Whalen v. Asch

2023 NY Slip Op 50413(U)

In the Matter of the Application of Jennifer Whalen, Petitioner, v. Ansel Asch and the Albany County Board of Elections, Respondents.

Index No. 903388-23

Supreme Court, Albany County

April 27, 2023

Unpublished Opinion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. ...