IT ISN'T OVER UNTIL IT'S OVER

The Last Act in the Long Drama of Taghkanic's Challenged Ballots

Carole Osterink

ccSCOOP Editor

Click for Final (Unofficial) Tallies in the Contested Races

01-14-10 - 8:00 a.m. - It was a long day, alternating between court proceedings at the Elks Lodge and ballot counting at the Board of Elections, but at the end of the day, the outcome for the Democratic candidates of Taghkanic was favorable.  

From the beginning, though, things didn’t look good for the Republicans’ attorney James Walsh. On December 30, Walsh had asked Judge Jonathan Nichols to allow him to a submit a brief stating why the Appellate Division decision, which made it clear that absentee ballots could not be challenged based on residency after the ballots had been issued, allowed the ballot challenge to continue based on the veracity of the statements voters had made on their applications for absentee ballots and on the ballot envelope itself. Although he seemed clearly skeptical that there were reasons to challenge the validity of the ballots beyond the issue of dual residency, Nichols agreed to let Walsh submit a written brief and “try to convince me that the Appellate Division is doing something incorrect.” Along with the brief, Nichols asked Walsh to submit statements of “each and every one of the objections” for each outstanding ballot. Walsh's brief, submitted on January 6, was accompanied by same spreadsheet Walsh had been submitted in the past, and Nichols was clearly not pleased.

“I think your detail is decidedly insufficient to show what you’re seeking to prove,” Nichols told Walsh. “I find your arguments that the Appellate Division ruling is not controlling unconvincing.” At one point Nichols stated bluntly, “Here’s your problem: You haven’t done twice what I’ve asked,” then added, “I’m a little testy.” Nichols made it clear that he could dismiss Walsh’s objections out of hand, but instead he allowed Walsh to offer proof voter by voter. And so the long exercise began.

For each voter on the list, Walsh stated his litany of objections: The voter has a New York City address on his/her driver’s license. The voter has a car registered to a New York City address. The voter has a New York City phone number. The voter has a STAR exemption on property in New York City. The voter lives in a rent-stabilized apartment in New York City. The voter has made political contributions from a New York City address. The voter has a professional license in New York City. After Walsh presented his proof for each voter, Nichols asked: “Do you in any way contend that this voter does not have a residence in Columbia County?” Each time the question was asked, Walsh admitted he did not, and Nichols dismissed the challenge as a dual residency challenge.

A little humor was injected into the proceeding, when Nichols observed that name of one of the voters, Susan B. Anthony, was “somewhat ironic,” which prompted Kathleen O’Keefe, attorney for the Democratics, to say that she was happy Judge Nichols was going to allow her to vote.

When he got to voters on the list who owned property in New Jersey, Walsh argued that the dual residency rules applied only if the two residences were in the State of New York. Nichols was unconvinced, telling Walsh, “I don’t know how you can read the Appellate Division ruling so narrowly to think it only applies if both residences are in New York.”

In the end, Nichols ordered that 46 of the 49 ballots be counted, but to preserve the petitioners’ ability to appeal his decisions, Nichols ordered the ballots to "O'Keefed"—that is, the ballots were opened in private by the deputy commissioners and photocopied without being looked at; then the originals were set aside to be counted, and the copies were returned to the envelopes, which were then sealed with tape and signed and dated by the commissioners. Nichols agreed to let Walsh present further evidence regarding three ballots: two from voters who were registered both in Columbia County and New York City and were alleged to engage in “zigzag” voting; and one who allegedly had a “fictitious” address—an address that did not exist in New York City—on his driver’s license.

Court was adjourned at 10:40 a.m. for the preservation and counting of ballots to reconvene at 2:00 p.m. The commissioners of election, the deputy commissioners, the candidates, the spectators, and the press then traveled from the Elks Club to 401 State Street to wait to the ballots to be preserved before witnessing them being opened and counted.

One of 45 absentee ballots counted had votes only on the two propositions and another had a vote only in the supervisor’s race, so in the end, in the races still undecided, Jeffrey Tallackson picked up 43 votes, putting him 11 votes ahead of Raymond Dalrymple in the race for Town Justice; Joyce Thompson picked up 43 votes, putting her 2 votes ahead of frontrunner in the race for Town Council, Erik Tyree; Tom Youhas picked up 42 votes and Edward Waldron 1, putting Youhas ahead by 28; and Larry Kadish picked up 43 votes, putting him in a tie with Erik Tyree for the second seat on the Town Council.

The first round of ballot counting ended shortly after 1:00 p.m., and by 2:00 p.m. everyone was back at the Elks Lodge to hear Judge Nichols’ decisions on the four remaining ballots. The first ballot to be considered was the one set aside at the Board of Elections. O’Keefe was ready with case law that supporting the position that a misplaced write-in did not invalidate the entire ballot “if the voter’s intent was clear.” Walsh maintained that “any mark compromises the integrity of the ballot.” Although Nichols told Walsh, “I’m straining to understand why even the write-in should be invalid,” he agreed to give Walsh three minutes to come up with citations to support his position. After somewhat more than the allotted time, Walsh cited Section 9.112.1 of the New York State Election Law: “The whole ballot is void if the voter . . . writes, other than in the space provided, a name for the purpose of voting.” After a long pause, during which Nichols consulted his own copy of the New York State Election Law, he pointed out to Walsh that the paragraph cited “contains more than what you read.” What Walsh didn’t read, Nichols said, indicated that a misplaced write-in invalidated only the line. In the end, Nichols ordered the ballot to be counted, including the write-in vote.

Walsh argued that “you’re only allowed to have one active voter record” and that “active registration in two places is improper utilization of the election process.” In his argument, Walsh returned to his familiar theme of people needing to have only “one fixed permanent home” and anything else “perpetrates a sham on the election system.” O’Keefe countered by pointing out that there is a HAVA (Help America Vote Act) complaint about the New York City Board of Elections’ list maintenance, implying that the problem existed because the NYCBOE had failed to remove the voters from their voting rolls when they had re-registered in Columbia County. The voter has no responsibility to notify the old board. She made the point that voters are allowed to vote where they are registered.

Walsh questioned the veracity of the voters, quoting the statement on the absentee ballot envelope that the voters had signed: “I have not qualified nor do I intend to vote elsewhere.” Nichols commented, “You’re asking me to draw an inference that they are lying because of this pattern [of voting].” He went on to say, “If the system itself hadn’t broken down, they couldn’t have done this.” He then overruled the objections to the two ballots, saying that although he did not condone the pattern of “zigzag” voting, there was “not sufficient evidence that there is sufficient question of veracity.”

O'Keefe called the legal action that continued on after the Appellate Division ruling a “tremendous waste of county money and resources” and complained that the “voters on the list were subjected to uncalled-for exposure of personal information.” (The names of the voters have been withheld in this report, but they were not withheld in court.) She contended that “the outcome could have been predicted after the Appellate Division ruling” and that in pursuing the challenges after the Appellate Division ruling, the petitioners “acted in a frivolous manner.”

Walsh requested—and was granted—permission to reply to the sanctions, stating that the Appellate Division of the Fourth Judicial Department, in western New York, had recently “handed down a decision [Stewart v. Chautauqua County Board of Elections] that is exactly opposite of Third Department.” He contended that it is “not as clear-cut an issue as O’Keefe would have it.”

And so, it would seem, in this Congressional election year, the battle over dual residency continues.