Appellate court rules in favor of Republican assembly candidate looking to unseat second district incumbent

A state appellate court has overturned the trial court decision invalidating the designating petitions of State Assembly candidate Mike Yacubich of Shoreham.

A panel of the Appellate Division, Second Department today reversed the Aug. 20 decision by trial court judge John Leo, who found in favor of the Suffolk County Board of Elections — tossing Yacubich’s petitions and keeping him off the ballot in the Sept. 13 primary election.

Yacubich is challenging incumbent Assembly Member Anthony Palumbo of New Suffolk for the Republican nomination. 

The trial court ruled that the candidate’s use of the nickname “Mike” when both he and his son are registered to vote at the same Shoreham address using the given name Michael, was confusing for voters as well as the board of elections.

“The board exceeded its authority when it invalidated the designating petition on the ground that it could not identify which registered voter was the candidate,” the appellate court panel wrote.

The board of elections found the similarity between the two names confusing, the appellate court wrote. But the board does not have power to make findings of fact or rule on questions that do not appear on the face of a petition, the court ruled, citing a 1952 decision by the state’s highest court.

“[S]uch extrinsic matters, if any, are to be determined in court proceedings only,” the appellate panel wrote.

Candidates are permitted to run for office using a familiar name or nickname, the court wrote. “Similar to objections raising allegations of fraud, the issue of whether a candidate’s name is confusing because it is similar to another voter’s name involves a matter extrinsic to the designating petition itself and, thus, is a matter for judicial consideration and not for the Board of Elections.”

The Suffolk Board of Elections lacked the authority to rule on the objection “based upon its perception that the petition was confusing because of the candidate’s name, which should have been raised through a judicial proceeding to invalidate,” the court said.

There was no proof Yacubich intended to confuse voters, or that any voters were confused about his identity, the court said.

The lower court ruled against the county on two other claims made by Yacubich and set a hearing next month on a separate claim that meetings of the board of elections are subject to the requirements of the state’s Open Meetings Law.

The Suffolk Board of Elections could not immediately be reached for comment.

Palumbo said in an email,  “This has certainly been an action-packed primary season and we look forward to the race. Since we’ve been campaigning all along, we are making some minor adjustments and continuing on the trail.”