Voigt v. N.Y.S. Bd. of Elections
| Decision Date | 22 June 2022 |
| Docket Number | Index No. 904208-22 |
| Citation | 75 Misc.3d 1021,171 N.Y.S.3d 793 |
| Parties | In the Matter of the Application of Andrew VOIGT and David Schreiber, Citizen-Objector, Petitioners, v. The NEW YORK STATE BOARD OF ELECTIONS, Rebecca Shiroff, a purportedly designated State Senate candidate of the Republican party and Benedicte Doran and Debra Cody, the individuals who constituted the majority of the Committee to Fill Vacancies that issued a Certificate of Substitution to fill a vacancy in the Republican Party designation for the office of New York State Senator in the 55th Senate District, Respondents. |
| Court | New York Supreme Court |
Greenberg Traurig, Attorneys for Petitioners, Robert M. Harding, Esq., of counsel, 54 State Street, Albany, New York 12207
Messina, Perillo and Hill, LLP, Attorneys for Respondents, Rebecca Shiroff, Benedicte Doran and Debra Cody, John Ciampoli, Esq., of counsel, 285 West Main Street, Sayville, New York 11782
In this Election Law proceeding, the petitioners Andrew Voigt and David Schreiber now challenge a Certificate of Substitution filed with the respondent New York State Board of Elections ("Respondent-Board") designating the respondent Rebecca Shiroff ("Shiroff") as a Republican Party candidate for the public office of State Senator for the 50th Senatorial District in the primary election to be held on August 23, 2022. The petitioners also seek an order enjoining and restraining the Respondent-Board from certifying the candidacy of Shiroff and placing her name on the August 23, 2022 ballots in the Republican Party primary election for the 50th Senatorial District. The respondents Rebecca Shiroff, Benedicte Doran, and Debra Cody oppose, variously asserting that the petitioners failed to name a necessary party, that the instant proceeding is premature, deny the petitioner's allegations, and have cross moved for a change venue/consolidation with a matter pending in Steuben County ( Harkenrider v. Hochul , Steuben County Index No. E2022-0116 CV). The petitioners oppose the cross motion for change of venue/consolidation.
For the procedural reasons that follow the Court denies the petition to invalidate the Substitution Certification. The cross motion for a change of venue/consolidation is denied as academic.
By way of factual background, on May 27, 2022, consistent with an Order of the Supreme Court of the State of New York, Steuben County, Index No. E2022-0116CV (the "McAllister Order"), Fanny Villarreal ("Villarreal") filed with the State Board of Elections a "Certificate of Designation for the August 23, 2022 Primary Election Ballot" — having previously filed a designating petition to run as a Republican for State Senator, Senate District 55. Villarreal further states in the Designation Certificate that the prior designation should be directed for "New York State Senator, Senate District 50." Villarreal contemporaneously filed a "Certificate of Declination," stating that, although she had been designated as a candidate for the "50th Senate District," she declined that designation. Also on May 27, 2022, individuals purporting to be "a majority of the duly authorized Committee to Fill Vacancies" ("COV") for Fanny Villarreal filed with the State Board a "Substitution Certificate", which states that "there exists a vacancy ... for the office of New York State Senator in the 55th district ... caused by the declination..of Fanny Villarreal." The COV designated Rebecca Shiroff ("Shiroff") to fill the vacancy. The "Consent by Substituted Candidate" indicates that Shiroff accepted the designation of the Republican Party for the "office of NY State Senator, 50."
The Court is mindful that this challenge takes place in the wake of the Court of Appeals determination regarding the 2022 re-districting of State Senate and Congressional districts. As directed by the Court of Appeals ( Harkenrider v. Hochul, ––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2022 WL 1236822 ), the primary election date for candidates for State Senate and Congressional Districts scheduled for June 28, 2022 was ordered to be conducted on August 23, 2022. Further, following remittal from the Court of Appeals, and at its direction, the Supreme Court (McAllister, J), on May 11, 2022 made an order ("McAllister Order") that created two specific ballot access methodologies and a political calendar for each methodology for the primary election to be held on August 23, 2022. Particularly, and as relevant to this proceeding, one access methodology and calendar was applicable for candidates for State Senate "duly designated for nomination at the June 28, 2022 primary ... whose petition was valid at the board of elections ... (who) shall be deemed to have likewise duly designated for the same party for the office of State Senator at the August 23, 2022 primary election in any Senate District for which they are constitutionally and legally eligible to run, to be specified by such candidate in a signed writing filed with the appropriate board of elections no later than May 15, 2022 ..."
The petitioners argue that the respondent COV had no authority to take actions relating to Senate District...
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