Johnson v. Martins

• Decision Date: 08 December 2010
• Citation: 918 N.Y.S.2d 698,30 Misc.3d 844
• Parties: Craig M. JOHNSON, Petitioner, v. Jack M. MARTINS, Respondent-Candidate, and Nassau County Board of Elections, Respondents.
• Court: New York Supreme Court

918 N.Y.S.2d 698

30 Misc.3d 844

Craig M. JOHNSON, Petitioner,

v. Jack M. MARTINS, Respondent-Candidate,andNassau County Board of Elections, Respondents.

Supreme Court, Nassau County, New York.

Dec. 8, 2010.

Jaspan Schlesinger LLP, Garden City (Steven R. Schlesinger of counsel), for petitioner.

Bee Ready Fishbein Hatter & Donovan, LLP, Mineola (Peter Bee and Kenneth A. Gray of counsel), for Jack M. Martins, respondent.

John E. Ryan, Mineola, for Republican Commissioner of the Nassau County Board of Elections. Thomas J. Garry and Robert McDonald, Mineola, for Democratic Commissioner of the Nassau County Board of Elections. Leventhal & Sliney, Roslyn (Steven G. Leventhal of counsel), for Joseph Mondello, Chairman of the Nassau County Republican Committee. Robert McDonald, Mineola, for Jay Jacobs, Chairman of the Nassau County Democratic Committee.

IRA B. WARSHAWSKY, J.

Over a more than thirty day period, employees of the Board of Elections of Nassau County, attorneys for the Republican and Democratic Commissioners, attorneys for the political leaders of each party, Joseph Mondello and Jay Jacobs, and the attorneys for the incumbent, Sen. Craig M. Johnson, the challenger, Jack M. Martins, have participated in an audit of voting machines, a challenge to affidavit and absentee ballots (before opening the envelopes), and then challenging the face of the ballots once they were open.

Veracity Ballots

The earliest issue brought to the court's attention was a claim by the Democrats that the Republicans had fraudulently induced absentee ballots by sending letters with applications to prospective voters. This group of ballots was labeled "VeracityBallots". After oral argument, the court denied counsel's application to preclude these ballots from being counted and they were ordered to be opened. ( Matter of Kolb v. Casella, 270 A.D.2d 964, 705 N.Y.S.2d 746 [4th Dept.2000] ). There was nothing in the letter that would induce a fraudulent application, and, if a voter lied to get an absentee ballot, it was not caused by the letter.

283 Unopened Ballots

On November 29 or 30, 2010, the Court learned that there were approximately 283 unopened affidavit ballots that had not been brought to the Court's attention; the attorneys were aware of them, just not the Court. Of these, 170 were consented to not be opened. The balance of 113 had been found to be unregistered as of Election Day by a bipartisan research team.

The Republican Commissioner agreed to follow the recommendations without further review. The Democratic Commissioner had never looked at these envelopes, or so the Court was told. He had been too busy since Election Day to look at these ballot envelopes. He was given until the morning of December 1, 2010 to consider what position he wished to take on these affidavit ballot envelopes.

On December 1, 2010, counsel for the Democratic Commissioner stated that they wanted 48 of these opened because they believe that their registration had been canceled in error, as they indicated to the Court. Of those he wanted the Court to open, 38 were registered Democrats, 2 Republicans, and the balance of 8 registered as blanks or Independent. Mr. Ryan, counsel for the Republican Commissioner, expressed "shock" at hearing these numbers.

The Court ruled on December 1, 2010, pursuant to the case of Mondello v. Nassau County Board of Elections, 6 A.D.3d 18, 772 N.Y.S.2d 693 (2d Dept.2004), that it did not have the power after Election Day to reinstate/reconstitute a voter's registration who had been removed from the registered roll of voters by the Board. More specifically, pursuant to Mondello:

In a proceeding pursuant to Election Law § 16-106 for judicial review of the canvass of votes in a general election, the Supreme Court lacks the authority to render a determination as to whether a voter was lawfully registered and eligible to vote' ( Matter of Corrigan v. Board of Elections of Suffolk County, 38 A.D.2d 825, 827, 329 N.Y.S.2d 857 [1972], affd. 30 N.Y.2d 603, 331 N.Y.S.2d 35, 282 N.E.2d 122 [1972]; seeMatter of Delgado v. Sunderland, 97 N.Y.2d 420, 423, 741 N.Y.S.2d 171, 767 N.E.2d 662 [2002] ). ( Mondello at 20-21, 772 N.Y.S.2d 693).

Thus, the Court is without authority to rule on whether those individuals who cast affidavit ballots were lawfully registered and qualified to vote. Furthermore:

On the day of [an] election, if a voter is denied the right to vote in a general election, the voter may seek a court order pursuant to Election Law § 16-108. This section authorizes the voter to challenge the determination of the Board of Elections that he or she is not properly registered and further provides that if the voter establishes that he or she was unlawfully denied the right to vote the court shall direct that the voter be allowed to vote at his [or her] polling place' (Election Law § 16-108[3]; see Election Law § 8-302[3][e][I] ). ( Mondello at 22, 772 N.Y.S.2d 693).

When a voter does not avail themselves of this remedy and they are not a registered voter pursuant to Board of Elections research and determination, then this Court lacks the power to reconstitute or restore their registration

The Court also gave the Republican counsel the opportunity to review the remainder of the 113 envelopes to determine if he believed any of those should be reinstated if the Court had the power to do so.

The following day, December 2, 2010, counsel for the Republican Commissioner produced 64 envelopes which have been preserved as Court Exhibit IV which, he contended, should be opened if the Court followed the position of the Democratic Commissioner. These were not opened.

Review of Referee Rulings

On December 2, 2010, the Court ruled on numerous decisions made by the Court Attorney/Referee. Each of these rulings is reflected in the record of December 2. The Court would only reference three of these now, those with handwriting that the Court directed be counted, numbers 181, 182, and 183. Traditionally, ballots that contained writing which could distinguish the ballot from others cast, and mark that ballot for identification, would be excluded. ( Matter of Scanlon v. Savago, 160 A.D.2d 1162, 554 N.Y.S.2d 81 [2d Dept.1990] ). In examining these three ballots, the Court refuses to reject logic. There is clearly handwriting on each of them, writing that voters intentionally placed there, but what wastheir intent? Was there an intent to bring attention to their ballot of a third—party, for example, a political leader?

One voter thought he should be voting on two amendments which were left off his ballot. He was wrong, since the amendments were intended for a different political area. Nevertheless, he wrote in the information he sought to impart. Another noted in the upper right-hand corner of the ballot where the letters SD and the No.7 are found, that he did not reside in School District 7 and wrote that this was not the correct school district for him. Of course, the SD referred to the senatorial district, and had nothing to do with the voter's school district (information you place on your New York State tax return). The third party, after reading the printed words on the ballot front that stated thatthere were instructions on the other side of the ballot, drew a line in pencil, and on the reverse side of the ballot drew a large question mark on the reverse of the ballot, which was blank.

It was, and is, the Court's opinion that the writings on these ballots were not intended to identify them for some nefarious purpose and clearly were not done in a surreptitious way. We live in a community in which the populace continuously wishes to be heard and make themselves heard. They blog, they text, and they tweet. They respond to news stories which they read on the internet and then comment on each other's responses. With that as reality and the Court's evaluation of these three ballots, it allowed them to be counted. All other Court rulings as to each of the ballots are on the record, and are incorporated in this decision. The Court is aware it would be simpler to exclude any ballot with handwriting, but that would be unfair to these voters.

The Voting Machines

This brings us to the new element, added this year to our election, the electronic voting machine. As a matter of law, the County must conduct an audit of 3% of all County voting machines pursuant to Election Law § 6210.18 [c][1—3]. "Any discrepancies between the corresponding audit results and initial electronic vote counts shall be duly noted along with a description of the actions taken by the County Board of Elections or resolution of discrepancies ...". (§ 6210.18[c][2] ).

Pursuant to the requirements for a 3% audit, 32 machines were audited in Nassau County. Seven of those machines were from the Seventh Senatorial District.

There were three basic types of errors found in the audit:

1. Less ballots in the ballot box then reflected on the machine (1 machine in the Seventh District);

2. More ballots in the ballot box than reflected by the machine count of ballots. (2 machines in the Seventh fell into this category; Machine # 541, 2 additional ballots added 2 votes to Johnson; # 706, providing one additional vote for Johnson);

3. Machine count and ballot box are the same, but there was an under vote on machine that were not detected by the visual audit. Machine number 805 produced one additional vote for Martins, which was originally noted as an over vote.

Of these seven machines, excess ballots are found in two of them. The Democratic Commissioner found that any machine with excess ballots was an unresolvable discrepancy, while the Republican Commissioner found four reasons why this could occur:

• Election inspector error—the ballot box is accessible to the inspectors at the end of the night. The inspectors are asked to remove the ballot bin and put any remaining ballots inside the bin, replace into scanner, and reseal and lock. The inspectors may have put the additional ballots into the bin. The...