Evans v. Meisser

By this article 78 proceeding, petitioner seeks to review the action of the Commissioners of Elections in determining that the name of John A. Ewald, Jr., shall appear on the primary ballot as a candidate for Member of the county committee for the Republican party in the 102nd Election District, Town of Hempstead, Nassau County. Petitioner and Ewald were named on a designating petition which petitioner himself signed. Petitioner was also named on a separate petition designating William E. De Bruin as his cocommitteeman. Ewald was also named on a designating petition in which Leo Martinuzzi was designated as cocommitteeman. Pursuant to the provisions of section 108 of the Election Law, Ewald elected to run on the Martinuzzi petition and Evans elected to run on the De Bruin petition. Thereafter objections to the Martinuzzi petition were filed and the Commissioners of Elections ruled it an invalid petition. Petitioner contends that by his election to run on the Martinuzzi petition, Ewald has forfeited his right to run on the petition on which he appears as cocommitteeman with petitioner.

Without determining whether section 330 of the Election Law provides the sole remedy in a situation such as this or whether petitioner’s signature to the Evans-Ewald petition estops hi in from making his present application, the court holds that the *330determination of the Board of Elections is correct and dismisses the article 78 application. Section 108 of the Election Law gives a candidate “ designated in more than one petition” the right to elect whether his name shall be printed in the group of candidates designated by the petition first filed or by a later petition. The section must be understood to refer to a candidate validly designated. Further, a candidate’s election under the section does not constitute a withdrawal of his name as a candidate but simply a determination of the place on the ballot where he elects to have his name printed. The fact that by reason of the invalidity of the petition under which he chooses to run, his selection cannot be honored, does not taint the other petition or petitions on which his name appears. Nor under any reasonable interpretation of the law may a choice nlade under section 108 be interpreted as a withdrawal.