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Friday, October 22, 2010

Lawsuits to Come From Board of Election Mistakes

There will be a lot of litigation on federal subject matter -- read: Constitutional -- grounds arising from the various foul-ups and other institutional incompetence of the New York City Board of Elections this fall.

First there were some more-than-scattered problems with the new scanner machines for voting on Primary Day this past September.   Then, absentee ballots to overseas servicemen were not sent out on time -- a sure disenfranchisement if there ever is one.  Now, we see that the form of ballots is obviously confusing and risks distorting the vote results on Election Day.

The last two mistakes risk more than affecting the winners of certain strongly-contested races.  Various political parties are arranged on the ballot according to the success of their gubernatorial candidate.  Anything affecting the number of votes their nominee receives -- or is credited with -- will in turn affect where that party ends up in comparison to the other parties.   These assorted Board of Election mistakes -- which warrant some heads rolling, both in terms of people losing their jobs and possibly being prosecuted for criminal wrongdoing -- jeopardize these parties getting the required 50,000 votes for their gubernatorial candidate.  Federal litigation on Constitutional grounds (based on an infringement of the core freedoms of speech of political speech and the freedom of association) should be expected if any gubernatorial candidate fails to get the required 50,000 votes.  In addition, one should expect the Justice Department to inquire very carefully about the Board of Elections practices in light of the fact that most of New York City remains in so-called "covered districts" as defined under the federal Voting Rights Act of 1965, meaning that any change in election mechanics or ballot access that could disproportionately and adversely affect any minority groups must be "pre-cleared" by the Justice Department prior to and as a precondition for its implementation.

In addition, there are no less than six independent candidates -- meaning, candidates not nominated by parties which are "official" under New York's Election Law.  (The candidates are the Libertarian Party's Warren Redlich, the Anti-Prohibition Party's Kristen Davis, the Freedom Party's Charles Barron, the Green Party's  Howie Hawkins, the Rent is Too High Party's Jimmy McMillan and the Taxpayers' Party's Carl Paladino.)  Several of these candidates are serious contenders to get at least 50,000 votes on Election Day, in which case they can then -- through a convoluted process too complicated to explain here, although I am happy to represent candidates in this matter -- be eligible to form a political party that would be recognized by the State Board of Elections under the state's Election Law. 

Such political party recognition would allow the party to run candidates in all elections across the state for the next four years.   All candidates endorsed by the party, or who are members of the party, would have to do in order to run is to get enough valid signatures from other voters in their district who are enrolled members of the party.  As new parties, there would be virtually no voters enrolled in the party, so the number of required signatures -- which is typically a pretty high number -- would be very small.  (The requirement for the small, low-enrollment parties is signatures equal to at least five percent of the enrolled number of voters in that party in that district.) 

Here's the advantage.  Say you want to run for City Council in 2011.  The typical requirement is 900 valid  signatures from residents within the district who are members of your party.  However, say the Freedom Party has only 50 enrollees in a particular district next year.   The five percent threshold means that an enrolled member of the Freedom Party could run under that party's ballot line with just three signatures.   Compare that number with the number of signatures you would need to run for City Council as an independent, unaffiliated candidate not running under any party's ballot line.   That number is 2,700 (that's two thousand seven hundred). 

Now do you see why ballot access is so important?  It allows third party candidates to have a much easier time getting on the general election ballot. 

Eric Dixon is a New York small business lawyer who specializes in election law and ballot access issues.  He is a 1994 graduate of Yale Law School and the president of Eric Dixon LLC.  Mr. Dixon is available for consultation or comment at 917-696-2442 and at edixon@NYBusinessCounsel.com

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