News & Politics

Unhappy With Your Ballot Options? Blame the Board of Elections

An arcane process that can boot candidates for a typo makes it tough for independent challengers

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As New York City voters headed to the polls this week, they may have left wondering why they ultimately have so few choices.

The reasons are manifold; as my Voice colleague Ross Barkan has pointed out in his reporting, many are de facto realities of a political system where institutional inertia is king. No union support, party assistance, or independent wealth? No mayoralty, no matter how good your ideas are. Why run if you’re dead out of the gate?

Yet not every obstacle to the unconnected candidate is so implicit. Some are explicitly part of New York City’s arcane electoral system, where the opaque and deeply bureaucratic Board of Elections has the authority to certify — or deny — candidates for the ballot in city races.

In theory, getting on the ballot is relatively straightforward. If you want to run in a party primary, you make sure you’re registered as a party member, gather signatures (7,500 for mayor, 4,000 for borough president, 900 for City Council), and submit them to the board by the cutoff date.

In practice, though, many first-time candidates, or those not handpicked by their county committee, run headfirst into a slow-moving, cryptic machine from which, for those without the resources to hire an election attorney or the time to figure it out on their own, it can be impossible to emerge.

“They’ll throw out your perfectly valid documentation if you didn’t staple it correctly,” says Sarah Steiner, a longtime election attorney. In the 2013 election cycle, she sued the BOE in state court after it removed a slate of Democratic judicial delegate candidates from the primary ballot because the cover sheets summarizing their volumes of nominating petitions contained typos: Instead of volume number NY1300555, for example, the cover sheet had referenced NY1300055. Even if the three mislabeled volumes had been thrown out completely, the candidates would have had enough signatures to get on the ballot. Regardless, the BOE decided to keep them off.

“It happens every election cycle,” Steiner says. Potential candidates of every stripe and at every level — City Council, judicial delegate, borough president, public advocate, mayor — trip over the process, thereby depriving fellow New Yorkers of the opportunity for fresh blood in city governance.

Steiner and her clients eventually won that case, but not everyone can or will file a lawsuit. Generally, if the BOE’s staff takes issue with a candidate’s filing, the candidate will have three business days to file an amendment. If the BOE’s objection is prima facie — where the agency determines that, on its face, the petitions or cover sheets are invalid and cannot be amended — the potential candidate will have to appear at a scheduled board hearing to defend his or her case.

“You’re going to tell someone, ‘You have three days to fix this issue’? If they don’t have a fancy lawyer, or any lawyer, they’re not going to get on the ballot,” says J.C. Polanco, a Republican candidate for Public Advocate who served on the BOE from 2007 to 2013, including as its president.

One catch is that the board — made up of two commissioners from each borough recommended by each of the two major political parties and appointed by the City Council — can be more understanding of human error by some candidates than others. “You will go in, without their help — unless you’re an incumbent, in which case one of your county commissioners will probably quietly help you,” says Steiner.

Polanco cautiously agrees with this characterization. “Clearly, the more sophisticated a candidate, the more favorable an opinion,” he says, though he insists that BOE staffers do not intentionally discriminate against particular candidates.

According to Polanco, the rules are meant as a safeguard against fraud, but it’s easy for the BOE’s overworked staff to go too far. He faults state election law, which he calls “atrocious and arcane.” As part of his candidacy for Public Advocate, he has put forward an election reform plan that includes changes to the BOE’s procedures, and says he hopes to use a statewide referendum or a possible state constitutional convention to enact them.

“When you listen to politicians speak today, they’re all focused on voter suppression,” Polanco says. “But they’re the first to allow these ridiculous rules to keep people off the ballot.”

Though he would love to see reforms passed in Albany, Polanco is not exactly optimistic about a legislative body that has spent years diligently killing any attempts at election reform. “Those rules, by them changing, would make it easier for [legislators] to get challenged,” he says. “No one’s going to vote for that. Why would you?”

As it stands, state election law provides guidelines for municipalities, which are then free to run elections as they see fit. Under the section for designating petitions, it states that “regulations shall be no more restrictive than is reasonably necessary for the processing of such petitions by the Board of Elections,” later emphasizing that “the provisions of this section shall be liberally construed.”

Steiner argues that this standard is being flouted by the city BOE. “The board does not have the authority to throw someone off the ballot when they have the signatures because of a typo on their cover sheet,” she says, charging that the BOE is effectively “replacing state election laws.”

Yet the BOE continues to take a case-by-case approach, bumping candidates off the ballot for infractions to its own rules, beyond what is formally laid out in the body of state election law. For some candidates, it exercises what Steiner calls the standard of substantial compliance — they’re OK’d after it’s been determined that they had made enough of an attempt to comply with its rules. Others are quickly shown the door.

That isn’t to say that BOE staff will never impede a high-profile candidacy. Democratic mayoral candidate Michael Tolkin, a tech entrepreneur and political novice, spent months wrangling with BOE staff and general counsel Steven Richman after he was prima facie excluded from the ballot, once the board determined he had failed to properly transfer his Democratic party registration from California to New York. The state of California itself had admitted the situation was caused by its own clerical error, and provided documentation.

“I spent thousands of dollars on legal fees,” says Tolkin. “Of course, not everyone can do that.” At his August 1 hearing at the BOE’s downtown Manhattan headquarters, a frustrated Tolkin was braced for a drawn-out fight with the commissioners. Instead, a bewildered Frederic Umane, president of the board, motioned to have Tolkin included in the Democratic primary ballot five minutes into his lawyer’s arguments; the motion was approved immediately.

Not every prospective candidate at the hearing was so lucky. Several had their candidacies ended in the dreary conference room over missed letters — the BOE largely relies on snail mail — typos, and misunderstandings of requirements. (A spokesperson for the BOE had not responded to questions from the Village Voice by press time.)

Though he cleared that particular hurdle, Tolkin believes the system as a whole is hopelessly weighted against newcomers, even if they do their best to follow guidelines and don’t run into additional trouble. “The petitions process — there’s no free way to do it, there’s no easy way to do it, there’s no cheap way to do it,” he says. He believes the problem is not just legal but cultural, the manifestation of a status quo viciously opposed to political rookies, and that it needs to be torn out at the roots.

One political hopeful who once managed to escape the BOE’s net was a certain up-and-coming member of the City Council and Public Advocate hopeful named Bill de Blasio, who in 2009 was bumped off the ballot after one of his petition cover sheets was found to contain a clerical error. Despite his campaign having collected more than a hundred thousand signatures beyond what was required for him to run for a citywide office, de Blasio was initially taken out of the running because his sheet listed 131 folders, when the petitions volume actually contained 132. He was able to successfully challenge the board, which concluded that the mistake was made by its own general counsel, Steven Richman. De Blasio went on to win that election, then used the position as a stepping stone to being elected mayor in 2013.

If the councilmember from Park Slope hadn’t had good lawyers and had been kept off the ballot eight years ago — now just a footnote in his career — who knows what path his political life would have taken? We might today be discussing the re-election prospects of Mayor Christine Quinn or Mayor Joe Lhota. Instead, incumbent Mayor Bill de Blasio is seeking a second term — against whatever challengers have managed to make it through the BOE’s gauntlet.

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