Breaking: NY Supreme Court Judge rules that alleged Working Families Party usurper Anthony Frascone stays on the ballot. [Updated with attorney comment]

Westchester Supreme Court Justice Janet C. Malone shuts the petitioners down on all legal issues they raised.

No fundraising and no campaign, but Frascone stays on the ballot.

In a decision handed down late last evening, Westchester Supreme Court Justice Janet C. Malone ruled against petitioners who tried to have former Republican Anthony Frascone thrown off the ballot as the Working Families Party candidate for Congress in the 17th District.

Frascone had narrowly defeated Mondaire Jones in the WFP’s primary election last June after the party declined to actively campaign for Jones. (Jones is still running as the Democratic Party candidate against Republican Mike Lawler.)

Justice Malone ruled against all of the legal arguments raised by the petitioners: Three Democrats (two of whom are party officials in Putnam and Westchester Counties), one Republican, and a Croton resident who is a member of the WFP, Ricki Rusting.

The petitioners were represented by attorney Keith Corbett of Harris Beach PLLC, who earlier succeeded in knocking Robert F. Kennedy Jr. off the New York State presidential ballot.

But in this case Corbett’s arguments on behalf of Frascone’s challengers were not at all persuasive to the judge on the case. The petitioners had raised several issues, charging that Frascone was a “shill” who had run for the WFP nomination on behalf of Republicans who wanted to siphon votes away from Mondaire Jones; they also claimed that he was a convicted felon.

Frascone never appeared in court or responded to the allegations, but several election officials from Westchester, Putnam, and Dutchess counties who were also sued mounted a vigorous defense. They argued that there were no legal grounds to remove Frascone, and that in any case these late attempts to do so were “time-barred” by New York’s election laws.

Keith Corbett

But Justice Malone, in a 15 page ruling, was having none of it.

On the question of whether Frascone had defaulted in the lawsuit by not showing up to court (nor being represented by an attorney), and thus had admitted to all of the allegations, Malone cited case law showing that the judge had the discretion to decide whether the non-appearance of a defendant constituted an automatic win for the petitioners. She ruled that it did not in this case.

On the question of whether Frascone had violated New York’s Fair Campaign Code, Malone ruled that Frascone was under no obligation to mount a campaign, and also that the petitioners had not definitively demonstrated that he was guilty of a felony, nor that a felony conviction would disqualify him in this particular case.

(Interestingly, shortly before the judge filed her ruling, some of the defendants produced evidence that Frascone had not been convicted of a felony after all, but only of a misdemeanor. The judge commented in her ruling that the petitioners had “surprisingly” not submitted their own evidence to the contrary, leading to a “guessing game of what Frascone [pleaded] guilty to.”)

On the question of whether the petitioners had exhausted all of their administrative remedies to try to get Frascone kicked off the ballot before filing this lawsuit, Justice Malone ruled that they had not done so.

Finally, Justice Malone ruled for the defendants’ argument that the case was time-barred under New York law. The last date for them to have challenged Frascone was April 18, she ruled, making the October filing six months too late.

We will have more details and reaction to the decision later on, including an update on whether Corbett and the petitioners decide to appeal Justice Malone’s decision. But with thousands of ballots with Frascone’s name on them already mailed out, and early voting beginning October 26, the clock may have already run out.

Update: We will post comments from attorneys in the case as we receive it.

From John M. Murtagh of Murtagh, Cossi, Venditti and Castro-Blanco, LLP, of White Plains, attorneys for two Putnam County Elections Commissioners:

“Petitioners certainly have the right to appeal, but Justice Malone handed down a very thorough decision thoughtfully addressing every argument raised and, particularly, focusing on Petitioner’s failures of evidence and proof.  Overturning her decision would, therefore, be difficult in my view, particularly little more than two weeks before election day and one week before the beginning of ‘early voting.’ It is also important to keep in mind that, with the exception of the Westchester Board, every county election commissioner, Democrat and Republican, was united in opposing this late effort to change the ballot.  This was not a partisan issue, therefore, but one of ballot integrity and the need to follow proper procedure.”

From Keith Corbett of Harris Beach PLLC, attorneys for the petitioners:

“We appreciate Judge Malone’s thorough and thoughtful determination, however we are still perplexed by the Local Boards desire to advocate on behalf of a convict in contravention of the election law.  My clients are weighing their appellate options.”

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