Senate Bill S7952

                                BILL NUMBER:S7952

TITLE OF BILL:  An act to amend the election law, in relation to the
order of candidates appearing on the ballot for special elections to
fill a vacancy in New York city

Purpose:  To provide for transparency and fairness in the way ballot
position is determined in special elections in New York City; and to
promote non-partisanship in such elections;

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:

A3


(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.