As with many states and many independent presidential candidacies, Robert F. Kennedy Jr.’s path to a spot on New York State’s 2024 General Election has been long and uncertain. With the August 13 decision of Albany County Supreme Court Justice Christina Ryba to remove Kennedy from the New York ballot, it appears Kennedy’s fight is far from over.
Kennedy’s Path to the Ballot
Kennedy’s ballot access effort in New York began in April when the petition circulation window for independent presidential candidates opened. Like other 2024 independent presidential candidates, Kennedy and his supporters had six weeks to obtain 45,000 valid signatures from registered New York State voters; this includes a requirement to obtain at least 500 valid signatures from each of one-half of New York’s 26 Congressional districts.
While New York is a large state with over 12 million active registered voters, filing a valid, statewide, independent petition with the required number of valid signatures is no easy task. In 2022, no independent candidates for the statewide offices of governor, attorney general or comptroller qualified for the ballot.
Kennedy’s team claimed that their New York ballot access effort cost the campaign $1.1 million. The campaign even said they paid Kennedy petition circulators up to $90 per hour to obtain petition signatures.
This year, RFK Jr.’s independent presidential petition was the only one the commissioners of the State Board of Elections determined to be valid. The Board, which is comprised of two Republican commissioners and two Democratic commissioners, voted to invalidate independent presidential petitions filed by Professor Cornel West, the Green Party’s Jill Stein, and other lesser-known candidates. When the Board’s work was done, Kennedy was the only independent presidential candidate that still had a spot on New York’s 2024 General Election ballot.
The Objectors’ Case
This wasn’t the end of the story, however. The New York State Election Law allows duly qualified objectors to a petition, opposing candidates, and, in certain circumstances, party chairs to challenge the validity of a candidate’s petition in a judicial proceeding instituted in New York’s trial court, the Supreme Court. Objectors to RFK Jr.’s did just that.
The objectors, who were backed by a Democratic-aligned advocacy organization, filed their proceeding to invalidate the Kennedy presidential petition in Dutchess County, New York. Kennedy’s lawyers, however, argued that venue for this proceeding was only proper in Albany County, the county where the State Board of Elections maintains its offices. The Dutchess County judge assigned to hear the case agreed and granted the motion made by Kennedy’s attorneys to change venue to Albany County.
The objectors’ main argument in favor of removing RFK from the New York ballot (and the one on which they prevailed in the trial court) was that Kennedy intentionally misstated his residence on his independent petition for president. Kennedy, the objectors claimed, had established a sham residence in a spare room at the home of his friends in the Hudson Valley.
Kennedy’s team rejected these assertions and argued that Kennedy’s use of the Hudson Valley home as his residence was perfectly fine and legally permissible. While Kennedy does have other homes (such as the one in California he shares with his wife, actress Cheryl Hines), he chose the Hudson Valley home, as is allowable under New York law, as his residence.
While it might seem to be an odd living situation, New York’s courts, for at least the last three decades, have liberalized what is a permissible residence for electoral purposes. Ironically, those on the political left (who today are seeking to keep RFK Jr. off the New York ballot) have been behind the longstanding effort to loosen the definition of residency in New York. In fact, earlier this year a progressive political organization sent mail to New York City Democrats with second homes in New York’s “purple” counties requesting that these voters register to vote at their second home for the sole purpose of turning these “purple” counties “blue.”
Kennedy’s Appeal & Argument
Kennedy’s attorneys have already filed their notice of appeal with the Appellate Division, Third Department along with a request, as is customary in Election Law cases in New York, that the appeal be heard as soon as possible. The Third Department granted this request and will hear the oral arguments on August 28. The State Board of Elections is required by the Election Law to certify a General Election ballot by September 11, 2024, and local Boards of Elections are required to transmit absentee ballots to military and special federal voters by September 20, 2024. The courts, therefore, will have to work quickly to determine if RFK Jr. should appear on New York’s 2024 General Election ballot or not.
Kennedy’s case for getting back onto the ballot is stronger than many in the press corps have portrayed it to be. Moreover, Kennedy has arguments beyond the issue of residency that should give him more than just a fighting chance to get back onto the New York ballot.
Residency
On the issue of residency, Kennedy will likely argue that the decision of the trial court is out of step with other recent decisions. New York’s courts, they will point out, have long allowed living arrangements like Kennedy’s. Kennedy has another home in California and one on his family’s well-known Massachusetts compound. He could have easily claimed either of those homes as his residence. On the advice of his campaign attorneys and because of his longstanding ties to New York and desire to one day return to live in New York fulltime, Kennedy chose the Hudson Valley property as his residence. This decision was not done to deceive or defraud; it was done out of good faith and after receiving expert advice. There was nothing to be gained politically or otherwise by choosing the Hudson Valley home as his residence.
Trump v. Anderson
Next, Kennedy’s appeal will likely get a boost from an unlikely source: the U.S. Supreme Court decision from earlier this year in Trump v. Anderson. In Trump v. Anderson, the Supreme Court rejected Colorado’s questionable removal of President Trump from the Republican primary ballot for allegedly violating Section 3 of the 14th Amendment, the provision prohibiting those who had engaged in an insurrection from ever again holding federal office.
The Supreme Court, in its decision, held that states could not exercise this power to remove federal candidates from the ballot. Allowing that, the Supreme Court said, would create a “patchwork” of state ballots where candidates for the highest federal office might appear on some ballots but not others.
The issue with RFK Jr.’s qualification for the New York ballot is no different. New York stating that Kennedy’s Hudson Valley residence doesn’t meet New York’s idea of residence is simply New York State imposing an additional, state-level qualification on presidential candidates. RFK Jr. would be wise to use the Trump v. Anderson decision as part of his argument to be restored to the New York ballot.
Technical Issues with the Case
RFK Jr.’s strongest argument, however, concerns an important yet hyper-technical issue: the failure of the objectors to name all the necessary parties in this proceeding.
As every high school civics student will tell you, Americans do not vote for president. Americans vote for electors who, in turn, vote for president. On the RFK Jr. petition were not only the names of Kennedy and his running mate; as is required by the Election Law, the names of the electors pledged to Kennedy also appeared on the petition. When filing this lawsuit, the objector-petitioners named Kennedy, his running mate Nicole Shanahan, the Commissioners of the State Board of Elections, and 27 of the 28 Kennedy electors as respondents; one Kennedy elector, James Shear, was not named as a respondent.
In a July 23 decision on RFK Jr.’s motion to dismiss, the trial judge rejected the argument that Shear was a necessary party. It is inconceivable, however, that one of the individuals pledged to vote for the candidate the plaintiffs were seeking to disqualify wouldn’t be a necessary party to this proceeding. Presidential elector is a public office, and the state courts wouldn’t allow candidates for other public offices to lose their spots on the ballot without ever being named as respondents in a proceeding to invalidate a petition.
Conclusion
One doesn’t need to be enamored with RFK Jr.’s views to think that he deserves to appear on the New York ballot. The law, in fact, is on Kennedy’s side, and the Appellate Division should reverse the trial court decision and restore him to the New York ballot.
