George Latimer

County Executive

Office of the County Attorney

John M. Nonna
County Attorney

June 29, 2021

VIA NYSCEF
Hon. James W. Hubert, J.S.C.
N.Y.S. Supreme Court
111 Dr. Martin Luther King, Jr. Boulevard
White Plains, New York 10601

Gleason, et al v. Westchester County Board of Elections, et al –

Index No.:58712-2021

Dear Judge Hubert:

This letter is respectfully submitted on behalf of respondents Commissioners of the

Westchester County Board of Elections Reginald A. LaFayette and Douglas A. Colety (“WBOE”)
in opposition to petitioners’ proposed order to show cause.1

As is explained in greater detail, below, WBOE opposes certain provisions of the proposed
order because: 1) the order would almost certainly lead to a violation of Article II, Section 7 of the
New York State Constitution, which guarantees secrecy in voting, as well as New York Election
Law Section 17-126, which makes it a crime for an election officer to “reveal[ ] to another person
the name of any candidate for whom a voter has voted”; 2) the order will cause a delay in the
counting of votes in this race, as well as other races, such as the countywide Clerk’s race; 3) the
order would improperly take the process of ballot cavassing from the WBOE and place it with the
Court; and 3) the petition does not make any factual allegations of fraud or mistake that would
justify the Court issuing any order.

First, it must be noted that the petition does not allege any facts that would even suggest
that there was fraud, mistake or error that would justify the issuance of an impound order.
Petitioners appear to rely on the fact that because the race for Mt. Vernon City Council is close, an
order should be issued. However, A small vote margin or anticipated small margin separating
candidates in an election is not a basis for the issuance of an impound order. See Larsen v Canary,
107 AD2d 809, 810 (2nd Dept 1985) affd 65 NY2d 634 (1985).

1
. The WBOE respondents are appearing for the limited purpose of opposing certain provisions of the proposed order
to show cause and are not waiving service the petition and order, should the Court sign the order.
Michaelian Office Building, Room 600
148 Martine Avenue
White Plains, New York 10601 Telephone: (914)995-2660 Website: westchestergov.com
 That being said, it is the two proposed orders that are addressed below that the WBOE
finds particularly problematic. Those provisions, which can be found on page 5 of the proposed
order to show cause, being:

ORDERED, that, if in the canvassing of absentee, military, special, federal

special or affidavit ballots, a unanimous vote of the Board of Elections bi-
partisan canvassers shall overrule a protest to the ballot’s validity, the Board is
hereby directed to make a copy of any such ballots and to reseal the copy in the
ballot envelope (while canvassing the ballot) in order tom preserve the ballot for
review by the court, all as set forth in King v. Smith, 308 A.D.2d 556 (2d Dept.
2003; and it is further

ORDERED, that, if in the canvassing of absentee, military, special, federal

special or affidavit ballots, a split vote of the Board of Elections bi-partisan
canvassers shall overrule a protest to the ballot’s validity, the ballot shall be
preserved unopened for court review after the three days set forth in Election
Law Section 9-209 (4)(d); provided, however, that should the Board desire, such
ballots may be canvassed according to the procedure set forth in King v. Smith,
supra and O’Keefe v. Gentile, supra.

Should the Court decide to sign the proposed order, these two provisions must be struck, as
Petitioners have failed to make any factual allegations of fraud or mistake that would justify such
an extraordinary measure.

First, the procedure contemplated by O’Keefe – opening an envelope, removing the ballot,
and then placing a copy of the ballot back in the envelope – would almost certainly lead to the
disclosure of which candidate the voter selected. This would violate the secrecy of the ballot as
guaranteed by Article II, Section 7 of the New York State Constitution. Moreover, it would
subject WBOE officials to a criminal charge for revealing a voter’s choice of candidate, which is
prohibited by New York Election Law Section 17-126.

Second, should the WBOE opt instead to put aside paper ballots unopened for court review,
the WBOE’s statutorily imposed duty and authority to open and count ballots would be improperly
transferred to the Court. See Larsen, supra.

Third, the procedure proposed would delay the vote count in this election, as well as any
other election in which Mt. Vernon voters would have cast a ballot, such as the race for County
Clerk.

While it is the WBOE’s position that there is no factual allegations that would support the
issuance of an impound order, the WBOE has no particular objection to the other provisions of the
proposed order, as it already follows those suggested procedures in complying with the provisions
New York Election Law, Section 9-209, which governs the canvassing of absentee, military and
special ballots.

Accordingly, the WBOE opposes the proposed order to show cause in its entirety as there
is no factual predicate that would justify the order, or alternatively, should the Court issue the
order, the two above-cited provisions of the order must be struck.
 Should you or your staff have any questions regarding this matter, I can be reached at (914)
995-4269.

Respectfully,

S/
Frederick M. Sullivan
Asst. Chief Deputy County Attorney

FMS/st

cc.: Howard Graubard, Esq., via NYSCEF