(Reprinted from Amboy Beacon, Jan. 5, 2011)
SOUTH AMBOY — City Council President Fred Henry was expected to be sworn-in
as Mayor before the Council reorganizes today at 6 p.m. at City Hall, N.
Broadway, but his final status as South Amboy’s new Chief Executive has been
put-off until after a hearing before Superior Court Judge Phillip Paley,
sitting in New Brunswick, on Monday, Jan. 10, at 8:30 a.m.
Copies of the filings by interested parties in the case have been obtained
by the Amboy Beacon.
Late last week, the Judge ordered that administration of the oath-of-office
to Henry as the city’s first new Mayor in over two decades take-place
before Tuesday, Jan. 11, when a decision is expected to be made on contested
ballots.
However, any appointments by Henry would be temporary until the election is
settled.
This follows submission of a seven-page petition to Paley by Christopher
Struben, attorney for Independent candidate Mary O’Connor, and filing of a
six-page cross-petition by Michael Baker, attorney for Henry.
The Middlesex County Board of Elections, represented by Deputy Attorney
General Donna Kelly, also is a party to the case, but did not file any
documents.
The wild-card in the case is participation as an “amicus curiae” (friend
of the court) by Senior Counsel Flavio Komuves of the American Civil
Liberties Union (ACLU) of New Jersey Foundation, Newark, who submitted to Paley a
19-page brief detailing its legal arguments concerning voters allegedly denied
their rights by election officials. ACLU’s interest in the matter stems
from its support for “the Constitutional right of individuals to vote, and to
have their votes counted.”
The ACLU submission maintains that Alexa Hess, whose provisional ballot was
rejected; Michael Berardo, whose MIB was voided, and Eric Cheng, who was
denied a provisional ballot, were deprived-of their rights; that Henry’s
three-vote “win” should therefore be set-aside, and that a new election should
be held.
The O’Connor petition, prepared by Struben partner Michael Percario, takes
the same positions regarding Hess, Berardo and Cheng.
In addition, it maintains that the machine votes of Carol McGloan and Grace
Hoffman, allegedly residents of Sayreville; 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, be disallowed; that Henry’s three-vote “win” be set-aside, and
that O’Connor be declared the winner or, alternatively, a new election be
held.
The Henry cross-petition, prepared by Baker partner Karl Kemm, takes no
position regarding Hess, Berardo, Cheng, McGloan, Hoffman, Colon, Horn,
Kedmenec, Vignola, Gallucci, the Gonzalez family or the Crowley family.
Instead, the MIB of Taryn Congleton and the machine votes of Gary Bouchard,
Robert Point, Kevin O’Connor and Felipe Burgos are disputed on alleged
non-residency grounds, and there is reference to “seven illegally-cast votes,”
even-though only those five names are listed.
Ironically, Henry had stated before the cross-petition’s filing that “it’s
the American way of doing things that all the votes are counted,” and “to
suppress them as she (O’Connor) wanted to do is wrong.”
The cross-petition also cites Patricia Santucci, Anthony Santucci and Marie
Santucci, who were allegedly denied provisional ballots, and John Thomas
O’Leary, Mayor John O’Leary’s son, whose MIB was voided, as being deprived-of
their rights.
The cross-petition seeks to reconfirm Henry as winner of the Nov. 2
election for Mayor or, alternatively, to order that a new election be held.
This election dispute 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 and the two other Independent candidates, Mackiel
and John Dragotta, by 14 votes.
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 after additional MIBs were found.
That left the counting of 22 provisional ballots by the county Board, which
produced a margin of one vote for Henry.
O’Connor requested, paid-for and was granted a recount, which led to the
same one-vote lead for Henry. However, O’Connor later discovered that the
Board miscounted not once, but twice, a provisional ballot cast by a Sayreville
resident for Henry which was supposed-to have been covered by a sticker.
That ballot’s disqualification was affirmed by the state Attorney
General’s Office, whose investigators were — along with several FBI agents —
conducting an ongoing probe of alleged voter-fraud at the Board’s Headquarters on
Jersey Avenue at the time.
If certified as final, a tied-vote would have triggered a special election
between Henry and O’Connor on Tuesday, Jan. 19.
However, six “misplaced” provisional ballots from the disputed Nov. 2
South Amboy mayoral election were discovered three weeks later at the Jersey
Avenue facility by workers who broke the seals on the envelopes.
Despite a strenuous argument against it by Struben, 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.
That left Henry with a three-vote lead prior to individual ballot
challenges, which are scheduled to be heard by Paley next Monday.
At the hearing on whether to open the six newly-found ballots, Struben
asked that these ballots not be counted because “the security and integrity of
the ballot procedures were not followed” in that all of the “affirmations”
were torn from the envelopes which held the ballots.
Kelly said the Board had kept the ballots locked inside a room in its
Jersey Avenue offices within an envelope. She said that she directed the Board to
put the opened ballots inside another envelope, and “they were put in a box
and locked in a closet.”
There were 22 provisional ballots submitted, three of which were voided by
the Board’s staff after painstaking research of the registration rolls. But
of the 19 remaining ballots that should have been put-through the scanner,
there were only 13 the day they were counted by the Board.
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.
Paley said he wanted “all the votes to be counted,” and so-ordered, but
added that Struben “will have the right to challenge the results” of the
counting.
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