CHALLENGED BALLOT CASE HEARD IN APPELLATE COURT

The hearing started out rather inauspiciously when Justice Karen K. Peters said that she did not understand the case, adding that she thought the court had established the right of voters with more than one residence to choose the residence used for the purposes of voting. The question of what the petitioners (Gregory Fingar, Chairman of the Columbia County Republican Committee, and the Republican candidates in Taghkanic) were seeking in their action was revisited several times during the hearing.  

First to speak, Kathleen O’Keefe, attorney for the Democrats, stated her position that Section 16.106 of New York State Election Law—Proceedings as to the casting and canvass of ballots—gives no authority for the court to decide if a voter is eligible to vote. Such objections needed to be made in a Section 16.108 action, which requires that the voters whose registration is being challenged are a necessary party to the action, which is not happening in this case. When asked if the petitioners were challenging nonresidency—that is, claiming that the voters casting the challenged absentee ballots did not have a legitimate residence in Columbia County—O’Keefe replied that there had not been “any question about sham residences,” adding that “it seems that voters need to pick the residence they [the petitioners] want them to.” She went on to say that “the petitioners make the argument that if you claim one residence for one purpose, you cannot make another your residence for voting purposes.”

Daniel Burstein, representing Democratic Commissioner of Elections Virginia Martin, reiterated O’Keefe’s argument that Section 16.106 does not provide jurisdiction over the voter, pointing out that the breadth of inquiry sought by the petitioners can be conducted only in a Section 16.108—Proceedings as to registration and voting—action, which ensures voter notice and gives voters the opportunity to be heard. Burstein stated that “the issue of qualifications to vote is not before the court.” He asserted that election law allows challenges to registration before the vote, but questioning registration is not an allowable post-election challenge.

When John Ciampoli, representing Fingar and the Republicans candidates, had his turn to speak, he was asked specifically “What is this case about? Is it whether or not people reside in Columbia County?” Ciampoli responded by saying the challenge was “if voters meet the criteria.” When asked “Are you challenging those voters who have homes in Columbia County?” Ciampoli cited the example of someone, somewhere else in New York State, who claimed to have an apartment in a building owned by his girlfriend’s parents—an apartment that turned out to be an uninhabitable part of the building. To the observer, this example of “sham residence” seemed to have little relevance to the voters of Taghkanic whose ballots are being challenged.

Pursuing a question raised earlier, the justices asked why the people who cast the ballots were not part of the action. “If this has the effect of disenfranchising them, doesn’t that make them a necessary part?” Ciampoli responded by saying that the action seeks “only to invalidate the ballot without disenfranchising the voter.”

Ciampoli then cited findings of their investigation of the public records: two people who voted in different places in alternate years and a “member of the bar who has two STAR residences.” Ciampoli seemed to deliver this information with the intention to shock, but the justices were impassive, with Justice Peters commenting, “Residency for voting purposes is so amorphous.” Ciampoli continued, citing factors that he believed determined one’s residence: “Where is your local bank? Where do you file your income tax returns? What address is on your driver’s license?”

Returning to the theme of sham residence, Ciampoli cited another example—again not in Columbia County—of several voters being registered at a house that had burned down and was never rebuilt. Based on a challenge of the veracity of the statement the voter made to on the absentee ballot application and envelope, Ciampoli said, “The vote was invalidated, but the person remained on the books.”

In her rebuttal, O’Keefe stated her position that extrinsic evidence is relevant in a Section 16.106 action if it relates to the identity of the voter not the registration of the voter. In light of Ciampoli’s examples of “sham residence,” she reiterated that “there is no nonresidence allegation in this action.”

In his rebuttal, Burstein pointed out that petitioners are challenging primary residence but “all of their discovery goes to proving that voters have another residence someplace else.” The question asked by election law, Burstein affirmed, is “whether the chosen residence is legitimate not what is the primary residence.”

A decision in the case is expected as early as Friday, December 18. Decisions are regularly posted on the Appellate Division website.

Of related interest:

On Sunday, December 13, the Columbia County Republican Committee released a statement entitled "Fingar: Nolan and Martin Mislead Citizens Again," in which Chair Gregory Fingar accuses Columbia County Democratic Commitee Chair Chris Nolan and Democratic Commissioner of Elections Virginia Martin of "a long-term effort to win elections in the county to bring unqualified voters into the process, thereby 'stacking the political deck.'"

Previous ccSCOOP articles on the challenged ballot issue:

"Nine More Votes Counted for Taghkanic" - December 9, 2009

"The Ballot Battle Continues" - December 5, 2009

"The Issue Is Residency" - December 3, 2009

“Déjà Vu All Over Again” – November 30, 2009

"A Long Day at the BOE" - November 18, 2009