County commissioners disagree

WESTERLO — Long-time Republican Susan Walter had planned on running for the town board on the Democratic and Conservative lines, but that may no longer be possible.

The county’s two election commissioners — one, a Democrat; the other, a Republican — are split on whether or not she is eligible to run on a Democratic line. They will meet with a judge next Tuesday, Oct. 21 to make their cases.

Walter has filled out the paperwork for becoming a Democrat, but will technically still be enrolled as Republican for the Nov. 4 election. Between being appointed by the Democratic town board in April, and hoping Hillary Clinton would end up on the presidential ticket, she figured it would be a good idea to switch parties, she said.

Democrats outnumber Republicans nearly 3 to 1 in Westerlo, and, for decades, the town has been run by a largely Democratic majority.

Both candidates are planning to run on opposite party lines: Walter, a Republican, was nominated by the Democrats this fall; opponent Clinton “Jack” Milner, long a Democrat, is running as a Republican.

Milner had collected 148 signatures in an effort to run as an independent. However, because of flawed paperwork challenged by the Democrats, the board of elections denied his petition, as he did not have the required wording on each sheet of petitioners’ signatures. Milner then decided to run as a Republican, and was nominated by a newly constituted GOP committee at the Sept. 12 caucus.

Now, it’s Walter who faces a hurdle to get a major party line on the ballot.

When a candidate like Walter is nominated by a party she is not enrolled in, that candidate is required by law to file a certificate of acceptance for her nomination. Westerlo’s Democrats nominated Walter at their Aug. 20 caucus, but she never filed her certificate.

“I understand you’re supposed to get a form saying that I’m accepting the nomination,” Walter said this week. “I haven’t gotten that in the mail yet, but I know [Westerlo Supervisor Richard] Rapp is looking into that. I’m waiting to hear from him.”

The last date to file a certificate of acceptance was Sept. 19; the last day to file a certificate of nomination was Sept. 16.

Conflicting views

While Walter is set to run as a Conservative, her ability to run on the Democratic line fell into the hands of the two commissioners of the Albany County Board of Elections: Republican John Graziano, and Democrat Matthew Clyne. Graziano says she can’t run as a Democrat; Clyne says she can.

“When you’re not a member of the party that nominates you, and you don’t accept from another party that you’re on their line, my position is that it’s null and void,” said Graziano. “That’s what the law says. She is a registered Republican, but she got the Democratic nomination. She needed to file an acceptance, and she didn’t do it,” he said.

Graziano said that, though Walter has not yet filed acceptance for her nomination as a Democrat, she has filed for acceptance to run on the Conservative line.

“By September 16, they have to file a form that says, ‘We had this caucus and decided to nominate so and so,’” Graziano went on. “So, essentially, you have three days after the last day of filing a caucus nominee. [Clyne] says, because nobody filed a complaint, it’s not a problem. But who would do that before the filing date? Nobody.”

“Under the statute,” Clyne said, “because she is not an enrolled member of the party yet, she had to file a certificate of acceptance. If you don’t file a certificate of acceptance under those circumstances, then the certificate of nomination is not valid,” he agrees.

But this issue didn’t come to Clyne’s attention until well after the filing date, he said. “There were no objections filed to it, nor was any invalidation proceeding commenced, so, my position was that her nomination should stand,” said Clyne.

According to Robert Brehm, deputy director of public information services for the New York State Board of Elections, “The Election Law says that, if you’re not an enrolled member of that party, for a position other than judge, then you have to file an acceptance and nomination by certain dates or it’s null and void.”

So, he said, “A candidate that is not an enrolled member of the party needs to file an acceptance by the deadline, and the board’s responsibility is to make sure that they have all the necessary parts.”

“Interestingly enough,” said Graziano, “me and [Clyne] have been fighting over this for a long time, and we’ve been trying to get it resolved, but we’ve been unable to, and we expect to have to go to court because he has taken a position that is different from mine.”

If the commissioners had agreed on the issue, Walter’s nomination would stand, “but we have a disagreement on the effect of this thing,” Clyne said. “If somebody had objected, there’s no question that [her nomination] would have been thrown out.”

Clyne anticipates that this dispute will lead to litigation. “It would go to the Supreme Court,” Clyne said, though it will be decided on the lowest level in the State’s three-tiered court system.

Graziano expects this to go to court as well. “My fellow commissioner says that, if there’s no complaint made, then you can’t challenge it. Well, I’m saying that’s not true,” he said.

“The commissioners,” Brehm said, “have the responsibility to conduct the election and certify the ballot, and it takes both commissioners working together to accomplish that.”

The law is the law, said Brehm, “but the commissioners have to use their best judgment to apply the law. When they have a disagreement, they have to work through that and come to an agreement as to how to proceed. It’s not a process that happens on its own; it happens to be a process where it takes the two of them working together to come up with the best solution,” he said.

“The ballot has to be certified,” said Graziano. “If [Clyne] wants [Walter] on, and I want her off, we need somebody else to make that determination.” That somebody else is a Supreme Court judge.

“Not every issue is decided by somebody making a complaint,” Graziano concluded, “and this is one of those issues.”