Saturday, August 13, 2011

More About That Legal Battle

If you're still confused about the legal drama played out recently between the Republicans and Democrats, this letter, written by Edward Reisner, the attorney who represented Sarah Sterling in the lawsuit brought by the Republicans to invalidate the Democrats' opportunity to ballot petitions, offers some clarity.
The attorney for the Republican Party claims that their unsuccessful attempt to prevent the Democratic voters of Hudson from the opportunity to select a candidate for mayor was due to the “evasion of the respondents that cost them the suit.” In fact, the Republican defeat was not caused by any actions taken by the Democrats. Had the Court overlooked the fundamental errors in the Republicans’ defective papers, it still would have reached the same result because the Republican objections to most of the signatures on the Opportunity to Ballot Petitions were wrong as a matter of law.
The Democrats submitted Opportunity to Ballot Petitions with 148 signatures of people wanting the opportunity to write in the name of a candidate for mayor in the Democratic primary election to be held on September 13, 2011. Only 92 valid signatures are required to grant the Petition. The Republicans challenged almost all of the signatures on the ground that the signers had previously signed a Petition (which was subsequently held to be invalid for the technical reason that the Democrats failed to file a necessary document) designating Nicholas Haddad as the Democratic candidate for mayor. Virginia Martin of the Board of Elections correctly rejected the Republican challenges because the law is clear that, if a voter signs a designating petition that is declared invalid for a technical reason, that voter is allowed to later sign a petition seeking the opportunity to write in a candidate’s name in a primary election.

The Republicans based their challenge on an incorrect reading of the law. Had the Court reached the merits of their lawsuit, it would have held that the cases relied on by the Republicans dealt with different situations that had nothing to do with the validity of the Opportunity to Ballot Petition that they were challenging. As the courts that have addressed similar situations have held, if they accepted the arguments that the Republicans are making, they would be disenfranchising a significant number of voters and depriving them of the right to select the candidate of their choice. Although the Republicans lost their lawsuit because of their own procedural errors, their attempt to deprive Hudson Democrats of the right to write in Nicholas Haddad for mayor at the primary would have been rejected by the Court, even if they hadn’t filed defective papers. In any event, justice was served.


  1. Ken Dow, who represented Bill Hughes and me, posted the following statement on the Register Star’s website in response to comments by the Republicans’ attorney Bill Better as reported in the August 9th edition of the paper:

    "It is disappointing, to say the least, to see that attorney Bill Better appears to have blamed the outcome of this matter on anyone’s alleged evasion of service. If he in fact said that, he is flat out wrong.

    "What actually happened is this: there were two distinct lawsuits involved. If Mr. Better’s agents had found and served everyone at the first moment that they attempted to do so, the results in both the first case and the second case would have been identical to what they were. The decision in the first one had nothing to do with service. The second one did involve service, but it was dismissed because Mr. Better’s side did not even begin to attempt to serve anyone until after the legal deadline to do so.

    "Mr. Better filed the first case on Wednesday, August 3rd. It was heard in court on Thursday, August 4. The court threw the case out because Mr. Better’s lawsuit sought one of two things: either a court order ordering the Board of Elections “to rule on the general and specific objections” filed against the petition, “OR, IN THE ALTERNATIVE,” a court order ordering the invalidation of the petition. When it was demonstrated that the Board of Elections had ruled earlier in the day on the objections, the court recognized that Mr. Better’s side had obtained the relief sought by their lawsuit, so the lawsuit was moot and could not proceed further. It was then dismissed. Whether or not everyone was properly served was irrelevant to this determination and was not in any way a part of the decision in the case. The first case was over.

    "Mr. Better’s side then raced to begin a whole new lawsuit, distinct from the first. They admittedly did not even begin to try to serve anyone in the new lawsuit until Friday, Aug. 5, believing that they had until Aug. 7 to do so. They were wrong. Under the Election Law, any action in this situation had to be served no later than Aug. 4. Because, in the second case, they did not even try to serve the parties until after the legal deadline, their case was again thrown out.

    "While Mr. Better’s side may have had a hard time locating in person everyone they needed to in the 24 hours or so that they gave themselves to find them, that had no bearing on the resolution of either case. (I should also point out that their tight time frame was also their own choice. Other court decisions have repeatedly told challengers that they should not wait for a Board of Elections ruling before starting a lawsuit, but need to act pre-emptively. Mr. Better’s side waited until the last moment at their own risk.) Mr. Better’s side lost the cases because they made fatal errors, entirely of their own making, in their attempts to bring these two lawsuits."

  2. Carole, Virginia, Ed and Ken: thanks for posting these clarifications. I hope that the Register-Star publishes both letters in their paper so that their subscribers have a better understanding of the lawsuit, of election law and of their rights as voters, regardless of party affiliation.