A state Supreme Court judge Friday, July 31 emphatically rejected Mayor Shayne Gallo’s appeal of a Board of Election’s decision that will deny him two potentially key party lines in next month’s primary.
The appeal centers on Gallo’s effort to compete in the Sept. 10 primary for the Independence and Conservative party lines. Gallo, a Democrat, sought and received party leaders’ authorization to run for the ballot lines. But Gallo and city corporation counsel/campaign attorney Andrew Zweben missed a key deadline to file an acceptance certificates with the county Board of Elections. Certificates for both party lines arrived at the BOE with a July 14 postmark, one day past the deadline. Election commissioners rejected both certificates, denying Gallo a spot on those primaries’ ballots.
In his appeal, Zweben argued that the acceptance certificates were actually mailed on the 13th even though they were not postmarked until the next day. Zweben argued that an office postage machine stamp dated July 13 should be accepted as a valid postmark. Zweben also blamed BOE officials for the delay claiming that Gallo did not receive the documents until the day they were due in the case of the Conservative Party and one day after the deadline for the Independence line (BOE commissioners claim that the certificates were mailed on July 9).
In his ruling, Justice Michael Melkonian rejected both arguments. Melkonian wrote that there was ample case law pointing to the fact that it is the date of the postmark, not the date that a piece of correspondence was dropped in the mail, which counts. The untimely filing, he wrote, constituted a “fatal defect” to the document and Gallo’s case. In addressing Zweben’s argument that the BOE was to blame for the late filing, Melkonian wrote that the onus was on candidates, not the election officials, to ensure compliance with election law. Melkonian also rejected arguments that Gallo’s case should be viewed in a different light than other, precedent-setting, election cases.
“Petitioner’s attempts to distinguish this case from the body of cases that clearly warrant dismissal of the underlying petition is of no merit,” Melkonian wrote. “This case is not unique and fairness dictates that it should follow the same course of any other potential candidate that fails to reach an open United State Post Office facility.”
Gallo can still appeal the case to the Appellate Division of state Supreme Court. If Melkonian’s decision stands, however, Republican candidate Ron Polacco will enter November’s general election with both third-party lines.
For Gallo, meanwhile, the Democratic Party primary, where he faces a challenge from Steve Noble, could become a make-or-break event for his bid to be elected to a second term. Besides the Democratic contest, the only remaining party primary option for Gallo is a Green Party “Opportunity to Ballot” which would require him to receive more write-in votes than Noble or Polacco from the city’s 70 registered party members. Gallo could also try to form his own party for the November election. That would require him to obtain 308 petition signatures from registered voters who have not signed any other petitions. The deadline for submitting those signatures is Aug. 18.
If Gallo loses the Democratic primary and fails to get on another party line, he would be left off the ballot entirely in November.