IN RE: Cara J. CASTRONUOVA (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Justin Corcoran, J.), entered May 10, 2024 in Albany County, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Election Law § 16–102, to declare valid the designating petition naming petitioner as the Republican Party candidate for the public office of Member of the United States Senate in the June 25, 2024 primary election.

On April 4, 2024, petitioner filed a designating petition containing 15,727 signatures – 727 more than the required 15,000 – with respondent New York State Board of Elections seeking to be nominated as the Republican Party candidate for the public office of Member of the United States Senate in the June 25, 2024 primary election.  Respondents Anthony Nunziato and Carl C. Aliviado Jr. subsequently filed general and specific objections challenging approximately 2,650 signatures on petitioner's designating petition and, upon review, the Board found that 2,029 signatures were invalid, leaving petitioner with 13,698 signatures – 1,302 signatures short to receive the designation.¹  Accordingly, the Board issued a determination invalidating petitioner's designating petition.  Following the Board's determination, petitioner commenced this proceeding pursuant to Election Law § 16–102 seeking to declare her designating petition valid.  Following a hearing, Supreme Court dismissed the petition, determining, as relevant here, that petitioner was required to prove that at least 1,302 of the signatures deemed invalid by the Board were valid and that she established that only 310 of those signatures were valid, which resulted in only 14,008 valid signatures.  Petitioner appeals, and we affirm.

As an initial matter, petitioner concedes that Supreme Court's decision and her arguments raised on appeal are based upon “uncontroverted materials” and “uncontroverted facts” and are thus limited solely to issues of law.²  That said, petitioner's various constitutional claims cannot succeed.  Her generalized constitutional claims under the Seventeenth Amendment of the U.S. Constitution – to wit, that the signature requirements of the Election Law deprive the electorate of their voting and associational rights – fail because she did not raise this or any of her other equal protection and due process constitutional claims in her verified petition (see Matter of O'Connor v. Sharpe, 208 A.D.3d 1458, 1462, 174 N.Y.S.3d 489 [3d Dept. 2022]).

Supreme Court ruled that petitioner had established only 14,008 valid signatures, leaving petitioner 992 signatures short of the required 15,000 signatures (see Election Law § 6–136[1]).  Petitioner argues that Supreme Court erred in finding that 437 of the signatures on the designating petition were invalid because those signers omitted their town or city of residence as is strictly required by Election Law § 6–130 (see Matter of Salka v. Magee, 164 A.D.3d 1084, 1085–1086, 83 N.Y.S.3d 720 [3d Dept. 2018], lv denied 31 N.Y.3d 914, 2018 WL 4102400 [2018]).  Petitioner reasons that omission of such information from the signers’ addresses does not serve as a permissible basis to invalidate signatures on the designating petition (cf.  Molinari v. Powers, 82 F.Supp.2d 57, 63, 72–77 [E.D.N.Y.2000]);  however, we do not reach this issue because, even if petitioner were to prevail on this claim, there would still be insufficient signatures to validate the petition (see Election Law § 6–130[1];  see generally Matter of De Bruin v. McGee, 40 N.Y.2d 909, 910, 389 N.Y.S.2d 357, 357 N.E.2d 1011 [1976]).  In any event, were we to address this claim, we would find it to be without merit, as “we have already found that such a requirement [that a signer provide their complete address including the town or city in which they live] ‘does not restrict access to the State ballot or place an unconstitutional burden on the candidates’ 1st and 14th Amendment rights to associate’ ” (Matter of Stark v. Kelleher, 32 A.D.3d 663, 665, 820 N.Y.S.2d 193 [3d Dept. 2006], lv denied 7 N.Y.3d 707, 821 N.Y.S.2d 812, 854 N.E.2d 1276 [2006], quoting Matter of Zobel v. New York State Bd. of Elections, 254 A.D.2d 520, 522, 678 N.Y.S.2d 794 [3d Dept. 1998];  see Matter of Stoppenbach v. Sweeney, 98 N.Y.2d 431, 433, 749 N.Y.S.2d 210, 778 N.E.2d 1040 [2002];  Matter of Canary v. New York State Bd. of Elections, 131 A.D.3d 792, 793 [3d Dept. 2015]).  In sum, despite petitioner's zealous advocacy for a policy change to the petitioning process, she has failed to sufficiently allege or demonstrate that the designating petition contained the requisite number of signatures and, accordingly, we are satisfied that the petition was properly deemed invalid.³  In view of the foregoing, we need not address any of petitioner's remaining contentions to the extent they are properly before us.

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   In the interim, Nunziato, Aliviado and respondent Michael D. Sapraicone, another Republican Party candidate for the public office of Member of the United States Senate, commenced a related proceeding pursuant to Election Law § 16–102 seeking to invalidate petitioner's designating petition on numerous grounds, including fraud.  Supreme Court consolidated that proceeding with the instant proceeding and, following an April 29, 2024 hearing, rejected petitioner's counterclaims pertaining to, among other things, the timeliness and form of the general and specific objections that respondents filed with the Board.  The invalidation petition in that proceeding, however, was subsequently withdrawn following the Board's determination invalidating the designating petition.

2.   To the extent that petitioner, in her brief, raises challenges to any of Supreme Court's findings relative to the invalidating petition commenced by respondents and her counterclaims asserted in response thereto, such arguments are academic and need not be addressed because the invalidation petition was withdrawn.  In addition, by not adequately raising them in her brief, petitioner has abandoned any of her claims relative to the general and specific objections filed with the Board, including her claims that the general objections were the object of forgery, that the general and specific objections were untimely and that the general and specific objections were facially deficient pursuant to Election Law § 6–154(3).

3.   With regard to signatures that were found to be invalid because the signers were purportedly not registered or enrolled in the Republican Party or provided a wrong or incorrect address, petitioner either failed to preserve an objection below or abandoned a challenge to these invalidated signatures by not raising any specific arguments relative thereto in her brief (see Matter of Silano v. Oxford, 10 A.D.3d 466, 467 n., 780 N.Y.S.2d 744 [3d Dept. 2004], lv denied 3 N.Y.3d 603, 782 N.Y.S.2d 697, 816 N.E.2d 570 [2004]).

Per Curiam.

Garry, P.J., Pritzker, Ceresia, McShan and Powers, JJ., concur.