Tuesday, September 18, 2007

NY Election Law: Update

I write with a legal update in the ongoing saga of Ricard v. Redlich. The appellate court ruled against us. We lost. And yet, I'm still on the ballot.

For those who were unaware, New York Election Law is confusing. I have heard that 50% of all election law cases in the US take place in our fair state. Okay, unfair state.

There were a few issues in our case. First, we filed the wrong form on July 26th. While the error was made by someone else, I bear some responsibility for relying on that person and not checking it out myself.

The basis of the suit was not that we filed the wrong form, but rather that it did not have the required content - specifically, the signatures of a majority of the committee to fill vacancies. In an odd twist, one of the signers was on that committee, and the notary was also on that committee, constituting a majority out of the three.

The "trial judge" (there was no trial) ruled in our favor on mootness. We had filed a correct certificate on August 1st, and that certificate was not challenged, even though it was late.

The Appellate Division reversed, stating that the August 1 certificate was not properly before them. They then found the July 26 certificate invalid.

The Board of Elections is nonetheless putting me on the ballot because of the August 1 certificate. I'm wondering if I'll get sued again on this one.

I felt ignored in the process. When we argued in front of the appellate judges, a couple of specific questions came up for the other lawyers. First, one judge asked if the August 1 certificate was in the Record. That lawyer answered no. When I got up I explained that it was in the record, in my papers, with a stamp from the Board of Elections showing that it had been received. Still, the court said in its decision that the August 1 certificate was not properly before them. It seemed like they disregarded that in my papers and what I said in oral argument.

Second, they asked the attorney working for my fellow Republicans if he agreed that the July 26 certificate was invalid. He agreed. I disagreed, and pointed to the fact that the second signature was on the document, but not in the correct form (notary rather than as a "signer"). This is an important detail because in the case of Hutson v. Bass (54 NY2d 772), a matter of form is not fatal as long as there is "substantial compliance." Absence of "prescribed content," on the other hand, is fatal. This argument was not only in my papers, but was my main argument. The appellate court did not even address this point.

An interesting side note is the lack of partisanship. The appellate court had five judges, all Republican. All five voted for the Democrat and against the Republican. Everyone I talked to who was involved in the case expected that we would win because of the partisan makeup of the bench. Having worked for a judge, I didn't think it would play a role. I thought we would win because we were right.

One other interesting note, and perhaps an explanation for the brief decision, is that the decision was ready on the court's website before the end of the day. We argued at 1:30 pm, and I think it was ready by 4 pm.
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