Relates to the order of candidates appearing on the ballot for special elections to fill a vacancy in NYC

Summary of Provisions This legislation provides that the order of candidates nominated by independent nominating petitions to appear on the ballot shall be determined by a drawn lot.

Section 116 provides two methods for arranging political candidates on the ballot in New York, one for the candidates of political parties, the other for the candidates of independent bodies. Pursuant to Section 116, party candidates are listed before independent body candidates, and are positioned in descending order based on their performance in the preceding gubernatorial election. N.Y.Elec.Law 7-116(1). While Section 116 directs that the independent bodies follow the parties, it does not prescribe a particular method for arranging these candidates, and leaves the order of placement to the discretion of the State. Id. § 7-116(2). Currently, in City of New York Special Elections, the Board of Elections uses a so-called "first come, first serve" policy to determine ballot position for candidates nominated by independent nominating, petitions.

This proposed legislation seeks to ensure that the Independent Nominating Rules for Special Elections in the City of New York require that ballot position be determined by a lottery. This legislation would do away with the current "first come first serve rule{1} which awards fist ballot position to the candidate who is first to file nomination petitions with the Board of Elections. Reform is needed because candidates supported by the dominant political party or wealthy special interests will, more often than not, have a financial advantage over candidates no affiliated with the dominant political party or wealthy special interests. Pursuant to the first come, first serve rule" the amount of time is takes for a candidate to collect petitions is the controlling test necessary to be awarded first ballot position. Ballot position, under the current law, is therefore based on an arbitrary and capricious test which favors political parties and wealthy special interest. Passage of this legislation will make this position of the electoral process transparent and advance the mandatory non-partisan goals required the the New York City Charter in the event of a special election to fill a vacancy.

Non-Partisan Special Election Required to NYC

New York City Charter was amended in 1988 to require when a New York City Council seat becomes vacant during the first three years of a four year term, nominations to fill such vacancy shall be made by "independent nominating positions" See. New York City Charter Section 25(b)(7). In simple terms, the New York City Charter prohibits any candidate running in a special election to fill a city council vacancy from running on a traditional political party line, for example, the Democratic Party, Independent Party, etc, Frank Mauro, Research

Director for the 1988 NYC Charter Review Commission described the rationale for non-partisan elections as follows; "The purpose of the non-partisan special election was to dilute the power of the party leaders and to make it easier for those not chosen by the leaders to qualify for the ballot" The sponsor believes that creating an open lottery the determine ballot position in special elections would be consistent with the 1988 amendments to the New York City Charter promoting non-partisanship.

In Oliver v. Board of Elections, 103721/2012, the Board of Elections stated in a brief, "There is only one instance when the order of candidates nominated by independent nominating petitions can seek a drawing by lot Section 7-116(2) of the Election Law provides that when two or more candidates are nominated by one party or independent body, for an office to which to or more persons are to be elected, then and only then may a candidate in the contest request that the order of names of the candidates for the office be determined by lot. That factual situation is not present in the Special Election; there is only one vacancy one Council seat - to be filled at the Special Election". Clearly, an amendment to the New York State Election Law is required to do away with the "first come, first serve rule promulgated the the local Board of Elections.

Ballot order impacts the right to vote. Positional bias directly dilutes the vote for those supporting candidates who are financially disadvantaged by placing a thumb on the scale of fairness. The "first come, first serve" rules discriminates against candidates not supported the party bosses or wealthy special interest. The current rule obviously advances no legitimate state interest and can be remedied as in order areas of the New York Election Law by the use of lot drawings to determine ballot position. "Substantial empirical evidence points to the conclusion that ballot order effects, particularly in low salience elections, are both statistically significant and large enough in magnitude to alter the outcome of the elections. "Cf. Election by Lottery: Ballot Order, Equal Protection and the Irrational Voter by Laura Miller, J.D. Candidate, New York University school of Law, 2010, Stanford University 2007; See, New Alliance Party v. Board of Elections. 861 F. Supp. 282 (1994); Ho, Daniel E. and Imai, Kosuke, The Impact of Partisan Election Regulation: Ballot Effects from the California Alphabet Lottery. 1978-2002 (October 28, 2004). Princeton Law & Public Affairs Paper No. 04-001: Harvard Public Law Working Paper No. 89. Available at SSRN: http://ssrn.com/abstract=496863 or http://dx.doi.org/102139/ssrn.49683.

Legislative History: None

Fiscal Impact: None

Effective Date: This amendment shall take effect immediately.

{1} Rule 3-A of the Independent Nominating Petition Rules for 2012 Special Elections, which encompasses the "first come, first serve" rule provides:

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(1) The order of ballot for a SPECIAL ELECTION (held at a time other than the General Election) shall be determined for Independent Nominations by the first candidate to file a cover sheet, if required, and a sufficient number of signatures to qualify that candidate to appear on the ballot

(2) The order of ballot for the GENERAL ELECTION shall be determined for Independent nominations by the first candidate for the highest office for which an independent nominating petition has been filed (following the customary order of offices on the General Election Ballot) appearing on that General Election ballot to file a cover sheet, if required, and a sufficient number of signatures to qualify that candidate to appear on the ballot.