In the Matter of Penny Mintz,, Appellant,v.The Board of Elections in the City of New York, Respondent, Rachel Lavine, Intervenor-Respondent.

Brief

N.Y.August 29, 2018

New York County Clerk Index No. 157145/18 Court of Appeals STATE OF NEW YORK PENNY MINTZ, Petitioner/Candidate-Appellant, For an Order Pursuant to Sections 16-100, 16-102, and 16-116 of the Election Law, Declaring Valid the Petition Designating Penny Mintz Candidate for the Public Office of Female Member of the Democratic State Committee for the 66th Assembly, New York County, New York, in the Democratic Party Primary Election to be held September 13, 2018, and to Order Respondent Board of Elections of the City of New York to Print and Place the Name of Candidate Upon the Official Ballots of Such Primary Election, -against- BOARD OF ELECTIONS OF THE CITY OF NEW YORK, Respondent-Respondent, -and- RACHEL LAVINE, Intervenor-Respondent. PETITIONER-APPELLANT’S BRIEF ADVOCATES FOR JUSTICE, CHARTERED ATTORNEYS Attorneys for Petitioner/Candidate-Appellant 225 Broadway, Suite 1902 New York, New York 10007 (212) 285-1400 Arthur Z. Schwartz Of Counsel i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii INTRODUCTION ...................................................................................................... 1 STATEMENT OF THE CASE .................................................................................. 5 A. The Proceedings Below .................................................................................... 5 B. Statement of Facts ............................................................................................. 6 STATEMENT OF ISSUES PRESENTED .............................................................. 10 ARGUMENT ........................................................................................................... 11 POINT I: THE DETERMINATION UNDER NYC RULE 6215(E) WAS MADE WITHOUT AUTHORITY UNDER THE ELECTION LAW ................ 11 POINT II: MATTER OF BOSCO V. SMITH IS NEITHER DETERMINA- TIVE OF THIS ACTION, NOR IS IT GOOD LAW ANY LONGER ............... 14 POINT III: PETITIONER SHOULD BE RESTORED TO THE BALLOT BECAUSE HER PETITION WAS SUFFICIENTLY INFORMATIVE SO AS TO PRECLUDE ANY REASONABLE PROBABILITY OF CONFUSING OR DECEIVING THE SIGNER ................................................. 16 POINT IV: THE INVALIDATION OF PENNY MINTZ’ PETITIONS VIOLATES THE FREE SPEECH AND VOTING RIGHTS PROVISIONS OF THE U.S. AND NEW YORK STATE CONSTITUTIONS .............................................................................................. 23 CONCLUSION ........................................................................................................ 29 PRINTING SPECIFICATIONS STATEMENT ..................................................... 31 AFFIRMATION OF SERVICE ............................................................................... 32 ii TABLE OF AUTHORITIES Cases Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564 (1983) ........................... 3, 25 Application of McManus, 185 Misc 489 (1945) ...................................................... 24 Bosco v. Smith, 104 A.D.2d 462 (2d Dept. 1984), aff’d without opinion, 63 N.Y.2d 698 (1984) ................................................................................. 2, 3, 14, 15 Bullock v. Carter, 405 U.S. 134 (1972) ............................................................... 4, 25 Citizens United v. Federal Election Com'n, 558 U.S. 310, 130 S.Ct. 876 (2010) ..................................................................................................................... 3 Evergreen Ass’n v. Schneiderman, 2017 N.Y. Slip Op. 5086 (2d Dep’t 2017) ....... 26 Farrell v. Sunderland, 173 Misc.2d 787 (West. Cnty. 1997) ................................. 15 Green Party v. N.Y. Bd. of Elections, 389 F.3d 411 (2d Cir. 2004) ......................... 26 Herman Farrell v. Board of Elections, 1985 WL 2339 (SDNY 1985) .................... 23 Hicks v. Walsh, 76 A.D.3d 733 (3d Dep’t 2010) ............................................... 19, 28 Hopper v. Britt, 203 N.Y. 144 (1913) ...................................................................... 24 Kolken v. Mahoney, 49 A.D.2d 798 (4th Dept. 1975) .............................................. 21 Lloyd v. Power, 37 A.D.2d 792 (4th Dept. 1971) .................................................... 22 Lorano v. Scaringe, 253 A.D.2d 569 (3d Dep’t 1998) ....................................... 19, 28 Lubin v. Panish, 415 U.S. 709 (1974) ........................................................................ 4 Matter of Caffery v. Lawley, 21 A.D.2d 749, 250 N.Y.S.2d 677, aff’d., 14 N.Y.2d 768, 250 N.Y.S.2d 805, 199 N.E.2d 839 ................................................. 17 Matter of Carusone v. Varney, 277 App.Div. 326, 99 N.Y.S.2d 1 (3rd Dept. 1952), aff’d. sub nom. Matter of Barber v. Varney, 301 N.Y. 669 (1952)5, 17, 19, 24 Matter of Cook v. Zelazny, 49 A.D.2d 1036, 374 N.Y.S.2d 509 ............................. 17 iii Matter of Denn v. Mahoney, 64 A.D.2d 1007, 409 N.Y.S.2d 285 (4th Dept. 1978) ......................................................................................................... 17, 19, 28 Matter of Dipple v. Devine, 218 A.D.2d 918, 630 N.Y.S.2d 808 (3d Dept. 1995), lv. denied 86 N.Y.2d 704, 631 N.Y.S.2d 608 (1995) ............................... 17 Matter of Donnelly v. McNab, 83 A.D.2d 896, 442 N.Y.S.2d 532 (2d Dept. 1981), lv. denied 54 N.Y.2d 603, 445 N.Y.S.2d 1025 (1981) ........... 17, 18, 19, 28 Matter of Duffy v. Board of Elections of County of Westchester, 40 Misc.2d 175, 242 N.Y.S.2d 644 (West. Cnty. 1963) ......................................................... 17 Matter of Harden v. Board of Elections, 74 N.Y.2d 796 (1989) .............................. 13 Matter of Higby v. Mahoney, 48 N.Y.2d 15 (1979) ................................................. 15 Matter of Hunting v. Power, 20 N.Y.2d 680 (1967) ................................................ 13 Matter of Hutson v. Bass, 54 N.Y.2d 772 (1981)..................................................... 15 Matter of Kiley v. Coveney, 77 A.D.2d 941, 431 N.Y.S.2d 124, aff’d. 51 N.Y.2d 721, 431 N.Y.S.2d 1006 (1980) .............................................................. 18 Matter of Lane v. Meisser, 24 A.D.2d 720, 263 N.Y.S.2d 151 (2d Dept. 1965) ..................................................................................................................... 18 Matter of Lozano v. Scaringe, 253 A.D.2d 569, 677 N.Y.S.2d 404 (3d Dept. 1998), lv. denied 92 N.Y.2d 806, 678 N.Y.S.2d 592 (1998) ............................... 17 Matter of Margolis v. Larkin, 39 A.D.2d 952 (2d Dept. 1972), affd. 30 N.Y.2d 876, 335 N.Y.S.2d 430, 286 N.E.2d 916 ............................... 17, 19, 20, 28 Matter of Murray v. Coveney, 39 A.D.2d 932, 333 N.Y.S.2d 125 (4th Dept. 1975) ..................................................................................................................... 17 Matter of Parker v. Savago, 143 A.D.2d 439, 532 N.Y.S.2d 438 (3d Dept. 1988) ..................................................................................................................... 17 Matter of Pearson v. Board of Elections of City of Syracuse, 284 App.Div. 649 (4th Dept. Sep. 1954) .................................................................................... 17 Matter of Praete v. Van Wart, 47 Misc.2d 898, 263 N.Y.S.2d 396 (West. Cty. 1965) ..................................................................................................................... 17 iv Matter of Roland v. Toepfer, 64 A.D.2d 963, 408 N.Y.S.2d 537 (2d Dept. 1978) ..................................................................................................................... 18 Matter of Siems v. Lite, 307 A.D.2d 1016 (2d Dept. 2003) ..................................... 22 Most v. Walker, 297 A.D.2d 356 (2d Dept. 2002) ................................................... 22 NAACP v. Alabama, 357 U.S. 449 (1958) ........................................................... 4, 26 Pearse v. NYC Board of Elections, 10 A.D.3d 461 (2d Dept. 2004) ....................... 22 Pilot v. Sachs, 59 A.D.2d 515 (1st Dept. 1977) ....................................................... 23 Powell v. Marchi, 153 A.D.2d 540 (1st Dept. 1989) ............................................... 21 Reynolds v. Sims, 377 U.S. 533 (1964) .................................................................... 25 Rosen v. McNab, 25 N.Y. 2d 798 (1969) ................................................................. 21 Rothstein v. Chiavavoli, 41 A.D.2d 1024 (4th Dept. 1973) ..................................... 22 Shaffer v. Norris, 275 A.D.2d 881 (4th Dep’t 2000) ........................................... 19, 28 Shelton v. Tucker, 364 U.S. 479 (1960) ................................................................... 26 Smith v. Allwright, 321 U.S. 649 (1944) .................................................................. 25 Toporek v. Heckwith, 32 A.D.3d 684 (4th Dept. 2006) ........................................... 23 Wesberry v. Sanders, 376 U.S. 1 (1964) .................................................................. 25 Williams v. Rhodes, 393 U.S. 23 (1968) .................................................................... 4 Statutes NYS Election Law § 2-102 ................................................................................ 14, 29 NYS Election Law § 2-102(4) ................................................................... 2, 3, 15, 24 NYS Election Law § 6-100 ...................................................................................... 23 NYS Election Law § 6-132 ...............................................................................passim NYS Election Law § 6-132(1) ................................................................................. 16 v NYS Election Law § 6-134(10) ..................................................................... 3, 18, 24 NYS Election Law § 6-154(2) ....................................................................... 7, 11, 12 NYS Election Law§ 6-164 ....................................................................................... 13 Rules 9 NYCRR 6215.6[a] ................................................................................................. 22 CPLR 104 ................................................................................................................. 22 NYC BOE Rule 6215(6) .......................................................................................... 18 NYC BOE Rule 6215.7 ............................................................................................ 12 NYC BOE Rule 6215.7(a) ................................................................................. 12, 13 NYC BOE Rule 6215E .............................................................................................. 7 1 INTRODUCTION On July 11, 2018, the signatures of 1,900 registered Democratic voters were filed with the New York City Board of Elections, designating Penny Mintz as a candidate for the State Democratic Committee from the 66th Assembly District. It was a single candidate petition.1 The designating petitions and the cover sheet described the position as “Member of the State Democratic Committee for the 66th Assembly District.” Ms. Mintz is a female, with a female name, a fact which is not in dispute. The Board of Elections (“BOE”) immediately listed Ms. Mintz as a candidate for Female Member of the State Committee on its public listing of petitions filed (A1-61) and republished that list on at least seven subsequent dates through July 20, 2018 (A62-70). On July 12, 2018, the day the petitions were due, the BOE published a list of Contested Elections and included a contest between Ms. Mintz and the 21-year incumbent Rachel Lavine. (A71). Lavine did not file an objection. Then on June 24, 2018, the Board “Candidate Control Unit” sent out a letter (A59) advising Ms. Mintz that it had made a preliminary determination, pursuant to a local board rule allowing it an unlimited amount of time to review petitions which had not been objected to, that her petition was invalid. It proceeded. No details were given. She was advised of a BOE Commissioners meeting on August 1, 2018, which her 1 A copy of several pages of the Petition were included in the Petitioner’s Appendix filed with the Appellate Division at pages A36-57. All designations in this brief with the notation “A___” are 2 representative attended. The Board, at that meeting, 21 days after the designating petitions had been filed, ruled Ms. Mintz off the ballot. (A132-151).2 At issue was Election Law 2-102(4), which states that where equal representation of genders is required by the applicable State Committee Rule, ballots and designating petitions “shall list candidates separately by sexes.” The Democratic Part State Committee Rules do require each Assembly District to elect one male and one female member of the State Committee. Election Law 6-132(1) states that a designating petition “must include the title for which the officer is running.” The Democratic Party Rules only describe the position as “Member of the State Committee.” (A132). The Trial Court (Edmead J), with little discussion (see A6-13), held that it was bound by the Second Department’s decision in Bosco v. Smith, 104 A.D.2d 462 (2d Dept 1984), aff ’d without opinion, 63 N.Y.2d 698 (1984). Three justices of the Appellate Division First Department affirmed “for the reasons stated by Edmead J.” Two dissented, vigorously. This Court has three issues before it. The first is whether Bosco is even applicable, given the difference in facts. The second is whether Election Law 2-102(4), in the context of the Democratic Party Rules, requires that the position be described on the designating petition as “Female Member of the State Committee,” when the Rules designations to that Appendix. 2 This is a transcript of the Board’s August 1 hearing. 3 describe the position only as “Member of the State Committee.” How broadly or narrowly to apply Section 2-102(4) turns on (a) whether the provisions of the 1996 statutes liberalizing the Election Law and requiring that the Law be liberally construed require the reconsideration of Bosco, see Election Law § 6-134(10), and (b) how the facts here interplay with the First Amendment rights of the 1900 Democratic Party voters who signed Ms. Mintz designating petitions. The law in this area has developed significantly since Bosco was decided in 1984. The third issue involves the right of the NYC BOE to enact and apply a process which permits them to invalidate designating petitions, that have not been objected to, three weeks or more after they were filed, and after the date where Opportunity to Ballot petitions can be filed. “Because speech is an essential mechanism of democracy-it is the means to hold officials accountable to the people-political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” Citizens United v. Federal Election Com'n, 558 U.S. 310, 130 S.Ct. 876, 882 (2010). The Supreme Court has applied this concept in reviewing candidate access to the ballot, in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 1568-69 (1983): [A]s we have recognized, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, 4 correlative effect on voters.” Bullock v. Carter, 405 U.S. 134 (1972). Our primary concern is with the tendency of ballot access restrictions “to limit the field of candidates from which voters might choose.” Therefore, “[i]n approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” Ibid. The impact of candidate eligibility requirements on voters implicates basic constitutional rights. Writing for a unanimous Court in NAACP v. Alabama, 357 U.S. 449, 460 (1958), Justice Harlan stated that it “is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” In our first review of Ohio's electoral scheme, Williams v. Rhodes, 393 U.S. 23, 30-31 (1968), this Court explained the interwoven strands of “liberty” affected by ballot access restrictions: “In the present situation the state laws place burdens on two different, although overlapping, kinds of rights-the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms.” The Anderson court continued: As we have repeatedly recognized, voters can assert their preferences only through candidates or parties or both. “It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues.” Lubin v. Panish, 415 U.S. 709, 716 (1974). The exclusion of candidates also burdens voters' freedom of association, because an election campaign is an effective platform for the expression of views on the issues of the day, and a candidate serves as a rallying-point for like- minded citizens. 5 In this case, as urged by the dissenters, this Court needs to return to the approach it affirmed in Carusone v. Varney, 227 AD326, 328 (3d Dept 1950), aff’d sub nom Barber v. Varney, 301 NY 669 (1950) (“enrolled voters who seek to designate candidates should be given effect, if possible, and not frustrated by technical objections relating to matters not of a vital and mandatory nature.”). STATEMENT OF THE CASE A. The Proceedings Below The Petition was filed, by e-filing, on July 31, 2018. After the NYC Board of Elections acted on August 1, 2018, an Order to Show Cause was signed by Justice Edmead on August 2, 2018, setting a hearing on the Petition for August 8, 2018. On August 2, 2018 the Order to Show Cause, Petition, and a supporting attorney’s affirmation were served. On August 6, 2018 Intervenor filed a Motion to Intervene, which was not opposed. On the return date, August 8, 2018, the Respondent Board served a Motion to Dismiss. Because of the lack of Notice, the Court adjourned the Petition to August 15, 2018 at 10:00 am. On August 14, 2018 the Plaintiff electronically filed an Amended Petition (A16- 120). The original of the Amended Petition was filed with the Court on August 15, 2018 at 9:30am. The Court then orally delivered its decision on the Motion to Dismiss (which it reduced to writing in its Memorandum Decision (A6-13), at which time the Respondent handed up its Verified Answer. (A121-125) 6 Following argument, during which the Court would not allow Petitioner to address new argument included in her Amended petition, addressed to the statutory propriety of the Local Board Rule used to disqualify Petitioner 21 days after she filed her designating petition, or arguments under the State Constitution, the Court announced its decision and entered its Memorandum Decision on the docket. (A6-13). A timely appeal was filed with the Appellate Division First Department. That Court affirmed by a 3-2 decision. This appeal, as of right, followed. B. Statement of Facts Petitioner is a candidate for Female Member of the State Democratic Committee for the 66th Assembly District of New York, having duly filed petitions with the Respondent Board of Elections for the Democratic Party Designation. She is a resident, registered to vote, and enrolled in the Democratic Party from the 66th Assembly District. (A16) Respondent Board of Elections of the City of New York (the “Board”) is charged under the laws of the State of New York with the administration of elections in the City of New York, and more particularly, with the administration of the Democratic Primary Election to be held September 13, 2018, including the filing of designating petitions and the processing and determination of objections to those petitions. Intervenor Rachel Lavine is the incumbent and a candidate for re-election to the position of State Committee Member for the 66th Assembly District. 7 Petitioner’s designating petitions for the Democratic Party ballot carried enough signatures of members of the Democratic Party for Petitioner to achieve ballot status. In fact, over 1,900 signatures were filed with the Board of Elections. (A17). A copy of Petitioner’s entire designating petition was annexed to the Amended Petition as Exhibit A (A36-57). Petitioner’s designating petitions were invalidated by the Board of Elections without any objection being filed. They were invalidated because of what the Board calls a “Prima Facie defect.” The Notice of that “defect” (A59) states: “Official District Incorrect/ Omitted on Petition pursuant to EL 6-132.” This, as it turned out, meant that the Petition was being invalidated because it described the office as “Member” of the State Democratic Committee 66th Assembly District, rather than “Female Member.” This Notice was sent purportedly pursuant to Rule E of the NYC Board of Elections Designating and Opportunity to Ballot Petition Rules.(A90-116), which BOE claimed to have adopted pursuant to Election Law § 6-154(2) (A91). On July 11, 2018, Petitioner filed her designating petitions, with a cover sheet (A 84) which also stated, “Member of the State Democratic Committee,” rather than “Female Member.” That cover sheet was not deemed defective at any time. (A17) On July 12, 2018, the Respondent Board published a Record of Designating Petitions filed (hereinafter “RDP”), which listed Petitioner as a candidate for Female 8 State Committee even though neither her cover sheet or petitions included the word “Female.” (A61). On July 13, 2018, the Respondent Board published an RDP which listed Petitioner as a candidate for Female State Committee even though neither her cover sheet or petitions included the word “Female” (A63). On July 15, 2018, the Respondent Board published an RDP which listed Petitioner as a candidate for Female State Committee even though neither her cover sheet or petitions included the word “Female” (A65). On July 16, 2018, the Respondent Board published an RDP which listed Petitioner as a candidate for Female State Committee even though neither her cover sheet or petitions included the word “Female” (A67). On July 17, 2018, the Respondent Board published an RDP which listed Petitioner as a candidate for Female State Committee even though neither her cover sheet or petitions included the word “Female” (A69). On July 20, 2018, the Respondent Board published an RDP which listed Petitioner as a candidate for Female State Committee even though neither her cover sheet or petitions included the word “Female” (A71). On July 12, 2018, the Respondent Board also filed a “Contest List,” (A73-82), which, on page 4 (A76), listed a contested race for “Female” State Committee - 66th Assembly District. 9 It was not until July 24, 2018 that the Administrative Unit of the BOE sent Petitioner a Notice, discussed above (A59), and not until August 1, 2018 (A58) that the Respondent Board decided that it had erred by assuming that a candidate named Penny Mintz was a candidate for Female Member of the State Committee (A132d-151). In this case, there is no factual issue about the 1,900 voters who signed Petitioner’s petitions being confused or deceived. Although the party position sought was titled “Member of the State Committee,”3 rather than “Female Member of the State Committee,” an examination of the designating petition as a whole shows that it includes the first name of the candidate. That name, “Penny,” is a name that is always associated with a female. Social Security records going back to 1920 (A 84-89) demonstrate that the name Penny is a popular woman’s name, but not a men’s name. According to the web site The Bump, “Penny as a girl’s name is of English origin and is a short form of Penelope, meaning ‘weaver.’ It has also been used as an independent name mostly in the 20th century.” https://www.thebump.com/b/penny-baby-name (A19) Indeed, according to the website Baby Name Hub, there has not been a single boy named “Penny” since 1880. http://www.babynameshub.com/ gendercompare.cfm ?Name=Penny (A19) 3 Which is the title given to the position in the N.Y. State Democratic Committee Rules (A132). The Rules do not give positions to the title of “Male” or “Female.” 10 Accordingly, no one who signed the designating petition could possibly have thought that Penny Mintz was running for Male Member of the State Committee. This is especially true of the over 450 people whose signatures were garnered by Ms. Mintz herself, the approximately 100 signatures garnered by Elizabeth Zabbitz while she was petitioning with Ms. Mintz, the approximately 50 petition signatures garnered by Arthur Schwartz while he was petitioning with Ms. Mintz, or the approximately 10 signatures garnered by Joseph Mintz, who informed people that he was petitioning for his mother (A19). There was no factual dispute that 1,900 people, by their signatures, sought to have Penny Mintz on the ballot a candidate for female Member of the State Committee on September 13, 2018. STATEMENT OF ISSUES PRESENTED 1. Whether NYC Board of Elections’ Designating Petition Rule E, allowing of petitions and cover sheets to be reviewed by the NYC Board, and candidates to be disqualified beyond the time frame set forth in NY State Board of Elections 6215.7 (promulgated pursuant to Election Law 6-134(2)), is unlawful, and if it is unlawful, whether its application in this case should be permitted to nullify the candidacy of Petitioner 21 days after she filed her designating petition and cover sheet. 2. Whether the Trial Court and the Appellate Division, in error, improperly felt mandated to act as per Bosco, a 1984 Appellate Division decision, requiring “strict 11 compliance” with the terms of the Election Law, without consideration of the 1996 amendments to that law requiring liberal construction and “substantial compliance” with the law, and without consideration of the differences in fact between Bosco and the current dispute. 3. Whether, if Bosco does not resolve the whole case, the designating petitions were sufficiently informative so as to preclude any reasonable probability of confusing or deceiving the signers. 4. Whether the manner in which the Election Law was applied in this case violated the free speech rights of the people who signed the designating petitions for Penny Mintz. ARGUMENT POINT I THE DETERMINATION UNDER NYC RULE 6215(E) WAS MADE WITHOUT AUTHORITY UNDER THE ELECTION LAW. The cover page of the NYC Election Board’s Rules (A91) states that the Rules are enacted pursuant to Section 6-154(2) of the Election Law. But Section 6-154(2) is about the procedure to follow when objections are filed by “any voter enrolled to vote for such party position.” The last line states that “Each officer or board is empowered to make rules in reference to the filing and disposition of such petition, certificate, objections and specifications.” Clearly, Section 6-154(2) has to do only with the 12 handling of objections and the need of local boards to make procedural rules regarding the handling of objections, be they general or specific. It is not a wide-open invitation for local boards to assume vast powers, weeks after designating petitions are filed, to revisit and disqualify candidates-especially after the Opportunity to Ballot deadline has passed. There was no objection filed addressed to Ms. Mintz’ designating petitions by anyone, not even Intervenor. Under the Election Law, there is no provision expressly permitting a belated review by the Local Board looking for errors. Rule 6215.7 of the State Board of Elections Rules and Regulations discusses the only circumstances where a local Board may act on its own. Rule 6215.7(a) requires that the local board act within two days to determine whether the petition “complies with the cover sheet and binding requirements of these regulations.” The rule continues, “such reviews shall be limited to matters apparent on the face of the documents.” Here the Board sent a notice on July 24, 2018, 13 days after the Petitioner’s Designating Petitions were filed. The two-day deadline had passed on July 11, 2018. Clearly, under the precise language of State Rule 6215.7(a) and Election Law § 6-154(2), the NYC Board had no authority to do its two-week-later prima facie review and three-week-later disqualification. 13 One of the reasons that this is unfair, inequitable, and outside the scheme of the Election Law, is that it denied Petitioner the right to petition for an Opportunity to Ballot under § 6-164 of the Election Law. Had Petition been ruled off the ballot within the two-day limit set forth in State Rule 6215.7(a), she could have petitioned for an Opportunity to Ballot, which would have afforded her the right to run as a write-in candidate. But under the 2018 Political Calendar (A118-119), the Opportunity to Ballot petitions had to be filed by July 19. The Respondent Board did not even send its notice to the Petitioner until July 24. This is a clear demonstration that the “Prima Facie Defect” process set up by City Rule E does not fit the statutory scheme. If the Board acted ultra vires, its disqualification of Petitioner cannot stand. Should the Court reject the argument set forth above and below, it ought to, at minimum, require an opportunity to ballot as allowed by the Court of Appeals in Matter of Harden v. Board of Elections, 74 N.Y.2d 796 (1989), and Matter of Hunting v. Power, 20 N.Y.2d 680 (1967), a rule designed to protect the interested electorate from disenfranchisement. (“Courts should invoke the Hunting remedy only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support.”) 14 POINT II MATTER OF BOSCO V. SMITH IS NEITHER DETERMINATIVE OF THIS ACTION, NOR IS IT GOOD LAW ANY LONGER. The Trial Court, in its decision, without discussion, held that Bosco was the controlling law and that it was compelled to hold against the Petitioner. The majority in the Appellate Division simply stated that it was denying the petition “for the reasons stated by Edmead, J.” The dissent argued (a) that Bosco, on its facts, to the extent they were known, was not controlling law, and (b) that if it was, it was not good law 34 years later. Certainly, since the Bosco case was affirmed by this Court without an opinion, these issues can be addressed by this Court. In Bosco, two candidates were listed on the petitions: F. Wilson Smith and Imogene Mayer. We do not know whether the Republican State Party Rules then in place named the positions “Female (or Male) Member of the State Committee,” or just “Member of the State Committee.” As opposed to the instant case, the presence of two candidates triggered application of Election Law Section 2-102, that petitions “shall list candidates separately by sexes.” One was named “F. Wilson” Smith, a name with no apparent gender. The other was named Imogene, a woman’s name. The two names were not “listed separately by sex.” Petitioner here is running for an office which the State Democratic Party Rules call “Member of the State Committee” (A132). That is the name of the office, which is exactly what Election Law Section 6-132 requires. 15 Since the Mintz petition had only one name, there was not a need to list anyone separately as per Section 2-102(4). As importantly, in Bosco, the Second Department cited Matter of Hutson v. Bass, 54 N.Y.2d 772 (1981), and Matter of Higby v. Mahoney, 48 N.Y.2d 15 (1979). In Higby, a candidate for Assembly did not list the Assembly District he was running in on the Petition (an express requirement of Election Law 6-132). Although there were reasonable grounds to rule for the Petitioner, the Court held that “strict compliance” was required and that it was the province of the Legislature to dictate otherwise. Higby at 20. In Hutson, this Court bemoaned what it called the erection of “a rigid framework of regulation.” Then, in 1992 and 1996, the Legislature amended the Election Law to make it less rigid. In his Memo of Approval of the Ballot Access Law in 1996, Governor Pataki stated that “the State’s election laws should not be used as a weapon by political partisans to block legitimate candidates from securing a place on the ballot.” The Governor’s concern (see Farrell v. Sunderland, 173 Misc.2d 787, 790- 791 (West. Cnty. 1997)) was for the signers, not the candidates, so long as the candidate was legitimate. It is doubtful that Bosco, at least as applied to the candidate named Imogene, would survive the 1996 change in the law. 16 POINT III PETITIONER SHOULD BE RESTORED TO THE BALLOT BECAUSE HER PETITION WAS SUFFICIENTLY INFORMATIVE SO AS TO PRECLUDE ANY REASONABLE PROBABILITY OF CONFUSING OR DECEIVING THE SIGNER. In this matter, Petitioner asserts that there was sufficient compliance with the Election Law and that the Board’s decision to remove the candidate from the ballot was an error of law. Petitioner submits that compliance in this case must be measured against all the requirements in the Election Law addressed to designating petitions. But even if the Board’s view of the requirements of Section 6-132 is correct, that provision itself does not mandate the removal of the candidate from the ballot, since, if viewed as a whole, the Plaintiff’s Designating Petition made it clear to all signers, and the Board of Elections, that she was running for the Female State Committee slot, so clear that the Board placed her in that slot upon filing, even without cover sheet which said the word “Female,” a fact reflected in their various public filings. Election Law § 6-132(1) requires that each sheet of the designating petition state the public office or party position sought by the candidate. Recognizing that the name of the office which a candidate is seeking to occupy may be described in various ways, state courts have concluded that a designating petition’s description of the office will be upheld if it is “sufficiently informative so as to preclude any 17 reasonable probability of confusing or deceiving the signers, voters or board of elections.” (Matter of Dipple v. Devine, 218 A.D.2d 918, 918-919, 630 N.Y.S.2d 808 (3d Dept. 1995), lv. denied 86 N.Y.2d 704, 631 N.Y.S.2d 608 (1995), quoting Matter of Donnelly v. McNab, 83 A.D.2d 896, 896, 442 N.Y.S.2d 532 (2d Dept. 1981), lv. denied 54 N.Y.2d 603, 445 N.Y.S.2d 1025 (1981); see, Matter of Lozano v. Scaringe, 253 A.D.2d 569, 570, 677 N.Y.S.2d 404 (3d Dept. 1998), lv. denied 92 N.Y.2d 806, 678 N.Y.S.2d 592 (1998); Matter of Parker v. Savago, 143 A.D.2d 439, 441, 532 N.Y.S.2d 438 (3d Dept. 1988); Matter of Denn v. Mahoney, 64 A.D.2d 1007, 409 N.Y.S.2d 285 (4th Dept. 1978); Matter of Cook v. Zelazny, 49 A.D.2d 1036, (4th Dept. 1976); Matter of Murray v. Coveney, 39 A.D.2d 932, 333 N.Y.S.2d 125 (4th Dept. 1975); Matter of Margolis v. Larkin, 39 A.D.2d 952 (2nd Dept 1972), affd. 30 N.Y.2d 876, 335 N.Y.S.2d 430 (1972); Matter of Caffery v. Lawley, 21 A.D.2d 749, 250 N.Y.S.2d 677, aff’d., 14 N.Y.2d 768, 250 N.Y.S.2d 805, (1964); Matter of Pearson v. Board of Elections of City of Syracuse, 284 App.Div. 649 (4th Dept. Sep. 1954); Matter of Carusone v. Varney, 277 App.Div. 326, 99 N.Y.S.2d 1 (3rd Dept. 1952), aff’d. sub nom. Matter of Barber v. Varney, 301 N.Y. 669 (1952); Matter of Praete v. Van Wart, 47 Misc.2d 898, 263 N.Y.S.2d 396 (Westch. Cnty. 1965); Matter of Duffy v. Board of Elections of County of Westchester, 40 Misc.2d 175, 242 N.Y.S.2d 644 (West. Cnty. 1963). 18 There is no claim here that there was some impairment of the Board of Elections’ ability to ascertain the candidate’s qualifications (the Board clearly understood that Penny Mintz is a female) and the indicated office’s availability. Donnelly v. McNab, supra at 896; see Matter of Kiley v. Coveney, 77 A.D.2d 941, 431 N.Y.S.2d 124, aff’d. 51 N.Y.2d 721, 431 N.Y.S.2d 1006 (1980); Matter of Roland v. Toepfer, 64 A.D.2d 963, 408 N.Y.S.2d 537 (2d Dept. 1978); Matter of Lane v. Meisser, 24 A.D.2d 720, 263 N.Y.S.2d 151 (2d Dept. 1965). In the present case, Petitioner asserts that all of the approximately 1,900 signatures by registered Democrats gathered on the designating petitions for Penny Mintz are not in compliance with the law because the designating petitions state that she seeks to be on the ballot for the position of “Member of the State Committee” rather than “Female Member of the State Committee.” There is no merit to Respondent’s claim that the lack of specification of the gender of Penny Mintz invalidates the designating petitions. Under Election Law § 6-132, each sheet of a designating petition must contain the name of the office or party position being sought. The statute is no more specific than that. Moreover, pursuant to Election Law § 6-134(10), the provisions of the law relating to requirements of designating petitions must be liberally construed. To the same effect, see the NY State Board’s Rules at § 6215(6), especially where “strict construction is not required for the prevention of fraud.” Accordingly, courts have held 19 that the name of the office or party position sought by a candidate may be described in a variety of ways, provided that “the description thereof is specific enough … to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections.” Lorano v. Scaringe, 253 A.D.2d 569 (3d Dep’t 1998). See also Shaffer v. Norris, 275 A.D.2d 881 (4th Dep’t 2000); Hicks v. Walsh, 76 A.D.3d 733 (3d Dep’t 2010). If there is a deficiency or omission, the Board of Elections should look to the petition as a whole to determine whether there was any “reasonable probability of confusing or deceiving the signers.” Donnelly v. McNab, 83 A.D.2d 896 (2d Dep’t 1981). See also Denn v. Mahoney, 64 A.D.2d 1007 (4th Dep’t 1978); Margolis v. Larkin, 39 A.D.2d 952 (2d Dep’t 1972), aff’d, 30 N.Y.2d 876 (1972). Most importantly, “enrolled voters who seek to designate candidates should be given effect if possible, and not frustrated by technical objections relating to matters not of a vital and mandatory nature.” Carusone v. Varney, 227 A.D. 326, 328 (3d Dep’t 1950), aff’d, 301 N.Y. 669 (1950). In the present case, there is no possibility of confusion or deception. Thus, the will of the 1,900 people who signed designating petitions should be given effect. Although the party position sought was titled on the Petition as “Member of the State Committee,” rather than “Female Member of the State Committee,” an examination of the designating petition as a whole shows that it includes the first name of the 20 candidate. That name, “Penny,” is a name that is always associated with a female. Although this may be an “issue of fact,” it is not even a close one. Accordingly, it should be apparent to the Court that no one who signed the petition could possibly have thought that Penny Mintz was running for Male Member of the State Committee. This is especially true of the over 450 people whose signatures were garnered by Ms. Mintz herself, the approximately 100 signatures garnered by Elizabeth Zabbitz while she was petitioning with Ms. Mintz, the approximately 50 petition signatures garnered by Arthur Schwartz while he was petitioning with Ms. Mintz, or the approximately 10 signatures garnered by Joseph Mintz who informed people that he was petitioning for his mother. There is significantly less possibility of confusion in the present case than in Margolis v. Larkin, id., where the candidate’s petitions said that he was running for Associate Assembly District Leader, a party position at that time, when he was actually seeking to run for Assembly District Leader. The court held that the petitions were valid “in spite of the misnomer,” because appellant and his constituency intended “that he should seek the position of Assembly District Leader.” Margolis, supra, 39 A.D.2d at 952. In sum, when the petitions are viewed, as they must be, there is no merit whatsoever to plaintiff’s claim that Penny Mintz’ petitions have a prima facie defect. 21 Accordingly, this Court should not frustrate the will of the 1,900 people who, by their signatures, sought to have Penny Mintz on the ballot on September 13, 2018. Finding a fatal omission in this circumstance is a demand by the Board for strict compliance rather than substantial compliance, even though the strict compliance being asked for does not assist the Board in any way, nor does it play a role in preventing fraud. Such a rule would run contrary to the requirements of the law. As this Court held in Rosen v. McNab, 25 N.Y. 2d 798 (1969): “In the absence of allegations of fraud substantial compliance with the Election Law is sufficient. The People’s will should not be fettered by technicalities requiring precise compliance.” In Rosen, the Court validated petitions which are not properly numbered as per the Election Law requirements. In Powell v. Marchi, 153 A.D.2d 540 (1st Dept. 1989), the Appellate Division held: “For us to reject these petitioner, qualified signatories would be deprived of their nomination for council member… . They should not lose their right to nominate a candidate unless the errors in the cover sheets are so grievous as to constitute failure to comply with the requirements of the Election Law as to content and substantial compliance to the form,” citing Farrell v. Morgan, 112 A.D.2d 882 (1st Dept. 1985). See also Kolken v. Mahoney, 49 A.D.2d 798 (4th Dept. 1975) (authenticating witness used inaccurate words to describe himself). 22 Similar holdings have occurred in connection with cover sheet improprieties. In Matter of Siems v. Lite, 307 A.D.2d 1016 (2d Dept. 2003), the Second Department reversed a lower court decision to invalidate a candidacy because the cover sheet did not include volume identification numbers. Said the Court: “There is no justification for invalidating the designating petitions under these rules, which are to be liberally construed (see 9 NYCRR 6215.6[a]), where there has been substantial compliance and there is no evidence of confusion either by potential voters or the Board.” See also Pearse v. NYC Board of Elections, 10 A.D.3d 461 (2d Dept. 2004); Most v. Walker, 297 A.D.2d 356 (2d Dept. 2002). In Rothstein v. Chiavavoli, 41 A.D.2d 1024 (4th Dept. 1973), the Appellate Division reinstated a candidate where, contrary to the Board’s requirements, the number of signatures on each petition sheet was not specified in the witness statement and the cover sheet did not indicate the total number of signatures. In doing so, the Court stated: “The People’s will should not be fettered by technicalities requiring precise compliance.” And see Lloyd v. Power, 37 A.D.2d 792 (4th Dept. 1971) (failure to affix the date of the primary election to the cover sheet; the Court stated: “There is not the slightest suggestion of fraud in this matter. The liberal construction required by CPLR 104, equity, and fairness, mandate that the electorate be given the fullest opportunity to choose councilmen”); Toporek v. Heckwith, 32 A.D.3d 684 (4th Dept. 23 2006) (cover sheet with incorrect address of candidate inconsequential and did not invalidate designating petition). Clearly, the “substantial compliance” rule, where there is no allegation of fraud or confusion, must be viewed in the context of all of the Election Law requirements applicable to the filing of a designating petition. 1,900 signatures were filed in proper form, in one properly bound volume, which was referred to on the cover sheet, in a manner which the Board, for ten days, read as a cover sheet for a Female State Committee slot. Upholding the disqualification of the candidate would “depriv[e] qualified signers of the benefit of having the name of their designee appear on the official ballot. They would lose their right simply because others over whom they have no control may have perpetrated a wrong.” Pilot v. Sachs, 59 A.D.2d 515 (1st Dept. 1977) (restoring Mario Cuomo to the mayoral ballot despite the inclusion of numerous invalid signatures on his petition). And see Herman Farrell v. Board of Elections, 1985 WL 2339 (SDNY 1985). POINT IV THE INVALIDATION OF PENNY MINTZ’ PETITIONS VIOLATES THE FREE SPEECH AND VOTING RIGHTS PROVISIONS OF THE U.S. AND NEW YORK STATE CONSTITUTIONS. Article 6 of the New York Election Law governs the “[n]omination and designation of candidates for election to public office or party position.” Elec. L. § 6- 100. There are no exclusions in this article for any specific offices or party positions. 24 N.Y. Election Law § 6-132 requires that each sheet of a designating petition must contain the name of the office or party position being sought, and, according to N.Y. Election Law § 6-134(10), that requirement and all other rules regarding designating petitions “shall be liberally construed” (emphasis added). The purpose of liberal construction is to give effect to the intent of enrolled voters who signed designating petitions and not frustrate the voters’ intent “by technical objections relating to matters not of a vital and mandatory nature.” Carusone v. Varney, 227 A.D. 326, 328 (3d Dep’t 1950), aff’d, 301 N.Y. 669 (1950). The franchise in New York is protected under Article I of the State Constitution, Section1. (voting rights) and 8 (free speech). The legislative power to prescribe the method of conducting elections and providing against abuses may not be exercised so as to disenfranchise constitutionally qualified voters. Hopper v. Britt, 203 N.Y. 144 (1913); Application of McManus, 185 Misc 489 (1945). In contrast to N.Y. Election Law Art. 6, discussed above, which addresses the form of designating petition, Election Law § 2-102(4), which addresses party organization, provides that the designating petitions and cover sheets of candidates for State Committee “shall list candidates for such party positions separately by sexes.” But Ms. Mintz’ petitions had only one name. A strict construction of this statute, which, as an Election Law, implicates Free Speech rights (see U.S. Constitution, Bill of Rights, Amendment 1; N.Y. State 25 Constitution Article 1 Section 8), serves no legitimate governmental interest. Accordingly, in the absence of fraud or confusion, designating petitions for candidates for a party state committee must be given the same liberal construction as petitions for all other offices and party positions. To do otherwise is a violation of the constitutionally protected rights of free speech. The right to vote is fundamental to a free society. The U.S. Supreme Court has said that if the right to vote for those who make our laws is undermined, all of our rights are illusory. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Because the right to vote is fundamental to a democracy, “any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 561-622 (1964). The right to vote in a primary is equally as important as voting in a general election. See Smith v. Allwright, 321 U.S. 649, 664-65 (1944). Ballot access regulations by their nature restrict the field of candidates from which voters can choose. See Bullock v. Carter, 405 U.S. 134, 143 (1972). Accordingly, the Supreme Court has recognized that restrictions on candidacy impinge, not only on the first amendment rights of candidates and voters (see Anderson v. Celebrezze, 460 U.S. 780, 786 [1983]), but also on freedom of assembly, because “public advocacy of both public and private points of view, particularly controversial 26 ones, is undeniably enhanced by group association (NAACP v. Alabama, 357 U.S. 449, 460 [1958]). Even though every restriction on a candidate’s eligibility for the ballot will put some burden on a citizen’s right to associate and vote, the state has a legitimate interest in promulgating election regulations so that election procedures can be accomplished in a limited period of time. However, there are limits on that state authority. “For the state to justify a significant encroachment on an associational right, the state must point to a compelling reason for that encroachment.” Green Party v. N.Y. Bd. of Elections, 389 F.3d 411, 419 (2d Cir. 2004). In any event, even if the state has a legitimate and substantial purpose for the encroachment, “to pass constitutional muster, the governmental action must be narrowly tailored to serve the compelling state interest.” Evergreen Ass’n v. Schneiderman, 2017 N.Y. Slip Op. 5086 (2d Dep’t 2017), citing Shelton v. Tucker, 364 U.S. 479, 488 (1960). The state may not choose the way of greater interference. At stake in the present case is the opportunity of Penny Mintz to run to become the female member of the Democratic Party State Committee from the 66th Assembly District. Perhaps more importantly, if Ms. Mintz is excluded from the ballot, the 1,900+ voters who signed her designating petition will be deprived of the right to nominate her and to vote for her in the primary election. In the process of seeking support from voters day after day in those painfully hot weeks of late June and early 27 July 2018, Ms. Mintz explained that she wanted to move the conversation in the Democratic Party to the left, ideas which are controversial in the present political climate under Governor Andrew Cuomo and President Donald Trump. Many people expressed concern and dissatisfaction with the present leadership. All those people will be deprived of their right to use Ms. Mintz’s campaign as a rallying point. Since the injury sustained by Ms. Mintz’ and her 1,900+ supporters constitute a violation of the Federal and State Constitution’s right of free speech and the right to free association, it is of constitutional proportions. To justify the state’s invalidation of all of Ms. Mintz’ designating petitions, the state must point to a compelling reason for the encroachment, and the means must be narrowly tailored to achieve that purpose. Because the Democratic Party has established rules to for equal representation by males and females, the Election Law can reasonably require that the Board of Elections be able to determine which office the candidate seeks-the male or female member of the state committee. Respondent and Intervenor insist that the requirement that the word “female” appear on every designating petition be strictly enforced. This contrasts with the regulations for every other office and party position regulated by N.Y. Election Law § 6-134, where the name of the office or party position sought by a candidate may be described in a variety of ways, provided that “the description thereof is specific enough … to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections.” Lorano v. Scaringe, 253 A.D.2d 569 (3d 28 Dep’t 1998). See also Shaffer v. Norris, 275 A.D.2d 881 (4th Dep’t 2000); Hicks v. Walsh, 76 A.D.3d 733 (3d Dep’t 2010). Most significantly, if there is a deficiency or omission, the Board of Elections is required to look to the petition as a whole to determine whether there was any “reasonable probability of confusing or deceiving the signers.” Donnelly v. McNab, 83 A.D.2d 896 (2d Dep’t 1981). See also Denn v. Mahoney, 64 A.D.2d 1007 (4th Dep’t 1978); Margolis v. Larkin, 39 A.D.2d 952 (2d Dep’t 1972), aff’d, 30 N.Y.2d 876 (1972). In the present case, the Board of Elections has chosen the way of greatest interference and invalidated all of the petitions submitted by Ms. Mintz. The invalidation can hardly be described as necessary to achieve order in the election or precisely tailored to protect the franchise. Less drastic remedies were available. The Board of Elections could simply have looked at the name of the candidate to determine whether the male or female position was sought. In fact, the Board of Elections did just that for the first 13 days after the petitions were filed. In each of seven reports by the Board of Elections, the Board recognized that Penny Mintz was running against Rachel Lavine for the position of Female Member of the State Committee. There was no confusion at the Board of Elections. There is no proof of any confusion among petition signers, and no claim by the Board or the Intervenor that the voters, or the BOE were confused. An examination of the petition, as a whole, shows that it includes the first name of the candidate. That 29 name, “Penny,” is a name that is always associated with a female. No one who signed the petition could possibly have thought that Penny Mintz was running for Male Member of the State Committee. In sum, N.Y. Election Law § 2-102, applied in this case to invalidate a petition, results in an unconstitutional infringement upon the right to vote and freedom of association, without question two of the most fundamental rights of our society and deserving of the highest degree of judicial protection. Accordingly, Penny Mintz’ name should be returned to the ballot for Female Member of the Democratic Party State Committee, or at minimum, an Opportunity to Ballot should be imposed. CONCLUSION The will of 1,900-plus petition signers should not be ignored because the candidate made a technical, but inconsequential, error on her cover sheet. The Petition seeking restoration Petitioner to the ballot should be granted, or an opportunity to ballot should be required. This Court should reverse the Trial Court and the Appellate Division and: A. declare valid the petition designating the Petitioner-Candidate Penny Mintz as a candidate for Female Member of the State Democratic Committee for the 66th Assembly District of New York, in the Democratic Primary Election to be held September 13, 2018; 30 B. order respondent Board of Elections of the City of New York to place the name of Penny Mintz upon voting machines and ballots to be used at the Democratic Primary Election to be held September 13, 2018; or, in the alternative, C. Allow the Democratic Party voters in the 66th Assembly District an Opportunity to Ballot in the September 13, 2018 primary for Female Member of the State Committee; and D. order such other and further relief as the Court deems just and proper. Dated: August 23, 2018 New York, New York ADVOCATES FOR JUSTICE, CHARTERED ATTORNEYS Attorneys for Petitioner-Candidate By /s/ Arthur Z. Schwartz 225 Broadway, Suite 1902 New York, New York 10007 (212) 285-1400 (917) 923-8136 aschwartz@afjlaw.com 31 PRINTING SPECIFICATIONS STATEMENT This Respondent’s Brief was prepared using Microsoft Word software, in the Times New Roman typeface at 14-point size, and contains 8,296 words, as calculated by Microsoft Word, inclusive of all pages. 32 AFFIRMATION OF SERVICE Arthur Z. Schwartz, attorney for Petitioner-Appellant affirms that on August 23, 2018 a copy of the Petitioner-Appellant’s Brief was served by email upon Counsel for Respondents: Corporation Counsel of the City of New York Attorney for Respondent Board of Elections 100 Church Street New York, NY 10007 Stephen Kitzinger, Asst. Corp Counsel Of Counsel skitzing@law.nyc.gov Roberta Kaplan, Esq. Kaplan, Heckerer and Fink Attorneys for Intervenor 350 Fifth Avenue New York, NY 10008 rkaplan@kaplanandcompany.com Dated: New York, New York August 23, 2018 /s/ Arthur Z. Schwartz 225 Broadway, Suite 1902 New York, New York 10007 (212) 285-1400 aschwartz@afjlaw.com