Buffalo, NY (WBEN) Although Erie County elections commissioners have certified a mayoral ballot without Byron Brown's name on it, experts say the incumbent still has a chance to not have to rely on a write-in come November.
Jack O'Donnell of O'Donnell and Associates notes Brown did have a setback on Thursday when a federal appellate court stayed a ruling putting him on the ballot and a state appellate court overturned an order putting him on the ballot. "I think the federal court issued a stay but did not rule on the merits," says O'Donnell.
O'Donnell says that is still a big opening. "They can get the federal lawsuit heard on its merits and try to do it soon," says O'Donnell. "He absolutely has a chance, but that window is closing."
UB's Shawn Donahue agrees Brown's chances are shrinking. "He does have the ability to appeal to the New York Court of Appeals. His other option is that there still is a case pending in the 2nd Circuit in NYC," says Donahue.
"Pretty telling was after the appellate division issued the ruling Brown isn't on the ballot, the 2nd Circuit granted a stay. The reason that is important is what you need to prove to get a stay is there would be irreparable harm and you have a likelihood of success on the merits of the case."
How likely could Brown get a hearing before the election? "The 2nd Circuit was awaiting a ruling from the state. So, if they rule unfavorably to him, there's a possibility of asking all the judges instead of a panel of three to hear the case," says Donahue. He says Brown could also pursue a Supreme Court hearing, but he believes that's unlikely this close to the election.
Donahue says looking at the different rulings, there are bases for each one. "It's not one thing that's a pure slam dunk," says Donahue. "The appellate division rested their decision was merely following the statutory deadlines. One judge says the mayor didn't have any intention of running as an independent. This was his escape hatch after losing the primary." But Donahue says there are decisions Brown could try to rely on for an appeal. He notes as the Erie County Board of Elections needed to certify the ballot to send overseas and absentee ballots Friday, it's unlikely there would be a delay.
Donahue believes the fact the federal court granted a stay shows the 2nd Circuit court didn't necessarily want to rule differently than the state.
The election is November 2nd.
