Rep. Sean Patrick Maloney’s simultaneous campaigns for state attorney general and Congress may continue unhindered until the statewide primary in September, an Albany County Supreme Court justice decided Thursday.
Justice Denise Hartman said a section of state election law allows Maloney to decline his nomination for Congress if he wins the September primary for state attorney general. Local party leaders would then choose his replacement on the ballot.
Maloney, a Democrat, has said he will drop his re-election bid for Congress if he wins the statewide primary for attorney general in September. He currently represents the 18th Congressional District in the lower Hudson Valley.
John Ciampoli, an attorney representing the plaintiffs in the challenge against Maloney, said he hasn’t decided whether they will appeal.
“I think that actually there are a few errors in the decision that we’ve caught already,” Ciampoli said. “The question is are they sufficient to support an appeal and I think one of the errors is an error of law and an error of public policy.”
In arguments Tuesday, Ciampoli said Maloney’s concurrent campaigns are illegal because the two offices are incompatible. Maloney would not be able to serve in both positions at once.
Hartman dismissed that argument in her decision Thursday. She said that since Maloney is not yet the Democratic nominee for two offices, there is no statutory requirement for him to abandon one of his campaigns.
“If Mr. Maloney obtains the Democratic nomination for New York attorney general, the statute on its face would allow him to decline the earlier nominations for Congress,” Hartman wrote. “But here, Mr. Maloney has not received the nomination that would place him on the same ballot for two incompatible offices.
“If he does receive the Democratic nomination to run for attorney general, a statutory mechanism exists to allow him to decline the Congressional nominations in favor of the attorney general nomination,” Hartman said.
That statute, Election Law Section 6-146, addresses a second nomination for office after a candidate has already received an initial nomination for a different office. The law says a person who receives a second nomination in the same election cycle “may decline such first nomination or nominations not later than the third day after the filing of the certificate of his nomination or nominations for such other office.”
Ciampoli also argued on Tuesday that Maloney’s concurrent campaigns disenfranchise the electorate because voters do not know who their choice will be in November against James O’Donnell, the Republican nominee in Maloney’s district. O’Donnell is one of the plaintiffs in the case.
“When we went into court, our argument was based upon the fact that the voters’ right to vote, and as the Court of Appeals has said, a right to have a meaningful choice in who they’re voting for, is the paramount priority here,” Ciampoli said.
Hartman also rejected that claim, saying the section of applicable law was codified by the Legislature years after a Court of Appeals decision Ciampoli used to support his case.
In that case, a candidate had been nominated to run for Jefferson County district attorney and county judge. The Court of Appeals rejected his nomination for the judge position and compelled him to run only for district attorney.
The court had called the candidate’s dual nominations a “sham,” but Hartman said the law passed following that decision makes Maloney’s situation different.
“In other words, a statutory release valve exists to avoid the sham of Mr. Maloney presenting himself on one ballot for two incompatible offices,” Hartman wrote.
Martin E. Connor, who is representing the Maloney campaign, said he’s not worried about an appeal, partly because of that argument.
“The statute trumps all the older cases,” Connor said. “It was later enacted.”
Ciampoli was originally seeking to challenge Maloney’s petitions for both attorney general and Congress, which would leave him off the ballot entirely. He decided to drop the challenge to the petition for attorney general at the request of Maloney’s campaign, he said after court Tuesday.
“If I invalidate both, there’s less of a choice for attorney general, and there’s no choice for Congress,” Ciampoli said.
Connor agreed with Ciampoli that Maloney would not be able to serve in both offices at once, but he also said that wasn’t the point. He argued that Maloney’s campaigns are lawful because he will not appear on the ballot twice in either the September or November elections.
“Sean Patrick Maloney is not and will not be on the ballot twice in November,” Conner said. “He first needs to get the nomination.”
Maloney is one of four Democrats vying for the nomination for attorney general in September. A recent poll from the Siena Research Institute showed him in second place behind New York City Public Advocate Letitia James, though 42 percent of voters in that poll said they either didn’t know who they would vote for or had no opinion.
If Thursday’s decision is appealed, it will be heard by the Third Department on Aug. 23, the scheduled day for the court to hear cases related to primary ballot access. The Court of Appeals will hear cases the following week.
Read the decision: