TABLE OF CONTENTS
TABLE OF CONTENTS 1
TABLE OF AUTHORITIES 2
JURISDICTIONAL STATEMENT 3
PRELIMINARY STATEMENT 5
ARGUMENT 13
CONCLUSION 34
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
JURISDICTIONAL STATEMENT
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.
PRELIMINARY STATEMENT
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.
ARGUMENT
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
subpoenaed 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 intended 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....................
(residence address).
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.