BUFFALO, N.Y. — Five independent voters from the city of Buffalo are challenging New York's deadline for candidates to submit independent nominating petitions.

"The case that my clients are making is that the deadline is simply too early, and it's too early because it cuts off the opportunity for independent candidates to get in the race 28 days before the primary election," attorney Bryan Sells said.

The suit dates back to 2021 when Buffalo Mayor Byron Brown lost a Democratic primary to challenger India Walton then attempted to get on the ballot as an independent. A federal district court judge initially granted Brown an injunction allowing his petitions to stand, but the appellate court reversed the decision.

Brown ultimately staged a successful write-in campaign, but the challenge continues. 

"This could happen again and when you have an issue like this that is, what they say, capable of repetition, it means that the lawsuit doesn't necessarily go away," Sells said.

A district court judge has since ruled the current rules are constitutional, so the plaintiffs last week filed an appeal with the Second Circuit Court. The defendants have argued the current law stabilizes elections by preventing "sore loser" candidacies.

"This would basically, there's an attempt to give the losers in a primary election a second chance," Republican Erie County Board of Elections Commissioner Ralph Mohr said.

Mohr, who is one of the defendants, said specifically with the Buffalo mayoral election in which the injunction would have allowed Brown to get on the ballot up to roughly a month before the general election, the timing was far too burdensome for the board. 

"That was too late in the process for the board of elections to print ballots and get candidates qualified and review petitions. Sometime early in the spring or early summer would be acceptable to the board of elections," Mohr said.

Sells pointed out New York currently has the third earliest deadline in the country and the deadline had been around mid-August until 2019 when the Legislature moved primaries to June. He said, like with the Buffalo race, the nature of campaigns often changes throughout the process and state law should reflect that.

"Because we don't have a candidate that we're trying to get right on the ballot, the way I think a court would want to deal with this if it rules in our favor is to say to the state of New York, that deadline's no good. Come up with one that is," he said.

Mohr said the Erie County Board could potentially adjust its procedures to a later deadline that is more reasonable than the initial injunction established in 2021. The plaintiffs point to precedent set by a previous case out of Ohio in the early ‘80s in which the court ruled the state's deadline in a presidential race did violate voters' First Amendment rights. 

Mohr said the circumstances in that case are different and the Ohio deadline was earlier than the one in New York. He said the state Attorney General's Office is primarily defending the case as the ruling will affect the entire state.