Zellner’s conflict of interest

News and analysis by Geoff Kelly, Investigative Post's political reporter

When Erie County Democratic Committee Chairman Jeremy Zellner got himself appointed the Democratic commissioner to the Erie County Board of Elections in 2015, many protested that he was willingly courting potential conflicts of interest.

Four annual election cycles later, those potential conflicts have become quite real and painfully evident.

In the first stage of this year’s particularly dynamic political season, five women candidates for Buffalo Common Council presented themselves as a slate. They published photos of themselves together. They took training, advice and material support from the same consultants. They turned in their nominating petitions together. Though each had her own race to run, they offered themselves as a team, united by a determination to create some gender parity on the city’s all-male legislative body.

None is running with the endorsement of Zellner’s Erie County Democratic Committee. All are running against the party’s endorsed candidates.

Last week, four of the five learned they are in danger of failing to make the ballot for the June Democratic primary, due to a deficiency in their nominating petitions. The alleged error: A witness statement at the bottom of each page of voter signatures does not indicate that the witness is a registered member of the Democratic Party.

The four candidates used the same blank template that did not include the language, which is standard to nominating petitions for candidates seeking to enter a party primary. A lawyer for those candidates is arguing at scheduled hearings this week before the Erie County Board of Elections — and very likely before an Erie County Supreme Court judge in the next week or so — that the absence of such language does not constitute a fatal flaw under state election law, and that the candidates should appear on the June 25 primary ballot.

Two of the candidates — Antoinette Craig, running for the open seat in the Lovejoy District, and Melanie McMahan, challenging Delaware District incumbent Joel Feroleto — were summarily disqualified by the two county election commissioners, Republican Ralph Mohr and Democrat Zellner, based on the alleged error in the witness statement. Two more — developer Bernice Radle, who is challenging incumbent David Rivera in the Niagara District, and Kathryn Franco, challenging incumbent Rasheed Wyatt in the University District — are facing objections to their petitions in part on that basis.

Tina Sanders, challenging party’s endorsed candidate for the open Fillmore District seat, avoided the fracas and will appear on the ballot. “I didn’t have anything wrong with my petitions,” Sanders wrote in an email. “I didn’t use the same petitions as the other ladies used.”

The five women claim that Democratic Party leaders and the candidates they’ve endorsed are practicing “sexist politics at its worst.” In a joint statement issued last week, they dismissed the challenges as “frivolous and unwarranted” efforts to protect the party’s all-male slate.

Their opponents say the women were simply sloppy in their petitions, thus opening them to possible disqualification.

So how did it happen? How did the candidates manage to circulate a non-standard nominating petition form, when the standard form is easily obtained at the office of the Erie County Board of Elections and on its website?

The answer lies with the consultants who helped all five candidates. All five received material and consulting support from the Baker Project, an initiative of Eleanor’s Legacy, a statewide group that aids women candidates for public office.

Two of the five, Radle and McMahan, are also graduates of a training program offered by Women Elect, a local organization which promotes women candidates. The other three received training and support from both Women Elect and the Baker Project.

Diana Cihak, of Women Elect, denied that the non-standard witness statement entered the petitions invalid under state law. But she did allow that a mistake had been made: “One little piece was imperfect. But at the end of the day the law was followed.”

She blamed that mistake, in part, on this year’s switch to a June primary, and the subsequent abbreviated petitioning period, which coincided with a spate of dreadful weather, which resulted in a great deal of rushing to get things done. She also blamed New York State’s byzantine ballot access procedures.

“The system is set up to be complicated,” Cihak said. “It’s set up to keep people out.”

Certainly, Radle, Craig and compatriots could have saved themselves (and voters, and Zellner) headache and controversy by simply using the petition form that other Democratic primary candidates managed to obtain and submit.

Attorney Frank Housh, retained by Eleanor’s Legacy, said he will argue that the election commissioners overstepped by making a preliminary judgment to remove Craig and McMahan from the ballot. Whether or not the witness statement at the bottom of the petitions circulated by the five candidates represents “substantial compliance” with election law is a question for a judge to answer, not the commissioners, Housh said. The Board of Election’s role is strictly ministerial, not to opine on matters of fact or law. Housh said that the commissioners “should have kept Ms. Craig on the ballot and instructed the objector to seek a legal opinion in court” regarding the legitimacy of the witness statements. That would have put the burden of proof on the objector, rather than the candidate, whose petition is meant, under state law, to be offered the presumption of validity.

“By acting outside of its authority, the Board has effectively and improperly shifted that burden to Ms. Craig,” Housh said. “She and [Eleanor’s Legacy] have the resources to bear this burden, but if she did not, she would simply be out of luck and out of the race before it even started.”

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Which brings us back to Zellner and his apparent conflict of interest. In addition to Radle’s, Franco’s, McMahan’s and Craig’s petitions, Zellner this week will judge the validity of a nominating petition filed by Vanessa Glushefski, who was until last week Buffalo’s acting comptroller. Glushefski is running a Democratic primary for that job against party’s endorsed candidate, Erie County Legislator Barbara Miller-Williams. There is bad blood between Zellner and Glushefski stemming from Glushefski’s race for Erie County Comptroller two years ago.

That a party leader should be in a position to use the powers of a public office to clear the party’s primary of unendorsed challengers invites voters to believe that the fix is in. That conviction discourages participation by both voters and would-be candidates, which leads to incumbents holding onto their seats term after term after term.

Zellner may not be practicing “sexist politics at its worst” in ruling on the validity of nominating petitions; he may well be capable of acting impartially. But it certainly looks bad. Just as critics said it would back in 2015 when Zellner took the job, which paid him $115,417 last year.

When contacted to discuss the petitions, Zellner outsourced the response to a Board of Elections employee, who was quite helpful but not positioned to discuss his boss’s conflict of interest.

Whoever prevails in hearings before Mohr and Zellner this week will likely face a court challenge from their opponents in the following week. Radle’s opponent has already scheduled a court date before State Supreme Court Judge Tracey A. Bannister, just in case. Allowing for appeals, the ballot for some Common Council races may not be set until the end of May.

UPDATE: In hearings on Tuesday, the county elections commissioners ruled to disqualify candidates Radle, McMahan, and Craig, based on the form of their petitions. The next stop for this controversy will be a courtroom, where a judge will decide whether to uphold the commissioners’ decisions or qualify the candidates for the primary ballot.