New York Law Journal

Transcription

1 As published in New York Law Journal January 5, 2015 Government and Election Law Year-End Round Up on Elections and Voting Rights By Jerry H. Goldfeder and Myrna Pérez This was a very busy year for election law aficionados. Following time-honored tradition, we present some of the more interesting highlights of 2014: 'Retroactive Residency?' As was highly publicized, Governor Andrew M. Cuomo challenged his all-but-unknown Democratic Party challenger s ballot status on the ground that she did not meet the state constitutional eligibility requirement of residing in New York for five continuous years prior to this year s general election. 1 It was his burden to meet by clear and convincing evidence, and he failed. 2 The candidate, Zephyr Teachout, a Fordham Law professor, admitted on the stand that she filed income tax returns for 2009 in which she indicated that she resided in New York for zero months of the year, and for 2010 in which she claimed only 292 days of the year. 3 These contemporaneous admissions of non-residency might have seemed sufficient to undermine her defense. But, after the commencement of the Cuomo lawsuit, Teachout amended her tax filings to show she was a full-fledged New Yorker during the relevant period. The trial court declined to draw any negative inference from such amendments, and, all told, given the election law s allowance for multiple residences, was not persuaded that a lack of continuous residency had been proven. The Appellate Division, Second Department, affirmed. Teachout, as we know, lost the primary, and the governor handily won re-election. Jerry H. Goldfeder is special counsel at Stroock & Stroock & Lavan, and is the author of Goldfeder s Modern Election Law (New York Legal Publishing Corp. Updated 3rd Ed. 2013). Myrna Pérez is the director of the Voting Rights and Elections Project at the Brennan Center for Justice at NYU School of Law.

2 At the same time that this residency case was being tried in Brooklyn, there was one in the Bronx where a candidate for state Assembly, Michael Blake, was being challenged on similar grounds. 4 Like Teachout, Blake had a tax filing issue. For the period , Blake listed various non-new York addresses on his federal forms, and did not file any New York State Resident returns. But after he became an active candidate, Blake also amended his various returns and entered into installment agreements to pay back taxes to both the IRS and to the state of New York. As with Teachout, this retroactive fix seems to have cured the damaging contemporary admissions. The trial court dismissed his opponent s challenge to his residency as having failed to satisfy her weighty burden, and the Appellate Division, First Department, affirmed. 5 Blake went on to win the primary and the general election. Residency cases have no litmus test, and are determined by facts and circumstances. The approval of retroactive tax filings by both the First and Second Departments this year have made such challenges more difficult. Running for Judge a Little More Challenging? Except for an anomalous failure to have nomination papers filed in a timely way back in 1982, 6 New York Supreme Court judicial conventions are usually scripted events with little contention and predictable results. Indeed, after opponents of this method of nominating party candidates for Supreme Court justice succeeded in having New York s procedure declared unconstitutional by the U.S. District Court and the U.S. Court of Appeals, the U.S. Supreme Court reversed, 9-0, and held that New York s judicial nominating process passed constitutional muster. 7 That said, there was a spate of cases brought this year that challenged the results of several nominating conventions. Two alleged that the weighted votes of convention delegates violated the one-person/one-vote principle, 8 but the courts held that substantial compliance with the law was met. Candidates for Supreme Court justice are forewarned that procedural challenges to their nominations may increase. The Election That Wasn t. On Sept. 30, 2014, the Town of Ramapo in Rockland County held a referendum on the issue of whether to switch its electoral system from an at-large to a ward system. On Oct. 7, Justice Margaret Garvey, sitting in Rockland Supreme Court, nullified the town election. 9 What happened? In advance of the vote, the local Town Clerk drafted and circulated an absentee ballot application that was inconsistent with governing Town Law. 10 The erroneous application advised voters that absentee ballots would be canvassed if received by the seventh day after the election, whereas the law provides that they must be received by 5 p.m. on the date of the election. In addition, the Town Board passed a resolution that in order 2

3 to vote in the Sept. 30 election, potentially eligible voters [could] register to vote at the Rockland County Board of Elections on or before September 23, In fact, as the court pointed out, potential voters did not have to be registered to vote with the Rockland Board of Elections at all, even on the date of the election. 11 The court opined that these two directives, clearly inconsistent with the law, led to such confusion that it required invalidation of the entire election. Although none of the parties asked for this relief, the court concluded that There is no Order that this Court can issue that can rectify the confusion caused by the conduct of the Respondent Town of Ramapo whether that conduct was intentional or simply by mistake. 12 The court s decision is on appeal. Increased Restrictions on Voting. Restrictive voting statutes in Wisconsin, North Carolina, Texas and Ohio were challenged in various courts with different outcomes. Avoiding discussion on the merits, the U.S. Supreme Court allowed the November elections to proceed with cutbacks to early voting in Ohio, 13 a strict photo ID law in Texas, 14 and a variety of voting restrictions in North Carolina. 15 On the other hand, the Supreme Court did not permit Wisconsin to implement a new voter ID regime for the midterms. 16 While the legal questions in each case varied, they ultimately came down to what legal protections were available to voters. All of these cases raised claims under Section 2 of the Voting Rights Act, and the first case to reach the Supreme Court for a merits review will likely affect the subsequent cases. Interestingly, a photo ID law enacted by Arkansas in 2013 was challenged on state constitutional grounds, and the Arkansas Supreme Court held that it did not pass muster. 17 Specifically, the lead opinion for the Arkansas Supreme Court concluded that the Arkansas Constitution set forth certain qualifications for voting, and the photo ID law constituted a new and impermissible voter qualification requirement. The result in this case may encourage opponents of restrictive photo ID laws to consider challenges under state constitutions. Racial Redistricting? In November 2014, the U.S. Supreme Court heard oral argument in a case brought by Alabama African-American legislators, among others, claiming that minority voters were packed into several districts. 18 Specifically, the case considered whether the Alabama Legislature acted lawfully when it redrew the state s congressional maps in 2011 requiring the population of majority African-American districts to be kept at pre-redistricting levels irrespective of population levels, geographic breadth of the districts and common interests of various communities. Given that this is a racial gerrymander case brought on behalf of African-American voters, the court has the opportunity to address how racial gerrymandering claims should be analyzed and what sort of injuries to minority voters must be demonstrated. 3

4 Can Voters Take Redistricting out of the Hands of Legislators? In the spring, the Supreme Court will hear a challenge to an independent districting commission charged with drawing legislative district lines for members of Congress. 19 In 2000, Arizona amended its constitution to strip the state Legislature from fulfilling this decennial task. The legal issue is whether the U.S. Constitution s Elections Clause, providing that the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof, precludes anyone other than the state Legislature from drawing congressional districts. This case could have ramifications well beyond Arizona. Approximately a dozen states, including New York, now have some form of commission playing a role in drawing congressional districts. What s Ahead? As the 2016 presidential election starts moving into high gear, campaign spending by independent expenditure organizations is on pace to exceed the already high levels we saw in 2012; and President Barack Obama just signed a $1.1 trillion spending package that includes a provision dramatically increasing the contributions an individual can make to national political party committees. This leaves many with an understandable concern that we are entering yet another era where the onslaught of money in politics knows no bounds. 20 Reprinted with permission from the January 5, 2015 edition of the NEW YORK LAW JOURNAL 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact or reprints@alm.com. 4

5 1 N.Y. Const., Art. IV, 2; see also Jerry H. Goldfeder and Myrna Pérez, The Governor Challenges His Opponent s Residency, NYLJ, Aug. 6, Weiss v. Teachout, 120 A.D.3d 701 (2d Dept. 3 Teachout also testified that for several months during the five-year period she had no lease or sublease in New York and slept on friends couches; listed an out-of-state residence with the Federal Election Commission when contributing to President Barack Obama s reelection campaign in 2012; and, in 2013, paid sales tax for a newly purchased car as a Vermonter. On the other hand, she taught at Fordham since 2009 and swore that New York became her permanent domicile despite attachments to Vermont and North Carolina. 4 Candidates for the state Legislature, like those for governor and other statewide offices, must reside in New York for five continuous years preceding their election. N.Y. Const., Art. III, A.D.3d 415 (1st Dept. 2014) ( while it is true that the documentary evidence, including respondent s tax returns and voting record, could support an inference that respondent, who has had a peripatetic work history, did not intend to continue to reside in New York, there was also contrary evidence before the court. ) 6 Gammerman v. Board of Elections, 550 F.Supp (S.D.N.Y. 1982). 7 New York State Bd. of Elections v. Lopez-Torres, 552 U.S. 196 (2008). 8 See, e.g., Stack v. Fisher, 121 A.D.3d 1280 (3d Dept. 2014); Diamond v. DeJoseph, 121 A.D.3d 1283 (3d Dept. 9 Parietti v. Town of Ramapo, Index No. 1712/14 (Sup Ct. Rockland Co. Oct. 7, 2014)(Garvey, J.). 10 N.Y. Town Law 84-a(8). 11 Parietti v. Town of Ramapo, at Id. at Husted v. Ohio NAACP, No. 14A336, 2014 U.S. LEXIS 4895 (S. Ct. Sept. 29, 14 Veasey v. Perry, No. 14A393, 2014 U.S. LEXIS 7014 (S. Ct. Oct. 18, 15 North Carolina v. League of Women Voters of North Carolina, No. 14A358, 2014 U.S. LEXIS 6733 (S. Ct. Oct. 8, 16 Frank v. Walker, No. 14A352, 2014 U.S. LEXIS 6734 (S. Ct. Oct. 9, 17 Kohls v. Martin, No. CV , 2014 Ark. LEXIS 542 (Ark. Oct. 15, 18 Alabama Legislative Black Caucus v. Alabama, No , 2014 U.S. LEXIS 3837, cert granted, (S. Ct. June 2, 19 Arizona State Legislature v. Arizona Independent Redistricting Commission, No , 2014 U.S. Lexis 4898, cert granted (S. Ct. Oct. 2, 20 As Republican National Chairman Mark Hanna proclaimed at the turn of the 20th century, There are two things that are important in politics. The first is money, and I can t remember what the second one is.