League of Women Voters of N.Y.S. v. N.Y.S. Bd. of Elections

75 Misc.3d 949

172 N.Y.S.3d 327

In the Matter of the Application of LEAGUE OF WOMEN VOTERS OF NEW YORK STATE, Petitioner,

v.NEW YORK STATE BOARD OF ELECTIONS, Respondent.

Index No. 903900-22

Supreme Court, Albany County, New York.

Decided on June 2, 2022

Holwell Shuster & Goldberg, LLP, Attorneys for Petitioner, Gregory Dubinsky, Esq., of counsel, 425 Lexington Avenue, 14th Floor, New York, New York 10017

New York State Board of Elections, Attorney for Respondent, Brian Lee Quail, Esq., 40 N. Pearl Street Ste 5, Albany, New York 12207

Henry F. Zwack, J.

In this Article 78 proceeding, the petitioner, League of Women Voters of New York State ("League") seeks as against the respondent New York State Board of Elections ("BOE") a writ of mandamus, a writ of prohibition, and declaratory judgment — arguing that the BOE failed to perform a duty imposed on it by law, when it certified the 2022 Assembly primary ballot without first properly configuring the Assembly district maps as required by a 2014 Constitutional Amendment. The League specifically asks the Court to order the BOE to cease any further actions to facilitate the June 28, 2022 Assembly primary elections. The League argues that the BOE, by certifying the Assembly primary ballots, acted and continues to act without, or in excess, of its jurisdiction, and should be ordered to refrain from carrying out the June 28, 2022 primary elections for the Assembly unless and until such time as valid Assembly district maps are implemented. The League also seeks a declaratory judgment that the BOE's certification of the Assembly primary ballots was irrational, affected by error of law, arbitrary and capricious, and an abuse of discretion. The League requests that the BOE's certifications be annulled, and the Assembly primary election be delayed until such time as valid maps are drawn. The League also asserts it is entitled to attorneys fees and expenses under CPLR Article 86, when the aforementioned relief is granted. The BOE opposes.

By way of background, in 2014 New York amended the Constitution (Art. III, § 4 (b)) to address the gerrymandering of the State Senate, State Assembly, and congressional districts, by creating an independent redistricting commission ("IRC") to draft maps and hold public hearings — after which the IRC would submit new district maps to the Legislature for approval. If the Legislature or Governor did not approve the submitted maps, the IRC would have 15 days to redraw and submit new maps. It is only after the Legislature voted to reject, or the Governor did not approve, the second IRC maps that the Legislature would get to enact its own district maps with the approval by the Governor. This year, the IRC first submitted two competing plans to the Legislature, which it voted to reject. The IRC then advised that it was deadlocked and would not submit a further set of maps to the Legislature. Without a further vote on any maps, the Legislature enacted its own set of maps, which were approved by the Governor. This led to Harkenrider v. Hochul, No. E2022-016CV, ––– Misc.3d ––––, ––– N.Y.S.3d ––––, 2022 WL 1819491 (Sup. Ct., Stueben County), ( Harkenrider I ) , which challenged the constitutionality of the State Senate and congressional maps — with the Court finding on March 31, 2022 that the State Senate, Assembly and congressional maps "void" under the State Constitution.¹ Following an appeal, the Appellate Division, Fourth Department modified — vacating the declaration that the State Senate and Assembly maps were unconstitutional, but otherwise affirming that the congressional maps were unconstitutional ( Harkenrider v. Hochul, 204 A.D.3d 1366, 167 N.Y.S.3d 659 ), ( Harkenrider II ). On an appeal of portions of Harkenrider II — limited to only the declarations involving the State Senate and congressional maps — on April 27, 2022, the Court of Appeals ( Harkenrider v. Hochul, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 WL 1236822 ) ( Harkenrider, III ), modified, in sum declaring the State Senate and congressional maps void as unconstitutional, with the matter remitted "to Supreme Court which, the assistance of the special master ... shall adopt constitutional maps with all due haste." In a footnote (15), the Court declined to invalidate the Assembly maps, on account of the petitioners not seeking that relief nor challenging the Appellate Division's vacatur of the Supreme Court's declaration that the State Assembly maps were void. On a subsequent motion to intervene in Harkenrider I , the purpose of which was to have the Assembly maps declared unconstitutional and redrawn as well, the Court (McAllister, J.) found, by Decision and Order dated May 11, 2022, that intervention was improper, as the Assembly maps were not an issue in then pending proceeding, and the belated attempt by the interveners was untimely in that it would be unduly prejudicial.

Now, in support of this application, and as its First Cause of Action for Mandamus, the League argues that the BOE should have acted to create new, lawful Assembly maps, or at least refrain from compounding the Legislature's constitutional violation by certifying the primary ballots in the Assembly races. It asks the Court to revoke the BOE's May 4, 2022 certification of the current Assembly primary ballots, arguing that, because there are presently no lawful Assembly districts, the BOE violated its duty to carry out elections in accordance with the law.

In its Second Cause of Action for a Writ of Prohibition, the League argues that the Election Law requires candidates for Assembly to reside in the districts they seek to represent, and, given that there are currently no valid Assembly districts, the certification of the ballot was made in violation of the law. Again, the League seeks an order prohibiting the BOE from carrying out the June 28, 2022 primary elections.

In its Third Cause of Action for declaratory judgment, the League argues that the BOE'S determination to certify the 2022 Assembly primary ballot was arbitrary and capricious and constitutes an abuse of discretion.

In opposition, the BOE points out that on May 4, 2022, as it was required to do by Section 4-110 of the Election Law, it certified Assembly and statewide candidates for the June 28, 2022 primary. At that time, there was no court proceeding or order enjoining that certification. The primary ballot for each party is a unified ballot and includes candidates for any Assembly primary, Governor, Lieutenant Governor, and other elected offices, such as Supreme Court Justices. As of June 1, 2022 (the return date of this Petition) early voting for the June 28, 2022 primary will begin in 18 days in the 150 Assembly Districts across the state, and at least 700,000 ballots have already been...