Publisher's Synopsis
MOTION PURSUANT TO RULE 23.3 FOR STAY OF DECISION TO REMOVE PETITIONER-CANDIDATES FROM THE BALLOT This proceeding is brought under Election Law Sections 16-100 and 16-102 and other provisions of New York Law. Sam Sloan is a candidate for Mayor of the City of New York. Richard Bozulich is a candidate for Comptroller of the City of New York. Thomas R. Stevens is a candidate for Public Advocate of the City of New York. All are registered Republicans. Supporters of the candidates circulated petitions and the requisite number of signatures were obtained to get on the ballot. The signed petitions were timely submitted to the Board of Elections in the City of New York. The Petitions complied in every respect with the election rules, including cover sheets and wording of the petitions. There were enough signatures, the cover sheet was done properly and the wording of the petition was correct. However, on July 31, 2013, all three of these candidates were thrown off the ballot after a hearing by the New York City Board of Elections for one reason only, which was that these were designating petitions for the Republican Party Primary, and the subscribing witnesses (not the signators) were not registered as Republicans with the New York City Board of Elections. The statute which under the interpretation by the Board of Elections requires the mere witnesses to be Republicans is Section 132 (2) of New York Election law states: There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state and an enrolled voter of the same political party as the voters qualified to sign the petition, and who is also a resident of the political subdivision in which the office or position is to be voted for. This provision was declared unconstitutional in the case Lerman v. Bd. of Elections of N.Y.C., 232 F.3d 135, 145 (2d Cir. 2000). This is explained in Dekom vs. New York, 12-CV-1318 (JS)(ARL). However, at the hearing of this appeal before the Appellate Division on August 13, 2013 and before a panel of the New York Court of Appeals on April 21, 2013, counsel for the Board of Elections and the Department of Law suggested that the Lerner decision has been overruled by the Maslow case, which is Maslow v. Board of Elections in City of N.Y., 658 F.3d 291 (2d Cir. 2011). Petitioner-Appellant contends that the Maslow case has nothing to do with the instant case because the Maslow Case was a test case for declaratory relief, not an actual case, whereas in the instant the petitioners have been trying hard to get on the ballot and have spent considerable money to do so, yet have been thwarted by an unwritten rule they had no way to know about. The First Amendment to the Constitution provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Here the law clearly infringes the Constitutional Right "to petition the government." There have been several cases on this subject, but all of them have been federal cases. The subscribing witness rule was found unconstitutional in Kaloshi v. New York City Board of Elections, 02 CV 4762, 2002 WL 31051530 (E.D.N.Y. Sept. 6, 2002). This is a lengthy and reasoned opinion that declared the specific statute in question to be unconstitutional. This is the only reported case that deals directly with this statute. The main operative fact is it is undisputed that the petitioners collected 3905 valid signatures whereas only 3750 are required, except that these 3905 signatures were declared invalid because the signatures were not witnessed by Republicans. While there have been several federal cases related to this issue, there has never been a reported state case directly on this issue.
