SARATOGA SPRINGS — Saratoga County Supreme Court Justice Thomas Nolan on Feb. 6 dismissed a petition by Charter Review Commission member Gordon Boyd that sought a recount of charter referendum ballots.
On Nov. 7, the charter change, which sought to transform the city's mayor-commissioners governmental system to a government overseen by a city manager, came down to 48 votes — 4,202 votes cast in favor of and 4,154 votes against.
Boyd, along with Charter Review Commission members Bob Turner and Pat Kane, submitted the petition one week after the Saratoga County Board of Elections' absentee ballot count on Nov. 14, which shifted the vote to 4,458 against and 4,448 in favor of the charter change.
A Dec. 20 hearing had been set but was canceled after the court asked lawyers for both sides to submit memoranda of law by Jan. 8, after which the court would consider when to schedule oral arguments, Boyd told The Daily Gazette in an email.
In the petition dismissal, Nolan said, "Election Law 16-106 allows any voter to contest a canvass of election returns. [Boyd] therefore has standing to bring this proceeding.
"Yet, as respondents argue, the results of the Nov. 7 election have been certified, and [Boyd] produces no facts to support the propriety of a re-canvass."
In the petition, Boyd claimed "several of the voting machines in [Saratoga Springs] may have malfunctioned or broken down and failed to count all of the votes cast for the proposed new city charter."
Nolan said in his dismissal that Boyd's claims "lack factual support."
Nolan added that, "Neither the New York State Board of Elections nor the Saratoga County Board of Elections mandates a re-canvass when an election result is close."
Turner said he was disappointed by Nolan's decision.
"We're in a Catch-22, because in order to get a recount, we need the judge to show that the Board of Elections has made a mistake," he said. "We've asked to get copies of the '.tif' files or photos of every ballot, and the Board of Elections needs to provide us with those files, which they don't want to do.
"The judge said there's no evidence, and of course there's not, because we couldn't get copies of the ballots."
Turner added that the county was not helpful when Boyd submitted a Freedom of Information of Law (FOIL) request for the files.
"They never called us to say, 'You should send it to this person,'" he said.
In the petition dismissal, Nolan said, "[Boyd] did not properly make a FOIL request to Saratoga County's designated Records Assess Officer, and therefore [Boyd's] motion has no merit and, in short, there there is not presented an issue under FOIL to be decided here."
Turner said there's a similar court case in Essex County, Kosmider vs. Whitney, which will determine if copies of electronic voting ballot images are public records and are subject to be released or whether they can only be disclosed under a court order.
"A lot will depend on the outcome of that case," Turner said, adding that he filed a FOIL request with the Saratoga County Board of Supervisors to receive copies of the '.tif' files.
"They said we didn't FOIL the right people, so I'm FOILing the right people," he said. "If they care about transparency, they can release them."
Boyd said, "We feel strongly that voters would appreciate another opportunity to be heard from on this. We have many interested campaign workers and citizens who would like the charter to be back on the ballot in November — assuming the outcome is not reversed."
Richard Sellers, spokesman for S.U.C.C.E.S.S., a non-partisan citizen's organization that opposed the charter change, said in a statement that he welcomed the dismissal.
“This is the third time in a decade that Saratogians have vigorously debated the merits of changing our form of city government, and this is the third time that Saratogians have voted to keep our commission form.
“Our form of government is unique, as is our city. We feel the commission form has worked well for Saratogians for many years and through many changes that the city has gone through. We look forward to Saratoga’s continuing prosperity under this special structure.”