Fallsburg Election Results Remain In Question As Court Battle Continues
Updated: Jan 7, 2022
Lawyers for Katherine Jane Rappaport (Preserve Sullivan), who is challenging Democrat incumbent Steve Vegliante for Town of Fallsburg supervisor, today filed a memorandum of law in support of summary judgment in their ongoing legal battle in State Supreme Court/Sullivan County.
Acting State Supreme Court Justice Mark Meddaugh is the presiding judge in the case that also involves the outcome of two town board seats.
When the polls closed on November 2, Vegliante was leading by 406 votes. But after initial recanvassing at the Board of Elections a little more than one week ago, that lead was reduced to between 96 and 100 votes according to lawyers for both sides in open court last Tuesday.
Following the canvass of ballots on November 29 and November 30, the vote tallies have tightened considerably with 402 ballots set aside unopened and not canvassed due to Petitioner's objections, according to the Rappaport legal filing.
"Of the 402 ballots set aside, the Board of Elections has voted unanimously to reject the objection to 395 of said objections," Rappaport's team said. "The two commissioners split their votes on the remaining seven ballots. "
Vegliante has argued that many of those who voted for his opponent do not live in Sullivan and his lawyers have questioned the validity of their signatures. Vegliante's team told the Court last week it was planning to retain a handwriting expert to compare signatures in Board of Elections' poll books vs signatures on local election ballots. Last Tuesday, Vegliante's lawyer requested that the poll books be made available for inspection and the judge said from the bench that he would direct that it happen.
But there was never any written order from Meddaugh on that issue.
Rappaport's legal team said in its filing today:
"As previously discussed, absentee ballots enjoy a presumption of validity. A core function of the Board of Elections is to scrupulously determine voter eligibility and enforce residency requirements under the Election Law. The New York State Board of Elections issues signature matching and verification guidance for all County Boards of Election to follow (Exhibit G). The guidance states that signatures can appear differently each time an individual signs something and that signatures shall be presumed to be genuine. After several reviews if a signature has been determined by senior staff within the Board of Elections a cure notice is to be issued to the individual to correct any perceived differences in the signatures."
Meanwhile, Thomas J. Cawley, the deputy county attorney representing the Board of Elections, lashed out at Vegliante and his legal team in a memo to Meddaugh filed today.
"The Court (last Tuesday) did not direct the Board of Elections to provide Mr. Vegliante with electronic copies of any election records," Cawley said. "The Court has consistently held that the Parties are entitled to.review the elections records in the presence of the Board of Elections officials but they are not entitled to copies of those records. No representative of Mr. Vegliante had contacted the Board of Elections in regard to the poll books until 4:00PM on December 3, 2021. That three-day delay is entirely the fault of the Petitioner. The Board of Elections has fully complied with the Court's directives throughout this proceeding and any assertion to the contrary is disingenuous and self-serving. The Board of Elections requests that the Court deny the letter application and proceed forward with the Motion practice under the time frames previously directed by the Court."
Rappaport's motion for summary judgment also said:
"The election day results presented a race that was too close to call considering the number of absentee ballots that had been submitted. An initial canvassing of ballots, pursuant to Election Law §9-209, began on November 29, 2021 with Petitioner raising four main types of assertions in an attempt to establish challenges to various ballots: (1) dual residency, approximately 151 challenges (Exhibit A); (2) insufficient residential address, approximately 89 challenges (Exhibit B); (3) untimely application, apprexirnately 39 challenges (Exhibit C); and (4) signature match failure, approximately 203 challenges (Exhibit D). Some ballots have more than one objection which is why the total of all four categories exceeds the total number of objections.
Regarding Vegliante's challenges on dual residency, Rappaport's lawyers said:
"Many individuals throughout the State maintain more than one property or residence and there is nothing inherently unscrupulous or dubious about this practice. For this reason, the issue of choice amongst residences for dual residencies enjoys a broad interpretation of validity. "
The SullivanTimes late Monday has reached out to Vegliante for comment on the motion and Cawley's memo.
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