In the Matter of Penny Mintz,, Appellant,v.The Board of Elections in the City of New York, Respondent, Rachel Lavine, Intervenor-Respondent.BriefN.Y.August 29, 2018To Be Argued by Arthur Z. Schwartz 10 minutes requested SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ---------------------------------------------------------------------------- X In the Matter of the Application of 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. ---------------------------------------------------------------------------- X Index No. 157145/2018 PETITIONER-APPELLANT’S BRIEF ADVOCATES FOR JUSTICE CHARTERED ATTORNEYS Attorneys for Petitioner-Appellant 225 Broadway Suite 1902 New York, New York 10007 212-285-1400 Arthur Z. Schwartz, Of Counsel aschwartz@afjlaw.com 18-7100 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii STATEMENT PURSUANT TO CPLR 5531 ......................................................... vi STATEMENT OF THE CASE .................................................................................. 1 A. The Proceedings Below .................................................................................... 1 B. Statement of Facts ............................................................................................. 2 STATEMENT OF ISSUES PRESENTED ................................................................ 7 ARGUMENT ............................................................................................................. 8 POINT I: THE DETERMINATION UNDER NYC RULE 6215(E) WAS MADE WITHOUT AUTHORITY UNDER THE ELECTION LAW .................. 8 POINT II: 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 ................................................. 10 POINT III: THE INVALIDATION OF PENNY MINTZ’ PETITIONS VIOLATES THE FREE SPEECH AND VOTING RIGHTS PROVISION OF THE NEW YORK STATE CONSTITUTION .............................................. 18 POINT IV: THE COURT IMPROPERLY DENIED PETITIONER THE OPPORTUNITY TO ARGUE THE PROCEDURAL AND CONSTITUTIONAL ISSUES ............................................................................. 24 CONCLUSION ........................................................................................................ 26 PRINTING SPECIFICATIONS STATEMENT ..................................................... 28 AFFIRMATION OF SERVICE ............................................................................... 29 ii TABLE OF AUTHORITIES Cases Anderson v. Celebrezze, 460 U.S. 780 (1983) .......................................................... 20 Application of McManus, 185 Misc 489 (1945) ...................................................... 19 Bosco v. Smith, 104 A.D.2d 462 (2d Dept. 1984) .............................................. 17, 18 Bullock v. Carter, 405 U.S. 134 (1972) .................................................................... 20 Evergreen Ass’n v. Schneiderman, 2017 N.Y. Slip Op. 5086 (2d Dep’t 2017) ........ 21 Farrell v. Morgan, 112 A.D.2d 882 (1st Dept. 1985) .............................................. 16 Farrell v. Sunderland, 173 Misc.2d 787 (Westchester County 1997) ..................... 18 Green Party v. N.Y. Bd. of Elections, 389 F.3d 411 (2d Cir. 2004) .......................... 21 Hicks v. Walsh, 76 A.D.3d 733 (3d Dep’t 2010) ............................................... 13, 23 Hopper v. Britt, 203 N.Y. 144 (1913) ....................................................................... 19 Kolken v. Mahoney, 49 A.D.2d 798 (4th Dept. 1975) .............................................. 16 Lloyd v. Power, 37 A.D.2d 792 (4th Dept. 1971) ...................................................... 16 Lorano v. Scaringe, 253 A.D.2d 569 (3d Dep’t 1998) ....................................... 13, 22 Matter of Caffery v. Lawley, 21 A.D.2d 749, 250 N.Y.S.2d 677, affd. 14 N.Y.2d 768, 250 N.Y.S.2d 805, 199 N.E.2d 839 ................................................. 11 Matter of Carusone v. Varney, 277 App.Div. 326, 99 N.Y.S.2d 1 (3rd Dept. 1952), affd. sub nom. Matter of Barber v. Varney, 301 N.Y. 669, 94 N.E.2d 254 (1952) .................................................................................... 11, 13, 19 Matter of Cook v. Zelazny, 49 A.D.2d 1036, 374 N.Y.S.2d 509 ............................. 11 Matter of Denn v. Mahoney, 64 A.D.2d 1007, 409 N.Y.S.2d 285 (4th Dept. 1978) ......................................................................................................... 11, 13, 23 Matter of Dipple v. Devine, 218 A.D.2d 918, 630 N.Y.S.2d 808 (3d Dept. iii 1995), lv. denied 86 N.Y.2d 704, 631 N.Y.S.2d 608, 655 N.E.2d 705 (1995) ................................................................................................................... 11 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, 426 N.E.2d 1185 (1981) ................................................................................................. 11, 12, 13, 23 Matter of Duffy v. Board of Elections of County of Westchester, 40 Misc.2d 175, 242 N.Y.S.2d 644)........................................................................................ 12 Matter of Harden v. Board of Elections, 74 N.Y.2d 796 (1989) .................................. 9 Matter of Hunting v. Power, 20 N.Y.2d 680 (1967) .................................................... 9 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, 410 N.E.2d 1233 ............................................. 12 Matter of Lane v. Meisser, 24 A.D.2d 720, 263 N.Y.S.2d 151 ................................ 12 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, 700 N.E.2d 1228 (1998) ................................................................................................................... 11 Matter of Margolis v. Larkin, 39 A.D.2d 952, 333 N.Y.S.2d 288, affd. 30 N.Y.2d 876, 335 N.Y.S.2d 430, 286 N.E.2d 916 ............................... 11, 13, 14, 23 Matter of Murray v. Coveney, 39 A.D.2d 932, 333 N.Y.S.2d 125 (4th Dept. 1975) ..................................................................................................................... 11 Matter of Parker v. Savago, 143 A.D.2d 439, 532 N.Y.S.2d 438 (3d Dept. 1988) ..................................................................................................................... 11 Matter of Pearson v. Board of Elections of City of Syracuse, 284 App.Div. 649, 133 N.Y.S.2d 466 ......................................................................................... 11 Matter of Praete v. Van Wart, 47 Misc.2d 898, 263 N.Y.S.2d 396 (Westchester Cty. 1965) ....................................................................................... 12 Matter of Roland v. Toepfer, 64 A.D.2d 963, 408 N.Y.S.2d 537 ............................ 12 Matter of Siems v. Lite, 307 A.D.2d 1016 (2d Dept. 2003) ..................................... 16 Most v. Walker, 297 A.D.2d 356 (2d Dept. 2002) ................................................... 16 iv NAACP v. Alabama, 357 U.S. 449 (1958) ................................................................ 20 Pearse v. NYC Board of Elections, 10 A.D.3d 461 (2d Dept. 2004) ....................... 16 Pilot v. Sachs, 59 A.D.2d 515 (1st Dept. 1977) ....................................................... 17 Powell v. Marchi, 153 A.D.2d 540 (1st Dept. 1989) ................................................. 15 Reynolds v. Sims, 377 U.S. 533 (1964) .................................................................... 20 Rosen v. McNab, 25 N.Y. 2d 798 (1969) ................................................................. 15 Rothsetin v. Chiavavoli, 41 A.D.2d 1024 (4th Dept. 1973) ....................................... 16 Shaffer v. Norris, 275 A.D.2d 881 (4th Dep’t 2000) ........................................... 13, 22 Shelton v. Tucker, 364 U.S. 479 (1960) .................................................................... 21 Smith v. Allwright, 321 U.S. 649 (1944) .................................................................. 20 Toporek v. Heckwith, 32 A.D.3d 684 (2006) ............................................................. 17 Wesberry v. Sanders, 376 U.S. 1 (1964) ................................................................... 20 Statutes NYS Election Law § 2-102 ....................................................................................... 24 NYS Election Law § 2-102(4) ................................................................................. 19 NYS Election Law § 6-100 ...................................................................................... 18 NYS Election Law § 6-132 ...................................................................... 3, 10, 12, 18 NYS Election Law § 6-132(1) ................................................................................. 10 NYS Election Law § 6-134(10) ......................................................................... 12, 18 NYS Election Law § 6-134(2) ................................................................................... 6 NYS Election Law § 6-154(2) ........................................................................... 3, 8, 9 NYS Election Law§ 6-164 ......................................................................................... 9 v Rules 9 NYCRR 6215.6[a] ................................................................................................. 16 CPLR 104 ................................................................................................................. 17 CPLR 305 ................................................................................................................. 26 NYC BOE Rule 6215(6) .......................................................................................... 13 NYC BOE Rule 6215.7 .............................................................................................. 8 NYC BOE Rule 6215.7(a) ..................................................................................... 8, 9 NYC BOE Rule 6215D .............................................................................................. 6 NYC BOE Rule 6215E .............................................................................................. 3 vi SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ---------------------------------------------------------------- X In the Matter of the Application of 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. ---------------------------------------------------------------- X Index No. 157145/2018 STATEMENT PURSUANT TO CPLR 5531 1. The index number of the case in the Court below is as set forth above. 2. The full names of the original parties, and the intervenor are set forth above. There has been no change to the caption. 3. The action was commenced in the Supreme Court, New York County. vii 4. The action was commenced on August 2, 2018, by the filing and service of an Order to Show Cause and Petition. Issue was joined by the service of opposition papers on or about August 15, 2018. 5. The nature and object of the action: validate the designating petition of a candidate under the Election Law. 6. The appeal is from the Order denying the petition dated August 15, 2018. 7. This appeal is being perfected with the use of a subpoenaed Full Record and an Appendix. 1 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 Judge 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 that day 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 Notion 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) 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. 2 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. Petitioner’s designating petitions for the Democratic Party ballot carried a sufficient number of 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 Petition is annexed to the Amended Petition as Exhibit A. (A36-57) 3 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 (Annexed to the Amended Petition as Exhibit B (A59)) states: “Official District Incorrect/Omitted on Petition pursuant to EL 6-132.” This 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 6215E of the NYC Board of Elections Designating and Opportunity to Ballot Petition Rules (Amended Petition Exhibit L (A90-116)), which it claims to have adopted pursuant to Election Law § 6-154(2). (See A91) On July 11, 2018, Petitioner filed her designating petitions, with a cover sheet (Amended Petition Exhibit J (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 State Committee even though neither her cover sheet or petitions included the word “Female.” See Amended Petition Exhibit C (A61). 4 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” (Amended Petition Exhibit D (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” (Amended Petition Exhibit E (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” (Amended Petition Exhibit F (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” (Amended Petition Exhibit G (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” (Amended Petition Exhibit H (A71)). On July 12, 2018, the Respondent Board also filed a “Contest List,” annexed as to the Amended Petition as Exhibit I (A73), which, on page 4 (A71), listed a contested race for “Female” state committee - 66th Assembly District. 5 It was not until July 24, 2018 (see Amended Petition Exhibit B (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. In this case, there is no issue about the 1,900 voters who signed Petitioner’s petitions being confused or deceived. Although the party position sought was entitled “Member of the State Committee,” rather than “Female Member of the State Committee,” an examination of the 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 (Amended Petition Ex. K (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) Accordingly, no one who signed the petition could possibly have thought that Penny Mintz was running for Male Member of the State Committee. This is 6 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 100 signatures garnered by Joseph Mintz, who informed people that he was petitioning for his mother. (A19) In sum, when the petitions are viewed as a whole, as they must be, there is no merit whatsoever to Respondent Board’s claim that Penny Mintz’ petitions have a prima facie defect. Accordingly, the Board erred by frustrating the will of the 1,900 people who, by their signatures, sought to have Penny Mintz on the ballot on September 13, 2018. The decision to invalidate the designating petitions supporting the Petitioner- Candidate’s candidacy is inconsistent with the Legislative Policy expressed in the Ballot Reform Acts enacted in 1992 and 1996. The failure to use the word “Female” caused no confusion, even at the Board; not even the failure to use the word “Female” on the cover sheet was considered a defect under Election Law § 6-134(2) and Section 6215D of the NYC Board’s Rules given the candidate’s name. That is clearly why the Board did not declare the Petition defective when it did its initial review under Rule 6215D and listed Plaintiff as a Female on all of its publications for 11 days after she filed her designating petition. 7 STATEMENT OF ISSUES PRESENTED 1. Whether the Trial Court, in error, did not allow Petitioner to raise statutory and regulatory issues related to the Board’s local regulation which gave them unlimited time to review candidates’ petitions and disqualify them from running. 2. Whether NYC Board of Elections’ Designating Petition Rule E, allowing of petitions and cover sheets to be reviewed by the NYC Board, and candidates 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 Plaintiff 21 days after she filed her designating petition and cover sheet. 3. Whether the Trial Court, in error, improperly felt mandated to act as per a 1984 Appellate Division decision, requiring “strict 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. 4. Whether the Trial Court, in error, did not allow the Plaintiff to raise free speech, voting rights and equal protection issues under the NY State Constitution. 5. Whether the manner in which the Election Law was applied in this case violated the free speech, voting rights and equal protection protections of the NY State Constitution. 8 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 (Amended Petition Exhibit L) states that the Rules are enacted pursuant to Section 6-154(2) of the Election Law. But Section 6-154(2) is about objections 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 handling of objections and the need of local boards to make procedural rules regarding objections, be they general or specific. There was no objection filed here by anyone, not even Intervenor. Under the Election Law, there is no provision for 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 9 notice on July 24, 2018, 13 days after the Petitioner’s Designating Petitions were filed. 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. 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 (Amended Petition Exhibit M), 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 Plaintiff 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 10 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.”) POINT II 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 of 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. 11 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 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, 655 N.E.2d 705 (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, 426 N.E.2d 1185 (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, 700 N.E.2d 1228 (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, affd. 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 Sep 1954); Matter of Carusone v. Varney, 277 App.Div. 326, 99 N.Y.S.2d 1 (3rd Dept. 1952), affd. sub nom. Matter of Barber v. Varney, 301 N.Y. 669, 94 N.E.2d 254 (1952); 12 Matter of Praete v. Van Wart, 47 Misc.2d 898, 263 N.Y.S.2d 396 (Westchester Cty. 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). 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 designated Penny Mintz as 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, 410 N.E.2d 1233; Matter of Roland v. Toepfer, 64 A.D.2d 963, 408 N.Y.S.2d 537; Matter of Lane v. Meisser, 24 A.D.2d 720, 263 N.Y.S.2d 151. 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 13 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 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. 14 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 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. 15 In sum, when the petitions are viewed as a whole, as they must be, there is no merit whatsoever to plaintiff’s claim that Penny Mintz’ petitions have a prima facie defect. 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 the Court of Appeals 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 16 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). 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 Rothsetin 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) 17 (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 (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 Intervenor introduced the case of Bosco v. Smith, 104 A.D.2d 462 (2d Dept. 1984), where someone’s failure to list a State Committee candidate as “female” 18 invalidated a designating petition. But this decision was rendered in 1984, prior to various statutory changes which required liberalization of filing rules. See lengthy discussion of change of the law in Farrell v. Sunderland, 173 Misc.2d 787, 790 (Westchester County 1997). 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 173 Misc.2d at 790-791) was the signers, not the candidates, so long as the candidate was legitimate. It is doubtful that Bosco would survive the 1996 change in the law since it dated back to the “strict compliance” period. And, Bosco included a candidate whose name was not clearly male or female. (F. Wilson Smith). POINT III THE INVALIDATION OF PENNY MINTZ’ PETITIONS VIOLATES THE FREE SPEECH AND VOTING RIGHTS PROVISION OF THE NEW YORK STATE CONSTITUTION. 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. 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 19 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, N.Y. Election Law, 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 and Equal Protection (Constitution Article 1 Section 8) rights, serves no legitimate governmental interest. Accordingly, in the absence of fraud or confusion, designating petitions for candidates for state committee must be given 20 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 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 21 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 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 22 of 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 constitutes a violation of the 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 is in contrast to 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 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 23 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. An examination of the 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. No one who signed the petition could possibly have thought that Penny Mintz was running for 24 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. In sum, N.Y. Election Law § 2-102, if applied to invalidate a petition, is 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. POINT IV THE COURT IMPROPERLY DENIED PETITIONER THE OPPORTUNITY TO ARGUE THE PROCEDURAL AND CONSTITUTIONAL ISSUES. CPLR 3205 provides as follows: (a) Amendments without leave. A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it. The amended pleading filed prior to the service of a responsive pleading. 25 Moreover, it added new legal theory, not new facts. In circumstances like that under the Election Law, where a proceeding must be drafted, filed, and served within three days of a Board action, to deny a Petitioner to advance new legal basis for her Petition would be most inequitable. Even if the amendment had been proposed post-answer here was If the amendment sought does not add any new facts to the case, but seeks only to add a new or additional ground or theory in support of a claim or defense, the amendment is all the more likely to be allowed. Thus, the court granted the amendment in Rife v. Union College, 30 A.D.2d 504, 505, 294 N.Y.S.2d 460, 462 (3d Dep't 1968), noting that the amended complaint did not propose to add “any new unknown or unalleged facts in the amended complaint, but at most has merely set forth an additional theory of the law based upon the facts formerly alleged.” See Brewster v. Baltimore & Ohio R. Co., 185 A.D.2d 653, 585 N.Y.S.2d 647 (4th Dep't 1992) (granting leave to amend complaint to add new theory of liability on eve of trial because “factual allegations supporting plaintiff's claims under the Pennsylvania Labor Law are the same as the factual allegations concerning defendants’ alleged violations of New York Labor Law”); Eng 26 v. DiCarlo, 79 A.D.2d 1018, 435 N.Y.S.2d 336 (2d Dep't 1981). As favored as amendments are to insert new facts, they are all the more favored when “the motion seeks leave to make a conceptual rather than a factual amendment.” In re Denton's Pond Creek, Freeport, Town of Hempstead, 68 Misc.2d 336, 339, 326 N.Y.S.2d 505, 509 (Sup. Ct., N.Y. County 1971). 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: 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; 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, 27 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 17, 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 28 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 7,645 words, as calculated by Microsoft Word, including the table of contents and table of authorities. 29 AFFIRMATION OF SERVICE Arthur Z. Schwartz, attorney for Appellant-Petitioner affirms that on August 17, 2018 a copy of the Appellant-Plaintiff’s Brief and Appendix was served by hand upon Counsel for Appellees: 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 Sarah Steiner Kaplan, Heckerer and Fink Attorneys for Intervenor 350 Fifth Avenue New York, NY 10008 by hand delivery and by email. Dated: New York, New York August 17, 2018 /s/ Arthur Z. Schwartz 225 Broadway, Suite 1902 New York, New York 10007 (212) 285-1400 aschwartz@afjlaw.com