Monthly Archives: October 2018

Judicial Conventions Rejected

For the latest on judicial convention processes being rejected, with an impact on the mailing of absentee ballots, read these orders:


Onondaga judges1

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Court Decision On Choosing Party Affiliation

[*1]In re Mark Warren Moody, Petitioner-Appellant,


New York State Board of Elections, et al., Respondents-Respondents.

Mark Warren Moody, appellant pro se.

Barbara D. Underwood, Attorney General, New York (Judith N. Vale of counsel), for State respondents.

Zachary W. Carter, Corporation Counsel, New York (Qian Julie Wang of counsel), for Municipal respondents.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered December 8, 2018 (transferred to this Court from the New York Court of Appeals by order entered March 23, 2017), which denied the petition seeking a judgment declaring that New York’s closed primary election regime, established pursuant to Election Law § 5-304, by requiring voters to choose a party affiliation in advance of the primary, violates the New York State Constitution, and dismissed the proceeding brought pursuant to Election Law article 16, unanimously affirmed, without costs.

It is settled law that New York’s primary election enrollment deadline, which, as pertinent on this appeal, requires that registered voters change their party affiliation at least 25 days prior to the general election preceding the primary in which they intend to vote (see Election Law § 5-304[3]), is rationally related to the legitimate state interests in protecting the viability of the political party system by “inhibit[ing] party raiding” (Rosario v Rockefeller, 410 US 752, 758-762 [1972]; accord Neale v Hayduk, 35 NY2d 182, 187 [1974], appeal dismissed 420 US 915 [1975]; see California Dem. Party v Jones, 530 US 567, 574 [2000]; Matter of Walsh v Katz, 17 NY3d 336, 343 [2011]).

The New York Constitution’s voter franchise protection provisions (see NY Const Art I, § 1; Art II, § 1) do not require that any heightened scrutiny, beyond that afforded under the U.S. Constitution, be applied to the primary deadline provision. Thus, while the disenfranchisement protections of Article I, § 1, do extend to primary elections, the state nonetheless retains “plenary power … to promulgate reasonable regulations for the conduct of elections” (Matter of Davis v Board of Elections of City of N.Y., 5 NY2d 66, 69 [1958]; see Cox v Katz, 30 AD2d 432, 436 [1st Dept 1968], affd 22 NY2d 903 [1968]; Dorfman v Berman, 186 Misc 2d 415, 418 [Sup Ct, Albany County 2000]). Likewise, Article II, § 1, “was not intended to regulate the mode of elections, but rather the qualification of voters” (Matter of Schulz v Horseheads Cent. School Dist. Bd. of Educ., 222 AD2d 819, 820 [3d Dept 1995], appeal dismissed 87 NY2d 967 [1996]; see Matter of Blaikie v Power, 13 NY2d 134, 140 [1963], appeal dismissed 375 US 439 [1964]), and thus does not curtail the Legislature’s otherwise “broad authority … to establish rules regulating the manner of conducting both special and general elections” (Eber v Board of Elections of County of Westchester, 80 Misc 2d 334, 336 [Sup Ct, Westchester County 1974], appeal dismissed 35 NY2d 848 [1974]).

Section 5-304(3)’s reference to the “general election” is not unconstitutionally vague with respect to the primary enrollment deadline for presidential primaries. The Election Law directs that “[t]he general election shall be held annually on the Tuesday next succeeding the first [*2]Monday in November” (Election Law § 8-100[1][c]). Viewed as a whole, the Election Law gives persons of ordinary intelligence fair notice of what they must do to meet the primary enrollment deadline, and likewise provides “officials with clear standards for enforcement” (People v Stuart, 100 NY2d 412, 420 [2003]).





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Odd Ballot Lines Flourish With New York’s System Of Fusion Voting

From City & State’s Annie McDonough “Though most people tend to think of U.S. politics as a two-party system, that isn’t the whole story. Green Party and Libertarian Party politicians pepper local elections, even if these third parties don’t exert much influence. And in New York, two dozen or more party designations have appeared on ballots in a single year. Some of those parties – like the Working Families Party and the Reform Party – have been around for multiple election cycles, building familiarity with New York voters. Others, meanwhile, are a little more offbeat – and ephemeral.”

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Betsy Gotbaum: NY Voters Deserve Better From State

In Newsday, Citizens Union Executive Director Betsy Gotbaum writes: “Some New Yorkers know that Oct. 12 is the deadline to register to vote in November’s elections. But what most people probably don’t realize is that it is also the deadline to change your party registration if you want to vote in a party primary next year.

If that sounds absurd, it is. For all its progressive values, New York State has some of the most backward voting laws in the nation. That must change.

Every single other state in the country provides a deadline to switch party registration that is significantly closer to primary elections.”

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Jerry Goldfeder: An Agenda for New York City’s Public Advocate

Jerry Goldfeder penned a letter that appeared in the New York Times. With his permission, the letter follows here:

To the Editor:

Re “Who Wants to Be Public Advocate? Perhaps New York’s Next Mayor” (news article, Sept. 17):

Thirty years ago, the last time the New York City charter received fundamental revision, the position of public advocate was created to act as an ombudsman and agency watchdog. Four occupants have put their own stamp on the post, but the public still has only a vague sense of its duties.

Several reforms can make the office more effective.

The public advocate should have unfettered subpoena power to bolster the office’s investigatory mandate. This would require City Council action, and the new public advocate should sponsor legislation on his or her first day in office.

The public advocate should also partner with the city comptroller, who has far-reaching auditing authority, to jointly expose fraud, waste and corruption in the city.

And the public advocate should tap into the experience and expertise of the thousands of local community board members throughout the city. A formalized working relationship between the community boards and the public advocate is an opportunity hiding in plain sight.

Such reforms could transform the public advocate into a meaningful position, and attract candidates who actually want the job for its own sake.

Jerry H. Goldfeder
New York
The writer is an election law expert.


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Insurgents Try (And Fail) To Participate In State Dem Committee Meeting

From Rachel Silberstein in the Times Union: “The state Democratic Committee’s fall meeting in Colonie ended abruptly Monday when members of the organization’s energetic progressive caucus tried to introduce a set of resolutions, including one calling for an investigation into how unauthorized campaign mailers attacking gubernatorial candidate Cynthia Nixon were distributed.”

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