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.
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.
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 ...