McGuire v. MacAvery, 10 N.Y.3d 445 (2008)

A subscribing witness to an independent nominating petition cannot be disqualified solely because the witness resides outside the political subdivision corresponding to the office sought by the candidate; however, unexplained alterations to the witness statement on a petition sheet will invalidate the signatures on that sheet.

Summary

This case addresses the residency requirement for subscribing witnesses to independent nominating petitions and the impact of alterations to witness statements. The Court of Appeals held that a witness residing outside the candidate’s district could still circulate nominating petitions, aligning with First Amendment principles. However, the court affirmed the invalidation of the petitions in this specific case because the subscribing witness had altered the witness statement without explanation, and the candidate failed to provide evidence substantiating that the alteration stemmed from the exercise of First Amendment rights related to residency.

Facts

Susan McGuire challenged the independent nominating petitions of Alison MacAvery, a candidate for Dutchess County Legislature, District 16. John Bailo, a subscribing witness to several pages of MacAvery’s petitions, was not a resident of District 16. Bailo struck out the phrase “and I am also duly qualified to sign the petition” in the witness statement on some petition sheets, substituting “OMIT” and initialing the change, but offering no further explanation.

Procedural History

The Supreme Court invalidated MacAvery’s petitions due to the defect in the witness statement. The Appellate Division affirmed this decision. MacAvery appealed to the New York Court of Appeals.

Issue(s)

1. Whether Election Law § 6-140(1)(b) unconstitutionally restricts core political expression by requiring subscribing witnesses to independent nominating petitions to reside in the same political subdivision as the office sought by the candidate.
2. Whether unexplained alterations to a subscribing witness statement on a nominating petition invalidate the petition sheets.

Holding

1. No, because a subscribing witness who is otherwise qualified to circulate a nominating petition cannot be disqualified solely because of residing outside the political subdivision corresponding to the office sought by the candidate.
2. Yes, because unexplained alterations of the witness statement will result in invalidation of the petition sheet, even if the alterations manifest correct information.

Court’s Reasoning

The Court extended the rationale of Matter of La Brake v. Dukes, which struck down a similar residency requirement for witnesses to designating petitions, to independent nominating petitions. The court reasoned that restricting who can circulate nominating petitions based on residency is an unconstitutional restriction on political speech. However, the court emphasized the importance of the witness statement to the integrity of the petition process, citing Matter of Jonas v. Velez. Because Bailo’s alteration of the witness statement was unexplained, and MacAvery failed to provide evidence to show the alteration stemmed from an assertion of First Amendment rights, the court upheld the invalidation of the petitions. The court noted that the candidate had the chance to offer evidence and failed to do so. The court stated, “[E]ven if the alterations ‘resulted in the manifestation of correct information’ alteration of the statement which is unexplained and uninitialed will result in the invalidation of the petition sheet”. The Court urged the State Board of Elections to revise the statutorily-mandated witness statements to account for nonresident witnesses. The dissent argued the primary issue was whether the witness was entitled to exercise his constitutional right to witness nominating petitions. The majority countered that MacAvery did not properly interpose a constitutional claim by joining Bailo as a party or pleading a counterclaim or affirmative defense based on the First Amendment. Further, the majority noted that in the absence of record evidence, the court could not speculate as to Bailo’s motivations.