The Erie County Board of Elections will decide Tuesday whether to appeal one or both decisions handed down Friday that allow Mayor Byron W. Brown to appear on the ballot in November on an independent line.
Jeremy J. Zellner, the Democratic commissioner at the Board of Elections who is also the Erie County Democratic Committee chairman, says he thinks the county should appeal.
Brown's campaign has disputed a petition filing deadline set earlier this year by the State Legislature requiring independent nominating petitions for political office to be filed no later than 23 weeks before a general election.
"I'm publicly in favor of appealing," Zellner said Saturday.
Republican Elections Commissioner Ralph M. Mohr said Saturday that he hasn’t made up his mind about how to proceed.
“I’ll decide that at the meeting,” Mohr said. He also said he thinks the rulings that allow Brown to be on the ballot mean there is no deadline anymore and that means other people may petition to be on independent lines for the upcoming election.
The Brown campaign had submitted more than 3,700 signatures on a petition to secure an independent line – called the “Buffalo Party” – for the Nov. 2 ballot.
Both commissioners must agree in order for the county to move forward, Zellner said.
The decision will be made during a hearing scheduled for 2 p.m. Tuesday in the third-floor conference room at the board's offices, 134 W. Eagle St.
The public will have a chance to weigh in. Participants and attendees of the public hearing will be required to wear masks inside the county facility.
Brown, who lost the Democratic primary to India B. Walton, missed a May filing deadline for the ballot line by nearly 14 weeks. On Aug. 27, the Erie County Board of Elections shot down Brown's bid for his name to appear on an independent ballot line, ruling his submission was “untimely” because it was not filed by the deadline set earlier this year by the state Legislature.
“I would rule the petition to be invalid as being untimely and wish both sides good luck as they litigate this out,” Mohr said then.
The mayoral campaign picked up momentum Tuesday, with incumbent Byron Brown touting support from veterans and developer Doug Jemal, while India Walton picked up Latino support with her promises for more affordable housing and less gentrification.
Brown appealed in both federal and state courts on Friday. Both ruled in his favor. The rulings boost Brown's chances in a bid for a fifth term in office. Brown lost June's Democratic primary to Walton and until recently had not sought any independent lines. He had been urging supporters to mount a write-in campaign in November.
"We’re working on it," Walton said Saturday. "It’s expensive. So we’re just working hard to raise money and bring in the best legal team that we can to fight this. But we’re definitely going to appeal."
Any appeal must happen quickly.
The Erie County Board of Elections needs to certify its ballot by Thursday so that the state Board of Elections can also certify it in time for absentee ballots to be mailed out, including to military personnel serving overseas.
"This has been kind of a distraction for our staff," Zellner said. Now, he said, "we have to wait on a court case."
“We believe it is more appropriate to prepare to take office than to engage in a lengthy series of debates with a candidate who wouldn’t debate India until she beat him," Walton spokesman Jesse A. Myerson said.
On Friday, U.S. District Judge John L. Sinatra Jr. ordered the Board of Elections to put Brown's name on an independent ballot line – called the Buffalo Party – in the November general election for mayor. Sinatra ruled the earlier deadline "severely burdens plaintiff's rights."
In a separate state case decided Friday, State Supreme Court Justice Paul Wojtaszek deemed the state's deadline unconstitutional because it is "excessively early."
Brown on Saturday called his court win a "victory for ballot access."
In his decision, Sinatra sided with Brown supporters, who sought to stop Erie County election officials from enforcing a state petition deadline Brown missed by almost 14 weeks.
The state's deadline, which requires nominating petitions be filed no later than 23 weeks before a general election, was moved up because the primary election was changed from September to June.
Zellner said the Board of Elections follows a state schedule. The state statue dictates when the petitions must be filed, he added.
Walton has called the federal court ruling "a travesty and a mockery of justice."
Sinatra should have recused himself from the case because of the appearance of conflict, State Sen. Sean Ryan said Saturday.
Ryan, speaking after an event on Buffalo's West Side during which he announced his endorsement of Walton for mayor, called Sinatra's order to put Brown's name on an independent ballot line in the general election an "impaired judicial decision."
"The federal rules are set up to give the people confidence that there will be no conflict between a judge and litigants in this case. So, in this matter, it’s clear the judge should have recused himself from that matter because, once again, it’s the appearance of impropriety," said Ryan, D-Buffalo. "And we want to give the people full confidence that these decisions are above board and instead people are left with the belief that the fix was in."
Ryan pointed to campaign contributions Sinatra's former law firm, Hodgson Russ, has made in the past to Brown's campaigns, as well as legal work the city has paid the firm to perform.
The state senator also raised concerns about Sinatra's brother, Buffalo real estate developer Nick Sinatra, who has donated to Brown's campaign and has received tax breaks for his developments in the city.
At Friday's federal court hearing, Sinatra said he was aware some had suggested he recuse himself because of his brother's political support for Brown and that he consulted recusal rules before presiding over the hearing.
"There's no basis for recusal. I will apply the facts to the law as best I can," Sinatra said, adding that he intends to have his integrity intact at the end of his judicial career.
Ryan also said he believes Brown's push for the independent line and accompanying the federal ruling will likely allow him to stay on the ballot because there's no guarantee an appeal would be heard before ballots must be finalized.
"Clearly, the timing of when the lawsuits were filed, when they asked for the determination, was all designed to make it so there was no runway left in federal court to get a appeal and the judge knew that."
Walton submitted an affidavit in federal court asking the judge to deny ordering Brown's name be put on the ballot. An attorney for Walton did not formally ask Sinatra to recuse himself.
When asked why, Walton on Saturday said, "Because it’s just not protocol, right? We trust judges to have the professional ethics to recuse themselves when they have a conflict of interest. It wasn’t our place to request that Judge Sinatra recuse himself. We figured that he knew his conflicts very well and that he would voluntarily recuse himself."