Supreme Court, Albany County, June 22, 2022

Greenberg Traurig, Albany (Robert M. Harding of counsel), for petitioners.

Messina Perillo Hill, LLP, Sayville (John Ciampoli of counsel), for Rebecca Shiroff and others, respondents.

[*2]

In this Election Law proceeding, the petitioners Andrew Voigt and David Schreiber now challenge a certificate of substitution filed with the respondent New York State Board of Elections (respondent Board) designating the respondent Rebecca Shiroff as a Republican Party candidate for the public office of State Senator for the 50th Senatorial District in the primary election to be held on August 23, 2022. The petitioners also seek an order enjoining and restraining the respondent Board from certifying the candidacy of Shiroff and placing her name on the August 23, 2022 ballots in the Republican Party primary election for the 50th Senatorial District. The respondents Rebecca Shiroff, Benedicte Doran, and Debra Cody oppose, variously asserting that the petitioners failed to name a necessary party and that the instant proceeding is premature, deny the petitioners' allegations, and have cross-moved for a change of venue/consolidation with a matter pending in Steuben County (Harkenrider v Hochul, Sup Ct, Steuben County, index No. E2022-0116CV). The petitioners oppose the cross motion for change of venue/consolidation.

For the procedural reasons that follow the court denies the petition to invalidate the substitution certification. The cross motion for a change of venue/consolidation is denied as academic.

By way of factual background, on May 27, 2022, consistent with an order of the Supreme Court of the State of New York, Steuben County (Harkenrider v Hochul, 2022 NY Slip Op 32400[U] [2022] [the McAllister order]), Fanny Villarreal filed with the State Board of Elections a "Certificate of Designation for the August 23, 2022 Primary Election Ballot"—having previously filed a designating petition to run as a Republican for State Senator, Senate District 55. Villarreal further states{**75 Misc 3d at 1023} in the designation certificate that the prior designation should be directed for "New York State Senator, Senate District 50." Villarreal contemporaneously filed a "Certificate of Declination," stating that, although she had been designated as a candidate for the "50th Senate District," she declined that designation. Also on May 27, 2022, individuals purporting to be "a majority of the duly authorized Committee to Fill Vacancies" (COV) for Fanny Villarreal filed with the State Board a "Substitution Certificate," which states that "there exists a vacancy . . . for the office of NY State Senator in the 55[th] district . . . caused by the declination . . . of Fanny Villarreal." The COV designated Rebecca Shiroff to fill the vacancy. The "Consent by Substituted Candidate" indicates that Shiroff accepted the designation of the Republican Party for the "office of NY State Senator, 50."

The court is mindful that this challenge takes place in the wake of the Court of Appeals determination regarding the 2022 redistricting of state senate and congressional districts. As directed by the Court of Appeals (Matter of Harkenrider v Hochul, — NY3d —, 2022 NY Slip Op 02833 [2022]), the primary election date for candidates for state senate and congressional districts scheduled for June 28, 2022, was ordered to be conducted on August 23, 2022. Further, following remittal from the Court of Appeals, and at its direction, the Supreme Court (McAllister, J.), on May 11, 2022, made an order (McAllister order) that created two specific ballot access methodologies and a political calendar for each methodology for the primary election to be held on August 23, 2022. Particularly, and as relevant to this proceeding, one access methodology and calendar was applicable for candidates for State Senate

"duly designated for nomination at the June 28, 2022 primary . . . whose petition was valid at the board of elections . . . [who] shall be deemed to have been likewise duly designated by the same party for the office of State Senator at the August 23, 2022 [*3]primary election in any Senate District for which they are constitutionally and legally eligible to run, to be specified by such candidate in a signed writing filed with the appropriate board of elections no later than May 31, 2022." (2022 NY Slip Op 32400[U], *2.)

The petitioners argue that the respondent COV had no authority to take actions relating to Senate District 55, and that the COV did not validly designate the respondent Shiroff{**75 Misc 3d at 1024} for the Senate District 50. Where a proceeding is brought challenging the action of the committee itself, all members are necessary parties (Matter of Buckley v Board of Elections of Livingston County, 265 AD2d 866 [4th Dept 1999]). Here, the petitioners failed to name all three members of the COV—which is fatal to the petition, as the unnamed and missing member of the COV is a necessary party to this proceeding (CPLR 1001).

Also fatal to the petition is the petitioners' failure to include a copy of the written objections ostensibly filed with the respondent State Board of Elections (BOE) challenging the substitution certificate. Although the petitioners assert they have filed objections, they are not attached to this petition, and have not been provided by the BOE with the exhibits it submitted to the court. A review of the respondent Board's offered documents establishes that the respondent's substitution certificate was received by the Board and found to be validly executed, and that a notation by the Board on the documents indicates the certificate was for the Senate 55/50 District.

On the merits of the petition, the petitioners' arguments still fail—particularly given that the "Ballot Access Method One, Prior Candidate Qualification" (used by the respondents) established a new filing that does not exist in statute, namely a "Certificate to Use Prior Petition." That certificate entitled the respondents to transfer the petition filed under the invalidated apportionment plan (District 55) to a district under the remedial plan imposed by the court (District 50), which is entirely consistent with the McAllister order. Further, although there is no affidavit from anyone at the respondent Board, the BOE, the parties agree that the COV was comprised of three members, two of whom approved the certificate of substitution, thereby approving the substitution by the required majority.

Turning to the petitioners' argument that Shiroff is a "dual candidate" as she is also an unchallenged Republican candidate for the State Assembly and therefore she cannot simultaneously run for two offices, the court is not so persuaded. Here, it cannot be said that Shiroff at this time has been assured of the nomination for either the State Senate or Assembly, nor, given two different primary dates, can it be said that she is running for two state offices at the same primary election, or that she would be a candidate for two state offices at the November general election. Were she to receive two nominations, she would have the opportunity to decline the initial nomination{**75 Misc 3d at 1025} (Election Law § 6-146 [5]; Matter of D'Angelo v Maloney, 164 AD3d 1078 [3d Dept 2018]).

Lastly, if it had been necessary to make a determination on the cross motion for change of venue/consolidation, the court would have denied the cross motion to transfer venue to Steuben County. Here, the court disagrees with respondents' argument that only Justice McAllister can interpret his order as it applies to the invalidation of a substitution certificate in the 2022 Senate primary election.

Looking at the procedural history of the Harkenrider v Hochul cases, the sole issue ultimately determined by the Court of Appeals was the constitutionality of the 2022 state senate [*4]and congressional districts—which the Court determined to be unconstitutional, and remitted the matter to Justice McAllister. What the Court of Appeals did not do, and was not asked to do, and therefore did not remit to the Supreme Court to do, was to devolve into the minutia of how local election districts filled vacancies. At most, the McAllister order requires the State Board of Elections to set forth "the elements that must be contained in such writing" as to the certificate to use a prior petition by "May 15, 2022," which the State Board has done. (2022 NY Slip Op 32400[U],*2.) Having failed to specify otherwise, it follows from the McAllister order (and frankly common sense and lack of any showing otherwise) that the respondent COV, properly constituted, had the authority, regardless of prior senate district designation, to fill a vacancy in the new remedial senate district once a certificate of declination was filed.

Accordingly, it is ordered that the petition is denied; and the cross motion is denied as academic.