GOLDFEDER’S MODERN ELECTION LAW Second Edition — Updated By JERRY H. GOLDFEDER Stroock & Stroock & Lavan, LLP 2010 New York Leaat. Pustistima Corr. 136 Ramon Avenue Ext. Atay, New Yorx 12205 800-541-2681 wwrw.nylp.comat won EDT Parry Time IN New YORK F, Bucking the Party ‘An actual problem that does, from time to time, distress party leaders is when ‘lected officials or party officers refuse to endorse candidates from their own party, tnd support an opposing candidate, Examples of this are legion: then-Democratic Party district leader Ed Koch bucked his own party and endorsed Republican John Lindsay's candidacy for New York City mayor in 1965 over Democrat Abe Beame; ‘Al Sharpton, who later would run for the Democratic Party nomination of President of the United States, supported Senator Al D'Amato's reelection in 1992; before hhe became a Republican, former Congressman Herman Badillo, long-time Demo- static elected official from the Bronx, endorsed Republican Rudy Giuliani against Democratic nominee David Dinkins. A host of Democratic Party officeholders en- dorsed Michael Bloomberg's re-election, first against Bronx Borough President Fernando Ferrer, the Democratic Mayoral candidate in 2005, and against Comp- troller William C. Thompson, Jr, the Democratic Mayoral candidate in 2009. And these are just a fow of the prominent examples. ‘When clected officials or party officers support another party’s candidat, these got obviously havea deleteron affect on de suength and legitimacy ofthe party. Does the party have any recourse to protect its prerogatives? Should the any action? New York Blection Law permits partes to take action again: ‘members for ‘disloyalty to the party”” or against enrollees who are “not in sym- pathy with the principles of such party.”*” Within the last month, a question has been raised as to whether the law permits expulsion of a renegade State Senator who causes a change in control of the chamber even if the Senator has not tech- nically transferred his enrollment. As ofthis writing, the issue appears to be moot in that Sen. Pedro Espada has “returned to the fold.” ‘The rationale for a party's ability to expel members acting contrary (o its prin- ciples was stated quite nicely by Justice Hamilton Ward of the Frie County Su- preme Court in 1962: "Under the efection system in the United States, political parties are not only necessary but highly desirable, Without organized parties this system cannot exist. Without loyalty to the aims and purposes of a party by its elected membership, is aims and purposes would fail of fulfillment, Loyalty is an infinite and abstract quality. It burns brighter in the hearts of some than in others. Self-secking and private interests often displace loyalty to party as too often to country, family and friends. Acts of disloyally to a party by a litle known minor member of a party committee might have little conse- quence in the fulfillment of the party’s plans, purposes and programs. The ONLY, Bee. Law (2-116 (MeKiasy) ‘member or officer of «puty committee may be removed by such commie for disloyalty {0 the party or corupion in ofc alter notc is given and 2 hearing upon wien charges bs ‘ben hid. The hearing sal be held bythe commitee, ora subeommitee thereof applnted for ‘dat purposs, which subcommites shal report is findings to the fll commits.” NL, Ble. Law 516-1102) (MeKIaney): “The chainman of the county commits or a party with which a yle is enrlled in such county, may, op a wlten complain by an enrolled member of such party in such county and ‘fer a hearing held by hin ot by a sub-comtes appointed by him opon at Teast two dye? rotce to the voter, personally o by mal determine that he voter snot in sympathy wih the Paps of such party.” Se hipopies aytmes.convopisteference/imetapkxpeopelelpedro_jespa/ecp= des2 senator ADespaladsteso G 12-31-09 oGoLprepnr’s MODERN ELECTION LAW ‘same acts of disloyalty by one in a highly responsible office of leadership {however)) might be catastrophic to the plans, purposes and programs of a ( party and greatly damage, if not destroy, the party to the detriment of the ‘members of the party's committees, the members ofthe party and also all of the members of the community whose welfare is dependent on competitive politcal partis." In this light, Justice Ward reviewed a complaint against the Chairman of the Dem= cratic County Committee of Brie County for supporting and campaigning against the Democratic candidate for Mayor. The court bluntly stated that "*i}f true, these are indeed grievous acts of party disloyalty . . . [that) might well destroy the effectiveness of {the} party.” One gets the strong impression, therefore, that, were it not for the fact that the statutory procedures for expulsion were not followed, the court might have granted the request to remove the chairman from the party for “‘disloyalty"—not to the party's principles, but to the party’s candidates. In 1974, Justico Aulisi of the Supreme Court, Warren County, was feced with the proposed expulsion of new members of the Conservative Party, whose bona fides were also questioned, Here, the court sad: “What constitutes sympathy with or belief in the principles of any political party is something which must be liberally construed, particularly when the respective umbrellas of our major political pasties are sufficiently broad to encompass such divergent political views as Senator Javits of New York anid ‘Scnator Thurmond of South Carolina in the Republican Party, and Senator ‘McGovem of South Dakota and Governor Wallace of Alabama in the Dem- ‘cratic Party,""™ 7 Accordingly, a challonge to new enrollees in the Conservative Party was denied ( on the ground that enrolment in a party was found wo be prima facie root that ‘hey were in sympathy withthe principles ofthe party Indeed, several yeas later, the Supreme Cou, New York County, held that a “single abeeation”™ by a New ‘York City Council’ Member evidencing opposition to u gay rights ordnance did not qualify as being sufiiat proof of lack of sympathy with the principles of the Democratic Party. However, the court added, [tthe reslt might be otherwise tn the ease of a single issue ary, such ts the Right to Lite Party's ‘Por an official of [the Right to Life] party to support free choice with respect to abortions, for example, might well constitute disloyalty to the party jus- tifying his removal from party office.""™ 2 Bajakv. Democratic County Commitee ofthe County of Erie, 95 Mie24 1034 (Sup. C. Be Co. 1962) md. 2 Warren County Conservative Paty. Grad, 78 Miso24 964 (Sop. CL. Waren Co. 1974), 1d. Bat see Farrell v. Morrisey, 32 A.D.34 1362 (th Dep't. 2005, where the court vpeld the pulsion of 37 rewy enrolled menbers of the Independence Party who were challenged for pty ‘aiding and filed to sppear to testy tat they subsobed to the prinspies of bo pat. Sear) the ‘Suffolk County Conservative Paty comrasacod a proceeding against 1497 enollees ofthe Comersasre Paty on tho ground that ther membership consttutea quintessential party ring by the lal Pat, men's Benevolent Astoiation, After 1.504 duly noticed hearings, the party dsenolled 1/99 now, ‘members. The Supreme Court, Suffolk County, upheld the detemivatons ofthe pay cai, Wal Abramov, N11, Soprember 23, 2009 a 42, col. 1 Sup. Ct, Sulfelk Co. 2009). 2 Samuel v. Rodrigue, 120 Mse:24 964 (Sup. Ct, NY. Co. 1983), ( Mid 0 G 1231-09Party Tie IN NeW YORK But, the Court went on, “the Democratic Party of New York County is not a single issue party. It stands for a wide range of principles and has taken express, strongly stated positions on numerous issues. Gay Rights, albeit an important matter, is only fone of a multitude of issues the party has wholeheartedly endorsed. For that very reason, the party is not and cannot be a rigid, monolithic structure requiring total adherence by party officals to every plank in its platform, on ppain of expulsion for any deviation from party regularity.” ‘The Court concluded by Saying that “Obviously there are certain basic matters upon which party regularity must be expected from party officals. Support in a primary election of the can- ide recommended By the party's executive commiteo (citation omitted], and a fortiori, support of the party's eandidat inthe general clestion [etation omitted), are two such matters. Failure of support in ether ease, involving, as they do, the basic party structure, might well constitute disloyalty to party ‘warranting expulsion." ‘Thus, taken together, the cases in this area stand for the proposition that loyalty to a multi-issue party is hard to define, and, accordingly. the proof required for ‘expulsion is undefined, However, if a party leader supports a candidate running against the party's choice, she is vulnerable to expulsion, In all circumstances, procedural requirements must be followed fo the letter; otherwise an application fot expitision will be denied.?” Indeed, although the Democratic Party has, in the modern era, declined to expel siny purported leader who has endorsed a Republican, it has taken the positon that ‘fa candidate or an elected official changes her enrollment or announces repeatedly that she intends to, this constitutes a sufficient showing that the person is no longer in sympathy with the principles of the party. In 2002, the New York County Dem ‘cratic Committee successfully petitioned the Supreme Court to dis-envoll a can- date for the Assembly because he changed his registration to the Independence Party and nevertheless circulated petitions to run for the office in the Democratic Party primary > ‘Similarly, the Bronx County Democratic organization tried to expel a State Sea: ‘ator for his multiple public statements that he intended to become a member of the Republican Party. However, it failed to accomplish its goal because it did not adhere to procedural requirements. At first, the Supreme Court cancelled the Sen- ator’s enrollment, ‘The Appellate Division reversed, adopting the respondent's ar guinent that his statements were protected speech. The Court of Appeals then re- versed the Appellate Division, holding that, while his expulsion was “improperly based in patt upon actions that were constitutionally immune from sanction under the Speech or Debate Clause of the New York State Constitution,” the party should re-determine the matter based upon the statements that he made outside the Senate wid aid See 8. Greenberg. Cohen, 173 Mis. 405 (Sup. CL. NY. Co. 1940); MacKay ». Conray, 13, Mise.34 1214(A) (up. C. Kings Co. 2000). * Dankbergv, Spuches, 297 A.D.24254 (Ist Dep't. 2002), of Tustice Cahn’s Order ad Desson, Index No, 115808102 (Sup, CL.N-Y. Co, 200), G 1231-09 nGotpesper's MODERN ELECTION LAW ‘chamber. When the re-determination came before the Supreme Court upon remand, however, the Court held that inasmuch as the te-determination by the party chair was “crafted and drafted ex parte by counsel [for the party],” this conduct tainted the process and barred expulsion.” ‘The lessons of the 2002 cases, then, are manifold, First, if one changes enroll- ‘ment, expulsion will be upheld. Second, if one threatens (o join another party and Yote with its caucus in the Legislature, then even those intended acts may be ground for expulsion. Third, proper procedures for party expulsion under the law must be strictly followed > As a final observation, it is noteworthy that, although these cases are raro, there have not been any recent cases brought by members seeking to expel party leaders or elected officials who have endorsed an opposing party's candidate, During the last several years, this kind of “disloyal endorsement” has been relatively common, Nevertheless, although the lav appears fairly clear that such an act would support expulsion, no attempts to expel on this ground have been made.” Rivera v, Bspada 98 NLY:24 422 (2002), upon remitance, 198 Mis:28 73 (Sap, CL, Bronx Co 2000) PNY. lee. Law #42-116 and 16-1100) (MeKinney). 2 The small bat cious Independence Patty routinely becomes embroiled in lawsuits where wang sides acuse intiparty opponents of disloyal. See ag MacKay v. Conroy, 13 Mise:34 12144) (yp. CL. Kings Co, 2006} (proceeding to di-enrol Bed Newman and Lenoct Fulani from the sto ‘party was commencsl by a Queens member In Kings County Supreme Cour; camised as procedualy Smproper in that i was not commenced by “an ensolled member of sech pay in uch county” 35 required by NY. Fle. Law §16-110(2) (McKinney); MacKay v. Mandell, NYLI, Avg. 24, 2006, 22, col | (Sup. Ci. NY. Co. 2006) (no evidence of statements or conduct by Newman of Fula win last wenty years demonstrated that they were aut of sympaty with the principles of tho par) n G 1231-09 (ey CoM 2010 Editio NM _ r THE CURRENT STATE OF ELECTION LAW A NOTE FROM THE AUTHOR ON THE SECOND EDITION'S UPDATE ‘The Second Edition is being supplemented, citing to major cases that have been decided within the last several months. Among the over three dozen newly cited cases, some stand out for special mention, “Just Because My Predecessors Never Thought They Could... . . .” ‘The most newsworthy decision was handed down by the New York Court of Appeals in Skelos v. Paterson, 13 N.Y.3d 141 (2009). In Skelos, the Court, in a 4-3 decision, rejected years of conventional wisdom by uphold- ing Governor David A. Paterson's appointment of Richard Ravitch as Lt Governor, even though no Governor had thought to exercise this preroga- tive in almost two hundred yeats. The context, of course, was that Lt. Gov, Paterson became govemor when Governor Spitzer resigned, and, for the ninth time in New York's history, there was a vacancy in the office of Li Governor. That was March 2007. The following year the Democrats took control of the State Senate for the first time in over forty years, enabling Democrat Maleolm Smith to become Temporary President of the Senate and, therefore, to assume the duties of Lt. Governor. However, in June 2009, several Democratic Senators switched allegiance and Republican Dean Skelos was elected ‘Temporary President. This unprecedented up- hheaval — and uncertainty as to who was the legitimate Temporary President “and thus next in line to succeed Governor Paterson — prompted the Gov- emor to name a new Lt. Governor. Although there was great skepticism as to the authority for his action, the appointment was ultimately upheld by the Court of Appeals. “What Do These Campaign Finance Laws Mean Anyway??? Just as remarkable were two highly unusual cases in which prosecutors filed charges against a candidate and fundraiser for violating campaign fi- nance laws, State and federal laws clearly require that contributions in the name of a donor must actually come from his or her own monies, Norman Hou, a prominent fundraiser for many national candidates, was found to have concocted an elaborate Ponzi scheme in which he used approximately 50 million dollars of other people’s money for his contributions. He pled guilty to federal fraud charges and a jury found him guilty of violating federal campaign finance laws. He was sentenced to 24 years and four ‘months for his crimes, United States v. Hsu, 643 F.Supp.2d. 574 (S.D.N.Y 2009). [se neat pese | .| L Goupreper’s MODERN ELECTION LAW Closer to home, New York County Surrogate-elect Nora Anderson was indicted for various campaign finance law violations. Bight of ten counts ( were dismissed on the ground the court lacked geographical jurisdiction; the remaining two counts charged false filings in the first degree. People v. Anderson, N.Y.LoJ. November 2, 2009 (Sup. Ct. N.Y, Co, 2009). The cease continues. “it’s My Party. . . and You're Not Invited”* tis rare for a political party to oust members. But that is exactly what the Conservative Party did last year. In Walsh v. Abramowitz, N.Y.LJ., ‘Sept. 23, 2009, p. 42, col. 1 (Sup. Ct, Suffolk Co, 2009), the Supreme Court upheld the Conservative Party's disenrollment of approximately 1500 new members on the ground that they joined en masse for the purpose of taking over the local party. The Court articulated the case's “‘central issue’” as whether an intentional and organized effort by an outside organization, in this case, the Suffolk County Police Benevolent Association, to ‘cause massive enrollment changes of its members, theit families and friends, into a political party, in this case, the Conservative Party, for an ultetior motive that has little if anything to do with the principles of the party, can be the subject of a removal [disenrollment} proceed- ( ing under the Election Law. ‘The Court surveyed various provisions of the Election Law that protect, the prerogatives of political parties under New York's closed primaty sys- tem, and concluded that, as long as proper procedures were followed, par- ties had the right to bar those who sought a “take-over.” In the case before the Court, the Suffolk County Conservative Party “believed itself to be the focus of . . . a conspiracy to perpétrate a scheme of large-scale fraudulent enrollment”? for the purpose of electing a new Sheriff who would be mote supportive of the Suffolk County Police De- partment. The effort by the PBA, seen as an organized, blatant’ attempt to use the party for its own purposes, was quintessential *‘party raiding”? ac- cording to the Court. Under the circumstances, therefore, the local Conser- vative Party had the right to challenge the bona fides of the 1500 new members, and disenroll them, “If You Can’t Take the Heat, Get Out of the Kitchen!” President Harry $ Truman famously uttered this warming over fifty years ago to members of his administration, but in light of the New York Court of Appeals’ decision in-Shulman v. Hunderfund, 12 N.Y.3d 143 (2009), it should be taken to heart by would-be politicians. .