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Independent NY-21 hopeful’s ballot access challenged

SARANAC LAKE — Scott Lewis’ petition to run for New York’s 21st Congressional District on the Common Sense Party line was deemed “insufficient” by the state Board of Elections’ commissioners last week. Lewis is appealing this decision and a hearing has been scheduled for June 28.

Lewis filed his ballot petition last month, gathering around 3,500 signatures in a bid to secure an independent ballot line in the federal race, along with incumbent Republican Elise Stefanik and Democrat challenger Paula Collins.

The BoE commissioners held a prima facie — or “first impression” — hearing last week and deemed his petition “insufficient,” after invalidating numerous pages of signatures for not having complete witness statements on the number of signatures witnessed, being unnumbered or not including the geographic territory of NY-21. State BoE Public Information Director Kathleen McGrath said a prima facie review is for petitions that have something that are invalid on “face value.”

“Some issues found during prima facie review can be cured; others cannot,” McGrath said.

These rulings are not appealable to the BoE, but can be through the courts. That is what Lewis is doing.

He is seeking a “de novo” hearing — meaning from the beginning, or anew — for the state to take another look at his petition.

“The New York State Board of Elections has erred in its ruling,” he wrote in his petition to the state Supreme Court in Albany County.

He argues the the commissioners’ decision was made based on election law which does not apply to his case and that he was not given a “cure period” to amend technical violations on the petition.

McGrath said the ballot for the Nov. 5 election has not be set yet. It is generally certified in “late summer,” she said.

Four people filed general objections to Lewis’ ballot petition. Only two filed further specific objections by the June 6 deadline — Essex County Democratic Committee Chair Maggie Bartley and a lawyer named Scott Walton. McGrath said these two specific objections were not reviewed because the petition was deemed invalid based on the prima facie review. Bartley and Walton were also named as respondents in Lewis’ court filing.

Lewis has been living around the Tri-Lakes region for the past few months, but said he is planning to move to Ogdensburg soon.

Lewis said some people carried petitions for him in Herkimer and Warren counties, but the collection was mostly done by him standing out in front of stores in Franklin, Essex, St. Lawrence and Clinton counties.

Signatures

Lewis needed 3,500 signatures to obtain a ballot position. In his court filing, Lewis said he turned in 3,828. But the commissioners only counted 3,493 signatures — seven fewer than required. BoE filings show 768 pages of signatures Lewis turned in to the state, but not all of them were counted.

Lewis said 20 signatures were left out of the total count because they were on “sheets that were unnumbered or otherwise out of sequence.” He also said that 315 signatures were left out of the total count because the witness statement did not contain the number of signatures they witnessed. Lewis contends that this is not a requirement of state election law, and that if it is, it should be available to be cured during the three-day period.

There was an update to election law this year stating that “if the number of signatures stated in witness statement is missing, the entire sheet should be invalidated.”

“Not claiming signatures is a fatal flaw to a petition,” McGrath said.

This is the part where a witness swears that they personally saw each voter sign the page; McGrath said it is the equivalent of an affidavit and that it is subject to the same penalties if false.

McGrath said if a candidate realizes a witness did not complete the statement during the filing period, they can submit an amended “cured” petition with the completed witness signature claims. But this is only during the filing period. Lewis submitted his petition on the last day of the filing period — May 28.

Lewis said he was unaware of this update to the election law, but is prepared to argue his case that he should have been given a cure period.

Cure period

Lewis cites case law which says that designating petitioners are offered a three day cure provision for “technical violations,” in the pagination, binding or cover sheet of their petition.

“Petitioner was not afforded a three-day cure provision to correct non-fatal deficiencies,” Lewis said in his court petition.

McGrath said curing the petition is only allowed during the filing period. Lewis disagrees.

“Nowhere in the law does it say the three-day cure period is for within the filing deadline,” Lewis said.

He added that a portion of the filing period for independent candidates was taken up with the Memorial Day holiday weekend, which he felt was unfair to independent candidates.

Geography

The other reason for invalidating Lewis’ petition was an “insufficient description of the public office.” He listed the office as “21st Congressional District” but the commissioners said the description should have also included the geographic territory covered by the office.

Lewis contends that “21st Congressional District” is valid, saying the case law the commissioners cited is “irrelevant” since it was about a candidate for the then-state-recognized “Independence Party,” not an independent body like he is filing for. These filing processes are guided by different laws — Election Law 6-132 “Designating petition” for candidates on one of the four official party lines (Democratic, Republican, Conservatives and Working Families) and Election Law 6-140 “Independent nominations” for independent candidates.

“The requirement for the public office to be stated properly does not vary between designating and independent nominating petitions,” McGrath said.

Lewis points out that the party candidate form can be for both public office or for a party position, which could be a specific geographic region of that district. The independent candidate form can only be for public office.

“You can’t run for anything else except for Congress in the 21st Congressional District as an independent,” he said. “There’s no confusion with people signing.”

The hearing on this case will be held at 1:30 p.m. on June 28 before Judge Christina Ryba, according to the Albany Supreme Court calendar.

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