Professional Documents
Culture Documents
November 5,2012
Albany County Supreme Cou William L. Owens v. New York State Board of Elections, et al Index No.: 6132-12
Dear Commissioners: We are seeking to protect and preserve the canvass of election in the 21't Congressional District, which is within your County. We are seeking a temporary restraining order at the Albany County Courthouse this afternoon before the Honorable Richard Platkin, Acting Justice, l6 Eagle Street, Room 256 Albany,NY 12247.
Pursuant to Rule 202.7 (f), this letter serves as notice to all parties that such an order be sought, so that you may be permitted an opportunity to appear in response to this
will
Pearlman
cc:
54 State Street r
I ATTORNEYS AT LAW T WWW.GTLAWCOM th Floor . Albany, NY12207 r Te[ 518.891400 I Fax 518.6891499
COTINTY OF ALBANY
of
William L, Owens,
Petitioner, -againstIndex No.; 6132-12
Susan R. Castine, Gegory Campbell, Robert Pell-DeChame' Derinda Sherman, Kelly A. Cox, Veronica B. King, John W, Schermerhorn, Brett A. Preston, Cathleen E, Rogers, Marie Buanno, Shelly Pauanese, Kathleen A. Farber,
AFFIRMATION
Babette M. Hall, Jeny Eaton, Lindsay Burris, Ann M. Nortz, William Frucci, Roger J' Schiera, Jennie H. Bacon, Thomas A' Nichols, William A. Montfort, Mary Beth asey, Jeffrey J. Curtis, Leslie Allen as Commissioners constituting the Clinton, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Satoga, St. Lawreneeo Warren, Washington Boards of Elcctions, New York State Board of Elections, Matthew A' Doheny and Donald L, Hassig
Respondents.
For an Order, pursuant to Sections I 6- I 06, 16-112 and I 6- 1 1 3 of the New York State Election Law directng the preservation of all ballots qast in the General Election to be held on November 6,2012.
Jeffiey H. Pearlman, Esq., pursuant to CPLR $2106 and under the penalties of perjury, affirms follows:
I am an attorney at law duly licensed to practice in the state of Nw York and am affiliated with theLaw Firm of creenberg Traurig, the attorneys of record for Petitioner in the above-referenced Election Law matter. As such, I am fully awafe of the underlying action, as well as the proceedings had herein.
1.
2. I have submitted notice today, aornmunicating to all the parties to this ation, via facsimile and conflrmed recelpt pursuant to Rule 202J (, to inform them of the tlme, date and plaoe of tho application for temporary injunctlve relief'.
3.
I am aware of my obligations
nl
lL
STATE OF NEW YORK) SS: COLINTY OF ALBANY) td-' before me, the undersigned, in the year on the l*1 day of personally known to me personally appeared evidence to be the individual(s) whose narne(s) or proved to me on the (are) subscribcd to the within instrument and acknowledged to me that he/she/they executed is the same in hishr/their capacity(ies), that by his/her/their signature(s) on the instrument, the individual(s), or the personal upon behalf of which the individual(s) acted, excuted the instrument, and that such individual made such appearance before the undersigned,
lo1.
Notary Public
MICHELE D. WARNKEN Notary
Qua Gommls
to:
SubJect:
Attachments:
Ct^. r'^.
ta Co PY
At a Term Part _ of the Supreme Court of
the State of New York, County of Albany, at the Courthouse in Room at Albany, New York on the fA day of November,2012.
PRESENT:
HON
OF ALBANY
William L. Owens
Petitioner
-againstSusan R. Castine, Gregory Campbell, Robert Pell-DeChame, Derinda Sherman, Kelly A. Cox, Veronica B. King, John W. Schermerhorn, Brett A. Preston, Cathleen E. Rogers, Marie Buanno, Shelly Pazzanese, Kathleen A. Farber, Babette M. Hall, Jerry Eaton, Lindsay Burris, Ann M. Nortz, William Fruci, Roger J. Schiera, Jennie H. Bacon, Thomas A. Nichols, William A. Montfort, Mary Beth Casey, Jeffrey J. Curtis, Leslie Allen as Commissioners constituting the Clinton, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Saratoga, St. Lawrence, Warren,'Washington Boards of Elections, New York State Board of Elections, Matthew A. Doheny and Donald L. Hassig
lot3--t.}
Index No.:
Respondents.
For an Order, pursuant to Sections 16-106, 16-LI2 and 16-113 of the New York State Election Law directing preservation of all ballots cast in the General Election to be held on November 6,2012.
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of
this
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day of November, 2012, or as soon thereafter as counsel may be heard, why an Order of this Court should not be made and entered:
1.
Determining the validity of all ballots and votes, including but not limited to,
affidavit ballots, emergency ballots, absentee ballots and military ballots cast for
the public office to be voted upon by the voters in the General Election for the
2.
of
the
the
3.
of any voting
malfunctioned or appear to be tampered with, and making an appropriate finding of fact, preserving of all evidence, and adjustments to the canvass of votes as may bejust and proper; and further
wD035021
4.
Ordering that the canvass of the votes made by the County Boards of Elections be connected and adjusted to reflect a proper tally of the votes for the said public
5.
Ordering the joinder of such other parties as determined appropriate, together with
such other, further and different relief as this Court deems just and proper;
including
ORDERING, that the Respondent County Boards of Elections shall make available
to the Petitioner and the Respondent candidates Doheny and Hassig at least
to* t"u"of
4< -/
two workers (one Democrat and one Republican) for review and inspection of the voter registration records (i.e.,
envelopes
for
uncanvassed
absentee, military, special federal, affidavit and other uncanvassed paper ballots voted in
the November 6, 2012 General Election within the 21't Congressional District. The
Petitioner and Respondent candidates Doheny and Hassig may have no more than two
representatives each present and working with each such Board of Elections team for the purpose of reviewing and inspecting the subject documents, and further
ORDERING, that the Respondent County Boards of Elections prepare all necessary
records for the canvass of the votes
the
registration records of voters casting paper ballots, absentee applications, poll books, and other related documents, forthwith, and further
of
procedures and shall canvass each and every paper ballot unanimously found to be valid
IwD035021 |
and/or proper by said Boards of Elections except as hereafter provided. Any and all ballots objected to by the Petitioner or Respondent candidates Doheny and Hassig shall
be ruled upon by the Boards of Elections and then laid aside and preserved by said
Boards and shall not be canvassed pending judicial review, and further
ORDERING, that said Boards of Elections shall preserve a record of all objections
entered against the canvassing of any ballot, together with a record of the vote upon the objection thereon (sustained, ovemrled or split vote), and shall further preserve any ballot and supporting documentation upon a split vote of said Board of Elections so that this
of
Elections
compromise the secrecy of any voter's ballot by way of preserving an objection thereto in
violation of Election Law 17-126 (1), (2) or (3); Article 2, Section 7 of the New York
State Constitution and relevant provisions of
and further
ORDERING' that the Respondent County Boards of Elections shall assure that all
paper ballots, records and keys for voting machines are secured
in a safe or
storage
facility maintained by the Boards of Elections for which there are two separate locks
required for access, with each commissioner of elections having a key or combination for
only one of the two locks. Further, the Respondent County Boards of Elections shall
maintain a record of all persons accorded access to the ballots and related materials, and
shall assure that the handling of ballots is done on a bipartisan basis, and further
ORDBRING, that the Respondent County Boards of Elections shall keep a record of
applications
for
of
said
applications to Petitioner or designees pursuant to section 8-402 of the New York State
lwD03502l I
Election Law with sufficient time to object to the issuance of absentee ballots being
issued by the Respondent County Boards of Elections; and further
of this
proceeding, and with the determinations of said Boards of Elections upon any objections
and challenges to voters, and other papers or worksheets relating thereto; and further
of
Elections cause
all
ballots
(including voted, protested, wholly blank and void), voting machine keys, and other
papers and worksheets, including statements of canvass (collectively "Voting Material"),
utilized
Representative in Congress, 21't Congressional District-NY, be retumed to the offices of the Boards of Elections forthwith after the close of the polls and the report of the initial
canvas and that the Boards of Elections cause all Voting Material described above to be preserved inviolate and separate, under police guard (subject to such reasonable access by
fulfill
statutory
ORDERING, that all County, City, Police Department and Village Police ("Local
Police Departments") and local Law Enforcement provide such reasonable assistance to
the Respondent County Boards of Elections to effectuate the foregoing; and further
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of the General
Election, and place of canvas or recanvass of the votes in this General Election and be allowed
held in relation thereto, including the rights of poll watchers pursuant to section 8-500 et
seq. of the New
York Election Law, without the need for production and filing of
poll
November 6'h,2012, as soon thereafter as the ballots and supporting records can be made
available; and further
ORDERING, that the Respondent County Boards of Elections shall forthwith recall
as soon as practicable after the General Election and cause to be returned to central locations, maintained by the Boards of Elections for the storage and preservation of voting machines, all voting machines in the respective applicable geographic jurisdictions
and shall cooperate with the local Law Enforcement and Police Departments
in so doing
as to ensure that the voting machine keys are under guard and police protection; and
further
ORDERING, that the Respondent County Boards of Elections and Respondent New
York State Board of Elections and Counsel for all Parties be directed to establish
schedule
for the canvass of all votes cast in the General Election for the public office of
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ORDERED, that sufficient reason appearing therefore, leave is hereby granted to the
Petitioner to submit on the date set for the hearing or the trial of this matter additional
witnesses, exhibits, proof and other evidence as may be necessary; and
it is further
ORDERED, that sufficient reason appearing therefore, leave is hereby granted to the
Petitioner to amend the pleadings as may be necessary; and it is
the
and counsel shall inform the Court by telephone of same immediately upon agreeing
thereon, so that the canvass may proceed with all due speed; and
it is further
ORDERED, that any requirement that the affidavits of service be filed with the Clerk
of the Court be extended to the return date of this motion and that the ten day completion of service provision be waived by this Order.
ORDERED, that the Petitioner shall cause these papers to be filed with the
County Clerk/Clerk
rrrr,
and the
ORDERED, that the County Clerk/Clerk of the Supreme Court shall accept the within Order to Show Cause and Verified Petition for filing upon the presentation thereof with the appropriate fees, and
(wD035021
SUT'FICIENT REASON APPEARING THERFORE, it is further ORDERED, that Petitioner shall cause a copy of this order together with all of
the ancillary papers thereto, upon which this order was granted, to be served upon
Respondent County Boards
(518) 565-4508
(518) 873-3479
(518) 481-6018
(518) 736-1612
(315) 376-2860
(518) 884-475I
(315) 386-2737
(518) 761-6480
(518) 746-2L79
(518) 486-4546
A.
L.
Hassig by
delivering a copy thereof to a recognized overnight delivery courier and/or the United
States Postal Service at or before 11:59 p.m.
on tne
fl^
day of
k-
of a signature, to said
IwDo3502r ]
file with a respondents Board of Elections, shall be deemed good and sufficient service,
and upon service, all Respondents shall be deemed parties to this proceeding.
ENTERED:
Ri..f^
- PlolL^. J.S.C
IwD03502r)
William L. Owens
Petitioner,
-againstSusan R. Castine, Gregory Campbell, Robert Pell-DeChame, Derinda Sherman, Kelly A. Cox, Veronica B. King, John W. Schermerhorn, Brett A. Preston, Cathleen E. Rogers, Marie Buanno, Shelly Pazzanese, Kathleen A. Farber, Babette M. Hall, Jerry Eaton, Lindsay Burris, Ann M. Nortz, William Fruci, Roger J. Schiera, Jennie H. Bacon, Thomas A. Nichols, William A. Montfort, Mary Beth Casey, Jeffrey J. Curtis, Leslie Allen as Commissioners constituting the Clinton, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Saratoga, St. Lawrence, Warren, Washington Boards of Elections, New York State Board of Elections, Matthew A. Doheny and Donald L. Hassig
VERIFIED PETITION
Index No.:
Respondents.
For an Order, pursuant to Sections 16-106, 16-112 and 16-113 of the New York State Election Law directing preservation of all ballots cast in the General Election to be held on November 6,2012.
NOW
1.
New York I290I and is the candidate of the Democratic and Working Families Parties
for the public office of Representative in Congress, 21't Congressional District, State of
New York, in the General Election to be held November 6,2012.
lwD03s022)
2. 3.
'Washington
State
of
Elections
in Clinton, Essex,
Franklin,
Fulton, Hamilton, Herkimer, Jefferson, Lewis, Saratoga, St. Lawrence, Warren, and
are charged by the State Election Law
the election for all public office(s), in their respective counties, including the General Election to be held on November 6, 2012, for the public office of Representative in
Congress, 21't Congressional District-NY.
4. 5.
Respondent Commissioners
of
County, is responsible for certifying the ballot and the returns of the subject General
Election, and has jurisdiction over all multi-county races for public office..
6.
Respondent Matthew
A.
Dohen) resides
^t
303 Paddock
Street.
Watertown. New York 13601 and is the candidate of the Republican, Independence and
Conservative parties
Representative
in
Congress, zlft
7.
Respondent Donald
340. Colton. New York 13625 and is the candidate of the Green Party for the public
the
8.
Upon information and belief, all indications are that this contest may be
exceedingly close with conflicting retums. As such, the final outcome may hinge upon
{wD035022}
the re-canvass of voting machine ballots and the canvass of all other paper ballots,
including emergency ballots, affidavit ballots, absentee ballots, special federal ballots and
military ballots.
9.
the practice of opening and the canvassing by hand or mechanical device paper ballots.
various Boards of Elections for the canvass of machines and canvass of all paper ballots.
the
public's rights under Articles Five, Eight, Nine and Sixteen of the Election Law of the
State of New York to conect any errors in the canvass of returns of the said General
if
necessary,
ballots and the canvass of absentee, emergency and affidavit ballots to be cast for the
various Candidates
for
election
matters
pertaining to said General Election under the jurisdiction of this Court pursuant to the New York State Election Law, which confers authority to determine and resolve disputes arising out of the conduct of an election and the canvass of ballots and returns arising
thereto.
12.
certificate of election might be the only remedy available to the Petitioner so as to allow for the determination of the rightful claimant to the subject public office without resort to
an action quo warrantoby the Attorney General.
(wD0350221
13.
Boards
14. 15.
Upon information and belief, the unofficial canvass of the votes cast by
machine for the subject public office may be, and often is incomplete and or inaccurate. Further, upon information and belief, several of the voting machines in the
subject political subdivision may malfunction or break down and fail to count all of the votes cast for the Petitioner.
16.
Such an occuffence requires the Court ordered testing of the subject voting
is
in security or
breach
of
machines and ballots relating to this election would irreparably harm the Petitioner, and,
indeed, undermine public confidence in the electoral process.
18.
Only a review of the final voting machine re-canvass from the several
Boards of Elections and a physical inspection of the subject voting machines and related
documents on
file with the Boards of Elections will reveal any irregularity or fraud.
Petitioner requests leave to and reserves the right to submit further proofs
19.
by way of witnesses, affidavits and evidence on the date set by this Court for the trial and hearing of this matter, and to amend these pleadings to reflect the facts of the conduct of
the subject election matter, and to amend these pleadings to reflect the facts of the
conduct of the subject election and/or facts adduced by the way of further investigation
fwD0350221
and./ot canvass of the ballots for the election for the subject public office by the Boards
of
Elections.
sustained by a unanimous vote. Without Court intervention at this juncture such ballot envelope would be burst, the ballot removed from the envelope and intermingled with others, depriving the Petitioner of the ability to have the administrative determination of
the Boards of Elections reviewed by the Court.
21.
validity of
a
In the event that there is a split vote of the inspectors with respect to the
ballot at the Boards of Elections, with the return date set by the Court more
than three days from the entry of an objection, the ballot envelope would be burst, the
ballot removed and intermingled with others, depriving the Petitioner of the ability to
have the administrative determination of the Boards of Elections reviewed by the Court.
22.
Upon information and belief, the canvass of these ballots may exceed the
three-day preservation period provided for in Election Law Section 9-209 and a Court
Order is necessary to preserve these ballots unopened.
23.
against the objections of the Petitioner, the ballot envelopes would be opened, and the
ability of this Court to review the objection and the ruling thereon would be mooted.
24.
which
are
WD0350221
in O'Keefe v. Gentile,757
26. 27.
Failure to so preserve objections would ineparably harm your Petitioner. Petitioner may request various information to be provided to him by the
Boards of Elections. This information is required for Petitioner to have a meaningful participatory role in the canvass of paper ballots. It is requested that this be done without
the need for a subpoena or Freedom of Jurisdiction Law Request.
requested providing
for the
production of documents before the canvass of ballots without the need for subpoena.
Further, this Court should provide in its order that counsel for Petitioner
Article II,
Section 7, which requires that identification of voters be made by their signatures "in all
cases" are followed.
31.
This information will allow for the full implementation of Sections 8-302,
8-304, 9-104(1) (d),9-209 (2) (a) (1) of the Election Law and other sections of the law
which codify the Constitution's mandate of signature verification to establish the identity
of all voters. The information requested by your Petitioner is needed for the Petitioner to have the ability
candidate to have watchers present who may object to the casting or canvassing of any
ballot or the refusal to cast or canvass any ballot, Election Law Section 9-209 (2)(d), to
{wD035022}
object to the qualification of any voter, and to have any determination reviewed by the
Supreme Court, Election Law, Section 16-106.
32.
Upon information and belief, absentee ballots will be issued by the various
not
Upon information and belief, there will be affidavit ballots that will not
to have law
37.
The failure to enforce the statute, and the inability to adduce the
underlying facts would irreparably harm your Petitioner, and prevent a review on the
merits of his challenges made on the basis of registration/residency.
38.
The State Board of Elections, and all local boards of elections in this state
allow attorneys and those working for attorneys to be present in the polling place as poll
watchers, without regard to the individual's place of residence within the state, so that they might participate in any administrative proceedings before the Boards on behalf of
the candidate that they represent. Upon information and belief that the Election Law fails
IwD0350221
39.
been stricken by the Court of Appeals in LaBrake V. Dukes and McGuire v. Gamache, is respectfully submitted that this residency requirement is similarly unconstitutional.
It
40.
working for attorneys be permitted to be present in the Boards of Elections Offices which
are "polling places" as poll watchers without regard to their residence within the State
of
New York.
4I.
from outside the County from practicing law before the Boards of Elections on or after
Election Day, constituting an illegal and improper restriction on the practice of a state
licensed profession.
42. 43.
Such applications have been routinely granted by the Courts of this State.
Moreover, Petitioner prays for an order of this court which would prevent
any of the Respondent Boards of Elections from preventing the Petitioner or any of the candidates from having a meaningful participation in the process by way
of denial of
teams of
documentation prior
to
of ballots by more
44.
in the paragraphs
hereinabove, point to the fact that the final result of this election may hinge upon the
wD03s022)
well
as a review
45.
Elections, acting in their capacity as the County Boards of Canvassers, and the State Board of Elections acting as the State Board of Canvassers, be enjoined from certifying
the results of this election until such time as these court proceedings are finally resolved
and determined.
46.
The County Board of Elections are required by law to certify to the New
York State Board of Elections the results of the contests conducted in their jurisdictions by December
I, 2012 (Section
9-274 Election
State Board of
Elections is required to certify the results of the 2012 General Election by December 10,
2012 (Section9-216 Election Law).
47.
the proceedings before this Court extend beyond these statutory deadlines, or is made
prematurely by the Respondent Board.
48.
Petitioner has no other remedy at law other than that applied for herein.
Leave is respectfully requested and the Petitioner respectfully reserves the right to amend
these pleadings as needed.
49.
right to produce evidence in support of this Petition by way of testimony, affidavits, and
other evidence at the trial or hearing of this matter.
50.
right to make further applications to the Court for interim relief as may be needed.
fwD035022)
51.
100 and 16-106 of the New York State Election Law, which confers authority upon this
Court to determine and resolve any disputes arising out of or relating to the canvass of ballots and returns for public office.
52.
affidavits, and evidence upon the date set by this Court for the trial and hearing of this
matter, and to amend these pleadings to reflect the facts adduced by way of a canvass of
the ballots for the subject public office by the respective Boards of Elections.
53. 54.
No prior application for the relief requested has heretofore been made by
Petitioner to this or any Court. Petitioner hereby designates Albany County as venue for the within action
due to the fact that the New York State Board of Elections, headquartered in Albany
County, has jurisdiction over all multi-county races for public office.
of this Court
of
Elections
in
to correct, adjust and finalize the canvass of returns for the general election for the public
office of Representative in Congress voted on by the voters of the 21't Congressional District-NY, at the General Election to be held on November 6, 2Ol2; and further
declaring that the Respondent Boards of Elections secure and impound voting machines that appear to have malfunctioned and/or been tampered with; and Respondent County Board of Elections secure all ballots used in the General Election and account to the Court therefore; and Respondent County Boards of Elections shall lay aside and preserve
{wD035022
l0
any and all paper ballots objected to by Petitioner or Respondent candidates Doheny and
Hassig, and not canvass any objected to ballots pending judicial review; and further
declaring that Section 8-500 (a) of the New York State Election Law is unconstitutional; together with such other, further, and different relief that this Court may deem to be just
and proper.
(wD035022)
1l
VERIFICATION
STATE OF NEW YORK
COUNTY OF ALBANY
) ) ss )
The undersigned, an attorney duly admitted to practice in the Courts of the State
of New York, shows that deponent is a member with the law firm of Featherstonhaugh,
V/iley & Clyne, LLP, the attorneys of record for the Petitioner, William L.
Owens,
herein, that deponent has read the foregoing Verified Petition and knows the contents thereof, that the same is true to deponent's own knowledge, except as to the matters
therein stated to be alleged on information and beliel and that as to those matters
deponent believes them
verification is made by deponent and not by Petitioner is that Petitioner resides outside
Albany County wherein deponent maintains his office for the practice of law.
The grounds of deponent's belief as to all matters not stated upon deponent's
knowledge are from information received from the Petitioner. The undersigned affirms
that the foregoing statements are true, under the
of
to before me this
v of November
2.
tate
of ew York
,rt, A
tlllllr
rE,N J.
a,
o
(wD035022)
a
O
,liltrtt
N
{
t2
CERTIFICATION
FRANK G. HOARE, ESQ., an attomey admitted to practice law in the Courts of the State of New York, affirms under penalties of perjury, that the following statements
are true:
Than I am the attomey for petitioner-candidate in the within case. That I certify to the best of my knowledge, information and belief, formed after an inquiry reasonable under circumstances, that presentation of Petitioner's Verified Petition and the contentions therein are not frivolous as defined in 22 NYCRR 130-1.1-a, et seq. Dated: Albany, New York November 2,2012
G. Hoare,
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t3