Plaintiffs: New York Attorney General May Not Represent Half of Divided Board of Election Commissioners in New York Even Year Election Law Challenge

Sept. 9, 2026 – Plaintiffs in the constitutional challenge to New York's Even-Year Election Law ("EYEL") wrote to the court today arguing that the New York Attorney General may not advance the position of two commissioners of the New York State Board of Elections in connection with their anticipated motion to dismiss the case.

The case is brought by the New York State Republican Committee, the Nassau and Suffolk County Republican Committees, the New York State Association of Town Superintendents of Highways, and a coalition of local candidates. Plaintiffs allege the EYEL violates the First Amendment by forcing local elections onto even-year ballots dominated by national and statewide races, burying local candidates and issues beneath the avalanche of information associated with federal contests. Plaintiffs also complain that the EYEL carves out an exemption for New York City and the five boroughs.

In the Second Amended Complaint filed July 9, 2026, Plaintiffs name as Defendants the four individual commissioners of the New York State Board of Elections in their official capacities: Henry Berger, Essma Bagnuola, Peter Kosinski, and Anthony Casale.

The Attorney General notified the Court of an intent to move to dismiss on behalf of Commissioners Berger and Bagnuola. The other two named Defendants, Kosinski and Casale, are absent from that effort. Both publicly urged Governor Hochul to veto the EYEL in 2023.

Under New York law, the Attorney General represents state officers in their official capacities, and the client in that role is the office itself, not the Commissioners individually. New York Election Law reinforces the point directly: any official action by the Board requires the affirmative vote of three of its four commissioners.

With only two of the four named Defendants behind the motion, Plaintiffs argue there is no institutional authorization for the Attorney General to file a motion to dismiss the suit — only the preference of half the Board. Plaintiffs ask the Court to deny leave for the motion altogether, or, at minimum, to treat whatever is filed as the position of Berger and Bagnuola alone.

"The positions advanced in Court must reflect the Board of Elections' authorized position, not the preference of a fraction of its officeholders," said William A. Brewer III, partner at Brewer, Attorneys & Counselors and lead counsel for the Plaintiffs. "New York required three votes for any action by this Board precisely to ensure fairness and equal representation between the two parties. We are asking this Court to deny leave for this motion altogether — or, at the very least, to recognize it for what it is: the position of two commissioners, not the Board."