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electionlineWeekly--May 26, 2011

Table of Contents

I. In Focus This Week

Candidate files for preemptive order to enjoin certification in NY-26
New York election law gives the courts ample discretion to intervene

By M. Mindy Moretti

Even before a single ballot was cast on election day in the special election in New York’s 26th Congressional District, Republican Candidate Jane L. Corwin filed a request for a court order to prevent the election from being certified citing the closeness of the race in pre-voting polling.



On election day Supreme Court Justice Russell P. Buscaglia issued an 11-page order preventing the elections boards in Erie, Niagara, Genesee, Orleans, Wyoming, Livingston and Monroe counties from certifying the election until Buscaglia could hold a show-cause hearing on Thursday.

Within the order, attorneys for Corwin had until Wednesday to serve copies of the court order to the affected county boards of elections, their sheriff’s offices, the state board of elections and the other three candidates in the race.

Chris Grant, a spokesman for the Corwin campaign, told The Buffalo News that the court action "is very typical" in such close elections.

"We recognize the closeness of the race and we want to make sure that every legal vote is counted fairly and accurately," Grant told the paper.

On Tuesday though, as the votes were being tallied it became apparent that Democrat Kathleen C. Hochul had a solid lead and Corwin conceded the race. But what about the court order? Would the result render the court order moot as some had suggested?

Phone calls to the Corwin campaign for comment on whether or not the process would continue in spite of her concession went immediately to voicemail and the voicemail box was not accepting messages.

However a report from a local news station indicated that the Thursday show-cause hearing before Buscaglia had been cancelled.

While court orders to halt the certification of an election are nothing new, the issuance of such an order before even a single ballot is cast on election day has many election administration scholars scratching their heads.

“I tried to find earlier cases where a court enjoined certification prior to the completion of an election, as in the case of the NY-26th. The only cases I found that were even close involved the application of the Voting Rights Act and the Equal Protection Clause,” explained Owen Wolfe, a juris doctor candidate (2012) at the Mortiz College of Law at The Ohio State University. “I was unable to find any cases where certification was enjoined just because the election looked like it would be close, which seems to be the situation in the NY-26th.”

Unlike many other states, election law in New York gives its courts ample discretion to become involved in election disputes and the courts — at the instigation of petitioners — have been willing to use this discretion. Most recently a trial court judge oversaw a mandatory audit in the state’s 7th Senate District following the fall 2010 election.

“At the conclusion of the 3 percent audit, the trial court judge determined that though there were a number of discrepancies uncovered in the audit, projected out into a 100 percent audit those discrepancies would not be enough to change the result of the election, so the judge stopped the audit,” Wolfe explained. “These discrepancies amounted to a difference of .12 percent, higher than the .1 percent the election law allows.”

The state’s Court of Appeals held that the statute gives the courts discretion to determine these matters.

“We've certainly seen pre Election Day lawsuits designed to change the voting process that occurs on Election Day itself,” explained Edward Foley, Robert M. Duncan/Jones Day Designated Professor of Law and Director of Moritz’ Election Law program. “There are also lawsuits that try to keep the polls open late on Election Day. Is this ‘delay certification’ suit more disruptive than those?  Probably not, but that's not saying a whole lot.

Foley, who has an article coming out in Election Law Journal taking a strong position against litigation that would delay certification of the canvas said that the National Center for State Courts is working to educate judges about the “dynamic interrelationship’ of election administration and election litigation. Foley said the suit in NY26 is a good example of the need to increase those educational efforts.

“One important reason why judges generally should be extremely hesitant to order such delays is to avoid the judges themselves becoming inappropriate pawns in the electoral competition between the two candidates,” Foley noted.

Although Foley noted that the timing of the NY26 lawsuit was unusual and it may not likely be repeated, that doesn’t mean that the number of lawsuits to stop certification will diminish any time soon.

“We can put the phenomenon of an Election Day, or pre Election Day, lawsuit to stop certification on a continuum of various forms of litigation over the voting process, filed by candidates or their supporters seeking some sort of tactical or strategic advantage to the litigation,” Foley said.

“Each of these forms of litigation has their potentially deleterious effect on the administration of the voting process, although … some forms of litigation--especially those occurring--and finishing--before Election Day--can have a salutatory effect if there are problems or biases in the administration the voting rules … [D]elaying certification of the canvass can wreak havoc down the road.”