The Shoreham man who has been fighting to remain in the running for the Sept. 13 Republican primary is back on the ballot.
The state Appellate Division Second Judicial Department ruled in favor of Mike Yacubich Friday, according to his lawyer Gary Donoyan. The Appellate Division overruled a state Supreme Court judge who upheld a Suffolk Board of Elections ruling knocking Mr. Yacubich off the ballot.
“As of now, Mike Yacubich is on the ballot,” Mr. Donoyan said in an email.
Mr. Yacubich, an accountant, Rocky Point fire chief and former Shoreham-Wading River school board member, submitted petitions to wage a Republican primary challenge against incumbent Assemblyman Anthony Palumbo (R-New Suffolk).
The Board of Elections’ decision earlier this month to remove him from the primary ballot based on invalid petitions. Mr. Yacubich’s nominating petitions were under the heading, “Mike Yacubich.” The BOE found that a Michael B. Yacubich — the candidate — and a Michael V. Yacubich, his son, were both registered to vote at the same Shoreham address and that voters would not know which one was the candidate.
Mr. Yacubich, 52, appealed the ruling at the state Supreme Court, but Judge John Leo agreed with the BOE and left Mr. Yacubich off the ballot.
He then challenged Judge Leo’s decision before the Appellate Division.
On Friday, the four appellate judges wrote:
“There was no proof that Yacubich intended to confuse voters, or that any voters were confused as to his identity.”
Mr. Yacubich’s son is 25 years old, and while still registered to vote at Mr. Yacubich’s home address, he hasn’t lived there since May 2016 and now lives in California, the judges wrote.
“Yacubich also offered the testimony of several witnesses who carried his petition, knew him as ‘Mike,’ and were not confused as to the identity of the person seeking public office. Witnesses testified that they were present with Yacubich while he was collecting signatures. Two subscribing witnesses testified that they had campaign fliers with them as signatures were collected and used them to identify the candidate to potential petition signers.”
The appellate judges said the Board of Elections exceeded its authority when it invalidated the designating petition on the grounds that it could not identify which registered voter was the candidate.
“The Board lacked the authority to rule on the objection based upon its perception that the petition was confusing because of the candidate’s name, which should have been raised through a judicial proceeding to invalidate.”
The three registered Republicans who brought the challenges to Mr. Yacubich’s petitions could seek to challenge the appellate ruling, but they would need to appeal to the Court of Appeals, the state’s highest court.
“[And] only if they get permission from that court first,” Mr. Donoyan said. “That is almost always denied.”