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: ROBERTA A. KAPLAN 10 minutes requested New York County Clerk’s Index No. 157145/18 Jieto |9ork Supreme Court APPELLATE DIVISION— FIRST DEPARTMENT PENNY MINTZ, Petitioner/Candidate-Appellant, — against— BOARD OF ELECTIONS OF THE CITY OF NEW YORK, Respondent-Respondent, — and— RACHEL LAVINE, Intervenor-Respondent. INTERVENOR-RESPONDENT’S BRIEF Roberta A. Kaplan Gabrielle E. Tenzer KAPLAN HECKER & FINK LLP 350 Fifth Avenue, Ste. 7110 New York, NY 10118 (212) 763-0883 rkaplan@kaplanhecker.com gtenzer@kaplanhecker.com Sarah K. Steiner 401 East 74th Street, 9th Floor New York, NY 10021 (917) 776-5175 sks41aw@aol.com Attorneys for Intervenor-Respondent Rachel Lavine TABLE OF CONTENTS PRELIMINARY STATEMENT. 1 COUNTER-STATEMENT OF ISSUES PRESENTED 3 COUNTER-STATEMENT OF RELEVANT FACTS 3 ARGUMENT 6 I. The Supreme Court’s Dismissal of the Petition Was Based on Binding Court of Appeals Precedent II. Appellant’s Efforts to Negate the Requirements of Election Law §§ 2-102(4) and 6-132(1) Lack Merit III. Appellant’s Constitutional Argument Is Not Preserved and, Nevertheless, Lacks Merit . 6 11 17 CONCLUSION 19 ii TABLE OF AUTHORITIES Page(s) Cases Anderson v. Celebrezze, 460 U.S. 780, 103 S. Ct. 1564 (1983) Avella v. Johnson, 142 A.D.3d 1 111, 38 N.Y.S.3d 44 (2d Dept 2016) Bosco v. Smith, 104 A.D.2d 462, 479 N.Y.S.2d 70 (2d Dept 1984) Bosco v. Smith, 63 N.Y.2d 698, 479 N.Y.S.2d 981 (1984) £un£dt v. toAi, 504 U.S. 428, 112 S. Ct. 2059 (1992) Caffery v. Lawley, 21 A.D.2d 749, 250 N.Y.S.2d 677 (4th Dept 1964) ... Carusone v. Varney, 277 A.D. 326, 99 N.Y.S.2d 1 (3d Dept 1950) Collins v. Kelly, 253 A.D.2d 571, 678 N.Y.S.2d 791 (3d Dept 1998) Cooky. Zelazny, 49 A.D.2d 1036, 374 N.Y.S.2d 509 (4th Dept 1975).... Denn v. Mahoney, 64 A.D.2d 1007, 409 N.Y.S.2d 285 (4th Dept 1978) . Dippley. Devine, 218 A.D.2d 918, 630 N.Y.S.2d 808 (3d Dept 1995).... Donnelly v. McNab, 83 A.D.2d 896, 442 N.Y.S.2d 532 (2d Dept 1981).. Duffy v. Bd. of Elections of Cty. of Westchester, 40 Misc.2d 175, 242 N.Y.S.2d 644 (Sup. Ct., Westchester Cty. 1963) Dunlea v. New York State Bd. of Elections, 275 A.D.2d 589, 713 N.Y.S.2d 89 (3d Dept 2000) Etkin v. Thalmann, 287 A.D.2d 775, 731 N.Y.S.2d 248 (3d Dept 2001) . Fuchs v. Itzkowitz, 120 A.D.3d 682, 991 N.Y.S.2d 324 (2d Dept 2014) .. Harder v. Kuhn, 153 A.D.3d 1119, 60 N.Y.S.3d 597 (3d Dept 2017) Hicks v. Walsh, 76 A.D.3d 773, 906 N.Y.S.2d 661 (3d Dept 2010) Justice v. Gamache, 45 A.D.3d 508, 845 N.Y.S.2d 382 (2d Dept 2007).. Kolken v. Mahoney, 49 A.D.2d 798, 373 N.Y.S.2d 416 (4th Dept 1975). 18 12 passim 2,3,8 18 14 14 13 14 15 14 14 15 7, 12 13 17 12 15 12 14 iii Levine v. Millspaugh, 13 Misc.2d 760, 180 N.Y.S.2d 470 (Sup. Ct., Albany Cty. 1958) Lloyd v. Power, 37 A.D.2d 792, 324 N.Y.S.2d 771 (4th Dept 1971) Lozano v. Scaringe, 253 A.D.2d 569, 677 N.Y.S.2d 404 (3d Dept 1998) MacKay v. Cochran, 264 A.D.2d 699, 695 N.Y.S.2d 113 (2d Dept 1999) Margolis v. Larkin, 39 A.D.2d 952, 333 N.Y.S.2d 288 (2d Dept 1972) McGee v. Korman, 70 N.Y.2d 225, 519 N.Y.S.2d 350 (1987) Most v. Walker, 297 A.D.2d 356, 746 N.Y.S.2d 410 (2d Dept 2002) Murray v. Coveney, 39 A.D.2d 932, 333 N.Y.S.2d 125 (2d Dept 1972) Nagabundi v. Polentz, 131 A.D.3d 639, 15 N.Y.S.3d 431 (2d Dept 2015) Packer v. Bd. of Elections of the City ofN.Y., 207 A.D.2d 513, 615 N.Y.S.2d 931 (2d Dept 1994) Parker v. Savago, 143 A.D.2d 439, 532 N.Y.S.2d 438 (3d Dept 1988) Powell v. Marchi, 153 A.D.2d 540, 544 N.Y.S.2d 836 (1st Dept 1989) Praete v. Van Wart, 47 Misc.2d 898, 263 N.Y.S.2d 396 (Sup. Ct., Westchester Cty. 1965) . Pulver v. Allen, 242 A.D.2d 398, 661 N.Y.S.2d 836 (3d Dept 1997) Rosen v. McNab, 25 N.Y.2d 798, 303 N.Y.S.2d 660, (1969) Rothstein v. Chiavaroli, 41 A.D.2d 1024, 344 N.Y.S.2d 307 (4th Dept 1973).....14 Siems v. Lite, 307 A.D.2d 1016, 763 N.Y.S.2d 501 (2d Dept 2003)... Stoppenbach v. Sweeney, 98 N.Y.2d 431, 749 N.Y.S. 2d 210 (2002) Timmons v. Twin Cities Area New Party, 520 U.S. 351, 117 S. Ct. 1364 (1997).. 18 Toporekw. Beckwith, 32 A.D.3d 684, 821 N.Y.S.2d 685 (4th Dept 2006) 7 14 15 12 15 18 14 14 17 7 15 14 14 13 13 13 12 13 iv Statutes 17CPLR § 1012 17CPLR 3025 N.Y. Cty. Sup. Ct. Rules for the Special Election Part-2018. 17 NY Election Law § 16-102(2) 17 passimNY Election Law § 2-102(4) passimNY Election Law § 6-132(1) 18NY Election Law § 6-132(3). 12, 13NY Election Law § 6-134 NY Election Law § 6-134(10) 13 NY Executive Law § 71 17 11, 12NY Ballot Access Law of 1996 NY Election Reform Act of 1992 11, 12 v Intervenor-Respondent Rachel Lavine, currently the Female Member of the State Committee for the 66th Assembly District (“Ms. Lavine” or “Intervenor”), respectfully submits this brief in opposition to the appeal filed by Petitioner/Candidate-Appellant Penny Mintz (“Ms. Mintz” or “Appellant”) from the Decision and Order of the Supreme Court of the State of New York, New York County, by the Honorable Carol R. Edmead, dated August 15, 2018, and entered on August 17, 2018, dismissing the Petition and affirming the Board of Elections’ decision that Appellant’s designating petition is invalid and that her name should not appear on the ballot for the September 13, 2018 primary election (the “Order”). PRELIMINARY STATEMENT In her brief to this Court, Appellant makes four arguments for why the Order should be reversed. One of those arguments (Point I) has to do with internal rules of the Board of Elections and will be addressed by the Board of Elections directly. Another (Point IV), discussed briefly below, relates to whether arguments in Appellant’s Amended Verified Petition filed and served the evening before the Supreme Court argument were properly preserved. Third, as also addressed below, Appellant actually has the temerity to challenge the provisions of New York’s Election Law requiring candidates to accurately state the position they are seeking as a violation of Sections I and 8 of Article I of the New York State Constitution (Point III). But with respect to one of Appellant’s arguments (Point II), the law is 1 so clear that this Court can and should affirm the Order on this basis alone, as the court properly did below. More specifically, while Appellant argues that her designating petition “was sufficiently informative so as to preclude any reasonable probability of confusing or deceiving the signer” such that she did not need to accurately describe the position she was seeking, that is not the law in New York. Instead, New York law requires strict compliance with prescribed content, such as the description of the office of Female or Male State Committee Member on a designating petition. Indeed, there is a binding Court of Appeals decision that is directly on point. Bosco v. Smith, 104 A.D.2d 462, 479 N.Y.S.2d 70 (2d Dept 1984), aff'd, 63 N.Y.2d 698, 479 N.Y.S.2d 981 (1984). Here, Appellant failed to accurately state on her designating petition the position that she was seeking, which is “Female State Committee Member” or “Female Member of the State Committee.” That was the exact same deficiency at issue in Bosco, where the Court of Appeals affirmed a decision invalidating designating petitions for the failure to designate the gender of the candidates for State Committee Member on the designating petitions. As the Supreme Court aptly concluded: “The court is constrained to follow Bosco v. Smith. Bosco has not been superseded by any new caselaw or legislation in opposition to its findings.” (A12- A13 (citation omitted).) 2 COUNTER-STATEMENT OF ISSUES PRESENTED Pursuant to the Court of Appeals’ decision in Bosco v. Smith, 1041. A.D.2d 462, 479 N.Y.S.2d 70 (2d Dept 1984), ajf'd, 63 N.Y.2d 698, 479 N.Y.S.2d 981 (1984), is a candidate for Female Member of the State Committee required to specify that that is the office being sought on the designating petition? 2. Is there any reason to excuse Appellant’s noncompliance with sections 2-102(4) and 6-132(1) of the Election Law here? 3. Does Appellant somehow have the constitutional right not to comply with sections 2-102(4) and 6-132(1) of the Election Law? COUNTER-STATEMENT OF RELEVANT FACTS For many decades, the Rules of the Democratic Party of the State of New York have provided that each Assembly District should have two state committee members, one male and one female. A response to the first wave of modem feminism in this State, the purpose of this rule change was to ensure equal representation by gender on the Democratic Party State Committee. Indeed, both the Democratic and Republican State Parties have adopted similar rules to this effect. See Exhibits 1 and 2 to the Affirmation of Gabrielle E. Tenzer, dated August 6, 2018 (“Tenzer Affirmation” or “Tenzer Aff.”) (A129-A132b). 3 Intervenor, Ms. Lavine, has served as the Female State Democratic Committee Member for the 66th Assembly District for the past two decades. She is once again a candidate for this position in the upcoming primary election. Appellant, Ms. “Penny” Mintz,1 attempted to get her name on the ballot for the upcoming primary election to challenge Ms. Lavine for the position of Female State Committee Member for the 66th Assembly District. On July 31, 2018, Appellant filed her Petition in the New York County Supreme Court, commencing this proceeding to challenge the Board of Elections’ anticipated finding of defect in Appellant’s designating petition. On August 1, 2018, the Board of Elections upheld its preliminary finding of a Prima Facie defect in Appellant’s designating petition and invalidated that petition for failure to accurately state the position that Appellant was seeking: namely, Female State Committee Member for the 66th Assembly District. See Am. Pet. Ex. B (A59); Tenzer Aff. Ex. 3 at 28 (A150). On August 2, Judge Edmead entered Appellant’s order to show cause why the court should not enter an order, among other things: (1) declaring Appellant’s designating petition valid; and (2) directing the Board of Elections to While “Penny” is the name Ms. Mintz chooses to run under, see Am. Pet. Ex. A (A37-A56), Ms. Mintz’s legal and registered name is Phyllis, see Tenzer Aff. Ex. 3 at 25-26 (A147- A148). Accordingly, Ms. Mintz signed all of the petition sheets under her legal and registered name of Phyllis Mintz. See Am. Pet. Ex. A (A42-A53). In her papers, Ms. Mintz relies heavily on the fact that “Penny” is commonly understood as a female name and a nickname for Penelope (see Petitioner-Appellant’s Br. (“Br,”) at 5), but nowhere does she indicate that “Penny” is a common nickname for “Phyllis.” 4 place her name on voting machines and ballots for the September 13, 2018 Democratic Primary Election. On August 6, Ms. Lavine filed a motion to intervene as a respondent in this proceeding, which Judge Edmead granted on August 8, after both parties consented. Thereafter, the Board of Elections moved to dismiss Appellant’s Petition on jurisdictional grounds. At a hearing on August 8, Judge Edmead adjourned to August 15 the hearing on the order to show cause and the Board of Elections’ motion to dismiss. The evening before the August 15 hearing, on August 14, Appellant filed an Amended Verified Petition containing several new arguments, including: (1) “the determination under NYC Rule 6215(E) was made without authority under the Election Law”; and (2) “the invalidation of Penny Mintz’ petitions violates the free speech and voting rights provision [sic] of the New York State Constitution.” Compare Am. Pet. (A16-A35), with Pet. (RA001-RA007) and Mem. of Law in Supp. of OSC (RA008-RA018). At the August 15 hearing, the Court denied the order to show cause and dismissed the Petition. In its Decision, the Court stated: The Court is constrained to follow Bosco v. Smith, 104 A.D.2d 462, aff'd 63 N.Y.2d 698, 468 N.E.2d 1118 [1984]) [sic]. Bosco has not been superseded by any new caselaw or legislation in opposition to its findings. Female designation for State Committee person is “content,” not form (Bosco, 104 A.D.2d at 463). Therefore, the Court is mandated to find that the designating petitions are invalidated. 5 (A12-A13.) The Court further refused to consider the new arguments that were made only in Appellant’s untimely Amended Verified Petition and which had not previously been made in Appellant’s original Petition, as evidenced by the Court’s statements during the August 15 hearing and the Court’s complete silence on these arguments in its August 15 Decision. {See RA022 (Aug. 15, 2018 Hr’g Tr.); A6-A13.) Appellant filed a Notice of Appeal and Pre-Argument Statement on August 15, 2018. (A14-A15.) Appellant’s brief is dated August 17, 2018. ARGUMENT 1. The Supreme Court’s Dismissal of the Petition Was Based on Binding Court of Appeals Precedent. As noted above, the Rules of the Democratic Party of the State of New York have long provided that any time two state committee members are to be elected, one is to be male and one is to be female. See, e.g., Tenzer Aff. Ex. 1, Art. II, § l(c)(iii)(a) (A132). Accordingly, in the May 22, 2018 “Statement and Call of the Democratic Party of New York County for the 2018 Primary Election,” the Chairperson of the County Committee of the Democratic Party for New York County called for “[o]ne Male State Committee Member and one Female State Committee Member [to] be elected from each Assembly District within New York County as set forth in the attached schedule.” Tenzer Aff. Ex. 4 (A152). The 6 attached schedule included the 66th Assembly District, see id. (A153), which is the Assembly District at issue in this proceeding. New York Election Law, in turn, requires the effective implementation of any such party rules concerning equal representation by gender. See, e.g., Levine v. Millspaugh, 13 Misc.2d 760, 180 N.Y.S.2d 470 (Sup. Ct., Albany Cty. 1958). Indeed, section 2-102(4) of the Election Law specifically permits state committees to “provide by rule for equal representation of the sexes on said committee.” Even more significantly, section 2-102(4) of the Election Law specifies that “[w]hen any such rule provides for equal representation of the sexes, the designating petitions and primary ballots shall list candidates for such party positions separately by sexes” (emphasis added). In addition, section 6-132(1) of the Election Law requires that any designating petition must set forth the public office or party position that is being sought. Accordingly, numerous courts have held that “[candidates must strictly comply with the mandates of Election Law § 6- 132(1) requiring that each sheet of the designating petition contain the name of the public office or party position that is sought.” Packer v. Bd. of Elections of the City ofN.Y., 207 A.D.2d 513, 514, 615 N.Y.S.2d 931, 932 (2d Dept 1994); see also, e.g., Dunlea v. New York State Bd. of Elections, 275 A.D.2d 589, 590, 713 N.Y.S.2d 89, 91 (3d Dept 2000) (“[T]he requirement that a nominating petition set forth the public office or party position being sought is a substantive one and no deviation from the 7 statutorily prescribed content is permitted.”). There can be no legitimate dispute that Appellant failed to satisfy these requirements since Appellant’s designating petition did not list the position being sought as “Female State Committee Member,” or “Female Member of the State Committee,” but instead merely as “Member of the State Committee, 66th Assembly District, State of New York.” See Am. Pet. Ex. A (A37-A56). Here, as discussed above, the Court of Appeals’ decision in Bosco v. Smith,63 N.Y.2d 698, 479 N.Y.S.2d 981 (1984), affirming the Second Department’s decision for the reasons stated by the Appellate Division, is directly on point. Like here, Bosco involved designating petitions for State Committee Members, but for the Republican rather than the Democratic Party.2 The designating petitions in Bosco, like the designating petition at issue in this proceeding, stated merely the petitioners’ names— F. Wilson Smith and Imogene R. Mayer— and failed to state anywhere the gender of either petitioner. Bosco, 104 A.D.2d at 462-63, 479 N.Y.S.2d at 71. The Bosco court found that when party rules specifically provide for equal representation by gender for State Committee positions, as they do here, then the petitioners’ failure “to designate their respective sexes anywhere on the 2 Obviously, the fact that the petitions in Bosco involved Republican, as opposed to Democratic, State Committee Members is of no moment here. 8 designating petitions” constitutes grounds to invalidate the designating petitions. 104 A.D.2d at 463, 479 N.Y.S.2d at 71. As the Bosco court explained: The Court of Appeals has repeatedly held that there must be strict compliance with statutory commands as to matters of prescribed content. [Respondents] failed to designate their respective sexes anywhere on the designating petitions ____ [T]his is not merely a matter of form, where the requisite information is contained in the designating petition. Rather, the necessary information is completely omitted. Consequently, the application to invalidate should have been granted. Bosco, 104 A.D.2d at 463, 479 N.Y.S.2d at 71 (citation omitted). Significantly, the Court reached this result in Bosco despite the fact that, just as Appellant argues here (Br. at 5-6), the name of the female candidate in Bosco, “Imogene,” is commonly understood to be a woman’s name. Appellant’s suggestion that the Bosco court’s decision was based only on the name “F. Wilson Smith” (Br. at 19), and not also on the name “Imogene R. Mayer,” flatly mischaracterizes the Bosco court’s decision. The Bosco court directed the Board of Elections to remove both candidates’ names from the ballot, because both “Smith and Mayer failed to designate their respective sexes anywhere on the designating petition.” 104 A.D.2d at 463, 479 N.Y.S.2d at 71; see also Order, Chaffee v. Peragine, No. 13132/02 (Sup. Ct., Nassau Cty. Aug. 20, 2002) (citing Bosco and finding designating petition “fatally flawed” where “gender was required information” on the petition and candidate “was not identified as a candidate for female member of the State Committee”) (Tenzer Aff. Ex. 5 (A155-A156)). 9 This Court should reach the same result here. Nowhere on Appellant’s designating petition did Appellant make it clear that she was female or that she was running for the position of Female State Committee Member. See Am. Pet. Ex. A (A37-A56). Instead, the petition merely provided Appellant’s name and address, and listed the position as “Member of the State Committee, 66lh Assembly District, State of New York.” Id. The designating petition therefore failed to comply with either section 2-102(4) or section 6-132(1) of the Election Law. The fact that Appellant’s nickname, “Penny,” was listed on the petition does not cure Appellant’s failure to comply with the Election Law, any more than the woman’s name “Imogene” that appeared on the petition did in Bosco} In light of Bosco, this Court should affirm the decision of the Supreme Court dismissing the Petition and affirming the Board of Elections’ decision that Appellant’s designating petition is invalid and that her name should not appear on the ballot. As Judge Edmead explained: The Court is constrained to follow Bosco v. Smith, 104 A.D.2d 462, aff'd 63 N.Y.2d 698, 468 N.E.2d 1118 [1984]) [sic]. Bosco has not been superseded by any new caselaw or legislation in opposition to its findings. Female designation for State Committee person is “content,” 3 Even if, for the sake of argument, any particular name— such as “Penny” — could be considered male or female, Appellant fails to address the fact that there are many names that are neither male nor female, such as “Pat,” “Alex,” “Jessie,” or “Robbie,” to name just a few. Without strict compliance with section 2-102(4), there will be any number of instances where voters signing designating petitions will have absolutely no idea, based solely on the name that appears on the petition, whether they are signing a petition for the position of Male or Female State Committee Member. 10 not form (Bosco, 1 04 A.D.2d at 463). Therefore, the Court is mandated to find that the designating petitions are invalidated. (A12-A13.) Appellant’s Efforts to Negate the Requirements of Election Law §§ 2- 102(4) and 6-132(1) Lack Merit. II. As discussed above, section 2-102(4) of the Election Law directly addresses the designating petition content at issue in this proceeding— namely, listing the candidates for the position of State Committee Member by gender. The statute specifically requires that where, as here, a party rule “provides for equal representation of the sexes, the designating petitions and primary ballots shall list candidates for such party positions separately by sexes.” Election Law § 2-102(4). Rather than address this statutory command which, since it prescribes petition content, must be strictly adhered to, see supra at 7, Appellant attempts to rely on the Ballot Access Law of 1996 and the Election Reform Act of 1992. But, as described below, neither of these statutes helps Appellant here. The Ballot Access Law of 1996 and the Election Reform Act of 1992 removed hyper-technical designating petition requirements and gave candidates a three-day window to correct such technical errors. They did not, however, have anything to do with the relevant requirements of sections 2-102(4) and 6-132(1) of the Election Law. As the Third Department explained in 2000, four years after passage of the Ballot Access Law and eight years after passage of the Election 11 Reform Act: Notably, the requirement that a nominating petition set forth the public office or party position being sought is a substantive one and no deviation from the statutorily prescribed content is permitted. Contrary to petitioners’ assertion, the long-standing requirement of strict compliance with the mandates of Election Law § 6-132(1) is unaffected by the provisions of the Election Reform Act of 1992. Dunlea, 275 A.D.2d at 590, 713 N.Y.S.2d at 91 (citations omitted). For this reason, numerous courts have continued to apply the strict compliance standard to matters of prescribed content, such as the requirement here that designating petitions list candidates for the party position of State Committee Member by gender, even after passage of the 1992 and 1996 Acts. See, e.g., Stoppenbach v. Sweeney, 98 N.Y.2d 431, 433, 749 N.Y.S. 2d 210, 210-1 1 (2002); Harder v. Kuhn, 153 A.D.3d 1 1 19, 1121, 60 N.Y.S.3d 597, 599-600 (3d Dept 2017); Avella v. Johnson, 142 A.D.3d 1111, 1112, 38 N.Y.S.3d 44, 45-46 (2d Dept 2016), leave to appeal denied, 28 N.Y.3d 904, 43 N.Y.S.3d 255 (2016); Justice v. Gamache, 45 A.D.3d 508, 511, 845 N.Y.S.2d 382, 384 (2d Dept 2007); MacKay v. Cochran, 264 A.D.2d 699, 699-700, 695 N.Y.S.2d 113, 114 (2d Dept 1999). Moreover, the provision in the 1996 Ballot Access Law directing “liberal construction” of designating petition requirements on its face applies only to the requirements contained in section 6-134 of the Election Law and not, as Appellant misleadingly contends, to “all other rules regarding designating petitions.” Br. at 20; see also Br. at 1 4. As the amended statute clearly states, the “provisions 12 of this section” — meaning section 6-134— “shall be liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud.” Election Law § 6-134(10); see also Pulver v. Allen, 242 A.D.2d 398, 399, 661 N.Y.S.2d 836, 837 (3d Dept 1997) (“[T]he recent enactment of Election Law § 6- 134(10) (L.1996, ch. 709, § 3) now permits the courts to ‘liberally construe’ all the provisions of section 6-134.”). The fatal flaw in Appellant’s designating petition here was not a violation of section 6-134, but rather of sections 2-102(4) and 6- 132(1)— which have no similar “liberally construed” instruction. Not surprisingly, courts have applied the “liberally construed” standard of section 6-134(10) only to technical defects relating to other provisions of section 6-134. See, e.g., Toporekv. Beckwith, 32 A.D.3d 684, 684, 821 N.Y.S.2d 685, 686 (4th Dept 2006) (incorrect address on cover sheet); Etkin v. Thalmann, 287 A.D.2d 775, 776-77, 731 N.Y.S.2d 248, 249-50 (3d Dept 2001) (omission of number of signatures in subscribing witness statements); Collins v. Kelly, 253 A.D.2d 571, 572, 678 N.Y.S.2d 791, 793 (3d Dept 1998) (pagination requirements). The cases cited by Appellant similarly involve only technical defects. See Br. at 16-18 (citing Rosen v. McNab, 25 N.Y.2d 798, 799, 303 N.Y.S.2d 660, 661 (1969) (sheets of petition not separately numbered); Toporek, 32 A.D.3d at 684, 821 N.Y.S.2d at 686 (address listed as “160-2 Arbour Lane” or “160.2 Arbour Lane,” rather than “160 Arbour Lane, Unit 2”); Siems v. Lite, 307 A.D.2d 1016, 1016, 763 N.Y.S.2d 501, 501-02 13 (2d Dept 2003) (concerning petition volume identification numbers); Most v. Walker, 297 A.D.2d 356, 357, 746 N.Y.S.2d 410 (2d Dept 2002) (concerning “details of form in a cover sheet”); Powell v. Marchi, 153 A.D.2d 540, 541-42, 544 N.Y.S.2d 836, 837-38 (1st Dept 1989) (inaccuracies in number of volumes of petition, total number of pages, and total number of signatures); Kolken v. Mahoney, 49 A.D.2d 798, 798, 373 N.Y.S.2d 416, 416 (4th Dept 1975) (erroneous information provided by witnesses), rev’d on other grounds, 37 N.Y.2d 787, 788, 375 N.Y.S.2d 101, 101-02 (1975); Rothstein v. Chiavaroli, 41 A.D.2d 1024, 1024, 344 N.Y.S.2d 307, 308 (4th Dept 1973) (number of signatures not specified in witness statements); Lloyd v. Power,37 A.D.2d 792, 792, 324 N.Y.S.2d 771, 772 (4th Dept 1971) (failure to consecutively number petition sheets or include date of primary election)). Indeed, most of the cases Appellant cites have to do with errors of geographic designation which could be easily remedied by looking to other information on the face of the petition, see, e.g.,Dipple v. Devine, 218 A.D.2d 918, 919, 630 N.Y.S.2d 808, 810 (3d Dept 1995); Donnelly v. McNab, 83 A.D.2d 896, 896, 442 N.Y.S.2d 532, 532-33 (2d Dept 1981); Cook v. Zelazny, 49 A.D.2d 1036, 1036, 374 N.Y.S.2d 509, 510 (4th Dept 1975); Murray v. Coveney, 39 A.D.2d 932, 932, 333 N.Y.S.2d 125, 126 (2d Dept 1972); Cajfery v. Lawley, 21 A.D.2d 749, 749-50, 250 N.Y.S.2d 677, 678 (4th Dept 1964); Carusone v. Varney, 277 A.D. 326, 328, 99 N.Y.S.2d 1, 3 (3d Dept 1950); Praete v. Van Wart, 47 Misc.2d 898, 899-900, 263 N.Y.S.2d 396, 14 398 (Sup. Ct., Westchester Cty. 1965); Duffy v. Bd. of Elections of Cty. of Westchester, 40 Misc.2d 175, 175-76, 242 N.Y.S.2d 644, 645-46 (Sup. Ct., Westchester Cty. 1963), or with descriptions of the office that, unlike here, could not have been confusing to the voter, see, e.g., Hicks v. Walsh, 76 A.D.3d 773, 774, 906 N.Y.S.2d 661, 663 (3d Dept 2010) (using “Assembly,” rather than “Member of Assembly”); Lozano v. Scaringe, 253 A.D.2d 569, 570, 677 N.Y.S.2d 404, 405 (3d Dept 1998) (using “Delegate” to the judicial district instead of “Delegate” to the judicial district convention); Margolis v. Larkin, 39 A.D.2d 952, 952, 333 N.Y.S.2d 288, 289 (2d Dept 1972) (using “Associate Assembly District Leader,” where committee decided to have two Assembly District Leaders and no Associate).4 Finally, even if the “sufficiently informative” standard applied, Appellant’s statement that her designating petition “made it clear to all signers . . . that she was running for the Female State Committee slot,” Br. at 12; see also id. at 15, is contradicted here by the record.5 Here, it is undisputed that the voters who 4 Some of the cases cited by Appellant actually support Intervenor’s position. See, e.g., Parker v. Savago, 143 A.D.2d 439, 441-42, 532 N.Y.S.2d 438 (3d Dept 1988) (recognizing that when “one cannot determine by reading the designating petition” what position the candidate is intending to run for, “the description of the party position which appears on . . . [the] designating petitions is capable of deceiving the signers” and such petition should be invalidated); Derm v. Mahoney, 64 A.D.2d 1 007, 1 008, 409 N.Y.S.2d 285, 286 (4th Dept 1 978) (same). 5 Appellant claims that “no one who signed the petition could possibly have thought that Penny Mintz was running for Male Member of the State Committee.” Br. at 15. In support of this statement, Appellant relies on the factual allegation that signatures were garnered by Ms. Mintz herself and specific other persons who were allegedly “petitioning with Ms. Mintz.” Id. at 1 5- 1 6. But Appellant did not submit any affidavits from these other individuals in support of these 15 signed Appellant’s designating petition were not properly informed that Appellant was running for the position of Female State Committee Member. In other words, there is, in fact, a reasonable probability that those voters would not have understood that they were signing a designating petition for candidate for the Female State Committee Member in the 66th Assembly District. Indeed, based on Appellant’s designating petition, a reasonable signer would not have had any reason to know that Appellant was a candidate for the position of “Female State Committee Member,” or even that there are in fact two elected Democratic State Committee Members for each District— one male and one female. Instead, most people signing Appellant’s petition could reasonably have assumed that there is only one Democratic State Committee Member for the District, undifferentiated by gender. As a result, Appellant’s description of the office on her petition did not “strict[ly] compl[y] with statutory commands,” Bosco, 104 A.D.2d at 463, and was not “sufficiently informative so as to preclude any reasonable probability of confusing or deceiving the signers, voters or board of elections,” Br. at 12 (quotation marks omitted); see also id. at 14-15.6 factual allegations. Nor does Appellant address the roughly 1,300 voters whose signatures were purportedly garnered by others who were not petitioning with Ms. Mintz. 6 Indeed, voters here are even more likely to be confused than the voters in Bosco. In Bosco, the petition listed both the male and female candidate. Bosco, 104 A.D.2d at 463. The petition signers in Bosco were thus aware that there were two positions at issue: one for a male committee member and one for a female committee member. Here, Penny Mintz was the only name on the petition and she failed to designate that she was a female running for the position 16 III. Appellant’s Constitutional Argument Is Not Preserved and, Nevertheless, Lacks Merit. Appellant’s purported constitutional argument is made only in her Amended Verified Petition, and therefore was not properly preserved and should not be considered on this appeal. Appellant’s Amended Verified Petition, which was not filed until August 14, 2018, was untimely and any arguments made therein for the first time were waived. See Election Law § 16-102(2) (requiring petition to be filed “within three business days after the officer or board with whom or which such petition was filed, makes a determination of invalidity with respect to such petition” or, here, August 6, 2018); see also Nagabundi v. Polentz, 131 A.D.3d 639, 641, 15 N.Y.S.3d 431, 433 (2d Dept 2015). Appellant’s assertion that CPLR 3025 applies to this special proceeding and that Appellant had 20 days to amend her Petition (Br. at 26), is not only entirely misplaced, but also impossible, since the appeal must be heard no later than August 22, or only 16 days after any timely petition was required to be filed. See N.Y. Cty. Sup. Ct. Rules for the Special Election Part - 2018. Appellant’s argument is also not properly before the Court because Appellant failed to serve notice on the Attorney General, as required by Executive Law § 71 and CPLR 1012, of Appellant’s constitutional challenge to Election Law § 2-102(4). See Fuchs v. Itzkowitz, 120 A.D.3d 682, 683, 991 N.Y.S.2d 324, 324 (2d Dept 2014) of Female State Committee Member. Accordingly, even more so here than in Bosco, “the necessary information is completely omitted.” Id. at 463. 17 (declining to reach merits of appellant’s constitutional challenge to Election Law § 6-132(3) because of appellant’s failure to notify the Attorney General); see also McGee v. Korman,70 N.Y.2d 225, 231-32, 519 N.Y.S.2d 350, 351 (1987) (reversing where Appellate Division found Election Law § 6-136(2)(b) unconstitutional but petitioner had not served proper notice on the Attorney General). Nevertheless, even if Appellant’s attempt to claim a violation of the State’s Constitution (see Br. at 20-26) were preserved (which it is not), Appellant’s blanket statement that applying section 2-102(4) to “invalidate a petition[] is an unconstitutional infringement upon the right to vote and freedom of association” (Br. at 25), does not plausibly state a constitutional claim. Rather, as the United States Supreme Court has recognized, “States may and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S. Ct. 1364, 1369-70 (1997). As a result, “when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick v. Takushi, 504 U.S. 428, 434, 1 12 S. Ct. 2059, 2063 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S. Ct. 1564, 1570 (1983)). Here, Appellant cannot possibly show that the requirement of section 2-102(4) to accurately state the position being sought is unreasonable or 18 discriminatory under the circumstances. CONCLUSION For the reasons stated above and for any other reason that the Court deems just and proper, the Court should affirm the decision of the Supreme Court dismissing the Petition and affirming the Board of Elections’ decision that Appellant’s designating petition is invalid and that her name should not appear on the ballot. Dated: New York, New York August 20, 2018 f Respectfully submitted, ' i befta bijel! L Kaplap, Esq. E. Tenier, Esq. 4ECKER|& FINK LLPKAPL/ 350 Fi'ftljl Aveniÿ, Suite 7110 New Ytfrk, NY 10118 Tel.: (212) 763-0883 rkaplan@kaplanhecker.com gtenzer@kaplanhecker.com Sarah K. Steiner, Esq. 401 East 74th Street, Ninth Floor New York, NY 10021 Tel.: (917) 776-5175 sks41aw@aol.com Attorneys for Intervenor- Respondent Rachel Lavine 19 PRINTING SPECIFICATIONS STATEMENT I hereby certify that this Intervenor-Respondent’s Brief was prepared using Microsoft Word software, with Times New Roman typeface in 14-point size, with the exception of footnotes which are in Times New Roman typeface at 12-point size. This Brief contains 4,714 words, as calculated by Microsoft Word, excluding the cover page, table of contents, table of authorities, and signature block. Dated: New York, New York August 20, 2018 zn / / I f. Tenze *4sq.Gaftrielle