Updated: Oct 27, 2022
This past spring in March of 2022, I ran in the Primary for the NYS Assembly.
I joined a petition team to get my name on the ballot. That team had an election consultant and I was not in the position to supervise their petition drive.
Our petition ended up being challenged and the challenger claimed that I had only 225 valid signatures. I needed 500.
The challenge went on to the Board of Elections (BOE), but their report stated that I had 380 valid signatures, an improvement over the objector but still 120 short of qualification. That report was sent to me from the BOE on April 23 on a Saturday via email.
We were given a chance to rebut that report to the BOE on the following Monday the 25th, but we couldn’t start until after waiting to get a copy of the objection report and then to research the voter records of roughly 1,300 signatures to see if they qualify. Once we were done with the research, the rebuttal form of nearly 200 pages had to be scanned and sent by email via a pdf file to the BOE, all by 3 PM. I wasn’t able to do it and I scanned it over the next day before 12 pm.
Some of my rebuttals, by referencing the signature’s Voting Identification Number (VIN) showed that voter signatures were really registered when the BOE had classified them as unregistered. That was because the BOE has problem software and sometimes when doing a voter record search it may not show up and it must be retrieved another way. Other rebuttals could show that the objector and the BOE did not connect the signature with the correct VIN.
But sworn affidavits from those who collected the signatures, called subscribing witnesses, to explain deficiencies in their statements, were impossible to get to the BOE by their ridiculous deadline. Examples of such deficiencies were where a witness had just moved and wrote down on the witness statement their new address which wasn’t registered yet or if a witness wrote down a temporary address that they are not registered at but are registered with their regular address. But those constitute eligible witnesses when the deficiency is explained. Also, the BOE sometimes erroneously strikes the whole page of a witness if the witness miscounts the total on that page but that is not the law. Sometimes the BOE even miscounts the total themselves.
For a remedy to these challenges when it can not be done at the BOE, a case is filed with the NY State Supreme court. So I hired a lawyer to “validate” my petitions. Subsequently, I received notice that my political opponent filed a case in court to “invalidate” my petitions. Election law requires that you file a court case no later than 14 days after the challenge was filed with the BOE which means that at the date of filing neither side knows yet of the BOE’s ruling and in who’s favor it will be.
So both cases were combined by the court and on April 25th, yes, the Monday that I was supposed to be at the BOE tracking all of 1,300 signatures and filling out my rebuttal report, I had to attend a virtual hearing for the court at 9:30 AM. And of course that’s part of the reason that I couldn’t finish the rebuttal report by 3 pm.
My lawyer couldn’t represent me in that hearing because he had an overload of cases but he gave me the number of his acquaintance, Bernard Mitchel Alter (Mitch), who could take on my case. On Tuesday the 26th, the BOE had not accepted my rebuttal report because it was filed after their Monday 3 pm deadline and I was deemed off the ballot. They gave their ruling on a virtual hearing which I was watching and thought that I could be a part of but I couldn’t even be heard because the BOE had given me the wrong link and the hearing officials didn’t see me in the “waiting room”.
Mitch joined me on a court zoom meeting the following day Wednesday, the 27th. I told the judge that I am hiring him to be my lawyer but that we hadn’t signed the retainer yet. But the Judge on the case, Tracy Catapano Fox did speak to Mitch as my attorney and I’ll refer to that later on. The judge assigned us to come to physical court the very next day, Thursday, April 28, which was a full 2 months before the Primary day of June 28.
The next day as we appear in court, Mitch asks the judge for an adjournment because he was on my case for just one day and he didn’t yet have certified copies of the registration records needed as evidence. Nor had he submitted the “bill of particulars” meaning the nature of the evidence to the opposing side, that would have specified getting subpoenaed certified registration records from the BOE to prove our case. Needles to say that election lawyers during petition submission times are swamped with election work and that would have explained why he hadn’t submitted the paperwork.
The judge, Tracy Fox, questions Mitch why he doesn’t have the certified copies because, as she states, the case was filed 10 days before. She says “we put the case on yesterday for another virtual conference to see the status of the case”. Mitch explains that he was on my case for less than a full day and references a precedent case, Hollywood vs Layton, where the plaintiff was allowed 3 days from the BOE’s ruling to submit to the other side the objections i.e. the bill of particulars and based on that we would have had an additional day to file those papers.
Then attorney Michael Reich, widely known as one of the lawyers working for the Democratic Party for Queens County and the lawyer for my political opponent, objects to say that our whole case should be dismissed because he hadn’t received from Mitch certain basic paperwork such as a “notice of appearance”, and an “affidavit of service” and that it be dismissed with prejudice, meaning that it couldn’t be filed again.
Mitch argues that the notice of appearance - meaning, that the other side would be apprised of my lawyer’s appearance - was known through the zoom from the day before and Reich therefore knew to come to court for the case. Mitch said that Reich’s appearance constituted a waiver for the need of a formal notice. Mitch further argues that the absence of the affidavit of service should have been objected to by Reich when we were in the virtual conference since even my first lawyer would have filed that (later to find out that my first attorney really did file it, but according to Reich, applied it to a wrong folder). So Reich answers that on the virtual meeting he couldn’t have objected to Mitch because at that point Mitch was not officially my attorney until the next say when “Mr Green” shows up (meaning the money that would be exchanged). But that wasn’t the approach of the Judge towards Mitch’s appearance, as I noted before.
Now I am shocked to hear the minute we walk into court, after $20k that I will have spent and weeks of petitioning for my campaign, that they should so casually and senselessly dismiss my case. But to my astonishment Judge Fox grants Reich the dismissal of my “validation” case that he demanded but she goes on to say that she will not grant him that dismissal with prejudice, meaning that it could be filed again. But Reich persists on to say that his “invalidation” case should then be granted since we “couldn’t go forward” with the certified copies.
Mitch argues that there is no purpose to grant the invalidation case because “it’s moot” because “Fuchs is already off the ballot” from the ruling of the BOE. The point of the court case was to supersede and correct the ruling of the BOE if that’s what the evidence showed. However, Judge Fox takes that argument to support the motion to affirm Reich’s case of invalidation because there was “no opposition” - no evidence to prove that I should be on the ballot, acting as if adjournment was never requested to acquire (through subpoena) the certified registration cards. But she goes on to say to our side “but that does not preclude you from proceeding under the statue”, meaning we can retry our case.
Subsequently the judge will go on to file 2 reports for the 2 cases - for the invalidate and for the validate. She dismisses the validate for procedural deficiencies i.e. not filing a notice of appearance and affidavit of service upon the other side and grants the Reich’s invalidate case on the merits, to invalidate my petition because we hadn’t produced the certified records, (again I state) ignoring our legitimate request for a first appearance postponement!
So besides all this irrational reasoning, this is really an inherent contradiction because how does the judge grant my opponent’s case to invalidate and then leave open that we can retry the validate case? If we prevail with our validate case wouldn’t there be opposing cases, the invalidate and the validate, both granted by the court?
Nevertheless, Mitch proceeds to open a new case to validate where all the missing paperwork from the 1st case, including a bill of particulars to subpoena the BOE for the certified records along with my original petition and my rebuttal form with my notations to the BOE, is presented to the other side.
The new case falls on the docket of Judge Robert Colares. Michael Reich then proceeds to argue that Colares should not hear this new case because the invalidation case was granted and I was deemed to be off the ballot on the merits. Mitch counters that the validate case was dismissed procedurally because Fox stated that “that does not preclude you from proceeding under the statue” and that we can proceed with our case.
Judge Colares then takes time to read the reports by Judge Fox. He rules that since Fox granted the invalidate case on the merits because we “didn’t have the certified registration cards" the proceeding of our validate case should not go forward because, he reasons, if we couldn’t produce the certified registration cards to oppose the invalidate case that means that we didn’t have the registration cards to validate our case, because he says the issues and evidence are the same. This is ridiculous reasoning for the following reasons.
Judge Colares is playing a game here because even though the evidence is the same the issue is not the same. Fox dismissed the validate case only procedurally and not on the merits so how can Colares then say that Fox’s ruling is such that we could proceed with it as a sterile action only to be shot down once it is revived? If the prior ruling of the invalidate case is dominant over the validate case it was totally meaningless of Fox to say that we could revive the validate case! Judge Colares refers often to the latin term of Res Judicata which means “a matter that has been adjudicated by a competent court and may not be pursued further by the same parties”. Colares stresses in his ruling that we had a “full and fair trial” and our petition was deemed to be insufficient because we couldn’t produce the certified copies. Full and fair trial??? Maybe it would qualify as that in a Russian court.
But even Colares knows that what he is saying is specious because we didn’t say that we permanently don’t have the certified copies, we just asked for an adjournment to get them. So he explains that, by saying that with the constraints of elections, there was no more time to extend to allow for the obtaining of the certified copies. Constraints of elections? This was a full 2 months before the primary!
What about Mitch’s reference to Hollywood vs Layton that allowed 3 days from the BOE ruling to obtain the bill of particulars? Maybe that is why even Judge Fox did allow the validate case to proceed. Perhaps then with 2 opposing rulings she could have ruled in favor of the one that prevails over the other. So by what authority does Colares have to disregard her green-lighting of the validate case? It should not be subservient to the invalidate case.
So we appeal Colares’ ruling and the answer comes back that our case is denied but for a different reason that Colares provided. That means that Judge Colares’ reason for dismissing our case was WRONG! The appellate judges are: Colleen Duffy, Francesca Connolly, Linda Christopher and William Ford. They write:
“We affirm (Colares’ denial) for different reasons from those relied upon by the Supreme Court (Colares).”
I didn’t even know that such a thing is permissible and it shouldn’t be, because the purpose of an appeal is to appeal the prior ruling. The reasoning of the prior ruling should stand up to scrutiny and if it doesn’t, the ruling should be discarded.
The appeals ruling goes on to say that our “supporting exhibits… were not sufficiently particularized to support Fuch’s contention that the BOE improperly invalidated his petition”. But in our exhibits we did submit the rebuttal on the very same form that we received with the original objection abbreviations from the objector and the BOE’s circling of those abbreviations and their reference to a VIN. Our rebuttal on the form was that of a corrected VIN or VIN provided where the BOE had not provided one, along with notes that would reference witness explanations to be followed up in court, next to each signature we felt was improperly invalidated. But of course the only way to explain with specificity how they were wrong is by producing, through a subpoena, the certified registration records and affidavits of witnesses which were noted in our bill of particulars. The rub here is that we were precluded from showing that, by Colares, the 2nd judge, because he wouldn’t let it proceed based on his interpretation of res judicata that he applied incorrectly to this case.
So we appeal again, the very last appeal possible, upstate NY in Albany, and this time the verdict comes back with one word: Denied.
The upshot of this proceeding is that the court exaggerated any flaw they could, to render a dismissal of my case.
Not to allow a virtual hearing notice of appearance to at least temporarily stand in for a formal notice.
To have allowed the excuse from my opponent’s attorney for not stating an objection at the virtual hearing that he hadn’t had (seen) the affidavit of service, because he didn’t consider the attorney present with me to be my attorney of record when the judge did recognize my attorney to be that.
Not to allow a first time postponement for an extra day to allow for the certified records subpoena to be submitted to the court, as per my attorney’s argument precedent of Hollywood vs. Layton.
To render a ruling for the other side when it was the ruling of the BOE already and therefore at that moment essentially moot and of no consequence to the court other than to be held up as a bogus res judicata argument (not to relitigate a previously issue of a “full and fair trial”) for the time we open up our case again.
Not to hold off ruling for either side until we had a chance to refile our case which in fact this very judge had authorized us to do.
For the appellate judges to fabricate the idea that we didn’t “particularize our responses” on the rebuttal form when we referenced a correct VIN of the registration card which is what the BOE had done to prove their case, aside from circling the abbreviated deficiency code of the objector. So by our referencing a different VIN it would have automatically rebutted the deficiency that the BOE had designated by directing them to the proper registration card, which ultimately we were not permitted the extra day to submit to the court. That’s all that was needed.
That the appellate judges would not have permitted us a 2nd chance to cure that lack of particularity, even if true, by allowing us to perfect the rebuttal according to their specifications.
The idea that the 2nd appellate court does not feel obligated to explain their ruling.
All of these things point to corruption of the law in the sense that true justice was not sought in this case, but rather a draconian proceeding which denies justice to a candidate who legitimately should be heard to validate his petitions. This can only be practiced in the shadows when the populace doesn’t know of this ugly side of the election process. Sadly too many people are not actively involved in voting but for those who are, this knowledge of denied ballot access would surely make a difference. These crooked proceedings, devoid of true justice, have to be made public so that those who do care can channel their energy to demand a change.