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September 14, 1998


The opinion of the court was delivered by: GERSHON


 GERSHON, United States District Judge:

 Plaintiffs Melvin Ladner and Timothy Carl, two unsuccessful candidates in the May 4, 1993 election for Community School Board, District 31 ("Community School Board 31") in Staten Island, New York, bring this action pursuant to 42 U.S.C. §§ 1983 and 1985(3) alleging violations of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Defendants City of New York, Board of Elections of the City of New York ("Board of Elections"), the New York City Police Department *fn1" , the Board of Education of the City of New York, Barbara Kett, Chief Clerk of the Staten Island Borough Office of the Board of Elections, the Staten Island Board of Elections and the Richmond County Board of Elections *fn2" move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing the amended complaint. Plaintiffs also move for summary judgment, on the ground that defendants destroyed ballot stubs and stub boxes, which, they claim, were vital to their proof. The third-party defendant, Proportional Counts Associates, Inc., an independent company hired to do the actual counting of ballots for the election, has answered.


 Unless otherwise indicated, the following facts are undisputed.

 On May 4, 1993, the Board of Elections of the City of New York conducted a city-wide election in which nine members were elected to each Community School Board. Plaintiffs were two of the 25 candidates for the nine seats on the Community School Board 31, which comprised all of Staten Island. Plaintiffs, who describe themselves as adhering to a conservative political philosophy, campaigned for election on a platform opposing the "Children of the Rainbow" curriculum as promoted by then-New York City Chancellor of Schools Joseph Fernandez and then-New York City Mayor David Dinkins.

 Staten Island was divided by the Board of Elections into three Assembly Districts ("ADs"), the 59th, 60th, and 61st. Within each AD, there were numerous Election Districts ("EDs") and the resulting entities were called "ED/ADs." For example, the 41st ED within the 60th AD was called the "41/60 ED/AD." Some ED/ADs were divided into sub-EDs or assigned an "H" designation; these were areas consisting of individual apartment buildings, developments or nursing homes which had enough registered voters to make up an independent sub-ED within the main ED territory. As a result, some ED/ADs had more than one ballot box. Although all of Staten Island was divided into separate ED/ADs, a single site, such as a school, frequently served as the polling site for several different ED/ADs.

 By statute, the Board of Elections is authorized to combine certain ED/ADs with one another if there are not enough registered voters to maintain an independent ED/AD. N.Y. Elec. L. § 4-104(5)(a). For the 1993 school board election, the Board of Elections combined the 37th ED/60th AD ("37/60") into the 95th ED/60th AD ("95/60") and the 101st ED/60th AD ("101/60") into the 90th ED/60th AD ("90/60"). As a result, the 95/60 ballot box was used to collect ballots from 37/60 and 95/60, and the 90/60 ballot box was used to collect ballots from 101/60 and 90/60.

 In accordance with New York Education Law § 2590-c(7), the 1993 school board election was conducted using a proportional representation voting procedure. See generally Campbell v. Board of Education, 310 F. Supp. 94, 98-102 (E.D.N.Y. 1970). At the polls, each registered voter was given a paper ballot which included the names of the 25 candidates for election to Community School Board 31. Each ballot designated the particular ED/AD where it was to be voted; the ballots themselves, however, were not individually numbered. The order of the names of the candidates on the ballots was rotated by ED/AD so that each candidate's name had an equal opportunity to appear on top, middle or bottom of the ballots. Voters were instructed to vote by preference. That is, they were directed to mark, using a pen or pencil, a "1" by their first choice candidate, a "2" by their second choice candidate, and so forth. Voters could mark as many choices as they pleased. Voters were directed to fold the completed ballot and give it to the election inspectors, who would place it in the ballot box.

 Attached to all ballots were ballot stubs, which were numbered from 1 to 500. The ballot stubs were used primarily to enable election officials to know how many ballots had been distributed. After marking their preferences on the ballot, voters were instructed to place the ballot stub in the stub box.

 Sample ballots were provided upon request to voters while they waited to vote. Sample ballots were identical to the official ballots except that they were printed in a different color and the stubs were printed without numbers. The sample ballots were buff colored and the official ballots were white. During the election, Barbara Kett, who was responsible for the administration of the 1993 election for Community School Board 31, was informed that many voters had mistakenly cast sample ballots, instead of official ballots, in the ballot boxes. The Board of Elections later determined that the sample ballots should be counted because they were cast by registered voters.

 During the election, Kett was also notified by election inspectors at four polling sites, which housed the ballot boxes for more than one ED/AD, that they had ballots which did not reflect the proper ED/AD. Kett went with two clerks, Jill Jackson and Marion Kaminski, to each of these sites and confirmed that the police had mistakenly delivered ballots to the wrong ED/AD voting tables within that polling site. Kett and the two clerks temporarily suspended voting and moved the unused ballots to their correct ED/AD tables. After opening the ballot boxes to verify that ballots had been cast in the wrong ED/AD ballot boxes, they corrected, in ink, the ED/AD designation on each ballot to reflect the proper ED/AD. They then marked each correction with their initials, "BMK," "JJ," and "MK," respectively. Kett explains that she did not see how the votes were cast and made no changes to the voting sections of the ballots. The ballots were returned to their ballot boxes, and voting recommenced.

 When the polls closed at 9:00 p.m. on May 4, 1993, the ballot boxes and stub boxes at each polling site were sealed. Election inspectors filled out ballot box certificates, which accounted for the total number of ballots cast at each ED/AD. There was a total of approximately 24,000 votes cast in this election for Community School Board 31. The ballot boxes were moved from the polling places to police precinct houses and eventually to the central counting site. Each time the ballot boxes were moved, election officials used "tick-off" sheets, listing all the ballot boxes, for accounting purposes. The count was conducted at the Egbert Intermediary School in Staten Island from May 13, 1993 to May 18, 1993.

 Under the system of proportional representation set forth in Section 2590-c of New York Education Law, ballots are counted by ED/AD in an order determined by lot. As an initial matter, all of the first choices marked on the ballots are counted. This system was described in Campbell, as follows:

After all of the first preferences are counted, and the total number of valid ballots cast in the school district becomes known, a formula is applied to determine whether any candidates have been elected. To win, a candidate's votes must surpass a quota determined by dividing the total number of valid ballots cast in the school district by one more than the number of offices to be filled (in this case, the number is 10, since 9 board members are to be elected in each school district), and then adding one to this total. If any candidate reaches this quota figure, all ballots cast for him in excess of that number are to be awarded to the second choice marked on them. . . . A similar procedure is utilized to remove candidates. First, after the transfer of surplus votes described above, all first preference votes credited to candidates receiving the fewest votes are to be transferred to the second choices indicated on the ballots. Upon completion of this transfer, the candidate remaining who has the lower number of votes is declared defeated, and his second preference votes are transferred to the remaining undefeated candidates. Once transfers are sufficient to enable a candidate to pass the quota, he is declared elected, and all subsequent preferences attributed to him are transferred to the candidate with the next highest preference. This process is continued until all but the desired number of elected officials have been eliminated.

 Campbell, 310 F. Supp. at 99.

 Neither Kett nor any personnel from the Board of Elections participated in the counting of the ballots. The task was contracted out to an independent company, Proportional Counts Associates, Inc., the third-party defendant in this case. The Staten Island Count Director was Bruce Hogenauer, an employee of Proportional Counts Associates, Inc.

 Plaintiffs attended the count and observed several election irregularities, which form the bases for their complaint in this action. Objecting to these election irregularities, Ladner filed a protest sheet. Defendants deny that any such protest sheet was ever submitted. For purposes of this motion, Ladner's allegation regarding the filing of the protest sheet is accepted as true.

 Plaintiffs observed that, during the random draw which determines the box order for counting purposes, the boxes for 37/60 and 101/60 were not located when those boxes were announced. Plaintiffs notified Count Director Hogenauer and demanded that the count be stopped until the boxes were located. Hogenauer refused, and the election count proceeded. It is unrefuted that, since the Board of Elections had previously combined several ED/ADs, including 37/60 and 101/60, with other ED/ADs, the allegedly missing ballot boxes never in fact existed.

 Plaintiffs observed "hundreds or thousands" of ballots being counted, with writing in ink on them, bearing the initials "BMK," "JJ," or "MK." Carl Dec. P 15; Ladner Dec. P20. Plaintiffs showed Hogenauer these altered ballots, marked some of these ballots with a red "P" for protest, and demanded the count be stopped. Hogenauer counted them over their protest. Defendants' explanation for the initials on certain ballots is set forth above.

 Plaintiffs observed numerous sample ballots, instead of official ballots, being counted. As noted above, defendants acknowledge that, in this election, some sample ballots were cast and counted, and that the Board of Elections advised Hogenauer to count the sample ballots because they had been cast by registered voters.

 Plaintiffs observed "hundreds, if not thousands of ballots which appeared to be voted in identical handwriting, with scores of identical patterns." Carl Dec. P 15; Ladner Dec. P 20. Plaintiffs believe that these "identical" ballots were "stuffed" into the ballot boxes. Defendants deny that any ballots were altered. Hogenauer investigated this allegation during the count and determined that the handwriting was not similar and therefore included the challenged ballots in the count.

 Plaintiffs observed "hundreds (if not thousands) of ballots" where the "1" and "2" votes for them had been altered to "11" and "12", with new candidates chosen as "1" and "2." Carl Dec. P 15; Ladner Dec. P 52. Defendants again deny that any ballots were altered.

 Plaintiffs noticed that there were more than one ballot box from a single AD/ED at the count site. Defendants acknowledge that, since some ED/ADs were divided into sub-EDs or given an "H" designation, there were multiple ballot boxes for certain ED/ADs.

 Plaintiffs observed ballot boxes which, plaintiffs believed, had been opened and later resealed with tape. They noticed that the re-taping had peeled away portions of the paper boxes. Defendants acknowledge that, since the ballot boxes were moved several times, they required some re-taping.

 Plaintiffs saw ballot boxes being counted without including the absentee ballots from that ED/AD. Hogenauer explained that the absentee ballots were treated separately and, therefore, the absentee ballots from all the ...

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