SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY
HOWARD LEIB, SUSAN LERNER,
ERIC WALKER and ELEANOR MORETTA,
Petitioners,
-against-
JAMES A. WALSH, DOUGLAS A. KELLNER,
ANDREW J. SPANO and GREGORY P.
PETERSON, in their official capacities as
COMMISSIONERS OF THE NEW YORK
STATE BOARD OF ELECTIONS, and THE
NEW YORK STATE BOARD OF ELECTIONS,
Respondents.
Index No. 4275/2014
REPLY MEMORANDUM OF LAW
IN SUPPORT OF PETITION
DECHERT LLP
1095 Avenue of the Americas
New York, New York 10036
(212) 698-3500
Attorneys for Petitioners Howard Leib,
Susan Lerner, Eric Walker and Eleanor Moretta
i
Table Of Contents
Table Of Authorities ................................................................................................................................... ii
Preliminary Statement................................................................................................................................. 1
Argument .................................................................................................................................................... 2
I. The State Board of Elections Must Be Enjoined From Including The Abstract and Prop 1
Language As Written Because the Abstract and Prop 1 Language Violate 4-108 of the
Election Law
II. The State Board of Elections Must Be Enjoined From Including The Abstract and Prop 1
Language As Written Because the Dissemination of the Abstract and Prop 1 Language Violates
Article VII, 8(1) of the New York State Constitution
Conclusion.................................................................................................................................................. 7
ii
Table Of Authorities
CASES
Lenihan v. Blackwell,
619 N.Y.S.2d 888 (4th Dept 1994)...........................................................................................5
Marcoccia v. Suffolk County Bd. Of Elections,
766 N.Y.S. 2d 567 (2d Dept 2003)...........................................................................................5
Matter of Phillips v. Maurer,
67 N.Y.2d 672 (1986) ...........................................................................................................4, 5
Matter of Shulz v. State of New York, .........................................................................................5, 6
86 N.Y.2d 225 (1995)
Matter of Shulz v. New York State Bd. of Elections, .......................................................................3
632 N.Y.S.2d 226 (3rd Dept 1995)
Snyder v. Walsh,
41 Misc.3d 1213(A) , 980 N.Y.S.2d 278 (Sup. Ct., Albany Cnty. 2013) .................................4
STATUTES
Election Law 4-108................................................................................................................1,2, 4
OTHER AUTHORITIES
BLACKS LAWDICTIONARY 887 (10th ed. 2014) ............................................................................2
NEWYORK STATE CONSTITUTION art. VII, 8(1) ...................................................................1, 4, 5
WEBSTERS NEWUNIVERSAL UNABRIDGED DICTIONARY 722 (1989) ............................................2
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Preliminary Statement
Petitioners Howard Leib, Susan Lerner, Eric Walker and Eleanor Moretta (collectively,
Petitioners), respectfully submit this reply memorandum of law in support of their Verified
Petition to enjoin Respondents James A. Walsh, Douglas A. Kellner, Andrew J. Spano and
Gregory P. Peterson, in their official capacities as Commissioners of the New York State Board
of Elections (the Commissioners) and the New York State Board of Elections (the Board,
and with the Commissioners, Respondents) from disseminating and including on the
November 4, 2014 ballot an Abstract and form of submission (the Prop 1 Language) that
contains a materially misleading description of the proposed amendment to the New York State
Constitution to create a redistricting commission (the Redistricting Amendment).
Petitioners in their opening brief established that Respondents proposed descriptions of
the Redistricting Amendment violate New York State Election Law and the New York State
Constitution. In their opening brief, however, Respondents fail to prove that the Abstract and
Prop 1 Language are clear and coherent, as required by the Election Law. As written, the
Abstract and Prop 1 Language will have the effect of confusing voters as to the Redistricting
Amendment. Specifically, the Abstract and Prop 1 Language misleadingly describe the proposed
commission as independent when in fact the commission will be beholden to the leaders of the
Legislature and omits material information concerning the Legislatures default power to reject
the commissions maps and draw its own maps. See, Point I, infra. Moreover, the Abstract and
Prop 1 Language adopted by the Board improperly advocate for voter approval of the
Redistricting Amendment at the publics expense public funds, in violation of the New York
State Constitution. See, Point II, infra. For each of these reasons, as demonstrated below, the
Board should be enjoined from disseminating the Abstract and the Prop 1 Language or including
it on the November 4, 2014 ballot.
2
Argument
I. THE STATE BOARD OF ELECTIONS MUST BE ENJOINED FROM INCLUDING
THE ABSTRACT AND PROP 1 LANGUAGE AS WRITTEN BECAUSE THE
ABSTRACT AND PROP 1 LANGUAGE VIOLATE 4-108 OF THE ELECTION
LAW
Section 4-108 of the Election Law governs the procedure for the submission of any
constitutional amendment or other question to the voters, and requires that:
The form in which the proposed amendment, proposition or
question is to be submitted shall consist of only an abbreviated title
indicating generally and briefly, and in a clear and coherent
manner using words of common and every-day meanings, the
subject matter of the amendment.
N.Y. Elect. Law 4-108 (emphasis added).
Petitioners opening brief established that the Prop 1 Language adopted by the Board
violates the requirement that it briefly, and in a clear and coherent manner describe the subject
matter of the Redistricting Amendment. Respondents in their brief make a futile attempt to
argue that the Prop 1 Language or Abstract are not misleading in stating that the redistricting
commission is independent, when in fact the ten-member commission will be highly political and
beholden to the leaders of the Legislature. Eight of the ten members of the commission would be
appointed by the leaders of the Legislature, with the final two being further appointed by those
eight. Independent is defined as not subject to the control of influence of another, yet,
undoubtedly, the nature of the redistricting commission ensures that Legislative leaders will
exercise influence and control over the commissions staff. See BLACKS LAWDICTIONARY 887
(10th ed. 2014); see also WEBSTERS NEWUNIVERSAL UNABRIDGED DICTIONARY 722 (1989)
([n]ot influenced or controlled by others in matters of opinion, conduct, etc.). Even more
glaringly, respondents papers implicitly acknowledge that the commission is not designed to be
independent. They admit that the purpose is to protect the minority party in each house. See
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Brief for Respondents at 7. By definition, favoritism towards the minority party is not
independent. Thus, if Respondents want the commission approved, voters are entitled to know,
and Respondents are required by law to share, the true purpose of the Redistricting Amendment.
Similarly, Respondents brief makes no attempt to debunk Petitioners argument that the
Prop 1 Language fails describe the extraordinary special voting rules by which the Legislative
leaders further ingrained their influence and control over the commission. Petitioners
recommended that language be included to inform voters that the procedure necessary to approve
maps would change depending upon political control of the two houses of the Legislature, a
unique set shifting voting rules not present with any other state body or commission.
Accordingly, Petitioners believe that further explanation would be necessary to provide voters
with an accurate description of the proposed amendment. Such changes have not been discussed
or included in the language by the Board, and so as written, the proposed amendment does not
provide an accurate description to voters. Election Law 4-108 requires the abstract to clearly
and coherently convey the purpose and effect of the proposition. By implying that the
commission is independent, however, does not accurately convey the effect of voting for the
Redistricting Amendment -- that the commission would in fact, not be independent. See Matter
of Shulz v. New York State Bd. of Elections, 632 N.Y.S.2d 226, 229 (3rd Dept 1995) (finding
that abstract must clearly convey purpose and effect of proposition).
1
1
The Citizens Union of the City of New York (Citizens Union) has sought leave to submit an amicus brief to
explain why Respondents language clearly and accurately describes the proposed amendment. In its brief,
Citizens Union uses different language but ultimately acknowledges that the commission is designed to be
politically balanced, which is different than independent -- and confers a much more neutral, accurate
message to voters. Second, simply because the legislature used the term independent to describe the
commission does not make it so. Election Law 4-108 requires the abstract and language accurately
describe the substance of the proposed amendment to the public, regardless of the labels given by the
legislature. As written, the proposed language does not accurately inform the voting public of the proposed
amendments purpose and effect.
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Furthermore, Petitioners purport to allege that the deletion of the phrase establishes the
Legislature as the default redistricting body if the commission's plan is not legislatively enacted
and its replacement with convoluted language that avoids the word default is clear language
that will not mislead voters. Respondents, in their opening brief, go so far as to say the proposed
language provides more clarity because it highlights that the commission must consider a
number of principles when drawing the district lines. This mention of principles by
Respondents does not automatically make their language more complete or clear for voters.
Respondents language is confusing and unnecessarily wordy as compared to Petitioners and the
Attorney Generals suggestion to state that the Legislature as the default redistricting body if the
commission's plan is not legislatively enacted. Respondents language fails to convey a neutral
message to voters as necessitated by law -- instead, it conveys the message that the
circumstances in which the Legislature can override the commission are extremely limited. See
Matter of Phillips v. Maurer, 67 N.Y.2d 672, 674 (1986) (stating that voters may be educated on
proposed reforms, provided the language used is not to persuade, nor to convey favoritism,
partisanship, partiality, approval or disapproval by a State agency). The Boards emphasis on
principles does nothing to change the fact that the Board makes no attempt to address the
emphasis on language that purports to tell voters what a limited role the Legislature plays in
decision-making. As written, Respondents language is inherently tilted to persuade voters to
vote in favor of the Redistricting Amendment, and thus is not neutral and impartial.
While Respondents state that the State Board of Elections exercises its own authority and
discretion in determining the text of the form and abstract, Respondents neglect to state that this
text must not be misleading. See Snyder v. Walsh, 41 Misc.3d 1213(A) at *5, 980 N.Y.S.2d 278
(Sup. Ct., Albany Cnty. 2013). The text, however, is misleading as currently written because it
5
implies independence of the commission, fails to explain describe the extraordinary special
voting rules provided to the commission and imposes non-neutral language on voters. These
material defects violate the plain requirements of Section 4-108. See, e.g., Marcoccia v. Suffolk
County Bd. Of Elections, 766 N.Y.S. 2d 567, 568 (2d Dept 2003) (holding that form of
submission and abstract that characterized payment of proposed real estate tax as an obligation of
buyer were materially misleading where proposed law provided circumstances in which seller
could be liable for the tax); Lenihan v. Blackwell, 619 N.Y.S.2d 888, 890 (4
th
Dept 1994)
(holding that form of submission and abstract violated Election Law by failing to disclose the
proposed amendment would alter vote requirement for increase in sales and use taxes).
II. THE STATE BOARD OF ELECTIONS MUST BE ENJOINED FROM INCLUDING
THE ABSTRACT AND PROP 1 LANGUAGE AS WRITTEN BECAUSE THE
DISSEMINATION OF THE ABSTRACT AND PROP 1 LANGUAGE VIOLATES
ARTICLE VII, 8(1) OF THE NEW YORK STATE CONSTITUTION
There can be no doubt that the purpose and effect of the misleading description of the
Redistricting Amendment in the Abstract and Prop 1 Language is to advocate for adoption of the
amendment. Such advocacy at the public expense is flatly prohibited by the New York State
Constitution. See N.Y.S. Const. art. VII, 8(1) (The money of the state shall not be given or
loaned to or in aid of any private corporation or association, or private undertaking; nor shall
the credit of the state be given or loaned to or in aid of any individual, or public or private
corporation or association, or private undertaking). Respondents acknowledge that the
Constitution of the State of New York prohibits government agencies from disseminat[ing]
information, at the taxpayers expense, patently designed to exhort the electorate to cast their
ballots in support of a particular position advocated by the [government agency]. Matter of
Shulz v. State of New York, 86 N.Y.2d 225, 234 (1995) (quoting Matter of Phillips v. Maurer, 67
N.Y.2d 672, 674 (1986) (emphasis added)). Yet Respondents merely argue that the language of
6
the Abstract and Prop 1 Language do not exhort New York voters. In fact, the language of the
Abstract and Prop 1 Language do, as the direct appointment of the commission by the leaders of
the Legislature and the extraordinary and singular special voting rules ensure that the
commission will be subject to the Legislatures and not New York voters, influence and control.
The Abstract and Prop 1 language, as written, constitute statements to induce a particular
vote in favor of the Redistricting Amendment. Such advocacy in support of a particular position
at the publics expense was not intended by the New York Constitution, and cannot be
supported. See Matter of Shulz, 86 N.Y.2d at 236. The dissemination and inclusion of the
Abstract and Prop 1 Language on the November 4, 2014 ballot should be enjoined for this
additional reason.
7
Conclusion
For the foregoing reasons, Petitioners respectfully request the Court enjoin Respondents
from disseminating or including on the November 4, 2014 ballot the Abstract or Prop 1
Language for the Redistricting Amendment.
Dated: New York, New York
September 11, 2014
DECHERT LLP
By: ________________________________
Neil A. Steiner
1095 Avenue of the Americas
New York, New York 10036
neil.steiner@dechert.com
(212) 698-3500
(212) 698-3599 (telecopy)
Attorneys for Petitioners Howard Leib,
Susan Lerner, Eric Walker and Eleanor Moretta
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