“Justice will not be served until those who are unaffected are as outraged as those who are.”
— Benjamin Franklin
The Third District of the New York State Appellate Court convenes in Albany in the Robert Abrams Building for Law and Justice. To my keen disappointment, the honorable court, with respect to what I call the “Incident at Malta,” seems to rank those attributes in the same order: Adherence to law is paramount, and justice — deaf, dumb, and blind — is of little or no concern.
I allude, of course, to the fact that the appellate court has effectively “appointed” Paul Sausville as Malta town supervisor even though Cynthia Young undisputedly received one more vote than he did. He has not been “elected” by any reasonable definition of the word.
It is an unconscionable injustice that Young has been denied that office because of the innocuous mistakes of two absentee voters who each tried to abstain from voting on one of the six propositions that had nothing to do with any candidate on the November ballot.
The appellate court decision is flawed in at least two ways. First, it begins with wording that any reader would think is a quote from the 2013 Election Law: “written words, deliberately placed on the ballot by the voter[s] render the existing ballot[s] invalid.” But a computer search reveals that the phrase “deliberately placed” appears nowhere in the law, or any version of it back through at least 2009.
Second, of far greater importance, the decision was based on Election Law section 9-112, Canvass Ballots, which says that written words placed on the ballot anywhere but in spaces reserved for write-in votes render the whole ballot invalid.
But what I believe to be more appropriate is section 6210.13, Standards for Determining Valid Votes. The two conflicting sections have a vitally important difference. The first cites no exception to the statement that written words render the whole ballot invalid. But Section 6210.13, whose first part begins with the same admonition against writing on the ballot, has additional parts which do describe an exception, namely, that words “such as” NO, applied to a candidate or proposition, invalidate only that item, not the whole ballot.
One could also argue that the equal protection clause of the 14th Amendment to the U.S. Constitution should have been applied to the Malta case, and Ms. Young’s attorney apparently did so. Absentee voters do not enjoy the same probability that their ballots will be judged as valid as those of voters who vote in person.
Here is what the appellate court thought of that:
“Finally, even assuming, without deciding, that petitioner has standing to press an equal protection claim on behalf of the voters whose ballots were voided . . . she has failed [to] proffer any evidence that their absentee ballots were treated differently than their ballots would have been had the voters cast them at the polls on election day.”
This is passing strange. “On behalf of the voters . . .”?
Those absentee voters may still be in Alaska or Timbuktu for all we know and still unaware that their entire ballot was voided. More important, they were not harmed in any conceivable way. The innocent victim to whom justice was denied is candidate Cynthia Young.
How, I ask, could the judges not have realized that no experiment was necessary to prove the disparity in treatment of absentee voters who mail in their ballots and those whose voting machines expel defective paper ballots and, by law, are given replacement ballots and consultation with election officials who show them how to correct their mistakes?
Proving an equality or disparity by a thought experiment is a staple of the toolkit of physicists and logicians, and lawyers are supposedly logicians too.
One famous example is that Einstein deduced the laws of special relativity by imagining what it would be like to ride on a light wave. A much older example dates back to Galileo, who never claimed to have dropped objects of differing weight from the top of the Leaning Tower of Pisa to show that they hit the ground simultaneously, he just proved by logic that that had to be the case.
Here’s the way the appellate court should have used a thought experiment to prove that a serious disparity of treatment exists between machine-ingested and absentee ballots: The judges must know that if the two disputed ballots had been inserted into an optical character recognition machine, either (A) they would have been accepted, or (B) would have been rejected by the voting machine with the voter being allowed to receive and use a new blank ballot. That is a vital difference from what happens to an absentee voter who has no opportunity to obtain a replacement for a spoiled ballot.
Thus the law as written needs revision, the voters did not receive equal protection under the law, and the disputed ballots should have been reinstated as a matter of justice to the candidate who was innocent of any wrongdoing.
And the best revision of law would be to require that absentee ballots be fed to a voting machine and kept from the eyes of avaricious partisans who are all too anxious to disenfranchise voters who vote “wrong.”
The disparity of treatment between machine-cast and absentee votes did not arise with the advent of OCR voting machines. Our beloved old lever machines were hard-wired so that a voter could not pull down an invalid combination of levers.
Things could go wrong, of course. In 1965, J. Raymond Quinn was elected to a four-year term as Schenectady councilman. In 1969, the official vote count indicated that he had lost by a mere 12 votes.
But Ray noticed that his vote total at one particular polling place was so much lower than that at any other site that his lever must have jammed part way through the voting day. Unluckily, his appeal for credit for at least 13 more votes was rejected. Two years later, he decided to run for the county Legislature. His campaign slogan was “Quinn, Quinn, Raymond Quinn, if the machines don’t break, you know he’ll win.” They didn’t, and he did.
Paul Sausville, now appointed Malta supervisor by the appellate court, has said that he won’t run again in two years, but Cynthia Young is likely to. Her campaign slogan should be “Young, Young, Cynthia Young, if voters shun words, she’ll climb a rung.”
Edwin D. Reilly Jr. lives in Niskayuna and is a regular contributor to the Sunday Gazette opinion page.