Lawyer Jim Walden wants to run for mayor in November on neither the Democratic nor Republican lines, which is fine, as he is free to create a separate ballot line. However, Walden wants to use the confusing and discredited Independence Party name, which is explicitly barred by state law. Sorry, Walden will need to choose another name.
Instead, Walden filed a lawsuit against the state and city boards of elections to let him collect signatures for the Independence Party beginning on April 15 and to submit at least 3,750 valid signatures in May.
In a hearing on Friday, Brooklyn Federal Judge LaShann DeArcy Hall badly misinterpreted state election law and seems ready to grant Walden his wish. Rather, she should throw out his case and Walden should pick a different name, something like the Neighborhood Preservation Party, which a candidate we remember used in 1977.
The law says that party names cannot “include the words ‘American’, ‘United States’, ‘National’, ‘New York State’, ‘Independence’ or ‘Independent’, or ‘Empire State.” What DeArcy Hall got wrong was declaring that the prohibited list does not apply to what are known as “independent bodies,” when a candidate creates a ballot line just for a single election, which is what Walden is seeking.
DeArcy Hall probably got that idea from the Jan. 15 brief by Walden’s lawyer, John Cuti. But Cuti realized his error in his Feb. 7 reply brief, in a footnote on page 3. He also told the judge when he stood before her that he got it wrong. But she didn’t listen. She says that Cuti was right the first time and announced from the bench “the barring of the Independence Party under 2-124 [the section of state law], on its face, is limited to political parties, not independent bodies.” Not so, your honor.
The correct part of the law is 6-138, which is clear: “The name … selected by a candidate … shall also conform to the requirements of this chapter with respect to names or emblems permitted to be selected by a party.” Ergo, the no-no words aren’t allowed for “independent bodies.” End of case. Should Walden submit using the name Independence Party, the city Board of Elections should tell him to pick another name and, if he doesn’t, make up a substitute for him.
Should DeArcy Hall wrongly command the BOE to not reject his petitions and force the agency to accept the petitions, someone can sue in state court, which will get it right.
DeArcy Hall ordered the BOE to respond today by 2 p.m. and set another hearing for tomorrow at 3 p.m. She should realize her error and toss the case.
Walden should have sued the state, not the state and city BOEs. And he should have sued under a First Amendment claim. But he didn’t do so. The state BOE has no role in any of this and NYC BOE just handles the paper.
As for DeArcy Hall, she kept saying that “I resolve controversy.” Here there is no controversy. Walden has no case, as his own lawyer now recognized that the prohibited words are the prohibited words. But there is a real controversy before DeArcy Hall in John O’Hara’s lawsuit against the city for now-dead Brooklyn District Attorney Joe Hynes’ railroading of O’Hara. O’Hara sued eight years ago and is still waiting for depositions to be taken. Judge, get that case moving.