Why Frank MacKay Should Worry About Tim Wu

There is a lot of talk about whether Gov. Andrew M. Cuomo will challenge the eligibility of his Democratic Party primary opponent, Fordham Law School Professor Zephyr Teachout. 

Scouring through designating petitions to identify grounds for knocking an opponent off the ballot is fair game and common practice in New York. According to the New York City Bar Association, our state has the dubious distinction of being home to more election law litigation than any other in the nation. In fact, when the governor’s father was first running for re-election in 1986, he dispatched a virtual army of volunteers to successfully knock lieutenant governor candidate Abe Hirschfeld off the ballot, enabling his chosen running mate Stan Lundine to run unopposed in the Democratic primary.

Of course New York is not the only state where candidates challenge their opponents’ petition signatures. There was an insurgent candidate for the State Senate in Illinois who won the Democratic Party primary after knocking all of his opponents off the ballot—including the incumbent. He is now President of the United States.            

But challenging a candidate’s residency is more complicated than invalidating flawed signatures. New York courts have routinely held that candidates and voters are entitled to have multiple residences. In a decision from several years ago that is fairly typical, a candidate for Kings County Surrogate’s Court judge was renting an apartment in Brooklyn while her spouse and children were living in a house in New Jersey. The court said that multiple homes were acceptable for “modern twenty-first century couples.” Likewise, the appellate court sitting in Albany—the venue of any challenge against a statewide candidate—has ruled that voters who spend much of their time in Manhattan or Brooklyn may vote from their “second homes” in rural New York. The controlling principle is that a claimed residence, for either candidates or voters, must be legitimate—a bona fide place where they hang their hat. 

Regardless of whether the governor brings a case against Teachout, her running mate for lieutenant governor, Columbia Law School Professor Timothy Wu, runs independently of her in the Democratic primary. As some have wondered, what if Wu beats Cuomo’s choice for lieutenant governor, former congresswoman Kathy Hochul? Although this scenario has been analyzed by the media, one possible dynamic that could come into play has been overlooked: the potential demise of the Independence Party. 

Assume Wu wins the Democratic primary for lieutenant governor. Hochul will still be the governor’s running mate on the Working Families Party and Independence Party lines. New York State’s fusion laws allow a candidate’s vote totals from the various party lines to be added together, but only if the candidates are the same. In this hypothetical, however, the Democratic Party ticket (Cuomo-Wu) would actually be competing for votes against the WFP and Independence candidates (Cuomo-Hochul). Because this conflict would interfere with the governor’s effort to pile up a record vote, Cuomo might decide to persuade Hochul to drop out in favor of Wu. 

Hochul could remove herself as a candidate for lieutenant governor only by moving out of the state or running for another office. Assuming Hochul, a lawyer, were to remain a New Yorker, she could, as others routinely do, run for Supreme Court Justice on the Working Families line. The WFP would then nominate Wu as the governor’s running mate. As a candidate for the Supreme Court, Hochul would be ineligible to run for lieutenant governor on any line. The result: the Independence Party would be left without a candidate for lieutenant governor. And, without a candidate for lieutenant governor, the Independence Party would be unable to run a gubernatorial candidate because New York’s constitution requires a joint ticket. 

This scenario could endanger the party’s very existence. To retain party status in New York, the Independence Party must garner 50,000 votes for governor. With the stakes so high in this fictional predicament, the party would have two options. It could nominate Wu, but the odds are that he would not consent. Or, as is more likely, it could nominate another candidate for lieutenant governor. Since this new ticket would be different than Cuomo-Wu, its votes would not be added to the governor’s Democratic and WFP totals, and the Governor would no longer have an incentive to campaign on the Independence line. Under these circumstances, it would be an open question as to whether the Independence Party ticket could get 50,000 votes. It is more likely that it would suffer the same fate as the Liberal Party did in 2002, and lose the rights and privileges of a recognized political party.

So while Gov. Cuomo is thinking about Professor Teachout, Independence Party Chair Frank McKay ought to be thinking about Tim Wu. Or, of course, he could simply bemusedly thank me for my advice.

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Jerry H. Goldfeder, a regular on-line columnist for City & State, is Special Counsel specializing in election law at Stroock & Stroock & Lavan LLP.  He teaches Election Law at Fordham Law School and the University of Pennsylvania Law School, and is a regular columnist for the New York Law Journal (“Government and Election Law”) and Law.com (“Law and Politics”). He previously served as Special Counsel to then Attorney General Andrew M. Cuomo, and does not represent any of the candidates for governor or lieutenant governor this year.