Espaillat Petition by CelesteKatz

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In the Matter of the Application of

              ADRIANO ESPAILLAT,                                            Index No.       /12

                                                                            VERIFIED PETITION





For an Order, pursuant to Sections 16-102, 16-106, 16-112
and 16-113 of the Election Law, directing the preservation
of all ballots cast in the Democratic Party Primary Election
held on June 26, 2012 for the Democratic Party
nomination for the position of Member of Congress from the
13th Congressional District in the State of New York (Bronx
and New York Counties), and requesting the court to rule on
the validity of the casting or canvassing, or refusal to cast or
canvass, any ballot as set forth in Election Law Section
16-106 (1); preserving Petitioner’s rights under Article 9 of the
Election Law and Section 16-113 of the Election Law, and
related sections of law; and pursuant to Section 16-102 of
the Election Law, declaring Petitioner the lawfully nominated
candidate in this election; or, ordering a new primary election.


        Petitioner Adriano Espaillat, by his attorneys, Martin E. Connor, Esq. and Stoll,

Glickman & Bellina, LLP, respectfully alleges:
                                        THE PARTIES

        1. Petitioner Adriano Espaillat (hereinafter “the Petitioner”), residing at 62 Parkview

West, New York, New York was a candidate for the public office of Member of the United

States House of Representatives from the 13th Congressional District of New York in the

Democratic Party Primary Election held on June 26, 2012. The 13th Congressional District

includes parts of Bronx and New York Counties.

        2. Respondent Board of Elections in the City of New York (hereinafter “the Board of

Elections”) was and is charged with the responsibility of the conduct of official elections held in

the City of New York, including the Democratic Party Primary Election held in the 13th

Congressional District of New York on June 26, 2012. As part of its responsibilities, the Board

of Elections is charged with conducting all of the post-election procedures mandated by law and

its own rules, including re-canvassing voting machine results, canvassing absentee, military,

special federal, special and affidavit ballots, the compilation of the final tallies of the votes cast

and certification of the results to the New York State Board of Elections. The principle office of

the Board of Elections is located at 32 Broadway, 4th Floor, New York, New York.

        3. Respondent Charles B. Rangel, residing at 40 West 135th Street, New York, New York

10037 was a candidate for the public office of Member of the United States House of

Representatives from the 13th Congressional District of New York in the Democratic Party

Primary Election held on June 26, 2012.

        4. Respondent Clyde Williams, residing at 1925 Adam Clayton Powell, Jr. Boulevard,

Apt. 3A, New York, New York 10026 was a candidate for the public office of Member of the

United States House of Representatives from the 13th Congressional District of New York in the

Democratic Party Primary Election held on June 26, 2012.

       5. Respondent Joyce Johnson, residing at 65 West 96th Street, Apt. 16G, New York, New

York 10025 was a candidate for the public office of Member of the United States House of

Representatives from the 13th Congressional District of New York in the Democratic Party

Primary Election held on June 26, 2012.

       6. Respondent Craig Schley, residing at 234 West 123rd Street, Apt. 3, New York, New

York 10027 was a candidate for the public office of Member of the United States House of

Representatives from the 13th Congressional District of New York in the Democratic Party

Primary Election held on June 26, 2012.


       7. This special proceeding is being brought pursuant to Election Law Section 16-102 to

request the court hear evidence of voter intimidation, confusion at the polls on election day

resulting in disenfranchisement of voters, denial of the right of duly enrolled Democratic voters

to vote in the primary election, failure to address the language needs of Spanish speaking voters

and fraud and irregularities in the votes cast in the election sufficient to have affected the

outcome of the election.

       8. This proceeding is also brought pursuant to Election Law Section 16-106 to have the

court rule on the casting and canvassing, or the refusal to cast and canvas, protested and

challenged ballots of whatsoever kind.

       9. The proceeding also invokes the court’s jurisdiction under Election Law Section 16-

112 to direct the examination by any of the candidates in the June 26, 2012 primary election, or

his or her agent, of any ballot or voting machine used in such election, and to order the

preservation of any ballots in view of this contest.

       10. The proceeding also invokes the court’s jurisdiction, pursuant to Election Law

Section 16-113, to order a complete audit of the voter verifiable records; that is, to order a

complete hand count of all paper ballots in place of the results of scanning the ballots.


       11. Proper venue for this proceeding lies in the Supreme Court in any county within the

13th Congressional District, namely in New York County or Bronx County.

       12. Petitioner has chosen Bronx County as the venue since preliminary investigation

indicates that the majority of the voters expected to testify reside in the Bronx. Those Manhattan

residents expected to testify, based on preliminary investigation, reside in upper Manhattan.

Therefore, Bronx County is also the more convenient venue for those witnesses as well.

                               CONDUCT OF THE ELECTION

       13. Petitioner is a Dominican-American whose political support was strongest among the

55% of the residents of the 13th Congressional District who are Dominican-American or of other

Latino ethnicity and for whom Spanish is their first language.

       14. Petitioner’s campaign received hundreds of reports from irate Latino enrolled

Democrats that they were wrongly turned away from their polling places without being permitted

to vote. They were not offered the opportunity to cast affidavit ballots and in some cases were

unlawfully denied affidavit ballots when they requested them from the Board of Elections

inspectors of election.

       15. In many poll sites in areas that are predominantly Hispanic the customary election

inspectors, who are bilingual in Spanish and English, had been replaced for this primary election

by inspectors who spoke only English. Election inspector are appointed and paid by the Board of

Elections. Ordinarily, they are appointed on the recommendation of the leaders of the two major

political parties. These party leaders were supporting Respondent Rangel in the primary election.

        16. It was reported to Petitioner’s campaign that many of these new inspectors yelled at

Hispanics who came to vote, told some there was no election, denied others affidavit ballots and

otherwise intimidated Hispanic voters. Further reports were received that the required Spanish

language interpreters in many polling places were hostile and unhelpful to voters and/or were not

sufficiently fluent in Spanish to assist voters.

        17. Upon information and belief, many of the Hispanic voters who were turned away

from the polls by the newly installed inspectors on the grounds that their names were not in the

poll books, did, in fact, have their names in the poll books. When the poll books become

available for inspection after the Board of Elections is finished processing absentee and affidavit

ballots, Petitioner will have an opportunity to verify these allegations.

        18. These vote suppression and intimidation of voters constituted an unlawful effort to

deny Petitioner the votes of his supporters. It denied properly registered and enrolled voters of

their right to vote as guaranteed by state and federal constitutions and laws.

        19. The voter suppression and denial of the right to vote vitiates the validity of the

primary election and warrants the court ordering a new primary election under Section 16-102

(3) of the Election Law.

                                POST-ELECTION ACTIVITIES

        20. Upon information and belief, in the hours after the election, Respondent Board of

Elections reported to the campaign of State Senator Adriano Espaillat and, according to press

reports, the Associated Press, that with 100% of the precincts reporting, Espaillat’s opponent,

Congressman Charles Rangel, had a lead of 6.6% and approximately 2,300 votes.

        21. Upon information and belief, the result reported by the Board of Elections was not

based on 100% of precincts reporting, but 84%. The 34th Police precinct had apparently reported

nothing but zeros for all of the candidates in the 79 Election Districts reporting to that precinct.

These Election Districts were located in Washington Heights and Inwood, a largely Hispanic

area where Petitioner had overwhelming voter support.

       22. Upon information and belief, as media outlets were obtaining more precinct reports

over the next 12-18 hours, the gap was rapidly and significantly closing. According to the

Associated Press, with 94% reporting the lead shrunk to 2.6% with just an approximately 1,000

vote lead for Respondent Rangel.

       23. On May 29, 2012, the Respondent Board of Elections published a “Notice to all

Candidates” in the congressional primaries, stating, among other things, that the “canvass and/or

re-canvass” of votes cast on the “Poll site Voting Systems” would commence on June 27, 2012

at 10 a.m. Upon information and belief, no such “canvass and/or re-canvass” commenced on that


       24. The “canvass and/or re-canvass” commenced at around 4:30 p.m. on June 28, 2012 in

both New York and Bronx Counties. The process was initiated by inserting each portable

memory device into a computer connected to a central server, which produced vote totals for

each candidate for each election district in a digitized format.

       25. According to the Board of Elections own procedures for post election activities, and

of course the law, representatives of the candidates may observe the canvass or re-canvass, and

reasonable effort must be made for such candidate representatives to ascertain the results.

Nevertheless, representatives of the Espaillat campaign were not permitted to observe the

canvass/re-canvass. Instead, they were kept so far away from the activity that nothing

meaningful could be seen or heard in both county Board of Elections offices.

       26. Espaillat representatives requested information about the results, or if they could

stand close enough to see the computers the Board workers were working on. This request was

denied. No further information about the canvass and/or re-canvass has been shared with the

Espaillat campaign. When such information was requested in writing, the campaign was referred

to the Notice to All Candidates, which states that the canvass/re-canvass is to commence at 10

a.m. on June 27, 2012.

       27. Subsequently, Board of Elections officials stated that Respondent Rangel had

received 802 more votes than Petitioner, based on the re-canvasing of the scanning machines.

Thus, the results of the primary election is exceedingly close at the present time.

       28. Based upon statements by Board of Elections representatives, about 2,000 ballots

remain to be canvassed, including ballots that were not scanned at the poll sites for various

reasons; emergency ballots that were not scanned, absentee ballots, affidavit ballots, special

ballots, special federal ballots and military ballots. The canvass of such ballots may determine

the outcome of this primary election.

                            NEED FOR A FULL HAND COUNT

       29. Upon information and belief, several of the Voting Machines used in the subject

election are or may have been defective, which may result in inaccurate tallies of votes; upon

further information and belief, there have been or will be other irregularities in the election

process which may give rise to improper votes being canvassed or the canvass of inaccurate

returns in said Election.

       30. Upon information and belief, many other voting Machines utilized in said Election

may have malfunctioned or broken down and failed to count all of the votes cast for Petitioner,

requiring the Court to order the testing of the subject Voting Machines and the subsequent

adjustment of the canvass to correct the error in vote totals.

       32. It is a fact that the voting machines are not designed to count all legal ballots that are

legal under New York State Election Law or controlling case law in New York State. The

scanners do not count ballots that are marked with a circle, check mark or “X” and clearly

evidence the intent of the voters if such markings do not happen to sufficiently fill in pixels in

the “bubble” on the ballot. Yet, pursuant to case law, and the Rules of the New York State Board

of Elections, such ballots are legal votes.

       33. It is a further fact that the voting machines, as designed, count votes that are illegal

and void under the New York State Election Law and controlling case law. The scanning

machines count signed ballots and ballots containing extraneous identifying markings or writings

       34. Upon information and belief, the number of lawful votes that were not counted by the

voting machines, and the invalid and void ballots that were counted by the Voting Machines, are

significant and will affect the final results of the subject primary election.

       35. The random audit process specified in the statute has nothing to do with counting

votes. It is a process to determine if the machines functioned as they are designed to do. Failure

to count valid votes as set forth in paragraph 32 above, or counting void ballots as set forth in

paragraph 33 above, is not taken account of in the audit process.

       36. The only way to insure all lawful ballots are counted, and that void ballots are not

counted, is for the court to order a hand count of all ballots pursuant to Election Law 16-113.

                                 PAPER BALLOT CANVASS

       37. The canvas of absentee, military, special, special federal and affidavit ballots, as well

as emergency ballots that were not scanned, and other un-scanned ballots, is scheduled to begin

at the Manhattan and Bronx Borough Offices of the Board of Elections on July 5, 2012.

         38. During the course of this canvas representatives for the Petitioner and for the

Respondent candidates will have the opportunity to protest the canvassing of a ballot. The

bipartisan team of canvassers will then vote as to whether to uphold the protest. Should the board

of canvassers vote unanimously to overrule the protest, according to the Election Law the ballot

envelope will be opened and the ballot will be counted. However, such a course would preclude

the court from ruling on the protest under Election Law 16-106.

         39. In view of the foregoing, the courts have authorized a procedure to preserve the ballot

for later court review as is authorized by Election Law 16-112. Before such a protested ballot is

mixed with other ballots it is copied and the copy is placed in the ballot envelope. The envelope

is then sealed and held for court review. King v. Smith, 308 A.D.2d 556 (2d Dept. 2003);

O’Keefe v. Gentile, 1 Misc.3d 151 (S. Ct., Kings Co. 2003)

         40. Petitioner requests that this procedure be used at the canvas of paper ballots for this


         41. In the case of protested ballots where the board of canvassers splits their vote as to

whether to uphold the protest, Section 9-209 of the Election Law specifies that such ballots

remain unopened for three days. After the three days, the Board of Elections may open such

ballot envelopes and count the ballots “unless otherwise directed by an order of the court.”

         42. This Board of Elections has unsuccessfully opposed the granting of a court order

holding such ballots beyond the three days in other cases. The Board is currently attempting to

appeal such court orders. The Board claims such ballots should be treated as set forth in King v.


         43. Petitioner’s counsel believes that precedent does not apply where there is a specific

statutory provision governing the split vote situation. However, in the instant case, Petitioner is

willing to accede to the Board’s wishes provided all other candidates appearing at the canvas


         44. Accordingly, Petitioner requests alternative relief in this situation, as set forth in the

annexed Order to Show Cause.

                                 FRAUD AND IRREGULARITIES

         45. Upon information and belief, votes were cast by persons who signed the polling place

registration book but were not, in fact, the duly enrolled voter whose name they signed. Voting

by such imposters is unlawful and fraudulent. Preliminary investigations and inquiries have

indicated that this occurred in the election.

         46. Evidence of this fraud can only be uncovered by an examination of the poll books

which are public documents. However, such poll books are quite properly not subject to public

inspection from the close of the polls until after the Board of Elections uses them to validate

absentee and affidavit ballots. This Board of Elections process will not be completed until after

the canvas of absentee and affidavit ballots on Friday, July 6, or Monday, July 9.

         47. Accordingly, these allegations are made upon information and belief of necessity,

since the Statute of Limitations for the commencement of this proceeding expires on July 6,


         48. Upon information and belief, some enrolled Republican voters who were in the poll

books were given Democratic ballots and cast such ballots. This constitutes an “irregularity”

under all of the case law.

         49. Again, evidence of non-party member irregularities can only be uncovered by an

examination of the poll books which will not be available for inspection until after the Statute of

Limitations has expired. Accordingly, these allegations are made upon information and belief

based on anecdotal information.

        50. Upon information and belief, a number of ballots for the primary election were

scanned in some polling places that were in excess of the number duly enrolled Democrats who

signed the poll books. Such excess machine operations have been held by the courts to be


        51. Such public counter overages can only be uncovered, under the new voting system,

by counting all of the signatures in all of the poll books used in a polling site and comparing the

sum of signatures to the sum of the public counters on all of the scanning devices used at the poll

site (adding in the number of any un-scanned emergency ballots).

        52. Again, evidence of public counter overage irregularities can only be uncovered by an

examination of the poll books which will not be available for inspection until after the Statute of

Limitations has expired. Accordingly, these allegations are made upon information and belief

based on anecdotal information.

        53. With respect to allegations and evidence of fraud and irregularities, Petitioner will

serve Respondents, and file with the court, a detailed bill of particulars as to such fraudulent or

irregular votes cast after having sufficient time to inspect all 506 poll books used in the primary


        54. That your Petitioners request leave and reserve the right to submit upon the argument

and hearing of this application, evidence by way of affidavits, testimony, and documentary proof

to substantiate and support this application.

        55. Pursuant to Section 16-102 (2), the Statute of Limitations for commencement of this

proceeding is 10 days from the date of the primary election. Thus, the Statute of Limitations

expires on July 6, 2012.

        56. In an Election Law proceeding such as the instant one, commencement of the

proceeding requires not only the filing of the petition, but the actual service of the Order to Show

Cause and Petition upon all necessary parties before the expiration of the Statute of Limitations.

Furthermore, this matter has a preference over all other matters in all courts whatsoever.

(Election Law §16-116). Accordingly, it is requested that the annexed Order to Show Cause be

issued today.

        57. Your Petitioner has no adequate remedy or relief in the premises other than that

applied for.

        58. That no previous application has been made for the relief sought herein under Section

16-102 or for the Order to Show Cause hereunto annexed. A proceeding in Supreme Court, New

York County, that did not seek relief under Section 16-102, was withdrawn without prejudice.

        59. That in order to effect immediate personal service of the annexed Order to Show

Cause and this Petition on the Respondent BOARD OF ELECTIONS IN THE CITY OF NEW

YORK, the Commissioners of whom are required at various times to be on official business at

places other than their official business offices, it is respectfully requested that this Court direct

that such service may be at the general office (headquarters) of the said BOARD OF

ELECTIONS at 32 Broadway, 4th Floor, Borough of Manhattan.

        60. That Petitioner requests leave to effect service of a copy of the Order to Show Cause,

together with a copy of the papers upon which it is granted, upon Respondent-Objector other

than by personal service because:

        (a) This proceeding must be instituted on or before July 6, 2012 under the Election Law;

        (b) Petitioner may, despite diligent effort, be unable to effect personal service

upon such Respondents on or before such date; and

       (c) Petitioner is advised that in election matters governed by Article 16 of

the Election Law, orders granting alternative methods of service are routinely obtained.

       WHEREFORE, your Petitioner respectfully prays for the relief requested in the

annexed Order to Show Cause and for a final order granting the relief prayed for in the

said Order to Show Cause, and for such other and further relief as to this Court may seem

just and proper in the premises.

Dated: Brooklyn, New York
       July 3, 2012


                                                     MARTIN E. CONNOR, ESQ.
                                                       61 Pierrepont Street, #71
                                                      Brooklyn, New York 11201
                                                      Telephone: 718-875-1010
                                                       Facsimile: 718-875-6044

                                              STOLL, GLICKMAN & BELLINA, LLP
                                                      LEO GLICKMAN, ESQ.
                                                  475 Atlantic Avenue, 3rd Floor
                                                   Brooklyn, New York 11217
                                                     Telephone: 718-852-3710
                                                      Facsimile: 718-852-3586


                  ) ss.:

                       MARTIN E. CONNOR, an attorney admitted to practice

in the courts of the State of New York, affirms under the penalty of perjury:

       I am the attorney for the Petitioner in this Proceeding. I am not a party to this proceeding.

I have read the within Petition and know the contents thereof and the same are true to my

knowledge; as to matters therein alleged on information and belief, I believe them to be true. The

basis for my belief is that I have examined Board of Elections records involved in this

matter and have interviewed various persons familiar with the facts involved herein. The reason

that I am making this verification is that Petitioner’s attorneys have their respective offices in the

County of Kings and the Petitioner is located in the County of New York..

Dated: Brooklyn, New York
       July 3, 2012

                                                           MARTIN E. CONNOR


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