Supreme Court, Albany County, June 2, 2022

Holwell Shuster & Goldberg LLP, New York City (Gregory Dubinsky of counsel), for petitioner.

New York State Board of Elections, Albany (Brian Lee Quail of counsel), for respondent.

In this CPLR article 78 proceeding, the petitioner, League of Women Voters of New York State (League), seeks as against the respondent New York State Board of Elections (BOE) a writ of mandamus, a writ of prohibition, and declaratory judgment—arguing that the BOE failed to perform a duty imposed on it by law, when it certified the 2022 Assembly primary ballot without first properly configuring the Assembly district maps as required by a 2014 constitutional amendment. The League specifically asks the court to order the BOE to cease any further [*2]actions to facilitate the June 28, 2022 Assembly primary elections. The League argues that the BOE, by certifying the Assembly primary ballots, acted and continues to act without, or in excess of, its jurisdiction, and should be ordered to refrain from carrying out the June 28, 2022 primary elections for the Assembly unless and until such time as valid Assembly district maps are implemented. The League also seeks a declaratory judgment that the BOE's certification of the Assembly primary ballots was irrational, affected by error of law, arbitrary and capricious, and an abuse of discretion. The League requests that the BOE's certifications be annulled, and the Assembly primary election be delayed until such time as valid maps are drawn. The League also asserts it is entitled to attorney's fees and expenses under CPLR article 86, when the aforementioned relief is granted. The BOE opposes.

By way of background, in 2014 New York amended the Constitution (art III, § 4 [b]) to address the gerrymandering of the State Senate, State Assembly, and congressional districts, by{**75 Misc 3d at 951} creating an independent redistricting commission (IRC) to draft maps and hold public hearings—after which the IRC would submit new district maps to the legislature for approval. If the legislature or Governor did not approve the submitted maps, the IRC would have 15 days to redraw and submit new maps. It is only after the legislature voted to reject, or the Governor did not approve, the second IRC maps that the legislature would get to enact its own district maps with the approval by the Governor. This year, the IRC first submitted two competing plans to the legislature, which it voted to reject. The IRC then advised that it was deadlocked and would not submit a further set of maps to the legislature. Without a further vote on any maps, the legislature enacted its own set of maps, which were approved by the Governor. This led to Harkenrider v Hochul (76 Misc 3d 171 [Sup Ct, Steuben County 2022]) (Harkenrider I), which challenged the constitutionality of the State Senate and congressional maps—with the court finding on March 31, 2022, that the State Senate, Assembly and congressional maps were "void" under the State Constitution.^[FN*] Following an appeal, the Appellate Division, Fourth Department modified—vacating the declaration that the State Senate and Assembly maps were unconstitutional, but otherwise affirming that the congressional maps were unconstitutional (Harkenrider v Hochul, 204 AD3d 1366 [4th Dept 2022]) (Harkenrider II). On an appeal of portions of Harkenrider II—limited to only the declarations involving the State Senate and congressional maps—on April 27, 2022, the Court of Appeals (Harkenrider v Hochul, — NY3d —, 2022 NY Slip Op 02833 [2022]) (Harkenrider III) modified, in sum declaring the State Senate and congressional maps void as unconstitutional, with the matter remitted "to Supreme Court which, with the assistance of the special master . . . , shall adopt constitutional maps with all due haste" (— NY3d at —, 2022 NY Slip Op 02833, *14). In a footnote, the Court declined to invalidate the Assembly maps, on account of the petitioners not seeking that relief nor challenging the Appellate Division's vacatur of the Supreme Court's declaration that the State Assembly maps were void (see — NY3d at — n 15, 2022 NY Slip Op 02833, *11 n 15). On a subsequent motion to intervene in Harkenrider I, the purpose of which was to have the Assembly maps declared unconstitutional and redrawn as well, the court (McAllister, J.) found, by decision and order dated May 11, 2022, that intervention was improper, as the Assembly{**75 Misc 3d at 952} maps were not an issue in the pending proceeding, [*3]and the belated attempt by the intervenors was untimely in that it would be unduly prejudicial (Harkenrider v Hochul, 2022 NY Slip Op 32196[U] [Sup Ct, Steuben County 2022]).

Now, in support of this application, and as its first cause of action for mandamus, the League argues that the BOE should have acted to create new, lawful Assembly maps, or at least refrain from compounding the legislature's constitutional violation by certifying the primary ballots in the Assembly races. It asks the court to revoke the BOE's May 4, 2022 certification of the current Assembly primary ballots, arguing that, because there are presently no lawful Assembly districts, the BOE violated its duty to carry out elections in accordance with the law.

In its second cause of action for a writ of prohibition, the League argues that the Election Law requires candidates for Assembly to reside in the districts they seek to represent, and, given that there are currently no valid Assembly districts, the certification of the ballot was made in violation of the law. Again, the League seeks an order prohibiting the BOE from carrying out the June 28, 2022 primary elections.

In its third cause of action for declaratory judgment, the League argues that the BOE's determination to certify the 2022 Assembly primary ballot was arbitrary and capricious and constitutes an abuse of discretion.

In opposition, the BOE points out that on May 4, 2022, as it was required to do by section 4-110 of the Election Law, it certified Assembly and statewide candidates for the June 28, 2022 primary. At that time, there was no court proceeding or order enjoining that certification. The primary ballot for each party is a unified ballot and includes candidates for any Assembly primary, Governor, Lieutenant Governor, and other elected offices, such as Supreme Court Justices. As of June 1, 2022 (the return date of this petition), early voting for the June 28, 2022 primary will begin in 18 days in the 150 Assembly districts across the state, and at least 700,000 ballots have already been prepared. Absentee ballots for military and overseas voters were mailed on May 13, 2022, pursuant to Election Law §§ 10-108 (1) and 11-204 (4). Absentee ballots for 200,000 nonmilitary voters have been printed and in some cases already mailed. The BOE advises, if candidates were to be changed now, testing of voting machines would be imperiled (9 NYCRR 6210.2). Early voting{**75 Misc 3d at 953} sites have been engaged, mail notification of primary dates and the location of early voting sites mailed (4.7 million notifications to New York City voters alone), poll workers hired, and a host of other necessary preparations have been completed. Supreme Court nominations are also on the current ballots, and the judicial candidates who win their primaries must be nominated by convention of their party on or before August 10th in order to appear on the general-election ballot. It also points out that if Assembly maps are redrawn, election districts will have to be revised, and voters resorted.

Lastly, the BOE notes that the last day to challenge Assembly primary [*4]designations passed on April 21, 2022 (Election Law § 16-102), and citing to Matter of Scaringe v Ackerman (119 AD2d 327 [3d Dept 1986]), argues that it is now simply too late for any claim—including a challenge of a constitutional dimension.

For the reasons that follow the court denies the petition in its entirety.

First, the League's arguments are neither timely, novel, nor even accurate. Here, the court notes that the League was unsuccessful in its prior attempt to obtain nearly identical relief in an action filed in the Southern District of New York (League of Women Voters of N.Y. State v Kosinski, US Dist Ct, SD NY, 1:22-CV-04084, Engelmayer, J., 2022). Now, couched in different legal terms, it seeks the same injunctive relief denied in federal court—and again lacks any basis for the relief sought. A party seeking relief by way of mandamus must establish a clear legal right to the relief they are attempting to compel the public officer to perform (Matter of Willows Condominium Assn. v Town of Greenburgh, 153 AD3d 535 [2d Dept 2017]). The BOE is required to perform only those duties and obligations as set out in the Election Law—which is amply supported in this record. Simply stated, in the absence of any judicial directive that it perform otherwise, the BOE could only act on the 2022 Assembly maps as approved by the legislature and Governor. The League's reliance on the Court of Appeals dicta in Harkenrider III—that the Assembly maps suffer a procedural infirmity (thus are unconstitutional)—is misplaced. However viewed, it simply cannot be held that the BOE was required (or had the authority) based on Harkenrider III to create new Assembly maps, or refrain from certifying primary ballots based on the 2022 Assembly maps.

Nor is the League entitled to a writ of prohibition—which is an extraordinary remedy in itself, and only lies if there is a{**75 Misc 3d at 954} clear legal right to the relief, and only where a body or officer acts without jurisdiction in a matter over which it has no power over the subject matter or where it exceeds its authorized powers (Matter of HCI Distrib., Inc. v New York State Police, Troop B Commander, 110 AD3d 1297 [3d Dept 2013]). If a writ were permissible, the court is required to consider the gravity of the harm in denying the same, the availability of alternative relief, and the remedial effectiveness of prohibition if alternative relief is not available (Matter of Soares v Herrick, 20 NY3d 139 [2012]). Here, the League has simply made no showing that the BOE exceeded its authorized powers when it certified the Assembly ballot, nor has it demonstrated harm, and remarkably, alternative relief was readily available to the League prior to the BOE's certification. Again, neither the League, nor anyone else, made a timely challenge to the Assembly district maps.

Having determined that the League is not entitled to either a writ of mandamus or prohibition, it is also not entitled to a declaratory judgment in its favor. "[A] court may, in the exercise of its sound discretion, decline to pronounce a declaratory judgment [and i]ts discretionary and extraordinary power is properly [*5]invoked only where resort to ordinary actions or proceedings would not afford adequate relief" (Rockland Light & Power Co. v City of New York, 289 NY 45, 50-51 [1942] [citation omitted]). Albeit the League asserts that the court must grant declaratory judgment and conclude that the BOE acted in an arbitrary and capricious manner and abused its discretion, the court finds that the BOE's actions were anything but arbitrary—particularly considering the absence of any timely challenge to the 2022 Assembly maps and the absence of any contrary court order—and that it did what the Election Law required it do in certifying the 2022 Assembly primary ballots.

Here, the court also notes that an action nearly identical to the instant application was brought on May 15, 2022 (Nichols v Hochul, — Misc 3d —, 2022 NY Slip Op 22167 [Sup Ct, NY County 2022]). In Nichols, the court (Love, J.) declined to grant an injunction, determining that the application was time-barred, and that tremendous prejudice and chaos would result in a delay of the Assembly primaries, affecting Assembly candidates and also state and countywide races. On this record, the court makes the same determination.

Lastly, the court is reminded, "[i]rrespective of the label given to the proceeding or the words used to describe the issue . . . {**75 Misc 3d at 955}[where, as here, a petitioner] seeks judicial intervention in the election process . . . a court's jurisdiction to intervene . . . is limited to the powers expressly conferred by statute" (Scaringe v Ackerman at 328 [internal quotation marks omitted]). Here, there is simply no authority for the court to avoid the clear statutory deadlines—long since passed—for any present challenge to the 2022 Assembly primary election.

Accordingly, it is ordered that the article 78 petition is denied.