Gov. Andrew Cuomo is violating the Constitution by refusing to call a special election to fill the House seat left vacant by tax-cheating Rep. Michael Grimm, a lawsuit alleges.
A Staten Island lawyer is suing the governor for dragging his feet in setting a date to elect a new representative for New York’s 11th Congressional District, saying that Cuomo should have issued a Proclamation of Election as soon as Grimm resigned on Jan. 5.
Instead, Cuomo is playing politics and disenfranchising voters in Bay Ridge and the Rock, the attorney said.
“It’s not the most difficult — or involving a very cerebral set of decision-making processes — thing to do,” said lawyer Ronald Castorina, who is representing eight plaintiffs in the district pro bono. “You have a constitutional mandate and are 42 days delinquent in your mandate, your duty, your obligation.”
The governor is dragging his feet on the election in order to put the Democratic Party on a better footing, said Castorina, a Republican who has served as a Staten Island GOP Board of Elections commissioner. Castorina insisted that his lawsuit is not politically motivated.
Democrats initially floated Assemblyman Bill Colton (D–Bensonhurst) and Councilman Vincent Gentile (D–Bay Ridge) as contenders against Republican-nominated Staten Island District Attorney Daniel Donovan. Castorina believes Democrats see both Colton and Gentile as weak contenders, and delaying the election would give the party time to find a better nominee.
A spokeswoman from the governor’s office acknowledged the suit, but would not comment on the notion that the governor is playing politics.
“The governor’s office will review the suit and we are fully aware of our obligations under the law,” spokeswoman Dani Lever said.
The governor has more leeway when to hold special elections for the state legislature, but when it comes to filling federal vacancies, he has to act immediately, according to Castorina.
“Circuit courts have maintained and clarified the law to indicate that the mandate for the governor to call the election is upon vacancy — that’s the triggering event,” he said.
Grimm resigned the seat days after pleading guilty to tax fraud he committed while running a restaurant he owned before taking office.
Grimm could face up to three years in prison. The tax fraud charge was part of a larger, 20-count indictment that also alleged he hired undocumented workers and perjured himself. Along with his guilty plea on one count, Grimm acknowledged that federal prosecutors had enough evidence to prove that he hid $900,000 that came into the eatery, Healthalicious, and used the cash to pay employees under the table from 2007 to 2009, then lied about it during a 2013 deposition in a civil suit.
A delay could also put Donovan in a bind — if Cuomo holds the vote during the general election in November, Donovan will have to choose between running for Congress or sailing to reelection as district attorney, Castorina said.
The empty seat leaves would-be military academy cadets in the lurch, as military academies such as West Point require prospective students obtain a nomination from their congressional representative or senator. Typically, students begin the process of obtaining a nomination in the spring of their junior year in high school. It also leaves 750,000 people in Brooklyn and Staten Island without representation in Washington.
“People have sons or daughters who wants to go to military academy, and it’s budget season — a lot is happening in Washington,” he said. “We’re left to wait with bated breath as to whether or not [Cuomo is] going to call it.”
