STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY BARRY KORMAN and WILLIAM GALLO, Petitioners, DECISION AND ORDER -against- Index No.: 707-16 RIINo, 01-16-120014 NEW YORK STATE BOARD OF ELECTIONS and RAFAEL EDWARD (“TED”) CRUZ, Respondents (Supreme Court, Albany County All Purpose Term) APPEARANCES: Roger J. Bernstein, Esq Attorney for Petitioners 535 5 Avenue, 35" Floor ‘New York, New York 10017 Brian L. Quail, Esq. and Kimberly Galvin, Esq, Attorneys for Respondem New York State Board of Elections 40 North Pearl Street, 5® Floor Albany, New York 12207 Lally & Misir, LLP Attorneys for Respondent Ted Cruz By: Grant M. Lally, Esq 220 Old Country Road Mineola, New York 11501 David A. Weinstein, J.: This proceeding arises out of a petition filed by two New York State registered voters, Barry Korman and William Gallo, who seek an order directing respondent New York State Board of Elections (“BOE” or the “Board”) “not to designate” Senator Rafael Edward (“Ted”) Cruz as a candidate in the Republican presidential primary, scheduled to take place on April 19, 2016. ‘The petition, brought by Order to Show Cause, was filed under Election Law § 6-122. That provision states: “A person shall not be designated or nominated for a public office or party position who (1) is not a citizen of the state of New York; (2) is ineligible to be elected to such office or position; or (3) who, if elected will not at the time of commencement of the term of such office or position, meet the constitutional or statutory qualifications thereof or, withrespect to judicial office, who will not meet such qualifications within thirty days of the commencement of the term of such office.” Petitioners contend that Senator Cruz is not eligible for the presidency because he is not a “natural born citizen” of the United States, as required by Article II, Section 1, Clause 5 of the United States Constitution.’ Speci ally, they argue that Cruz is ineligible because he was “naturally born” on Canadian soil, as a citizen of Canada and, so petitioners maintain, cannot therefore be a natural born citizen of this country (see Bernstein Aff. of 2/17/16 45). ‘The BOE responded to the petition by filing a verified answer along with the affirmation of its deputy counsel and various supporting documents. ‘The answer raised four objections in point of law: (1) the Board has acted in compliance with all relevant federal and state statutes and regulations; (2) the petition fails to state a claim on which relief can be granted; (3) the petition failed to join Senator Cruz, who is a necessary party; and (4) the petitioners failed to“timely make or serve objections.” The Board’s supporting affirmation states that Senator Cruz’ letter seeking placement on the ballot for the New York State Republican primary was filed on January 26, and the petitioners” objections were received by the Board on February 17, 2016 (Quail Aff. 945). Subsequent to the service of the Board’s answer, petitioners filed a Verified Amended Petition, in accordance with a Court order issued on February 29, 2016, adding Senator Cruz.as a respondent.? Senator Cruz has submitted the affidavit of counsel and a memorandum of law in response to the petition. He echoes the Board’s contention that the objections submitted by petitioners were untimely, and argues as well that the petitioners failed to name certain necessary parties, the Supremacy Clause bars state courts from construing federal constitutional law in this context, and the question of Senator Cruz’ eligibility for the presidency is a “political question,” to be resolved by the political branches of government, and not by the courts. "The relevant portion of this clause provides: “No Person except a natural born Citizen, or Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President ...” *Because the legal battle before me is joined primarily by petitioners and Cruz, all references to “respondent” below are to the Senator, while references to “respondents” are to both Cruz and the BOE.Oral argument was heard on the procedural objections to the petition on March 3. For reasons set forth below, I find that the objections to Senator Cruz" participation in the New York State Republican primary were not timely filed. Further, petitioners’ arguments against application of the time bar to this case run headlong into the strict construction given by New York courts to the Election Law procedural requirements for an eligibility challenge can be brought, and I see no legal doctrine among those advanced by petitioners which would allow me to dispense with such requirements in this case. Therefore, I must dismiss the petition, and do not reach either respondents” remaining arguments or the substantive issues underlying this, proceeding. Discussion States have “broad authority, absent valid congressional legislation, to establish rules regulating the manner of conducting both primary and final elections” (Matter of Friedman v Cuomo, 39 NY2d 81, 84 [1976] [citations omitted]). ‘This Court’s authority to intervene in electoral matters, however, is “limited to the powers expressly conferred by statute” (see Matter of Scaringe v Ackerman, 119 AD2d 327, 328 [3d Dept 1986]). In particular, my jurisdiction to address the substantive issues in this case is subject to the procedural requirements of the Election Law. Under Election Law § 16-102, a challenge to a candidate’s designation may be filed by a person “who shall have filed objections, as provided by this chapter.” The process for submitting such objections is set forth in Election Law § 6-154. Respondents contend that petitioners did not comply with this provision’s requirement that a voter's objection to a candidate “shall be filed with the officer or board with whom the original petition or certificate is filed within three days after the filing of the petition or certificate to which objection is made, or within three days afier the last day to file such a certificate, if no such certificate is filed ....” (Blec. Law § 6- 154[2]). Specifically, respondents argue that the petitioners’ objections were not filed within these deadlines, ‘The relevant chronology is as follows: Senator Cruz submitted paperwork to secure a place on the New York primary ballot under a cover letter dated January 10, 2016 (Quail Aff, Ex. A). The submission was filed with the Board on January 26 (id.), No notice of such filing was posted on the BOE’s website, for Cruz or any other Republican candidate, and the parties agree that no such posting was required by law. For reasons not explained, however, the BOE did post information on the filings of thecandidates in the Democratic primary, as they were received. Korman and Gallo both submitted identically worded general and specific objections with the Board, which were sent to the Board by Federal Express on February 16, 2016, and were filed with the Board the following day (see Bemstein Aff. of 2/29/16, Ex. C). In their general objections, Korman and Gallo stated their opposition “to the certificate of designation filed with the Board of Elections” and “purport{ing] to name” Ted Cruz as a candidate for president (id). The specific objection fleshed this out in detail, asserting: “Rafael Edward Cruz is not eligible to run for President of the United States because he is not a natural born citizen of the United States as Article Il, Section 1, Clause 5 of the U.S, Constitution requires. Instead, Cruz is a natural bom citizen of Canada” (id). ‘The objections go on to state that, at the time the Constitution was adopted, a “natural born citizen” of any country was understood to be one “born within the boundaries of that country” (id.), and Cruz was only bom a citizen due to a “later naturalization statute” enacted by Congress, which gave him US citizenship because his mother was a citizen This, the objectors argued, did not meet the Constitutional eligibility criteria for the presidency. On February 23, the Board issued a Determination on each objection, which read in its entirety as follows: “After an examination of the specific objections of [objector] to the designating certificate of the Republican Party purporting to nominate delegates for TED CRUZ as a candidate for the office of the President of the United States, and the matter having been considered by the Commissioners of the State Board of Elections on February 23, 2016, the State Board finds that the objection raises issues which are beyond the ministerial scope of the State Board to determine and such objection is made in the incorrect venue, as no direct election for President of the United States occurs via election day ballots. Rather, the April 19, 2016 Presidential Primary is the ballot access process which provides for the election of delegates to a national party convention or a national party convention or a national party conference in 2016. Further, the objection was received after the deadline set in statute, as it was postmarked on February 16, 2016 and received on February 17, 2016. February 4, 2016 was the last day to file specific objections.’ *The BOE’s Verified Answer makes clear that this deadline was calculated as follows: the general objections were due on January 29 (three days after the filing of Cruz’ submission), and the specific objections were due six days from that deadline, or February 4, The Board's determination made no reference to the deadline for general objections, although under its calculations, they were clearly untimely. Petitioners do not raise this omission, and as noted the untimeliness of both the general and specific objections has been raised with specificity in the Board’s answer and by Senator Cruz. Even had petitioners raised the issue, it does not appear that the Board’s failure to mention the deadline for general objections in its administrative 4‘Additionally, no proof of service of the objections was provided as required by statute For the reasons cited herein, the objection is determined to be invalid and the designating certificate retains its presumption of validity. Petitioners submitted a second round of objections, following the initiation of this proceeding. That step was apparently prompted by the Board’s posting on its website of alist of all the Republican candidates, indicating that each had submitted his candidate “petitions” on February 24" (see Bernstein Aff. of 2/29/16 Ex. H). Petitioners filed the same general and specific objections as they had before, mailing them to the Board on February 29, so that they were received for filing on March 1 (id. Ex. 1). The record does not reflect that any response to these objections was made by the Board. Petitioners make several arguments for the timeliness of their objections. First, they claim that the three-day deadline is not jurisdictional, and that the Court has discretion to waive it. They cite a number of reasons why this is warranted in this case, including what they deem to be the unfair and misleading nature of the Board’s disclosure (i.e., posting the date of the Democratic candidates’ submissions on-line while keeping information regarding the Republican candidates only on paper); the futility of such filing, since the Board could not, given its ministerial role, address the objections; and what petitioners contend to be the “liberal construction” required of the Election Law. Second, they claim, via their parsing of the statutory language, that objections are timely so long as they are made within three days of the last day on which the certificate under challenge could legally have been filed, which occurred on February 16, 2016, Alternatively, they contend that the clock for filing objections actually began to tick on February 24, the date on which the BOE website indicated that the Cruz candidate petitions had been filed, and that their second set of objections was timely filed if counted from that date. address each of these arguments, in tum, below. ‘The premise underlying the first argument — that the three-day deadline is discretionary ~ determination absolves petitioners of their failure to meet the deadline, since the time limitations of the statute cannot be altered (see Matter of Breitenstein v Turco, 254 AD2d 566 [3d Dept 1998][court’s extension of deadline for specific objections was a nullity, and objections filed in compliance therewith were untimely]). As discussed infra, this statement regarding the date of filing appears inaccurate. Since it was first revealed in the petitioners” submissions in response to the BOE’s answer, the Board has not addressed thi:is without support in the caselaw. In particular, the Third Department has held, in an opinion affirmed by the Court of Appeals, that failure to submit objections within this period is a bar to a later suit challenging a candidate’s eligibility (see Matter of Bennett v Justin, 77 AD2d 960 [34 Dept 1980], affd 51 NY2d 722 [1980)). Petitioners contend that Bennett is ambiguous in this regard, but a reading of the decision does not support that view. In Bennett, the Third Department dismissed two of the petitioners on the ground that they were not enrolled in the party whose primary was at issue. The Court then stated the following: “The designating petition at issue herein was filed on July 25, 1980. Objections must be filed within three days after the filing of the petition to which objection is made. The time starts to run from the date of filing of the petition and not the last day on which petitions may be filed. No objections herein were filed until after July 28, 1980 and thus they were untimely. Moreover, objectors . . . failed to deliver or mail a duplicate copy of the specifications to the candidate, as required by the rules of the Board of Elections. Failure to comply with the rules of the board has been held to be a fatal defect. Thus, objectors... lack standing” (id. at 961 [citations, internal quotation marks and ellipses omitted). Petitioners’ protestations to the contrary, I find no ambiguity in this language, While the term “fatal defect" refers specifically to the Board’s rules, and thus to the failure to mail a duplicate copy of the objections, the Court clearly held the petition “untimely” as well, stated that general objections “must” be filed within three days, and presented petitioners’ failure to comply ‘with this time frame as one of the bases for dismissal. Tt is unclear why, moreover, failure to comply with the Board’s rules would be fatal to a challenge petition, but failure to comply with the procedures mandated by statute would not be. Nowhere did the Third Department — or the Court of Appeals in adopting the Appellate Division ruling — intimate that the three-day period ‘was flexible, subject to exceptions or enforced only in the Court's discretion. Rather, such caselaw as exists on this question confirms the reading that a petitioner's failure to meet this, deadline deprives the Court of jurisdiction to address his or her objections (see Matter of Green v Mahr, 231 AD2d 480, 480 [2d Dept 1996] [when petitioner filed no general objection, and the specifications she filed challenging designating petition “were filed more than three days” after it ‘was filed, petitioner “was not a proper objector”; Mackay v Johnson, 20 Mise 3d 1136[A] [Sup Ct, Nassau Cty 2008}, afl 54 AD3d 428 [2d Dept 2008] [because individual “did not file an objection to [candidate's] designating petition within three days of the filing of the petition, [she]is without standing to bring this proceeding”). Petitioners note that the statute provides that the failure to make timely specific objections renders them “null and void,” but contains no similar language regarding general objections (see Elec. Law § 6-154[2]). On this basis, they contend that the failure to timely file general objections is not a jurisdictional defect (see Pet. Mem. of Law at 7-9). Such a reading is at odds with the caselaw cited above, and inconsistent with the exceedingly strict construction siven by the courts to Election Law procedural requirements governing objections to candidate petitions. Indeed, highly technical defects in the filing of objections have repeatedly been found to constitute an absolute bar to suit (see e.g Matter of Maniscalco v Power, 3 NY2d 918 [1957] [eligibility challenge invalid when not served on first person named on the Committee on Vacancies]; Matter of Raimone v Sanchez, 253 AD2d 506 [2d Dept 1998] [absence of postmark on envelope containing objections was “fatal defect”); Matter of Sgambati v New York City Bd of Elections, 224 AD2d 564 [2d Dept 1996] [objections dismissed for failure to include “addresses of the candidates being objected to”]; Matter of Zogby v Longo, 154 AD2d 889 [4th Dept 1989] [objections invalid for failure to serve copy on candidate and file certificate of service]). The statutes and rules at issue in these cases did not spell out that failure to comply with the procedures at issue rendered the objections “null and void,” but the Court still found the legal challenges at issue barred by such infirmities. Further, an entirely plausible alternative explanation presents itself for the inclusion of the “null and void” language only in regard to specific objections. Specific objections are required only once a general objection has been timely filed, and the clock for filing the former begins to tick with the submission of the latter. ‘The import of the statutory language is to clarify that both components must be filed within the statutory deadline before the objections may be considered; that is, even if'a general objection is timely, that objection is rendered a nullity if the specifications are filed more than six days later. Such a reading is far more consistent with the statutory language and the caselaw than petitioner's alternative — that the three-day period is “discretionary,” and only the six-day deadline is jurisdictional. Petitioners also contend that the provisions of the Election Law must be “liberally construed,” so that it should not be read to raise technical barriers to eligibility challenges. But ‘the law evinces no such intent. While there are two potentially relevant sections of the Election Law that require liberality in construction, neither is of assistance to petitioners.Article 6 of the Election Law includes language mandating that it be “liberally construed, not inconsistent with substantial compliance thereto and the prevention of fraud” (see Election Law § 6-134[10}). But that provision is aimed at “all rules relating to the validity and submission of petitions” (Governor's Approval Memorandum, Chapter 709 of the Laws of 1996 [emphasis added]; see also Association of the Bar of the City of New York, Com Election Law, Memorandum in Support of S. 7856-a of 1996 at 4 [provision of bill “expand{s] the provision . .. for liberal construction . .. to apply to the entire section of the Election Law prescribing the rules governing the preparation and filing of petitions”] {emphasis added). It was enacted as part of legislation “to make ballot access simpler and fairer for candidates in political- party primary elections...” (Mem. in Support, S. 7856-A of 1996; see also Governor's Approval Memorandum, supra [noting that New York's ballot access laws “have generated frequent, costly and time-consuming legal challenges”]). In short, the legislative history makes clear that this language, while not intended to prevent challenges to improper candidates, was inserted to ease the process for getting on the ballot, not to facilitate challenges to eligibility. The second such provision, in Election Law § 16-100, states in regard to the Supreme Court's jurisdiction to “summarily determine any question of law or fact as to any subject” arising under the Election Law, that such jurisdiction “shall be construed liberally” (Election Law § 16-100[1]). The caselaw is clear, however, that this statutory admonition is not intended to «waive or soften the deadlines and other procedural requirements of the Election law. Thus, in Matter of Breitenstein v Turco (254 AD2d 566 [3d Dept 1998]), petitioners were granted an extension of time beyond the six-day statutory period to file additional specific objections to a nominating petition, and met the extended deadline. Yet the Third Department still held these objections to be untimely. Noting the “liberal construction” mandate of section 16-100, the Court nonetheless found that in a special proceeding under Article 16 “a party may seek relief only in the form and to the extent that Election Law article 16 expressly permits” (id. at 567). SBreitenstein noted the “null and void” language regarding the six-day deadline for specific objections in its holding. It made clear, however, that its holding applied more broadly to other filing periods set forth in the Election Law, reasoning that “relaxing the mandatory filing requirements would not only render the various deadlines set forth in the Election Law utterly ‘meaningless, but would also interject confusion and inequality into a process where the Legislature plainly intended stability and uniformity to prevail” (254 AD2d at 567 [citation omitted).Because no provision is made in the article to extend the time for filing specific objections, the petitioners were time-barred from raising them, Matter of Cuillinan v Ahern, 212 AD2d 103, 107 [4th Dept 1995] [while the Legislature ral construction notwithstanding (id.; see also ‘mandated liberal construction of Article 16, “[a}t the same time, the Legislature recognized that such judicial review would only be effective if it was achieved expeditiously,” and t goal “is, further reflected in the time constraints” of Article 16]; Matter of Spencer, 71 AD2d 1062 [4th Dept 1979] [liberal construction does not relieve the Court of obligation to dismiss petition suffering from a “fatal defect”)). The Election Law is strewn with numerous procedural pitfalls that can prevent a court from hearing a meritorious challenge. But the caselaw cited above makes clear that they are to be enforced strictly. This approach is in line with a key purpose of the Election Law: to avoid “costly delays and interruptions in the election process” (see Matter of Village of Herkimer Republican Party, 119 Mise 2d 801, 804 [Sup Ct, Herkimer Cty 1983]). In sum, there is no apparent authority to support the argument that principles of liberal construction should relieve the petitioners of the technical requirements of the law. Having found that the three-day time limit is not discretionary, I consider petitioners’ arguments that the deadline was, in fact, met in this case, or alternatively, that it should not apply based on principles of estoppel, or because filing timely objections would have been futile. There are two bases for the contention that petitioners’ objections were submitted within the three-day period ~ neither of which is supported by the statutory language or the record. First, petitioners assert that the three days can be measured from the last date on which a candidate's certificate was allowed to be filed ~ in this case, February 16 (see Pet. Mem. of Law at 10). This ignores the specific language of the statute, which provides that the deadline is calculated in this manner only if ‘no such certificate was filed.” While petitioners’ counsel maintains that the statute's phrasing is ambiguous in this regard, reading the provision in the way petitioners request would leave no role to play for the deadline from actual filing ~ since the later deadline would always apply ~ as well as leave the phrase “if no such certificate was filed” an orphan, This reading was, in any case, rejected in Bennett, which stated definitively: “The time [for general objections] starts to run from the date of filing of the petition and not the last day on. which the petition may be filed” (77 AD2d at 961). Equally unavailing is the claim that the three-day period should run from February 24, 92016. That contention is based on a printout of the Board’s website for February 29, which lists February 24 as the “received date” for petitions for every Republican candidate. Asa result of this posting, petitioners refiled their objections by sending them to the Board on February 29, and now claim that the second set of objections is timely. Assuming that these objections are properly before me ~ although they post-date the filing of the petition and are not addressed therein ~ I find that they cannot undo the bar ereated by the late filing of the first set. The precise meaning of the information displayed on the website is not clear from the record. Tt appears, though, that the website now lists the same default information {or all Republican candidates. This information is directly contradicted as to Senator Cruz by the Board's submission in this case; it indicates that each candidate filed petitions eight days after the deadline; and their petitions are all listed as “0” pages long. In any event, the Board’s submission states unequivocally that the Cruz letter seeking access was filed on January 26, and Senator Cruz, presented a copy of his submission file-stamped on that date. Petitioners submitted their objections thereto, and the Board made a determination thereon ~ all before this new date ‘was listed. Thus, even assuming that the February 24 date is anything but a website error, it has no meaning, as the time for submission of objections cannot be extended, nor are petitioners entitled to a second bite at the apple once the initial three-day period has expired (see Matter of Breitenstein, supra). As to petitioners’ argument that the disclosure on the BOE website was misleading because it initially listed only one party’s submissions, petitioners acknowledge that there is no legal requirement that the BOE give notice via the Intenet at all. Korman and Gallo contend, however, that in making a web posting of the date on which the Democratic candidates certificates were filed, the Board led potential objectors to believe the same would be done for the Republican candidates, That argument is unconvineing, on several grounds. First, in two prior cases objectors have sought to escape the impact of technical defects in their submissions on the ground that they were the result of the Board's purportedly misleading disclosure. In both cases, the courts declined to excuse the error on such basis (see Matter of Young v Thalmann, 286 AD2d 550 [3d Dept 2001] [rejecting argument that petition should not be dismissed for failure to meet service requirements in local rule, and that rule should be waived, because Board did not follow “usual procedure” of providing copy of rule to petitioners at time objections were filed]; Matter of Hayon v Carrion, 41 Misc 3d 356 [Sup Ct, Kings Cty 102013] [rejecting argument that failure to file objections alleging fraud should be excused, because petitioners were “misled” by statement in the Board’s rules that Supreme Court, not the Board, was appropriate forum for determining allegations of fraud]). Second, petitioners make no allegation that the information regarding Cruz’ submission ‘was unavailable to them. As respondent points out — and petitioner does not dispute — petitioners could have found out if the certificate had been filed on any given day via any local BOE office (Resp. Mem. of Law at 6).° Third, petitioners do not set forth any legal doctrine that would allow for waiver of the statutory deadlines on the basis of this record. In their memorandum of law, Korman and Gallo intimate that they are relying on principles of estoppel (see Pet. Mem. of Law. § 2 [“The Board is estopped from raising this issue by its arbitrary failure to provide any statewide notice of the Republican candidates’ filings for the primary ballot even while providing statewide notice of the Democratic candidates" filings ..."]}. But estoppel is “not available against a governmental agency in the exercise of its governmental functions and respondent may not be estopped by the erroneous acts of its administrative employees” (see Matter of Dear v New York State & Local Retirement Sys., 115 AD3d 1141, 1143 [3d Dept 2014], Iv denied 23 NY3d 905 [2014] [internal quotation marks, brackets and citations omitted]). While an exception to this principle is made ‘upon a showing that petitioner reasonably relied on the agency's “fraud, misrepresentation, deception or si New York State Dept. of Envtl, Conservation, 119 AD3d 1172, 1173 (3d Dept 2014)), there has ilar affirmative misconduct” (see Matter of Atlantic States Legal Found., Ine. v been no such showing here. For one thing, there is no allegation that the Board made any misleading statements at all regarding the status of Cruz’ filing or the rules for making objections, At most, petitioners assert that they were lulled by the postings regarding Secretary Clinton and Senator Sanders into believing that ~ contrary to general practice ~ the BOE would post information about Senator Cruz on-line, although there was no announcement by the Board that this would be done. In addition, there is no evidence of reliance set forth in petitioners’ papers, and the record calls into question whether such reliance was even possible. Petitioners’ submission states that the Democratic petitions were received between February 1 (for Senator “Indeed, one individual did file a timely objection to Cruz’ candidacy, but he is not a party to this proceeding (see Resp. Mem. of Law at 2). uSanders) and February 4 (for Senator Clinton) (see Bernstein Aff. of 2/29/16 4 8 & Ex. G). Senator Cruz’ designating certificate was filed on January 26 ~ six days before the first Democratic candidate’s filing was reflected on-line. Thus, the deadline for timely objections had expired before the information regarding the Democratic office-seekers had ever been posted. In the absence of any affirmative misrepresentation by the Board, or any evidence of reliance by petitioners on the Board’s statements, petitioners cannot succeed on their estoppel argument (see Matter of Hayon, 41 Misc 34 at 358 [rejecting estoppel argument against BOE because petitioner failed to show affirmative misrepresentation]), Petitioners also contend that the objection requirement should be waived in this case, because submitting an objection would have been “futile.” That is because the Board has stated in its determination on petitioners’ objection that it will only rule on ministerial issues, and did not consider the legal definition of natural born citizenship to be within its purview (see Bemstein Aff. of 2/29/16, Ex. A [“the State Board finds that the objection raises issues which are beyond the ministerial scope of the State Board to determine . .."]). According to petitioners, this is in keeping with the Court of Appeals’ holding that where the validity of the objection cannot be determined on the face of the petition, such matters “are to be determined in Court proceedings only” (see Schwartz v Heffernan, 304 NY 474, 480 [1952]. Since the Board said that it was without power to rule on the objection, petitioners argue, it would have been fatile to place it for the Board’s consideration, and thus it was unnecessary for them to object at the administrative level. When a party is required to exhaust administrative remedies prior to commencing suit, he or she need not do so “when resort to an administrative remedy would be futile” (see Watergate I Apartments v Buffalo Sewer Authority, 46 NY2d 52, 57 (1978]). Exhaustion is “futile, however, only when the agency has already rejected the argument in question (see Lehigh Portland Cement Co, v New York State Dept. of Envtl. Conservation, 81 NY2d 136, 141-142 [1995] [exhaustion futile when it involves challenge to a “long-standing agency position,” but not when “agency had not passed on the issue”]). Resort to administrative remedies is not excused merely because “the contention is made that the administrative body lacked power over the subject matter” New York Inst, for Educ. of Blind v United Fedn, of Teachers' Comm. for MY. Inst. for Educ. of Blind, 83 AD2d 390, 403 [1st Dept 1981], affd 57 NY2d 982 [1982)). The futility doctrine has never been applied to the process for challenging candidates 12under the Election Law, and adopting it here would upend settled law. The upshot of finding that the filing of objections with the Board can be excused as “futile” would not simply be to allow petitioners to avoid the timeliness requirements in such cases; it would be to waive the objection requirement altogether. But that outcome would be at odds with the established principle that the filing of objections is a jurisdictional prerequisite to suit (see Matter of Nicolai v Kelleher, 45 AD3d 960 [2d Dept 2007] [individuals” failure to file objections “deprives them of standing to maintain this proceeding”); see also Matter of Hayon, 41 Misc 3d at 358 [City Board of Elections rule that Board did not have authority to consider fraud claims did not excuse petitioner from filing an objection regarding such claim before proceeding into Court). Moreover, to the extent that futility could be a reason not to submit objections in some instance, I would still find it inapplicable here. Petitioners make no showing that the BOE had ever addressed the issue of its authority to rule on a candidate’s constitutional eligibility for the presidency in response to an objection, or even said that it would refrain from interpreting a constitutional provision,’ Instead, Korman and Gallo point to the general propositions set forth in Schwartz regarding the allocation of authority between the Board and the courts as the ground {for their futility argument, and the position taken by the Board in this case. Schwartz, however, addressed the Board’s inability to adjudicate factual matters outside the record, and did not specifically consider its authority to rule on disputed legal questions. Absent some evidence that the position taken by the Board in this instance pre-dated the current dispute, petitioners cannot plead futility on a mere assumption about how the BOE would address an issue that it had never before considered. And rather than ensuring the expeditious treatment of cases required by the Election Law, adoption of this doctrine would lead to litigation over side issues as to whether the filing of objections is necessary in particular cases. Such an outcome is unsupported by any authority construing the Election Law, and would be inconsistent with its aim that eligibility challenges be resolved expeditiously. In sum, despite the many arguments proffered by petitioners, none can get them around the immovable object standing in the way of this petition: their failure to have filed objections within the statutory deadline. Indeed, each argument they advance ~ that the time period for 7 The Board noted at the March 3 hearing that it believed it had the authority to determine a presidential candidate's eligibility based on age, but viewed the question of natural born citizenship as entailing legal interpretation beyond its purview. Bgeneral objections is discretionary rather than jurisdictional; that there is no need to make objections if they ate futile; and that the time limitations of the Election Law can give way if the BOE acted in a manner that might mislead a petitioner — is made in the absence of a single case so holding. Finally, petitioners put forward what is essentially an equitable argument for the exercise of the Court's jurisdiction: the voters of New York “have a compelling interest in exercising their fundamental right to vote for candidates that meet the qualifications for public office and not for candidates that are ineligible” (Pet. Mem. of Law § 1). To the extent that petitioners can be understood to say that the Court should rule notwithstanding the technical infirmities in the petition, because of the importance of this issue, I find no legal basis to do so for the reasons set forth above. Moreover, were I to address the substantive questions underlying this case notwithstanding the apparent procedural bar of petitioners’ untimely objections, and rest jurisdiction on a series of exceedingly thin legal reeds that have never been adopted by any court in this State, it would as likely create chaos and uncertainty as provide clarity, In sum, for all of the reasons set forth above, the petitioners’ failure to submit timely objections deprives this Court of jurisdiction over the petition, and it is hereby dismissed. Ineed not, therefore, address respondents’ alternative arguments for dismissal. ENTER Dated: Albany, New York Sh f March 7, 2016 w) Yk rs David A. Weinstein Acting Supreme Court Justice Papers Considered: i Petitioners” Order to Show Cause, dated February 18, 2016, Affirmation of Roger J Bernstein, Esq., and supporting papers annexed thereto; re Respondent Board of Elections letter to the Court, dated February 26, 2016; 3. The Court’s Order dated February 26, 2016; 144, Respondent New York State Board of Elections’ Verified Answer, dated February 26, 2016, Affirmation of Brian L. Quail, Esq. with Exhibits A through C annexed thereto: 5. Petitioners’ Amended Verified Petition, dated February 26, 2016, with Exhibit A annexed thereto; 6. Petitioners’ Memorandum of Law, dated February 29, 2016, Affirmation of Roger J. Bernstein, Esq., with Exhibits A through J annexed thereto; 7. Respondent Ted Cruz’ Answer, dated March 2, 2016; 8. Respondent Ted Cruz’ Reply Memorandum, dated March 2, 2016, with Exhibits A through G annexed thereto; and 9, Petitioners’ Reply Memorandum of Law, dated March 3, 2016. 15