NY top court declines to hear LaLota appeal of ballot disqualification

ALBANY — New York’s top court on Tuesday upheld a ruling that knocks Republican candidate Nicholas LaLota off the ballot in a key state Senate race on Long Island.

The Court of Appeals declined to hear LaLota’s case, letting stand a decision by a midlevel court which said he couldn’t run for office while simultaneously serving as a Suffolk County elections commissioner.

The decision raises the possibility Sen. John Brooks (D-Seaford) might run unopposed this fall in a district that covers parts of Nassau and Suffolk counties and has been considered a swing seat.

LaLota indicated he would attempt a federal appeal to get back on the ballot. If that fails, Republicans would have to try to get a substitute in the race but could face a legal challenge.

Though the normal time frame for making ballot substitutions is over, a 2010 court case involving the late disqualification of a Democrat on Long Island could provide Republicans with a legal avenue, a source said.

LaLota, when he was nominated for state Senate, said he’d take a leave of absence from his full-time job as elections commissioner. But Democrats sued to remove him from the contest, saying the law clearly blocked him from running.

Last week, the midlevel Appellate Division, in a 4-0 ruling, said taking a leave wasn’t enough to satisfy conflict of interest concerns.

“Status as commissioner is the linchpin of the disqualification to be a candidate, not whether the commissioner is actually performing any of the duties of an election commissioner at any time,” the court wrote.

The Republican then turned to the Court of Appeals, which turned him down.

 “We’re evaluating our options in federal court in hopes that 250,000 South Shore voters have a choice in November,” LaLota said in an email Tuesday.

Nassau GOP Chairman Joe Cairo and Suffolk GOP Chairman Jesse Garcia issued a joint statement saying they were disappointed by the court decision and weren’t ruling out any course of action.

“We will pursue all legal options to ensure that voters in the Senate District are not deprived of their right to choose will be the next senator on Election Day,” they said.

Suffolk Democratic Chairman Richard Schaffer said: “The law is the law: The guy, or gal, who is in charge of counting the votes can’t be in charge of counting the votes of a race you’re trying to win.”

Schaffer said he’s sure Republicans will “attempt to nominate someone to replace” LaLota, which could trigger another legal challenge by state Democrats because the window for making substitutions expired weeks ago.

In 2010, Democratic candidate Regina Calcaterra was knocked off the ballot in August — long after the substitution deadline — amid a court fight over residency requirements to run for state Senate. Though Republicans tried to block them, Democrats eventually won a lawsuit to replace her with Jennifer Maertz, who lost to Sen. Kenneth LaValle (R-Port Jefferson).