At a Part of the Supreme Court of the State of New York, held in and for the County of Westchester, at the Supreme Courthouse thereof, at 111 Dr. Martin Luther King Jr. Boulevard, White Plains, New York, on the day of , 202I. PRESENT: HON. J.S.C. —————-x In the Matter of the Application of CATHLIN B. GLEASON,EDWARD POTEAT, and DANIELLE BROWNE,
Petitioners, Index No. /2021 ORDER TO SHOW CAUSE REGINALD A LAFAYETTE and DOUGLAS A. COLETY, as Commissioners of the Westchester County Board of Elections, and DELIA M. FARQUHARSON, ANDRE D. WALLACE, LAURENS. CARTER,NICOLE LUCIO, and JANICE DUARTE, Respondents, For an Order, pursuant to Sections 16-}02,16-106, 16-112 and 16-113 of the Election Law, directing the preservation of ·att ballots cast in the Democratic Party Primary Election held on June 22, 2021 for the Democratic Party nomination for the Members of the City Council of the City of Mount Vernon, Westchester County, and . requesting the court to rule on the validity of the casting or canvassing, or refusal to cast or canvass, any ballot as set forth in Election Law Section 16-106 (I); preserving Petitioner’s rights under Article 9 of the Election Law and Section 16-113 of the Election Law, and related sections of law; and pursuant to Section 16-102of the Election Law, declaring Petitioner the lawfully nominated candidate in this election; or, ordering a new primary election. ——-x
Upon the reading and filing of the annexed Verified Petition of Cathlin B. Gleason, Edward Poteat and Danielle Brown, duly verified on June 25, 2021; upon all the ballots cast for the public office of Members of the City Council of the City of Mount Vernon, in the primary election held on the 22nd day of June, 2021, upon the original files relating thereto of The Westchester County Board of Elections (hereinafter “the Board”), and upon all of the papers and proceedings herein, it is hereby: ORDERED, that respondents show cause before this Court at Part _ to be held at the Courthouse located at 111 Dr. Martin Luther King, Jr. Boulevard, White Plains, New York, Room on the—,-. day of July, 2021 at 10:00 a.m. or as soon thereafter as counsel can be heard, why an Order should not be made and entered herein pursuant to Sections 16-102, 16-106, 16-112 and 16-113 of the New York State Election Law: A. Determining the validity of all protest ballots cast and canvassed by the Board, or ballots ruled invalid and not canvassed by said Board, under protest by the candidates, for the public office of Members of the City Council of the City of Mount Vernon, Westchester County, in the Democratic Party Primary election held on the 22nd day of June, 2021; and/or B. Determining the accurate tally upon the recanvass of the votes cast on the voting machines, special ballot marking devices, and/or ballot scanners for the public office of Members of the City Council of the City of Mount Vernon, by the voters of the City of Mount Vernon in The Primary Election held on the 22nd day of June, 2021; and/or C. Ordering the testing and inspection of any voting machines that have malfunctioned or been tampered with, and making appropriate findings of fact, and adjustments to the canvass and/or re-canvass as may be just and proper including, but not limited to, the preservation of evidence; and/or D. Ordering that all paper ballots cast in the Primary Election for the public office of Members of the City Council of the City of Mount Vernon, be completely recanvassed by hand, with counsel and representatives of all parties having the right to be present and interpose challenges; and/or E. Declaring Petitioners the duly nominated candidates of the Democratic Party for the public office of Member of the City Council of.the City of Mount Vernon by virtue of having received the greatest number of valid votes cast in the Democratic Party Primary Election held on the 22nd day of June, 2021 and directing the Board to certify Petitioner as such nominee; and/or F. Directing the holding of a new primary election upon a finding that there has been such fraud and irregularity as to render impossible a determination as to who was rightfully nominated as thee Democratic Party nominee for the public office of Member of the City Council of the City of Mount Vernon, Westchester County at the June 22, 2021 primary election; and G. Granting Petitioners such further relief as this Court deems just and proper. Andit is further ORDERED, that Respondent Board of Elections is here by ordered to produce, as may be further directed by the court prior to any hearing or trial in this proceeding, any ballots, official tally sheets and returns of canvass sheets, any reports pertaining to voting machine breakdowns or malfunctions, any inspectors notes, reports and or memos, any voter registration records, any other records which are the subject of issues to be tried in this proceeding, and any determinations of Respondent Board upon any protests and challenges to voters and/or ballot sand/or applications therefore, and any other papers or worksheets relating thereto; as may be necessary and proper to the trial of any issue in this proceeding; and it is further ORDERED, pursuant to Section 16-112 of the Election Law, that Respondent Board hold inviolate until further Order of the Court or the conclusion of this proceeding: (1) all voting machines utilized in the Primary Election held on the 22nd day of June, 2021, for the public office of Member of the City Council of the City of Mount Vernon, Westchester County; (2)all absentee ballot applications for said election; (3) and all absentee, military, special and Affidavit ballots and ballot envelopes, cast in said election to be secured in the double-locked room in the Office of the Board. ORDERED, that any attorney representing a party in this proceeding or his/her employees, agents or designees be admitted to the place of canvas or recanvass, and be allowed full participation in the administrative proceedings of the Board held in relation thereto, without the need for production and filing of a poll watcher’s certificate, and shall have an opportunity to review the ballots, applications and other papers and records pertinent to each ballot reviewed before it is canvassed by Respondent Board of Elections, and shall be permitted to protest the canvassing, or refusal to canvas, any such ballot and or the validation, or refusal to validate, any ballot envelope; and it is further ORDERED, that, if in the canvassing of absentee, military, special, or affidavit ballots, a unanimous vote of the Board of Elections bi-partisan canvassers shall overrule a protest to the ballot’ svalidity, the board of Electionsis herby directed to make a copy of any such ballots and to reseal the copy in the ballot envelope (while canvassing the ballot) in order to preserve the ballot for review by the court, all as set forth in King v. Smith, 308 A.D.2d 556 (2d Dept. 2003); 0 ‘Keefe v. Gentile,1 Misc.3d 151 (S. Ct., Kings Co. 2003);and it is further ORDERED, that, ifin 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. ORDERED, that sufficient reason appearing therefore, leave is hereby granted to the parties herein to submit on the date set for the hearing or the trial of this matter specific allegations of irregularities and/or fraud as may be discovered upon an examination of the poll books and further investigations into the conduct of the election, witnesses, exhibits, proofs and other evidence as may be necessary; and it is further ORDERED, that in the event the canvass and/or recanvass of ballots continues beyond the return date specified herein above, counsel for the parties hereto may adjourn same by stipulation, and counsel shall inform the court by telephone of same upon agreeing thereon, so that the canvass and/or recanvass and/or audit may proceed with all due speed, and SUFFICIENT CAUSE APPEARING THEREFOR,it is further ORDERED that service of a copy of this order together with the papers upon which it is granted be made upon Respondent Westchester County Board of Elections by leaving them at the office of the Board, located at 25 Quarropas Street, White Plains, New York on or before the 2nd day of July, 2021; and that service of a copy of this order together with the papers upon which it is granted be made on the other Respondents either (1) by personal delivery of the same to a Respondent-Candidate on or before the 2nd day of July 2021; QI, (2) by enclosing the same in a securely sealed and duly postpaid wrapper, addressed to a Respondent-Candidate at the address set forth in his or her designating petition and by depositing (with a Certificate of ailing) same in a Post Office branch or Post Office box, regularly maintained by the United States Postal Service, on or before the of July 2021; QL (3) by personal delivery of the same to a person of suitable age and discretion at the residence of such Respondent-Candidate set forth in his/her designating petition, and by enclosing the same in a securely sealed and duly postpaid wrapper, addressed to such Respondent-Candidate at the address set forth in his or her designating petition and by depositing same in a Post Office branch or Post Office box, regularly maintained by the United States Postal Service, on or before the day of July 2021; or, (4) by affixing the same to the outer door of the residence of such Respondent-Candidate set forth in his or her designating petition, and by enclosing the same in a securely sealed and duly postpaid wrapper, addressed to such Respondent Candidate at the address set forth in his or her designating petition, and by depositing same in a Post Office branch of Post Office box, regularly maintained by the United States Postal Service, on or before the day of July, 2021; or (5) by enclosing the same in a securely sealed and duly postpaid wrapper, addressed to a Respondent-Candidate at the address as set forth in his or her designating petition and by sending same by overnight, guaranteed next-day delivery by the United States Postal Service on or before the 1st day of July, 2021; or (6) by delivering the same to Fedex or UPS and paying for next day delivery to the a Respondent-Candidate at the address set forth in his or her designating petition filed with the Westchester County Board of Elections by the 1st day of July, 2021, and that any such method of service shall be deemed good and sufficient service thereof.
