In this proceeding under Article 16 of the Election Law, the Petitioner Karen Healy-Case (hereinafter “petitioner”) seeks to invalidate the independent nominating petition of the Respondent John Garcia (hereinafter, “candidate”) for the independent body “Back the Blue” as a candidate for the public office of Sheriff of Erie County. The subject nominating petition had previously been timely filed with the Respondent Erie County Board of Elections (hereinafter “Board”). No objections were filed against the petition as provided for by Election Law §6-154(2). The Board reviewed the petition and determined that it was valid as drafted and filed. The Petitioner has legal standing to commence this invalidation proceeding as an aggrieved candidate, under Election Law, §16-102 being the candidate of another party for the same public office (Martin v. Tutunjian, 89 AD2d 1034 [3rd Dept.1984]). As an aggrieved candidate, she is not required to file objections with the Board under Election Law §6-154(2) but may proceed directly to court to seek the relief of invalidation (Magee v. Camp, 253 AD2d 573 [3rd Dept 1998]). The Respondent candidate’s nominating petition used an emblem as provided for by Election Law §6-138(3), which appears to be a shield with a pattern similar to the American flag. Petitioner characterizes it as an American flag in the shape of a shield. Petitioner cites Election Law §2-124 which provides for the name and emblem for a recognized political party and prohibits the use of an emblem similar to “flag used by any political or government body, agency or entity”. She further relies upon Election Law §6138(3)(f), which extends the prohibition on the use of such symbols to independent nominating petitions. For the remedy, Petitioner cites as authority case law requiring the invalidation of a nominating petition when the name of the independent body contains at least a root word of any existing political party (Matter of DiResto v. Cornell, 59 AD3d 643 [2nd Dept. 2009]; Carey v. Chiavaroli, 97 A.D 2d 981 [4th Dept. 1983]). Respondent opposes such relief by first contending that the emblem used is not a flag and thus its use is not prohibited. Alternatively, Petitioner argues that the remedy for an improper emblem on a nominating petition is for the candidate or the Board to simply select a different emblem. The request for the invalidation of an independent nominating petition for the use of an allegedly prohibited emblem alone has no precedent. Generally, the remedy of invalidation has only been applied when the party name has a similarity to an existing recognized political party. As the Diresto court noted, because the statute did not provide the Board any authority to authorize or make substitution of a different, non-offending name, the only remedy available to the court was invalidation. Petitioner argues that the same standard should be applied for a prohibited emblem. However, there is a qualitative difference between the two. An existing party has a continuing identity and membership which could reasonably be confused by the use of a root work of that party’s name. Further the name of the independent body continues on for use on the November general election ballot where the name confusion to the general electorate could continue (Election Law, §7-104[25]). And finally, the statute does provide for the substitution of an emblem, either by the candidate or the Board. With the advent of scanned paper ballots, the importance of the emblem, particularly for a candidate’s independent nomination, has diminished considerably since such emblems are no longer on the ballot a voter sees at the general election (Election Law, §7-104[21]). For an emblem which is now printed on a nominating petition, and for all intents and purpose thereafter is likely never seen again, the harsh remedy of invalidation does not match the rationale in the case of the improper use of a name of the independent body. Here, there is no allegation or proof of any fraud which would merit a different level of inquiry by the court (Election Law, §6-138[3] [g]). As to the substantive issue of the emblem itself, the use of the pattern of stars and stripes has evolved over the years. What once might have been viewed as disrespectful to the nation’s flag, such pattern is now used in a multitude of instances. As noted by the county attorney, such a pattern can be seen on any number of articles of clothing on the street or the beach. The shield used as the candidate’s petition emblem is no more a source of confusion or appearance of some official status as the flag of the United States as any such clothing or other commonly used items would be. The Respondent candidate’s motion to dismiss the proceeding is therefore granted and the Board is directed to place the candidate’s name on the ballot consistent with the requirements of Election Law §7-104(4). This decision will constitute the order of the court. Dated: July 29, 2021
