In Reese v. Board of Elections, questions of Republican judge’s political bias loom over suspect ruling

A recent ruling in an election law case made by local State Supreme Court Judge Christopher Burns is raising eyebrows in the legal community and is raising questions about his partiality in the political community.  Judge Burns has served on the State Supreme Court since 1996, and on Town courts since 1984.  Burns’ current fourteen-year term expires in 2023, raising suspicions that political considers are coloring his legal rulings.

The two principal witnesses in the case of Reese v. Erie County Board of Elections were its Commissioners: Democrat Jeremy Zellner and Republican Ralph Mohr.  Immediately prior to those witnesses taking the stand, Burns refused to hear their testimony and abruptly ended the hearing.  Four days later — without hearing a single witness in the case — Burns issued a scandalously unresponsive ruling that has shocked other judges on the bench for its brazenness.

If they had testified, Zellner and Mohr would have likely been forced to admit and to detail — publicly and under oath — that the Board of Elections’ has been engaged in a longstanding and well-known practice of using Board employees, to object to the nominating petitions of candidates who are not endorsed by his or her party chairman.

Former Board of Elections employees explain to The Chronicle that it is common practice for Democratic Party patronage appointees to use public time — and government resources at the Board after hours — to compile objections to opposition candidates, in wide-ranging efforts to restrict ballot access.

The practice — architected by the Election Commissioners — effectively gives patronage appointees of each Party’s chairman the ability to remove qualified candidates from the ballot in a complicated web of election law trivialities.

Why wouldn’t a longtime Judge want to expose such a corrupt practice and affirm the petitioners’ right to ballot access so that he could stand for election by the voters?  A different judge, undoubtedly, could have issued a precedent-setting ruling that begins to fix what’s broken in our democratic process.

Zellner serves both as Elections Commissioner and Erie County Democratic Party Chairman.  In the 8th Judicial District of New York, the leaders of Erie County’s Republican and Democratic Parties have engaged in a longstanding practice of cross-endorsing the same four candidates: two Democrats and two Republicans, privately selected ahead of a judicial nominating convention, where Erie County’s weighted vote is determinative.

Experts in the legal community are pointing to the ruling as a prime example of how local political bosses have been able to corrupt the area’s jurisprudence.  By restricting ballot access, through their practice of cross-endorsement, the Erie County Party Chairmen essentially select local State Supreme Court judges.

Burns’ ruling, they say, wreaks of politics. The particulars of Reese v. Board of Elections make Burns’ ruling even more egregious.

Peter A. Reese‘s nominating petitions to challenge incumbent Democrat County Executive Mark Poloncarz (Zellner’s chief political compatriot), were filed and attested to by Lynn Dearmyer, a Democrat Party official from Cheektowaga who lost a 2013 race for Erie County Legislature.  But Dearmeyer never logged into the Board to access its signature verification database, despite filing a government document that attested that some 400 signatures did not match the voter signatures on file at the Board.

That means that Dearmyer either had access to the Board’s database after hours, that Board employees themselves compiled the specific objections, or that Democratic Party operatives have remote access to the Board’s voter database.  Each of those scenarios would be illegal under state and federal law. Burns refused to hear Dearmeyer’s witness testimony so that the attorneys could discover the exact process in which her filed objections were compiled.

Burns’s ruling failed to speak to that question.  His ruling also failed to speak to several other substantial questions raised in Reese v. Board of Elections — like defining what constitutes a specific objection in the election law, a question that has not been addressed in any standing case law.  Burns’ ruling suggests that anyone can file an unlimited number of unfounded, bad-faith, or superfluous objections to nominating petitions without consequence.

Jeremy Toth, the County Attorney in the Poloncarz administration and his longstanding political appointee, was improperly allowed to attest under oath to facts that he did not know.  Reese, who represented himself with co-counsel Jim Ostrowski, argued that the verification presented to the Court should have complied with Civil Practice Law Rule 3021:

REESE: Mr. Toth has failed to state why the verification is not being done by a party as required by CPLR 3021. Mr. Toth made theverification without being, quote, acquainted with the facts per CPLR — per the CPLR, Your Honor. Mr. Toth purports to verify on information and belief based onreview of Board records that are not specified. 

However, there are not factual allegations made on information and belief so it — the — the verification makes no sense. Mr. Toth can’t possibly know the facts that he alleges. For instance, he claims that none of these objections were propounded at the Board. He’s not at the Board. He’s with the County Attorney’s Office on the sixteenth floor as far as I know. 

I was rather stunned to have him make the verification as a non-party. I believe that his answer in this, his verified answer is defective as a matter of law and we received nothing so far that would correct that in any manner, shape or form.

Burns accepted Toth’s verification during the hearing.

REESE:  Your Honor, I’d also like to moveat this point for a summary judgment against both theobjector and the Board based on the implied admission that the purported specific objections which were made, were made without examining actual records of the Boardwhich is a violation of the intent of the election law. In addition to that, Your Honor, they have failed to deny paragraphs twenty-eight, twenty-nine and thirty ofour petition which basically indicates that objections made without access to Board records are intrinsically defective. It makes no sense. If you object to someone’s signature without looking at it, all you’re doing is burdening the people and whoever is acandidate with doing your job for you. And we’ll get into this further, but we literally had a snowstorm of objections here, many of which we’ll demonstrate via sample and a witness are essentially frivolous. 

There was no problem whatsoever finding these people. Youhave a petition with a signature and an address by it. Just because you can’t read the squiggle signature ofsomeone doesn’t mean that’s not their signature. And we’ll show you a number of such, you know, signatures. And there were situations where four, five and six objections were filed to this and we found those voter salmost instantaneously, and the Board did too. 

Furthermore, to make them without — to make such objections is essentially turning the statutory scheme upside down. Our signatures are valid. I submitted twenty-one sixty-four. If there were no objections,there were no objector, I’m on the ballot. Each andevery one of my signatures is presumed valid. It’s upto them to prove that they’re not good, not me. 

They’re essentially attempting to reverse the burden of proof here. This is totally unacceptable. It makes nosense whatsoever. It puts an undue burden on me as well as the people to clean up this junk and shovel through stuff that as far as we know could have been generated by a random number generator.

THE COURT: All right. Hang on. Response sofar.

MS. KULPIT: Judge, we believe that thepetition, our verified response is absolutely sufficient. There’s nothing in the CPLR or the election law that requires somebody to go and review Board signatures. We don’t think that —

THE COURT: Well, your — part of your objection is that the signature on the petition doesn’t match the one that’s registered, right?

MS. KULPIT: Correct, Your Honor.

Burns refused to travel to the Board of Elections to inspect the voter database to understand the logistics of its access, which is key to understanding the misuse of public resources.

The full transcript of the hearing can be read here.