THE ISSUE IS RESIDENCY

Carole Osterink

ccSCOOP Editor

On Monday, Judge Nichols had asked O’Keefe and Walsh to submit to him lists of their challenges to absentee ballots, detailing their objections. These lists had been received, but there remained questions about the extent to which Walsh had particularized his objections. Judge Nichols asked Walsh if his challenges for “qualifications” always meant “dual residency.” Walsh stated that the objections had to do with residency but not simply “dual residency,” since some voters might have more than two homes.

O’Keefe pointed out that the test of “qualifications” involves three issues—citizenship, age, and residence—and Walsh had not made it clear that his “qualifications” objections were solely based on residence. Burstein stated that by not identifying residency as his specific objection, Walsh waived the right to object based on residency. O’Keefe said she was unprepared for residency to be the only issue, but she could make an oral argument on the legal issue of residency if she could afterward put her argument in writing, and so the hearing proceeded.

In her oral argument, O’Keefe reviewed how challenges to voters are dealt with at the polls, making the point that “every one of the people I’m representing would have been allowed to vote on the machine” had they been able to go to their polling place. She stated that Articles 8 and 9 (Conduct of Elections and Canvass of Results respectively) have “different integrity than Article 5” (Registration and Enrollment of Voters) and implied that Walsh, in his objections, was misapplying election law. She went on to explain that the important issue when talking about residency was nonresidency—that is, claiming a "sham residence," using the address of a friend or relative with whom you do not live or using the addesss of storefront, a garage, or a vacant lot. She said that Walsh’s objections “never stated that Columbia County voters have shame residence,” but later in the proceeding, Walsh tried to broaden the definition of “sham residence” to include the circumstance to which he was objecting. Citing a decision by State Supreme Court Judge James V. Brands which states that one’s residence for voting purposes must be “without any aura of sham,” Walsh suggested that the practical definition of “sham” might include “claiming residence in New York City and voting in Columbia County.”

O’Keefe concluded her oral argument by saying that “New York has clearly given voters the right to choose” and noting that “Board of Elections registration is presumptive evidence that voters live where they say they live.”

Burstein argued that the issue of primary residence was an irrelevant inquiry under election law. He maintained that election law says that election commissioners determine residence and that residence for voting purposes is a principal location not the principal location. He asserted that people are qualified to vote in Columbia County because they have a residence here and cautioned that the effort to determine a single primary residence for voters with multiple residences could result in a voter being “denied the right to vote anywhere.” He reiterated that voters with more than one residence have the “unfettered right to choose” from which residence they will be registered to vote. Burstein also pointed out that the notion of a “permanent home” has no relevance in a country where people have freedom of movement.

Walsh argued that many of the voters whose ballots have been challenged “have certified that their permanent home is elsewhere.” The "certification" he was referring to was living in a rent-stabilized apartment in New York City or claiming a STAR exemption on a New York City residence. Responding to those assertions, Judge Nichols asked, “Why would those benefits deprive them of the right to vote where they want?”

Walsh went on to say that there was evidence of voters being registered in two places and of voters shifting their registration “willy-nilly.” In response to the allegation that voters were registered in two places, O’Keefe pointed out that New York City and the State of New York were at a standoff. The New York City Board of Elections is not doing the list maintenance required to keep the statewide database current, and, as a result, "it routinely happens that people stay registered in New York City” when they have re-registered in another place.

During the course of the proceedings, it was revealed that 19 of the 66 Taghkanic voters whose absentee ballots were still being challenged had been challenged in the Special Election in the spring.

At the end of the hour-long hearing, Judge Nichols asked for the written argument from O’Keefe by 10 a.m. on Friday morning and replies from Walsh and Burstein by noon on Friday. There is the possibility that he may dismiss the case on Friday after receiving O’Keefe’s written argument. If he does not dismiss, the hearing will resume next week. He also granted the motion to dismiss the lawsuit against Virginia Martin individually. Earlier in the proceedings, he had stated that he did not see “much conduct to make Martin [culpable] as an individual.”

The hearing will continue on Monday, December 7, beginning at 10:30 a.m. Nonresidency challenges to absentee ballots will be considered first; then the lawsuit against Virginia Martin as Commissioner of Elections will be taken up.  

Meanwhile, the challenged absentee ballots in Austerlitz, Ancram, Claverack, and Stuyvesant will be counted beginning at 9 a.m. on Thursday, December 3.  

Previous ccSCOOP articles on the challenged ballot issue:

“Déjà Vu All Over Again” – November 30, 2009

"A Long Day at the BOE" - November 18, 2009