Jerry H. Goldfeder and Myrna Perez ()
Editors’ Note: This feature has been updated to reflect a Correction.
Election lawyers are eagerly waiting for the U.S. Supreme Court’s ruling in McCutcheon v. Federal Election Commission. Argued on Oct. 8, 2013 (See Transcript), the court will either continue to chip away at campaign finance regulation, or let its decision in Citizens United v. Federal Elections Commission1 stand as the modern watershed. McCutcheon involves a challenge to aggregate limits an individual can contribute to all federal candidates combined and all political action committees (PACs) combined in an election cycle. Current law allows an individual to contribute a maximum of $123,200 during a two-year election cycle to all candidates, PACs and political party committees. Of that, a person may give only $48,600 to all candidates in the aggregate (but no more than $5,200 to each), and $74,600 to all PACs and party committees (with limited contributions to each of these categories as well).
If the law is struck down, wealthy individuals would be able to contribute $5,200 to all House, Senate and presidential candidates without an aggregate ceiling, and, likewise, contributions to all federal committees, also without an aggregate cap. The central argument raised by the challengers to the law is that an aggregate cap does not address the potential for corrupting (or appearing to corrupt) a federal office holder, and, therefore, is unconstitutional.
New York is home to many election cases. Indeed, it has been estimated that our state courts hear approximately one-half of the country’s campaign litigation.2 The most noteworthy ones involve campaign finance, ballot access and the counting of paper ballots. The latter two are special proceedings, which are highly truncated affairs, where a state Supreme Court hears a case in two or three days without pre-trial discovery, and the Appellate Division meets within days. The Court of Appeals will infrequently hear a case as of right, and almost never grants leave to appeal.
It is extremely rare for candidates or supporters to bring cases against opponents for violations of the campaign finance law,3 but a case similar to McCutcheon is being mounted to the aggregate contribution limit on the amount individuals may give to all state and local candidates in New York.4 Currently, an individual may not contribute more than $150,000 in a calendar year. Here, too, those wishing to deregulate the campaign contribution law argue that limits on contributions to specific candidates are sufficient to address potentially improper conduct.
In that most contributors and political observers do not come anywhere near the current limitation requirements, these controversies may appear to be academic. Two points: We have already seen that there are wealthy individuals who wish to extend their reach, and have the resources to do so; and regulation does tend to mitigate having wealthy spenders drown out the voices of small donors.
Perhaps the reason campaign finance litigation is an outlier in New York is because we have extra-judicial avenues for resolution. Consider an Albany Supreme Court Justice’s opinion when faced with a loan by gubernatorial candidate Tom Golisano of some $500,000 to a lieutenant governor candidate. The loan was not repaid by primary day, and, therefore, was deemed to be a contribution—excessively over the $4,900 contribution limit in that situation. The court said:
Obviously, there is substantial reason to believe that a violation of Article 14 [the campaign finance law] has occurred. However, the remedy lies with the State Board of Elections, which has jurisdiction of, and is responsible for the execution and enforcement of Article 14. See Election Law §3-104.5
Thus, the New York State Board of Elections will, from time to time, contact campaigns to rectify violations of contribution limits. If the violations are systemic or egregious, referrals will be made to district attorneys. The preliminary report of the Moreland Commission suggests that it, too, continues to investigate such violations of the campaign finance law.6
Over the years, ballot access has become quite a bit more liberalized,7 but there are still many ways a candidate can knock an opponent off the ballot. In 2013, the courts handled many cases that raised the usual issues: service of process (petitioners must adhere strictly to the prescriptions of the order to show cause);8 the bona fides of a candidate’s residency (courts will consider all the facts and circumstances);9 strict statutes of limitations (one cannot transmogrify an election proceeding into an Article 78 simply to obtain a longer period);10 standing to appeal (a party who wins in Supreme Court cannot appeal; she must be aggrieved);11 and accuracy of the information on designating petitions (political party name can be slightly wrong, such as “Working Family Party,” “Demoratic,” or “Demotatic”; and the candidate’s name can be misspelled, such as in “Mannano” or “Mannaurino” instead of the correct “Mannarino”). Such errors are usually deemed insubstantial, and challenges to a candidate’s petitions are often rejected.12
Lately, there appears to be a prevalence of “cover sheet” cases. A cover sheet is a misnomer; it is really a “summary” sheet that accompanies a petition and provides information as to who the candidate is, for which office she is running, how many volumes of petitions are being submitted, and the ID numbers on the volumes. If it is completed improperly, the local Board of Elections will send a notice to cure, notifying the candidate of one opportunity to fix the problem. But only one—an error on the “amended cover sheet” results in the candidate’s disqualification by the board.
The year 2013 saw a rash of errors on candidates’ amended cover sheets, and they had to seek judicial intervention to be restored to the ballot. For the most part, courts responded sympathetically, and found that the errors were either insubstantial scrivener error;13 the result of reliance on the board’s erroneous information;14 or the result of a defective notice to cure by the board.15 This should give the Board of Elections pause in applying its rules so stringently.
In one startling, but logically sensible case, the Appellate Division, Second Department, reversed a more lenient Supreme Court decision and refused to permit a candidate to amend a cover sheet where no original sheet had been filed. The “absence of a cover sheet…constituted a complete failure to comply” with the regulations. No cure was available.16
Counting of Paper Ballots
Once the voters cast their ballots, the candidates’ lawyers will scrutinize the absentee and affidavit ballots if the vote is close. An absentee ballot must be requested by a voter who anticipates being out of her home county or ill,17 and the application form must be completed properly. The voter’s signature on the application must match that on her registration form;18 and the ballot itself must be filled out properly, with no stray marks that would reveal the identity of the voter. Affidavit ballots (known in the rest of the country as provisional ballots) are cast, for example, when a voter’s name is not on the poll workers’ rolls. The ballot is placed in an envelope on which there is an affidavit attesting to the voter’s identity and residence, which must be accurate and complete.
The courts last year rejected challenges to paper ballots that did not strictly follow instructions as to how to fill out the ballot.19 Indeed, in one case, the court found that the instructions a local board used were “inconsistent, vague and incorrect,” and rejected the challenge.20 In another case, a voter incorrectly wrote in the candidate’s name as “Don Donaldson” when, in fact, his name was “David Donaldson.” The vote was counted.21 On the other hand, if the voter wrote extraneous words on the ballot, courts invalidated the vote.22
All told, while federal courts take on some of the larger issues of campaign law, for the most part New York courts adjudicate arcane rules in ballot access and ballot counting cases.
Jerry H. Goldfeder is special counsel at Stroock & Stroock & Lavan and teaches at Fordham Law School and University of Pennsylvania Law School. He is the author of “Goldfeder’s Modern Election Law” (New York Legal Publishing Corp. Updated 3d Ed. 2013). Myrna Pérez is the deputy director of the Democracy Program at the Brennan Center for Justice at NYU School of Law.
1. 558 U.S. 310 (2010).
2. This estimate is from the New York City Bar Association, from some 25 years ago. While there are no accurate records on the subject, there seems to be no evidence to conclude that this has changed.
3. In an unusual example, a case was brought to compel a political action committee to file more complete disclosure reports. Shollenberger v. Molara, 70 A.D.3d 705 (2d Dept. 2010).
4. New York Progress and Protection PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013) (for independent expenditures).
5. Cook v. Unger, 2002 WL 32067509 (N.Y. Sup. Ct. Albany Co. 2002).
7. Election Reform Act of 1992 (L. 1992, Ch. 79); Ballot Access Law of 1996 (L. 1996, Ch. 709).
8. Dekom v. Moroney, 110 A.D.3d 800 (2d Dept. 2013).
9. Donaldson v. Turco, Index No. 13-2584 (Sup. Ct. Ulster Co. 2013).
10. Ciotti v. Westchester County Board of Elections, 109 A.D.3d 988 (2d Dept. 2013).
11. LaMarca v. Quirk, 110 A.D.3d 808 (2d Dept. 2013).
12. Mannarino v. Goodbee, 109 A.D.3d 683 (3d Dept. 2013); Cohn v. Suffolk Co. Board of Elections, 109 A.D.3d 538 (2d Dept. 2013.
13. Flacks v. Board of Elections in the City of New York, 109 A.D.3d 423 (1st Dept. 2013).
14. Hayon v. Greenfield, Index No. 700006/13 (Sup. Ct. Kings Co.), aff’d. 109 A.D.3d 920 (2d Dept. 2013).
15. Muhammed v. Board of Elections in City of New York, 109 A.D.3d 424 (1st Dept. 2013); Hayon v. Greenfield, 109 A.D.3d 920 (2d Dept. 2013).
16. Armwood v. McCloy, 109 A.D.3d 558 (2d Dept. 2013).
17. There are only several, circumscribed reasons a voter can request an absentee ballot in New York. See http://www.elections.ny.gov/VotingAbsentee.html. The reason provided, however, must relate to the relevant election. Hermann v. Dutchess Co. Board of Elections, 112 A.D.3d 860 (2d Dept. 2013).
18. Kelley v. Lynaugh, 112 A.D.3d 862 (2d Dept. 2013); Stewart v. Rockland Co. Board of Elections, 112 A.D.3d 866 (2d Dept. 2013); Smith v. Babcock, 110 A.D.3d 837 (2d Dept. 2013).
19. Kelley v. Lynaugh, 112 A.D.3d 862 (2d Dept. 2013); Stewart v. Rockland Co. Board of Elections, 112 A.D.3d 866 (2d Dept. 2013).
20. Teets v. Belcher, 42 Misc.3d 513 (Sup. Ct. Orange Co. 2013).
21. Quigley v. Work, Index. No. 13-3338 (Sup Ct. Ulster Co. 2013).
22. Young v. Fruci, 112 A.D.3d 1138 (3d Dept. 2013).