In the 2004 U.S. Senate election, Schumer had defeated Republican Assemblyman Howard Mills by a 71 to 24 percent margin. Schumer is highly popular in New York, so it was believed that any Republican contender would likely not fare well against him in 2010. Schumer was heavily favored to retain his seat.
In addition to this regular election, there was also a special election to fill the Senate seat vacated by Hillary Rodham Clinton, who became the United States Secretary of State on January 21, 2009. In addition, there was the New York gubernatorial election. The existence of two other top-level statewide races, one with a vulnerable Democratic incumbent and the other an open race, respectively, was believed to lead major New York Republicans to gravitate towards them rather than challenge the popular Schumer. As it happened, however, the Republican Party had difficulty in drawing top-tier candidates to any of the three races.
Only two candidates, Berntsen and Townsend, obtained at least 25% of the vote at the New York State Republican Convention on June 1, 2010. Bernsen came in first, but still needed to win the primary in order to win the Republican nomination.
Credico sued the New York State Board of Elections under the Equal Protection Clause of the Fourteenth Amendment because of this unfair treatment regarding ballot access. Despite being nominated by both the Libertarian Party and the Anti-Prohibition Party, in most jurisdictions, he only appeared on the ballot once. On June 19, 2013, the Federal District Court for the Eastern District of New York ruled in favor of Credico. The New York State Board of Elections did not appeal this decision.