Akselrod’s Back! Republican Assembly Candidate Loses Fight To Boot Akselrod From November Ballot

Republican Russ Gallo is screaming “Shenanigans!” after the latest round of Board of Elections bungling handed the Independence Party ballot line over to Democrat Ben Akselrod, and turning the November election into a three-way race.

Akselrod lost his Democratic primary bid for Assemblyman Steve Cymbrowitz’s seat but, at first, appeared to pick up enough write-ins to win the Independence Party line. That honor was also sought by Gallo, who kicked off his own write-in campaign in the September 13 primary.

Initial counts showed Akselrod won by three votes out of just 39 Independence ballots cast. But Gallo said that at least 21 Independence Party members signed in to vote but were mistakenly given Democratic ballots, causing their votes to be invalidated. And many of those votes, Gallo said, would have gone to him.

Gallo took Akselrod and the Board of Elections to court over the matter, and, following an October 3 hearing, the court agrees: the Board of Elections botched the job. But the court also said it’s too late to do anything about it.

“The judge agreed that the Board of Elections screwed up, but refuses to make them fix the situation simply because they say they can’t,” Gallo said in an e-mailed statement. “We will never know who truly deserved to be the Independence candidate because we’ll never know who actually won the Election.”

Gallo first got wind of the issue when he sat in on the Board’s September 20 canvass of the votes, and he noticed that five Independence Party voters in four election districts signed into their respective poll sites, and yet no Independence Party ballots were cast. He sought out those five, who submitted affidavits to the court stating that they were given ballots on which they wrote in Gallo’s name.

Gallo’s campaign later found a total of 21 Independence Party voters who cast Democratic ballots.

Rather than cop to the error, the Board of Elections blamed the voters themselves, saying it was their responsibility to ensure they were handed the correct ballot. The judge, though, wasn’t so quick to let them off the hook.  Judge David Schmidt writes:

Although the Board argues that the voter’s themselves bore the responsibility for voting on the wrong ballots, this court finds the error of the poll workers more akin to actions by poll workers that the Court of Appeals found to constitue ministerial error…

During an October 3 court hearing, Gallo demanded that the Board of Elections be ordered to conduct another primary, declare him the winner based on the fact that at least five Independence Party members wrote his name on Democratic Primary ballots they were erroneously given, or toss out the results altogether and leave the Independence Party line blank for the election.

In the decision issued by Judge Schmidt (published in full at the end of this post), the court agreed that Gallo’s claims carry merit, but that the court had no authority to declare Gallo the winner, nor did it have the authority to demand the Independence Party line go empty.

They do have the authority, though, to order a new primary, something the judge said would have been likely if there were more time.

Schmidt defers to the Board of Elections, who argued that setting up a new primary for Independence Party voters of the 45th Assembly District would be logistically impossible, given that they started work on printing the ballots for November’s general election on October 5.

Judge Schmidt writes:

Despite what it sees as meritorious claims, that – if a hearing were held – would likely mandate an order directing a new primary. Such relief, however, cannot be granted at this time. In light of the representations of the Board relating to the time it needs to prepare the ballots, this court cannot determine the merits, as it would be impossible to render meaningful relief in compliance with the election law…

While there is no statutorily mandated last day on which a court may order a new primary, the Board has represented the difficulties it faces in preparing the new ballots for the scanning machines … Aside from the time needed to prepare the ballots, the court is cognizant that the Board would need to prepare for a new primary, time to give the voters notice of such a primary, and that, following a new primary, the Board would need time to canvass the votes. It would appear that the earliest that a new primary could fairly be directed would be on or around October 16, 2012, a date only three weeks before the general election on November 6, 2012…

The result here is unfortunate, since petitioner Gallo, as discussed above, has presented what appears to be a meritorious claim which would entitle him to an order directing a new Independence Party primary.

The judge also suggests that the state legislature take action, moving primaries to an earlier date to provide more time for future challenges to be evaluated and acted upon.

“This decision betrays logic,” said Gallo’s attorney, Gene Berardelli, also in an e-mailed statement. “The Board of Elections failed to administer a fair election and the Court is allowing someone to remain on the ballot that didn’t earn that right. Allowing a candidate to ‘win’ a botched election should offend everyone who loves America and democracy.”