Brian Benjamin is officially out as New York’s lieutenant governor, following his arrest and abrupt resignation, but it will take some legal maneuvering to get him off the Democratic primary ballot – if it can even be done.

Democratic officials are scrambling to brainstorm ways to boot Benjamin from the primary after he surrendered to federal authorities on five felony charges Tuesday, just two months after becoming the party’s official designee – which came with an automatic spot on the ballot.

There are only three options to make it happen, according to state election law: A party would have to nominate Benjamin for a different position, he would have to move out of state, or – most morbidly – he would have to die prior to ballots being printed.

Given the time crunch and barriers in state election law, Democrats will have to think fast: Ballots have to be printed 45 days before the June 28 primary election, meaning any effort to remove Benjamin would have to happen before then.

“There’s not much (Benjamin) can do,” said Sarah Steiner, a New York election-law attorney. “He’s on the ballot. The acceptance and declination times have already ended.”

Election law leaves limited options

Benjamin had already accepted the Democratic Party’s designation for lieutenant governor well before his arrest. That’s why options are limited for removing him from the ballot, according to John Conklin, a spokesperson for the state Board of Elections.

A candidate can turn down a ballot position on their own for a few different reasons. Benjamin already missed his window to decline his party’s designation on his own, but he could still try to decline his spot if he were to be nominated for another elected position.

But that’s tricky so close to a primary election and it could end up in court. Because Benjamin is not an attorney, he’s further limited since he couldn’t be nominated for most judgeships – a loophole parties have often used in the past to make a candidate go away.

Another possibility is disqualification, according to Conklin. That would happen if Benjamin were no longer eligible to hold the position, such as if he were to move out of state – which could be the easiest option, but it would require cooperation from Benjamin himself.

Brian Benjamin, the former lieutenant governor, back in August alongside Gov. Kathy Hochul.

Brian Benjamin, the former lieutenant governor, back in August alongside Gov. Kathy Hochul.

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Brian Benjamin, the former lieutenant governor, back in August alongside Gov. Kathy Hochul.
Mary Altaffer/AP/Shutterstock

Moving out of state would require Benjamin, who lives in Harlem, to personally alert the New York City Board of Elections he moved out of state. Under the state constitution, anyone running for statewide office has to meet the minimum requirement – be at least 30 years old and have resided in New York before running.

But Steiner said that’s not a gimme, either. It’s possible federal officials could take issue with Benjamin trying to move before his trial.

“Yes, he could move out of state, but I don’t think that the federal government is going to let him move out of state with a pending indictment,” she said.

Hochul, speaking Wednesday on The Brian Lehrer Show on WNYC, said Benjamin moving is “an option.”

“I don’t have control over that, but that is the option,” she said. “I think his death is another one, and running for another office. It’s interesting how limited the options are, but it goes back to antiquated laws.”

Did a federal magistrate open the door?

After he pleaded not guilty to five federal felonies Tuesday, U.S. Magistrate Judge Ona Wang of Manhattan allowed Benjamin to be released ahead of his trial on a $250,000 personal recognizance bond.

She restricted his travel to New York City and the surrounding area, allowing for two exceptions: Portions of Georgia and Virginia, where Benjamin is believed to have family. That could give Benjamin an opening to switch his home address to one of those states, which would disqualify him from the primary ballot.

I don’t have control over that, but that is the option. I think his death is another one, and running for another office. It’s interesting how limited the options are, but it goes back to antiquated laws.

Governor Kathy Hochul on removing a candidate from a ballot

There’s one other possibility, thanks to the courts. New York’s new congressional and state legislative district lines are tied up in the court system, thanks to a GOP lawsuit accusing Democrats of gerrymandering them to their advantage. If the courts force the state to move back its June 28 primary to account for revisions, lawmakers could decide to reopen the ballot petitioning process – though it’s not clear if that would also apply to statewide races.

Democrats mum on moves

So far, if Democrats have a plan to remove Benjamin from the primary, they aren’t letting on.

Late Thursday afternoon, state Democratic Committee Chairman Jay Jacobs released a statement in response to Benjamin’s resignation.

“My thoughts are with (Benjamin) and his family as he addresses the serious charges that he must now confront,” Jacobs said. “As a party, we must continue to focus on Governor Hochul’s accomplishments which have done so much for the people of our state.”

Nick Langworthy, the state Republican chairman, had a different take.

“Just days ago, (Hochul) continued to say she had ‘full confidence in Benjamin,’” he said. “She does not possess the judgment nor the moral code to serve as governor.”

Benjamin’s troubles

Benjamin is accused of steering a $50,000 state grant to a Harlem nonprofit founded by a real-estate developer. In return, the developer – who is not named in the indictment but who matches the description of Gerald Migdol – allegedly made donations to Benjamin’s political campaigns, often under other people’s names, according to prosecutors.

Senate Majority Leader Andrea Stewart-Cousins, D-Yonkers, will now take on the lieutenant governor’s responsibilities – which are largely limited to serving as president of the Senate – until Hochul selects a replacement.

Hochul appointed Benjamin as lieutenant governor in August, in one of her first major decisions after she was elevated to the governor’s office following former Gov. Andrew Cuomo’s resignation. Benjamin represented the 32nd Senate District in Harlem, the same seat held by David Paterson, who was later elected to serve as lieutenant governor in 2007.

At the time, Hochul’s selection of Benjamin was viewed as a way to balance the Democratic ticket ahead of the 2022 primary – pairing a white female governor from Buffalo with a Black male lieutenant governor from Harlem.

Brian Benjamin, the now former lieutenant governor, with Gov. Kathy Hochul in March 2022.

Brian Benjamin, the now former lieutenant governor, with Gov. Kathy Hochul in March 2022.

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Brian Benjamin, the now former lieutenant governor, with Gov. Kathy Hochul in March 2022.
Lev Radin/Pacific Press/Shutterstock

Hank Sheinkopf, a veteran Democratic political consultant, said Hochul’s decision was off-base from the start, at least from a political perspective. Instead, she should have looked toward central Brooklyn, he said.

“Geographically, he was the wrong choice and politically he was not the best choice,” said Sheinkopf. “Why? Harlem doesn't have the political juice it once had.”

For his part, Benjamin’s attorneys said he was suspending his political campaign. But in a joint statement, they gave no hint as to whether he would cooperate with any effort to get his name removed from the ballot.

“After today’s charges, Brian will resign his duties as Lieutenant Governor and suspend his campaign,” his attorneys, James Gatta and William Harrington, said in a joint statement. “He will focus his energies on explaining in court why his actions were laudable — not criminal.”

A split ticket?

Benjamin’s arrest and uncertain future highlights another quirk in the state’s election system: Unlike presidential elections, candidates for New York governor and lieutenant governor run separately in the primary elections. The winners are then joined together as a single ticket for the November elections.

If Benjamin were to remain on the June primary ballot and win the race, he would be joined together with the winner of the Democratic gubernatorial primary for the November election.

Geographically, he was the wrong choice and politically he was not the best choice. Why? Harlem doesn't have the political juice it once had.

Hank Sheinkopf, Democratic political strategist

Hochul faces a primary from Rep. Tom Suozzi of Long Island and New York City Jumaane Williams. Both of them have their own preference for lieutenant governor: Williams is running with activist Ana Maria Archila, while Suozzi is running with ex-New York City Councilmember Diana Reyna.

As recently as last week – before his arrest and indictment – Hochul stood behind Benjamin, saying: “He will be on the ticket.” By Thursday evening, after his arrest, Hochul said it is “clear to both of us that (Benjamin) cannot continue to serve as lieutenant governor.”

I think (Benjamin’s) going to be on the ballot. I think the most likely thing that’s going to happen is Hochul is going to un-endorse him and potentially endorse one of the other lieutenant governor candidates.

Sarah Steiner, election attorney

If Benjamin is to remain on the ballot, however, it elevates the possibility that he loses the lieutenant governor primary even if Hochul wins the governor primary. In that case, Hochul would be paired as a ticket with Reyna or Archila – both of whom have been highly critical of the governor and could prove to be a thorn in her side.

It may all leave Hochul with the choice of trying to forge a relationship with one of the other lieutenant governor candidates, Steiner said.

“I think (Benjamin’s) going to be on the ballot,” she said. “I think the most likely thing that’s going to happen is Hochul is going to un-endorse him and potentially endorse one of the other lieutenant governor candidates.”

Outside the Manhattan courthouse where Benjamin entered his not-guilty plea, Archila said Benjamin should assess whether he can continue to do the job.

"If he's unable to perform the duties of lieutenant governor, I think he should think about whether he is able to live up to the commitment that he made to New Yorkers,” Archila said. “And if his answer is no, he should resign.”

Includes reporting by David Cruz and Brigid Bergin.