10 a. 12 13 14 15 16 17 18 19 20 21 22 23 25 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY BARRY KORMAN and WILLIAM GALLO, Petitioners, -against- Index No. 707-16 RJI No. 01-16-120014 NEW YORK STATE BOARD OF ELECTIONS and RAFAEL EDWARD ("TED") CRUZ, Respondents. - ORAL ARGUMENT - BEFORE: HON. DAVID A. WEINSTEIN Acting Supreme Court Justice Transcript of the Proceedings held on the record on March 3, 2016, at the Albany County Courthouse, Albany, New York. A-P-P-E-A-R-A-N-C-E-S: Roger J. Bernstein, Esq. 535 5th Avenue, 35th floor New York, NY 10017 Also Presen' Judith Hancock, Esq. Attorney for Petitioners SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A-P-P-E-A-R-A-N-C-E-§ (Continued): Board of Elections 40 North Pearl Street, Albany, NY 12207 Floor BY: Kimberly Galvin, Esq. and Brian L. Quail, Esq. Attorneys for Respondent, NYS Board of Elections Lally & Misir, LLP 220 Old Country Road, #2 Mineola, New York 11501 BY: GRANT M. LALLY, ESQ. Attorney for Respondent Cruz : Dr. John Vafai and Anna Andreescu Also presen Suzanne T. Harrington, Sr. Court Reporter SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 1s 16 17 18 19 20 21 22 23 24 w P-R-0-C-E-E-D-I-N-G-s THE COURT: Let's go on the record. We're here today for a proceeding on the Electoral Law in the matter of Korman and Gallo versus the New York State Board of Elections and Rafael Edward "Ted" Cruz, index number 707-16. Can counsel for the parties introduce themselves, starting with the petitioner? MR. BERNSTEIN: Good afternoon, your Honor. I'm Roger Bernstein. Appreciate the Court having us here. Judith Hancock is to my left, your Honor, and your right. Judith Hancock is a lawyer, a colleague in my office who's played an instrumental role in preparing our papers. And, if I may, Mr. Gallo and his wife are here as well, the petitioners. THE COURT: Good afternoon. And for the respondents, let's start with Senator Cruz. MR. LALLY: Good afternoon, your Honor. I'm Grant Lally of Lally and Misir, 220 Old Country Road Mineola, New York appearing for Senator Cruz. Together with me today is Dr. John Vafai and Anna Andreescu. THE COURT: Thank you very much. Good afternoon. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-8739© ota oe we 10 1 12 13 14 15 16 LT. 18 19 20 21 22 23 24 25 MR. LALLY: Thank you. THE COURT: And for the Board of Elections? MS. GALVIN: Thank you, your Honor. My name is Kimberly Galvin. I'm one of the counsel for the New York State Board of Elections. MR. QUAIL: I'm Brian Quail, also representing the Board of Elections. THE COURT: Good afternoon. So as I indicated to the parties, I don't -- it's not generally my practice to have an allocated amount of time, What I would prefer to do is direct particular issues to both parties and ask them some questions. Everyone will have a chance to respond. At the end of the proceeding I will give you whatever opportunity you wish to cover any additional issues that you think would be helpful to do orally. So let me just start with Mr. Bernstein, if you could just tell me your arguments. It seems to me that they may have shifted in some of the reply papers. I think it would be helpful to set up your arguments as to why the timing of the objections should not preclude you from bringing SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 17 18 20 21 22 23 24 25 this case. MR. BERNSTEIN: I didn't intend for there to be any shift in the arguments. The papers submitted this morning were a summary of the arguments submitted previously, your Honor. So I believe the best place to start with this analysis is the text of Section 6-154 itself. As your Honor is aware, there's a differentiation between the three day objection rule and the six day specific objection rule. The three day rule for specific objections, the Legislature said that not following that renders the specifications, the three day specification, null and void. However, the Legislature made no such determination as to the initial general objection time limit. Furthermore, in other sections of the Election Law cited in our papers, which I believe from memory are in Section 1-104, there's also —- the Legislature said very specifically that it would be a fatal defect not to provide the filings referred to in that section, and they're numerous, but the point is that if the Legislature would have wanted the Courts to cease their involvement, they would have said. And in the case of the three day SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 objection, they did not say so. THE COURT: What is then the consequence, if that were the case, of not filing within three days? MR. BERNSTEIN: I want to address that very specifically, because it leaves the Court with the discretion as to determining that consequence, and what we know is that the Election Law requires the Court to make a liberal interpretation of the Election Law, and that informs what the consequence may be. I'm going to answer the question, but -- THE COURT: TI just want to ask you, and I apologize for the interruption, but does the liberal interpretation apply here where the time period is actually to try to remove someone from the ballot? MR. BERNSTEIN: It applies in the context of this case for a particular reason. The Board of Elections has made it very clear that it's not going to get involved with these objections. It has told the Court in its papers -- it has told in its own decision on February 23rd, that this is outside its jurisdiction. This is a question of law that it has correctly said it is not in a position to decide. I think that goes back to 1952 when the Court of Appeals made the ruling that questions of law are SUZANNE T, HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 13 14 1s 16 17 18 19 20 2l 22 23 24 25 for the Courts and not for the Board of Elections. So what is the purpose of those time frames? Those time frames are there when the Board of Elections has a job to do. For example, in some of the more traditional procedures, petitions of hundreds of thousands of pages are filed with the Board of Elections. I'm sure your Honor is somewhat familiar with them; 20 signatures per page, the pages must be in the perfect order, they must be stapled correctly, all the signatures have to be checked. The witnesses have to be the right witnesses. That's a procedure that could be time consuming and therefore, the statute requires that a certain schedule be followed. But in the context of a pure question of law, and given the Court's discretion that's been afforded, there's no reason -- there's no reason for that three day time period to have any negative consequence. And when we look at the factors that ought to be weighed, given that the Legislature has given your Honor room to make a decision, what are the factors we should weigh? First of all, futility. This is an administrative proceeding before the Board of SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Elections, and it's an extremely well established part of administrative law, affirmed more than once by the Court of Appeals, that an administrative procedure need not be exhausted when to do so would be futile. The Board of Elections has demonstrated that the objection process is devoid of significance. It would be futile because they're not going to rule on it, so it is a little short of -- 1 don't want to use words that are harsh, but it's a little short of, shall we say, a difficult exercise to say that you have to be kicked out of Court for something that we're not going to look at, I don't find that to be appropriate, especially in a situation where the Constitutional issues of being qualified to be on the ballot are at stake. So there are a number of reasons why the consequence in this case should not be dismissal. As I said, the Legislature did not provide for a negative consequence here. The futility doctrine suggests that there should not be a negative consequence, but it's a pure question of law. Some of the Courts some other day can deal with the significance of a three day objection issue when a factual issue has been represented to the SUZANNE T, HARRINGTON SENIOR COURT REPORTER (518) 285-873913 14 15 16 17 18 19 20 21 22 23 24 25 Board of Elections that people have to look at petitions and so forth, but we don't have that here. There's a further aspect of the particular case before your Honor that should inform the Court's discretion in this particular situation, and that is the disparate treatment that the Board has given to Republican and Democratic filings in this case. I'm sure your Honor has seen in our papers that it is not our position that the Board of Elections has to put everything up on the internet. It's not our position that they have to scan anything. But the Board of Elections does now, having moved into the modern age, they have a website visible from Tonawanda to Montauk for people who are not going to travel to Albany. And on that, they tell the voters of the State, this document has been filed with us, the Democratic petitions have been filed with us. For no viable reason -- and it's a one -- it's not even a full sentence, I don't think -- I think it just says filing and the date; but it is no effort to put up on that website -- no burden -- the filing of the date; Secretary Clinton has filed on this date, Senator Sanders has filed on this date; SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 al 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 but there's nothing put up there about the Republican filings. THE COURT: If your position is that they don't have to file, why is that relevant? MR. BERNSTEIN: Because once they do, they cannot act in an arbitrary manner under Article 78. An administrative agency, as a matter of law, cannot | be arbitrary and capricious in how it handles its proceedings, especially not when it deals with the voting public. If an administrative agency takes the position that the public is entitled to rely upon, then it can't turn around and say, don't rely on what we do. And if I may -- THE COURT: Go ahead. MR. BERNSTEIN: What's even more striking is that on February 24th, the Board of Elections put up on its website that it had received on that day the filing of Senator Cruz to be on the ballot. Now, they want to tell your Honor it was actually filed on January 26th. We could argue forever which day it was filed upon, but what we're talking about is the right of the public to rely upon the public statements to the Board of Elections. These are hard working folks that have a big job to do, no one is pointing a critical finger. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 13 14 15 16 17 18 19 20 21 22 23 24 25 i What we're saying is they cannot treat the Republicans and Democrats differently for this purpose and allow Democratic voters the opportunity to object to filings and effectively make it impossible for a Republican voter to meet the very tiny three day deadline that has no significance to them. THE COURT: Can I ask -- so I actually understand the argument -- is it your position that your clients actually relied on these postings or just that they’re inherently misleading? MR. BERNSTEIN: Both, both. Okay. First, it's inherently misleading. secondly, their agent, myself, relied upon it. THE COURT: Let me just ask you -- there are a whole series of cases that are cited in the respondents -- in Senator Cruz's brief that seem to apply very stringent rules. In particular, a Bennett case which includes, among several things, a failure to meet the three day rule as a fatal defect. Why don't -- MR. BERNSTEIN: Actually what the Bennett case said, as I read it, as a fatal defect was not sending a copy of the objections to the candidate by the prescribed--under the rules of the Board -- the SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 15 16 17 18 19 20 al 22 23 24 25 12 three day thing was just sort of stuck in the middle of the decision, it wasn't -- they didn't apply the fatal defect concept there. But certainly, your Honor, that is the only case that they can cite where the three day rule has ever been the subject of a dismissal ruling. As I pointed out in our papers, the case cited by the Board of Elections, never said that three day rule would require dismissal. I think the Bennett case from 1980 is not controlling here because they didn't have the following circumstances. They didn't analyze the difference in the statute between the three day portion and the six day specification portion. I don't believe I need to say for your Honor exactly what those are. I think your Honor has that. The Bennett case was not dealing with a situation where the Board of Elections gave aifferent treatment to one party than the other arbitrarily. And the Bennett case was not dealing with a question of law. So -- and finally they were not dealing with a question of constitutional eligibility to be on the primary ballot. So I think any of those four reasons would be very sufficient grounds for the SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 aL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 Appellate Courts in the state not to reach the conclusion urged by the respondents that your Honor should cut this proceeding off, close it down and not look at the merits. So I'm very -- in the order of what's important in this case, we should be looking at the Constitutional issues and -- and because your Honor has the discretion under Section 6-154 not to dismiss the case, the Court should not dismiss it. THE COURT: I will give you a chance to speak further, Mr. Bernstein, but let me just hear first -- before I go to the other side, I neglected to mention -- if anyone has electronic devices, please make sure the sound is off on those. Mr. Lally, I'll give you a chance to respond, but let me ask the Board of Elections, as a factual matter, if it's accurate that the Democratic and Republican postings were different, and if there's any reason you want to indicate for that. MS. GALVIN: That is true, your Honor. The petitions were posted on the website. The letters for Republican ballot access were not. As the gentleman stated, it's the ordinary course of business that we receive petitions for various elections, and we were in the habit of posting them SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 in order to grant transparency. However, I would point out that on the same website that he's referencing, there was a political presidential primary calendar that did specifically list the dates; so any simple inquiry would have lead Mr. Bernstein to realize which letters had been filed on which date. THE COURT: Okay, thank you. Mr. Lally, why don't I first give you an opportunity to respond to whatever you wish that was said by Mr. Bernstein. MR. LALLY: Sure. Thank you, your Honor. A couple things I wanted to address as to the points raised by counsel. When he talked about construing the Election Law liberally; yes, in the 2010 amendment in the Election Law that was definitely inserted, but it wasn't inserted to interpret objections. It was the opposite, actually. He has the burden backwards. It was to allow people access to the ballot to be applied liberally, and objections to be dealt with strictly. So I think that was a mischaracterization of what the liberality rule actually is. And the other issue to address -- the question you just put to the Board and that Mr SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a. 12 13 14 1s 16 17 18 19 20 21 22 23 24 15 Bernstein had raised; the Republican and Democratic election-- the primary election processes are under two completely separate and different sections of law. The Republican parties here in New York chose one particular course of selecting their delegates. The Democratic party chose a different course. And in consultation with the Legislature in 2015, the Election Law was amended. So there's actually nothing similar between the two processes. The Democratic parties has -- and I attached as one of the exhibits, I believe it's the last one on my memorandum, it lays out the particular standards, the particular burdens, the filing requirements, and they're different for the two parties. So to say that treating one party the same as the other party is somehow arbitrary and capricious, these are two separate sections of law. The Democratic party selection is under Election Law Section 2-122-a. The Republican party selection process is under 2-122-b, two completely different areas of law. The Republican party-- Republican although in prior candidates, for example, do not -: SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 13 14 15 16 17 18 19 20 21 22 zi 24 25 16 | election cycles prior to the amendment to the Election Law -- they did have to file names of delegates who will be elected in particular districts. The Democratic party has chosen basically plan A, the Republican parties chose plan B. That was enacted by the Legislature in 2015, so we're talking about two whole different sections of law. THE COURT: Let me ask you on that; is it your position that something in those distinctions lead to these different postings or just that there's a rational basis for treating them differently? MR. LALLY: I can't speak to why the Board did what, but I can say these are not the same thing, and T wanted the Court to be advised of that. THE COURT: Can you talk to the -- essentially the futility argument that the Petitioner's make that the Board -- since the Board takes the position that it's not going to interpret this Constitutional issue, there's no really purpose in filing these objections, and it would have been futile to have done so in a timely manner? MR. LALLY: Judge, that goes to -- I laid it out in my reply, in my memorandum to the order to SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 aa 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 show cause. There's several layers -~ several hurdles, several major hurdles that the petitioners here have to overcome. The first hurdle, and it's been talked about, is they filed 19 days late. The Election Law has very strict deadlines. They filed late. They're time barred, that's it. I mean we have statutes of limitations, we have time limits in the state. These, by interpretation of multiple courts, have been deemed to be strict deadlines that must be met. So that's the first one, they're out of the box if they don't file. And I have an opinion of Justice Lally, Nassau County Supreme Court, which was affirmed by the Second Department citing the Bennett case. That was only a couple years ago. I think it lays it out very clearly, if you don't meet three day objection filing deadline, you're out of the box. You don't have standing to go in court later on. THE COURT: That's the Independent party's case? MR. LALLY: Yes, the Independent party case. So that's clear. Secondly, there's a necessary party issue here. If you review the SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 aL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 Republican plan, the Republican plan as enacted by the Legislature as requested by the Republican party and enacted by the Legislature then chosen by the Republican party, does not actually have the delegates selected on primary day. The primary in some ways is a beauty contest. The delegates are actually appointed pursuant to a correlation of how the votes are cast on primary day, but the actual delegates are appointed by the Republican State Committee. That's the legal entity that's appointing the delegates, some of the delegates. The rest of the delegates are actually appointed by individual state committee members sitting in convention in each of the congressional districts. The committee members are selected by assembly district. Each congressional district can contain anywhere from 4 to 15 -- overlap 4 to 15 assembly districts, so you're going to have essentially -- you may have 27 Congressional districts, you'll have 27 meetings in New York State of the individual states committees who overlap those congressional districts and they will be -- they are the legal authority who's appointing Republicans. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 THE COURT: Let me stop you for a second. In order for the committee to be a necessary party, you either have to have the potential that they have to be negatively impacted by this proceeding or they have to be necessary to provide relief. What's the argument that they're one of those two? I'm not sure I understand. MR. LALLY: The legal authority who's actually doing the appointing is the state committee or its members in these regional conventions. They're the ones doing the appointing, so certainly this impacts their rights and responsibilities as the legal authority. THE COURT: Does that mean there's a necessary party issue the committee-men also have, or committee persons, always have to be joined in a proceeding whenever there is any action to try to strike anyone from the primary ballot for any reason? This isn't the same issue? MR. LALLY: No. THE COURT: Wouldn't the same issue come up in any case? MR. LALLY: Your Honor, that is an excellent question. The answer is no. The reason is because only for the selection of presidential SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 ql 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 delegates, and only in the Republican party pursuant to the 2015 Election Law does the Republican party actually play that role. Most candidates in New York State candidates get on the ballot in two ways -- generally get on the ballot in two ways; either they file petitions, which are sheets signed by voters who are registered in a particular party or nominating papers signed by any voter who hasn't previously signed a petition, that meets the requisite number of signatures of people for that district. So you file petitions -- or in the case of the Supreme Court, judicial delegates are selected in the normal election process. Those judicial delegates then meet in judicial convention, then nominate the Supreme Court Justices. So the Republican state committee does not have a role in any of those elections because they're not part of that selection process. There's plenty of cases, your Honor, where a Republican state committee does have a role. For instance, in the granting of Wilson Pakula. Wilson Pakula law was passed, I believe in 1952 if my memory serves me -- and that's an academic memory -- but what that SUZANNE 1. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 authorizes is one party to authorize by the vote of that executive committee to authorize people enrolled in other parties to run in a party's primary. THE COURT: Let me just ask you a question. Is there a set list of delegates as part of the primary that are affiliated with Senator Cruz? MR. LALLY: They're not, at this point. THE COURT: So there's no issue about delegates being -- your argument is solely as to the committee? MR. LALLY: That's correct. THE COURT: Let me give Mr. Bernstein a chance. Mr. Bernstein, do you want to respond to what's been said about the necessary party issue? MR. BERNSTEIN: Yes, but I want -- I first want to come back to the question asked of Mr. Lally about the futility arguments. The point that was very apparent is there was no answer to the question about the futility argument. No counsel for the respondents has ever contended, today or in any papers, that it would not be futile to have the Board of Elections look at those objections. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 13 14 is 16 17 18 19 20 a1 22 23 24 22 THE COURT: Was that apparent before you -- has the issue of Constitutional challenge to the eligibility of a presidential candidate ever come up previously? Or has the Board of Elections ever previously taken the position that it's not -~ that it's not capable of interpreting this issue? MR. BERNSTEIN: No and yes. To my knowledge, having read quite a few of the cases, T don't believe that they've specifically dealt with Federal Constitutional questions as to candidate eligibility, but they've dealt with many questions as to a candidate's eligibility. There are a large number of cases in which the Board of Elections has taken the position that it's not empowered or capable -- I mean legally capable of interpreting the law, and it goes back to the 1952 case, which I'm goes to mis-cite the name of it if I don't look at my papers. THE COURT: The Schwartz case? MR. BERNSTEIN: Yes, the Schwartz case, exactly. So back in 1952, the Court of Appeals recognized very specifically that the functions of the Board of Elections as an administrative agency are ministerial, but that's why it would be futile, and no one here has disagreed with that argument. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873923 10 ll 12 13 14 15 16 uy 18 19 20 21 22 zs 24 25 THE COURT: So any time that somebody raises an issue with the Board that's not a ministerial issue, that requires some fact finding or whatever it may be, they don't have to go through the objection process because it would be futile to do so? MR. BERNSTEI There are issues before the Board that might not require fact finding. For example, there's been candidates that have put down an address on their petition which discloses the relevant fact on which they can make a legal ruling, but that's en unusual type of -- THE COURT: I'm trying to understand, because the Schwartz case differentiates between the Board of Elections and the Court. The Board of Elections has a ministerial role, but does that - is that relevant to the question about futility, excusing the need to make an objection? That would have to mean that every time there's no-- a decision is not ministerial, there's no need to make the objection. Is that your position? MR. BERNSTEIN: Let me narrow this down. When there's a pure issue of law, as we have here, then the objection process is clearly futile. If SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 for example, your Honor, the candidate were to put down I'm 27 years old -- THE COURT: That's a question I had coming up. MR. BERNSTEIN: Okay. The Board -- they've told the Court it's a pure question of law, whether or not that person is disqualified from running for president. So far that we've now seen in every case where a question of law arises, pure question of law, the Board has declined to consider dit. In any event, in this case there's been no fact finding by the Board, and there was no potential for fact finding by the Board, so -- THE COURT: ‘They rejected the objection as untimely. MR. BERNSTEIN: Right. And we did attach the birth certificate; but they said we're not going to look at it. Your Honor, actually you could come up with a large number of woulds and shoulds and maybe could haves for the Board to rethink how it may handle any of these questions. But where we stand in this case is that the Board has said, we're not going to consider it. so if we want to rewrite the whole procedure for the SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 lL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 Board, that's appropriate for another day, about how it may handle facts that become apparent in one way or another, but we're not really in that case. We're really in the case where they've said, we won't look at it. We're stuck with that. We can't change that, can we? THE COURT: T understand your position in this regard. Let me then ask you to return to the necessary party issue, and tell me why the committee persons are not necessary parties. MR. BERNSTEIN: Sure. For the simple reason that they already set up their allocation formulas. Mr. Lally said there's a correlation by formula. It's an exhibit to our papers, it's Exhibit F. I'm going to start, but I'm not going to finish. "If a candidate receives more than 50 percent or only one candidate receives 20 percent or more of the vote, that candidate receives all three delegates. Otherwise, if at least two presidential contenders receive 20 percent or more of the votes, the candidate with the most votes receives two delegates, and the candidate with the second most votes receives one delegate." THE COURT: Let me just stop you there. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1. 12 13 14 15 16 7 18 19 20 21 22 23 25 26 Is your position that the committee's role is entirely ministerial and mechanical and actual members of the committee don't actually play any role? MR. BERNSTEIN: Correct. They've set the rules and they don't know who the candidates are going to be, they don't know what the vote is going to be; but of necessity they had to set up a formula beforehand, so that they would know how to allocate the delegates. That's a rule that they have adopted. No one is asking for that rule to be changed. The only -- all of the cases cited by Mr. Lally, and in particular the case of Regan v. -- I'm not sure I Will get the right case -- THE COURT: The Regan case, okay. MR, BERNSTEIN: Yes. In that case the petitioner's sought to change Rule 18 of the Republican State Committee. We're not seeking to change any rule in the Republican state Committee. Nothing about this case involved changing the rules of the committees. Instead, it's a mathematical formula. You drop out a candidate, you add a candidate, they apply the rules accordingly. This argument about SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873921 22 23 24 25 27 necessary party falls into the category of a red herring. THE COURT: Let me just stop you there for a second. I wanted to ask the Board again, and I'm asking more for factual issues from the Board, because I understand your position is to take more of a back seat in this, but if you want to respond to any of the arguments, feel free to. But I want to understand if, in particular, Mr. Bernstein has correctly has characterized your position, that you believe it is within your purview, if I'm recalling correctly, to reject a presidential candidate on the grounds that on their face, for example, they're under 35; but you would not do so if it involves a question of legal interpretation -- or am I mis-stating it? MR. QUAIL: Your Honor, the issue of at what exact point a qualification issue is so manifest and apparent on its face that it doesn't require any fact finding and therefore falls within the ministerial purview of the Board really is a very fact specific inquiry. And if the commissioners are actually approached with it, it's difficult to say precisely how they would come down. The general substance, SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 the notion that the Board is ministerial and that it doesn't engage in fact finding on issues of interpretation of law, the applications of law to those sort of situations is true. THE COURT: Let me just ask you though, Mr. Quail, so I understand correctly; it's not the position of the Board that you don't have the authority to rule on the eligibility of a candidate for president. It would have to be something that is obvious on its face without getting into the details. If there were something the commissioners were to discern is obvious on its face, you believe the Board would have the authority to rule on that issue? But the problem here is not that it's in a presidential election or federal election, it's that it doesn't fall within the ministerial —- MR. QUAIL: Yes, your Honor. But I can think of a couple times a state or county board has ruled on eligibility based on age, for example. THE COURT: All right, thank you. So Mr. Lally, let me first give you a chance to respond to Bernstein said, then I want to address anything Mr the whole practicality political question issue SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 MR. LALLY: Judge, if I could just give an additional answer to what the Board had said, I know of an instance where the Board invalidated petitions that were obviously fraudulent. For example, I know in 2014 someone submitted a petition for Congress, I think it was 800 or 900 pages long, witnessed by the candidate. The first page, your Honor, was original. The second was a xerox copy of the first and the third was a xerox copy of the first and 800 pages xeroxed off of one ten signature sheet. I know that the Board disqualified that. I believe it was American Sovereignty Party. The petition was submitted that year. So I just wanted to give the Court that additional information of which I was aware. THE COURT: Do you have anything to respond in terms of what Mr. Bernstein said or should we move on to the -- MR, LALLY: Regarding the futility? THE COURT: Yes. MR. LALLY: Obviously the Board looks at the petitions that come in; there are good petitions, bad petitions, obvious issues to more complex legal issues, and they've rendered a SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 lL 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 30 determination and that determination is before the Board, it speaks for itself. It's attached as an exhibit. I just want to add, there's two additional issues which I know were mentioned in my papers, the federal preemption and federal political question. THE COURT: So let me ask you -- I know you said you didn't have a full chance to see the reply, but I would have asked the same question as was raised in the reply; which is that state courts all the time interpret issues of federal law. Their 1983 claim, for example, is brought from the state court. It requires an interpretation of Federal Constitution Law. There's a long list of them in the reply brief. So what exactly -- can you explain what your position is in terms of where the limits are on this Court's ability to rule on the question of the meaning of the Constitutional information? MR. LALLY: Your Honor, in the shape of the Federal preemption doctrine -- I will repeat it for all parties here; under the United States Constitution, the supremacy clause of the United States Constitution says that the laws of the United States -- I will paraphrase -- are the supreme law SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-8739© 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 of the land, and anything in state law or in the constitutions of any states notwithstanding. That has been interpreted and applied by the Federal Government, by the Federal Court, to mean the state courts cannot regulate in certain areas, and certainly cannot act in ways that are contrary to Federal Law and clearly stated Federal policy. And there are areas of jurisdictional competence where state legislatures and state courts may not intrude. Recently there was a case of United States v. AZ which concerned Arizona's attempts to essentially adopt its own immigration policy within the State of Arizona. The Federal Government sued Arizona to enjoin those practices, and the United States federal trial courts and subsequently the United States Supreme Court ruled that Arizona was acting in an unconstitutional manner because the area of Immigration and Nationality Law are the exclusive purview of the Federal Government. And I think this case is actually quite similar in that what the petitioners here are asking you -- this Court to do is make a ruling on the meaning of federal statutes, and to act in a way SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 15 16 aq 18 19 20 21 22 23 24 32 that is contrary to -- and I had it sent to me and I can give it to the Court -- but I had about a ten page document of the various birther suits that have been submitted to federal district courts by state courts concerning not only Senator Cruz -- and this is early in the process for him; but there were scores of cases and complaints and objections filed against Senator John McCain, who was 2008 Republican nominee. He was a senator, he was an admiral in the military, he served this country honorably. He was born in Panama in the canal zone, which those objectors thought was outside the territory of the United States and therefore he should not be allowed to run for president. THE COURT: So is the preemption issue here -- I mean the provision we're talking about is the provision of the United states Constitution -- does the preemption issue here have to do because it's a matter of immigration -- of construction of immigration, naturalization; is that what it comes down to? MR. LALLY: Yes, your Honor, because what the Petitioners are asking this Court is do is make a state court ruling in one state on what's the SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 al 12 13 14 15 16 17 18 19 20 21 22 24 25 33 federal law. Certainly at the time that Senator Cruz was born, the federal law when Senator Cruz was born is clear, And more than that, the American Government the Federal Government has determined through statements and policy positions of different agencies of the Federal Government. And I have attached the implementation of that by the United States Department of State. I have attached the interpretation -- an application of that law by the United States Department of the Census -- by the United States Department of Commerce, Bureau of the Census. THE COURT: I'm sure Mr. Bernstein will say it's not a question of immigration laws, because it's a question of who was a natural born citizen. A different -- a natural born citizen being a Constitutional provision, which is distinct from the citizen provisions of the federal law. How do you respond to that? MR. LALLY: Thank you. The federal law at the time in 1970, at the time that Senator Cruz was born, was crystal clear. He was born -- the language is black letter and plain. He was born an American citizen. So they're seeking to find an interpretation or have this Court start to examine SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 ay 18 19 20 2l 22 23 24 25 34 and make a ruling contrary to what is the plain language of the statute and is the application by the Federal Government, by an executive branch of the Federal Government; and contrary to a long string of federal court cases which have ruled that this is not a matter for state courts; that this is purely a federal issue. And under its political question doctrine, the courts have ruled consistently that this is not only a matter for the Federal Government, it's not even a matter for the Federal District Courts. It's a matter for the United States Congress and for the Electoral College. And they've cited to a case in which the court -- and I will paraphrase -- basically told a petitioner that was seeking to have a presidential candidate disqualified as president; told him, look if you have a complaint, take it to the United States Congress, because they may determine the qualifications of the President of the United states. THE COURT: I will ask Mr. Bernstein that question about some of the practical problems of what he's suggesting. But let me ask you, if what that Court suggested is the statute of the electoral SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 15 16 17 18 19 20 21 22 23 24 35 college meeting at that point, you would then potentially have their objectors following the presidential election; then that's the time to disqualify a candidate? MR. LALLY: I did not make a ripeness question, in part because I thought there was more than ample issues rendering this petition invalid and subject to dismissal, but there is certainly a question of ripeness as to whether this is the time and place to be filing. THE COURT: Let me ask Mr. Bernstein if you want to respond to anything and - MR. BERNSTEIN: So your Honor, the first thing we have to do is separate the different constitutional questions. Supremacy and political questions are not overlapping issues, and unfortunately confounded in our adversary's presentation. But the supremacy argument is a non-argument because this Court's responsibility in this case is to apply federal law. The supremacy clause, as enumerable cases have held and as I think your Honor recognizes, requires all the courts of the United States, Federal and State, to apply federal law. It's been 25 the law since the Civil war, that every state court SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 lL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 36 must apply federal law. Preemption doesn't mean that you can't examine a federal question. What it means is that you must decide a federal question consistently with federal law. That's all it means. THE COURT: Is there no concern raised here about the fact that the quintessential federal issue is immigration and nationality would be decided by a state court? MR. BERNSTEIN: That's not a quintessential federal issue. It's a garden variety federal issue, like any other federal issue like the FELA, Federal Employer Liability Act, or innumerable social security cases that the state courts have decided. I don't have all the examples at hand, but certainly there's nothing so recondite or arcane -- THE COURT: In terms of deciding who is a citizen or not -- MR. BERNSTEIN: Well, your Honor, in Brown vs. Board of Education, the State Court of Delaware, a chief justice cites -- a very distinguished Judge -- cited the responsibility of the state courts in interpreting the 14th amendment of the Constitution, which is as profound as you can get in Federal Law -- THE COURT: Not to press the issue, but I SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 guess the question is not whether it's profound or not, but whether it's a matter that falls within the purview of the Federal Government and -- MR. BERNSTEIN: There's no doctrine that said that the nature of the federal statute moves the state courts out of the way. There's a separate political question doctrine. The Supreme Court has never said that there are categories of federal questions that are too complex or difficult or federal for state courts to decide. THE COURT: Let's take this a step further. Let's say I was to, after today, rule that I have the authority to ultimately rule on this question. There will be issues-- there's a question about whether or not it's common law definition of citizen, statutory definition. I can't think of another case where the state court would interpret the question of who is a citizen of the United States and interpret the immigration laws, but —- MR. BERNSTEIN: Well, that's not always been the case. I believe it's come up, and I can't cite chapter and verse, but I believe it's come up in family law litigation, divorces, tax obligations. My understanding, actually from the Clerk of the SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 lL 12 13 14 15 17 18 20 al 22 23 24 25 38 Court in Manhattan, is that they've had to deal with these issues. As I said, I don't have chapter and verse, but it's clear enough that adoption, for example, has been regulated in different ways at different times by the federal immigration laws. And adoption, of course, is a quintessential state matter. So I just go back to the point, the Supreme Court has never excused state courts from applying the law just because of the federal statute involved. The case I cited to your Honor in Alabama, where the Alabama court refused to apply the federal law concerning railroad liability. The Supreme Court said, the State Court may not refuse to decide a question of federal law because it's a question of federal law. That's exactly what they said. And I can -- if you give me a moment -~ THE COURT: That's okay. Let me ask you about -- MR. BERNSTEIN: I want to go onto the -- THE COURT: I want to ask you a broader question, which is that ultimately -- MR. BERNSTEIN: The McKnett case. THE COURT: In your brief, you go through SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 15 16 17 18 19 20 21 22 23 24 39 each of these different doctrines, the preemption, supremacy. It doesn't fall within any of these doctrines, but there's a broader concern -- a concern I have of where this all leads. Right now you are making a challenge to a candidate in a primary in a particular state. Whether or not that challenge is successful here or in other states -- because what happens with the challenge if essentially there's not going to be a determination of eligibility or not eligibility? It will be a determination of eligibility in this case, not eligible in this case. State delegates count in this state, not in this state. Why shouldn't I be concerned that if I ultimately were to grant this petition, it doesn't actually clarify the issue or provide a road map for clarifying the issue for the elections, but instead would just create chaos? MR. BERNSTEIN: Well, first of all, it would clarify the issue because if your Honor addresses the legal issues and spelled it out one way or the other way, either the argument I make or Mr. Lally makes, I'm sure your Honor would make it quite clear in a written decision, for once addressing the issues, that would absolutely clarify SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 13 14 is 16 17 18 19 20 21 22 23 24 25 40 the issue that Mr. Gallo retained me for, the purpose of getting these issues clarified; Because every voter in New York, every Republican voter in New York should be able to go to the polls knowing that they're voting for a candidate who's actually eligible for candidacy of President of the United States, and not one whose competency to be president is called into disrepute if he's president; But to be more specific about the issue of the different states making rulings on this question, there's a very practical enswer to that. There's a expedited appeal process in New York for all Election Law cases. The Supreme Court has demonstrated by the Montana vs. U.S. Department of Commerce case that I cited, has expedited the briefing of Election Law cases. In that case they said that because -- it's always better to read it, if I may. THE COURT: Which page are you on? MR. BERNSTEIN: Sorry, I didn't have time do a table of cases. Here we are. The case before us today is political in the same sense that Baker v. Carr was -- MS. HANCOCK: Give him the page. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1. 12 13 14 15 16 17 18 19 20 aL 22 23 24 25 41 MR. BERNSTEIN: The case before us today is political, in the same sense that Baker v. Carr was political. And what the Supreme Court did there was to expedite briefing -- on the bottom of page 13 -- open quote, in view of the importance of the issues and its significance in this year's Congressional and Presidential elections. There's no question that it is the role of the United States Supreme Court to establish uniform law on constitutional questions. There's no question in my mind. But if this Court proceeds to rule on the merits of this case, the Appellate process will expeditiously resolve and settle the question of whether or not Senator Cruz is ineligible or eligible to be president of the United States. THE COURT: Why isn't this an issue just to be raised in Federal Court? MR. BERNSTEIN: I'm sorry? THE COURT: Why is this not an issue to be raised in federal court? MR. BERNSTEIN: Because the New York State Legislature has given your Honor that responsibility under the Election Law. The New York State Legislature has wisely said, this is the time to SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 15 16 17 18 19 20 2. 22 23 24 25 42 resolve the issue before votes are cast. Let's talk about the opposite situation, if the question is reserved until the electors meet here in the Capitol. I think -- if I could digress for a moment, I'm sure your Honor is aware there's no Electoral College in the United States. The electors meet over at the State Capitol, and the legislators call that our mini electoral college because they meet there and they sign lists of names of electors that are Democratic or Republican. They don't consider eligibility. There is no college of electors that meets in Washington, This is not the College of Cardinals meeting in the Sistine Chapel ready to discuss the qualifications for the leadership of the Church. These are lists of paper that come to Washington in the month of December after an election, and then their lists are opened and counted. That's all that happens. But the courts have looked at this question of what would happen if you waited until after the national election and then decided to look at these kinds of issues. A very important case we cited called Donohue, it's D-o-n-o-h-u-e, that's in our papers. That case was before Judge Mishler in the Eastern SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 al 12 13 14 15 16 17 18 19 20 21 22 23 24 43 District. The plaintiffs, I think they were the Independence Party, said there is so much fraud in the President Carter election in New York State, that we should throw it out and do it over again. And the Judge said, I have the power as a Court of Equity to throw out the New York elections and have it done over again. But because of the amount of disruption that would cause in the presidential selection process, the Court will refrain from exercising its power to do that. THE COURT: You don't think that granting your application here wouldn't cause disruption in the presidential selection process? MR. BERNSTEIN: No, because if we had a rapid decision that we're entitled to get, before people vote -- before more people vote —- THE COURT: Well, not before people vote, because obviously the nomination process is long under way. So doesn't the case you just cited cut the other way or raise concern in the other direction? MR. BERNSTEIN: Well, what that case -- what really happens if we waited, there would be no remedy at all. I'm unable to imagine, your Honor, the electors rejecting a candidate on the grounds -- SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 ll 12 13 14 16 a7 1a 19 20 21 22 23 24 25 44 a president-elect, rather, on the grounds of ineligibility. Let's posit for a moment, let's just change the facts around. Let's posit that a Democrat becomes president-elect in November and a Congress with a Democratic majority in both houses. Is the party going to reject the candidate, the selected candidate of its own party on the grounds of ineligibility to be president? They're not in a position to do that. THE COURT: Well, one potential argument -- and I just raise it to play Devil's advocate, is that -- just as in whether or not the political question doctrine applies here plus the political question; sometimes the remedy is in the political process. MR. BERNSTEIN: The answer to the political question doctrine is this is a legal doctrine. The interesting thing about the Montana case is that in that case Congress had redistricted the districts amongst different states. And Montana said to Congress, you didn't do it right, the districts aren't equal. And they went to court and the case this is the case I was talking about -- went to the Supreme Court, and the argument was this is up to SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 Congress to do the districting. Supreme Court said no, it's a legal question of interpreting the Constitution. We are in the same position here. There's no competency in a legislative body to determine the meaning of the qualifications for being president. In particular, there is no competency to determine the legal meaning of natural born citizen. Congress can pass resolutions, but it has always been the function of the Courts to determine questions of law. This, your Honor, would be asking to repeal Marbury v. Madison, if you were not to adjudicate the question of law here. Because under the political question doctrine -- I will return to your Honor's point -- when do the political question doctrines not apply? When there's no issue of policy? When there's no issue of competency, and when legal standards exist. Legal standards for addressing this question have existed for centuries, literally centuries. Many of them are referred to in the United States v. Wong Kim Ark others are referred to in Luria v. United States. We have cited these cases. Your Honor unquestionably has the competency SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 46 to determine who is a natural born citizen, so it's not a political question for that reason. It's not a question that has ever been committed to a legislative body to decide. And if I could just go a little further here on political question, because I think your Honor is focusing on that. There's no, as they say, textual commitment in the Constitution of this question to Congress or to the electors. There should be no commitment of it to the electoral college because the Constitution does not have the words electoral college in it. The Constitution contemplates --as I said, the electors meet in several states, and they send a list of votes to Washington. Who's going to decide in that scenario whether someone is qualified or not? It's not even a political question. If the Court were to rule that this could only be decided in the vote counting process, in the electoral process, nobody would ever decide the question of whether or not a candidate was qualified. Now maybe we could be more practical about this. In the Ninth Circuit Court of Appeals the SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 ul 12 13 14 15 16 ly 18 19 20 al 22 23 24 47 plaintiff, Miss Lindsey, came along and said, I want to be on the ballot and run for president. And it's a little hard to understand, but she was 27 years old, said I belong on the ballot. Well the Court had no difficulty in saying, you don't meet one of the qualifications. We can rule right now that you should not be on the ballot. THE COUR In that case it upheld the decision of the Board of Election, had made that determination. MR. BERNSTEIN: ‘That was California law, whatever California law allocated responsibilities to the Board of Elections. But your Honor, the part of the decision was not based upon the Board of Elections. They interpreted the Constitution. THE COURT: But New York law allocates for the Board of Elections -- MR. BERNSTEIN: No, I don't agree. THE COURT: So tell me why you don't agree with that. MR, BERNSTET! : Because Election Law 16-100, I believe it is, gives the Court -- and I won't say it verbatim, the power to determine any question of law or fact arising out of the Election Law -- not 16 -- just a second. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 48 THE COURT: 16-154? That deals with -- MR. BERNSTEIN: No, 16 -- THE COURT: TI understand, but the language on eligibility -- MR. BERNSTEIN: It's 16-100, I'm sorry. The Supreme Court, your Honor, is vested with jurisdiction to summarily determine any question of law or fact arising as to any subject set forth in this article. And one of the subjects set forth in the article is under 6-122. THE COURT: So your position is even if the Board of Elections process is not appropriately followed, that the Court would still have the authority to rule on this question. MR. BERNSTEIN: I am not saying the Board of Elections process was inappropriately followed. They followed the Schwartz case and said, we can't decide this case. Our position is under the Election Law, and particularly Section 16-100, this is a decision that must be made by the Courts. THE COURT: I just want to understand your reading of 16-100 is that there's a process in terms of the Board of Elections determining eligibility. Is it your position that under 16-100, the Court -- going back to some degree, there are issues we SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12) 13 14 15 16 17 18 19 20 21 22 23 24 25 49 talked about, that the Court has always had some type of inherent authority under 16-100 to make a decision on -- any decision other than the Election Law. Are there certain things allocated to the Board of Elections, and if they're not appropriately proper for the Board of Elections, then the Court is without the power to decide them? MR. BERNSTEIN: I think where your question could be appropriately addressed would be deferring to administrative procedures. When an administrative agency acts within its competency and makes certain decisions, those cannot always be second guessed by the Court. THE COURT: And your position is this is not such a case, because this is not a matter that's within the competency of the Board of Elections? MR. BERNSTEIN: That's correct. That the Board of Elections -- that's the Board's position. THE COURT: Well, let me give you -- you have gone for a long time, Mr. Bernstein. MR. BERNSTEIN: I don't want to finish -- I'm not concluded on the electoral college -- THE COURT: I will give you an opportunity to finish any point, but you said a lot of things. I want to give Mr. Lally the opportunity to respond. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 50 MR. LALLY: Sure, Judge, a couple things. And this is regarding the federal jurisdictional issue. There are several places in the Constitution which specifically allocate the power to make the determination for qualifications and -- to the federal government, to the Congress, and politically to the bodies of the electoral college and the United States Congress -- first of all, Mr. Bernstein is right, the electoral college does not meet at one college. It meets at 50 separate colleges in the state legislative Capitol. I would submit if Mr, Bernstein wishes to -- and this goes to the ripeness issue, but if he wishes to make a challenge -- if Senator Cruz is to win New York State in this November, and the electors are then going to meet here in Albany, that would be the time for him to make that kind of challenge. Frankly, I would suggest it not be done in state court, but ought to be in federal court, because this is the more appropriate venue if he wants to. And I'm not conceding that point, what I'm saying is this is clearly not the time or place. THE COURT: This is the point in time? The nation already voted, everyone already selected SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-673910 ql 12 13 14 15 16 17 1g 19 20 ai 22 23 24 25 51 the president. 1 raised issues about the potential chaos it could result in. MR. LALLY: Your Honor, the 20th amendment was passed specifically for the purpose of dealing with issues of presidential qualifications. The U.S. Constitution speaks to the question of whether a president is capable of staying in office. Those issues have been contemplated, anticipated and are actually written into the Constitution. So it isn't the role of us here, prior to a party primary vote for president, to be making those determinations. THE COURT: The 20th amendment deals with the issue if there is a vacancy in the Office of the President for some reason. It doesn't deal with the issue of dealing with the appropriate time to challenge eligibility. It isn't a motion that eligibility -- that we should go through an entire electoral process, then at the end of that have a determination on the eligibility. I think you could see some of the problems with that. MR. BERNSTEIN: Your Honor - MR. LALLY: Your Honor, I understand, but again this is not occurring in isolation, this SUZANNE 'T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 at 12 13 14 15 16 17 18 19 20 21 22 23 24 52 phenomenon. I think it's called a birther phenomenon. This phenomenon has occurred for several presidential cycles, the eligibility for president is challenged across the country. It's legally invalid, has been ruled on by hundreds of courts, and the administrative bodies across the United States. And consistently these cases and these claims -- these objections are dismissed for the reasoning that we set forth certainly on the substantive federal question, preemption doctrine, and political questions issues. THE COURT: A lot of these are dismissed on standing grounds. Also in this case there is —- the Election Law gives the voters standing to challenge the eligibility of the candidate -- MR. LALLY: Understood, but the case law is replete with cases where they simply say that this is not -- you do not have standing to make this challenge to the political institutions determinations. And the electors, when they're elected, their federal functions are they're acting in a federal capacity. They may meet in the state's capital, they may cast their votes in the state's capital, but they're federal officials for that particular purpose and they're not bound -- they are SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a 12 13 14 15 16 17 18 13 20 21 22 23 24 25 53 independent elected officials when they're selected. And history is replete with examples of electors being elected pledged to one candidate, who then when they vote for another candidate -- Ronald Reagan received an elector in 1976 although he was not a candidate on the ballot for election, but the elector choose to vote for him. They're independent individuals. They're not bound to vote for any particular presidential candidate. THE COURT: Anything else you wish to respond to of what Mr. Bernstein said? MR. LALLY: No, I think I have covered the issues, and I don’t know if you had any other questions, your Honor. THE COURT: Let me ask Mr. Bernstein and counsel for the Board of Elections if they have anything else to say. Then I want -- I have a long list of questions I want to make sure they're all addressed here. Why don't you go ahead, Mr. Bernstein. You had something else? MR. BERNSTEIN: My colleague at the bar misspoke, your Honor, as to who's bound. There are 20 states we gave your Honor an appendix -- in which the electors are bound by law to vote for the party that they were selected by in accordance with SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 43 14 15 16 17 18 19 20 21 22 23 24 25 54 the votes of that state. And in some of the states it's actually a felony for an elector to not vote as directed by the election in that state. So we have virtually half of the United States specifically controlling how their electors vote, and yet those electors are supposed to stand up and say, you know what, I just realized that the candidate I'm supposed to vote for can't be president. What am I going to do? THE COURT: We have talked about potential remedies. We're not dealing with a general election, we're dealing a party primary. Each party is capable of having a process to evaluate the eligibility to ensure that candidate for that party's office is not ineligible for office, with all the risks that entails. Why, if we're dealing with a primary process here, why is this now the time? Why isn't it an issue for the party to assess the potential eligibility, and then the potential challenge could be made later on by a voter once the party has nominated the person for office? MR. BERNSTEIN: Here's the answer. There are parties that hold private caucuses in some of the States of the Union; in this case, Wyoming. In SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 55 the majority of the states, the parties have yielded to the states the responsibility of running an election, the primary election under rules set by the states. The Republican party in New York State, were it so advised, could say we don't want our primary to be run by the state. We'll have a caucus, private caucus, and therefore we can set rules as we wish. But in New York State when they ceded control of the primary process to the Legislature, the Legislature was empowered to set rules. One of its rules is, we will not let New York's voters go to an election, be it primary or general, and be offered the opportunity to vote for an ineligible candidate. We're protecting our voters from a miscast and useless ballots. If I could just elaborate or that point, there's several interests here. For example, a voter who's -- to stick with our case, a voter who supports Mr. Rubio will be adversely affected if Mr. Cruz is on the ballot yet ineligible, because inevitably Mr. Rubio would have been the second choice of a Cruz voter. Mr. Cruz's voters are adversely affected because some people will vote -- SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 ca 12 13 14 15 16 aq 18 19 20 21 22 a3. 24 25 56 won't vote for him, thinking he's disqualified. THE COURT: When you say essentially their vote is wasted because they voted for an ineligible candidate, isn't your argument on the back end that there's no further process to address ineligibility? So if they discern that there's no ultimate remedy, then it's only in the theoretical sense that they're voting for someone ineligible -- MR. BERNSTEIN: No, it's not -- THE COURT: So you think at some point -- is there a point down the road in which there's a potential that the votes would be determined for a candidate that would be unable to serve? MR. BERNSTEIN: Well certainly there is that potential, your Honor. We've seen over the last eight years, if you vote for a candidate for president whose eligibility and qualifications for president are called into question, and your candidate is weakened in office because of legitimacy questions repeatedly -- they are foreign born, they did not qualify under the Constitution, maybe they should step aside in favor of the vice-president. I recognize, your Honor, what you're saying, which is there's a possibility that you'll SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a1 12 13 14 15 16 17 18 19 20 ai 22 23 24 25 57 votes for an ineligible candidate. And if your Honor didn't take that candidate off the ballot, nobody might take them off the ballot. That's not a good basis to make a ruling. The Court has to apply the law as the Legislature prepared it, wrote it and said, you have to make this decision now. There are very good reasons to make the decision now. Clarity; people will know that the candidate they voted for is eligible. Every voter has a fundamental right to vote. There's no compelling reason why voters should be allowed to vote for ineligible candidates. I can't think of one. In fact, I can't think of why Mr. Cruz doesn't welcome your Honor deciding this question, because if they think they're right about the issue, they should welcome a decision clarifying this. It's very hard to imagine why Respondent Cruz is opposing this. It's in his interest to get it resolved. THE COURT: Well that's obviously not a question that the Court has to address in this case. MR. BERNSTEIN: Of course not, but it goes to I'm not saying you do, but it goes to the significance of what we're doing. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 58 THE COURT: So let's just -- are there other points you wish to raise? MR. BERNSTEIN: Overall, you mean? THE COURT: Yes. MR. BERNSTEIN: Well, I may be repeating myself slightly. The people who are interested in this case are the Republican voters of the State of New York who are approaching a primary April 19th of this year. Under the Election Law, this Court is very well empowered to make the decision we're asking it to make, and the decision can be quickly reviewed throughout the Appellate process, and that’s the normal way these things are done. The point I would like to make is this. If this was a question of age -- if, for example -- your Honor knows, of course, that Thomas Jefferson was merely 30 years old when he wrote the Declaration of Independence -- 32, I stand corrected, our historian is here to my left. We could at least have a candidate with a high level of capability come forward and say, I'm ready to run for president, I have had lots of political experience, law school education, whatever; and steps up and says, I have got a big SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 lL 12 13 14 15 16 17 18 20 21 22 oa 24 25 59 following in my party, soundings familiar with this case, but I happen to be only 33 years old. Does anybody think that the Court should let that go by? We know that person is not qualified. Should the Court sit back and let voters in New York vote for someone that's not qualified, by law, to be president? That means the opposite of what the Courts do. The Courts enforce the law. They don't refrain from enforcing it, even if practical problems ensue. In the Montana case I referred to, they had to go back and redo the districts after the Supreme Court addressed the question. There's nothing different about natural born -- THE COURT: Let me just -- because I think -- I want to give you the opportunity and Mr. Lally the opportunity to close, which I think is where you're heading. MR. BERNSTEIN: I was part way through -- THE COURT: Just to address any technical questions, then you can sum up any questions I have for the parties. Are you still making the argument, Mr. Bernstein, there was a second filing made that was made five days later, I think on the 29th? There's two sets of objections filed. The second SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 a. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 60 one after -- the second one was after the -- it was disclosed on the website on the 26th that petitions had been accepted --~ MR. BERNSTEIN: Actually -- THE COURT: It was five days later, including a weekend, which made it timely. Is it still your argument that the clock began to run again? Can you explain that? Because I'm not sure I understand that argument. MR. BERNSTEIN: There are three arguments. One we already addressed, which is the three day -- we don't have to go over this again. The three day issue does not apply to the objections filed. The second argument, chronologically before we get to the one your Honor articulated, is that a portion of Section 6-154 opens up a second period at the end of the filing time for certificates of designation; and it says, no certificate -- it says that "an objection can be filed within three days after the end of the period for the candidate to file certificates of designation, if no certificate has been filed,” then it goes on. That's in our papers. THE COURT: Right, but in this case I didn't see the application of that, because the one SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 al 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 that was filed seemed to apply -- MR. BERNSTEIN: We filed it in that time frame. THE COURT: But doesn't the law say that it's three days from the time of the certificate that the designation is filed, or if no certificate is filed, then the end of the period? MR. BERNSTEIN: But you see the ambiguity is in the comma in the statute, and it seems to modify what comes after it as much as what comes before it. I'd suggest to your Honor that if you had -- I don't know if you have to really reach this point. I hope you don't. THE COURT: JI understand. Your argument is that the statute can be read to mean three days from either the end of the period or the time of the certificate of designation is filed? MR. BERNSTEIN: Precisely. THE COURT: That's the way you read the statute? MR. BERNSTEIN: Precisely. THE COURT: Tell me about the third. MR. BERNSTEIN: The third is that we relied upon the Board of Elections' public statements that they finally made to the Republican SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 17 18 19 20 aL 22 23 24 25 62 voters, as much as to the Democratic voters; and therefore we filed objections in a timely manner and that -- those were filed after this case was filed. I could refile this case. It's not a completely clear situation, and I don't maintain that it is, but I maintain that we have substantially complied with every obligation we can, given what the Board of Elections has done. THE COURT: I just want to understand your argument. MR. BERNSTEIN: That's the correct understanding. I must say, your Honor, Mr. Lally before made reference to checking with the Board of Elections. You would have to call the Board of Elections, telephone them every 21 to 22 days to find out whether or not a certificate had been filed, even though they're putting it up on the website for the other party, you know -- THE COURT: But you acknowledge they could MR. BERNSTEIN: -- put it up on their website? THE COURT: But you acknowledge if. understand correctly, your position is that it was misleading because they didn't -- SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873917 18 19 20 2. 22 23 24 25 63 MR. BERNSTEIN: Correct. THE COURT: If they wished to, under the law, they can have a situation where you have to call, both parties have to call -- MR. BERNSTEIN: Right, if they did it for both parties, then we couldn't -- THE COURT: What do you say to Mr. Lally's argument that there are differences -- that the two parties are subject to entirely different -- MR. BERNSTEIN: That has nothing to do with the public notice, that has nothing to do with the kind of thing they file to get on the ballot, but nothing to do with the public. That's the answer to that argument. THE COURT: Let me keep going through and make sure I have addressed all the issues that I wanted to. So I will ask you then, Mr. Bernstein, is there anything you want to say in closing? MR. BERNSTEIN: You know, in many ways I have addressed these points already, the overriding factor in this case is that the voters of the Republican party who are exercising their final right to vote need clarity when they cast their votes when they go to the voting block to cast their votes, they know that they're not wasting their SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 64 vote. That the most important things that control this case, and which I believe the Court should address are the merits, because I think it's very easy to say if a candidate -- an issue arose as to whether or not a candidate for president had been a resident of New York for 14 years or less, or whether they're really 35 or younger, that would not be at all surprising that the Court would address that. What superficially makes this case different is that natural born citizen sounds recondite, it doesn't sound obvious. But whether duration of residency or citizenship, those are matters that are quintessential for the Courts to address as legal questions. They've been entrusted to your Honor on the federal level by Marbury v. Madison, which helps us understand what a political question is not. They've been entrusted to your Honor by the Legislature, 6-1.22 to decide and 16-100. And it would be a disservice to my clients and to the Republican voters of the State of New York if your Honor were not to decide the fundamental issue in front of you. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873965 2 Bernstein. Let me just turn to the Board of 3 Elections, because I left you out. As I understand, 4 essentially your role in this is to take a back seat 5 when there are two candidates, two parties arguing. 6 Is there anything else you wish to add, anything 7 else you wish to say in regard to this proceeding? 8 MS. GALVIN: No, your Honor. 9 THE COURT: Mr. Lally, I will give you the 10 last word so you can close with whatever you wish, 11 whatever points you wish to address. 12 MR. LALLY: Thank you, your Honor. I will ue | try to keep it brief. This election, we're in the 14 middle of a presidential election. The horse is out 15 of the barn, there's been millions of votes cast in 16 the presidential primaries in the United States. a7 Senator Cruz has, at this point, won four 18 of those primaries; Alaska, Towa, Texas and 19 Oklahoma, and come very, very close in several other 20 primaries. He's one of the two top contenders right 21 now for the Republican nomination. 22 This application, this petition to this 23 Court is late. The petitioners don't have standing. 24 It has been done without including necessary 25 parties, it's been done in the wrong forum, in a SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1. 12 13 14 15 16 17 18 19 20 22 23 24 25 66 state court which does not have jurisdiction to make these determinations, and it's been done in contravention of express clauses in the United States Constitution which allocate this decision-making power to other branches, not even the Judiciary. But at this point, the election is in progress. This should not disrupt this election. The candidate -- the Republican party nominee for President of the United States isn't going to be selected in this election, isn't going to be selected when the Republican party meets sometime in May to actually select the delegates. The Republican nominee for president will be selected this summer in Cleveland when the Republican National Convention meets when delegates from all 50 states, Puerto Rico and the Virgin Islands all meet to select a candidate for President of the United States. And, your Honor, with all due respect to this Court, the state courts of New York ought not to interfere in this process. This process is on track. These objections have been made in dozens of other states, they've been dismissed, they have not interfered with the elections in any other state. Senator Ted Cruz is a sitting United SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 States senator. Were he not a citizen of the United States, the Senate has exclusive authority to determine the qualifications of its members. They have not seen fit to question his qualifications, and there are other bodies that have been empowered to review the qualifications of a president-elect or President of the United States, should that situation arise. With all due respect, the most fundamental issues and the easiest for this Court to determine, the Election Law has very strict rules. The petitions here were filed nearly three weeks late. They have a three day objection rule. They blew it. They didn't just blow it close, they blew it by a mile. The Election Law is to be strictly construed and applied as to objectors. The rule is that yes, the ballot access should be liberally applied. Senator Ted Cruz is clearly qualified to be President of the United States and clearly qualified to be on the ballot in November for President of the United States, and I would ask this Court to please dismiss this petition. THE COURT: Thank you both. I thank all three of you very much. This has been a huge help. SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 13 14 15 16 ay 18 19 20 21 22 23 24 25 68 I appreciate -- you have done an excellent job in responding to my questions. T just want to give some sense of the timing of this so the parties know what to expect. I would anticipate that I will have a ruling on this portion of the case, which may be the last portion of the case or may not, depending on what the ruling is on the appropriate questions and authority of this Court to rule on this by Monday, I would hope Monday morning. I don't think that I'll have a decision out tomorrow. I know there was some interest in expediting it to that degree, but I will have a ruling to the parties, I expect, early on Monday. If the case continues to go forward before we reach the substantive issue of natural born citizen, I will set up -- or I will contact the parties on Monday morning to set up a briefing schedule which T believe would lead to an oral argument again following the Friday of the same week of the decision. If not, and I dismiss the case, obviously then it will be up to the Appellate courts at that point to -- go ahead, Mr. Bernstein. You have a question? SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 WR. BERNSTEIN: If I could ask the Court's indulgence, i will be away the first half the week, so if your Honor were to make oral argument on Monday and have simultaneous briefings submitted on Friday, if that works for your Honor. THE COURT: I will take that under consideration. I just wanted to give the parties some sense of the timing of this. There's no sense in talking about hypotheticals. MR. BERNSTEIN: The reason -~ THE COURT: It's good to know your schedule. Okay. MR. BERNSTEIN: Sure. The reason I -~ having looked at this issue and briefs that Mr. Cruz has previously filed, it's clear that simultaneous briefings could be helpful. THE COURT: I will take those suggestions under consideration. Anything else any party needs to raise? Thank you all very much. Have a great day. (Whereupon the proceedings in the above-entitled matter were concluded for the day.) SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-873910 41 12 13 14 15 16 a7 18 19 20 21 22 23 24 25 70 CERTIFICATION I, Suzanne Harrington, an Official Court Reporter for the Unified Court System, Third Judicial District of the State of New York, do hereby certify that I attended and reported the foregoing proceedings; that it is a true and accurate transcript of the proceedings therein to the best of my knowledge and ability. Suzanne T. Harrington Official Court Reporter Dated: 3-14-16 SUZANNE T. HARRINGTON SENIOR COURT REPORTER (518) 285-8739