Attorneys for Gov. Andrew Cuomo argued in court filings last week that a lawsuit seeking to compel the governor to call a special election to replace former congressman Michael Grimm represented an “extraordinary and drastic remedy” for a nonexistent problem. The suit, brought by Ronald Castorina Jr., who serves as the Republican commissioner for Staten Island on the city’s Board of Elections, claims that Cuomo has a “mandatory and not discretionary” duty to call a special election once a seat becomes vacant, and that not doing so is a “continuous and ongoing” failure that the court must address. Grimm resigned from Congress in early January after pleading guilty to federal tax fraud. Cuomo’s lawyers argue that federal and state law places the ability to call a special election at the discretion of the governor, and that a month is not a long enough time to constitute a breach of that duty.
“Plaintiffs do not contend that the Governor has refused to proclaim a special election, but merely that his failure to do so to date constitutes a ‘de facto refusal to call for the election,’” Cuomo’s lawyers wrote, noting that Cuomo has responded publicly that he is looking at factors to determine when the election would be best.
One of the primary cases cited by Cuomo’s attorneys is the 2010 decision in Fox v. Paterson, which held that then-governor David Paterson was justified in waiting a number of months before calling a special election to replace former congressman Eric Massa.
“[P]laintiffs’ identical argument in this case—that the current lack of a special election proclamation constitutes a ‘de facto refusal to call for the election’ … has already been considered and rejected,” Cuomo’s lawyers wrote.