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E169547/2019
NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 10/03/2019

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NIAGARA
_________________________________________

Linda Hurley, and Rev. Rex Stewart, Duly

Registered Voters in the State of New York; David
Buchwald, Robert Carroll, Harvey Epstein, Robert
Jackson, Walter Mosley and Phil Steck,
Individually and as Qualified Candidates for
Public Office Under Laws of the State; Anita
Thayer and Jonathan Westin, Individually and as
Co-Chairs of the New York State Committee
of the Working Families Party and Members of the
Executive Board of the New York State Committee
of the Working Families Party; The New York
State Committee of the Working Families Party;
and The Executive Board of the New York State
Committee of the Working Families Party,

Plaintiffs

v. VERIFIED ANSWER AND

CROSS-CLAIMS
Index Number: E169547-2019

The Public Campaign Financing and Election

Commission; Mylan Denerstein, Jay Jacobs, DeNora
Getachew, John Nonna, Rosanna Vargas, Crystal
Rodriguez, Henry Berger, David Previte, and Kimberly
Galvin, as Commissioners of the Public Campaign
Financing and Election Commission; The State of New
York; The Board of Elections of the State of New York;
Peter S. Kosinski, Douglas A. Kellner, Andrew J.
Spano, and Gregory P. Peterson, Commissioners of
The Board of Elections of the State of New York; the
Governor of the State of New York; the Assembly of
the State of New York; the Speaker of the Assembly;
the Minority Leader of the Assembly, the Senate of the
State of the New York; the Majority Leader of the Senate;
and the Minority Leader of the Senate;

Defendants

Defendants David Previte and Kimberly Galvin as Commissioners of the Public Campaign
Financing and Election Commission of New York State, Brian Kolb as Minority Leader of the
New York State Assembly, and John Flanagan as Minority Leader of the New York State

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Senate, through their attorneys for their Verified Answers to Plaintiffs Verified Complaint,
herein state as follows:

1. Defendants admit the following paragraphs of the Verified Complaint: 1, 3, 7, 8, 10,

11, 12, 13, 14, 15, 17, 18, 21, 23, 24, 25, 27, 28, 29, 32, 44, 45, 46, 49, 50, 51, 52, 53, 54,
55, 56, 57, 58, 59, 60, 69, 70, 73, 75 and 77.

2. Defendants admit to the following paragraphs of the Verified Complaint: 6, 22, 26, 47
and 48 except that the Commission is only statutorily tasked with determining new
election laws governing multiple party candidate designations/nominations as they
relate to the creation of a public campaign finance matching fund system for
candidates for state office.

3. Defendants admit to the following paragraphs of the Verified Complaint: 2, 4, 5, 20,

22, 30, 31, 33 and 72 except that Plaintiffs have challenged the constitutionality of the
enactment of the Public Campaign Financing and Election Commission and,
consequently, any and all of its actions.

4. Defendants deny knowledge and information sufficient to respond to paragraphs 9,

16, 19, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 61, 62, 63, 64, 65, 66, 67 and 68

5. No response is required to the paragraphs numbered 71, 74 and 76.

WHEREFORE, the above-named Defendants pray for an Order of this Court granting the
relief sought in the Verified Complaint and granting any further relief the Court may deem
just and proper.

CROSS-CLAIMS

Defendants David Previte and Kimberly Galvin as Commissioners of the Public

Campaign Financing and Election Commission of New York State, Brian Kolb as Minority
Leader of the New York State Assembly and John Flanagan as Minority Leader of the New
York State Senate, by way of cross-claims against the Public Campaign Financing and
Election Commission of the State of New York; Mylan Denerstein, Jay Jacobs, DeNora
Getachew, John Nonna, Rosanna Vargas, Crystal Rodriguez, and Henry Berger, as
Commissioners of the Public Campaign Financing and Election Commission of the State of
New York; the State of New York; the Board of Elections of the State of New York; Peter S.
Kosinski, Douglas A. Kellner, Andrew J. Spano, and Gregory P. Peterson, as Commissioners
of the Board of Elections of the State of New York; the Assembly of the State of New York;
the Speaker of the Assembly of the State of New York; the Senate of the State of New York;
and the Majority Leader of the Senate of the State of New York, state, upon information and
belief:

6. Defendants Previte, Galvin, Kolb, and Flanagan bring these cross-claims against the
remaining Defendants seeking a declaration of their legal rights as a result of the
violation of the constitution and laws of New York.

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7. On or about April 1, 2019, Part XXX of the Laws of 2019 (the “Statute”), Chapter 59,
Bill No. S01509C, was enacted by the New York State Legislature with approval of
the Governor as part of the budget for 2019–2020.

8. Senate Minority Leader John Flanagan and Assembly Minority Leader Brian Kolb
each voted against the bill in their respective houses of the legislature.

9. The Statute creates a Public Campaign Financing and Elections Commission (the
“Commission”) composed of nine members appointed by the Governor and legislative
leaders, including one appointment each for the Senate and Assembly minority
leaders.

10. Although Senate Minority Leader Flanagan believes the Statute to be

unconstitutional, he nevertheless selected David Previte as his appointee to the
Commission in order to protect the Senate Minority’s legislative interests until the
Statute’s constitutionality can be tested.

11. Although Assembly Minority Leader Kolb believes the Statute to be unconstitutional,
he nevertheless selected Kimberly Galvin as his appointee to the Commission in order
to protect the Assembly Minority’s legislative interests until the Statute’s
constitutionality can be tested.

12. The Statute instructs the Commission to make “recommendations” for new laws to
establish a system of voluntary public campaign financing for statewide and state
legislative public offices.

13. The Commission’s “recommendations” must be reported to the governor and

legislature by December 1, 2019.

14. The Statute provides that each of the Commission’s “recommendations” shall have the
full effect of law as of December 22, 2019.

15. The Statute provides that the Commission’s “recommendations” shall supersede
inconsistent provisions of the election law.

16. The Commission is tasked with determining and identifying “all details and
components reasonably related to administration of a public financing program.”

17. The Commission is also instructed to “specifically determine and identify new election
laws” in various areas, including “rules and definitions governing . . . multiple party
candidate nominations and/or designations.” This is a reference to New York’s
system of “fusion voting,” under which a single candidate can appear on the
ballot line for multiple parties and receive the sum total of votes cast for any
line on which that candidate appears.

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18. Members of the Commission have publicly stated that this grant of authority to make
laws governing fusion voting is not limited to laws related to public campaign
financing, and includes the authority to prohibit fusion voting altogether.

19. Commissioners David Previte and Kimberly Galvin believe the Statute and the
Commission on which they sit to be unconstitutional. They seek to test the
constitutionality of the Statute and Commission in order to avoid participating in a
process that violates the State Constitution.

AS AND FOR A FIRST CROSS-CLAIM

(Declaratory Judgment)

20. The Statute purports to grant to the unelected Commission the power to issue
“recommendations” that carry the full force of law without any further legislative
action.

21. The Commission is authorized to create, from the ground up, a brand new
comprehensive scheme of public campaign financing.

22. The Commission is purportedly empowered to authorize the raising or reallocation of

$100 million in State revenues annually for this campaign financing scheme.

23. The Commission is purportedly authorized to create a new administrative agency to

regulate and oversee campaign financing.

24. This degree of delegation of legislative authority to an unelected body is

unprecedented in New York law.

25. Defendants are entitled to a judgment declaring that the Statute is unconstitutional
because it improperly delegates the Legislature’s lawmaking power to the unelected
Commission; that the Commission has no constitutional authority to promulgate
“recommendations” “with the full effect of law”; and that any such “recommendations”
of the Commission are without legal effect.

AS AND FOR A SECOND CROSS-CLAIM

(Declaratory Judgment)

26. The Statute purports to grant the unelected Commission the power to enact new laws
that “supersede . . . inconsistent provisions of the election law.”

27. Defendants are entitled to a judgment declaring that the Statute is unconstitutional
to the extent that it purports to allow the unelected Commission to repeal or abrogate
statutes enacted by the Legislature without requiring an equivalent legislative act.

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AS AND FOR A THIRD CROSS-CLAIM

(Declaratory Judgment)

28. The unelected Commission purports to have the authority to eliminate, modify, or
substantially alter the State’s system of fusion voting.

29. Fusion voting has been recognized by the Court of Appeals as a right protected by the
State Constitution.

30. Neither the Legislature nor any State agency or commission may abrogate a right
guaranteed by the State Constitution without a constitutional amendment.

31. Defendants are entitled to a judgment declaring that to the extent that the Statute
purports to grant the unelected Commission authority to restrict or eliminate fusion
voting, it is unconstitutional.

AS AND FOR A FOURTH CROSS-CLAIM

(Declaratory Judgment)

32. The Commission purports to have the authority to eliminate, modify, or substantially
alter the State’s system of fusion voting.

33. This authority allegedly derives from a single reference to “multiple party candidate
nominations and/or designations” in a list of topics related to the operation of a public
campaign financing scheme.

34. In the context of the entire Statute, and under standard principles of statutory
interpretation, the Commission has authority to enact laws relating to fusion voting,
only to the extent that it relates to the administration of a public campaign financing
system.

35. Defendants are entitled to a judgment declaring that the Statute, as a matter of law,
does not grant the Commission the authority to eliminate, modify, or substantially
alter the State’s system of fusion voting, except to the limited extent necessary to
implement public campaign financing.

AS AND FOR A FIFTH CROSS-CLAIM

(Declaratory Judgment)

36. The Statute purports to allow the unelected Commission to create new law that
supersedes existing statutory law duly enacted by the legislature.

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37. This purported power to supersede legislative enactments is not narrowly cabined to
specific provisions of statutory law, but extends to the entirety of the state Election
Law.

38. The Commission’s “recommendations” will purportedly have the force of law,
superseding existing statutory law, without requiring any further action by the
legislature.

39. The Guarantee Clause of the Constitution of the United States (Art. IV, § 4) states
that “[t]he United States shall guarantee to every State in this Union a Republican
Form of Government.”

40. The key feature of a republic form of government is lawmaking by democratically

elected representatives. See The Federalist No. 57 (Alexander Hamilton) (“The
elective mode of obtaining rulers is the characteristic policy of republican
government.”).

41. The Statute purports to create an unelected Commission that not only creates law
outside of the legislative process, but has the power to overrule legislation enacted
through prescribed constitutional processes by the democratically-elected legislature.

42. Defendants are entitled to a judgment declaring that the Statute violates the
Guarantee Clause of the U.S. Constitution by granting an unelected Commission the
power to supersede statutes enacted by the legislature.

WHEREFORE, the above-named Defendants pray for an order and declaratory judgment:

A. declaring the Statute unconstitutional because it improperly delegates the

Legislature’s lawmaking power to the Commission;

B. declaring the Statute unconstitutional to the extent that it authorizes the Commission
to repeal or abrogate existing statutory law;

C. declaring that the Statute is unconstitutional to the extent that it authorizes the
Commission to restrict or eliminate fusion voting;

D. declaring that, even if the Statute is constitutional, the Commission’s statutory

authority to enact laws relating to fusion voting is limited to laws necessary to
implement public campaign financing;

E. declaring that the Statute is unconstitutional under the Guarantee Clause of the U.S.
Constitution; and

F. granting such other and further relief as the Court deems just and proper.

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Dated: October 3, 2019

Albany, New York

O’CONNELL & ARONOWITZ, P.C.

__s/ Cornelius D. Murray

By: Cornelius D. Murray, Esq.
Michael Y. Hawrylchak, Esq.
54 State Street, 9th Floor
Albany, New York 12207
518-462-5601
Counsel for Defendants Kimberly Galvin
and Brian Kolb

__s/ Jeffrey T. Buley ______

By: Jeffrey T. Buley, Esq.
50 State Street, 4th Floor
Albany, New York 12207
518-956-1920
Counsel for Defendants David Previte
and John Flanagan

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