tr GreenbergTraurig

Jeffrey H. Pearlman Tel 518.689.1491

Fax 518.689.1499
pearlma nj @gtlaw.com

November 5,2012

VIA Facsimle Only

Commissioners of the Clinton, Essex, Franklin, Fulton, Hamilton, Herkimer, Jefferson, Lewis, Saratoga, St. Lawrence, Warren and Washington County Boards of Election New York State Board of Elections Matthew A. Doheny, Candidate Donald L. Hassig, Candidate
Re:

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:

Hon. Richard Platkin, Acting Justice

GREENBERG TRAURIG, LLP

54 State Street r

I ATTORNEYS AT LAW T WWW.GTLAWCOM th Floor . Albany, NY12207 r Te[ 518.891400 I Fax 518.6891499

STATE OF NEW YORK SUPREME COURT In the Matter of the ApPlication

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

under Nsw York Rules of Professional Conduct (22

NYCRR Part 1200) and22 NYCRR Part 130.

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

Warnken, Michele (AdmAst-ALB-HC)

From:
Sent: McGrath, Heather K. (BStf-ALB-Rec) Monday, November 05,20L212:58 PM Warnken, Michele (AdmAst-ALB-HC) Fax Confirmations Successful transmission to 13153862737, Re: Your eFax Solutions Account; Successful transmission to 1-31-58671106, Re: Your eFax Solutions Account; Successful transmission to 1.518761-6480. Re: Your eFax Solutions Account; Successful transmission to 13157855197, Re: Your eFax Solutions Account; Successful transmission to 15185486345. Re: Your eFax Solutions Account; Successful transmission to 151.85654508, Re: Your eFax Solutions Account; Successful transmission to L5I88733479, Re: Your eFax Solutions Account; Successful transmisson to L5L87462179, Re: Your eFax Solutions Account; Successful transmission to 1"5184816018. Re:Your eFax Solutions Account; Successful transmission to 15L87361612, Re: Your eFax Solutions Account; Successful transmission to 13L53762860, Re: Your eFax Solutions Account; Successful transmission to 15188844751, Re: Your eFax Solutions Account; Successful transmission to L5L84864546. Re: Your eFax Solutions Account; Successful transmission to 15186943195, Re: Your eFax Solutions Account

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

cl,r. ?T*$.,^ JSC Justice of the Supreme Court

STATE OF NEW YORK SUPREME T In the Matter of the Application of:

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

ORDER TO SHOW CAUSE

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.

{wD03502r

IIPON the annexed Petition duly verified the

day of November, 2012, and upon

all of the papers and proceedings heretofore had herein, it is hereby

ORDERED that the Respondents herein show cause before a Term

Court held in and for the County of Albany, at the
7

st-

lr

of

this
Y,

t-bk

.g,;tn*J,I,"hwAlbany, New York,

ar 9:30 in the forenoon of the

-Lt^

Q,,
"{

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

office of Representative in Congress, 21't Congressional District, New York,

held on November 6,2012;

2.

Ordering the Respondent County Boards of Elections certify the name

of

the

correct Candidate as the duly elected person

thereto in

to that public office pertaining

the

General Election to be held on the 6ft day of Novemb er, 2012, or

alternatively enjoining the improper issuance of a certificate of election for the

said public office;

3.

Ordering the testing and inspection

of any voting

machines which have

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

office; and further

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 Respondent County Boards of Elections preserve inviolate and

separate the ballots for the subject Public Office, from all others; and further

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.,

buff card images) and ballot

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

in the subject political subdivision, including

the

registration records of voters casting paper ballots, absentee applications, poll books, and other related documents, forthwith, and further

ORDERING, that said Boards

of

Elections shall follow ordinary canvassing

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

Court may review same, however, in no instance shall said Boards

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

Article 8 and Article 9 of the Election Law,

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

absentee ballots as they are received and provide copies

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

ORDERING, that the Respondent County Boards of Elections maintain, preserve

and secure the ballots, canvass sheets and other records that are the subject

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

ORDERING, that Respondent County Boards

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

in the General Election of

November, 6h, 2Ol2 for the public office of

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

Board of Elections personnel in bi-partisan teams as is necessary to

duties); and further

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

ORDERING, that any attorney and"/or his employee(s) representing a party,

including any attorney and/or his employee(s) that do not reside in the twelve (12)
counties comprising the 21't Congressional District, with appropriate identification, be admitted to the polling places on the date of the General Election and travel among the

{wD035021

counties comprising the 21't Congressional District-NY, on the date

of the General

Election, and place of canvas or recanvass of the votes in this General Election and be allowed

full participation in the administrative

proceedings of the Boards of Elections

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

watcher's certificate; and further

ORDERING, that Respondent County Boards of Elections prepare all necessary

records for the canvass of all relevant paper ballots in the General Election to be held on

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

Representative in Congress, 21't Congressional District-NY; and further

(wD035021

ORDERING, that Respondents County Boards of Elections be enjoined from

certifying to the New York State Board of Elections or any other party the results of the
election at issue herein pending further Order of the Court; and it is further

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

ORDERED, that in the event the canvass of ballots

specified hereinabove, counsel for the parties hereto

the

adjourn same by stipulation,

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.

SUT'FICIENT REASON APPEARING TIIERFORE, this proceeding shall be

deemed to have been commenced by the signing of this Order to Show Cause.

ORDERED, that the Petitioner shall cause these papers to be filed with the
County Clerk/Clerk

of the Supreme Court not later November -d

rrrr,

and the

Petitioner shall pay to the Clerk the appropriate filing fees, it is

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

of Elections and New York State Board of Elections by

facsimile at the following numbers: Clinton County Board of Elections

Essex County Board of Elections

(518) 565-4508

(518) 873-3479

Franklin County Board of Elections Fulton County Board of Elections

(518) 481-6018

(518) 736-1612

Hamilton County Board of Elections Herkimer County Board of Elections

Jefferson County Board of Elections

(518) 548-6345 (315) 867-1106 (315) 785-5197

Lewis County Board of Elections

(315) 376-2860

Saratoga County Board of Elections

(518) 884-475I

St. Lawrence County Boad of Elections

(315) 386-2737

Warren County Board of Elections

(518) 761-6480

Washington County Board of Elections New York State Board of Elections

(518) 746-2L79

(518) 486-4546

and upon Respondent-Candidates Matthew

A.

Doheny and Donald

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-

2012, for next business day delivery, waiving the requirement

of a signature, to said

Respondent-Candidates at their residence address appearing for them on any record on

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)

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY

In the Matter of the Application of:

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.

TO THE SUPREME COURT OF TIIE STATE OF NEW YORK:

NOW

come the Petitioner, respectfully alleging as follows:

1.

Petitioner William L. Owens, resides at 42 Blue Heron Wa). Plattsburg.

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

Petitioner has standing pursuant to Article 16

of the New York

State

Election Law to bring the within proceeding. Respondent County Boards

of

Elections

in Clinton, Essex,

Franklin,

Fulton, Hamilton, Herkimer, Jefferson, Lewis, Saratoga, St. Lawrence, Warren, and
are charged by the State Election Law

with the administration of Elections in

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

Elections are the Commissioners that

constitute Respondent Boards.

Respondent New

York State Board of Elections, headquartered in Albany

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

for the public office of

Representative

in

Congress, zlft

Congressional District-NY, in the said General Election.

7.

Respondent Donald

L. Hassig resides at 42 Green Pond Lane. P.O. Box

340. Colton. New York 13625 and is the candidate of the Green Party for the public

office of Representative in Congress, 2l't Congressional District, New York, in

General Election.

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.

Several of the Respondent County Boards of Elections have/has adopted

the practice of opening and the canvassing by hand or mechanical device paper ballots.

10. A stay is requested 11.

so the Candidates can have representatives at the

various Boards of Elections for the canvass of machines and canvass of all paper ballots.

Further, this Petition is made

in order to preserve Petitioner's and

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

Election, and to provide for court supervision,

if

necessary,

of the issuance of absentee

ballots and the canvass of absentee, emergency and affidavit ballots to be cast for the

various Candidates

for

election

to the public office voted upon by voters for

Representative in Congress, 21't Congressional District-NY, in the General Election held

on November 6, 2OI2 and to allow for the comprehensive review of the

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.

Moreover, as this is a General Election, an injunction against issuance of a

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

Subject to the supervision and review

of this Court, the Respondent

election

of Elections will be conducting a re-canvass of the results of this

recorded on voting machines.

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

machine(s) and the subsequent adjustment

totals.
17

of the canvass to correct the error in vote

Continued impoundment and protection of the voting machines and ballots

is

essential, because any lapse

in security or

breach

of

protective measures for the

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.

20. In the course of the canvass of ballots there may be erroneous

determinations made

by the Boards of Elections, and such determinations may be

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.

In the event there are unanimous votes of the commissioners or inspectors

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.

Thus, the protections sought

in the within Order to Show Cause are

necessary to preserve the ballot for the Court's review.

25. In the event the Court chooses not to preserve objections

unanimously rejected by the Board,

which

are

it is requested, in the alternative

that the Court

WD0350221

employ the obiection preservation method as set forth

N.Y.S2d 689 (S. Ct. Kings Co., 2003)

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.

28. 29. 30.

In order to expedite the canvass, an order is

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

be afforded an opportunity to view all ballot as it comes up for consideration.

Moreover, without information requested, this Court and your Petitioner

State Constitution,

will be unable to see that the mandates of the New York

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

to participate in the canvass. The Election Law which entitles

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

Boards of Elections in error, based upon insufficient, fraudulent or forged applications.

Further, absentee ballots

will be retumed to the Boards of Elections which will

not

comply with Election Law, and therefore will be invalid.

33. Upon information and belief, there

will be absentee ballots that will not have

been reviewed by the various Boards of Elections in a timely fashion.

34. 35. 36.

Upon information and belief, there will be affidavit ballots that will not

have been reviewed by the various Boards of Elections in a timely fashion.

The canvass of ballots may include objections to affidavit and absentee

ballots submitted by voters who are not qualified to vote same.

The canvass of voters may include challenges to registrations of certain

voters, requiring Court intervention

to have law

enforcement authorities verify

registrations as required by the Election Law in an expedited fashion.

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

to address the question of the participation of counsel in proceedings on election day at

the polling place, or at the canvass and re-canvass of paper ballots. The Election law
merely requires that a poll watcher be a resident of the County.

39.

Moreover, any residency requirement for the circulation of petitions has

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.

The Court is respectfully requested to direct that attomeys and those

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.

Additionally, no rational basis appears for the prevention of attomeys

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

canvass, and/or the processing

of ballots by more

inspectors than Petitioner's legal team can accommodate.

44.

Upon information and belief, the facts alleged

in the paragraphs

hereinabove, point to the fact that the final result of this election may hinge upon the

wD03s022)

canvass of the various types of paper ballots mentioned hereinabove, as

well

as a review

of the canvass of the machine cast ballots.

45.

As this is a General Election, Petitioner has requested that the Boards of

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

Law). The New York

State Board of

Elections is required to certify the results of the 2012 General Election by December 10,
2012 (Section9-216 Election Law).

47.

A restraining order is requested to prevent certification ONLY in the event

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.

Leave is respectfully requested and Petitioners respectfully reserves its

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.

Leave is respectfully requested and the Petitioner respectfully reserves the

right to make further applications to the Court for interim relief as may be needed.

fwD035022)

51.

This proceeding is commenced pursuant to the provisions of Sections 16-

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.

Petitioner reserves the right to submit further proof by way of witnesses,

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.

\ryIIEREFORE, Petitioner respectfully demands a judgment

directing the Boards

of this Court

of

Elections

in

Clinton, Essex, Franklin, Fulton, Hamilton,

'Warren, and Washington Counties

Herkimer, Jefferson, Lewis, Saratoga, St. Lawrence,

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.

Dated: Albany, New York November 2,2OI2

& Clyne, LLP.

99 Pine Street

Albany, New York 12207 (s18) 436-0786

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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

to be true. Deponent further

states that the reason this

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,

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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,

Wiley & Clyne, LLP.

99 Pine Street Albany, New York 12207 (sl8) 436-0786

wD0350221

t3