Supreme Court, Albany County, July 11, 2022

Santiago Burger LLP, Rochester (Michael Burger of counsel), and Holtzman Vogel Josefiak Torchinsky, PLLC, Haymarket, Virginia (Shawn Toomey Sheehy of counsel),^[FN*] for petitioners.

Messina Perillo Hill, LLP, Sayville (John Ciampoli of counsel), for Robert Sambevski and another, respondents.

New York State Board of Elections, Albany (Kevin Murphy of counsel), for New York State Board of Elections, respondent.

In this Election Law proceeding, the petitioner John Bullis and the petitioners-candidates Harry Wilson and Alex Zapesochny move pursuant to [*2]Election Law §§ 16-100, 16-102, and 16-116 for an order declaring valid the independent petitions purporting to designate Wilson and Zapesochny as candidates in the general election to be held on November 8, 2022, and to order the New York State Board of Elections (BOE) to place their names upon the official ballots of said general election. According to the petition, Bullis is the Chairman of the Upstate Jobs Party and Unite New York, which are two related entities that form one independent body, Unite. The petition states that Wilson is the Unite candidate for Governor—and intends to decline—and according to documents filed by the BOE did decline the candidacy on July 1, 2022. Bullis was the Unite candidate for Lieutenant Governor and declined the candidacy on June 3, 2022, and the Unite committee to fill vacancies substituted Zapesochny on June 6, 2022, for Lieutenant Governor.

The petition acknowledges that the Unite candidates were required to submit 45,000 valid signatures to have their names placed on the ballot for the November 2022 general election for the offices of Governor and Lieutenant Governor (Election Law § 6-142 [1]), and that within these 45,000 valid signatures the candidates must obtain at least 500 valid signatures from at least 13 of New York's 26 congressional districts. The deadline for submitting signed independent nominating petitions is not earlier than 24 weeks prior to the general election or later{**76 Misc 3d at 570} than 23 weeks prior to the election. For the November 8, 2022 election, the deadline for submitting independent nominating petitions was between May 24, 2022, through May 31, 2022, and the petitions could begin circulating/being signed after April 19, 2022. The petition also acknowledges the Unite independent nominating petitions, which were filed on May 31, 2022, with the BOE, contained 29,893 signatures and "contained over 100 signatures in at least 13 congressional districts."

The petitioners now argue that their efforts to collect signatures, which are already severely burdened in that they could only begin to collect signatures after the major parties had submitted their nominating petitions, were further hampered by a "rare and record breaking snowstorm," the Court of Appeals determination in Matter of Harkenrider v Hochul (38 NY3d 494 [2022]) that congressional and state senate district maps were unconstitutional and the resulting confusion and delay in redrawing the maps, and the continuing state of emergency caused by the COVID-19 pandemic. The petitioners assert that even against the backdrop of these significant impediments, the 29,893 signatures they did garner demonstrate a sufficient modicum of support for their candidacies and the diligence of their signature gathering efforts.

As stated in their petition, the respondents-objectors Robert Sambevski and Andrew M. Kolstee filed general objections to their independent nominating petitions, and Sambevski filed specific objections. The petitioners argue that the specific objections were insufficient to warrant a BOE hearing to invalidate their independent nominating petitions, as the objections lacked sufficient and specific detail. The petitioners also claim that the circumstances with which they were presented (Harkenrider, COVID-19, and a major snowstorm) effectively prevented them from obtaining the necessary signatures, thereby violating their rights under New York State Constitution, article I, § 8 and the First Amendment of the United States Constitution as it is applied to the states under the Fourteenth Amendment. The petitioners argue these events effectively restricted ballot access—by limiting their ability to persuade potential voters to sign their independent nominating petitions—in sum, severely burdening the right to vote and associate in violation of the First Amendment to the U.S. Constitution. They [*3]also argue that the hardships faced by them effectively{**76 Misc 3d at 571} prevented or disadvantaged them from obtaining the required number of signatures——in sum entitling them to a reduction in the number of designating petition signatures, as was done in 2020 by Governor Cuomo due to the ongoing COVID-19 pandemic.

The respondents-objectors oppose and move for an order dismissing the petition, asserting that the petitioners are time-barred (having filed and served their petition too late), that the petition fails to name a necessary party (the State of New York), and that the petitioners failed to give the Attorney General notice and an opportunity to intervene, which is required whenever a state statute is challenged on the basis of constitutionality.

The BOE also opposes, asking that the petition be dismissed as being time-barred, and also supports the respondents-objectors' motion to dismiss on the same grounds.

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

Here, the court agrees that the petition is time-barred.

Election Law § 16-102 (2) provides:

"A proceeding with respect to a petition shall be instituted within fourteen days after the last day to file the petition, or 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, whichever is later."

A petitioner "must commence the proceeding and complete service on all the necessary parties within the period prescribed by Election Law § 16-102 (2)" (Matter of Wilson v Bowman, 121 AD3d 1402, 1403 [3d Dept 2014] [internal quotation marks and citations omitted]).

Here, there is no factual dispute that the BOE, after a hearing, determined the petitioners' independent nominating petitions to be invalid at its meeting on June 27, 2022. Accordingly, the petitioners had until June 30, 2022, to commence this special proceeding. The petitioners filed their petition on June 30, 2022, at 7:58 p.m., and the order to show cause was signed on July 1, 2022, with service to be made by July 1, 2022. Albeit the petitioners complied with the service directive of the order to show cause, "service was not completed within the time limit set forth in Election Law § 16-102 (2) [and] the proceeding must be dismissed" (Matter of Wilson at 1404). Further, the {**76 Misc 3d at 572}mere signing of the order to show cause could not act to modify or extend the statutory requirements for commencement of the special proceeding or the statutory time for completion of service (Matter of Loucky v Buchanan, 49 AD2d 797, 797-798 [4th Dept 1975]).

The court also notes that the petitioners failed to timely serve the Attorney General with a copy of the order to show cause and supporting documents. It was only after respondents-objectors' motion to dismiss, and also the BOE's opposition, that the petitioners served the Attorney General on July 7, 2022—the petition's return date. Having raised a challenge to a state statute, the petitioners were required to timely serve the Attorney General so the "necessary opportunity to examine fully particular challenges to the constitutionality of statutes was not set in motion and not satisfied" and this failure "not only ignores fundamental principles of separation of powers, but also adversely affects the judicial review process which requires a full presentation and record upon which constitutional determinations must be based" (Matter of McGee v Korman, 70 NY2d 225, 231-232 [1987]).

Here, the court is also mindful that had this proceeding been timely commenced and service completed, and the Attorney General also appropriately served, the burden on the [*4]petitioners to have a statute declared unconstitutional is astonishingly high—a burden which is not supported by the circumstances in this proceeding. "[L]egislative enactments enjoy a strong presumption of constitutionality . . . [and] parties challenging a duly enacted statute face the initial burden of demonstrating the statute's invalidity beyond a reasonable doubt" (Schulz v State of N.Y. Exec., 134 AD3d 52, 55 [3d Dept 2015] [internal quotation marks and citation omitted]).

Certainly, "[v]oting is of the most fundamental significance under our constitutional structure; however, the right to vote in any manner and the right to associate for political purposes through the ballot are not absolute" (Matter of Walsh v Katz, 17 NY3d 336, 343 [2011] [internal quotation marks and citations omitted]). Stated differently,

"[s]tates retain the power to regulate their own elections and are permitted to enact reasonable regulations of . . . elections . . . and ballots to reduce election- and campaign-related disorder . . . [with the] degree of scrutiny used to analyze the constitutionality of a state election regulation{**76 Misc 3d at 573} [depending] on the severity of the regulation's burden on the constitutional rights of candidates and their supporters" (Matter of Brown v Erie County Bd. of Elections, 197 AD3d 1503, 1505 [4th Dept 2021] [internal quotation marks and citations omitted]).

Here, the petitioners attempt to argue that the required 45,000 signatures on a statewide independent nominating petition is such a severe burden as to be constitutionally impermissible. As noted in Matter of Brown (at 1505), "[t]he hallmark of a severe burden is exclusion or virtual exclusion from the ballot"—which is not supported, as noted by the BOE, as another candidate was able to timely file an independent nominating petition for the office of United States Senator (Diane Sare) for the November 2022 general election. As stated by the Supreme Court of the United States, "the mere fact that a State's system creates barriers . . . tending to limit the field of candidates from which voters might choose . . . does not of itself compel close scrutiny" (Burdick v Takushi, 504 US 428, 433 [1992] [internal quotation marks omitted]). Further, the due process clause "offer[s] no guarantee against errors in the administration of an election" (Powell v Power, 436 F2d 84, 88 [2d Cir 1970]).

Lastly, even crediting the petitioners' claims that winter storms, COVID-19, and remapping of congressional districts acted to abbreviate their ability to obtain the required number of signatures, the court is not persuaded that they are entitled to a reduction of the number of signatures required for their independent nominating petitions (Matter of Stoppenbach v Sweeney, 297 AD2d 456, 457 [3d Dept 2002]). Again, as pointed out by the BOE, under the same circumstances and conditions, another candidate successfully filed an independent nominating petition for the November 2022 general election.

Accordingly, it is ordered that the proceeding is dismissed in its entirety.