NYCLU Seeks to Intervene in Lawsuit over State Senate Race Vote Count

Motion Asks Court to Stop Martucci Campaign’s Bad Faith Absentee & Affidavit Ballot Challenges

ULSTER COUNTY – Today the New York Civil Liberties Union filed a motion to intervene on behalf of voters and its members in a lawsuit brought by Mike Martucci, candidate for 42^nd State Senate District, that seeks to disenfranchise voters whose ballots were already validated by the local boards of elections. 

Bipartisan teams at the boards of elections in Ulster, Orange, Sullivan, and Delaware counties reviewed the absentee and affidavit ballots at issue and verified the eligibility of these voters weeks ago. But Mr. Martucci and his representatives have asked the court to throw out hundreds of ballots for spurious reasons, substantially delaying the election results.

The NYCLU, representing its own members as well as individual voters Father John Mellitt, John Burdick, and Theresa Logan, is asking the Delaware County Supreme Court to reject these frivolous challenges or, at least, to allow voters their constitutional and statutory right to notice of any curable defects in their ballots, such as mismatched or missing signatures, and an opportunity to cure those defects. 

“Under any circumstances, the ballot challenge process is problematic, because it provides an unjustified opportunity to throw out the ballots of eligible voters who have already been verified by the board of elections,” said Perry Grossman, senior staff attorney at the NYCLU. “But in this election, it’s clear that candidates are abusing the challenge process in an attempt to disenfranchise enormous numbers of valid ballots, similar to the abusive tactics being employed by lawyers in Pennsylvania, Georgia, Michigan, Arizona, and Nevada. We will not stand for it here in New York.” 

The petition initiated by Mr. Martucci names the State and local boards of elections as respondents and seeks to disenfranchise individual voters, who have not been given an opportunity to ensure that valid ballots are counted or, where applicable, cured and then counted. Proceedings where candidates challenge voters usually take place without the participation of the voters whose rights are being threatened.  In this case, the NYCLU’s motion to intervene seeks to give voters an opportunity to defend their own ballots in court and to hold accountable those seeking to disenfranchise them without justification.  

One voter joining the NYCLU’s intervention is Father John Mellitt, a member of the Capuchin Franciscan Friars who has born in New York and has been a registered voter in the state since 1960. During 2020, Father John moved from Westchester County to Ulster County and cast an affidavit ballot in New Paltz on Election Day, consistent with New York’s registration portability law. A bipartisan team at the Ulster County Board of Elections was able to verify Father John’s eligibility to vote in New Paltz and validated his affidavit ballot during their pre-canvass review. Subsequently, during the canvass of ballots for the 42nd Senate District, representatives for the Martucci campaign objected to Father John’s ballot, purportedly as “incomplete,” “incorrect,” and for a mismatched signature. 

“I’m 81 years old now and I’ve become a pretty experienced voter during the past 60 years.  I’ve managed to cast ballots while living around the state and absentee ballots while living abroad,” said Father John Mellitt. “I am offended that my right to vote and other New Yorkers’ rights to vote are being challenged after the boards of elections have already reviewed and approved our ballots.”

In response to the COVID-19 pandemic, the State of New York made changes to its election system to facilitate voting by absentee ballot. These changes include permitting absentee ballot applications without signatures, expanding the acceptance of ballots received by mail related to postmarks, facilitating in-person delivery of absentee ballots, and requiring boards of elections to provide notice and opportunities for voters to cure certain defects in their absentee ballots. Each of these changes in law were adopted and implemented months before the November 3, 2020 election. Voters across the state relied upon these laws and guidance from the boards of elections in casting their ballots this year. The Martucci campaign has not challenged the legality of any of these new laws or practices until now, weeks after Election Day.

“As affidavit and absentee ballot canvasses come to a close, all valid ballots must be counted and cured, no matter who you voted for or how close your race is,” said Shannon Wong, Hudson Valley chapter director at the NYCLU. “Campaigns are taking advantage of the electoral system in ways that are abject examples of voter disenfranchisement. We will fight to ensure that every last vote is counted, so New Yorkers can rest assured that our democracy remains intact.”

You can find case materials here: https://www.nyclu.org/en/cases/martucci-v-new-york-state-board-elections-et-al