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Byron Brown challenges filing deadline in bid to get name on November ballot

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Supporters welcome Brown (copy)

In addition to running a write-in campaign to try to win a fifth term, Mayor Byron W. Brown is now mounting a petition drive to get an independent ballot line, challenging state law that says the deadline for such an effort has passed. (News file photo)

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Mayor Byron W. Brown has launched a petition drive to try and gain an independent line on the Nov. 2 ballot by disputing the petition filing deadline set earlier this year by the State Legislature. Brown's campaign is arguing in favor of the previous deadline, which would expire on Tuesday, but it would not cite the legal justification for its interpretation.

Brown petition

The petition circulated by Byron Brown in an attempt to gain an independent line on the ballot in November's mayoral election.

The Democratic and Republican commissioners at the Erie County Board of Elections on Sunday confirmed they were aware of the effort by the four-term mayor.

Jeremy J. Zellner, the Erie County Democratic Committee chairman and also the Democratic Board of Elections commissioner, said Brown contacted him last week and informed him that nominating petitions were being circulated to place his name on the November ballot as an independent candidate.

“The mayor called me and told me they were going to take this on and that they thought they have some case law,” Zellner said of court decisions. “I believe the state law is the state law, and until I get some more information from the county attorney and our counsel at the Board of Elections, I’m not going to talk about it.”

In a major political upset, Brown lost the June 22 Democratic mayoral primary to political newcomer India B. Walton. Brown has since launched an uphill write-in campaign for re-election to an unprecedented fifth term.

Zellner is supporting Walton for mayor after she won the party's primary with 11,718 votes to Brown’s 10,669 votes, according to certified results from the county Board of Elections. Walton's campaign late Sunday dismissed Brown's petition effort as "antics."

The State Legislature earlier this year changed the filing period for independent nominating petitions for political office to “not earlier than 24 weeks and not later than 23 weeks,” before the Nov. 2 election, according to state election law 6-154. Previously, the deadline had been “not earlier than 12 weeks and not later than 11 weeks” before the election.

In explaining what that means, Erie County Republican Elections Commissioner Ralph M. Mohr said: “Under the new law, the filing of independent petitions was between this past May 18 and May 25. The change was due to the date of the primary being switched from September to June.”

Sofia Quintanar, spokeswoman for the Brown campaign, said the independent petition drive to try and place the mayor’s name on the ballot is viewed as an effort to better his chances for re-election.

“Due to the record low turnout during the Democratic primary, we felt it made sense to pursue this avenue to make sure every voice in Buffalo is being heard,” Quintanar said.

As for case law suporting Brown's position, Quintanar said, “We are going through the process and not going to discuss the legal strategy at this point.”

Jesse Myerson, Walton's communications director, described Brown's efforts as a distraction from campaign issues.

"For a man who doesn’t even have a platform on his website, Mr. Brown certainly seems to have plenty of time for antics designed to author confusion," Myerson said. "While he focuses on devising new distractions, the Democratic nominee will continue talking with everyday Buffalonians about the issues that matter to them, and gearing up to assume office and build a safe, healthy Buffalo."

Pursuit of an independent ballot line for Brown, at this juncture, is a viable option, Quintanar said. She added that, at the same time, the campaign continues its write-in effort for the mayor.

A write-in effort requires each voter to write the candidate’s name in a box on the paper ballot, rather than fill in a circle beside a candidate’s name that is already listed on the ballot.

“We have so many people across the city in every district working on the 'write down Byron Brown' campaign and we are confident that one of these efforts will assure that the mayor wins on Nov. 2,” Quintanar said, adding that the campaign demonstrated broad support when “more than 1,000 supporters” recently showed up at a rally at Brown’s new campaign headquarters on Washington Street.

In past years, the number of signatures for an independent candidate to be placed on the ballot in the City of Buffalo was 1,500, but because of the difficulty of gathering signatures during the Covid-19 pandemic, Gov. Andrew M. Cuomo earlier this year reduced the number of signatures for an independent candidate’s nominating petition to 750.

The Brown campaign says that though it agrees with the figure of 750, it is seeking more than 1,500 signatures to avoid any legal question should that become an issue.

Zellner and Mohr said that once the expected independent nomination petitions are submitted to the Board of Elections, they will schedule a hearing to rule on whether Brown will be placed on the Nov. 2 ballot.

Mohr declined to offer an opinion on the mayor’s effort, noting that he will be one of the people making the decision.

If the decision goes against Brown, his campaign officials said they expect to take the matter to court and have a judge rule on whether the mayor can be on the ballot.

And though Zellner is supporting Walton, he said he does not see a conflict of interest in deciding the question of whether Brown can be placed on the November ballot as an independent candidate.

“My job is to uphold my oath of office and to follow the law,” Zellner said, dismissing any notion of a potential conflict of interest.

John W. Conklin, spokesman for the State Board of Elections in Albany, said the petitions are a matter for the local elections board, but added that the statewide political calendar is not “a discretionary document,” and that established legal provisions dictate “what the dates are.”

If, however, the matter went to court, Conklin said: “It wouldn’t be the first time somebody went into court with the idea that they are going to change settled law. Everybody thought that the governor couldn’t appoint a lieutenant governor for decades and then Gov. David Paterson did and the state Court of Appeals said ‘sure.’ ”

Petitions for Brown’s effort to gain an independent line on the ballot began circulating Wednesday, according to campaign officials.

Not everyone can sign those petitions or serve as witnesses to the signatures, Mohr said, citing election law.

“A nominating petition can be signed by any registered voter living within the jurisdiction, the City of Buffalo in this case, who has not signed a petition for the same office,” Mohr said. “This would also exclude individuals from witnessing a signer of the petition, if they previously signed a petition.”


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I am a member of The Buffalo News' watchdog team, coauthor of New York Times bestseller, American Terrorist: Timothy McVeigh and The Oklahoma City Bombing. I'm also a proud graduate of Buffalo State College where I met my wife who is my editor in life!

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