Casting A Vote For Fairer Ballot Access

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It’s just under a month before Primary Day, but for 35 would-be candidates, campaign 2009 is already over. These candidates for local office have been removed from the ballot by the Board of Elections as part of New York City’s annual ritual of petitions, challenges, objections, hearings and lawsuits—a system that some reformers say needs to be overhauled.

Four citywide candidates who submitted petitions will not be among the choices on September 15th. Veteran long-shots Jose Adames (who posted signs after the 2005 vote claiming that he, not Michael Bloomberg, was the legitimate mayor) and Jimmy McMillian (founder, and sole New York City member, of the Rent is Too Damn High party) will not be in the Democratic race for mayor. Walter Iwachiw, a registered nurse who lives in Sunnyside, will not challenge Bloomberg’s right to the Republican ballot line. And accountant Salim Ejaz won’t be in the Democratic mix for comptroller.

The more significant departures, however, are in City Council races. Candidates were bounced from 18 districts.

Councilman Alan Gerson, plagued by a typographical error on his petition sheets, almost became the highest-profile departure, but after being removed from the ballot, a judge has restored him. Opponent Pete Gleason promises to appeal that ruling. Even if Gleason should prevail and strip Gerson’s name from the ballot once more, that district will still have a handful of serious candidates this year—meaning that voters in Gerson’s Manhattan District 1 will at least have some choice.

That’s not true for voters elsewhere in the city. In five districts—those of Erik Dilan, Lewis Fidler and Michael Nelson in Brooklyn, and those of Joel Rivera and Jimmy Vacca in the Bronx—challengers threw their hat in the ring, but all candidates except the incumbent were forced off the ballot. (Fidler went from having three opponents to getting September 15th off.) Other Council members never faced any opposition in the first place. All told, 18 incumbent members will face no primary opponent.

Some are likely to have no rival in the general election, either. Both Vacca in the Bronx and Simcha Felder in Brooklyn will appear on the Republican and Democratic lines. Felder also ran totally unopposed in 2003 and 2005—a year in which 27 council members were re-elected without a primary and 13 had no general election opponent.

When public advocate candidate Bill deBlasio, a Brooklyn Councilman, was briefly knocked off the ballot for an error on a cover sheet in which he misstated the number of volumes of petitions he was submitting, there were broad calls for reform. The New York Times editorialized that “New York City’s election laws are notoriously unfair.”

The number of signatures candidates are required to obtain varies according to office and is covered by state law. Citywide candidates need 7,500 registered voters from their party who reside in New York to sign. Borough president candidates need 4,000 party members who are borough residents, and City Council candidates need 900 people from their party in their district. Candidates can be tossed from the ballot if the Board of Election staffer claims a technical violation, or if a voter—often a surrogate for a rival candidate—objects to the validity of the signatures. Signatures are obviously invalid if they are for fictional people. But a signature could also be deemed invalid if a person signs a petition after having already signed a petition for another candidate in the same race, or if the petition carrier has signed a petition for someone else, or if there is a typographical error.

Understanding the ins and outs of these rules—and the myriad court cases that have interpreted state election laws—is key to staying on the ballot or knocking a rival off.

Good government groups like Citizens Union, election lawyers like Jerry Goldfeder and many candidates have called for changes in how New York City regulates ballot access.

“It’s maybe not always apparent that the current process limits choice by deterring people from running or knocking people off the ballot, sometimes for legitimate reasons, but often for honest mistakes,” says Andrea Senteno, a program associate at Citizens Union. DeNora Getachew, the Union’s director of policy, says the question New York must face is not whether candidates should face a test, but what kind: “We do want there to be some demonstration of community support, but is our current ballot access system the best measure?”

After the uproar over his removal from the ballot, DeBlasio was reinstated by the Board of Elections. The criticism his case generated seems to have stung elections officials.

“I would argue that these rules are not picayune or old or difficult to understand,” said Board of Elections Chairman Frederic Umane on Aug. 5, the last day of board hearings on the ballot status of hundreds of candidates for dozens of offices. “Everyone can understand them,” Umane said, pointing to a copy of the type of cover sheet that nearly torpedoed deBlasio. You enter your party on one line, then your name and address, he explained, then added ironically: “The next one is a little more difficult: What’s the office the person is running for?”

Indeed, rules that can seem hyper-technical often have a rationale: A candidate has to write his correct address on each petition form, for example, so that a person deciding whether to sign the petition can know where in the district that candidate lives. And while the rules can be complicated, so is holding public office, after all: The supporting schedule to this year’s $60 billion city budget ran to 3,960 pages.

But where council members have staff to help them grapple with the duties of office, insurgent candidates rarely have the man- or money-power to compete with better-funded campaigns over the intricacies of election law.

Moneyed candidates hire top election lawyers to represent them at the board. Former State Senator Martin Connor, an experienced election lawyer, has already made $59,000 this year for legal work on behalf of seven candidates. Another election law pro, Aaron Maslow, has billed more than $50,000 to Council campaigns. Candidates without money can’t bankroll that kind of legal talent, and often have little hope of beating back a challenge to their place on the ballot.

“It’s kind of a wealth tax on candidates because to successfully navigate these rocky waters you need to hire an attorney and that’s not cheap,” says Gene Russianoff, senior attorney at the New York Public Interest Research Group (NYPIRG).

“The ballot access laws don’t serve any legitimate function. They’re kind of like chutes and ladders to trip up potential challengers,” Russianoff said. “I think it’s a good thing to ask candidates to go out and get signatures and meet voters. What’s unfair is how rigidly those rules are interpreted. The idea should be to encourage competition, not to discourage it.”

One of those unable to fight back this year was Bronx council hopeful Miguel Santana. Santana says he collected 2,850 signatures to try to replace Councilwoman Maria Baez, but a challenge by the Bronx Democratic organization (which is backing a different candidate in that race) knocked him down to 878 signatures—just 22 shy of the required 900.

“It puts us in the position where we are going back and forth to court rather than out there campaigning,” Santana says of the challenge process. “I think that’s the strategy.” He considered hiring a lawyer, but with only about $1,000 left in his campaign account and the likelihood that a victory at the Board of Elections would only trigger an appeal to the courts and more legal fees, Santana could not continue the fight.

“I was definitely disappointed in the fact that the rules are not applied across the board,” he says, pointing out that while every candidate who runs in the city has his or her books audited by the Campaign Finance Board, the Board of Elections only closely scrutinizes the petitions of those whose signatures are challenged.

The Board, however, does conduct a basic screening of all candidates’ submissions; that’s how it discovered DeBlasio’s problem.

Despite the challenges, some long-shot candidates—like mayoral hopeful Roland Rogers and public advocate candidate Imtiaz Syed—will be among the choices on primary day. While many Council candidates were knocked off, some 135 will stand in the primary election for the 34 districts where a ballot line is still up for grabs in the general election on Nov. 3.

Indeed, some of the fields remain crowded. Manhattan’s 10th Council District and Brooklyn’s 36th feature the greatest number, both with eight candidates. Several Council contests involve five, six or seven names. One benefit of winnowing the ballot is that it forces the winning candidate to generate more consensus among voters. When races are crowded with candidates but attract a low turnout, the winner can prevail with a slim plurality and a fairly low number of votes, which means the will of only a small share of constituents wins the day.

Compared to getting on the ballot, that’s a piece of cake.

– Jarrett Murphy