Monday, October 31, 2005

Big Election Theft in a Little Town

Susan Brenner-Morton never guessed what the remainder of 2005 would hold for her as she dutifully cast her absentee ballot for the March 15 mayoral election in Irvington, New York. The mayor's race in this scenic town of 6,700 people on the banks of the Hudson River, had been won by Democrat Erin Malloy, in a one-vote victory over Dennis Flood, the Republican incumbent who had held office, unchallenged, for 12 years.

This is the story of how Erin Malloy, Irvington residents – and especially Susan Brenner-Morton – discovered the true depths of the national Republican strategy for "winning" elections by disenfranchising voters and turning perfectly good votes into bad votes.

We've seen it many times over the last five years -- most notably in the 2000 presidential election and, earlier this year, in the protracted fight by Republican Dino Rossi to keep Democrat Christine Gregoire from assuming the Governor's office in Washington state. We also saw it in the race for New York's 35th district state senate seat last year, when Republican Nick Spano used the trash-the-votes strategy to discount ballots and secure an 18-vote win over Democrat Andrea Stewart-Cousins.

It's the same game, with different players -- a close election and the GOP using their weapon of choice, by fighting to ensure that votes are not counted.

The Irvington election was quite literally decided last Thursday on a game of chance, with Flood pulling the lucky lot after using the preceding seven months to engineer a bogus 847-847 tie in the election.

But first, a quick primer on a very complex case.

On election night, March 15, 2005, an initial count gave Flood a one-vote lead over Malloy. The Westchester County Board of Elections then conducted a more thorough, official recount that showed it was actually Malloy, the Democratic challenger, holding a one-vote advantage.

Here's where things go downhill.

Two unopened, absentee ballots remained and, despite holding the lead – and thus having everything to lose – Malloy, the former president of the Westchester League of Women Voters, readily agreed that they should both be opened and that all votes should be counted.

Flood then manufactured a tie by making certain only one of the two remaining votes was opened. Brenner-Morton's name was clearly visible on the last ballot and, because she was a known Malloy supporter, it was in Flood's best interests to see that the ballot never saw the light of day.

A petition was then filed by Flood with the state Supreme Court asking for a new election. His suit stayed all election activity, including the opening of Brenner-Morton's vote, went after individual ballots that had been cast -- citing ridiculous technical reasons to discount these votes -- and allowed him to remain mayor pending the outcome of his litigation.

On March 21, Brenner-Morton, having learned that her vote had not been counted, came forward and demanded that her ballot be canvassed. Knowing that Brenner-Morton, had undoubtedly cast her vote for Erin Malloy, the legitimacy of her vote was questioned because Brenner-Morton had signed her name (to vote) as "Susan B. Morton" and had registered to vote as "Susan Brenner-Morton."

The maneuver left the election a tie.

The case quickly went to the courtroom of State Supreme Court Justice Joan Lefkowitz on March 25. Lefkowitz fully rejected Flood's argument, ruling that Brenner-Morton had clearly established both her identity and her intent and sternly intoned "open the ballot" to end the case.

The vote was for Erin Malloy and Irvington voters were told they had a new mayor. But Flood and his lawyer, John Ciampoli, immediately filed an appeal to toss Brenner-Morton's vote and asked for a new election.

It's important to note that Ciampoli is a noted election law expert, a member of the Republican National Lawyers Association and widely considered the big hitter among New York conservatives when it comes to defeating Democrats in close elections. Indeed, it was Ciampoli who served Nick Spano in getting enough Democratic votes tossed to defeat Andrea Stewart-Cousins.

While Flood was represented by the GOP's big election gun, Malloy was forced to pay for the defense of her legitimate win via local fundraisers and the generosity of local Democratic supporters.

In mid April, Lefkowitz again rebuked Flood and declared Malloy the winner – only to have Flood appeal to the Appellate Division in Brooklyn. The next six months are a blur of Republican legal shenanigans in which they did everything in their power to keep Brenner-Morton's vote from counting.

The Appellate Division ultimately tossed Brenner-Morton's vote on a legally-questionable technicality offered by Flood, and decided that the election was once again a tie – a decision that many lawyers have since said was seriously flawed. Based on a bizarre state law, the deadlocked election was now to be decided based on a random game of chance.

Which brings us to last Thursday night.

Before a packed municipal meeting room, filled with television cameras from all over the Tri-State area, Flood got exactly the scenario he had sought: Turning a lost election into one where he had a least a 50-50 chance of prevailing.

Of course, Flood had immediately embraced this option. Hey, if you were the Houston Astros, wouldn't you leap at the chance to have a coin flip reverse Chicago's recent World Series win and get a 50-50 chance at negating the legitimate loss? The White Sox, probably wouldn't be so crazy about that choice – given that, well, they won and everything.

The strange end to this election came at 7:35 PM on October 27 and took the form of a purple cloth bag, containing eight quarters, four with the eagle emblem on the "tails" side and four depicting the Statue of Liberty. Malloy would be represented by the eagle while Flood's lot was the Statue of Liberty. One coin would be drawn to determine the next Irvington Mayor.

Paula Etzel, Chair of the Irvington Democratic Committee said before the coin-draw that, there was really no way for the outcome to be satisfying, given that Malloy had legitimately won the election.

"I will feel similarly with either outcome. Even if she wins the coin-draw, all of the votes will not have been counted," said a subdued Etzel.

Before the deciding action in the process, Malloy gave a moving statement in which she said that the major lesson she had learned in the experience was "do not let the behavior of other people be the basis on which we evaluate our own." She also made clear that, despite the complexity of the Republican efforts to disenfranchise Brenner-Morton, the gist of the whole case was very simple: "The one statement that has to be made is that Susan Morton cast a legal vote," said Malloy.

Republican Deputy Mayor Richard Livingston, then reached into the bag, chose a quarter and handed it to the village clerk, Lawrence Schopfer, who gave the result: "Statue of Liberty." Flood's supporters went wild while those supporting the rightful winner, Erin Malloy, sat in stunned silence and held their tongues.

Flood was immediately sworn into an office won by Malloy.

The back story to all of this is what Brenner-Morton endured since casting her ballot in March. In addition to having her honesty questioned throughout this entire affair, Brenner-Morton had been told she needed to fully document her whereabouts during the election and for an eight-day period surrounding the March 15 election day. The latter tactic was an effort to question why she needed to vote via absentee ballot, despite there being no strict prevailing standard for what justification is required to vote absentee and ignoring the fact that she was indeed attending a business conference on election day.

If you're starting to feel like you're in a Kafka book, it gets worse. Since this all began, Brenner-Morton has had to retain her own lawyer to get her vote counted and has endured being hounded by a private investigator, hired by Team Flood, in an effort to intimidate her out of the process.

The P.I. retained by Flood called Brenner-Morton at home and Ciampoli had a summons tacked to the front door of her house. After trying unsuccessfully to have her served at work in front of her colleagues, Brenner-Morton was contacted by her employer's legal department because they too had been subpoenaed by the Republican camp.

All of this occurred because, through dumb luck of the draw, her vote happened to be the one to push Democrat Malloy over the top.

Republican officials in attendance Thursday seemed to agree that the Irvington voter thrown, against her will, into this maelstrom, had been wronged.

"I wish to publicly apologize to Mrs. Susan Morton for what she's been through in trying to get her vote counted," said Republican Livingston, moments before the game-of-chance was played out.

"I say to Susan Morton, you have my sincerest apologies for what took place and, you know, hopefully this will never happen in Irvington again," said Flood, despite having been the person singularly responsible for the outcome.

An amazed Brenner-Morton responded when told that Flood had "apologized" to her in front of the television cameras. "Not to me, sweetie. To you he apologized. I've never heard an apology to me – ever."

Perhaps the sickest twist on an already-bizarre evening, was the resolution read by the village clerk to formally declare Flood the winner. The clerk said to the packed room that Flood was the winner in a procedure in which the town "...carried out the determination by lot, which has resulted in a vote cast for Dennis Flood."

To many in the room, this was a fitting and symbolic end to another successful Republican election theft, that saw a quarter counted as a "vote" while the legitimately-cast ballot of a longtime Irvington resident was not.

And for Democrats, the song – and the lesson -- remain the same: Whether it is for the presidency, a senate race or a part-time job paying $4,800 per year to be the mayor of Irvington, the Republican apple seldom falls far from the tree. And, if push comes to shove, the GOP will always – always – reach for their trump card of tossing legitimate votes if it serves their agenda.

Meanwhile, Erin Malloy says that the Republican tactics of this race are entirely consistent with the way they operate at any level.

"OK it's not Gore/Bush, Florida 2000, or Kerry/Bush, Ohio 2004, but the tactics are the same," said Malloy. "Attack on the ground at the polling place, disenfranchise voters; finish the job in the courts."

But the gritty Malloy, though exhausted and discouraged, vows that this isn't the end of the story.

"It's not so much the result but the process. It's been very disappointing," she said. "I am absolutely going to run again, and I hope he does too. And I will win."