United States District Court, N.D. New York
January 27, 2004.
MATTHEW SHANNON; JOSEPHINE ALEXANDER; HENRY A. FIEBIGER; SANDRA R. FIEBIGER; A. PAUL HERUBIN; and PATRICK GUBBINS, Plaintiffs,
DAVID JACOBOWITZ; ONEIDA COUNTY BOARD OF ELECTIONS; ANGELA PEDONE LONGO, as Commissioner of Oneida County Board of Elections; and PATRICIA ANN DISPIRITO, as Commissioner of Oneida County Board of Elections Defendants
The opinion of the court was delivered by: DAVID HURD, District Judge
MEMORANDUM-DECISION and ORDER and PERMANENT
This action was scheduled for a bench trial on January 20, 2004. The
parties agreed to resolve the issues by motion.
Plaintiffs move for summary judgment and injunctive relief pursuant to
Fed.R.Civ.P. 56. Defendant David Jacobowitz ("Jacobowitz") opposes.
Defendant Oneida County Board of Elections ("Board of Elections") and
individual defendants Angela Pedone Longo, and Patricia Ann DiSpirito
(collectively "County defendants") made no submissions related to
plaintiffs' motion. Oral argument was heard on January 26, 2004, in
Utica, New York. Decision was reserved.
Considered in resolving plaintiffs' motion for summary judgment are the
facts as set forth in Shannon v. Jacobowitz, ___ F. Supp.2d ___,
2003 WL 23024397 (N.D.N.Y. Dec. 30, 2003), with which familiarity is
hereinafter assumed, as well as additional factual submissions of the
parties on this motion. No genuine issue has been raised with regard to
the facts as set forth below.
The County defendants unofficially declared Jacobowitz the winner of
the greatest number of votes in the November 2003 race for Town of
Whitestown Town Supervisor, by a margin of 25 votes. The total vote was
tallied at 2,936 for Jacobowitz and 2,911 for the incumbent, plaintiff
Matthew Shannon ("Shannon"). However, a discrepancy was noted with one of
the voting machines used in District 14, Voting Machine No. 118408.
No. 118408 registered one-half of one vote on line 11-B (Shannon's
Democratic line), while multiple votes were registered on all other
Soon after the election a test of that machine was conducted. The
unequivocal result of the test was that votes on line 11-B were not
counted. There was no problem with the other lines on the machine. A
total of 295 voters used Machine No. 118408, but, as a result of the
machine malfunction, only 156 votes were actually counted, resulting in
139 potentially uncounted votes on line 11-B. The highest voter
non-participation rate on any voting machine in this hotly contested Town
Supervisor race was 7.1%. The non-participation rate for the other
machine used in District 14 which was situated in the same room of the
same voting location as Machine No. 118408 was 1.49%.
Shannon was denied votes cast for him on line 11-B because Voting
Machine No. 118408 malfunctioned. Among the votes not counted were those
cast by at least four*fn1 of plaintiffs Josephine Alexander, Henry A.
Fiebiger, Sandra R. Fiebiger, A. Paul Herubin, and Patrick Gubbins.
A. Summary Judgment
Summary judgment must be granted when the pleadings, depositions,
answers to interrogatories, admissions and affidavits show that there is
no genuine issue as to any material fact, and that the moving party is
entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson
v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986); Richardson v. New York
State Dep't of Correctional Servs., 180 F.3d 426, 436 (2d Cir. 1999).
inferences therefrom, and ambiguities must be viewed in a light most
favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986); Richardson, 180 F.3d at 436; Project
Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). Once the moving
party has met the initial burden of demonstrating the absence of a genuine
issue of material fact, the nonmoving party "must set forth specific
facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56;
Liberty Lobby. Inc., 477 U.S. at 250; Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Matsushita Elec. Indus. Co., 475 U.S. at 587. At
that point the nonmoving party "must do more than simply show that there
is some metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co., 475 U.S. at 586. To withstand a summary judgment motion,
sufficient evidence must exist upon which a reasonable jury could return
a verdict for the nonmovant. Liberty Lobby. Inc., 477 U.S. at 248-49;
Matsushita Elec. Indus. Co., 475 U.S. at 587.
B. Due Process Claim
It is unquestionable that the right to vote and have that vote counted
is fundamental. Reynolds v. Sims, 377 U.S. 533, 554-55, 84 So. Ct. 1362,
1378 (1964). A federal due process claim alleging unintentional, rather
than intentional, conduct that violates the right to vote is cognizable
only where there is no adequate and fair state remedy. See Shannon, 2003
WL 23024397, at *3 (citing Gold v. Feinberg, 101 F.3d 796, 800 (2d Cir.
1996)). Here the only potentially available remedy is a state law quo
warranto action, pursuant to N.Y. Exec. L. § 63-b. The quo warranto
remedy is inadequate and unfair for the reasons set forth previously. See
Shannon, 2003 WL 23024397, at *5-7. Therefore, plaintiffs state a federal
due process claim, which, if proven, entitles them to relief in this
federal forum. See Lehner v. O'Rourke, 339 F. Supp. 309, 314 (S.D.N.Y.
1971) (noting that if plaintiff proves his case at trial, relief will be
Moreover, plaintiffs have set forth admissible evidence demonstrating
that no genuine issue of fact remains for trial. Voting Machine No.
118408 malfunctioned. It failed to count potentially as many as 139 votes
for Shannon on line 11-B, out of the 295 voters who used the machine to
vote. Those 139 voters necessarily voted for Shannon on line 11-B, or
did not vote in the Town Supervisor race. The votes of those of the 139
who did cast a vote in the Town Supervisor race were not counted. The
five voter-plaintiffs cast votes for Shannon on line 11-B of Voting
Machine No. 118408, at least four of which were not counted.
Jacobowitz asserts that a genuine issue for trial is raised by the
deposition testimony of several witnesses regarding three issues. First,
he contends that confusion over labeling of the two voting machines used
in District 14 as 14-A or 14-B, and machine 1 or machine 2 demonstrates
an issue of fact as to which machine malfunctioned, citing the testimony
of Mary Jane Morgan ("Morgan"), Barbara Dziegiel ("Dziegiel"), Nancy
Waldron ("Waldron"), Lois Drumm ("Drumm"), and Vilma Ellis ("Ellis").
However, Morgan, Dziegiel, and Waldron unequivocally testified that the
malfunctioning machine was on the left. (Deft.'s Ex. A at 17 (Morgan),
Ex. B at 12-13 (Dziegiel), Ex. C at 22 (Waldron).) Drumm and Ellis left
immediately at the close of the election, and so were unaware of any
because there is no question that it was the machine on the left
that malfunctioned, the machine's label, and the voters' personal
knowledge thereof, are inconsequential.
Second, Jacobowitz argues that the list of voters using Voting Machine
No. 118408 was not properly authenticated and therefore cannot establish
the identity of the voters who voted on the malfunctioning machine. The
authentication of the list is not material to any issue in this matter
because there is unequivocal evidence that 295 voters used Voting Machine
No. 118408, but only 156 votes were counted in the Town Supervisor race,
leaving 139 potentially uncounted votes. Similarly, it is inconsequential
to which machine voters were directed after they signed the list. The
material evidence is that the machine malfunctioned and failed to
register as many as 139 votes cast in the Town Supervisor race. It
matters not who the voters were. What matters is that their votes were
Third, Jacobowitz questions the veracity of the affidavits of voters
previously submitted by Shannon. He points to the deposition of Richard
LaManque, who stated that he was not asked about the location of the
machine on which he voted prior to signing the affidavit, he did not
remember reading the part of the affidavit that mentioned the location of
the machine, and he did not know the machine number at the time he
voted. (Deft.'s Ex. J at 10-13.) He did testify, however, that he voted
for Shannon on line 11-B using the machine on the left. Id. at 4, 10.
Jacobowitz points to the testimony of another voter, Eleanor Kiefer, who
made similar statements, such as not being asked about the location of
the machine before signing the affidavit. Id. Ex. K at 13-16. She also
testified, however, that she used the machine on the left and voted for
Shannon on the second line. Id. at 5, 12. The attack
on a few of the voters' affidavits is not material to the issue of
whether Whitestown voters voted in the Town Supervisor race but their
votes were not counted.
It is not necessary to rely upon the affidavits, voter lists, labeling
of voting machines, or location of voting machines to decide this case.
This is because of a unique set of facts which clearly and without
question determine the winner of the November 4, 2003, election for Town
Supervisor of the Town of Whitestown.
Those facts are as follows:
1. Voting Machine No. 118408 malfunctioned;
2. 295 voters entered Voting Machine No. 118408;
3. 156 votes were recorded for Town Supervisor;
4. 139 votes were not recorded for Town Supervisor (a non-participation
rate of 47.1%);
5. 1 vote was recorded for Shannon on line 11-B (the only
6. the 139 voters must have either voted for Shannon on line 11-B or
not voted in the Town Supervisor race;
7. the companion voting machine in District 14 had a non-participation
rate of 1.49%;
8. 1.49% of 295 voters equals 5 non-participating voters; and
9. 139 unrecorded votes minus 5 non-participating voters equals 134
uncounted votes for Shannon on line 11-B.
Defendants have adduced no facts to controvert the showing that votes
cast for Shannon in the Whitestown Town Supervisor race were not counted.
Accordingly, there is
no genuine issue of material fact. Plaintiffs' right to vote and
have their votes counted was violated, and they are entitled to judgment
as a matter of law.
A party seeking injunctive relief must establish the inadequacy of any
remedy at law and irreparable harm. Northern California Power Agency v.
Grace Geothermal Corp., 469 U.S. 1306, 1307, 105 S.Ct. 459, 460 (1984).
Any remedy at law, which would provide compensatory damages as relief,
would be inadequate. See Shannon, 2003 WL 23024397, at *8 (discussing the
harms "that cannot be recompensed"). In fact, plaintiffs do not even seek
compensatory damages in this action. (See Compl.) Further, it has been
established that the potentially available state law remedy is not
adequate nor fair. See Shannon, 2003 WL 23024397, at *5-7.
A violation of constitutional rights constitutes irreparable injury for
the purpose of injunctive relief. See Manhattan State Citizens' Group.
Inc. v. Bass, 524 F. Supp. 1270, 1275 (S.D.N.Y. 1981). The undisputed
facts establish that votes (at least four of which were plaintiffs') cast
in Shannon's favor on Voting Machine No. 118408 were not counted, thereby
violating rights guaranteed to plaintiffs by the United States
Thus, plaintiffs have established their entitlement to permanent
injunctive relief, by demonstrating the inadequacy of a remedy at law and
irreparable harm. See Northern California Power Agency, 469 U.S. at
1307, 105 S.Ct. at 460. Determination must now be made as to the
appropriate scope of the injunction.
As noted, there were potentially 139 uncounted votes on Voting Machine
No. 118408. The conclusive results of the machine test show that, with
respect to that 139, either a vote was cast for Shannon on line 11-B, or
the voter elected not to participate in
voting in the Town Supervisor race. In District 14, the other voting
machine, which was situated in the same room of the same voting location
as Machine No. 118408, registered a non-participation rate of 1.49% in
the Town Supervisor race. Applying that non-participation rate of 1.49%
against the 295 voters on Machine No. 118408 yields 5 non-participating
voters in the Town Supervisor race. Thus, 134 citizens of Whitestown, who
took the time and effort to come to the polls, were denied their right to
vote and to have their vote counted for Shannon.
Adjusting the machine-counted votes to include the 134 uncounted votes
on line 11-B results in a total vote count of 3,045 (2,911 plus 134) for
Shannon and 2,936 for Jacobowitz.*fn3 As has been demonstrated, no
additional investigation or fact-finding is necessary to reach the
conclusion that Shannon was the true winner of the greatest number of
votes in the election for Town Supervisor in the Town of Whitestown. On
November 4, 2003, the voters of Whitestown elected Matthew Shannon to be
their Town Supervisor for a two-year term to commence on January 1, 2004.
He won the election by 109 votes.
Accordingly, the appropriate remedy is to direct the Board of Elections
to certify Shannon as the winner of the greatest number of votes in the
November 2003 election, with proceedings thereafter to proceed pursuant
to the New York Election Law. See N.Y. Elec. L. § 9-218 (McKinney 1998)
(providing procedure by which Board of Elections makes a certified
statement of election results pursuant to a court order); see, e.g.,
Reynolds, 377 U.S. at 586-87, 84 S.Ct. at 1394 (discussing with approval
the lower court's injunction ordering a state legislature to effectuate
an apportionment plan fashioned by the court); Baker v. Carr, 369 U.S. 186,
250, 82 S.Ct. 691, 727 (1962) (Douglas, J., concurring) (stating, after
discussing federal protection of voting rights, "any relief accorded can
be fashioned in the light of wellknown principles of equity"); see also
Lehner, 339 F. Supp. at 313 (noting that the court has power to order a
new election in appropriate circumstances); Ellis v. Eaton, 143 Misc.2d 816,
820, 822 (N.Y.Sup.Ct. 1988) (crediting the affidavits of voters, then
declaring the true winner of the election at issue), aff'd. 154 A.D.2d 894
(N.Y. App. Div. 4th Dep't 1989).*fn4
Plaintiffs have no adequate and fair state law remedy with which to
vindicate the violation of their right to vote. Thus, their
constitutional claim is cognizable in federal court, and a federal remedy
is available upon proving their claim. The undisputed facts demonstrate
that plaintiffs' right to vote was violated. No genuine issue of fact
remains for trial, and plaintiffs are entitled to judgment as a matter of
law on their deprivation of their
constitutional right to vote without due process of law claim. Further,
plaintiffs have established inadequacy of any remedy at law and
irreparable harm, entitling them to injunctive relief. The most
appropriate and fair remedy is to direct the Board of Elections to certify
a result that reflects the votes actually cast in the election.
Accordingly, it is
1. Defendant Oneida County Board of Elections is directed to
immediately prepare and transmit a certified statement of election
results reflecting the following vote count: 3,045 for Matthew Shannon
and 2,936 for David Jacobowitz; declaring that Matthew Shannon was the
winner of the greatest number of votes in the November 4, 2003, election
for Town Supervisor of the Town of Whitestown; and declaring that Matthew
Shannon was duly elected to the office of Town Supervisor of the Town of
2. After the filing of the Certification by the Board of Elections,
proceedings shall thereafter proceed pursuant to New York Election Law;
3. Defendant David Jacobowitz is permanently enjoined from assuming the
office of Town Supervisor of the Town of Whitestown as a result of the
election of November 4, 2003.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.