A former Republican Congressman who ran for president as an independent in 1980 was the precedent for Mayor Byron W. Brown being allowed on the general election ballot in November, despite missing a state petition deadline by months.
Lawyers for supporters of Brown’s re-election effort relied on a 1983 U.S. Supreme Court decision involving independent presidential candidate John B. Anderson in convincing a federal judge to put Brown’s name on the ballot.
The Erie County Board of Elections will decide Tuesday whether to appeal one or both decisions that allow Mayor Byron W. Brown to appear on the ballot in November.
Attorneys Bryan L. Sells and Franck C. Callocchia invoked the court’s Anderson v. Celebrezze ruling nearly 38 years ago in arguing that New York’s early petition deadline discriminated against Brown’s independent run for mayor and harmed voters by denying them “not only a choice of leadership but a choice on the issues as well.”
U.S. District Court Judge John L. Sinatra agreed with the argument, granting a preliminary injunction Friday that prohibits Erie County elections officials from enforcing the petition deadline and requires them to put Brown’s name on the ballot.
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India Walton, who won a Democratic primary election in June against Brown and will appear on the Democratic line on the general election ballot, slammed the ruling as a “travesty and mockery of justice” and accused Sinatra of being partial toward Brown because his developer brother, Nick, has given the mayor political donations.
Brown's campaign has disputed a petition filing deadline set earlier this year by the State Legislature requiring independent nominating petitions for political office to be filed no later than 23 weeks before a general election.
Walton also said on Twitter that “case after case” in federal courts “point to offensive impropriety” of Sinatra’s ruling.
In May 1980, Ohio’s secretary of State Anthony J. Celebrezze Jr. rejected a nominating petition for Anderson because it wasn’t filed by the state’s deadline, 75 days prior to the presidential primary.
A federal district court ruling allowed Anderson’s name to be put on the ballot. The U.S. Court of Appeals reversed the decision in 1983, but then the Supreme Court later stepped in and reinstated the district court ruling, with an opinion that helped pave the way for other independent candidates to get their names on ballots.
“It seems to me that the mayor’s attorneys had a case that seemed directly on point and the judge followed it,” said University at Buffalo assistant professor Shawn Donahue, an expert on elections and election law.
The one major difference between the Anderson and Brown cases is that Anderson did not lose in a primary election prior to seeking out an independent ballot line, Donahue said.
“We believe it is more appropriate to prepare to take office than to engage in a lengthy series of debates with a candidate who wouldn’t debate India until she beat him," Walton spokesman Jesse A. Myerson said.
Donahue said he wouldn’t be surprised if this election gets even more complicated, and litigation extends beyond Election Day in November.
The Erie County Elections Commissioners said they will decide Tuesday whether to appeal Sinatra’s decision. If they don’t, Walton’s campaign or her supporters would likely intervene with the U.S. Court of Appeals.
They could then pursue what’s known as a Purcell principle argument, taken from a Supreme Court reversal of a 2006 U.S. Court of Appeals decision to block an Arizona voter ID law, Donahue said.
In the case, Purcell v. Gonzalez, the high court ruled that election rules shouldn’t be changed by courts shortly before an election because it could confuse voters and create problems for election officials trying to administer the process.
“The election is about two months away, so it’s a good question of whether that would apply at this point. But it’s something that I would potentially raise,” he said.
Democratic mayoral candidate India Walton discusses the court ruling that would put Mayor Byron Brown back on the ballot for November's general election.
Election administrators need to finalize ballots this week and soon will be tasked with sending out absentee ballots for overseas and military personnel, Donahue said.
“They have a lot of deadlines that are coming up. Two months may sound like a lot, but given that people vote in different ways now, it’s an issue,” he said.
Donahue said it’s possible that higher court decisions won’t be made until after the Board of Elections already has printed and mailed out absentee ballots, potentially creating more problems down the road if they reverse earlier decisions.
“It’s a very unusual situation,” he said. “I think it’s going to be an interesting two months or maybe three months or maybe beyond that.”
After a ceremonial ribbon cutting for a new business at the Broadway Market, Brown on Saturday said the legal precedent to get on the ballot on an independent line "is very clear."
Donahue also said he doesn’t think the Walton campaign or her supporters would be successful arguing that Sinatra should have recused himself from hearing the case.
“There are some rules on it, but it doesn’t seem to rise to the level that would require Judge Sinatra to recuse himself,” he said.
