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Byron Brown off Buffalo mayoral ballot after state, federal rulings

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Buffalo mayoral debate (copy)

India Walton and Byron Brown stood next to each other during the recent Buffalo mayoral debate sponsored by the Buffalo Association of Black Journalists and WUFO Radio at Frank E. Merriweather Jr. Library.

State appellate judges Thursday ruled Buffalo Mayor Byron Brown's name should not be on the mayoral ballot in November.

And a stay from a federal appellate court on a U.S. district judge's ruling also brought clarity to the ballot for Buffalo mayor.

The rulings gave the Erie County Board of Elections what they needed in deciding whether Brown's name will appear on the Nov. 2 general election ballot: agreement from two different courts. When the board mails 162 overseas military ballots Friday to Buffalo voters abroad – the deadline for mailing the ballots – Brown's name will not appear on an independent line, a spokesman for the board said Thursday.

Brown and his supporters had gained rulings from lower court judges who said an early filing deadline for nominating petitions for an independent line violated the law. Even though the Board of Elections had decided Brown filed his petitions too late to make it onto the ballot, the state and federal judges ordered his name on the ballot.

The state appellate court weighed in first Thursday, reversing a lower state court judge who ruled the earlier deadline unconstitutional, calling it "excessively early."  

The state appellate justices ruled that the state's election law "places only a minimal burden" on the constitutional rights of candidates and voters "because a reasonably diligent candidate could be expected to meet New York’s requirements for independent candidates and gain a place on the ballot and because those requirements do not unfairly discriminate against independent candidates."

Later in the day, the federal appellate court ruled in a separate case in which Democratic mayoral nominee India Walton and the Board of Elections had fought a U.S. district judge's decision to put Brown's name on an independent ballot line. 

The federal appellate ruling is not a final determination of the merits of Walton and the board's appeal, but it is a ruling on their motion for a stay. Lawyers on both sides do not expect any further action from the federal appellate court on Friday. The stay from the federal appellate court allows the Board of Elections to prepare ballots without Brown's name without violating any court order.

With the stay in place, "there's no order prohibiting the Board of Elections from mailing the military ballots tomorrow without Brown's name," said Sean Cooney, who is Walton's lawyer.

With the rulings, for Brown to win re-election as mayor, he will have to do so as a write-in candidate. 

Read the full story from News Staff Reporter Robert J. McCarthy

Judge: Overturning state law not done 'willy-nilly'

Brown lost the Democratic primary on June 22 and quickly mounted a write-in campaign to stay in office because he had not sought other ballot lines before the primary. After his primary loss, which came after the state deadline to seek an independent line, Brown sued in State Supreme Court over the petition filing deadline set earlier this year by the state Legislature.

The state required independent nominating petitions for political office to be filed no later than 23 weeks before a general election. The state changed the date because the primary election was switched from September to June. Previously, the deadline had been no later than 11 weeks before the election. 

Overturning the state deadline isn't something the state appellate court would do lightly, an appellate judge told Brown's lawyer Thursday.

“We are not legislators,” said Justice Stephen K. Lindley, one of four appellate justices at the proceeding. “Whether 11 weeks or 23 weeks, those are legislative determinations. It’s a very serious thing for a court to strike down a law. Now, you’ve raised some constitutional claims, but it’s not something that we do willy-nilly. There has to be a strong constitutional claim here."

The state appellate judges found the claim didn't meet that threshold.  

In their ruling, the state appeals judges noted that Brown "is far from the archetypal independent candidate” whose interests past court rulings have sought to protect. Brown "has been in elective office for the last 25 years, has served four terms as mayor of Buffalo, and first chose to participate in the Democratic primary election in lieu of filing a timely independent nominating petition," they said in the unanimous 4-0 ruling.

Walton applauded the appellate ruling.

“We are very glad the Fourth Department has upheld the rule of law,” Walton said. “Buffalo voters deserve clear, transparent election laws. This decision is an acknowledgement of the duly elected New York State Legislature’s right to set our political calendar. If everyday Buffalonians are late on rent, parking fees or school assignments, they face consequences. There is no reason the rules should not apply to my GOP-backed opponent as well.”

The Brown campaign responded to the rulings in a statement late Thursday. 

“We are disappointed by the decisions in federal and state court today. We believe that the initial rulings were correct and properly granted ballot access for the Mayoral election in the City of Buffalo,” said Conor Hurley, campaign manager of Brown for Buffalo.

How the cases got to two appeals courts

Here's how the cases landed in the respective appeals courts:

U.S. District Judge John L. Sinatra Jr. on Sept. 3 ordered the Erie County Board of Elections to put Brown's name on an independent ballot line for Buffalo mayor in the November general election. The ruling came in a case brought by five Brown supporters, who asked the federal judge to prohibit Erie County election officials from enforcing the early petition filing deadline and to require them to place Brown's name on the ballot. 

Hours later on the same day, in a separate case, State Supreme Court Justice Paul Wojtaszek also ruled in favor of Brown, who objected to the earlier petition filing deadline set earlier this year by the state Legislature. Wojtaszek called the earlier deadline "excessively early."

Walton and the Erie County Board of Elections appealed Sinatra's ruling to the by the Manhattan-based 2nd U.S. Circuit Court of Appeals.

And Walton appealed Wojtaszek's ruling to the Fourth Department of the state appellate court in Rochester. Last week, Justice Nancy Smith of the Fourth Department issued a stay of Wojtaszek’s order that Brown’s name be included on the ballot on the independent Buffalo Party line.

During Thursday's state appellate hearing, Cooney, Walton's lawyer, pointed to past court cases involving election claims and referred to the "utter lack of authority in this case to support the extraordinary claim here that the state deadline is unlawful and unconstitutional."

Bryan Sells, an Atlanta voting rights attorney representing Brown in the state appeal, told appellate justices that Brown has become "the focal point for voters who are dissatisfied with the nominee of the Democratic Party."

"Our injury here is the premature cutting off of opportunity for a legitimate candidate around whom the voters have coalesced,” Sells said.

Lindley, the appellate judge, said the injury in this case happened to "a candidate who has no intention of running on any party but the Democratic line, who then loses the primary unexpectedly and then wants to change course. That's what you're really saying," Lindley told Sells. "Mr. Brown could have easily complied with the deadline if he had any intention of running on an independent line."

The four state appellate judges who heard Brown's appeal come from Onondaga and Monroe counties.  

The Board of Elections had planned to certify the ballot for Buffalo mayor by now, but held off until hearing from the appellate courts.

News staff reporters Deidre Williams and Harold McNeil contributed to this report.

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Enterprise Editor

In my 25th year at The News, finding stories in spreadsheets and courtrooms. So I like data and depositions a lot. Also get to work with talented colleagues on the enterprise team. A Missouri and Syracuse grad.

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