Two parties challenge authority of commission

Two political parties are challenging the authority of a commission that will issue a report on fusion voting in New York state.

The Conservative and Working Families parties have filed separate lawsuits in Niagara County challenging the commission, which is tasked with determining new election laws governing multiple party candidate nominations and designations. While filed separately, the lawsuits cite many of the same cases and make the same basic legal argument — that the state Legislature is abdicating its law-making duties in violation of the state constitution and that limitations on fusion voting are unconstitutional.

Much like the legislative pay commission empaneled in 2018, the campaign finance and election commission’s recommendations will have the force of law unless the state Legislature repeals or amends by statute the law enacted by the commission. The Conservative Party lawsuit is asking the court to rule that the statute improperly delegates to the commission the legislative function of creating, repealing and amending state law; authorizes creation of law by the commission without requiring an equal legislative act to repeal an act of the state Legislature; authorizes an unconstitutional restriction on fusion voting.

“The enactment of the statute and the creation of the commission are in violation of the Constitution of the state of New York and interfere with the constitutionally protected rights of citizens, electors, candidates and political parties to engage in fusion voting,” the Conservative Party’s lawsuit states.

Fusion voting, or cross-endorsement, permits a single candidate to appear on the same ballot multiple times under the lines of more than one political party.

Each vote for a candidate is combined regardless of the party line on which it was cast.

The lawsuit states fusion voting has been upheld by court decisions in 1910 and 1911 and is authorized by the state Election Law, though it is not explicitly created by statute.

“Plaintiffs are presently suffering harm as a result of the enactment of the statute,” the Conservative Party lawsuit states. “Plaintiffs are currently engaged in political activities in preparation for elections to take place in 2019 and 2020. These activities include, but are not limited to, proceeding on endorsements and nominations, community and political organizing, fundraising, issue development, candidate recruitment in primary and general elections, etc. In conducting many of these activities, plaintiffs must be able to rely on their ability to exercise their constitutional right to fusion voting. As a result of the statute, plaintiffs’ engagement in the above political activities has been chilled, and candidates are hesitant to pursue multiple-party nominations. Plaintiffs stand to be severely harmed by any further interference with their constitutionally protected right to fusion voting and cross-endorsements.”

The Working Families Party’s lawsuit goes a step further, arguing that a commission cannot rewrite legislation passed by the state Legislature and signed by the governor.

“The statutes which set forth the elements of fusion voting were duly enacted by the legislature and signed by the governor,” the Working Families lawsuit states. “It is settled law in New York that an enactment cannot be modified or repealed except by use of procedures equivalent to those used for the original enactment. Accordingly, the attempt to repeal or modify the fusion statutes by use of the PCFEC are unconstitutional insofar as they are inconsistent with the constitutional requirement of equivalency.”

The commission’s nine members were appointed in early July and include two appointed by Gov. Andrew Cuomo, two by Democratic Senate Majority Leader Andrea Stewart-Cousins, two from Democratic Assembly Speaker Carl Heastie, one “at large” seat jointly selected by the governor, Heastie and Stewart-Cousins, as well as one appointee each from Assembly Minority Leader Brian Kolb and Senate Minority Leader John Flanagan, both Republicans.

That means that there were essentially seven Democrat appointees and two by Republicans — the latter party long ideologically opposed to publicly financed elections.

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