first volume of the three-volume designating petition states the total number of volumes in a single petition. That is consistent with the requirement of the Board's regulation imposing that additional requirement on the cover sheet of the first volume of a multi-volume petition. See , 9 NYCRR 6215(a)(2).
To permit the three-day "cure" after the expiration of the filing period for petitions, could easily frustrate any potential objectors. In a case such as the present, an objector who may have no interest in a Libertarian Party designating petition but would have an interest in a Democratic Party designating petition, who must file general objections within three days of the petition's receipt by the Board. Election Law, § 6-154(2).
To permit such a "cure" could frustrate the carefully constructed short time frame for the objection process under the Election Law:
While it is well settled that the Board may not reject a designating petition based upon a minor cover sheet error, when the cover sheet is otherwise in substantial compliance with the Election Law, this does not hold true when the defect presents a risk of fraud or confusion (citations omitted).
Matter of Gangemi v. Board of Elections in the City of NY , 40 Misc 3d 1232(A) (Sup.Ct. Kings County, 2013)
In the present case, the designating petition, as filed, clearly spoke to all interested parties that it was a single petition, consisting of three volumes. That is not an inconsequential error that can be "cured" after the expiration of the petition filing period.
Therefore, for the reasons stated, the petition under Election Law, § 16-102 to invalidate the candidate's purported remaining (Democratic Party) designating petition is Granted. The Respondent New York State Board of Elections is directed to remove the name of candidate Emin Eddie Egriu from the ballot for the June 23, 2020 Democratic primary election.
This constitutes the Decision and Order of the court.