The Buffalo News by Robert J. McCarthy - April 18, 2011
Jockeying for N.Y. ballot edge, party bosses shuffled deck eight times in '10 -- all legally
On the morning after last September's Republican primary, the New York GOP faced a big problem. Rick Lazio had just lost the Republican nomination for governor to Carl P. Paladino but remained on the general election ballot by winning the Conservative primary. If Paladino was to stand any chance of defeating Democrat Andrew M. Cuomo in November, Republicans had to somehow get the Buffalo developer onto the Conservative line. After all, no Republican has won statewide office without that minor party's support since 1974. Meanwhile, Conservative leaders were fretting over their very existence. After the overwhelming Lazio defeat in the Republican primary, they saw a Paladino substitution as their only path to the 50,000 votes needed in the general election to preserve their permanent spot on the ballot. So Republican and Conservative leaders turned to the judicial ballot process to solve their joint problem. They exploited an obscure section of state election law that allows a candidate to withdraw at a late date only by dying, moving to another state or obtaining a judicial nomination. After days of negotiations, Republican and Conservative leaders persuaded Lazio -- a lawyer eligible to be a judge -- to decline the minor-party line he had just won. They then manipulated a GOP judicial nominating convention to make the former Long Island congressman a candidate for State Supreme Court in the Bronx -- a Democratic stronghold where Republicans are a rare species. It's all perfectly legal. And this political manipulation occurs more often than you may think. Eight times in the 2010 election, major- and minor-party leaders looking for political advantage shuffled the judicial ballot like a deck of cards. In machinations with tangible political consequences, bosses of several parties -- often acting together -- plunked candidates into judicial races after getting them to withdraw as candidates for governor, lieutenant governor, attorney general and state senator. Now political observers and participants alike say the ballot for the state's judicial branch of government has devolved into a dumping ground to serve the aims of party bosses. "It plays into the notion that the New York trial court bench remains a political football, a chit to be used by political players to manipulate either the race for the bench itself or other races," said James J. Sample, associate professor at Hofstra Law School and a longtime critic of the state's judicial election system. "This sequence reflects the fact that the New York trial bench, which should be above the fray, is as political as any trial court bench in America." Former Erie County District Attorney Edward C. Cosgrove, now a prominent trial lawyer, for years has watched party leaders ratchet up their exploitation of the judicial ballot. "The problem is, ... party heads use the third branch of government to game the system," he said. "That's a shame."
A 'charade,' Lazio says
Even Lazio, who in 2000 ran for the U.S. Senate, says that it is too easy for party tacticians to manipulate the judicial ballot. He calls it a "charade." "There is no valid political reason why a candidate who happens to be a lawyer can get off the ballot while someone who is not a lawyer cannot," he said, adding that better ways to allow candidates to withdraw should be devised. Lazio had plenty of company on the 2010 judicial ballot from people without the faintest desire to serve on the bench. They included:
* James P. Domagalski, the former Erie County GOP chairman, who lost his September primary bid for the 59th Senate District to fellow Republican Patrick M. Gallivan. Since Domagalski had previously gained the Conservative and Independence nods, GOP leaders feared he could diffuse the vote and produce a Democratic victory.
With control of the State Senate hanging in the balance, a Conservative judicial nominating convention snapped to the direction of party leaders, and Domagalski -- an Orchard Park resident with scant knowledge of neighborhoods such as Fort Hamilton or Park Slope -- withdrew from the Senate race to become a Conservative judicial candidate in Brooklyn. He was soundly defeated, but Gallivan prevailed in Western New York. And the GOP regained control of the Senate.
* The Independence Party, at the time the top minor line on the ballot, found itself stymied at its spring 2010 convention because none of the five Democratic candidates for attorney general had emerged as the front-runner. So Independence leaders -- looking to go with a winner Ô nominated a little-known Long Islander, Stephen J. Lynch. A lawyer, he was conveniently eligible for a judicial slot after the Democratic primary produced a winner.
That's exactly what happened. Soon after the Democratic primary, Independence leaders substituted State Sen. Eric T. Schneiderman, who was the front-runner for the November general election, as their candidate for attorney general. Now the Independence Party had its nominee in the state's top legal post. The party also prevailed upon Democrats in the Rochester-based Seventh Judicial District to nominate Lynch, a Supreme Court clerk from Suffolk County, as their candidate for judge. That forced the Republican candidate there -- incumbent Henry J. Scudder -- to suddenly scramble for funds for a race in which he previously had no opponent.
* When the Taxpayers Party petitioned its way onto the ballot, nominating Paladino for governor, it also nominated a lawyer -- former New York City Councilman Thomas V. Ognibene -- for lieutenant governor. But to consolidate Paladino votes in the general election, the party substituted Chautauqua County Executive Gregory J. Edwards, winner of the GOP primary for the post. Conservative leaders, meanwhile, directed the party's judicial nominating convention in the Bronx -- hardly a Conservative stronghold -- to nominate Ognibene there for Supreme Court.
* The Working Families Party, which was lining up behind Cuomo early in 2010, was spurned by the then-attorney general because the small party was under federal investigation. But Working Families nominated lawyers as "place-holders" for governor, lieutenant governor and attorney general. So when the party was cleared and Cuomo changed his mind about accepting its support, Working Families gave Democrat Cuomo one more line on which to seek votes. The place-holder lawyers, meanwhile, ran for Supreme Court as Working Families candidates in Brooklyn.
Even some of those moved like pawns on the state's political chessboard never felt good about the process, especially Domagalski. During his tenure as Erie County GOP chairman, he often criticized the judicial nominating conventions that for generations have rubber-stamped the choices of party leaders for Supreme Court. He even included judicial election reform as one of the planks of his campaign platform. But after Gallivan won the Republican primary, Domagalski was besieged by GOP leaders fearful of losing the 59th District and a chance at regaining the Senate majority. "We were left with the sense that a Democrat could win and the State Senate stay in Democratic hands," he said, adding that, in essence, Assembly Speaker Sheldon Silver, D-Manhattan, "would continue to control the state. So I left the race." Domagalski called it a "very difficult decision" but felt he had no other option. He does not believe that it denigrated the system because he ran in Brooklyn, where he said no Republican would have run, anyway. "I did not feel pressure," he said. "I made a decision based on what was best for the campaign and for my district." Still, the whole experience only reinforced Domagalski's conviction that reform is needed. "The problem with the judicial [election] system is that it's too political," he said. Scudder, the presiding justice of the Appellate Division's Fourth Department, found himself on the receiving end of the Independence Party's maneuvers. Democrats in the Rochester-Finger Lakes area never nominated anyone to face him -- until Lynch from Long Island and the Independence Party suddenly appeared. Though Lynch never set foot in the Seventh Judicial District last fall, Scudder suddenly had to mount a campaign. "You don't dare not to," he said. "It's a different situation. But it affects advertising, how much money you raise -- everything." Scudder scrambled to schedule a late October fundraiser in Buffalo's Saturn Club to compete against Lynch. Dozens of lawyers received invitations and paid $250 per ticket. Many of those who bought tickets, like Cosgrove, praised Scudder as a top-notch judge who was taken advantage of. In the end, Lynch managed to gain 40 percent of the vote simply by appearing on the Democratic line. Scudder said he never even met his opponent. State campaign records show that Lynch, who declined to comment for this article, never raised any money for either attorney general or Supreme Court justice. "Through channels, he said he wished me all the luck in the world," Scudder said.
Lorigo a key architect
One of the chief architects of the Republican-Conservative juggling act on the 2010 ballot was Erie County Conservative Chairman Ralph C. Lorigo, a Paladino backer who saw the possibilities early on. A lawyer himself, Lorigo petitioned his way onto the Conservative primary ballot for governor with the idea that should he win, he would step aside for Paladino by taking a judicial nomination. Though he lost his party's primary, Lorigo was instrumental in persuading state Conservative leaders to jettison Lazio in favor of the more conservative Paladino. At the time, he predicted that after his drubbing in the GOP primary, Lazio might fail to gain 50,000 votes and the Conservative Party would be consigned to oblivion. "I justified what I did on the fact that I did not see another opportunity [for Lazio to leave the ballot]," Lorigo said. "I took a bold and daring move, but it ended up that the result was correct." Not only did the Conservative Party survive, it outpaced every other minor party and regained the coveted third line on the ballot for the first time since 1994. But for all his success, Lorigo recognizes that the system can be manipulated. "There needs to be a mechanism to remove someone from the ballot," he said. Hofstra's Sample said the idea that the judicial ballot becomes a "safety hatch" for candidates who must leave for political reasons "just subjugates the courts even further." "Inevitably," he said, "self-interest finds a way to capitalize on the process at the expense of the citizenry."
These candidates gave up minor party lines in return for judicial nominations:
- Rick Lazio accepted the GOP line in the 12th Judicial District, opening the Conservative line for governor to Carl Paladino.
- Kenneth Schaeffer accepted the Working Families line in the 2nd Judicial District, opening the Conservative line for governor to Andrew Cuomo.
- Thomas Ognibene accepted the Conservative line in the 12th Judicial District, opening the Taxpayers line for lieutenant governor to Gregory Edwards.
- Elon Harpaz accepted the Working Families line in the 2nd Judicial District, opening the Working Families line for lieutenant governor to Robert Duffy.
- Stephen Lynch accepted the Democratic line in the 7th Judicial District, opening the Independence line for attorney general to Eric Schneiderman.
- Amy Young accepted the Working Families line in the 2nd Judicial District, opening the Working Families line for attorney general to Schneiderman.
- James Domagalski accepted the Conservative line in the 2nd Judicial District, opening the Conservative line for State Senate to Patrick Gallivan. Domagalski accepted the Conservative line in the 2nd Judicial District, opening the Independence line for State Senate to Patrick Gallivan.