The Appellate Division of the State Supreme Court last week awarded 4th Congressional District (C.D.) candidates Steve Irace and Marilyn O'Grady, both of Garden City, the right to keep their names on the Sept. 10 Republican primary ballot. The 4 to 1 decision is the result of an appeal set forth by both Irace and O'Grady late last month after opponent Daniel Frisa of Salisbury challenged their nominating petitions.

Frisa, a former state assemblyman and member of the House who lost his seat to current Congresswoman Carolyn McCarthy (D-Mineola) in 1996, challenged the nominating petitions submitted by opponents Alan Skorski of West Hempstead. O'Grady and Irace, arguing that his opponents did not secure the necessary number of signatures to remain on the ballot. Skorski has since dropped out of the race.

In order for one's name to appear on a congressional primary ballot, a candidate must secure at least 1,250 signatures of registered Republicans within the district's boundaries.

In the case of the 4th C.D., Frisa secured some 1,600 plus signatures while O'Grady, Irace and Skorski also exceeded the signature requirement mark of 1,250 names.

Once filed with the Board of Elections (BOE), the petitions become public document. A closer look at the petitions by Frisa's attorney, Steven Leventhal, however, found that although Skorski, O'Grady and Irace secured more than the required number of signatures, not all of them were valid because some signers were not registered Republicans within the 4th C.D.

In order to sign a petition for a party candidate, one must be a registered voter of the party and district the candidate is seeking to represent. In this particular case, the signature of a non-Republican registered voter who lives within the 4th C.D. or the signature of a Republican voter who does not live within the 4th C.D. would not count toward the required number of signatures on a Republican petition. As a result, one invalid signature on a page caused the entire page to be rejected. In addition, alterations to one item on a page or failure to comply with BOE guidelines also made an entire page null and void.

As Irace, a former Nassau County Assistant District Attorney, and his family reviewed the signatures on his petition, 16 names appeared per page and on some sheets there were signatures from people who lived outside of the 4th C.D. Citing an example, Irace said an Island Park resident signed the petition and therefore had to be eliminated.

"I [originally] had 1,907 signatures and I only needed 1,250," he said. "The BOE reviewed my signatures and placed my name on the ballot. Frisa then sues, goes to court where a judge assigns the case to a non-judge referee who knows absolutely nothing about election law."

Irace added, "I thought removing signatures I knew were bad was the right thing to do and in doing so, change the number on the witness line. As a result, we clearly overwrote the number 16 with the number 15 on the witness line. Well, there are rules that if you make an alteration on the witness line, the whole page of signatures is bad. It's hard to believe that the law would state that such honest work could be construed and treated that way, but in fact it was. [After] a line-by-line court review of every signature I had, numerous whole pages were lost. My signatures went down below 1,250."

Irace said that after meeting with the referee and an array of lawyers, some of whom came from Albany and claim to be election experts, they began pulling rules out of a hat. This review went on from 10 in the morning until 9:30 at night. In an effort to move the situation along, Irace agreed to discontinue the line-by-line challenge of his petitions and will instead join O'Grady in what he believes to be a very strong issue based on a defect in the way Frisa brought about his legal proceeding.

"Frisa challenged everybody, including McCarthy, in an attempt to win in court what he apparently felt he couldn't win legitimately in the voting booth," he said. "All of the other candidates disregarded these tactics or chose not to use them, particularly in light of the Bush-Gore election. We really felt the public didn't want to see election contests resolved this way so none of us looked at each other's petitions."

O'Grady, an ophthalmologist currently serving on the medical staff at Winthrop-University Hospital, the Long Island Surgicenter and the Nassau County Medical Center, has vowed to continue her race for the congressional seat despite Frisa's attempts to remove her name from the Republican and Conservative primary tickets. To prove her determination, O'Grady opened her headquarters at 66 New Hyde Park Road in Garden City on Aug. 21.

"If Dan Frisa thinks he can take away the right of Republican and Conservative voters to pick their candidate, he is sadly mistaken," she said. "I vow to continue my race with a write-in campaign and if Mr. Frisa doesn't want to win the September primary fairly I will give him a primary on November 6. I intend to fight for every single Republican and Conservative vote on November 6."

O'Grady, who ended up being only five signatures short on the Republican ticket and seven signatures short on the Conservative ticket, also had 24 signatures that also appeared on Irace's petition. "That's fatal so we had to get rid of those and I understand that," she said. "Everything else was technical. There was no evidence of fraud, no shenanigans, no making up names, no bogus witnesses, no nothing. It's really an outrage because it's all just honest, silly errors."

O'Grady also said, "Dan Frisa has thumbed his nose at the Republican and Conservative voters as well as the parties who publicly called for a primary to allow the voters to pick their candidates. I respected both parties' wishes and did not challenge Mr. Frisa but he challenged me. Mr. Frisa is obviously afraid to let the voters decide, but I am not. He knows his reputation is in tatters from his AWOL (Absent Without Leave)

campaign in 1996, so his only chance at winning was to eliminate the primary on September 10. Well, guess what Dan? It's not going to work."

The Appellate Court heard Irace's and O'Grady's case on Tuesday, Aug. 27. A decision was made the following afternoon. At that time, Frisa appealed the decision to the Court of Appeals on the grounds that the Appellate Division was wrong on the law. "They quoted cases in their decision that don't apply," Frisa said. "We have to make that case to the Court of Appeals."

He added, "[The Court of Appeals] has to agree to hear it. It is kind of like the United States Supreme Court where they have to give permission. If they grant permission, we think they will side with us because of the faulty ruling in the Appeals court. That's what the lawyers tell me ... At the same time, we've got 11 days before the primary and we are all systems go. We haven't taken our eye off the people who are most important in the process."

While Frisa, Irace, O'Grady and Skorski exceeded the required number of signatures, a closer look at the petitions by Frisa's attorney found that not all the signatures on Irace's, O'Grady's and Skorski's petitions were valid because some were not registered Republicans within the 4th C.D. One invalid signature on a page or a correction made to one item on a page voided out the entire page, therefore significantly decreasing the actual number of signatures each candidate had.

Irace, however, said that Frisa's argument was null and void since Frisa himself made the same mistakes. "His failure rate, to the extent I reviewed them and I really did not review them all, but his failure rate was about 30 percent on his signatures," he said. "He made the same mistakes we made. They were the honest mistakes of honest people."

Irace added that despite the court's ruling in his favor, there are still some hard feelings. "The agreement was that we would have no dirty tricks, no negative campaigns. I do not think [what Frisa did] was the right thing to do. We are all supposed to be fellow Republicans with a common purpose and fighting among each other isn't part of that common purpose," he said. "The primary is only settled by Republican voters and the voters are the ones who got cheated by these tactics because they did not get to see three weeks of campaign performances by the candidates they are going to have to decide between."

Although he is glad the courts ruled in his favor, Irace said such a decision should never have made it to the courts in the first place. "This was a needless waste of time and energy," he said. "It deprives the voters. Instead of spending the last three weeks with the candidates going to the voters and presenting themselves and their positions, the candidates were in court fighting a legal challenge. Going to the voters is where we all should have been because the voters should make this decision, not the courts."

O'Grady could not be reached for comment after the court's decision.

In addition to Irace's and O'Grady's petitions, Frisa also challenged the petitions by Skorski. It is possible, however, that Skorski, who did not appeal and instead withdrew from the race, may now seek reinstatement. He also successfully bumped McCarthy from the Liberal line, alleging she did not secure the required number of signatures to remain on the party's ballot. Jack Olchin, chairman of the Liberal Party since 1960, is currently in the process of appealing the Aug. 16 decision by Supreme Court Judge Robert Roberto. An appeal is due by mid-September.

If the Court of Appeals hears the case and reverses the Appellate Court's decision, Irace and O'Grady will not be allowed to run and there will not be a Republican primary for the 4th C.D. The Court of Appeals must decide whether or not to hear the case prior to the Sept. 10 primary. As of press time, a decision had not been made.