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Fate of fusion voting at stake as minor parties press court case in Niagara County

The state's Public Campaign Financing Commission last month approved rules that would make it harder for minor parties to qualify for the ballot.

If those rules had been in effect on Election Day last month, only the Conservative Party line would have appeared on the ballot. The Working Families, Green, Libertarian and Independence parties would not have qualified to be on it.

"Here we have a commission that was given the power to override the whole Election Law," said Michael Y. Hawrylchak, attorney for the State Assembly's Republican minority. "We have statutes that have been repealed without legislative action."

On Thursday, the Conservative and Working Family parties brought their lawsuit objecting to the commission's work to a Niagara Falls courtroom. Their lawsuits, filed in July, contend that delegating power to change the Election Law to the commission is unconstitutional because only the Legislature can pass and amend the state's laws.

William F. Savino, attorney for the Conservatives, and Richard Brodsky, attorney for the Working Families Party, called the commission's ballot access rules a back-door way of abolishing fusion voting, in which a candidate is nominated by multiple parties and whose votes on each party's line are added together to come up with the candidate's total vote.

"This is about political parties getting married," Brodsky said. "You can ban the marriage or shoot the groom. They concede they made fusion voting more difficult."

The commission comprises two Republicans and seven Democrats, including state Democratic Chairman Jay Jacobs.

The law creating the commission makes its decisions final unless both houses of the Legislature pass a bill changing them by Dec. 22 and Gov. Andrew M. Cuomo signs that bill.

The Green and Libertarian parties announced Monday that they also plan to sue the state. Thursday's arguments included only the Conservative and Working Families parties.

It'll be up to State Supreme Court Justice Ralph A. Boniello III to decide whether the commission's work will stand.

After nearly three hours of legal arguments Thursday, Boniello didn't say when he would rule on whether the State Legislature violated the New York State Constitution when it delegated the authority to the commission.

The judge could overturn the changes, although it seems likely that no matter what he decides, his ruling will be appealed to higher courts.

"No one in this room believes this case stops here. It's going up (on appeal)," Savino said.

Attorneys for the Democratic majorities in the Senate and Assembly say there are precedents allowing the Legislature to delegate its decisions to commissions.

A 2007 ruling allowed the Berger Commission to order closures of hospitals and nursing homes, and a case last year allowed a commission to set salaries for elected state officials and judges, said Craig R. Bucki, who represents the Assembly.

But those commissions were assigned to relatively narrow jobs, said Hawrylchak, the Assembly's Republican minority lawyer.

Bucki and Eric Hecker, the attorney for the Senate, said the Legislature set the general policy on election reform.

"We'll leave it to the experts to fill in the details," was how Hecker summarized the Legislature's thinking.

The State Court of Appeals has ruled three times in the 20th century that fusion voting is constitutionally protected. While the commission did not abolish it, its ballot access rules would reduce the number of parties available to fuse with, said the attorneys for the minor parties.

For many years, parties have received automatic ballot lines if their candidate for governor receives at least 50,000 votes. Under those rules, the 2018 results qualified six minor parties for ballot positions for the next four years.

The commission wants to change the threshold to 130,000 votes or 2% of the total, whichever is more. And starting in 2020, parties would have to qualify every two years, alternating between presidential and gubernatorial elections.

Today, a party that lacks automatic ballot access can qualify by collecting 15,000 valid petition signatures, but the commission would increase that threshold to 45,000.

Hecker, the Senate's lawyer, said the ballot access changes are tied to the creation of public campaign financing, starting in 2024. Public financing was not challenged in the lawsuits.

Candidates for statewide offices or Legislature seats – but not parties – will have access to a $100 million state fund, and the commission had to decide how to allocate it.

"You can't have a $100 million cap without putting limits on who gets the money," Hecker said. "In an act of democracy that we should be celebrating, the majority in both houses voted for this and the governor signed it. That's how democracy is supposed to work."

"They chose victims," Brodsky retorted.

Boniello, who said little during Thursday's hearing, seemed interested in Brodsky's claim that commission members didn't sign oaths of office within 30 days of their appointment by Cuomo, as required by state law. Brodsky contended that would invalidate everything the commission did.

"It may have some bearing. I don't know if they signed it or didn't sign it," the judge said.

Hecker and Bucki told a reporter they didn't know when the oaths were signed.

They argued repeatedly that the minor parties' arguments against the ballot access rules should be disallowed because that point wasn't included in the original July 22 lawsuits, which concentrated on fusion voting and alleged illegal delegation of legislative power.

"Everybody knew what we meant. This is all disingenuous," Savino said.

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