Procedural Pitfalls in Election Litigation: What Can Be Learned from Recent NYS Appellate Division Decisions
By: Joseph T. Burns
In a little more than a month, New Yorkers will go to the polls to vote in the 2026 primary election. Ballot access litigation over the 2026 primary election candidates has nearly concluded. Election-related litigation in New York has a well-deserved reputation for being notoriously complex. Recent decisions from the Appellate Division, Second Department, reaffirm the idea that election-related litigation is full of procedural pitfalls that inexperienced lawyers must learn to navigate.
For instance, proceedings to validate or invalidate a candidate’s designating petition must be served on Respondents in a manner directed by the Court as set forth in an Order to Show Cause. Strict compliance with the method of service dictated by the Order to Show Cause is required.
The Second Department reaffirmed this requirement last week in Matter of Grillo v. Speranza and Matter of Nichols v. New York City Board of Elections. In Matter of Grillo, the Order to Show Cause directed that the Respondent-candidate be served by affixing a copy of the Order to Show Cause and supporting papers to the inner or outer door of his residence and by mailing a copy of these documents to his residence via the U.S. Postal Service. The Petitioner, however, sent these documents to the Respondent-candidate via FedEx. The Second Department determined, however, that this seemingly insignificant deviation from the service requirements of the Order to Show Cause was, in fact, a jurisdictional defect and upheld the lower Court’s decision to dismiss the proceeding.
In Matter of Nichols, the Second Department addressed a similar issue. The Order to Show Cause in that case directed that the Board of Elections be served by leaving a copy of the Order to Show Cause and supporting papers at the Board’s office. The Board, however, was served via overnight mail. The trial court dismissed the proceeding due to the Petitioner’s failure to strictly comply with the service requirements set forth in the Order to Show Cause. As with the decision in Matter of Grillo, the lower Court decision was unanimously affirmed by the Second Department.
Failing to serve Respondents in the manner directed by the Order to Show Cause isn’t the only procedural defect addressed by the Second Department last week. The Court also tackled the issue of timely service in election-related litigation.
In Matter of Lemma v. Michos, the Second Department reaffirmed the Election Law’s strict requirement that service on all necessary parties must be completed within the statute of limitations set forth in the Election Law. The statute requires that in proceedings to invalidate a designating petition, service must be completed within fourteen days after the last day to file a designating petition. In Matter of Lemma, the Order to Show Cause and its supporting papers were sent to the Respondent-candidate via UPS on the last day to commence a proceeding to invalidate. They were received the next day by the candidate. As it has repeatedly done in similar cases, the Second Department determined that this was untimely service, reversed the decision of the trial court, and dismissed the proceeding.
In Election Law cases, what appears to be an insignificant procedural defect is often something much larger and consequential. Failing to strictly follow service requirements or missing a deadline by a day can mean an otherwise solid case will never be heard on the merits. And because of the Election Law’s short and unforgiving statute of limitations, there is usually no time for a Petitioner to file a new proceeding.
Engaging in election-related litigation in New York State is not for hobbyists or the inexperienced. Many candidates, objectors and party chairs have seen their cases dismissed due to easily avoidable procedural missteps. Those who anticipate being involved in election-related litigation would be wise to retain experienced counsel early to ensure that these issues are avoided.
