Candidate Validating Proceedings and the Need to Plead with Particularity
By: Joseph T. Burns
New York's Election Law gives candidates a powerful tool to fight back when a Board of Elections invalidates their petition. But that tool – the ability to file a proceeding to validate a petition – comes with a strict and unforgiving condition: the candidate must identify, with specificity, exactly which signatures the Board improperly invalidated. This does not mean categories of errors. It does not mean estimates. And it is not a request for the court to go find the BOE’s mistakes itself. The candidate must identify specific signatures, specific determinations, and specific claims of error on the part of the BOE. Two decisions issued this month — one from Albany County Supreme Court and one from the Appellate Division, Second Department — demonstrate just how seriously courts take this requirement, and what happens to the candidates who do not.
Under Election Law § 16-102, a candidate whose petition has been invalidated may go to court to have it restored. But the law comes with a demanding procedural requirement that courts have consistently enforced: the candidate must specify the individual determinations of the Board of Elections that he or she claims were incorrect, including identifying the particular signatures that were improperly invalidated. A broad allegation that the BOE made mistakes is not enough.
The recent Albany County Supreme Court case of Matter of Bunkeddeko v. Dizon Urbano put an exclamation point on that requirement of pleading with particularity. In this proceeding, the candidate had initially appeared in court and conceded that his designating petition did not contain the minimum number of valid signatures. But a week later, the candidate tried to revive his proceeding to validate. The court, however, declined to allow this. In its decision, the court pointed out that the candidate had known the contents of his own designating petition since it was filed on April 6, 2026; he received notice of a general objection to his petition on April 9; he was served with specific objections to his petition on April 15; and he had a preliminary report from the staff of the New York State Board of Elections before the original return date of this matter. The court also noted that even with that extensive notice of his petition’s deficiencies, the candidate had yet to identify the signatures invalidated by the BOE that he sought to validate. Because the candidate had not articulated which signatures he sought to validate, the court declined to sign the Order to Show Cause to reinstate the proceeding to validate.
The Second Department's decision in Matter of Kennedy v. Board of Elections in the City of New York addressed a similar deficiency in the candidate’s pleadings. In this matter, the candidate submitted a designating petition containing 9,551 signatures for a Civil Court Judge race in Brooklyn; four thousand valid signatures were required for the petition to be valid. The BOE found 6,501 of the signatures on the candidate’s petition to be invalid, leaving her nearly 1,000 short of the minimum required. In her validating petition, the candidate alleged that the BOE incorrectly invalidated hundreds of signatures and potentially more than 1,000. In addition to other vague allegations, the candidate asked the court to conduct a line-by-line review of the entire petition to see whether the BOE had made enough mistakes to allow her petition to meet the Election Law’s minimum number of valid signatures. The trial court declined to take up this task and found that the candidate had failed to plead with particularity. This decision by the trial court to dismiss the candidate’s proceeding to validate was affirmed unanimously by the Second Department.
Candidates, campaign staff and party leaders can learn a number of valuable lessons from these two decisions.
First, don’t forget the very tight statute of limitations for proceedings to validate a petition. From the moment a Board of Elections issues its final determination of invalidity, the clock is running. Candidates and campaigns that wait to retain counsel, or that spend too much time assessing the potential for a proceeding to validate to succeed, risk finding themselves time-barred before a court ever hears the merits of their case.
Second, vague allegations do not work. Courts are not going to do the work for you. A candidate who asks a judge to comb through thousands of signatures and find enough errors to validate a petition clearly does not understand what is legally required in a proceeding to validate.
This means preparation has to start well before a BOE issues its final determination. By the time specific objections are filed — which will identify the precise signatures at issue — campaigns should already be reviewing their petition and preparing for court. The BOE’s staff report provides further notice of where the petition’s problems may be. Candidates who wait until after the BOE’s final determination to start that analysis will almost certainly run out of time.
Finally, these two decisions should serve as a reminder of why experienced election counsel matters. Election Law proceedings are technical, fast-moving, and allow little room for error. The candidates in both of these cases lost not because their substantive arguments were necessarily wrong, but because they did not present those arguments in the way the law requires and within the time the law allows.
