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Second home owner votes under scrutiny
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| Claverack supervisor candidate Robin Andrews looks on as Kathleen O'Keefe and Karen Feldman look over an absentee voter application during Friday’s count. (Robert Ragaini/Hudson-Catskill Newspapers) |
GOP sends investigators to NYC to confirm residency status of some voters
By Jamie Larson
Over the past week more than 1,000 absentee ballots have been counted by the Columbia County Board of Elections but the final outcome of the Nov. 3 countywide elections is far from being decided.
Of those ballots evaluated, hundreds have had the validity of the voter’s information on the applications, as well as the envelopes holding them, challenged by lawyers hired by the Republican and Democratic parties, and will need to be taken before a county judge on Nov. 30 to decide whether they can be tallied or dismissed.
While the Democrats have challenged a number of ballots for mistakes, omissions on the applications or signature inconsistencies, Republicans have mounted the vast majority of the challenges, and they say they have good reason.
Republicans have been challenging ballots primarily on the basis that the registered Democratic voter has a second home outside of the county that they live in the majority of the time but choose to vote in Columbia County.
While there is legal precedent in election law to uphold the votes of “weekenders”, county Republican Committee Chairman Greg Fingar said they believe they have a good case to throw out the votes.
“We don’t want to deny anyone the right to vote,” Fingar said. “We just want them to vote where they have primary residence.”
“When we object we have a good faith basis they have a second home and it is their primary residence,” Republican lawyer James Walsh said. “Or they have a STAR (School Tax Relief Program) exemption or have a rent controlled apartment.”
Walsh was the lead attorney in Columbia County for Republican James Tedisco when he he made a failed bid to replace U.S. Sen. Kirsten Gillibrand as representative of the 20th District. Tedisco was defeated by now Congressman Scott Murphy. Ballots were challenged for the same reason during that election, which also came down to the absentee count, but Murphy was able to secure a victory before it was necessary to contest the votes in court.
That nearly month long ballot battle cost county taxpayers $100,000 in Board of Elections expenses and employee overtime. The current fight will most likely cost ten’s of thousands of dollars as well.
Fingar said he feels the challenges this time will hold up in court because during the Murphy-Tedisco race lawyers just simply challenged any second home owner. Fingar said this time around the Republicans hired private investigators to go down to New York City and investigate absentee voters’ residency status and they have proof of fraud. He even said it will come out in court that they found people registered to vote in two locations at once.
“We’ve done a great deal more research this time and have targeted individuals.” Fingar said.
The county Board of Supervisors’ chambers, where ballots were being addressed, became tense Friday when the ballot of Daniel Esterman, a village of Philmont resident, was challenged by Walsh.
“I’m right here,” shouted Esterman sitting on the other side of the room. “What’s wrong with it?”
Walsh said he was challenging the qualification of the voter and the veracity of the man’s application. Democratic lawyer Kathleen O’Keefe told the man not to worry and she would be defending his vote in court.
Walsh then challenged Esterman’s wife Victoria Rosenwald’s ballot on the same grounds.
“You just objected to my veracity,” said Rosenwald, who added that she voted over the counter at the BOE office before leaving on vacation. “I don’t like having my veracity challenged.”
Rosenwald stepped out of the room, visibly upset. She said she came Friday because the same thing happened to her during the special congressional race and this time she wanted to be there.
“It’s an insult to me personally,” Rosenwald said. “We actually spend more than 50 percent of our time in Claverack. It’s not against the law to have a second home, we are very fortunate. My husband’s retired and I work part time in the city. They’re denying votes on the slightest pretext. It’s stomach turning.”
Rosenwald also took issue with the way Walsh would repeatedly say “I’ll let them vote,” when passing a ballot he decided not to challenge. “It’s condescending,” she said, “it’s belittling, and it assumes our vote is the choice of the lawyers, when it’s a constitutional right.”
Fingar said the county Republican party has absolutely nothing against second home owners they are just standing up for what’s right.
“We love second home owners,” Fingar said, “but if you declare your residence as somewhere outside of Columbia County that’s where you should vote. What we’re all about is one person one vote.”
To reach reporter Jamie Larson call 518-828-1616, ext. 2269, or e-mail jlarson@registerstar.com.
Of those ballots evaluated, hundreds have had the validity of the voter’s information on the applications, as well as the envelopes holding them, challenged by lawyers hired by the Republican and Democratic parties, and will need to be taken before a county judge on Nov. 30 to decide whether they can be tallied or dismissed.
While the Democrats have challenged a number of ballots for mistakes, omissions on the applications or signature inconsistencies, Republicans have mounted the vast majority of the challenges, and they say they have good reason.
Republicans have been challenging ballots primarily on the basis that the registered Democratic voter has a second home outside of the county that they live in the majority of the time but choose to vote in Columbia County.
While there is legal precedent in election law to uphold the votes of “weekenders”, county Republican Committee Chairman Greg Fingar said they believe they have a good case to throw out the votes.
“We don’t want to deny anyone the right to vote,” Fingar said. “We just want them to vote where they have primary residence.”
“When we object we have a good faith basis they have a second home and it is their primary residence,” Republican lawyer James Walsh said. “Or they have a STAR (School Tax Relief Program) exemption or have a rent controlled apartment.”
Walsh was the lead attorney in Columbia County for Republican James Tedisco when he he made a failed bid to replace U.S. Sen. Kirsten Gillibrand as representative of the 20th District. Tedisco was defeated by now Congressman Scott Murphy. Ballots were challenged for the same reason during that election, which also came down to the absentee count, but Murphy was able to secure a victory before it was necessary to contest the votes in court.
That nearly month long ballot battle cost county taxpayers $100,000 in Board of Elections expenses and employee overtime. The current fight will most likely cost ten’s of thousands of dollars as well.
Fingar said he feels the challenges this time will hold up in court because during the Murphy-Tedisco race lawyers just simply challenged any second home owner. Fingar said this time around the Republicans hired private investigators to go down to New York City and investigate absentee voters’ residency status and they have proof of fraud. He even said it will come out in court that they found people registered to vote in two locations at once.
“We’ve done a great deal more research this time and have targeted individuals.” Fingar said.
The county Board of Supervisors’ chambers, where ballots were being addressed, became tense Friday when the ballot of Daniel Esterman, a village of Philmont resident, was challenged by Walsh.
“I’m right here,” shouted Esterman sitting on the other side of the room. “What’s wrong with it?”
Walsh said he was challenging the qualification of the voter and the veracity of the man’s application. Democratic lawyer Kathleen O’Keefe told the man not to worry and she would be defending his vote in court.
Walsh then challenged Esterman’s wife Victoria Rosenwald’s ballot on the same grounds.
“You just objected to my veracity,” said Rosenwald, who added that she voted over the counter at the BOE office before leaving on vacation. “I don’t like having my veracity challenged.”
Rosenwald stepped out of the room, visibly upset. She said she came Friday because the same thing happened to her during the special congressional race and this time she wanted to be there.
“It’s an insult to me personally,” Rosenwald said. “We actually spend more than 50 percent of our time in Claverack. It’s not against the law to have a second home, we are very fortunate. My husband’s retired and I work part time in the city. They’re denying votes on the slightest pretext. It’s stomach turning.”
Rosenwald also took issue with the way Walsh would repeatedly say “I’ll let them vote,” when passing a ballot he decided not to challenge. “It’s condescending,” she said, “it’s belittling, and it assumes our vote is the choice of the lawyers, when it’s a constitutional right.”
Fingar said the county Republican party has absolutely nothing against second home owners they are just standing up for what’s right.
“We love second home owners,” Fingar said, “but if you declare your residence as somewhere outside of Columbia County that’s where you should vote. What we’re all about is one person one vote.”
To reach reporter Jamie Larson call 518-828-1616, ext. 2269, or e-mail jlarson@registerstar.com.
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The following are comments from the readers. In no way do they represent the view of registerstar.com.
agl120854 wrote on Nov 21, 2009 8:13 PM:
" why are they doing this?
Dual Resident Voting Rights
The key case from New York State’s highest court is Ferguson v. McNab, 60 N.Y.2d 598 (N.Y. 1983), which held that a person having two residences “may choose one to which she has legitimate, significant and continuing attachments as her residence for purposes of the Election Law.”)
A more recent appellate case, Willkie v. Board of Elections,, 55 A.D. 3d 1088, 865 N.Y.S. 2d 739, 2008 NY Slip Op. 08050, held in 2008 that this principle protects typical weekender/second homeowners who work in New York City and choose to register and vote from their country homes.
Lower courts in New York had previously come out the same way on this question:
Gallagher v. Dinkins, 343 N.Y.S.2d 960 (App. Div. 1973) (holding that where an individual has two residences where he maintains significant and legitimate attachments, it is for him to decide which address he considers as his voting address), aff’d, 299 N.E.2d 681 (N.Y. 1973);
Bressler v. Holt-Harris, 330 N.Y.S.2d 565 (App. Div. 1971) (holding that candidate established voting residence in apartment where he had eaten and slept only once in seven years);
Gladwin v. Power, 249 N.Y.S.2d 980 (App. Div. 1964) (holding that candidate established residence in a space she used as an office and “for occasional living”).
Ferguson v. McNab is a binding precedent, and has therefore been followed consistently thereafter:
Geller v. Lasher, 601 N.Y.S.2d 342, 343 (App. Div. 2d Dept. 1993) (upholding residence where candidate and his wife have “intermittently lived at that address”)
Iaboni v. Sunderland, 573 N.Y.S.2d 625, 625 (App. Div. 2d Dept. 1991) "
Dual Resident Voting Rights
The key case from New York State’s highest court is Ferguson v. McNab, 60 N.Y.2d 598 (N.Y. 1983), which held that a person having two residences “may choose one to which she has legitimate, significant and continuing attachments as her residence for purposes of the Election Law.”)
A more recent appellate case, Willkie v. Board of Elections,, 55 A.D. 3d 1088, 865 N.Y.S. 2d 739, 2008 NY Slip Op. 08050, held in 2008 that this principle protects typical weekender/second homeowners who work in New York City and choose to register and vote from their country homes.
Lower courts in New York had previously come out the same way on this question:
Gallagher v. Dinkins, 343 N.Y.S.2d 960 (App. Div. 1973) (holding that where an individual has two residences where he maintains significant and legitimate attachments, it is for him to decide which address he considers as his voting address), aff’d, 299 N.E.2d 681 (N.Y. 1973);
Bressler v. Holt-Harris, 330 N.Y.S.2d 565 (App. Div. 1971) (holding that candidate established voting residence in apartment where he had eaten and slept only once in seven years);
Gladwin v. Power, 249 N.Y.S.2d 980 (App. Div. 1964) (holding that candidate established residence in a space she used as an office and “for occasional living”).
Ferguson v. McNab is a binding precedent, and has therefore been followed consistently thereafter:
Geller v. Lasher, 601 N.Y.S.2d 342, 343 (App. Div. 2d Dept. 1993) (upholding residence where candidate and his wife have “intermittently lived at that address”)
Iaboni v. Sunderland, 573 N.Y.S.2d 625, 625 (App. Div. 2d Dept. 1991) "
agl120854 wrote on Nov 21, 2009 9:41 PM:
" Is there any link between the ad for the Fingar agency on the left of this page and the pro Fingar slant in the article despite clear legal precedent to be able to vote wherever you maintain a residence in NYS. It doesn't need to be a primary residence.
http://www.countryvote.org/dual.html
Take your pick! New Yorkers with more than one home have the right to choose either one of their addresses as the one they will vote from.
The courts have ruled that voters with two homes have the right to choose either one as their residence for voting purposes, as long as they have legitimate, significant and continuing attachments to the one they choose, and don’t vote elsewhere.
To vote in New York State, you must be a U.S. citizen, and you must have been a “resident” of New York State and of the county, city, or village you want to vote in for at least thirty days before that election is held. (You also must not be in jail or on parole for a felony.)
Q: I have a City apartment and a place in the country, too. I love my country home and would spend more time there if I could, but I certainly spend more time in the City than in the country. Can I still choose to vote in the country if I want to?
A: Yes. The relative amounts of time you spend in each place may be important in determining your legal residence for other purposes, your residence for New York election law purposes is your choice to make. You can pick either one of your residences as your voting address, even if it’s not your “primary” residence. "
http://www.countryvote.org/dual.html
Take your pick! New Yorkers with more than one home have the right to choose either one of their addresses as the one they will vote from.
The courts have ruled that voters with two homes have the right to choose either one as their residence for voting purposes, as long as they have legitimate, significant and continuing attachments to the one they choose, and don’t vote elsewhere.
To vote in New York State, you must be a U.S. citizen, and you must have been a “resident” of New York State and of the county, city, or village you want to vote in for at least thirty days before that election is held. (You also must not be in jail or on parole for a felony.)
Q: I have a City apartment and a place in the country, too. I love my country home and would spend more time there if I could, but I certainly spend more time in the City than in the country. Can I still choose to vote in the country if I want to?
A: Yes. The relative amounts of time you spend in each place may be important in determining your legal residence for other purposes, your residence for New York election law purposes is your choice to make. You can pick either one of your residences as your voting address, even if it’s not your “primary” residence. "
OV Observer wrote on Nov 22, 2009 11:59 AM:
" If I understand the Republican position correctly, it is their view that voters with multiple residences can only vote where that individual's "primary" residence is located. This view is absolutely and fundamentally contrary to the law as it has been consistently articulated by the NY Court of Appeals and countless other courts. Stated simply, the rule is that a voter can choose to vote in any one place where he or she has a legitimate residence. For example, just last October, the Appellate Division reiterated that the Election Law "does not preclude a person from having two residences and choosing one for election purposes provided he or she has legitimate, significant and continuing attachments to that residence." Notably, that case involved Republican challenges to Democratic voters with second homes in Delaware County who primarily lived in New York City. Nonetheless, in rejecting claims completely identical to those now advanced by Republican Chairman Fingar and his team of lawyers, the Court observed that the inquiry is not focused on which of the voter's dual residences is "the more appropriate one" for voting purposes, but whether the voter's second residence is a legitimate one, rather than a sham.
The "weekenders" that the Republicans seek to disenfranchise are our friends and neighbors, they patronize and operate local businesses, pay local property taxes, raise our property values and contribute to our communities in countless other ways. In the vast majority of cases, there is no good faith basis under the law for challenging the individuals' right to vote in Columbia County. Every resident of Columbia County – both weekenders and natives – should be offended by the Republicans' undemocratic, wasteful and cynical tactics. "
The "weekenders" that the Republicans seek to disenfranchise are our friends and neighbors, they patronize and operate local businesses, pay local property taxes, raise our property values and contribute to our communities in countless other ways. In the vast majority of cases, there is no good faith basis under the law for challenging the individuals' right to vote in Columbia County. Every resident of Columbia County – both weekenders and natives – should be offended by the Republicans' undemocratic, wasteful and cynical tactics. "
neutralparty wrote on Nov 23, 2009 11:08 AM:
" I know for a fact people who constantly change from NYC to Columbia County year by year depending on where they can better push their agenda on Election Day. So basically the rich don't have enough influence in Washington and Albany already they need to push their agenda on Local politics as well. "
zoey wrote on Dec 7, 2009 9:15 AM:
" I am upset that the Republican Party is costing the county so much money since it seems obvious that the law says that people who own two homes can choose where to register to vote.. Many second home owners contribute so much to their towns and the county -- this persecution is terrible! "
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stonepound wrote on Nov 21, 2009 9:10 AM: