Can State Lawmakers Facing Criminal Charges Win Re-Election?

One of the few ways that New York lawmakers are forced out of office is by their falling afoul of the law. Three state senators are now trying to avoid that fate—but before they have a chance to vindicate themselves in the courtroom, each one will have to win at the polls this fall. 

State Sen. Thomas Libous, the Republican deputy majority coalition leader, was charged last month with lying to the FBI when he was asked about having a lobbyist funnel money to a law firm that employed his son, who was hit with federal charges as well. 

State Sen. Malcolm Smith, the former Democratic Senate majority leader, is accused of trying to bribe his way onto the ballot as a Republican candidate for mayor of New York City in 2013. The Queens lawmaker is also charged with seeking a bribe to help him regain a Senate leadership role. 

And state Sen. John Sampson, another former leader of the Senate Democrats, allegedly embezzled $440,000 from foreclosure accounts while serving as a court-appointed referee. The Brooklyn senator also accepted a $188,500 “loan” he neither divulged nor repaid, and tried to derail an investigation into the person who had provided the money, according to a federal indictment. 

Yet such charges will only be part of the equation on Election Day. Voters weigh a variety of factors, including the severity of the allegations, in deciding whether to give an elected official the benefit of the doubt or a second chance. An incumbent’s clout, the loyalty of constituents and the strength of rival candidates also play a role. 

“Sometimes, in some communities, if you have a real reputation of delivering for the community, you can get re-elected,” George Arzt, a communications consultant, said of lawmakers dealing with legal trouble. “In some communities where they regard authority as being anti-minority, you can get re-elected. In those cases where you’ve really done something egregious, you won’t get re-elected.” 

Of course, some lawmakers simply resign or opt not to run again. Earlier this year state Sen. George Maziarz dropped his re-election bid shortly before he acknowledged a federal investigation into potential misuse of his campaign account’s funds. Others, such as former state Sen. Carl Kruger, and ex–Assembly Members Eric Stevenson and Gabriela Rosa, were ousted by felony convictions. 

Still others are able to weather the legal clouds. Assemblyman Karim Camara was arrested for driving while intoxicated in 2007, but voters have re-elected him several times since then. State Sen. Kevin Parker has kept his seat despite a misdemeanor conviction in 2010 for a physical altercation with a New York Post photographer. Federal bribery charges were not enough for voters to lose faith in Assemblyman William Boyland Jr. in 2012, although he was eventually convicted. Other lawmakers, such as Guy Velella and Clarence Norman, withstood scandals for years before being sent to prison. 

“The advantages of incumbency are enough that it’s certainly possible for a lawmaker facing legal troubles to ride them out and win in November,” said the New York Public Interest Research Group’s Bill Mahoney, who tracks misconduct by state legislators. 

But apart from Boyland’s short-lived reprieve, the track record for scandal-plagued elected officials in recent years offers little reason for Sampson, Smith and Libous to be optimistic about their chances. 

In 2009 state Sen. Hiram Monserrate was convicted of a misdemeanor for assaulting his girlfriend, then lost to Jose Peralta in 2010. Then, in a failed comeback attempt, Monserrate lost an Assembly primary race to Francisco Moya. In 2010 state Sen. Pedro Espada was the subject of a corruption investigation involving his nonprofit when Gustavo Rivera beat him in the primary. Espada was indicted for embezzlement a few months later and convicted in 2012. In the 2012 primary, state Sen. Shirley Huntley lost her Queens seat to James Sanders, just a month after she was indicted for covering up the misuse of taxpayer dollars at another nonprofit. And in 2013 former assemblyman Vito Lopez, who resigned from the state Legislature amid a storm of sexual harassment allegations, failed to win a seat in the New York City Council when he attempted to resurrect his career. 

Of the latest crop of indicted lawmakers, Libous is in the strongest shape to defy the odds. He is popular in the Southern Tier district he has represented for a quarter century. While Smith was expelled from the Independent Democratic Conference and Sampson tossed by the Senate Democrats, Libous is still the Senate’s No. 2 Republican. He has $718,000 in campaign cash, while his rival, Anndrea Starzak, whose tenure as Vestal town supervisor ended in 2005, has yet to submit any fundraising totals. 

“If the candidate goes into a race that encompasses as many people as a New York State Senate race thinking that an indictment is enough to win, they’re wrong,” said James Testani, the Broome County Democratic chair. “They’ve got to go out and make a case before the voters why somebody they’ve sent there for a number of years is no longer in a position that they’ve been sent there to do.” 

Although Libous’ indictment mentions an investigation into whether he used his influence to pad his son’s salary, he is only charged with the cover-up—the false statements he allegedly made to federal agents—and not the purported crime. 

Smith’s alleged attempts to buy his way into City Hall or the Senate leadership are more shocking. He now has just $2,800 in campaign funds, while a relatively well-known challenger, former city councilman Leroy Comrie, has been picking up cash and endorsements. Smith caught a break when a judge declared a mistrial in his case, delaying it until until after the election, but it can’t help that another defendant involved in the alleged conspiracy, former councilman Dan Halloran, was convicted last month. 

Sampson has also lost support, and his campaign finance filing shows him $9,600 in the hole. But the senator, who retains the backing of Brooklyn Democratic Party boss Frank Seddio, has no rivals with strong name recognition. 

Of course, lawmakers are, like anyone, entitled to due process as to their alleged acts. One cautionary tale is that of Joseph Bruno, the former Senate majority leader who resigned amid a federal fraud investigation. He endured two trials before being acquitted in May. 

“The argument by some is that if someone gets indicted, they should then be put on a stake like a witch with straw beneath their feet and be burned,” said political consultant Hank Sheinkopf. “The interfering problem here is that, contrary to what some might think, we do have a constitution which says that you are innocent until proven guilty. You haven’t been convicted of anything, so why should you be forced to leave office?”