Opinion
5:03-CV-1413
January 27, 2004
BRIAN LEE QUAIL, ESQ., Schenectady, New York, of counsel for Plaintiffs
GREGORY J. AMOROSO, ESQ., SAUNDERS, KAHLER LOCKE, L.L.P., Utica, NY, of counsel for Defendant David Jacobowitz
HARRIS J. SAMUELS, ESQ., ONEIDA COUNTY DEPARTMENT OF LAW, Utica, NY, of counsel for Defendants Oneida County Board of Elections, Angela Pedone Longo, and Patricia Ann DiSpirito
MEMORANDUM-DECISION and ORDER and PERMANENT INJUNCTION
I. INTRODUCTION
This action was scheduled for a bench trial on January 20, 2004. The parties agreed to resolve the issues by motion.
Plaintiffs move for summary judgment and injunctive relief pursuant to Fed.R.Civ.P. 56. Defendant David Jacobowitz ("Jacobowitz") opposes. Defendant Oneida County Board of Elections ("Board of Elections") and individual defendants Angela Pedone Longo, and Patricia Ann DiSpirito (collectively "County defendants") made no submissions related to plaintiffs' motion. Oral argument was heard on January 26, 2004, in Utica, New York. Decision was reserved.
II. FACTS
Considered in resolving plaintiffs' motion for summary judgment are the facts as set forth in Shannon v. Jacobowitz, ___ F. Supp.2d ___, 2003 WL 23024397 (N.D.N.Y. Dec. 30, 2003), with which familiarity is hereinafter assumed, as well as additional factual submissions of the parties on this motion. No genuine issue has been raised with regard to the facts as set forth below.
The County defendants unofficially declared Jacobowitz the winner of the greatest number of votes in the November 2003 race for Town of Whitestown Town Supervisor, by a margin of 25 votes. The total vote was tallied at 2,936 for Jacobowitz and 2,911 for the incumbent, plaintiff Matthew Shannon ("Shannon"). However, a discrepancy was noted with one of the voting machines used in District 14, Voting Machine No. 118408. Voting Machine No. 118408 registered one-half of one vote on line 11-B (Shannon's Democratic line), while multiple votes were registered on all other lines.
Soon after the election a test of that machine was conducted. The unequivocal result of the test was that votes on line 11-B were not counted. There was no problem with the other lines on the machine. A total of 295 voters used Machine No. 118408, but, as a result of the machine malfunction, only 156 votes were actually counted, resulting in 139 potentially uncounted votes on line 11-B. The highest voter non-participation rate on any voting machine in this hotly contested Town Supervisor race was 7.1%. The non-participation rate for the other machine used in District 14 — which was situated in the same room of the same voting location as Machine No. 118408 — was 1.49%.
Shannon was denied votes cast for him on line 11-B because Voting Machine No. 118408 malfunctioned. Among the votes not counted were those cast by at least four of plaintiffs Josephine Alexander, Henry A. Fiebiger, Sandra R. Fiebiger, A. Paul Herubin, and Patrick Gubbins.
No one knows who cast the one vote that was recorded for Shannon.
III. DISCUSSION A. Summary Judgment
Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986); Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Richardson, 180 F.3d at 436; Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56;Liberty Lobby. Inc., 477 U.S. at 250; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Matsushita Elec. Indus. Co., 475 U.S. at 587. At that point the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby. Inc., 477 U.S. at 248-49;Matsushita Elec. Indus. Co., 475 U.S. at 587.
B. Due Process Claim
It is unquestionable that the right to vote and have that vote counted is fundamental. Reynolds v. Sims, 377 U.S. 533, 554-55, 84 So. Ct. 1362, 1378 (1964). A federal due process claim alleging unintentional, rather than intentional, conduct that violates the right to vote is cognizable only where there is no adequate and fair state remedy. See Shannon, 2003 WL 23024397, at *3 (citing Gold v. Feinberg, 101 F.3d 796, 800 (2d Cir. 1996)). Here the only potentially available remedy is a state law quo warranto action, pursuant to N.Y. Exec. L. § 63-b. The quo warranto remedy is inadequate and unfair for the reasons set forth previously. See Shannon, 2003 WL 23024397, at *5-7. Therefore, plaintiffs state a federal due process claim, which, if proven, entitles them to relief in this federal forum. See Lehner v. O'Rourke, 339 F. Supp. 309, 314 (S.D.N.Y. 1971) (noting that if plaintiff proves his case at trial, relief will be obligatory).
In Lehner, there was no state remedy because Election Law § 330 (now codified at §§ 16-100 to 16-106) applied only to primary elections, and a quo warranto action was not available regarding a contested election for a legislative seat. Id. at 313. Further, the election irregularities were such that it "was impossible to determine who actually was elected." Id. at 314. The court noted that if plaintiff proved his case at trial, then the appropriate relief would be to order a new election. Id.
Moreover, plaintiffs have set forth admissible evidence demonstrating that no genuine issue of fact remains for trial. Voting Machine No. 118408 malfunctioned. It failed to count potentially as many as 139 votes for Shannon on line 11-B, out of the 295 voters who used the machine to vote. Those 139 voters necessarily voted for Shannon on line 11-B, or did not vote in the Town Supervisor race. The votes of those of the 139 who did cast a vote in the Town Supervisor race were not counted. The five voter-plaintiffs cast votes for Shannon on line 11-B of Voting Machine No. 118408, at least four of which were not counted.
Jacobowitz asserts that a genuine issue for trial is raised by the deposition testimony of several witnesses regarding three issues. First, he contends that confusion over labeling of the two voting machines used in District 14 as 14-A or 14-B, and machine 1 or machine 2 demonstrates an issue of fact as to which machine malfunctioned, citing the testimony of Mary Jane Morgan ("Morgan"), Barbara Dziegiel ("Dziegiel"), Nancy Waldron ("Waldron"), Lois Drumm ("Drumm"), and Vilma Ellis ("Ellis"). However, Morgan, Dziegiel, and Waldron unequivocally testified that the malfunctioning machine was on the left. (Deft.'s Ex. A at 17 (Morgan), Ex. B at 12-13 (Dziegiel), Ex. C at 22 (Waldron).) Drumm and Ellis left immediately at the close of the election, and so were unaware of any malfunction. Thus, because there is no question that it was the machine on the left that malfunctioned, the machine's label, and the voters' personal knowledge thereof, are inconsequential.
Second, Jacobowitz argues that the list of voters using Voting Machine No. 118408 was not properly authenticated and therefore cannot establish the identity of the voters who voted on the malfunctioning machine. The authentication of the list is not material to any issue in this matter because there is unequivocal evidence that 295 voters used Voting Machine No. 118408, but only 156 votes were counted in the Town Supervisor race, leaving 139 potentially uncounted votes. Similarly, it is inconsequential to which machine voters were directed after they signed the list. The material evidence is that the machine malfunctioned and failed to register as many as 139 votes cast in the Town Supervisor race. It matters not who the voters were. What matters is that their votes were not counted.
Third, Jacobowitz questions the veracity of the affidavits of voters previously submitted by Shannon. He points to the deposition of Richard LaManque, who stated that he was not asked about the location of the machine on which he voted prior to signing the affidavit, he did not remember reading the part of the affidavit that mentioned the location of the machine, and he did not know the machine number at the time he voted. (Deft.'s Ex. J at 10-13.) He did testify, however, that he voted for Shannon on line 11-B using the machine on the left. Id. at 4, 10. Jacobowitz points to the testimony of another voter, Eleanor Kiefer, who made similar statements, such as not being asked about the location of the machine before signing the affidavit. Id. Ex. K at 13-16. She also testified, however, that she used the machine on the left and voted for Shannon on the second line. Id. at 5, 12. The attack on a few of the voters' affidavits is not material to the issue of whether Whitestown voters voted in the Town Supervisor race but their votes were not counted.
It is not necessary to rely upon the affidavits, voter lists, labeling of voting machines, or location of voting machines to decide this case. This is because of a unique set of facts which clearly and without question determine the winner of the November 4, 2003, election for Town Supervisor of the Town of Whitestown.
Those facts are as follows:
1. Voting Machine No. 118408 malfunctioned;
2. 295 voters entered Voting Machine No. 118408;
3. 156 votes were recorded for Town Supervisor;
4. 139 votes were not recorded for Town Supervisor (a non-participation rate of 47.1%);
5. 1 vote was recorded for Shannon on line 11-B (the only malfunctioning lever);
6. the 139 voters must have either voted for Shannon on line 11-B or not voted in the Town Supervisor race;
7. the companion voting machine in District 14 had a non-participation rate of 1.49%;
8. 1.49% of 295 voters equals 5 non-participating voters; and
9. 139 unrecorded votes minus 5 non-participating voters equals 134 uncounted votes for Shannon on line 11-B.
Defendants have adduced no facts to controvert the showing that votes cast for Shannon in the Whitestown Town Supervisor race were not counted. Accordingly, there is no genuine issue of material fact. Plaintiffs' right to vote and have their votes counted was violated, and they are entitled to judgment as a matter of law.
C. Relief
A party seeking injunctive relief must establish the inadequacy of any remedy at law and irreparable harm. Northern California Power Agency v. Grace Geothermal Corp., 469 U.S. 1306, 1307, 105 S.Ct. 459, 460 (1984). Any remedy at law, which would provide compensatory damages as relief, would be inadequate. See Shannon, 2003 WL 23024397, at *8 (discussing the harms "that cannot be recompensed"). In fact, plaintiffs do not even seek compensatory damages in this action. (See Compl.) Further, it has been established that the potentially available state law remedy is not adequate nor fair. See Shannon, 2003 WL 23024397, at *5-7.
A violation of constitutional rights constitutes irreparable injury for the purpose of injunctive relief. See Manhattan State Citizens' Group. Inc. v. Bass, 524 F. Supp. 1270, 1275 (S.D.N.Y. 1981). The undisputed facts establish that votes (at least four of which were plaintiffs') cast in Shannon's favor on Voting Machine No. 118408 were not counted, thereby violating rights guaranteed to plaintiffs by the United States Constitution.
Thus, plaintiffs have established their entitlement to permanent injunctive relief, by demonstrating the inadequacy of a remedy at law and irreparable harm. See Northern California Power Agency, 469 U.S. at 1307, 105 S.Ct. at 460. Determination must now be made as to the appropriate scope of the injunction.
As noted, there were potentially 139 uncounted votes on Voting Machine No. 118408. The conclusive results of the machine test show that, with respect to that 139, either a vote was cast for Shannon on line 11-B, or the voter elected not to participate in voting in the Town Supervisor race. In District 14, the other voting machine, which was situated in the same room of the same voting location as Machine No. 118408, registered a non-participation rate of 1.49% in the Town Supervisor race. Applying that non-participation rate of 1.49% against the 295 voters on Machine No. 118408 yields 5 non-participating voters in the Town Supervisor race. Thus, 134 citizens of Whitestown, who took the time and effort to come to the polls, were denied their right to vote and to have their vote counted for Shannon.
Adjusting the machine-counted votes to include the 134 uncounted votes on line 11-B results in a total vote count of 3,045 (2,911 plus 134) for Shannon and 2,936 for Jacobowitz. As has been demonstrated, no additional investigation or fact-finding is necessary to reach the conclusion that Shannon was the true winner of the greatest number of votes in the election for Town Supervisor in the Town of Whitestown. On November 4, 2003, the voters of Whitestown elected Matthew Shannon to be their Town Supervisor for a two-year term to commence on January 1, 2004. He won the election by 109 votes.
Even giving Jacobowitz the benefit of the doubt, applying a 7.1% non-participation rate, the highest non-participation rate in the Town Supervisor race on any voting machine in the entire Town, would result in 118 uncounted votes for Shannon on line 11 — B. The final vote count in that instance would be 3,029 (2,911 plus 118) for Shannon and 2,936 for Jacobowitz. Shannon would be the victor by a margin of 93 votes.
Additionally, there is testimony in the form of affidavits from 70 voters who swore that they voted for Shannon on line 1 1 — B on Voting Machine No. 118408. Counting only those 69 uncounted votes (70 less the one counted vote) results in a total vote count of 2,980 (2,911 plus 69) for Shannon, and 2,936 for Jacobowitz. This reflects a 50% non-participation rate. The margin of victory would be 44 in Shannon's favor.
If only 26 (18.7%) of the 139 unrecorded votes were actually votes for Shannon, he would be the victor. This reflects an 81.3% non-participation rate.
Given the undisputed facts and testimony in this matter, all potential scenarios result in Shannon being the winner of the greatest number of votes.
Accordingly, the appropriate remedy is to direct the Board of Elections to certify Shannon as the winner of the greatest number of votes in the November 2003 election, with proceedings thereafter to proceed pursuant to the New York Election Law. See N.Y. Elec. L. § 9-218 (McKinney 1998) (providing procedure by which Board of Elections makes a certified statement of election results pursuant to a court order); see, e.g., Reynolds, 377 U.S. at 586-87, 84 S.Ct. at 1394 (discussing with approval the lower court's injunction ordering a state legislature to effectuate an apportionment plan fashioned by the court); Baker v. Carr, 369 U.S. 186, 250, 82 S.Ct. 691, 727 (1962) (Douglas, J., concurring) (stating, after discussing federal protection of voting rights, "any relief accorded can be fashioned in the light of wellknown principles of equity"); see also Lehner, 339 F. Supp. at 313 (noting that the court has power to order a new election in appropriate circumstances); Ellis v. Eaton, 143 Misc.2d 816, 820, 822 (N.Y.Sup.Ct. 1988) (crediting the affidavits of voters, then declaring the true winner of the election at issue), aff'd. 154 A.D.2d 894 (N.Y.App.Div. 4th Dep't 1989). IV. CONCLUSION
It is noted that Ellis was a quo warranto proceeding brought to challenge the result of a November 1985 election. The decision was rendered November 22, 1988, three years after the election. Id., at 816-17. The decision was appealed, and a decision on appeal was rendered in October 1 989, almost four years after the contested election. 1 54 A.D.2d at 894. It is further noted that ouster of the usurper and installation of the aggrieved candidate are remedies provided for in aquo warranto action. See N.Y. Exec. L. § 63-b (McKinney 2002); Shannon, 2003 WL 23024397, at *4.
Plaintiffs have no adequate and fair state law remedy with which to vindicate the violation of their right to vote. Thus, their constitutional claim is cognizable in federal court, and a federal remedy is available upon proving their claim. The undisputed facts demonstrate that plaintiffs' right to vote was violated. No genuine issue of fact remains for trial, and plaintiffs are entitled to judgment as a matter of law on their deprivation of their constitutional right to vote without due process of law claim. Further, plaintiffs have established inadequacy of any remedy at law and irreparable harm, entitling them to injunctive relief. The most appropriate and fair remedy is to direct the Board of Elections to certify a result that reflects the votes actually cast in the election.
Accordingly, it is
ORDERED that
1. Defendant Oneida County Board of Elections is directed to immediately prepare and transmit a certified statement of election results reflecting the following vote count: 3,045 for Matthew Shannon and 2,936 for David Jacobowitz; declaring that Matthew Shannon was the winner of the greatest number of votes in the November 4, 2003, election for Town Supervisor of the Town of Whitestown; and declaring that Matthew Shannon was duly elected to the office of Town Supervisor of the Town of Whitestown;
2. After the filing of the Certification by the Board of Elections, proceedings shall thereafter proceed pursuant to New York Election Law; and
3. Defendant David Jacobowitz is permanently enjoined from assuming the office of Town Supervisor of the Town of Whitestown as a result of the election of November 4, 2003.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.