HENRY LEADS BY TWO

O’Connor Appealing Judge’s Decision

(Reprinted from Amboy Beacon, Jan. 19, 2011)

SOUTH AMBOY — Superior Court Judge Phillip Paley, sitting in New Brunswick,

last week upheld the election of Democrat Fred Henry as Mayor over

Independent candidate Mary O’Connor by two votes after disqualifying the vote of a

hairdresser who maintained that she lived half-the-time in the back of her S.

Broadway salon.

An appeal of Paley’s decision to certify Henry over O’Connor as the winner

and not order a new election after his review of 23 contested

election-ballots was expected to be filed yesterday by Christopher Struben, O’Connor’s

attorney.

Struben said the Judge “addressed only nine of the votes” in making his

ruling and “did not even consider the whereabouts of 103 provisional ballots

sent to South Amboy but never returned to the Board of Elections.”

In addition, O’Connor’s team discovered on Jan. 8 that a couple living in

Matawan who had sold their Barkalow Street home 16 years ago had cast their

votes in South Amboy, in what Struben called “a clear case of voter-fraud,”

but Paley would not allow that evidence to be presented, saying that it was

submitted “too-late.”

Henry, who was leading by three votes before the Judge’s ruling, apparently

is free now to make any permanent appointments he wants, which Paley had

prohibited him from doing prior to last week’s hearing.

In compliance with the Judge’s previous order, all appointments which would

have expired and been up for consideration at the City Council

Reorganization on Jan. 5 were continued with holdovers who had been appointed by former

Mayor John O’Leary.

The only appointments made at that time were three Council members

appointed as representatives to the Planning Board and Redevelopment Agency and to

the Middlesex County Housing & Community Development Committee.

The respective Council members unanimously appointed to those positions

were Council President Joseph Connors, the Board’s former Chairman; Councilman

William Schwarick and Councilman Donald Applegate.

Paley made his latest ruling last week after reviewing a seven-page

petition by Struben, a six-page cross-petition by Michael Baker and Karl Kemm,

attorneys for Henry, and a 19-page brief by Senior Counsel Flavio Komuves of the

American Civil Liberties Union (ACLU) of New Jersey Foundation, Newark,

participating in the case as an “amicus curiae” (friend of the court),

detailing ACLU’s legal arguments concerning three voters allegedly denied their

rights by election officials.

The Middlesex County Board of Elections, represented by Deputy Attorney

General Donna Kelly, also a party to the case, did not file any documents.

Copies of all filings in the case, which are legally “public documents,”

have been obtained by the Amboy Beacon, which disclosed the names of the

voters connected to all 23 contested ballots in its Jan. 5 edition.

Paley also heard testimony early last week from some of the contested

voters and prospective voters involved in the election dispute, which arose over

the closeness of the vote for Mayor on Nov. 2 following what most observers

agreed was among the dirtiest campaigns in county history.

In addition to the usual rash of reports of campaign-signs being torn-down

or put-up without authorization, last year’s local contest saw the

resurrection on a weekly basis of a bimonthly community newspaper which was defunct

for about 10 years, now unabashedly promoting the Democratic ticket; the

anonymous distribution of one flier depicting an O’Connor supporter in a Nazi

uniform, and another flier attacking O’Connor as a “terrorist,” and the

mysterious “endorsement” of Independent Vincent Mackiel’s mayoral candidacy by a

non-existent “South Amboy Tea Party.”

The unofficial vote-tally on South Amboy’s nine voting-machines had Henry

as the winner over O’Connor by 14 votes, with two other Independent

candidates, Mackiel and John Dragotta, trailing.

On Election Night, the counting of Mail-In Ballots (MIBs), formerly-known

as “absentee-ballots,” had Henry as unofficial winner by eight votes, which

was shaved to three votes the next day after additional MIBs were found.

That left the counting of 22 provisional ballots by the Board of Elections,

which produced a one-vote margin for Henry.

O’Connor requested, paid-for, and was granted a recount, which led to the

same lead for Henry. However, O’Connor later discovered that the Board

miscounted not once, but twice, a provisional ballot which was cast for Henry by

a Sayreville resident but was supposed-to have been covered by a sticker.

That ballot’s disqualification was affirmed by the state Attorney

General’s Office, whose investigators and several FBI agents were conducting an

ongoing probe of alleged voter-fraud at the Board’s Jersey Avenue headquarters

at the time.

If certified as final at that point, a tie-vote would have triggered a

special election between Henry and O’Connor on Tuesday, Jan. 19.

There were 22 provisional ballots submitted, three of which were voided by

the Board of Elections staff after painstaking research of the registration

rolls, which should have left 19 remaining ballots to be put-through the

scanner, but only 13 of them were counted — and later, recounted — by the

Board.

The six “misplaced” provisional ballots were discovered on Nov. 23 — three

weeks after the election — at the Jersey Avenue facility by workers who

broke the seals on all of the envelopes.

At an earlier hearing, Paley ruled that the six ballots, now-resealed, be

opened and counted, and three votes each were found to have been cast for

Henry and Mackiel, leaving Henry with a three-vote lead prior to the individual

ballot-challenges heard by Paley.

Kelly maintained that everything was “done according-to procedure,” and

that there was “no indication that any unauthorized person had access to the

ballots.”

Thus, she said, there were “six valid votes that need to be counted.”

Baker agreed with Kelly that the votes were “valid,” and stated that “no

one slipped-in any ballots.”

Struben disagreed and stated, “The problem here is security of the

ballots,” Struben said, maintaining that the “chain-of-custody” was broken when the

six ballots were lost, and again when they were found and opened.

Last week, the Judge declined to accept the applications of Alexa Hess,

whose provisional ballot was rejected; Michael Berardo, whose MIB was voided,

and Eric Cheng, who was denied a provisional ballot.

Hess said that while applying for her driver’s-license, she was asked if

she wanted to register to vote, she said “yes,” and marked-off the

“register-to-vote” section. When she went to the polls, her name was not in the book,

so she filled-out a provisional ballot.

Paley ruled that Hess did not do-enough to make-sure she was actually

registered, so he declined her vote.

Berardo stated that he received his MIB, but lost the envelope, so he

e-mailed the Board on what he should do. He received an e-mail back, telling him

to mail the MIB to Jersey Avenue. Following the instructions, Berardo said

he mailed his MIB.

The Judge ruled that Berardo did not do-enough to obtain clarification on

instructions on how-to return his MIB

Cheng stated that every time he gets an MIB, it is for Sayreville, not

South Amboy. He said that he has notified the Board, but is told each time that

his home is in Sayreville. Cheng produced his tax-bill, showing that he pays

property taxes in South Amboy, not in Sayreville, his water and sewer

bills, his driver’s-license and his children’s school records, all showing that

he lives in South Amboy.

Paley ruled that Cheng did not present sufficient evidence to show that he

lives in South Amboy.

At the same time that the Judge rejected the machine vote of Carol McGloan,

he accepted the machine vote of Grace Hoffman, both of whom were found to

be Sayreville residents.

McGloan, a South Amboy business owner, testified that she lives half the

time in Sayreville and half the time in the back room of her hair salon.

Hoffman openly-acknowledged that she has, in fact, lived in the Parlin

section of Sayreville for at-least three years, but that she votes in South

Amboy because she “loves the town,” and is thinking about moving there.

Paley ruled that McGlone was “not a credible witness,” and he declined her

vote, but he accepted Hoffman’s vote.

The Judge made no rulings on the provisional votes of Bert Colon, Kenneth

Horn, Victoria Kedmenec, Jay Vignola and Darlene Gallucci, allegedly

residents of South Amboy for less than the minimum 21 days, and the MIBs of Joshua

Gonzalez, Jeremy Gonzalez, Maria Crowley and Dennis Crowley, allegedly signed

by messenger Ryan Tooker, son of Business Administrator Camille Tooker,

which Struben said should be disallowed.

Paley also took no position regarding the MIB of Taryn Congleton and the

machine votes of Gary Bouchard, Robert Point, Kevin O’Connor and Felipe

Burgos, which were disputed by Baker on alleged non-residency grounds, or the

applications of Patricia Santucci, Anthony Santucci and Marie Santucci, who

were allegedly denied provisional ballots, and John Thomas O’Leary, Mayor

O’Leary’s son, whose MIB was voided, cited by Baker as being deprived-of their

rights.

In his submission, Komuves maintained that Hess, Berardo and Cheng were

denied their rights by election officials.