Cahill v. Kellner

• Citation: 994 N.Y.S.2d 202,2014 N.Y. Slip Op. 06886,121 A.D.3d 1160
• Decision Date: 10 October 2014
• Docket Number: 519700.
• Parties: In the Matter of John CAHILL, as Candidate for Attorney General of the State of New York, et al., Appellants, v. Douglas A. KELLNER et al., as Commissioners Constituting the New York State Board of Elections, et al., Respondents, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 1160
994 N.Y.S.2d 202
2014 N.Y. Slip Op. 06886

In the Matter of John CAHILL, as Candidate for Attorney General of the State of New York, et al., Appellants
v.
Douglas A. KELLNER et al., as Commissioners Constituting the New York State Board of Elections, et al., Respondents, et al., Respondents.

519700.

Supreme Court, Appellate Division, Third Department, New York.

Oct. 10, 2014.

994 N.Y.S.2d 203

Jeffrey T. Buley, Albany, for appellants.

Kathleen O'Keefe, New York State Board of Elections, Albany, for Douglas A. Kellner and another, respondents.

Todd D. Valentine, New York State Board of Elections, Albany, for James A. Walsh and another, respondents.

Before: STEIN, J.P., GARRY, ROSE, LYNCH and DEVINE, JJ.

Opinion

PER CURIAM.

121 A.D.3d 1160

Appeal from an order and judgment of the Supreme Court (McDonough, J.), entered September 26, 2014 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to Election Law § 16–104, to, among other things, compel the New York State Board of Elections and the

121 A.D.3d 1161

Greene County Board of Elections to place the names of petitioners on a separate row or column with other candidates nominated by the independent body known as the Stop Common Core Party for certain public offices on the ballot for the November 4, 2014 general election.

Petitioners, John Cahill, Robert Antonacci and Joseph Stanzione, are candidates for the public offices of Attorney General, Comptroller and Greene County District Attorney, respectively. Petitioners have secured the nominations of the Republican and Conservative Parties, as well as the nomination of the Stop Common Core Party, which is an independent body (see Election Law § 1–104[3], [12] ). The Stop Common Core Party also nominated Rob Astorino and Chris Moss for the public offices of Governor and Lieutenant Governor, respectively.

Pursuant to Election Law § 7–104(4)(c), the name of a candidate that has been nominated by two or more major parties “shall appear only in each row or column containing generally the names of candidates for other offices nominated by ... such part[ies]” (emphasis added); the candidate is not entitled to an additional row or column under the emblem of an independent body. Rather, the independent body's name may appear in the voting square associated with the candidate on one of the political parties' ballot lines (see Election Law § 7–104[4][c] ). An exception to this rule is set forth in Election Law § 7–104(5), which provides that “the name of a person who is nominated for the office of governor, or state senator, or member of the assembly, shall appear on the ballot as many times as there are parties or independent bodies nominating him or her.” Thus, here, the Stop Common Core Party candidates for Governor and Lieutenant Governor will appear on row I of the ballots for counties outside of New York City, next to the Stop Common Core Party's name and emblem. In contrast, petitioners' names are not listed on the line for the Stop Common Core Party; rather, they are listed only on the two party lines for which they were nominated, with the words “Stop Common Core” above their names on the Conservative row on the ballot.¹ Moreover, the record before us includes a proposed ballot indicating

994 N.Y.S.2d 204

that, due to the number of independent bodies nominating candidates for the gubernatorial election, row I would be shared between

121 A.D.3d 1162

the Stop Common Core Party and another independent body, the Rent is 2 Damn High Party. The latter body nominated a candidate for Comptroller who has not been nominated by any major party and, thus, his name appears on row I of the proposed ballot for the column under “ Comptroller”—with the words “Rent is 2 Damn High” printed above his name—pursuant to Election Law § 7–104. The space for Attorney General is simply left blank.²

Petitioners commenced this proceeding seeking a declaration that Election Law § 7–104(4)(c) is unconstitutional as applied to them because it violates their rights to freedom of speech and association guaranteed by the 1st and 14th Amendments of the U.S. Constitution. Although petitioners did not dispute that respondents complied with section 7–104(4)(c), they asserted that strict enforcement of that provision creates a patch-worked and illogical ballot that promotes voter confusion, makes it more difficult for Stop Common Core Party supporters to locate petitioners, and impinges upon petitioners' right to associate and express themselves as a party slate of candidates who share common ideals. Petitioners further sought to compel respondents to place their names on the Stop Common Core Party line.³ As they do in their submissions to this Court, certain respondents argued that the petition should be dismissed, while others took no position or requested that Supreme Court grant the petition to bring clarity to the general election ballot. Supreme Court dismissed the petition, prompting this appeal.

Petitioners argue that there is no rational basis for Election Law § 7–104 to afford candidates for certain offices—Governor, Senator, and Member of the Assembly—the right to unlimited ballot lines, while denying that right to all other candidates. Inasmuch as the Stop Common Core Party line is required to be on the ballot by virtue of that body nominating a candidate for Governor (see Election Law § 7–104[5] ), petitioners assert that Court of Appeals precedent requires that their names also be

121 A.D.3d 1163

placed on that line to prevent “unnecessary discrimination between the independent [body voter] and the party voter in respect of the facilities offered ... for a prompt and intelligent and ready expression of his [or her] choice” (Matter of Crane v. Voorhis, 257 N.Y. 298, 304, 178 N.E. 169 [1931] ). Petitioners are correct that an older line of Court of Appeals cases held that where a “strict observance of the letter of” a predecessor statute to section 7–104 “would interfere unnecessarily with the intelligent and ready expression of ... choice by an independent voter,” the statute could not constitutionally be applied as written (Matter of Belford v. Board of Elections of Nassau County, 306 N.Y. 70, 73, 115 N.E.2d 658 [1953] [internal

994 N.Y.S.2d 205

quotation marks and citation omitted]; see Matter of Aurelio, 291 N.Y. 176, 180–181, 51 N.E.2d 695 [1943] ; Matter of Crane v. Voorhis, 257 N.Y. at 301–304, 178 N.E. 169 ; Matter of...