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This much isn’t in dispute: Lester Chang, a Republican who ran in a heavily Asian section of south central Brooklyn, won a race for New York State Assembly last month.
Whether he ever gets to represent these constituents in Albany will depend on his potential future Assembly colleagues, who are threatening to block him from taking office due to uncertainty over whether he meets the basic residency requirements.
The Democrat-led Assembly Judiciary Committee will hold a hearing Wednesday in Albany that will focus on whether Chang — a Navy veteran who knocked off Peter Abbate Jr., a 36-year Democratic incumbent, by fewer than 600 votes last month — actually resided in Brooklyn for the 12 months leading up to Election Day, the minimum period he had to live there to qualify for the race.
The hearing will help inform whether the Assembly will vote to seat Chang in early January. If not, that would trigger the process for Gov. Kathy Hochul to call a special election for the district, which includes parts of Sunset Park, Dyker Heights, Bensonhurst and Bay Ridge. Such a move would put the neighborhoods without representation until at least mid-February or early March, depending on when Hochul calls a special election.
Residency challenges are commonplace in the rough-and-tumble world of New York elections, where candidates are always looking for a way to knock their opponents off the ballot. But Chang’s case is exceedingly rare: Democrats waited to formally raise questions about Chang’s living situation until late November — a few weeks after he won his race and five months after he qualified for the ballot.
Now, instead of making an issue of it in the courts, Assembly Democrats are taking matters into their own hands through a formal investigation they launched on Dec. 5, complete with subpoena power. If they find Chang didn’t reside in Brooklyn for the minimum amount of time, they could block him from taking his seat by invoking a rarely applied section of the state constitution that would leave the Republican’s fate up to a simple majority vote in the Assembly — a chamber Democrats control by a 2-to-1 margin.
“To say that it’s not usually done this way is an understatement,” said Jerry Goldfeder, a longtime New York election attorney not involved in Chang’s case. “Usually, when there are residency challenges, an opponent or a representative of an opponent will challenge their (ballot) petitions and bring that issue to the court, who will then decide whether that person should be on the ballot.”
State rules
At issue are two clauses in the state constitution.
The first lays out the residency rules for running for state office. A candidate has to be a U.S. citizen and a resident of New York state for at least five years before the election. In a year where districts are redrawn — such as this year — the candidate also has to be a resident of a county within the legislative district for at least 12 months prior to Election Day.
The second clause is part of a section of the constitution that lays out the powers of the state Legislature. It gives the state Senate and the Assembly the ability to set their own chamber rules, and specifically says each house will “be the judge of the elections, returns and qualifications of its own members.”
That’s the clause Assembly Speaker Carl Heastie, D-Bronx, cited when he first directed the Judiciary Committee to investigate Chang’s residency. He said he grew frustrated after requesting proof of residency from Chang’s camp and getting nothing in return.
“The easiest thing would be for Lester Chang to just prove that he lived there,” Heastie told reporters at the state Capitol earlier this month. “That would be the simplest, easiest thing to do.”
Brooklyn Democrats have raised doubts over whether Chang actually resided in their borough because he cast his ballot in the 2021 elections in Manhattan — which he himself acknowledges — and never changed his voter registration until earlier this year. He also unsuccessfully ran for office in Manhattan in 2020 and 2016.
But Chang is insistent. He still has a Manhattan apartment that he once shared with his late wife. But he says that even when he lived there, he always maintained a separate residence in the Midwood home that still belongs to his mother, just a couple blocks from Brooklyn College.
“Until my wife passed in 2019, I lived with her in a Manhattan apartment,” Chang said during a rally earlier this month in Sunset Park. “Even then, I still have residence here in Brooklyn. It was my childhood home. I never left.”
A rare instance
The last time the Assembly invoked its power to remove one of its own is believed to be in the early 1920s, when the chamber expelled a handful of socialist lawmakers at the height of the “Red Scare” after World War I. (Back then, The New York Times reported a lawmaker accused a lobbyist of bringing large amounts of booze to the chamber in order to secure the necessary votes for expulsion.)
The state Senate invoked the power more recently, having kicked out Sen. Hiram Monserrate, D-Queens, in 2009 after he was convicted of misdemeanor assault, not long after he briefly partnered with Republicans in a political coup that paralyzed the chamber’s proceedings for a month.
The Assembly’s handling of the Chang investigation has left his supporters and some good government advocates uneasy, in large part because it could set a precedent for future cases to be challenged after the results of the election are in.
Diane Bradshaw, a Dyker Heights resident, voted for Chang in hopes he would help raise constituent concerns over public safety while in the state Legislature.
Bradshaw saw the residency requirement as irrelevant when compared to a candidate’s ability to achieve results for their district.
“They’re going to take that away from him because he didn’t live where he said?” Bradshaw, 63, said. “I’ll be upset if they do take it away from him, but I hope they don’t.”
Blair Horner, executive director of the New York Public Interest Research Group, said residency challenges should be heard by the courts, not by partisan lawmakers.
“I think it makes sense if people believe there’s a legitimate challenge for the challenge to be made,” he said. “But the venue should be in the court system, not in the political arena.”
There’s also the question of which side will have the burden of proof.
In a court proceeding, it’s on the person who issued the challenge to provide “clear and convincing” evidence that a candidate doesn’t meet the residency requirement.
But Chang’s case isn’t before a court. There’s no hard and fast rule saying whether it’s on the Assembly to prove he didn’t live in Brooklyn — or on Chang to prove he did.
Sarah Steiner, an elections attorney, said the state courts have “shifted six or seven times in the last 10 years” when it comes to determining what counts as a candidate’s residence. But that doesn’t really apply to Chang’s case.
“It’s not like any of those cases, and that’s really because it’s not a case — it’s a governmental operation,” said Steiner, who has successfully represented candidates in residency challenges before, including former Assemblyman Michael Blake, D-Bronx, in 2014. “The courts have no role in this really because they [the Assembly] and they alone have the power to decide whether to seat one of the members, or prospective members.”
John Ciampoli, a go-to GOP election attorney who is representing Chang, said he’s been told the Assembly Judiciary Committee is considering the burden of proof to fall with the committee.
Republicans have used Chang’s case to suggest Democrats are dabbling in election denial, the very thing Democrats have accused the GOP of doing in the era of Donald Trump.
Ciampoli, who will testify at the Assembly hearing Wednesday, said Democrats would be playing with fire, politically speaking, if they were to do a biased investigation or reach a predetermined outcome.
“To basically say the voters had their choice and we, the [Assembly] Majority, are going to override that would be astonishing,” he said.
Heastie says that’s not the case. The residency rules are enshrined in the state constitution, and lawmakers should never “pick and choose when we abide by the constitution.”
“The Republicans, they claim to be a law-and-order party,” Heastie said. “Residency is the law. This has nothing to do with the election.”
Chang’s camp would be likely to challenge any ouster in court. His attorney, Ciampoli, said he contests the idea that the Assembly would have the authority to keep Chang from his seat.
“We firmly believe that they have no right to judge his qualifications,” Ciampoli said.
Includes reporting by David Cruz.
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