MANHATTAN (CN) — Erie County voters who say New York's ballot petition deadline unfairly burdens independent candidates asked a Second Circuit panel Tuesday to reconsider their challenge to the deadline after the statute prevented Buffalo Mayor Byron Brown from registering as an independent during the 2021 mayoral election.
According to the law, independent candidates must file their petition to appear on the ballot by May 25, two months after the deadline to appear in a primary election. Though Brown ultimately won reelection in 2021 as a write-in candidate, he initially lost the Democratic primary to India Walton.
After he submitted his petition to qualify as an independent candidate after the state’s deadline and the Erie County Board of Elections rejected his application, several individual supporters of Brown sued the Erie County Board of Elections to allow him to appear on the ballot.
Despite initially winning a preliminary injunction to allow Brown’s name to appear on the ballot as an independent, the injunction was eventually halted after both Walton and the County Board of Elections appealed the decision.
Despite the loss in court, Brown still won reelection as a write-in candidate with over 58% of the vote. Now, some voters claim the petition deadline would cause future harm for voters who want to vote for an independent candidate.
“It’s simply that my clients are independent minded voters and there’s a reasonable expectation that they might want to vote for someone in a future election who decided to run after the early deadline,” Bryan Sells, an attorney for the voters, said Tuesday.
But U.S. Circuit Judge Steven Menashi, a Donald Trump appointee, questioned what harm the voters experienced in this case since they were still able to vote for Brown as a write-in.
“The voters did get to vote for the candidate of his or her choice unless there’s some allegation they were unable to write the name or something like that,” Menashi said. “But there’s no allegation to that effect. And so the difference between having to do it as a write-in or having the person appear on the ballot doesn’t seem to be an injury to the voter.”
But Sells said that the voters believe it is unreasonable to have an independent petition deadline before the primary election, which is held a month later.
“Independent candidates do not run in the primary election. That is why it’s unjustifiable to have this deadline in May when they’re seeking to be on the ballot in November,” Sells said.
New York’s petition deadlines were previously altered by a 2019 election law, which created earlier deadlines to submit candidate petitions. When the bill hit then-Governor Andrew Cuomo’s desk, the State Board of Elections submitted an 11-page report that explained moving up the deadlines would promote “political stability."
Menashi pointed to that report during oral arguments, saying the earlier deadline for independent petitions was intended to prevent “sore loser candidates” and bolster independent candidates who genuinely wanted to run outside of the two major parties.
“There’s an interest in political stability that allows the state to prevent sore losers but not to prevent this very thin re-categorizing of sore losers if you don’t plan early enough,” Sells said.
But Charles Gerstein, an attorney for the Erie County Board of Elections, pointed out that Brown could have registered as an independent and a Democratic candidate at the same time.
“New York wants candidates to be able to run on multiple ballot runs,” Gerstein said Tuesday. “Byron Brown is a true sore loser. He ran, lost and wanted to get back on the ballot.”
“I’m not sure I’m understanding your real argument here was that New York, which doesn’t have a sore loser statute, has a particular interest in not allowing sore losers to get on the ballot,” U.S. Circuit Judge Reena Raggi, a George W. Bush appointee, said, referencing a kind of law specifically preventing the loser in a primary election from then running as an independent or representing another party.
In response, Gerstein said that candidates aren’t really “sore losers” if they already planned to run for multiple parties, which is allowed under New York law.
“In a world in which New York has made the decision to allow that flexibility, it then has an interest in ensuring that that flexibility is orderly administered,” Gerstein said.
U.S. Circuit Judge Denny Chin, a Barack Obama appointee, also participated in Tuesday’s proceedings. The panel did not make an immediate decision on the case.
When reached for comment by Courthouse News, Sells said he is “hopeful that the judges will hear it our way.”
Attorneys for the Erie County Board of Elections did not immediately respond to a request for comment.
Follow @NikaSchoonover
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