Robert F. Kennedy Jr. plans to fight getting kicked off the New York presidential ballot — for using what an Albany judge called a "sham" address in his nominating petition — by arguing it's unconstitutional to make him say where he lives.
Kennedy tipped his hand on what one state election law expert called a "bizarre" strategy in a notice of appeal filed Wednesday.
New York Election Law violates the Constitution in requiring "that a candidate for US President indicate the 'place of residence' on the nominating petition," the five-page notice says.
The Constitution's provisions governing federal elections make no such demand for an address, the notice says.
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"The Constitution provides what the qualifications of presidents are, and the states can't add to those qualifications," Kennedy attorney Gary L. Donovan told Business Insider.
Kennedy's notice of appeal was filed in response to a 34-page decision by New York State Supreme Court Justice Christina Ryba, who found on Monday that the independent candidate lives in California but falsely claimed to live about 40 miles north of Manhattan in upstate Westchester County. The falsehood invalidated Kennedy's nominating petitions, the judge found.
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The spare bedroom Kennedy rented, without a lease, in a house owned by friends in Katonah, New York, was not a "bonafide and legitimate residence, but merely a 'sham' address that he assumed for the purpose of maintaining his voter registration" and furthering his political aspirations, she wrote in her decision.
Kennedy actually lives in California with his wife, "Curb Your Enthusiasm" actor Cheryl Hines, the judge said she found after presiding over a four-day non-jury trial last week.
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During his testimony at the trial, Kennedy "was shown a photo of the spare bedroom he claimed to be renting," the judge wrote in her decision. "He testified that none of the furniture or bedding was his."
He testified, too, that he plans to someday move into the spare bedroom with Hines, his extensive book collection, and his many exotic pets — including his pet raven — once Hines retires from acting, "if that is convenient at the time," according to a transcript excerpt.
"If not, I'll find a house nearby," he added from the witness stand.
A 'bizarre' appeal
"That's bizarre," former Democratic NY state Sen. Martin Connor, who has practiced election law for fifty years, said when told of Kennedy's notice of appeal and its claim that the Constitution protects him from having to state an address.
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Residency under New York election law has gotten very loose over the years, Connor said. Still, candidates need to declare a specific address somewhere in the country "that's provably yours and more than just a mail drop," he said.
Election officials need to know where to contact a candidate if there are defects in their petition, and if someone wants to challenge the petition in court they need to know where to serve the papers, he said.
"The real question is, without an address, how do we know who the hell you are?" Connor said. "What if there are more than one John Smiths — or more than one Robert Kennedy?"
As for arguing that the Constitution does not require presidential candidates to state their addresses — and so neither should the states — Connor noted that the founding fathers left the specifics of how to run elections to the states. "The Constitution doesn't mention how you get on the ballot in New York or in any state, either. Yet every state has rules for that," he said.
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Kennedy had first claimed last month that New York's election law is unconstitutional insofar as it requires an address from candidates submitting nominating petitions for president and vice-president. The Constitution's provisions governing federal elections make no mention of "place of residence" requirement," his lawyers argued.
The judge rejected the claim shortly before the trial started. Afterward, she did not mince words in declaring that Kennedy's purported address was a fiction.
She wrote in her decision that "Kennedy's testimony that none of the furniture, bedding, and other decorative items in the spare bedroom belonged to him, as well as his testimony that his wife and family, his extensive book collection, and his wide assortment of domestic and exotic pets all remained in California, was further compelling evidence that Kennedy lacks the necessary physical presence and intent to remain" at the residence.
The lawsuit challenging the 70-year-old candidate's nominating petition was filed late last month by a group of New York voters backed by Clear Choice Action, a Democrat-aligned super PAC.
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The group has identified 18 states where Kennedy's presence on the ballot could face similar challenges, according to Mother Jones.
