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Town of Lewiston: Trane contesting election results

by jmaloni
Wed, Nov 25th 2015 05:25 pm

As the Sentinel went to press Wednesday, it obtained paperwork from the Niagara County Clerk's Office indicating David Trane petitioned the State Supreme Court to recount all votes cast in the general election - including those disallowed during the counting of absentee and affidavit ballots.

Trane trails incumbent Highway Superintendent Doug Janese by four votes (1,765-1,761). He had a 29-vote lead on Election Day.

Portions of Trane's petition read:

•"This proceeding is commenced, pursuant to New York Election Law ... to contest the determination of the Board which refused to cast fourteen affidavit ballots, and to preserve all affidavit and absentee ballots cast in the November 3, 2015 general election contest for purposes of recounting, for the office of Superintendent of Highway in the Town of Lewiston ... such that a judicial examination may be made of all such ballots cast in the election contest, and a judicial determination made as to the validity of each affidavit ballot cast and refused by the Board to be cast, in the election contest. ..."

•"Fourteen ... affidavit ballots cast in the following election districts were 'disallowed' for counting by the Board prior to the time set by the Board for the recanvas and absentee/affidavit count for the Town of Lewiston on November 10, 2015. ..."

•"The reasons marked by the Board on the exterior of the disallowed affidavit ballot envelopes as to the reason for the disallowance, include at least ten ... marked that the 'form' was not filled out correctly."

Trane's petition meticulously lists the names of 11 affidavit voters, the reason(s) why each vote was disallowed, and the argument to reverse that order.

For example, one female voter's affidavit was disallowed because "she lists the wrong party affiliation, which under Election Law is not a valid basis for disallowance in the general election. The second reason for disallowance is that the form is 'not filled out properly'. The form, however, contains all of the requisite information pursuant to Election Law §8-302(3), including her old address, her new address, date of birth, citizenship, sex, form of identification, etc."

The petition goes on to state:

"The Board's reference guide for polling site election inspectors, the 'Niagara County Board of Elections Inspector Manual', states that with respect to the casting of affidavit ballots on the day of the general election, the polling site election inspectors are to 'advise the voter that all sections of the envelope must be filled in completely', and that 'an inspector MUST sign the affidavit envelope in the space provided, once it has been sealed by the voter'. Further, the election inspectors are required to enter specific information about the voter and the affidavit ballot number, onto the Challenge Report for their specific election district. ..."

"Upon information and belief, the polling site election inspectors, all of whom are appointed and trained by the Board, are responsible to advise the voter to complete all sections of the affidavit ballot envelope, and should be checking the affidavit ballot envelope for completeness before they themselves sign the affidavit ballot envelope.

"Thus, it is a specific requirement, a ministerial obligation, by the Board that the Board appointed and trained election inspectors at the polling sites, are to (ensure) the voter knows that the affidavit ballot envelope must be completely filled out by the voter, and should be checking for that completeness before they themselves sign the affidavit ballot envelope.

"Review of the disallowed affidavit ballots at Exhibits C-1 through C-10 and Exhibit D, shows that in only TWO instances did the election inspectors follow the instruction that they are to sign the completed affidavit ballot envelope. ... The failure of the election inspectors at the polling sites to follow the proscribed process with respect to signing affidavit ballot envelopes, calls into serious question whether proper process was followed with respect to advising voters by affidavit ballot as to the need to completely fill out the form.

"The actions of the Board, and the failure of its appointed and trained polling site election inspectors with respect to the disallowed affidavit ballots, has resulted in the disenfranchisement of up to eleven ... citizen voters in the Town of Lewiston, who appeared at polling sites on November 3, 2015 to cast their ballots in contests including the election contest. Further, the disallowed affidavit ballots are sufficient in number to affect the election contest for Superintendent of Highway in the Town of Lewiston; specifically, those disallowed ballots are sufficient, if cast in a certain number for Petitioner, for Petitioner to have been the person actually elected Superintendent of Highway in the Town of Lewiston."

Trane's petition implores the Niagara County Board of Elections to produce all 14 disallowed affidavit votes for the purpose of adding the results to the election tally. It also seeks to disqualify "One additional absentee ballot ... purportedly 'discovered' by Respondent (GOP Board of Elections Commissioner) Fronczak at an undisclosed location within the Board offices on Tuesday, November 10, 2015 following the completion of the opening of absentee and affidavit ballots, when Fronczak went to check to see if any additional absentee ballots had arrived in the Board's mail delivery that day."

That vote was cast for Janese.

A subsequent order was filed and signed by Justice Richard C. Kloch Sr. asking respondents Janese, Fronczak, Democrat Commissioner Lora Allen and the Board of Elections to show cause why the disallowed affidavits shouldn't be counted, and why all votes shouldn't be verified with optical scanning equipment.

Pending further order of the State Supreme Court, the Board of Elections is temporarily restrained from certifying Janese's election.

A special court term is set for Thursday, Dec. 3.

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