ALBANY – The Appellate Division of State Supreme Court ruled 5-0 on Thursday, Aug. 17 to uphold a July 7 ruling by Judge Michael Mackey that restored enough petition signatures for a Bethlehem Town Board candidate to appear on the November ballot.
The Albany County Board of Elections filed an appeal of Mackey’s ruling on the grounds that candidate Kellin Rowlands’ attorney, Matt Clyne, submitted evidence in an improper way by consolidating the challenges to the BOE ruling on 28 individual signatures in one Excel spreadsheet instead of submitting them separately.
“Respondents argue that (the) Supreme Court should have dismissed the preceding due to the validating petition’s lack of particularity,” the appeal decision stated. “We disagree.”
The BOE also said that Mackey erred in allowing affidavits of those who witnessed the signing of the petitions as evidence they were valid. The Appellate decision dismissed that and said that, in addition, the BOE had the opportunity to bring the actual signers into court to contest the affidavits, but they did not.
The appellate decision also upheld Mackey’s decision to review and validate 15 other signatures, which gave Rowlands 20 more than he needed.
“Thus, even if the affidavits had not been admitted into evidence, petitioner would have established that the nominating petition is valid,” the justices wrote.
Rowlands will join Democrats Joyce Becker and Tom Schnurr and Republican Theresa O’Neil on the ballot on Nov. 7.
“The Board (of Elections) is disappointed by the decision, but we will continue to abide by the order of the court,” attorney Adam Fusco, who represented the BOE said.
Both Clyne and Fusco said that any further appeal is unlikely.
The history of the case
Mackey’s July 7 decision and order restored Rowlands to the ballot as a candidate for the Uniting Bethlehem party after he was removed by the Board of Elections on June 14.
The removal was initiated based on objections filed on June 5 by Bethlehem resident Jeff Baker for 256 of the 1,078 petition signatures submitted by Rowlands on May 26. Baker is a member of the Bethlehem Democratic Committee and serves as its 2nd Vice Chair.
According to the decision, “Baker alleged that certain line-by-line signatures were … illegible, did not contain the first name of the individual who allegedly signed the petition, were printed, or otherwise could not be matched to voter registration.”
In its review of Baker’s objections, the board of elections agreed with Baker, but did reduce the number of invalid signatures to 156 and conceded the board miscalculated the number of signatures by one, leaving Rowlands six signatures short of the required number of 928 needed to be on the ballot.
Rowlands hired Clyne to review the objections and represent him in the proceedings. Clyne is a former Albany County Board of Elections Commissioner and the current Bethlehem Conservative Party Chairman who is very familiar with objections to petition signatures.
After the BOE made its final determination, Clyne filed with the court to review the case and provided evidence the signatures were valid.
“It is really hard to compare signatures [on petitions] to those on file,” Clyne said. “Lots of the signatures on file are coming from DMV or other sources and are not of good quality.”
Clyne explained that the use of digital recording is not the same as a “wet ink” signature and that people’s signature may also change over time or because the method by which they are recorded is different.
At the Supreme Court’s evidentiary hearing on June 27, Clyne provided, and the court accepted, evidence through witnesses and affidavits that supported the signatures of 10 people. In addition, Mackey reviewed the signature comparisons provided by the BOE, himself and validated an additional 15 signatures.
“The court has compared the signatures of the [15 voters] with the signature cards on file with the Board and finds that they substantially compare and are valid,” he wrote in the ruling.
The decision orders the BOE to put Rowlands on the ballot, but the BOE appealed the decision.
“The Board of Elections is not made up of Dems,” Baker said. “This is a rare opportunity where both sides, Dems and Republicans, came together. Both sides had problems with [Rowlands] petitions.”
The end result is Rowlands had 20 valid signatures beyond the requirement.
