NY-29: Confusion Winning This Race

The Special & General:  Currently there are questions about the legality of the Governor’s decision.  Some wonder if, legally, the Governor can schedule a Special for the same day as the General.  I’m no lawyer but in essence there is this fundamental question – “Can a voter cast two different votes on the same day, to fill two different terms, for the same Congressional Seat?”  That would be the case should the Governor’s intentions come to fruition.

Pending Litigation:  The other unknown in all of this is the results of the pending litigation in federal court.  The Governor is being sued by three citizens who are hoping to compel the Governor to schedule a Special so the 670,000 constituents of the NY-29 have a voice in Washington D.C.  This week a federal judge denied a motion to dismiss submitted by the NYS Attorney General’s Office (representing the Gov. in this case) and oral arguments are scheduled for later this month.  I’ve attached to this report the latest motions and rulings for your review.  In short, the outcome of this case is suddenly relevant and there are now whispers that the federal judge’s ruling could result in a special election for the NY-29th this summer. (Note: those are whispers & rumors I’m hearing, I’m still unsure if a federal judge has any leverage or jurisdiction to compel the Gov. to schedule a Special – even if that is the intention behind this litigation.)

Why Not on Primary Day?  A lot of people have brought forward the idea of scheduling a special election on September 19th when voters are already going to the polls for primary candidates.  There are two potential problems with this.  The first is the time the polls open.  (Pardon me if I’m slightly off on the exact times, but you’ll get the concept)  Election law dictates that the polls for primary elections remain open from Noon to 9 p.m.  Special Elections for Congressional seats require polls to be open from 9am to 9pm.  You can imagine those conflicts, right?  The second obstacle to a Special on primary day is the same potential obstacle to a Special on the day of the General – ballot lines.  A Special doesn’t negate the usual election process – a primary is still meant to determine those on the ballot lines in November, you’d need two lines for voters in the NY-29 so they can vote for their primary candidate and their candidate for the Special.  This begs a related problem – Primary Day is limited to voters of registered political parties, a Special must allow all registered voters (blanks and otherwise) to cast a ballot.

The Law:  At issue here are really two sections of law.  Article 1, Section 2 of the US Constitution and Section 42 of the NY State Public Officer’s Law.  Click on the links so you can review for yourself what each says. Perhaps we’ll all get lucky and some uber-smart election lawyer or US Supreme Court Justice will review this case and email me to make sense of it all for us. 

SMART LAWYER EMAIL HERE:  scarroll@13wham.com