From: Mark Axinn
Date: Thu, Jun 20, 2013 at 5:08 PM
Subject: Deision in Credico v. NY State Board of Elections
To: Paulie Frankel and others
Attached is an important victory due to hard work of Gary Donoyan, attorney for plaintiffs Randy Credico, candidate for Senate in 2010 of two independent bodies (LPNY and Anti-Prohibition Party), myself as Chair of LPNY, Andrew Miller as Chair of APP, and an independent voter.
This decision holds unconstitutional a New York Election Law statute which prevents two independent bodies from listing the same candidate in both their columns, while permitting recognized parties to do so.
Readers should remember that New York is a fusion state. This decision will help to make cross-endorsements by two or more independent parties possible as well.
Dear Randy and friends,
Finally! The Magistrate Judge ruled in our favor. Great news, decision attached.
Operative paragraph, of this 45 (!) page decision:
“For the reasons stated herein, the Court finds that N.Y. Elec. Law sec. 7-104(4)(e) is unconstitutional as applied to LPNY in this case. Accordingly, it is respectfully recommended that summary judgment be granted in favor of the LPNY and that it be granted declaratory and injunctive relief. Since the APP has failed to demonstrate standing to pursue prospective relief, it is respectively recommended that summary judgment be entered in favor of the defendants with respect to the APP’s claims.”
The “appeal” (actually, the objection to this Report and Recommendation) if any, must be filed by 3 July, and would go to the District Judge, Raymond Dearie.
Here is why the claim of the Anti-Prohibition Party was dismissed:
“While the undisputed facts support a finding that both the APP and the LPNY have suffered a past injury based on the alleged violations of their Equal Protection and First Amendment rights, nowhere in the record has the APP asserted that it will again seek to exercise the rights that it alleges have been curtailed by the enforcement of Section 7-104(4)(e). Moreover, it is undisputed that the APP is not currently active and that it has no website, members, or formal organization. Accordingly, the Court finds that the APP has not fulfuilled its burden of showing a ‘certainly impending’ future injury, which is necessary for the Court to grant the prospective relief sought by plaintiffs in this case.”
Keeping the APP in the case has helped highlight the extent and nature of harm suffered and to be suffered by the LPNY and all other independent bodies in New York.
Now, as a result of the Credico decision (once it is eventually upheld, since it could also be appealed from District Judge to Court of Appeals), candidates of only more than one independent body (including those of the APP) will appear on the line of each such independent body, provided that the independent body is also running candidates for other offices in that election.
Chipping away …
Gary L. Donoyan
The Law Office of Gary L. Donoyan
565 Plandome Road, #209
Manhasset, NY 11030
Direct: +1 516 312 8782
Here is the document: