David v. Goliath: Schwartz Sues to Stop Election Petitioning

By Penny Mintz

Arthur Schwartz is running hard for city council in Council District 3. Running for office is a time-consuming endeavor, to say the least. But that has not stopped Schwartz from continuing to use his considerable legal acumen to try to push people and government to do the right thing. For forty years or longer he has donated his time to lawsuits aimed at such measures as trying to save Beth Israel Hospital, getting ballfields installed at Pier 40, and representing disabled Lower East Side residents who lost a dozen bus stops. He’s been a regular David versus Goliath who now wants to fight battles from a different platform.

ARTHUR SCHWARTZ, SEEN HERE IN THE PRE-PANDEMIC DAYS, would have argued his case against live petitioning in an actual courtroom instead of in a video conference. Post pandemic, who knows. He may be doing his arguing from his city council seat. Photo courtesy of Arthur Schwartz.

Currently, Schwartz is representing 100 candidates running for office in New York State who are seeking to have Albany waive the petitioning requirement for getting on the primary ballot. Election law requires that to earn a spot on the ballot, every candidate must get a specified minimum number of signatures to show community interest in seeing them on the ballot. In Lower Manhattan, right now, there are 79 candidates running for mayor, Manhattan borough president, Manhattan district attorney, public advocate, comptroller, and city council seats in Districts 1, 2, 3, and 4. Numerous others are running for party positions. To win a spot on the ballot in the June primary, all of them, along with a small army of supporters, would normally be out personally collecting signatures. 

Traditionally, petitioners and candidates stand in front of supermarkets, apartment buildings, schools, and subway stops and chat with passersby about their political views and campaign aspirations. They go to parks, dog runs, and farmers’ markets. I myself have been one of those petitioners. I may have approached you. It can be grueling work, especially in cold weather. But under the present conditions of a raging pandemic, no one will or should stand close enough to listen to the pitch. No one should be touching a pen that others have handled. No one should be signing a petition.

Due to the pandemic, the state legislature temporarily reduced the number of signatures needed for each office. Only 30 percent of the signatures mandated by election law are required for the upcoming election. But tens of thousands of signatures are still required just in Lower Manhattan. For every signature garnered, ten or more people are approached. But every contact is another opportunity to spread the coronavirus; thus, petitioning has all the earmarks of being a potential pandemic superspreader. 

As Arthur Schwartz stated in the complaint that he filed in the Supreme Court of the State of New York on February 8, 2021, “the pandemic has taken the lives of 35,000 people in New York State, and one hundred or more people are still dying every day. In the view of most experts, person-to-person contact outside of family members is to be avoided, even outdoors.” He supported his legal argument with thirteen exhibits of factual support. Schwartz asserts that the state has a duty under the state constitution to “protect and promote the health of its inhabitants.” Accordingly, the defendants in the lawsuit, Governor Cuomo and Mayor de Blasio, must come up with an alternate, safe method of certifying candidates. 

Preparing the lawsuit was a Herculean effort. It was done while Schwartz has the full-time job of running for city council. The man has incredible stamina.

Before Schwartz’s lawsuit, petitioning was scheduled to begin on March 2nd. The petitions have to be filed at the Board of Elections by March 25th. 

In a video conference on Monday, February 22nd, Judge Frank Nervo heard arguments to determine whether in-person petitioning violates the state’s constitutional duty to protect its citizens. Based on his comments, it is evident that Judge Nervo does not have a clear understanding of how petitioning is accomplished. He seems to believe that people are seeking out the petitioners, and he compared gathering petitions to going to the grocery store to buy bananas. He suggested that petition gatherers could set up tables surrounded by plexiglass to protect themselves from what he apparently envisions as eager crowds of signers. That scenario was certainly never my experience.

Judge Nervo dismissed the case on February 23rd. Schwartz immediately sought a preliminary injunction to halt the petitioning until his appeal of the ruling is determined by the Appellate Division. The appeal should be expedited, to keep hundreds of petition gatherers from having to seek many thousands of signatures in tens of thousands of interactions beginning March 2nd; unfortunately, however, the case will not be heard until March 8th, four days after petitioning begins.

Leave a Reply