Litigating Petition Fraud in New York State: What Candidates, Campaign Staff, Party Leaders, and Attorneys Need to Know
By: Joseph T. Burns
A Rockland County Supreme Court Justice recently issued a decision in an Election Law proceeding where it was argued that a designating petition of a Democratic candidate for Congress should be invalidated because it was “permeated with fraud.” While the court found that a number of signatures on the petition were in fact fraudulent, it did not find that the petition was permeated with fraud and order the invalidation of the petition. The decision provides important guidance to candidates, campaigns, and party leaders on how the courts view petition fraud; it also provides lessons to attorneys litigating issues of petition fraud.
The proceeding arose from a challenge to designating petitions filed on behalf of a Democratic candidate for Congress in New York’s 17th Congressional District. The Petitioners, an objector and opposing candidate, argued the designating petition was “permeated with fraud.” They argued that the court should apply the standard of “a preponderance of the evidence” instead of “clear and convincing evidence” to determine if the petition was, in fact, permeated with fraud. The court, however, was unpersuaded and noted that for matters of petition fraud, it is well settled that “clear and convincing evidence” is the appropriate standard of review.
The candidate needed 1,250 valid signatures of enrolled Democrats in the 17th Congressional District for her designating petition to remain valid. Almost 2,900 signatures were filed on behalf of the candidate; the New York State Board of Elections determined that 145 of those signatures were invalid for reasons other than fraud. The Petitioners and the Respondent candidate agreed to stipulate that 829 signatures were invalid because they were fraudulently obtained, leaving the designating petition with over 2,000 valid signatures, well above the minimum number required.
But the Petitioners argued that such a large number of fraudulent signatures means the petition is permeated with fraud and should be invalidated, even if it contained enough valid signatures to meet the minimum number required by the Election Law for a candidate for Congress.
Normally, a designating petition will only be considered to be permeated with fraud if the fraudulent signatures were witnessed by the candidate, member of the candidate’s immediate family, or a high-level individual in the candidate’s campaign, such as a campaign manager. The fraudulent signatures at issue in this proceeding, however, were not witnessed by the candidate or anyone close to the candidate. In fact, the fraudulent signatures were witnessed by witnesses who were hired by a consultant to the campaign to circulate petitions.
While no nexus could be established between the witnesses of the fraudulent signatures and the candidate, the Petitioners argued that the candidate should be held to a negligence standard as to whether she knew or should have known about the existence of fraudulent signatures on her designating petitions.
The Petitioners further argued that if 25% of the total number of signatures on a petition are found to be fraudulent, the petition should be considered to be permeated with fraud and invalidated. The attorney for the candidate argued that that line should be drawn at 50% of the total number of signatures.
But the court ultimately decided not to find that the petition was permeated with fraud. First, it noted that there was not enough fraud found in the petition to meet the Petitioners’ 25% standard. Next, the court found that no nexus or connection had been established to show that the candidate participated in or knew of the fraud in her designating petition. While the petition circulators who submitted fraudulent signatures were compensated by the campaign through a consultant, the court found that that was not sufficient to establish enough of a connection to the candidate to find the petition was permeated with fraud.
While the court refused to invalidate the petition, it is noteworthy that in the decision the court referred the matter to prosecutors for investigation and possible criminal prosecution.
The decision should serve as a reminder to candidates, campaign staff, and party leaders that courts are unwilling to find a petition is permeated with fraud when the candidate cannot be shown to have known about the fraud, personally witnessed fraudulent signatures, or participated in the fraud. Courts appear unwilling to relax this well-established standard.
But candidates, their family members, and high-level campaign staff are held to a higher standard than either volunteer or paid petition circulators. Smart campaigns would be wise to limit the role or involvement of a candidate or the candidate’s family in the petition gathering process.
Finally, the decision should remind those representing candidates or party leaders of the high bar for establishing that a petition is permeated with fraud. While courts may be willing to invalidate all of the signatures obtained by one petition witness when it can be established that a witness obtained fraudulent signatures, unless those signatures would bring a candidate below the minimum number of required signatures, the petition will remain valid.
Candidates, party leaders, and their attorneys should be judicious on when to initiate proceedings to invalidate a petition that are based on theories of fraud. These Election Law proceedings can be expensive, time consuming, and cause political blowback, especially when a court declines to invalidate an opponent’s petition.
For more information about this topic, please contact New York election lawyer, Joe Burns, or your personal Holtzman Vogel contact.
