Judge Declines To Block Charter Election Certification: A Closer Look At Gordon Boyd’s Article 78 Action

On December 2^nd the Saratoga County Board of Elections certified the Saratoga County election results, including the Saratoga Springs charter vote.  This does not preclude a judge with general jurisdiction from hearing a petition that challenges the certified result  or  that seeks an order for a recount of the votes cast in the City charter initiative or other relief.  Still, in light of Gordon Boyd’s article 78 action, his group must be disappointed with the temporary order issued by the court.

On November 24^th Gordon Boyd, who claimed standing before the court as a voter in the charter election, appeared before Supreme Court Justice Thomas Nolan seeking judicial intervention through what is called an Article 78 proceeding.  This is a link to a discussion on what an Article 78 is (http://www.murthalawfirm.com/understanding-article-78/ ).  Basically it is a vehicle by which to challenge an action by administrative agencies, public bodies, or officers.  In this case, Mr. Boyd is challenging the Board of Elections regarding its actions in certifying the election results regarding the charter initiative in Saratoga Springs.

Mr. Boyd is represented by A. Joshua Ehrlich, an Albany attorney who specializes in election law.

I was able to secure the papers submitted to the court on behalf of Mr. Boyd.  <<link to BoydArticle78>>

I sent copies of the documents to three local  attorneys asking for their thoughts.

Their responses were surprisingly consistent.  All three began by making it clear that New York State election law is an arcane specialty and that none of them considered themselves sufficiently knowledgeable to make expert judgments regarding the substance of core issues alleged or presented in the Verified Petition over Mr. Boyd’s signature.

All three, however, were struck by what appeared to be a very rushed job in constructing the papers.Two of them noted a paragraph in the document, apparently struck by the court, that they found incomprehensible.  Here it is.  Dear reader, see if you can make sense of it:

“…  ORDERED that Respondent Board of Elections but, should this Court so determine not earlier than the day after any hearing and determination which may be ordered by this Court related to issues regarding malfunctioning and or compromised voting machines, or as soon thereafter as the paper ballots and supporting records can be made available;….” 

All of the attorneys noted that best practices require that, if you make a significant allegation when asking for action by the court which will hear the case, you provide some supporting documentation or basis in fact for doing so.  One of them explained to me that it is a good idea from the beginning to put your “best foot” forward as this is the beginning stage in attempting to convince a judge of the soundness of your position. Judges apparently are loath to allow  “fishing expeditions” to be conducted with the aid of their special authority under their jurisdiction so all three attorneys were struck by the very serious allegations made that the election may have been tainted by “fraud” and/or by “tampering” with the machines and the lack any corresponding information in support of these allegations. There is absolutely nothing in the body of these papers that supports the extraordinary insinuations of fraud and tampering made. Perhaps an amended edition will be forthcoming to supply these facts insinuated.

Along the same lines Mr. Boyd and his attorney go on to assert that a margin of 10 votes out of 8,900 is “…well under the accepted one half of one percent that would require a complete hand count….”  The problem for the petitioner here  is that New York State does not have a statute that establishes any trigger mechanism for a recount.  In New York, no matter how slim the margin of victory, no recount is required by statute.  The document does not point to any source of authority for the “accepted” standard they reference.

Apparently, the process for commencing an Article 78 can be accelerated, with the petitioner drafting a “show cause” order in which they draft papers for the court to consider, not simply with a return-to-court date but with temporary relief they seek prior to a full hearing and eventual decision.  Often it is a way of maintaining the status quo so as not to render the petitioner’s grievance academic by the time it gets before the judge.  As the documents attached to this blog show, Judge Nolan effectively edited the document using a pen to cross out those items he declined to order ahead of the date for the parties to appear in court.

One of the prime items Mr. Boyd and his attorney were seeking was to halt the certification of the election prior to court date (December 20), when arguments will presumably be heard.  In a variety of forms they repeated this argument.  Unfortunately for them, Judge Nolan declined to block certification by the Board of Elections.  They also asked the court to allow them direct access to pretty much all the documents  associated with this election, including both the ballots from the machines along with the mailed-in ballots.  They wanted access to the machines to inspect them.  They also were seeking to participate in the recount of the ballots including a request that the “team” from the Board of Elections that would carry out the recount be equal in size to the team put forward by the petitioner.  Judge Nolan declined all of these requests.  Two of the attorneys supported my observation that he basically granted them the opportunity to return to his court and to argue their case.

It should be noted that Judge Nolan’s unwillingness to grant the petitioner all the temporary relief he sought ahead of the December 20 return date cannot be interpreted as an indication as to whether he will ultimately order a recount, or other relief.  By this time we all appreciate the importance of ensuring integrity in our elections, so an opportunity for the petitioner to be heard in full (and for the respondents to answer in full) is appropriate.

I note in passing that on the Friday the Order to Show Cause was issued by Judge Nolan, Bob Turner went out to the homes of the Democratic and Republican Board of Election commissioners in an attempt to serve them with the papers, which signals his auxiliary role (that is, as process server) to the named petitioner in this proceeding.  Of note is that at the end of his decision, Judge Nolan wrote that in light of the fact that the County offices were closed for the holiday on Friday, November 24, the petitioner had until November 29 to serve his papers on the parties.  The County offices would be open again on Monday November 27 so the petitioner would have plenty of time to effect service on the commissioners.  It seems odd that Turner would rush out to serve the commissioners on their holiday,

I would also note that, as I read the Verified Petition, insinuating that there may have been election fraud and/or tampering with the voting machines seems a long way from the published statements previously made by Mr. Turner et al. on how much they trusted the Board of Elections.  Interestingly according to the Board of Elections, following each election, in order to insure the validity of the results, 3% of the ballots are randomly audited.  It is my understanding that not only was this done, as required, but that no problems were identified in the audit.

Here is a link to the legal papers filed with the court.  There are a number of interesting things about these documents.

I am not an attorney so, allowing for the possibility that I may be badly misunderstanding the narrative of these documents, the following is my analysis of what I have read.

1. The original request was extremely broad, seeking all ballots for “subject/public offices.”  Judge Nolan eliminated the reference to public offices from the scope of his Order.  It seemed odd that the petitioner would have originally included the races for candidates in the election [JK: More on this kind of thing later] within the sweep of his petition.
2. Judge Nolan denied an extremely broad request ( by striking it from the initial Order to Show Cause presented to him) that the petitioner be provided with “[a]ll documents…included but not limited to, absentee ballot applications, voter registration records, ballot envelopes, poll books….”  The list goes on and on to include pretty much any item associated with the election “without the need for a subpoena prior to the canvass of ballots.”
3. Judge Nolan likewise denied the request that the commissioners of the Board of Elections appoint a “board of inspectors…for the purpose of conducting a recanvass of all votes cast in the subject General Election.”  This panel would be empowered to “hear and make determination upon any and all objections to the canvassing of any and all ballots….”
4. Judge Nolan further denied the plaintiff “that any attorney or his representative be admitted on behalf of Petitioner to the polling location or the place of recanvass of the votes in this election and be allowed full participation in the administrative proceedings….”
5. Judge Nolan also denied their request that the Commissioners of the Board of Elections “…place all of the above {JK:Documents] in a secure facility… for which there are two separate locks required for access….” It goes on to lay out a set of procedures to ensure that the documents are secure.  It is my understanding that this request was redundant, as it is already required by law and has been adhered to already by the Board of Elections.
6. Judge Nolan denied the petitioner the right to inspect the voting machines, at least at this stage.
7. Judge Nolan denied their request that the petitioner be granted access to the memory cards and TIF files from the “election machines” as soon as possible.
8. Judge Nolan also denied the following.  (Please Note: I have reviewed this text with two very successful attorneys who both told me that the paragraph was incomprehensible which was probably why it was denied.)  See dear reader if you can make sense of this provision drafted into the original Order to Show Cause submitted by the petitioner: “ORDERED that Respondent Board of Elections but, should this Court so determine not earlier than the day after any hearing and determination which may be ordered by this Court related to issues regarding malfunctioning and or compromised voting machines, or as soon thereafter as the paper ballots and supporting records can be made available;” [sic].

There is a supportive document, the Verified Petition, in which the petitioner lays out why they think there should be a recount:

In item #3 they note that the charter initiative was defeated by only 10 votes out of approximately 8,900.  They go on to state that this is “…well under the accepted one half of one percent that would require a complete hand count of all of the ballots cast in the subject General Election.”  As a non-attorney, this strikes me as quite odd.  New York State law has no provision for a threshold number or percentage of votes cast that would require a recount.  In a posting on the web, Susan Steer, wife of Bob Turner, states that twenty states have such a law.  A legal innocent like myself would think that a judge might be offended by this kind of argument, prompting him or her to ask, “well maybe, but does New York State have such a law?”  I would submit that that is the only standard relevant to this petition.

Item #5 states that “Petitioner should not be deprived of his right to review the ballots before the results are certified….”  In light of the Board’s certification on December 1, this argument seems academic.

In item #5, the petitioner argues that, by the Board’s act of certifying the election, the court “may” be deprived of jurisdiction over “…ballots that have already been opened and canvassed, without the opportunity to review said ballots  for inconsistencies, illegalities [emphasis added], discrepancies, and other mistakes that may void the ballot…”   In addition it states, “[o]ther Courts and County Boards of Elections give the petitioner the .tif files [these are digital images of the ballots] to expedite the recount process… Said machines have been shown to give inaccurate reports of the canvass….”  Again, Judge Nolan struck from his Order the application of the petitioner to have all of this.

In item #6, “… a temporary order staying the immediate Certification of the result of the election is requested.”  As noted above the Board of Elections’ certification was done on Friday, December 1^st.

In item #7 they request that the stay of the certification remain until the petitioner and the Board of Elections have completed the recanvassing.  As I note above, this was in effect denied.

In item #9 the petitioner asserts that “[t]his Petition is being brought to continue to preserve the ballots, review irregular and possibly fraudulent [my emphasis] returns from voting machines…[and to determine if there were problems with votes due to] malfunctioning or tampered [my emphasis] with voting machines.”   These are some startling statements that are made without any supporting facts.

In item #9 they also request that the “Court enjoin any certification …which could prejudice the rights of Petitioner and bar any procedural defect which might be asserted to defeat the Court’s determination.”  Again, to a lay person this all seems quite repetitive.  Again the court declined to block the certification.

In items #10 and #11 they continue to assert the need for the court’s support to have access to the ballots, etc. to pursue their count.

In item #12 they assert, “Upon information and belief, the unofficial canvass of the votes cast by machine…may be, and often is, incomplete and/or inaccurate.”

According to Wikipedia: “In the law of evidence, the phrase information and belief identifies a statement that is made, not from firsthand knowledge, but ‘based on secondhand information that the declarant believes is true’. The phrase is often used in legal pleadings, declarations under penalty of perjury, and affidavits under oath.”  They offer no support for how they know and/or have come to believe this.

In item #13 they state,”[f]urther, upon information and belief, several of the voting machines in the subject politial subdivision may have malfunctioned or broken down and failed to count all of the votes cast for the Proposed New City Charter.”  Again, they offer no supporting information for this claim which, if true, demands the time and attention of the court to address.

In item #15 they call for the continued “impoundment and protection of the voting machines and ballots…”  They warn that any “…lapse in security or breach of protective measures for the machines and ballots … would irreparably harm petitioner and undermine public confidence….”  In talking to people at the Board of Elections, the State has rigorous standards for ensuring the integrity of the ballots and safeguarding the related documents.

In #17 they reserve the right to produce evidence at a future date and to amend what they have submitted.

In #17 and #18 the petitioner worries that the Board of Elections may not only make erroneous determinations but that these may be sustained by a unanimous vote of the Commissioners.  They say that in that case they would like the court to adopt the methods used by the Supreme Court, Kings County (Brooklyn) and reference a precedent decision about which they do not elaborate.

 

In #21-23 they request access to documents without the need for subpoena.

In item #24 they not only want to directly participate in the recanvassing process but they want the team of inspectors representing the Board of Elections to be equal to the numbers of the petitioner’s recanvass team, who are not identified in any manner.

In item #26 they want to be able to participate in the verification of all voters’ signatures to establish their identities. They want to be able to challenge the ballots of people not qualified to vote — which in itself suggests a potentially massive undertaking.

In their #30, the petitioner raises an odd issue, which appears to suggest a grievance and hints at projected relief which may be sought that is well beyond the scope of this proceeding.  They state that the Election Law “fails to address the question of the participation of counsel in proceedings on Election Day at the polling place(s) or at the canvass and recanvass of paper ballots.  The Election Law merely requires that a poll watcher be a resident of the County where the election is being held.”  Then, in item #31 they request “that attorneys and those working for attorneys be allowed in polling places as poll watchers without regard to residency within the State of New York”.  Then in item #34 they ask the court to prevent the Board of Elections from denying them documentation prior to certification “and/or the processing of ballots by more teams of inspectors than Petitioners legal team can accommodate.”  I have a simple question to ask:  where are they going with this?

In #39 the document basically summarizes their requests.

As just a footnote to all this, Saratoga Today reporter Tom Dimopoulos asked Gordon Boyd how much this legal action was costing.  Boyd declined to comment.