Suffolk ballot question that would extend terms could face legal issues, experts say

A Suffolk ballot question that backers say would head off the need for local elections in 2026 could be susceptible to legal challenges, experts told Newsday.

The proposition — the "term limit preservation act" — asks voters whether they want county legislators to double their term length, from two to four years. It would allow them to serve past their term limit to account for a change in state law that shifts elections to "even" years. And it would effectively move the next election for legislators from 2026 to 2028.

But observers point to potential problems, such as changing the term for offices that are on the current ballot, since voters wouldn’t know how long the term will end up being. Some parts of the proposition could also be in conflict with or redundant to the new state law, such as whether it could require legislators to "resign midterm," as the proposition states.

"I’ve never seen anything like this before," said Martin Connor, an election lawyer for over half a century who also served in the state Senate for three decades.

Under the state’s even-year election law change, Suffolk County legislators who win this year’s election would be up for election again next year, the "even year," 2026. But the one-year term would not count toward their 12-year term limit, superseding any local or county laws that say otherwise, according to the state law.

But the Republican-controlled Suffolk County Legislature presented a different view of the impact: that a "loophole" left a conflict with the county charter that could force legislators to "resign midterm," despite the sponsor of the state law saying two years ago it would not do that.

The county went on to propose the "term limit preservation act," which officials said would avoid making lawmakers step down. In doing so, the county legislature also sought to double the length of the term of the lawmakers, from two to four years. The effect would mean, if passed, lawmakers would serve three years to 2028, according to the county legislature.

The state’s high court recently affirmed the even-year election law, despite challenges by Republican-led governments, including the Town of Riverhead and Nassau County.

The local and state boards   of election declined to answer what year county legislators would be next up for election if the Suffolk ballot proposition passes, 2026 or 2028. The ballot question will be before voters beginning this weekend, when early in-person voting starts.

‘All about term limits’

Suffolk County Legislature Presiding Officer Kevin J. McCaffrey, who introduced the legislation, said it is "all about term limits."

McCaffrey told Newsday that the State Legislature "didn’t extend our term limits" in the even-year election law. "It doesn’t mention term limits in their bill," McCaffrey added.

The bill specifies that the shortened term "shall not" apply to local laws governing term limits.  Assemb. Amy Paulin (D-New Rochelle) said in 2023 when debating her bill on the floor that any truncated term would not count toward a term limit.

Paul Sabatino II, a municipal law expert and former chief deputy Suffolk County executive and counsel to the county legislature, said the Suffolk proposition is illegal.

"The issue is it’s illegal because they’re trying to retroactively change the term of office for people that are voting," Sabatino said, pointing to the fact voters will be selecting a legislator at a time when terms are two years, although they may end up serving a four-year term.

He also described the ballot proposition, the "term limit preservation act," as "deceptive," because the state law already preserves the term limits.

Instead, Sabatino said, the purpose of the legislation is to double the length of terms — a change that voters soundly rejected in 2020 — cloaked in an already achieved goal to uphold term limits, which voters overwhelmingly supported in 2022.

The issue is "bound to wind up in litigation until the even-year law gets its sea legs," said Jeffrey M. Wice, director of New York Law Schools’ New York Elections, Census, and Redistricting Institute.

Ballot wording

The ballot proposition tells voters that a "no" vote would "mean that legislators could be required to resign prior to the end of their term causing the need for taxpayer funded special elections and would also require that elections for county legislators be held three times in four years in order to comply with New York’s even year election law."

Perry Grossman, director of the New York Civil Liberties Union voting rights project, called the wording "partially misleading, partially incomprehensible." The NYCLU does not have a position on the Suffolk County question or on the legality of the measure, but the organization supported the even-year election law in 2023.

"I am a trained election lawyer," Grossman said, "and when I read this explainer, I can’t make heads or tails of it."

The state recently passed a law calling for state ballot propositions to be written in "plain language" and not above an 8th grade reading level. The questions are capped at 75 words, but the measure in Suffolk County is more than three times as long.

Ben Weinberg, director of public policy for Citizens Union, said the focus should be clarity for the voter.

"This question lumps together several changes," Weinberg said, "and makes some assumptions of the impact of state law that is pretty hard to follow for everyday New Yorkers and even for folks who are experts on this topic."