White Plains CitizeNetReporter - <i>Quo Warranto</i> Quagmire Demands Court Decide Election

WPCNR WHITE PLAINS LAW JOURNAL. By John F. Bailey. December 5, 2002:A WPCNR legal consultant familiar with election law has advised that Attorney General Eliot Spitzer’s lawsuit filed in New York Supreme Court yesterday granting Larry Delgado quo warranto relief after seven months of research by the Attorney General’s Quo Warranto Review Panel, transfers jurisdiction for deciding who retains or ascends to the Common Council seat now occupied by Glen Hockley to the New York State Supreme Court.

Spitzer Speaks
Photo by WPCNRLegal

WPCNR’s legal consultant said that the paragraph calling for action specifically calls on the court to decide how the disputed council seat shall be ultimately filled.

THE ACTION PARAGRAPH
Photo by WPCNR Legal

Our analyst points out that this paragraph orders the court (demands) to make a decision, which can be the court judge making a declaration that Mr. Hockley or Mr. Delgado is the winner straightaway, or if the court cannot decide based on the evidence available who ultimately won, ordering a new election.

Unchartered Waters

Our source says the case is in unchartered waters at this time, with several matters “up in the air.” Among the matters, is which judge will get the case. It is speculated that it could return to the Judge who first ruled on the historic Delgado-Hockley case: Judge Francis Nicolai, based on his familiarity with the case.

On the other hand, if a new judge were assigned, the case would begin anew, with the decision on whether or not a jury would be convened, up to the defendents, Mr. Hockley and Mr. Delgado. If the two defendents disagreed as to whether a jury trial was desired, the judge or the plaintiff (Attorney General) could make the decision.

A second minor issue to be decided, would be whether or not Mr. Delgado should be considered the defendant or not.

Jury Selection Would Be Interesting

Speculating with our legal correspondent, they allowed that jury selection would be interesting: issues to be considered would be rather or not White Plains residents could or could not be on the jury, racial make up of the jury, political affiliation of the jurors, how familiar they were with the Delgado-Hockley case history, being just a few issues discussed.

Affidavit Validity a Keystone

Our armchair analyst, noting the affidavits filed by Mr. Delgado, 104 in all, which the Quo Warranto Review Panel commented on in their Quo Warranto Report and Recommendation said that Mr. Hockley’s strategy to hang on to his seat would hinge upon creating doubt about the affidavits submitted by Mr. Delgado as being genuine expressions of voter actions on that fated November 6, 2001. However, our analyst said that post-election result affidavits of voter preference have been found to be admissible evidence in similar cases.

The Quo Warranto Report states,

Delgado told the Panel that he obtained the voters’ names from the Board of Elections and solicited their affidavits by sending volunteer notaries (among whom were his wife and his Republican Party running mate, Michael Amodio) door-to-door. Each affidavit states, in pertinent part,

2. I was duly registered and eligible to vote in the November 6, 2001 General Election, in the City of White Plains, County of Westchester, and State of New York. 3. I voted in the November 6, 2001 General Election at the George Washington Elementary School in White Plains, New York, which is the polling place for the 18th Election District in said city. 4. When I cast my votes on November 6, 2001, I included a vote for Larry Delgado for Councilman of the City of White Plains. 5. I cast my vote for Larry Delgado for Councilman on “Row A” of the voting machine, which is the top row of positions to be voted for, running from left to right on the voting machine. The position is circled on the annexed sample ballot that is attached hereto and made a part hereof…

At the Panel’s direction, an investigator employed by the Office of the Attorney General was assigned to determine whether the 104 affiants actually voted in the 18th Election District on November 6, 2001…

According to the voting logs, 103 of the 104 individuals whose affidavits Delgado submitted to the (Quo Warranto) Panel were registered to vote and did, in fact, vote in the 18th Election District on November 6, 2001.

The Panel’s report comes to the conclusion that, It is undisputed that the voting machine in Election District 18 mechanically malfunctioned after 39 votes had been recorded for Delgado in Row 10

Report Declares Delgado the Winner by 17 votes. Affidavits genuine.

The report takes the interesting position that Delgado’s 103 affidavits make him the winner of the Council Seat, and throws out Hockley’s assertions that the affidavits are not reliable. The report reads in part,

According to the recanvass, Glen Hockley received a total of 6,140 votes and Larry Delgado received a total of 6093 votes, a margin of 47 votes in favor of Hockley. We note Hockley’s objections to the reliability of the affidavits Delgado submitted, but find those objections to be unfounded. Therefore we credit the 103 affiants, whom the voting logs show to have voted in the 18th Election District on November 6, 2001, who claimed they voted for Delgado on Row 10 A. Delgado’s vote total is thereby increased by 64 votes, (103 votes minus the 39 votes originally recorded on Row 10 A). That gives Delgado a revised total of 6,157 votes (6093 plus 64), or 17 more votes than Hockley received (6,140).

Report Sites Case Law Gives Court the “right to Examine Voters”

The panel's report justifies its declaring Mr. Delgado the winner by citing thusly,

In a quo warranto action, however, the court is able to determine the will of the electorate beyond a mere mathematical possibility because it has the right to examine voters, as established in Deister v. Wintermute (1909), including the right to “receive and credit the affidavits of…electors that they cast their vote on the voting machine for a particular candidate.”

The Judge is Da Man

WPCNR’s Brief Analyst noted that the Attorney General is passing the baton to the Judge of the New York State Supreme Court to determine the outcome of the election, and that includes the jurisdiction to declare either Delgado or Hockley the winner outright, or set aside the election and declare a new election.

Here we Go Again?

Looking into their crystal ball, the attorney sighed and told us that “of course, whatever decision the judge makes, it could be appealed,” but added that the case at the appellate or Court of Appeals levels would only be argued on the merit of the decision made, not a full reexamination of the affidavits or other evidences.

Quo Warranto Report is Not Court-gathered, admissable Evidence.

Before our sands of time with the barrister ran out, he noted that the findings of the Quo Warranto Panel were not evidence gathered by the court, and that if the Judge assigned the quo warranto action felt compelled to go to a jury trial or felt it necessary to conduct an examination of the validity of the affidavits he or she might very well do so in the proceedings.

It is expected that a judge will be assigned in the next two weeks and that the action will not begin until after the 1st of the year.


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