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Legal avenue a potential dead end in Senate race

By Lombardo David
Saturday, December 1, 2012

The upcoming legal battle to decide the 46th Senate District may seem like it is shrouded in ambiguity, but at least one key issue might be settled law.

Residency issues are the key reasons for most of the legal objections raised by attorneys for Assemblyman George Amedore, R-Rotterdam, in the process of counting absentee and affidavit ballots for the 46th Senate District. Frank Hoare, a lawyer for Democrat Cecilia Tkaczyk, argued that a lot of the challenges have no basis in law or fact.

Below is a video of both sides making their case to the press outside the Montgomery County Courthouse in Fonda on Thursday afternoon.

A majority of the residency objections are in Ulster and Greene counties, where there are 521 and 217 contested ballots respectively. In total there have been 877 laid aside ballots, with a vast majority facing legal challenges from Amedore's legal team.

Amedore attorney David Lewis, who has been the campaign's lead attorney, has not elaborated on their residency objections, but they most likely stem from the fact that many voters in Greene and Ulster counties have a second residency in New York City or the surrounding area.

In 2009 the third judicial department of the Appellate Divisions of the state's Supreme Court made a ruling that could winnow down the possible legal objections Lewis might raise on this issue. In Fingar v. Martin, the court ruled, "A challenge to such residency should be made pursuant to the procedure to challenge the issuing of the absentee ballots and not ... after those ballots have been cast."

Essentially, this ruling means that any residency concerns about an absentee voter can't be raised after they have already cast their ballot. The text of the decision is available below.

That 2009 ruling did note that the residency to become a registered voter was not being challenged in that case, which may give Lewis and his team some wiggle room as they work to keep certain ballots from being counted.

At this point, I should probably add the caveat that I'm not a lawyer, have never played one on television and stopped doing mock trial after my senior year of high school.

Another important case regarding dual residencies, which was cited in 2009, involves eight Delaware County voters who weren't allowed to vote. This 2008 case ruled that voters who establish a clear intent to vote in one of their two residences can register where they please.

The full text of that ruling is available below.

It's possible that Amedore's attorneys won't be touching on these cases or they might try to overturn the rulings.

A loophole for Amedore's team exists in the 2008 ruling, which required dual residency voters to clearly renounce their right to vote from the second residency. If for example, a dual residency voter in this race is still registered to vote in New York City or somewhere else, then Amedore's team could argue that that person hasn't clearly articulated where they want to vote. The problem with this argument is the 2009 case, which says it is too late in the process to make that argument.

But let's assume this argument is made and it works, with the judge allowing the validity of ballots to be challenged based on a failure of dual residency voters to clearly establish where they want to vote. It is possible that some voters in Greene and Ulster counties, who think they've identified one residency for voting purposes, haven't actually made it that clear.

The fault, though, might not lie with the voter.

Apparently the New York City Board of Elections takes forever to process changes in voter registrations, specifically for voters who are moving from the city and want to cancel their registrations their. Two different election lawyers, one Republican and one Democrat, both said the NYC BOE has a certain quantity of registrations they haven't canceled, which means that some voters are registered in multiple places.

It is currently not known whether this problem impacts contested ballots from voters in the 46th Senate District. Even if it does impact contested ballots, Tomlinson's streak of reasonableness suggests he would probably reject this argument on the basis that the voters tried to establish only one registration and shouldn't be penalized for the NYC BOE's actions.

Again, I should stress that this argument might not even be the basis for any legal objections in this case.

Amedore's attorneys have submitted a freedom of information request to the NYC BOE for information pertaining to voters whose ballots are contested.

Currently, Amedore is in the lead by about 110 votes.

Follow @GazettePolitics on Twitter for updates on this race and follow @poozer87 on Twitter for a steady stream of consciousness about this race.

2009 Dual Residency Case

2008 Dual Residency Case

 
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