Members of the EH Fusion Party, a group of Republican, Independence Party, and Democratic candidates seeking to appear on a unified ticket on the Nov. 5 ballot, experienced another setback last week when a United States District judge for the Eastern District of New York dismissed the lawsuit it had brought against the Suffolk County Board of Elections and its Democratic and Republican commissioners.
The party “can still promote these candidates and these candidates can communicate the group’s message,” Justice Kiyo Matsumoto wrote in an Aug. 13 decision, but the majority of its candidates will not appear on the Fusion Party ballot line.
At issue was an oversight: Most of the EH Fusion Party’s candidates had neglected to file timely acceptance certificates with the board of elections for their nominations, as required by state election law when independent nominating petitions are submitted. Their candidacies were therefore declared invalid.
The plaintiffs, wrote Justice Matsumoto, argued that the law requiring them to file certificates of acceptance violates their due process, equal protection, and First Amendment rights, and that the board of elections and its commissioners violated election law by failing to accept their certificates of substitution after their candidacies were found invalid.
On May 21 and 28, Rona Klopman, a candidate for town trustee, filed independent nominating petitions for the Fusion Party candidates, Justice Matsumoto wrote. On May 21, the board of elections sent notice letters instructing the candidates to accept or decline their nominations. “The notices expressly stated that they were ‘not a statement of the validity of said nomination.’ ” The letters also stated that the last day to accept or decline their nomination was May 31.
Ms. Klopman claims that on May 21 shc asked Democratic and Republican representatives at the board of elections “if any futher filings or formalities were necessary, and [she] was told that they were not,” Justice Matsumoto’s Aug. 13 memorandum states.
Ms. Klopman made a second visit on May 28 to drop off additional petition signatures, again asking “if there was anything else [she] had to know about the filing because [she] felt responsible for [the] signatures and wasn’t leaving until they told [her] everything was perfect.” Ms. Klopman said she was not told that EH Fusion Party candidates were required to file certificates of acceptance or do anything else for their nominations to be valid.
Multiple board of elections officials disputed Ms. Klopman’s account, saying that she had not asked whether any other documents or formalities were necessary, nor had they offered any information regarding any other documents or formalities. One official “further stated that if so asked, she would have informed Klopman that she was not permitted to give such legal advice or guidance,” Justice Matsumoto wrote.
“Regardless of the events surrounding the filing of the EH Fusion Party petitions, after the board sent the plaintiffs accept or decline notices on May 21, 2019, none of the plaintiffs filed acknowledged certificates of acceptance,” the judge wrote.
On June 5, the board of elections declared the Fusion Party candidates’ petitions invalid. On June 7, 10, and 11, the candidates filed certificates of substitution by committee to fill vacancies, “attempting to substitute themselves as candidates for the same offices for which they were originally nominated,” Justice Matsumoto wrote. The board of elections ruled on June 13 that “no vacancies were created by invalidation of the independent nominating petitions and that, for the sake of argument, the same candidates could not be named as substitute.”
The candidates had previously filed certificates of acceptance for nominations for other political parties of which they were not members, the judge added, but later argued that the
certificate of acceptance requirement is unconstitutional and discriminates against local parties. The board of
elections argued that the requirement “supports the state’s interest in
preventing a fraudulent acceptance or declination of a nomination, an interest which has been recognized as a valid state interest by both the New York Court of Appeals and the Second Circuit.”
Just three candidates will appear affiliated with the EH Fusion Party on the Nov. 5 ballot. They are Lisa R. Rana, an incumbent town justice, who will also appear on the Republican, Conservative, and Independence tickets; Jill Massa, an incumbent assessor, who will be on the Democratic, Republican, Conservative, and Independence lines, and Jeanne Nielsen, an incumbent assessor, who will also appear on the Democratic, Conservative, and Independence tickets. None were among the plaintiffs in the EH Fusion Party lawsuit. Ms. Massa and Ms. Nielsen “properly accepted their nominations,” the judge wrote, while Ms. Rana did not have to formally accept because that requirement does not apply to judicial candidates. Stephen Lynch, the highway superintendent, is no longer associated with the EH Fusion party and declined his nomination.
“Plaintiffs’ argument, in essence, that New York must provide two bites at the apple for candidates who fail to research, be informed of, and comply with the election law is unpersuasive,” Justice Matsumoto wrote.
The EH Fusion Party candidates who will be on the ballot, although not on the Fusion line, are Bonnie Brady and Betsy Bambrick, candidates for town board, and Ms. Klopman, Rick Drew, Stephen Lester, Dell Cullum, Fallon Nigro, Susan Vorpahl, Michael Havens, David Talmage, and Simon Kinsella, candidates for trustee. All of them will be on the Independence and Conservative tickets. Mr. Drew, an incumbent, will also be on the Democratic ballot. Ms. Klopman will also appear on the Working Families line. Ms. Nigro, Ms. Vorpahl, Mr. Havens, and Mr. Talmage, all registered Republicans, will also appear on their party’s ballot.
The other Fusion Party candidates’ efforts to appear on the Republican ticket this year proved unsuccessful after the Suffolk Republican chairman, Jesse Garcia, failed to sign documents authorizing someone not registered with a party to run as that party’s candidate. As a result, there will be no Republican candidates on the ballot for East Hampton Town supervisor or town board, although the local G.O.P. is supporting David Gruber, Ms. Brady, and Ms. Bambrick.