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SHANNON v. JACOBOWITZ

January 27, 2004.

MATTHEW SHANNON; JOSEPHINE ALEXANDER; HENRY A. FIEBIGER; SANDRA R. FIEBIGER; A. PAUL HERUBIN; and PATRICK GUBBINS, Plaintiffs,
v.
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 INJUNCTION
I. INTRODUCTION
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.

 II. FACTS

  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. Voting Machine Page 3 No. 118408 registered one-half of one vote on line 11-B (Shannon's Democratic line), while multiple votes were registered on all other lines.

  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.

 III. DISCUSSION

  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). Facts, Page 4 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 Page 5 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 obligatory).*fn2

  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 ...


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