MARY ALICE MILLER: [Senator Kevin] Parker was at the BOE challenging his opponent's petitions. (He didn't mention Wellington Sharpe by name.) During the conversation, Parker said this about the likelihood of petitions being challenged in Brooklyn: “The ballot process is one of the most corrupt processes. What you find in this country is that 50% of the ballot challenges happen in the state of New York. And 50% of those happen in the borough of Brooklyn.”
Let me be clear, I did not write this piece because I am out to get Senator Kevin Parker.
Make no mistake, I am out to get Kevin Parker; but that is not the purpose of THIS column.
This column is my bi-annual bout of contrarianism on the subject of ballot access challenges in New York State.
Two years ago, the point of my column was that where you stand depends upon where you sit. That so-called “reformers” and “progressives” were often quite aggressive in pursuing such challenges themselves.
This year, despite the certainty that such a column will almost certainly result in a series of whines from the likes of Larry Littlefield and others, screaming that the truth misses the real point, or complaining in the manner of a Jesse Strauss that insistence on factual accuracy is not “helpful,“ I will, like Jerry Skurnik, explode another one of New York’s favorite Election Law myths. I’m used to being attacked for doing such things.
Time and time again, I’ve watched progressives complain that, when attacking evils, the real truth doesn’t matter, and one who provides it under those circumstances is just a useful idiot. One poster in a 2008 thread went as far as to acknowledge the truth of what I was saying, and then questioned my motive in saying it, because the truth served the wrong interests.
I have a different view–I think the truth focuses us the real problems instead of the ones we imagine.
As I noted two years ago:
“It is a long treasured truism of New York politics that our state has the most onerous ballot access laws in the country and accounts for 50% of the nation’s election law litigation. There are endless articles which quote such a statistic, but not one has ever cited any empirical data to back up that assertion, most likely because one is more likely to find alligators living in a sewer, or Judge Crater living in a cardboard box than to actually find any proof of this Urban Legend’s veracity.”
This year I decided to actually do the research. Having completed it, I then decided to lie in wait, for the first public sighting of this shibboleth during this year’s election.
When it emerged from the mouth of a thuggish blowhard with third rate intellect like Kevin Parker, I knew G-d was on my side and I was indeed doing the Lord’s work.
But one does not need to be a jerk to cite this “statistic;” Here it is emanating from the pen of the very savvy Elizabeth Benjamin.
Even worse, some who cite this shibboleth, don’t even bother to vouch for its accuracy. For instance, this incredible quote, “New York is reputed to have half of the election litigation in the country” is cited unsourced in the 2008 Final Report of the NYS Commission on Local Government Efficiency and Competitiveness, an agency of the NYS Government.
My comprehensive search of legal and news databases reveal the following about this “statistic.”
Its first citation in a legal sources is in the 1989 Edition of the New York University Law Review, in an article by Katherine E. Schuelke called “NOTE: A CALL FOR REFORM OF NEW YORK STATE'S BALLOT ACCESS LAWS.” (64 N.Y.U.L. Rev. 182). In turn, the article cites as its source, a New York Times Editorial called “Defuse New York's Ballot Booby Traps“ (May 23, 1987, at A26).
The next citation appears in the Summer 1994 Edition of the Pace Law Review (14 Pace L. Rev. 339) in an article by former State Attorney General Robert Abrams called “Toward a Renewed Spirit of Reform,” and cites as it source a Newsday article called “Is the Free Ride Over for N.Y. Incumbents?; Cuomo Pushes Election Reform,” (Apr. 27, 1992, at 29).
The final citation is from the 1997 edition of the George Mason Law Review (5 Geo. Mason L. Rev. 137), and is entitled “YOU GOTTA BE ON IT TO BE IN IT: STATE BALLOT ACCESS LAWS AND PRESIDENTIAL PRIMARIES.” It cites as its authority the NYU Law Review article noted above, and a 1996 Editorial from the Syracuse Post-Standard entitled “Within Reach,” (July 2, 1996, at A12).
Going back to the original sources, the Times Editorial does not note its source, but does note the following:
“The election law sets exacting rules for nominating petitions and the cover sheets that summarize the numbers and sources of signatures. These invite challenge. Few other states find such precision necessary; half the election litigation in the country takes place in New York.
The Court of Appeals bears some of the blame. In recent years, it has insisted on super-strict interpretation of the booby-trapped rules. But the major responsibility rests with the Legislature, which by now should have heeded the court's message and overhauled the law. A reform bill sponsored by Assemblyman Steven Sanders embodies sound recommendations of a special City Bar committee.
The measure would lift ballot requirements that serve only to discourage challengers, like the rule that only people residing in a district may witness petitions. Inadvertent errors on petition cover sheets would no longer disqualify candidates, as long as they are found in ''substantial compliance.'' Any reform bill might also allow challenged candidates to cure minor petition defects retroactively.”
It is interesting to note that virtually every specific complained of by the Times (“cover sheets that summarize the numbers,” the “rule that only people residing in a district may witness petitions,” ) has since been eliminated, and every specific change that that they suggest (''substantial compliance.'' “allow[ing] challenged candidates to cure minor petition defects retroactively.”) has since been enacted in some form into law.
The Newsday article does cite a source (The NYS Commission on Government Integrity), although it provides no further details. Like the Times editorial, the Post-Standard Editorial also cites no source, but it did lead me to another one from 1988 called “RESTORING TRUST STATE LEGISLATORS MUST ACT ON PLAN” (December 30, 1988 ) which noted:
“The State Commission on Government Integrity determined in a poll earlier this year that only 27 percent of New York's voters believe that "most people who run for public office are honest." That is tantamount to an indictment of our public officials. They have a chance to do something about it, but will they?
The commission has issued what it calls "A Blueprint for Government Integrity," a series of recommendations that, if followed, would go a long way toward restoring public trust and confidence in our political leaders. However, the very people who are most distrusted by the electorate because of their self-serving shenanigans are the very people who control the process for implementing the badly needed reforms, namely, the State Legislature. The public's sour perception of these stalwarts is well founded in past performance, a tendency to do even less than the very least that would satisfy public demand for reform, a substitution of empty gestures for substantive action.
The commission chairman, John D. Feerick, stated that "I realize that those who have the power to enact reforms are also those who may benefit from the status quo, but I also know that our representatives can rise above partisanship and their own interests for the common good." They can, but will they? They have yet to show that kind of selfless approach to change.
The commission's recommendations attack problems that are not new; most of them have been urged on the legislature in the past and the legislators have permitted "partisanship and their own interests" to take priority over the "common good." They have either ignored the problems or taken action that is so full of loopholes as to be meaningless beyond their pious public posturing.
The areas the commission urges the legislature to address in the coming year [include]:…
…Ballot Access: Current election law is designed to protect and foster the interests of officeholders and the two major party organizations. The commission reports, "Last year, New York accounted for one-half of all election law litigation in the country. In 1986 alone, 200 New York candidates in primary elections were denied places on the ballot because of technical errors on their petitions, even though they had significant public support and had substantially complied with the Election Law's procedural requirements."
So there we have it. The source for this Shibboleth is a 1988 Report from a New York State Commission talking about elections which took place in 1987 and 1986.
I do not have this 1988 Report, but let us be charitable and assume that unlike the rendering of this same “statistic” in the 2008 Final Report of the NYS Commission on Local Government Efficiency and Competitiveness, this statistic is bona fide and based on quantitative analysis rather than anecdote.
It is still based on a quantitative analysis done in 1988. To put things into some useful perspective, 1988 was the year Barack Obama entered Harvard Law School.
Since finding this information, I have undertaken a thorough search for any further studies into this matter, to see if this shibboleth, based upon data nearly a quarter century old, is still true.
I have not found evidence that anyone since has undertaken any such effort.
In fact, what little I’ve found, other than the endless repetition of this statistic, is to the contrary. For instance, in a New York Sun article from 2004 entitled “EXTRA SCRUTINY LIKELY AT POLLS” (November 2, 2004), it is noted that, Laurence Laufer, the head of the Special Committee on Election Law at the Association of the Bar of the City of New York said:
"Half of the election-law litigation in the country used to be in New York, but I think with the recent developments, New York no longer has that dubious distinction."
The recent developments include all the changes I previously cited and many many more, including elimination of the requirement that petitions the correct election or Assembly district of each signer on their petition sheets.
Yet, the shibboleth persists, as do many others; as recently as last year, the usually reputable Gotham Gazette, in an article entitled “Understanding the Labyrinth: New York's Ballot Access Laws,” could write:
“This has turned the whole petition process into a political blood sport. Candidates with experienced election lawyers can bump many of their rivals off the ballot by challenging the validity of their opponents' petition signatures, disqualifying the signatures from the candidates' total signature count. These errors can include unclear handwriting, or the absence of a zip code…”
This is pure nonsense. There’s never been any requirement that signatures on a nominating petition contain a zip code; a valid address is quite sufficient. And with the advent of computerization, and the concomitant ability to search by address and examine the signatures for each name at an address by just pushing a button, very few signatures are disqualified any more for being illegible, even when they are.
I’m not saying that our ballot access laws aren’t too onerous, because in many instances they are. The requirements for qualifying a candidate Statewide can only be called onerous. Moreover, those trying to qualify candidates for a general election ballot for a party which has not earned its own ballot line face nearly insurmountable obstacles. It is only because it is rare that anyone finds such petitions worth challenging that candidates who file such petitions manage to survive.
And though the last two and a half decades have seen an extensive simplification of New York’s election law’s requirements, so that they bear little resemblance to the days when the Urban myth about New York State Elections Laws bore some relation to the truth, there are still an extraordinary number of pitfalls a novice faces in getting on the ballot, though the worst might be ignorance of the law.
There are countless tales in which stupidity and corner cutting, rather than sloth, accounts for the inability a candidate to collect the signatures of 500 voters (the figure for NYC Democrats in an Assembly race) who are members of the proper political party and live in the proper jurisdiction. Such laws do prevent primaries; but they also prevent frivolous candidacies by those being put up because they have similar last names, or will divide a particular ethnic constituency.
Still, one has to believe that the inevitable nasty consequences of further simplification of ballot access will not be as bad as the consequences of continuation of the status quo.
My biggest change proposal would be subscribing witness statements. Countless otherwise good sheets get disqualified because a witness forgets to fill in a blank space in the witness statement. Most of this information could instead be contained in a witness information area below the signature line, which could be filled in without the witness being present. I might actually still require the witness to affirm to the number of signature, but I'd set it off on its own line, in some unmistakable fashion so that it could not be missed.
Do all this, and you will kill off the worst of the remaining technicalities left in the law, and still serve the law's ostensible intent (rather than its real intent of preventing primaries).