A More Careful Look at Judge Nolan’s Decision in Charter Referendum Case

NY Supreme Court Judge Nolan’s decision in the case Gordon Boyd brought against the Commissioners of the Saratoga County Board of Elections makes for some interesting reading.

Boyd was the treasurer of the now defunct Charter Review Commission which put a proposal on last November’s Saratoga Springs ballot to replace the city’s present commission form of government with a city manager form.

Boyd petitioned the court to:

1. Order a hand recount of all ballots cast in the city’s November referendum on charter change or release the “.tif” files, the electronic files generated by the voting machines
2. Compel the Board of Elections to release information requested in a FOIL (Freedom of Information Law) filed on November 20 asking for among other items “.tif” files and unscanned ballots from the November election

The FOIL Issue:

Judge Nolan addresses the issue of the FOIL request first.  He notes that there is a very clear legal procedure to be followed in seeking access to public records. Basically Boyd did not follow this procedure and so the Judge denied his request to compel the Board of Elections to produce the records he sought.

Boyd’s failure to correctly file a FOIL request puzzles me.  Boyd is not a newcomer to politics having  worked in the Assembly, run for local office more than once and served on municipal boards to name only a few of his experiences in government. Even if he had never filed a FOIL request in his extensive political career, it is not difficult to get information on how to proceed.

I went to the Saratoga County website and typed in” FOIL” in the search function. This is what I got:

and the request form was only a click away:

The directions were quite clear and the name of the person to whom the request must be submitted was prominently displayed on the site and on the form.

If Boyd had any doubt about how to proceed he could have contacted Theresa Connelly as indicated on the site or if not satisfied I have found Bob Freeman of the Committee on Open Government at the NYS Department of State to be very accessible and helpful. Boyd certainly is aware of Freeman as a resource.

Judge Nolan is quite clear in his decision that Saratoga County has in place the required rules and regulations governing access to public records and the handling of FOIL requests including providing for an internal appeal process if the request is denied. Only after going through this appeal process can an applicant begin a court proceeding.

To quote the decision “…the petitioner fails to show that a FOIL request was served on the County’s designated Records Access Officer….Clearly, petitioner has not followed the FOIL procedure and of course, did not exhaust his administrative remedies…..”

I have to admit I was somewhat amused given all the FOIL information that is easily accessible that former Charter Review Commission Chair and Skidmore Political Science professor Bob Turner complained to the Gazette that “They [the county Board of Elections] never called us to say ‘You should send it to this person.’”

The Recount

Boyd’s failure to get the court to order a recount seems also to be grounded in either a disregard for or an ignorance of the legal requirements involved in making such a request.

Boyd’s arguments for a recount consist of:

1. “the unofficial canvas of the votes cast by machine for the …Proposed New City Charter MAY (emphasis added) be and often is incomplete and/or inaccurate”
2. “several of the voting machines in the…political subdivision MAY (emphasis added) have malfunctioned or broken down and failed to count all of the votes cast for the Proposed New City Charter”

To which Judge Nolan replied:

“…petitioner produces no facts to support the propriety of a re-canvass. Rather the petition contains speculative statements….”

And

“These statements lack factual support. The only germane fact recited in the petition is that the Proposition No. 4 [the charter referendum] was defeated by 10 votes.”

Boyd goes on to argue that the New York City Board of Elections requires a manual recount of paper ballots when the margin of victory is less than 10 votes or one-half percent of the total votes cast. Judge Nolan points out, however,  that  “neither the New York State Board of Elections nor the Saratoga County Board of Elections mandates a re-canvass when an election result is close.”

Nolan goes on to write:

“…the narrowness of the margin, absent evidence of voting machine malfunction or some other irregularity, does not justify granting the request either for a hand count of the preserved paper ballots or the production of all ‘.tif’ files.”

He then cites Matter of Bradley v. D’Apice : “Before a court may grant permission to examine voting machines and paper ballots or direct a re-canvass, the petitioner must provide facts which support the claim that irregularities, discrepancies or errors occurred which affected the outcome of the election. Statements based on information and belief which fail to state the source of the information or the grounds for the belief are insufficient.”
This whole legal matter seems to me emblematic of the problems members of the Charter Review Commission and it’s PAC,  It’s Time Saratoga,  have exhibited throughout their campaign for charter change. They simply do not do their homework as was evident in the many misstatements they put our in their campaign materials. This can be seen again now in the unnecessary sloppiness of their FOIL request and in their disregard for the legal requirements that state that factual evidence must be produced to indicate that a problem with voting may have occurred in order for the court to grant a recount.

This is not a matter of “Catch 22” as Bob Turner tried to spin it to the Gazette. He argued that they can’t show there’s a problem as required because the judge won’t release the “tif.” files that could possibly show a problem. While I can sympathize a bit with their desire to review all the ballots, the court’s refusal to grant a request to devote extensive public resources and money to hand count some 9,000 ballots for what would essentially be a fishing expedition does not seem unreasonable to me. Aside from the issue of the ballots, they also had no evidence that voting machines broke down. They could produce no reports from the inspectors at polling places nor from any of the observers that day that any such problem occurred anywhere in the city.  Like it or not the law says they needed to produce evidence and they could not. Turner, as a political science professor of all people, should be aware of what the rules are, and whether he likes them or not understand that they need to be followed.

One has to wonder too about what kind of advice their legal counsel Josh Ehrlich is giving them. Boyd has indicated an appeal is being considered.  He has refused to indicate what this is costing and how it is being paid for.