2013-08-13 15:26:30 UTC
Samuel H. Sloan
New York County Clerk's Index No. 101087/13
Thomas R. Stevens,
Daniel S. Szalkiewicz,
Salvatore G. Caruso,
Board of Elections in the City of New York,
BRIEF FOR PETITIONER-APPELLANT
Samuel H. Sloan
1664 Davidson Avenue, Apt. 1B
Bronx NY 10453
TABLE OF CONTENTS
TABLE OF CONTENTS 1
TABLE OF AUTHORITIES 2
JURISDICTIONAL STATEMENT 3
PRELIMINARY STATEMENT 5
TABLE OF AUTHORITIES
Section 132 (2) of New York Election law
Credico v. New York State Bd. of Elections, 751 F.Supp.2d 417, 423 (E.D.N.Y. 2010)
Dekom vs. New York, 12-CV-1318 (JS)(ARL)
Kaloshi v. Hackshaw, 02 CV 4762, 2002 WL 31051530 (E.D.N.Y. Sept. 6, 2002)
Lerman v. Bd. of Elections of N.Y.C., 232 F.3d 135, 145 (2d Cir. 2000).
Maslow v. Board of Elections in City of N.Y., 658 F.3d 291 (2d Cir. 2011)
Yick Wo Vs. Hopkins, 118 US 356, 370 (1886)
N.Y. State Bd. of Elections v. Lopez-Torres, 552 U.S. 196, 128 S.Ct. 791, 798, 169 L.Ed.2d 665 (2008)
First Amendment to the Constitution of the United States
This proceeding is brought under Election Law Sections 16-100 and 16-102 and other provisions of New York Law. Sam Sloan is a candidate for Mayor of the City of New York. Richard Bozulich is a candidate for Comptroller of the City of New York. Thomas R. Stevens is a candidate for Public Advocate of the City of New York.
Thomas R. Stevens is in a unique situation because he is the only Republican Party candidate seeking to be elected as Public Advocate. Thus, if he is restored to the ballot, there will be no Republican Party Primary for Public Advocate and Stevens will go straight onto the November General Election ballot as the Republican Party candidate. On the other hand, if he is not restored to the ballot, Republicans will have no candidate of their own to vote for.
On July 31, 2013, all three of these petitioners were thrown off the ballot after a hearing by the New York City Board of Elections. This proceeding was filed on August 1, 2013, the very next day, in the Supreme Court of New York County. On the same day, Supreme Court Justice Deborah Kaplan issued an Order to Show Cause but required that service be made on the Board of Elections by 5:00 PM of that day and that service be made on the individual defendants by Midnight of that night.
In spite of the shortness of time as the Order to Show Cause was issued at 4:00 PM, Petitioners were able to comply with this requirement as the Board of elections was served at 4:32 PM, Defendant Daniel S. Szalkiewicz was served at 7:45 PM and Defendant Salvatore Caruso who resides way out in Throng's Neck was served at 10:45 PM.
A hearing was held in New York Supreme Court before Justice Paul Wooten on August 5, 2013. Judge Wooten dismissed the claims. Petitioner Sam Sloan filed a motion for a rehearing and reconsideration on August 7, 2013. On August 9, 2013, Judge Wooten signed orders (1) dismissing the claim and (2) denying the motion for a rehearing. This appeal was filed and served the same day.
At the Hearing on the Order to Show Cause before Justice Wooten on August 5, 2013, Defendant Board of Elections in the City of New York provided only one grounds for throwing the petitioners of the ballot. That ground was that under Section 132 (2) of New York Election law the subscribing witnesses to a Designating Petition must be registered to vote as a member of the Party whose nomination is being sought, and the subscribing witnesses were not Republicans with only one exception.
Petitioners had submitted approximately 4500 signatures to run for election whereas only 3750 are required. (There are some differences in the count of the total number of signatures but all counts agree that more than 4200 were filed.) A few of the 4500 signatures collected were found invalid for various reasons including bad address or not registered to vote. However, a core of 3905 signatures were found to be good but invalid for one reason only which is that the Subscribing Witnesses to those petitions were not registered to vote as members of the Republican Party.
In other words, had those 3905 signatures been witnessed by a Registered Republican Party Voter, then all three petitioners would be on the ballot. However, because they were witnessed by other voters, including Democrats, Libertarians and Blanks, those 3905 signatures were deemed invalid.
Petitioner Sam Sloan is a long standing registered voter in the Republican Party and he also circulated and witnessed some of the petitions and signed one of the petitions himself. The petitions he witnessed were deemed valid but all or almost all of the others were deemed invalid on the ground that the subscribing witness was not registered as a Republicans.
Frankly, the petitioners are newcomers to this process and were not aware that there was any requirement that the signatures be witnessed be members of any political party. Had they known about this they might have tried to find witnesses who are Republicans but failing that they would likely have given up trying to run for election as finding any witnesses is a difficult task under any circumstances. Witnesses must sign a declaration equivalent to an affidavit under penalty of perjury and must be prepared to be subpoenaed to testify in court under oath. Obviously, not many people are going to be willing to do that.
Now that the petitioners have found out the hard way that there is a rule as interpreted by the Board of Elections that says that petitions for Republican Party Candidates must be witnessed (as well as being signed) by REGISTERED voters in the Republican Party, petitioners contend that such a requirement is unconstitutional under the First Amendment right “To Petition the Government”.
It seems obvious that a requirement that the signatures to a petition of any type are deemed valid if and only if they are witnessed by Registered Republicans. This is an infringement to the constitutional right “to Petition the Government”.
At the hearing before Judge Wooten on August 5, 2013, Counsel for the Board of Elections cited one statue and two cases asserting that such a requirement is constitutional. The statute is Section 132 (2) of New York Election law . The two cases are Maslow v. Board of Elections in City of N.Y., 658 F.3d 291 (2d Cir. 2011 and N.Y. State Bd. of Elections v. Lopez-Torres, 552 U.S. 196, 128 S.Ct. 791, 798, 169 L.Ed.2d 665 (2008)
However, Petitioner submits that those cases are distinguishable and do not govern the situation we have here. Petitioners further submit that the statute does not actually state which the Board of Elections claims that it states. The statute is ambiguous and uncertain and can be interpreted in several different ways, which explains why the petitioners did not know about it.
As a General Rule the courts will avoid constitutional questions and seek to decide cases without resorting to the Constitution. In the case presented here, there are several other grounds for restoring petitioners to the ballot.
1. The Specific Objector, Sal Caruso, did not appear at the hearing before Judge Wooten on August 5, 2013, although he was served. He also did not appear at the hearing before the Board of Elections on July 30, 2013. There are substantial reasons to doubt that he even signed the specific objections or that he is familiar with this litigation.
2. The signature of Sal Caruso on the Specific Objections is an obvious forgery.
3. Salvatore Caruso, the General and Specific Objector, is obviously a front man and a shill for the real, undisclosed objectors. Salvatore Caruso is a retired elderly man approaching 70 who lives in the most remote section of New York City, the Throng's Neck Area of the Bronx near the land's end. He obviously has little or no interest in this matter. Daniel S. Szalkiewicz, who claims to represent Mr. Caruso, obviously represents and is being paid by somebody else, most likely either a rival candidate or one of the Republican Party Bosses. Mr. Szalkiewicz should be required to reveal and disclose who is paying the legal fees for his services. These Specific Objections should be dismissed and these candidates should be restored to the ballot.
4. The complete address of Salvatore Caruso was not provided on the General and Specific Objections in that his apartment number was not provided. This made it difficult to serve him. Obviously, his apartment number was omitted with the plan and intention that he could not be served and thus the petitioners would not be able to proceed with this validating petition. It was fortunate that the process server was able to find his apartment number, which is C-1.
5. The appearance of Daniel S. Szalkiewicz as counsel for Sal Caruso is improper. Lawyers in New York State are required to maintain an office and to be there most of the time. Although Daniel S. Szalkiewicz, PC, advertises his office as at 280 Riverside Drive, New York NY 10025, that is just an apartment building. The name of Daniel S. Szalkiewicz is not on either the building directory or any of the mail boxes. His actual apartment number or office number is not provided in any directory of lawyers, either. The doorman to his building refuses to reveal which apartment he is living in, obviously acting under instructions from Mr. Szalkiewicz. By not revealing his real address, Mr. Szalkiewicz is making himself difficult to serve and is violating his ethical duties as a lawyer. It is also highly probable that Mr. Daniel S. Szalkiewicz is the forger of the signature of Mr. Sal Caruso on the Specific Objections, as it appears that the same pen was used to write the name and address of Daniel S. Szalkiewicz as was used to sign the forged signature of Sal Caruso.
6. The Board of Elections has not been sufficiently careful in protecting the petitions from tampering and even destruction. An incident was reported in the New York Daily News on July 22, 2013 in which 20 volumes of petitions for a rival Republican Candidate John Burnett were accidentally shredded and destroyed by the staff of the Board of Elections. John Burnett was allowed to reconstruct the petitions and thus his name will appear on the ballot. In the interest of fairness, our candidate for the same position, Comptroller, should also be allowed to appear on the ballot.
7. Thomas R. Stevens is the only Republican Candidate for Public Advocate. Knocking him off the ballot means that the Republicans will have no candidate on the ballot. In Credico v. New York State Bd. of Elections, 751 F.Supp.2d 417, 423 (E.D.N.Y. 2010) a federal court ordered the name of Randy Credico to be placed on the ballot because otherwise there would be only an empty space there. The Republicans deserve to have an “Opportunity to Ballot” and thus equity requires that Stevens be put back on the ballot so that the Republicans will have somebody to vote for. What remains a question is why does Daniel S. Szalkiewicz and/or Sal Caruso object to having Thomas R. Stevens on the ballot when there is no other Republican Party Candidate.
8. The Specific Objections were not specific. The purpose to having specific objections is so that the Board of Elections and the Candidates can easily and readily determine whether the petition signatures are valid or not. The Specific Objections are supposed to contain a line by line review of which signatures are valid, which are illegible, which have bad addresses and so on.
Instead, the Specific Objections here simply said that everything was wrong, with just a few minor exceptions. Every page in the more than 500 pages of “Specific Objections” was a substantially blank page marked “SWNR, SWNE”. SWNR means “Subscribing Witnesses Not Registered”. However, it was readily determined that this statement was false. ALL of the subscribing witnesses are registered to vote in New York State.
Once the Board of Elections had determined that almost every page of the Specific Objections contained a false allegation, that the Subscribing Witness was not Registered to vote, it should have proceeded no further. The Specific Objector made 500 false statements, by saying on each page that the Subscribing Witness was not registered to vote, when in fact he was. A false statement made to a governmental body such as the Board of Elections is or should be a felony and therefore the Specific Objector has committed 500 felonies.
More than that, at the hearing before the Board of Elections on July 30, Daniel S. Szalkiewicz stated that all or almost all of the signatures are forgeries. This was not true as the Board of Elections has determined that almost all of the signatures are valid in that they are the real signatures of voters. What we have here is the case of Daniel S. Szalkiewicz throwing mud at a wall and hoping that something sticks. He and his undisclosed objectors obviously never bothered to check the buff cards to see which signatures were good and which were bad. They merely saved themselves the trouble of doing this by claiming that all of the signatures are bad, thereby shifting the burden of proof and requiring the Board of Elections to hire part-time weekend staff to check all of the signatures.
If these Objectors are allowed to away with this, then everybody will do this. In this election, there have been 300 challenges and objections filed with the Board of Elections against the different nominated candidates. Imagine what will happen if all Objectors are allowed to get away with doing what Daniel S. Szalkiewicz has done here. The Board of Elections will be required to spend countless thousands of dollars in staff time checking all the signatures, while the Objectors will have to do nothing except claim that everything is wrong about the petitions.
All of the above arguments and contentions were made at the Hearing before the Board of Elections on July 30, 2013 and at the hearing before Judge Wooten on August 5, 2013. They were all summarily dismissed and were not taken seriously.
The transcript of the hearing on August 5, 2013 has been made and filed with this court and served on all of the parties, including the US Attorney.
The transcript shows that when the petitioner objected to the fact that Salvatore Caruso was obviously a front man and the attorney appearing should be required to disclose who the real clients and objectors were, the court responded as follows (See Transcript Pages 2-3):
MR. SLOAN: But one thing I do object to is it's obvious that Mr. Caruso is a front man and I would like to know who's paying Mr. Szalkiewicz's legal fees because he's obviously got some others behind him who are doing this.
THE COURT: That's a request by you, sir?
MR. SLOAN: Yes, it is.
THE COURT: Your application is denied. We've never done that. In 30 years on the bench we've never, never -- I'm sorry. In five years on the bench and 27 years as an election law attorney, we've never had a case where that application's been granted. You have an exception, sir.
With all due respect, although it has never been done in the past, it should be done now. Candidates are required to disclose everything about their campaigns. They are required to disclose the names and addresses of their contributors and how much each one gave. If they advertise in the media, on radio, on TV or in the newspapers, they provide copies of their ad material. In short, they are heavily regulated.
It should be obvious that just as the candidates are regulated, the objectors should be regulated too. The candidates and the voting public are entitled to know who the real objectors are and who is paying the legal fees of Mr. Daniel S. Szalkiewicz. Common sense tells us that an elderly retired man out in Throng's Neck is not going to get involved in a case like this. We, the courts, and the voting public have the right to know who the real objectors are.
Similarly, when Candidate-Petitioner brought up the question of the obvious forgery on the Specific Objections, the following colloquy took place:
MR. SLOAN: Yes, your Honor, I would like to address one more issue that we didn't do yet, and that is I'm certain that the signature of Mr. Caruso on the specific objection is a forgery because the signatures are so totally different from the voter registration card. He signed it one way --
THE COURT: Excuse me, sir. I'm not even hearing this application now.
On this point, when this was raised with the Board of Elections, they responded that they do not have the competence to determine issues involving forgery. This is understandable because otherwise every candidate will claim that his opponent has committed a forgery, and many do.
However, here the forgery is obvious. Anybody can look at the signatures on the Buff Card and compare it with the signature on the Specific Objections and see that the signatures are obviously different. Copies of the signatures are in the case file here. It is hoped that the court will take the time to look at this.
It is a well established judicial rule that before the courts will look at a Constitutional Question they must first look at every other question that can decide the case, and thereby attempt to avoid the Constitutional Question.
Here, there several grounds for restoring the petitioners to the ballot, the first being the fact that the purported objector, Salvatore Caruso, did not appear at the hearing before the Board of Elections nor did he appear at the hearing before Judge Wooten. It seems unlikely that he will appear at the oral argument in this appeal.
Thus, we do not know if he really is objecting or if he is just a front as Petitioners allege. As a result, the objections should be thrown out and the petitioners restored to the ballot.
Now, if the court considers the eight enumerated reasons above why the petitioners should be restored to the ballot, and finds them unpersuasive, we reach the constitutional question.
At the hearing before Judge Wooten, Counsel for the Board of Elections stated that the section in law in question had been found to be constitutional in three federal cases. However, is it submitted that the cases cited do not actually say that.
The statute in question is Section 132 (2) of New York Election law and the relevant sentence states:
There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state and an enrolled voter of the same political party as the voters qualified to sign the petition, and who is also a resident of the political subdivision in which the office or position is to be voted for.
In fact, this provision was declared unconstitutional in the case Lerman v. Bd. of Elections of N.Y.C., 232 F.3d 135, 145 (2d Cir. 2000). This is explained in Dekom vs. New York, 12-CV-1318 (JS)(ARL).
The reasoning the Lerman court adopted in clearly applicable to this case. The Lerman Court said that since a voter anywhere in New York State can be subpoenaed and brought in to testify, it was not reasonable to require that all witnesses be within a specific jurisdiction. Since there is no valid reason for this requirement, it is unconstitutional.
The case presented here is the same. The petitions signed and submitted were all witnessed by voters registered to vote in New York State. This fact has been checked and verified by the Board of Elections. Only Petitioner-Candidate Sam Sloan among the witnesses is a registered Republican. The other witnesses are members of various parties but all of them are registered to vote in New York State. Thus, all of them can be subpoeaned and brought in to testify. It does not or should not matter whether they are Republican, Democrat, Green, Black or Blank. All credible voters are or should be equally valid witnesses.
Another issue concerns the wording of the statute. It says, “There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state and an enrolled voter of the same political party ...”
According to Webster's Dictionary, to enroll is “to insert, register, or enter in a list, catalog, or roll “the school enrolls about 800 pupils”.
The commonly understood meaning of the word “enroll” is to join a school such as a high school or a college. The term “enroll” simply does not have the same meaning as to register. One is never heard to say, “I went down to the Board of Elections today and enrolled as a Democrat.” However, one might say “I went to City University of New York today and enrolled in an art class.”
This is one of the main reasons why the petitioners here did not understand that there was any requirement that the witnesses be registered Republicans. This subject needs to be researched to determine what the Legislative intent was when this statute was passed. Suffice it to say here that if the State Legislature had intenbded to impose a requirement that the witnesses to all petitions be registered Republicans, it would have said exactly that. Why use the word “enroll” when the word “register” would more accurately convey the intended meaning, if indeed such meaning was intended.
Counsel for the Board of Elections was incorrect in implying that the constitutionality of this provision has been upheld. Indeed, more federal courts have found it unconstitutional. For example, it was held to be unconstitutional in Kaloshi v. Hackshaw, 02 CV 4762, 2002 WL 31051530 (E.D.N.Y. Sept. 6, 2002)
Interestingly, it does not appear that this Constitutional claim has every previously been presented to a New York State Court. All of the cases in which this issue has been raised have been federal cases. However, petitioner believes that the State Courts are just as capable of addressing Constitutional issues as federal courts are. The US Attorney's Office at 120 Broadway has been served with all the papers and pleading filed in this case. These papers have been filed with the A & O Section of the Attorney General's Office, which means “Appeals and Opinions”, so they many be called upon to express an opinion on this issue.
Counsel for the Board of Elections based their arguments almost entirely on Maslow v. Board of Elections in City of N.Y., 658 F.3d 291 (2d Cir. 2011) which cited N.Y. State Bd. of Elections v. Lopez-Torres, 552 U.S. 196, 128 S.Ct. 791, 798, 169 L.Ed.2d 665 (2008). However, neither of these cases are on point.
The Maslow case involved Democrats who wanted to register Republicans to run as Republican candidates. For example a bunch of Democrats could collect and submit petitions on behalf of a candidate who is likely to be disruptive to the opponent's elections. Naturally, the Republicans would want these people kept out.
However, in my case the petitioners were a random collection of semi-homeless Democrats, Libertarians and Blanks who were unemployed and simply wanted a job. They had no idea about raiding an opposing party. In the Maslow case, Lori Maslow, the good wife, wanted to be able to circulate petitions on behalf of her husband, Aaron Maslow, should he ever decide to run for election as a Republican, even though she is a Democrat. She claimed the Constitutional Right to Associate with the Republican Party even though she was not a member of that Party. Her application was frivolous and failed for obvious reasons.
In fact, Aaron Maslow has never run for office as a Republican and Lori Maslow has never circulated petitions for him as a Democrat, so there was no actual case or controversy. Aaron Maslow is one of the most active litigators of election law cases. He has also served as Chairman of the Nomination Committees for both the Republicans and the Democrats at the same time. I like to say that in the neighborhood where I live, we have Democracy as we have both the Crips and the Bloods. Maslow's case is better or worse as he works for both the Republicans and the Democrats, switching back and forth.
In the case presented here, however, 3905 Republicans signed petitions believing that they were nominating candidates to run for office as Republicans. The 3905 people who signed the petitions did not know the witnesses or even who the witnesses would be. They all just naturally assumed that their petitions were valid.
It is the constitutional rights of the petitioners that have been infringed. In the Maslow case there were no petitioners because no such petitions had actually been circulated. The Maslow case was merely an action for declaratory relief. It did not occur in the context of an actual controversy. The Maslow case lasted 5 years. It started in 2006 and continued until 2011.
The First Amendment to the Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Here the law clearly infringes the Constitutional Right “to petition the government”. No plaintiff in the Maslow case asserted that right because no petition was actually circulated and thus there were no petitioners.
The provision relied upon by the Board of Elections has already been declared unconstitutional in the case Lerman v. Bd. of Elections of N.Y.C., 232 F.3d 135, 145 (2d Cir. 2000). That decision struck down the sentence cited by the Board of Elections, yet they shamelessly quoted and read from that invalid statute during the hearing on August 5. Although that decision refers to the residency requirement, the residency requirement is in the same sentence as the requirement that a witness must be a member of the same political party and the same logic and reasoning applies. Nevertheless, the statute has not been amended or changed and they read the sentence in full in the hearing before Judge Wooten.
The Maslow case was pending before the courts for five years, because there was no live controversy and there was no rush to decide it. In the case here however, the Primary Election will be held on September 10. Either the candidates will be on it, or they will not be on it, so a final decision must be made by that time.
The Specific Objections that resulted in three candidates being thrown off the ballot were improperly filed and thus should not have been considered. Sal Caruso who is purported to be the specific objector is an elderly man approaching 70 who lives in the most remote area of New York City, the Throngs Neck section of the Bronx near the land's end. He was apparently selected to be the front man because of the remoteness of his situation and the difficulty in serving him. When asked why he got involved in this case, Sal Caruso replied, “I am a member of the Republican Party and they asked me to help out.” This tells us what we knew already which is that he is not the real objector and is just doing this as a favor to somebody else or possibly as a result of being paid to do this. This should not be allowed and the real objectors should be revealed and disclosed.
In comparing the signature on the General Objections with the signature on the Specific Objections it is obvious that the two documents do not match and were not signed by the same person and thus one of them is a forgery. The Voter Registration Card for Salvatore Caruso is on file with the Bronx Board of Elections. In comparing the signatures, the signature on the Voter Registration Card is similar to the signature on the General Objection and both are completely different from the signature on the Specific Objection.
Sal Caruso was personally served with the Order to Show Cause and the petition and affidavit in support at his residence at 540 Ellsworth Avenue, Apartment C-1, Bronx New York, at 10:45 PM on the same day that the Order to Show Cause was signed. He was specifically told that his appearance was required on Monday at 9:30 AM in Room 341 at 60 Centre Street on August 5, 2013. Nevertheless he defaulted and did not appear. In view of questions raised as to whether he actually signed the “Specific Objections” with the Board of Elections in the City of New York, he should be held in default and required to appear and/or these candidates should be restored to the ballot.
The Sal Caruso who filed these General Objections and Specific Objections was and is said to be represented by attorney Daniel S. Szalkiewicz, PC, 280 Riverside Drive, New York, NY 10025. Mr. Daniel S. Szalkiewicz is a hard man to find. Although he advertises his office as at 280 Riverside Drive, New York NY 10025, Petitioner visited that address and the doorman informed the petition that there are no offices there. It is a simple apartment building. Also, the name of Daniel S. Szalkiewicz is not on either the building directory or any of the mail boxes. His actual apartment number or office number is not provided in any directory of lawyers. Lawyers in New York are required to maintain an office and to be there most of the time. Daniel S. Szalkiewicz by not listing the office or apartment where he can be located is in violation of New York law. It is also highly probable that Mr. Daniel S. Szalkiewicz is the forger of the signature of Mr. Sal Caruso on the Specific Objections, as it appears that the same pen was used to write the name and address of Daniel S. Szalkiewicz as was used to sign the forged signature of Sal Caruso.
Rather than provide line-by-line specific objections, the objectors claimed that there were 4269 signatures but only 69 were good and the other 4200 were false. The objectors simply marked virtually all of the approximately 500 pages of petition sheets with SWNR and marked virtually all of the lines with NR, NE. SWNR means Subscribing Witness not Registered. These were false and spurious claims as all of the subscribing witnesses were registered to vote. The filing of these spurious claims shows that the objectors never bothered to look up the signatures to determine whether the voters and the witnesses were registered or not.
It was quickly established that their claims were not true. All of the Subscribing witnesses are and were registered to vote in the State of New York. Once this was established, it should have been evident that the Specific Objections were spurious and frivolous and the objectors had never bothered to look up the actual signature cards on file with the Board of Elections. The objectors simply sought to require the Board of Elections and the candidates to do all the work to prove the validity of the petitions. This shifting of the Burden of Proof was improper and should not have been allowed.
Nevertheless, the Board of Elections went ahead with validating the petitions, expending considerable time and effort and resources to do so. The end result was that only 112 of the signers were found to be not registered to vote and only 59 of the more than 4000 signers were found to be not registered as Republicans. These numbers were completely different from the numbers claimed by the objectors.
However, the Board of Elections found that in the cases of 3905 of the signatures, although the signers were registered Republicans, the subscribing witnesses were not registered Republicans. In short, the signatures were good, but the subscribing witnesses were not good because they were not Republicans.
It is an interpretation of New York Election although not specifically stated in the law that the witness to the petition must also be in the same political party in New York as the signers. The petitioners herein were not aware of this interpretation at the time of circulating these petitions. Petitioners also believe that this is not strictly speaking what the law says and in any case is Constitutionally invalid in that it deprives the petition signers and the candidates of the Constitutional Right to Petition the Government and has no rational basis. It deprives the signers of the petitioner of the right to nominate candidates of their own choosing.
Section 132 (2) of New York Election law provides the following:
2. There shall be appended at the bottom of each sheet a signed statement of a witness who is a duly qualified voter of the state and an enrolled voter of the same political party as the voters qualified to sign the petition, and who is also a resident of the political subdivision in which the office or position is to be voted for. However, in the case of a petition for election to the party position of member of the county committee, residence in the same county shall be sufficient. Such a statement shall be accepted for all purposes as the equivalent of an affidavit, and if it contains a material false statement, shall subject the person signing it to the same penalties as if he or she had been duly sworn. The form of such statement shall be substantially as follows:
STATEMENT OF WITNESS
I,..................... (name of witness) state: I am a duly qualified voter of the State of New York and am an enrolled voter of the....................... party. I now reside at....................
This law is obviously unconstitutional as applied in the circumstances of this case because it deprives the petition signers of the First Amendment right to petition the Government. The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
It is difficult to imagine a more blatant and obvious violation of a Constitutional Right than to make a rule that one may not petition the Government unless the petition is witnessed by Republicans!! What nonsense!!!!
It was not until the hearing on Monday August 5 that it became apparent that the court dismissed all the other objections to the ruling of the Board of Elections and that this case might rest entirely on the Constitutionality of Section 6-132 (2) of New York Election Law. Petitioner served a complete set of papers on the office of the Attorney General at 120 Broadway. Since then petitioner has written and served a detailed letter to the Attorney General explaining why Section 6-132 (2) of New York Election Law is Unconstitutional as applied in this case.
There can be little doubt that Specific Objections filed by attorney Daniel S. Szalkiewicz, PC, 280 Riverside Drive, New York, NY 10025 includes a forgery. The signatures simply do not match. Not only is it a forgery, but it is a very poor forgery. He cannot even get that done right. Petitioner has written letters to the Manhattan DA and the Bronx DA complaining about this. Copies of these letters are in the court file.
At the hearing on August 5, 2013, Counsel for the Board of Elections stated that the Constitutionality of Election Law Section 6-132 (2) has been upheld in three federal cases. Petitioner has since located two of those cases and found that citations to them are irrelevant to this case. Basically those cases concern a bunch of Democrats who want to invade the state or the Republican Party by circulating petitions to get inappropriate and disruptive candidates into the Republican Primaries. In none of these cases did these Democrats actually circulate these petitions. They just brought actions for declaratory relief, which were denied for good reasons.
Although counsel for the Board of Elections claimed that the Constitutionality of this law has been upheld in three federal cases, this is not true. It was declared unconstitutional in Lerman v. Bd. of Elections of N.Y.C., 232 F.3d 135, 145 (2d Cir. 2000). Nevertheless, that statute has not been amended and the Board of Elections in the City of New York continues to enforce it, as I found out on August 5.
In the case presented here, Petitioner is a registered Republican. Petitioner recruited a slate of candidates who are also registered Republicans to run for Citywide offices. Approximately 4500 petition signatures were collected and timely filed with the Board of Elections in the City of New York at 32 Broadway.
Petitioners thought everything was hunky-dory and were taken by surprise when they received a call on Sunday July 28 from Anthony Ribustello, a clerk in the Bronx Board of Elections, informing petitioners that almost all of the signatures were considered invalid solely because they had not been “witnessed” by an enrolled member of the Republican Party. Previously, Petitioners thought that any credible person could witness a petition signature. Petitioners did not know that there were restrictions and limitations on who could collect or submit the petition signatures.
The three Candidates were kicked off the ballot on July 31, 2013. Suit was filed in New York Supreme Court, New York County, the following day.
At a hearing on August 5 before Judge Paul Wooten of Manhattan State Supreme Court, Petitioner learned that the Board of Elections in the City of New York was using New York Election Law 6-132 (2) as the sole basis for declaring 3905 of the signatures to be invalid, since the witnesses to those petitions were not registered Republicans. Petitioner did not personally know any of the petition gatherers except that he met them during the last few hours on the last day of the petition drive, when they turned in their signatures. However, Petitioner has since looked them up on the records of the Board of Elections and has found them to be a mixture of Democrats, Libertarians and Blanks. All of them are registered voters. Mostly they seem to be people who have little interest in politics but who gather petition signatures as a means of employment. Some of them needed hotel rooms as they seemed to be homeless. Several of them defected to Spitzer during the last hours of the petition drive, after it was reported on TV that Spitzer was paying $800 per day to those who would collect signatures for him. This is a matter that should be investigated.
The main case cited by Counsel for the Board of Elections is Maslow v. Board of Elections in City of N.Y., 658 F.3d 291 (2d Cir. 2011) citing N.Y. State Bd. of Elections v. Lopez-Torres, 552 U.S. 196, 128 S.Ct. 791, 798, 169 L.Ed.2d 665 (2008)
However, the Maslow case is completely different from the case presented here. In the instant case the petitioners were a random collection of semi-homeless Democrats, Libertarians and Blanks who were unemployed and simply wanted a job. They had no idea about raiding an opposing party. In the Maslow case, Lori Maslow, the good wife, wanted to be able to circulate petitions on behalf of her husband, Aaron Maslow, should he ever decide to run for election as a Republican, even though she is a Democrat. She claimed the Constitutional Right to Associate with the Republican Party even though she was not a member of that Party. Her application was frivolous and failed for obvious reasons.
In the case presented here, however, 3905 Republicans signed petitions believing that they were nominating candidates to run for office as Republicans. The 3905 people who signed the petitions did not know the witnesses or even who the witnesses would be. They all just naturally assumed that their petitions were valid.
It is the constitutional rights of the petitioners that have been infringed. In the Maslow case there were no petitioners because no such petitions had actually been circulated. The Maslow case was merely an action for declaratory relief. It did not occur in the context of an actual controversy.
The First Amendment to the Constitution provides: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. Here the law clearly infringes the Constitutional Right “to petition the government”. No plaintiff in the Maslow case asserted that right because no petition was actually circulated and thus there were no petitioners.
It was not until the hearing before Judge Wooten that it became apparent that the constitutionality of the Election Law would be the main issue of the case. Petitioner raised or attempted to raise other issues, including the apparent forgery of the signature of Salvatore Caruso on the Specific Objections. Petitioner also objected to the appearance of Daniel Szalkiewicz as counsel for Salvatore Caruso when it is obvious that Sal Caruso, who is an elderly man approaching 70, is not the real objector and is merely a front man for the undisclosed real objector.
It is obvious that New York Election Law 6-132 (2) is unconstitutional as applied in this case. Here, we have 3905 voters who signed a petition thinking that it would be submitted to the Board of Elections and the names of the candidates nominated would be on the ballot. The signers did not know anything about the subscribing witnesses and had no connection with them. They did not even know their names much less their political affiliations. It is clear that the 3905 signers of the petitions have the First Amendment constitutional right to petition and these rights have been infringed on the pretext that the witnesses with whom they have no connection are not Republicans. Frankly, this situation is so unconstitutional that one does believe that the Attorney General will not be able to defend it.
It is apparently the interpretation of the Board of Elections in the City of New York that the above provision implies that the party of the subscribing witness must be the same as the party of the signer of the petition. However, the above provision does not actually say that. It says that the signer must be an “Enrolled” member. An “Enrolled Member” could be a member of the Republican Party in Pennsylvania and in fact Aaron Maslow is planning to file a case saying exactly that. An Enrolled member could be a member of the Republican National Committee. It could even be somebody who has read and studied Plato's Republic and has joined an email group to study and discuss the Republican ideals as set forth in that famous book. In short, the average person reading this law would not reach the same conclusion that the Board of Elections reaches.
WHEREFORE, for all of the reasons set forth above, Petitioner prays that the decision of the Court Below be reversed and the Petitioners be put back on the ballot.
Samuel H. Sloan
1664 Davidson Avenue, Apt. 1B
Bronx NY 10453