Lt. Gov. Benjamin's arrest exposes huge flaw in N.Y. election law

On Tuesday, New York Lt. Gov. Brian Benjamin resigned from his post after being indicted by the Department of Justice for allegedly conspiring to funnel illegal contributions to his failed 2021 bid for New York City comptroller.

You might assume, with the general election still almost seven months away, that this means there is no chance Benjamin — who is not campaigning for lieutenant governor — would be on the ballot this fall, much less emerge victorious. But you would be wrong.

Thanks to quirks of New York state law, removing Benjamin from the ballot for New York’s June 28 primary is extremely difficult.

Gov. Kathy Hochul, who was Andrew Cuomo’s lieutenant governor before he resigned amid scandal, is running for reelection independently of Benjamin in what is likely to be a low-turnout primary where many voters may not know or care about his arrest. But New York fuses the two nominees into a single general election ticket.

New York is a strongly Democratic state, so it’s conceivable that Benjamin could win an election that neither he nor his party wants him to have anything to do with.

“Thanks to New York’s rather archaic election laws, it’s difficult to get off the ballot once you have made it on — even if you don’t want to run anymore,” City & State NY, a magazine covering local politics, explained. “Generally speaking, the only way to get off the ballot is if someone dies, they move out of state or they get nominated for another position.”

Under New York law, once you qualify for the ballot — in this case, the ballot for the Democratic primary — you have only four days to decline to appear on it. The state party designated Hochul and Benjamin as its gubernatorial ticket at the state party convention in February, meaning the window for Benjamin to decline has passed.

“It’s too late,” Henry Berger, a New York election lawyer, told Yahoo News. “Once you're designated for the ballot, you have a limited right to get off the ballot. But once that passes, the ballot is set.”

According to the City, a New York City news website, “There is already talk of asking Benjamin to resettle in Georgia or Virginia to get him off the ballot.” It sounds simple, but his felony corruption charges make that task much less feasible.

“What makes you think that the court and the judge are going to say, ‘Sure, you person we just indicted, we’ll let you move out of state'?” election lawyer Sarah Steiner told City & State.

The only remaining option to remove candidates from the ballot is to switch them to run for a different office. The most common means of doing that is with a judicial nomination — a loophole that parties have long exploited in the state.

“If he were a lawyer, they could nominate him for a [state] Supreme Court seat, because those nominations are done by a convention in August,” Berger said. But Benjamin isn’t a lawyer. (Prior to being appointed lieutenant governor by Hochul, after she replaced Cuomo upon his resignation, Benjamin worked in financial management and served in the state Senate.)

For nonlawyers, there are other alternatives. In 2018, the Working Families Party nominated actress Cynthia Nixon, who was challenging then-Gov. Andrew Cuomo from the left in the Democratic primary. When Cuomo won renomination, Nixon declined to run against him in the general election and the WFP switched Nixon to be its nominee for a state Assembly seat.

The WFP is a minor party and doesn’t run candidates for most offices. The Democrats, who hold supermajorities in both chambers of the New York state Legislature, already have candidates who have submitted signatures to appear on the primary ballots for legislative races, and their declination deadline passed on Monday. Whoever wins that nomination is then just as stuck on the ballot as Benjamin unless they die, move out of state or are nominated for another office.

In theory, there could be a double switch: The Democratic nominee for a legislative seat — who is also licensed to practice law in New York — agrees to take a judgeship nomination, so that Benjamin can replace them on the ballot for state Assembly or Senate.

But who would give up their nomination for the state Legislature? Perhaps a Democrat running in a heavily Republican district, who knows they have no chance of winning anyway. There are, however, no districts like that in the extremely Democratic borough of Manhattan, and Benjamin — who represented Harlem in the state Senate — could run only in the county where he resides.

This isn’t the first time New York has been stuck with an accused criminal on the ballot. In 1988, Rep. Mario Biaggi was convicted of accepting an illegal gratuity and obstruction of justice. Facing pressure from his House colleagues, he resigned from office and attempted to get himself removed from the ballots in the upcoming Democratic and Republican primaries (he was running in both, which is legal in New York). The Board of Elections, however, refused to remove him. He went on to lose the Democratic primary to future Rep. Elliot Engel, but to win the GOP nomination, despite not campaigning for it. He lost the general election to Engel.

If Benjamin were to win the Democratic nomination, however, he wouldn’t just be a zombie candidate like Biaggi was: He’d be on a ticket with the incumbent governor, who would otherwise be cruising to reelection in a heavily Democratic state. How much he would drag down Hochul’s chances is anyone’s guess. If the ticket still won, Benjamin could resign (again) immediately upon taking office, allowing Hochul to appoint her preferred No. 2.

Hochul is at the moment contemplating who to appoint as her lieutenant governor for the remainder of her current term — and if she wants to endorse one of Benjamin’s primary rivals for the role.

“After June 28, unless somebody along the way who’s a candidate for an office he’s eligible to run for should die and there’s a vacancy, there’s no place to put him,” said Berger, who was a legal adviser to Bill de Blasio when he was mayor of New York City.

Party leaders are therefore scrambling to figure out a way to avoid the embarrassment of nominating Benjamin. In a statement after his resignation, New York Democratic Party Chairman Jay Jacobs said he would “explore every option available to seek a replacement for Brian on the ticket.”

Fortunately for Hochul, the party nominates the governor and lieutenant governor separately, so in theory she could still be nominated with a different running mate for the general election.

The problem with that plan is that the two other candidates for the Democratic nomination for lieutenant governor are aligned with Hochul’s opponents. Moderate Rep. Tom Suozzi is challenging Hochul from the right and New York City Public Advocate Jumaane Williams is challenging her from the left. Suozzi’s running mate is Diana Reyna, a former deputy borough president of Brooklyn, and Williams has selected Ana María Archila, an immigrants’ rights activist.

Hochul could encourage her supporters to back Reyna or Archila in the primary, or even apppoint one of them to serve out the rest of Benjamin’s term. But, in a sign that neither of them is planning to cozy up to Hochul, both Reyna and Archila publicly blasted the governor on Tuesday for failing to properly vet Benjamin before appointing him last year.

But New York primary voters have split their tickets before. In 1982, Mario Cuomo won the Democratic nomination for governor, but Alfred DelBello, who ran with gubernatorial candidate and then-New York City Mayor Ed Koch, won the lieutenant governor nomination. The unlikely duo were then bound together as the party’s ticket that November, and they went on to win.

“That ended up being a fraught relationship,” Berger noted.

Hochul herself was almost upset by Williams in the 2018 lieutenant governor primary. While Andrew Cuomo beat Nixon by a 32-point margin, Hochul only beat Williams, who was Nixon’s running mate, 53% to 47%. That indirectly set up Benjamin’s eventual appointment, as it showed that Hochul — a moderate Democrat from the suburbs of Buffalo — had to make inroads among Black voters and progressives in her next statewide run.

One last theoretical alternative is that the state Legislature could pass a new law disqualifying Benjamin from the ballot. On Wednesday evening, City & State’s Zach Williams reported that Assembly Member Amy Paulin, a Democrat, is writing a bill that would allow Benjamin to be replaced, but it is not yet clear how. Williams noted that any new such law is likely to face litigation from those who would prefer to see the Hochul ticket suffer, such as her primary opponents or her potential Republican adversaries this fall such as Rep. Lee Zeldin.

One might wonder why New York doesn’t allow changes to the primary ballot more than two months before the election is held. After all, indictment is just one of many reasons a candidate might need to drop out of the race in its last 10 weeks. What if a candidate suffers severe illness or disability, for example? New York state law has no provision for that.

The early deadline is in part due to the need to accommodate absentee voting, Berger noted. “Ballots have to go out, because of overseas voters, 45 days before the election. And it takes time to set up the ballot and do everything else.”

“There's some logic to it,” Berger said, “although logic was never a strong point of the election law.”