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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Jeffrey L. BARAN, Petitioner-Respondent, v. Joel A. GIAMBRA, Robert E. Davis, as Chairman of and on Behalf of Erie County Republican Committee, Erie County Republican-Finance Committee and Erie County Republican-Housekeeping Committee, and William P. Murphy, as Treasurer of and on Behalf of Friends of Joel Giambra, Respondents-Appellants.

Decided: August 18, 1999


 In this special proceeding commenced pursuant to article 16 of the Election Law, Supreme Court concluded that Election Law § 2-126 was violated by expenditures made by the Erie County Republican Committee (ECRC) on behalf of its endorsed candidate for the office of Erie County Executive before petitioner filed a designating petition seeking the Republican Party's nomination.   We disagree.   Election Law § 2-126 prohibits a political party from making contributions to candidates “to be voted for at a primary election”.   Until petitioner filed a designating petition, which triggered the necessity for a primary election, the endorsed Republican candidate was not a person “to be voted for at a primary election”;  thus, expenditures made on his behalf by the ECRC prior to that time did not violate Election Law § 2-126.   Further, the expenditures made by the ECRC before petitioner filed a designating petition were not made “in aid of the designation or nomination” of the endorsed candidate against a primary challenger (Election Law § 2-126).   Consequently, we modify the order by vacating the first, third, fourth, fifth and sixth ordering paragraphs, and we remit the matter to Supreme Court to determine whether any funds were expended on behalf of the endorsed candidate after July 13, 1999, the date on which petitioner's designating petition was filed.

 We reject the contention of respondents that Election Law § 2-126 unconstitutionally inhibits their First Amendment rights.   Election Law § 2-126 serves a substantial government interest in removing both actual corruption and the appearance thereof from the electoral process (see, Buckley v. Valeo, 424 U.S. 1, 26-29, 96 S.Ct. 612, 46 L.Ed.2d 659).   The statute does not prohibit a party's endorsement of a candidate for nomination (cf., Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222-223, 109 S.Ct. 1013, 103 L.Ed.2d 271).

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings.