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CHAaERs or SURROGATE COURT

STATE OF NEW YORK

CouNn OF MONTGOMERY
FONDA, NEW YORK 12068 518/853-8108 FAX 518/853-8230
GUY P. TOMLINSON JUOGE
LISA WYSZOMIRSKI

Secretary
DONN!% M. ROSS

Court Attorney

November 14, 2012 David Lewts Attorney at Law 225 Broadway, Suite 3300 New York, New York 10007 RE:

BY FAX ONLY to Counsel and Boafas BY MAIL ONLY to County Attorneys Frank Hoare 99 Pine Street Albany, New York 12207

-K

CORRECT ADDRESS of ATTORNEY and NOVEMBER16, 2012 4:30 nm.CONFE$ENCE AGENDA (call 1-888-795-5787 or 1-518-285-6199, use Meeting ID #9801)
th New York State 46 Senate District Proceedings Index No. 2012-887
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Gentlemen: I write to advise that we had an incorrect address and fax number for Attorney Lewis and we are providing his correct address, above, to those named below. Regarding the upcoming telephone conference to be conducted on. Friday , November 16,2012 at 4:30 p.m., by copy of this letter I ask each of the Boards to report, to the best of their ability, the number of paper ballots (absentee and affidavit) receivedlin theft possession for this race, and any statistical information you collected regarding the same. It is not the Courts intention to require you to do anything in addition to what you may have already done. I expect Counsel will advise of any relevant issues. Very truly yours,

GPT!dmr cc: Albany County Board of Elections Greene County Board of Elections Montgomery County Board of Elections Schenectady County Board of Elections Ulster County Board 0 Elections r New York State Board of Elections

I-ION. GUY P. TOMUNSON Acting Supreme Court Justice Thomas Marcelle. County Attorney Carol Stevens, County Attorney Douglas Landon, County Attorney Christopher Gardner, County Attorney Beatrice Havranek, County Attorney Kimberly Gaivin, Counsel to New York State Board of Elections

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LEWIS & FIORE SUITE 3300 NEWYORK, NEW YORK 10007
aa BROADWAY,

N:, U225

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f Q(212) 285-2290 (212) 964-4506 (FAX)

David L. Lewis Charles G. Fiore

November 14)2012

Honorable Guy P. Tomlinson County Courthouse 62 Broadway Fonda, New York 12068 Dear Judge Tomlinson,

BYFAX 518 853 8320

I write with regard to the Courts letter supplemental order issued on November 13, 2012 in order to seek a modification of the Courts modification by the recall of the Courts supplemental order. It is my understanding from the review of Your Honors letter that the modification and the supplementing of the order is based upon the Courts impression that the County Boards of Elections have only a very short period of time to certitS results to the State of all races including the State Senate race at issue and for the purpose of the convening and balloting by the Electoral College, and that our proceedings may prevent or delay this. Courts letter supplemental order page 1. The Court appears also to be concerned with the issue of timely certification based upon the Election Law 9-214 that provides for the transmission of the canvass statements within twenty-five days of the election for the Presidential and the State Senate race at issue. Courts letter supplemental order page 2. These concerns coupled with the statute would appear to justify the supplemental order of the Court. However, Election Law 9214 is subject to the provisions of Election Law 9-218. THE STATE BOARD OF ELECTIONS INTERPRETATION AND PREVIOUS PROCEDURE This is consistent with the interpretation of the law by the State Board of Elections and it has previously transmitted to county boards including the Ulster County Board directives as to how to handle the canvass due date when there is a court ordered and managed vote count. As demonstrated by the State Board directive letter attached hereto, which concerned the same issue as concerns this Court. In the case of the 100 State Assembly District, the th recanvass of ballots was such that it could not be completed by the 25 day as required by statute. The State Board directed the County Boards to provide current vote totals, i.e. those that were on hand at that time and to proceed to count the rest. The State Board stated that the current totals must be submitted but they are accepted with the understanding that such

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Honorable Guy P. Tomlinson November 14, 2012 Page 2 of 5

certification may change when disputed ballots are ultimately canvassed. In order to satisfy the statutory command, however the local boards provide preliminary or provisional numbers of votes to the state board. The State Board of Elections in the past has referred to the documents as first being a provisional certification based upon events on the 25th day) not including the office subject to Court order and the final certification after all the legal ballots have been counted to be the final certification. The final certification in the Senate race would come only at the conclusion of the counting and the legal proceedings. Under the process envisioned by the Supplemental Order, the entire canvass process would have to be compete by the 25 day without regard to the fact that the order of the Court may and does modify the procedure. In the instant matter, the order of the Court and the injunction of certifying a winner sets this matter to be governed by the Court, under Article 16 of the Election Law. The certification process in the statute is supplanted by the Courts order. Upon the issuance of the order to show cause, the matter including the timing of the process is now governed by the Court and not the time table in the statute. THE STATUTE TN CONJUNCTION WITH OTHER ELECTION LAW PROVISIONS WHEN READ TOGETHER JUSTIFIES THE ORIGINAL ORDER AND PROCEDURE The twenty-five day rule in New York Election Law 92 14 provides that a transmission of the votes for the Office of President and Vice President and all the public offices on the ballot for state and federal offices, must be certified within 25 days of the election. If it is not received, the law empowers the state board to send a special messenger to obtain a certified copy and the Board of Elections upon the demand of the special messenger at its office and it shall make and deliver a certified copy to such messenger who shall deliver it to the state board. This has suggested that the Board may provide such canvass as it has, in this case at worst, exclusive of the state senate race in issue and incomplete returns of the Presidential race that are far from outcome determinative. In fact, the election law provides for the possibility that the order of the court which results in a new or corrected statement of canvass, the Boards will re-convene and re-canvass and re-certify pursuant to an order of the Court. See Election Law 9 218. Support for the contention that the Court order replaces the statutory deadlines for canvassing is found in the Election Law. The canvassers in this instance are reconvened due to an order of the Court to produce a new statement of the canvass, different from the election night canvass. Election Law 9-2 18 (I) provides that when the board of canvassers are reconvened due to the order of a court granted pursuant to law, the Boards new statement of canvass shall stand in lieu of the original statement. Section 2 of 9-218 provides that a new or corrected statement may exist to give effect to an order of the Court, and that a new statement of canvass would be a new certified statement and from that statement a new statement of votes cast in the state or political subdivision such as a State Senate seat, and then declare who the winner of the race is. The Court order precludes certification of the Senate race until the legal ballots are counted and

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Honorable Guy P. Tomlinson November 14, 2012 Page 3 of 5

the matter resolved. This practice which has occurred in every recount I have participated in is designed to not let the certification tail wag the dog of the legal action. COUNSELS PRACTICAL EXPERIENCE WiTH THIS VERY ISSUE I have been involved in three recounts conducted by court order. In a number of them we only ran one table of ballot review and the certification did not occur until well after the th 25 day. The first race I did involved Senator Roy M, Goodman in 2000, The recanvass went longer than the Bush v. Gore race. Senator Goodman was certified as the winner on December 21st of 2000. See Lands/ide Roy Snares Victory by 198 Votes, NY Post 12/22/2000, found at
http:/Iwww.nypost.comlplnews/item_6Fl7AzpIO3 8jso I BYgbpAJ.

In 2004, another presidential year. I recounted the race between Senator Nicholas Spano and Andrea Stewart-Cousins, which was won by Senator Spano by eighteen votes. That recount went three months and was not certified until February 8, 2005. See http://www.newsl2.comJCT/topstories/article?id=129585. in 2006, the race between Senator Frank Padavan and James Gennaro also went to a recount and ended with a concession on February 5, 2007 and a certification thereafter. See http ://www.gothamgazette.comfblogs/wonksterf2009/02/05/gennero-concedes/ NO IMPACT ON OTHER CERTIFICATIONS N OTHER RACES Not one of the Senate races impacted upon the other races on the ballot and where multiple candidate recounts were conducted, the single table per candidate per race allowed for control over the process that prevented intermingling and confusion. THE OBVIOUSLY LATE CERTIFICATION PROCESS DID NOT ENGAGE THE APPELLATE COURTS The supplemental schedule does not build in time for the inevitable course of appeals to the Appellate Division and the Court of Appeals as occurred in the Padavan race and requiring the canvassing of additional ballots. Ragusa v. New York City Board of Elections, decided December 22, 2008 found at Imp: //moritzlaw, osu,edulelectionlaw/litigation/documents!Ragusa-Decision- l2 19-08 .pdfas. In Panio v. Sunderland, 4 N,Y.3d 123 decided February 3, 2005, as to the Spano race as well as Roy Goodman race See Matter of Powers v. Donahue, 276 A.D.2d 157 (V Dept. 2000) decided 3 t December Si 2000, all races that were locked in recounts well past the certification date. THE PRESJDENTJAL CANVASS AND THE ELECTORAL COLLEGE ISSUE With respect to the Courts impression, I believe that it is based upon an expectation of the rigidity of the process that is factually, historically and practically not the case.

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Honorable Guy P. Tomlinson November 14, 2012 Page 4 of 5 The issue is whether the re-canvass and canvass of the ballots in the State Senate race will impede or delay the responsibilities of the local Boards to the State Board to provide certification of the results of the Presidential Election to the Electoral College process We respectfttlly 1 submit that the issue of the re-canvass of the local race is immaterial to the certification for the twenty-five day rule of Election Law 9-214 and for the purposes of the Electoral College. The Court appears to be concerned that we meet the requisite deadlines for certification of the Presidential race. We respectfully submit that the canvass conclusion is irrelevant to the Presidential race and the outcome because the current electoral results in the five counties and the canvass of ballots outside the Senate district will fulfill the requirements for certification and thus permit the Electoral College obligations to be fulfilled. President Obama won the State of New Yorks popular vote on election night by one million six hundred forty-nine thousand one hundred and eighty-nine votes with 98% of the precincts reporting arid a percentage of the vote of 62,6 % to Governor Romneys 36% with the rest of the vote to minor party candidates. The total pieces of paper, allegedly valid ballots in the instant race of approximately 10,000 ballots, valid and invalid at present, does not approach a million votes and thus if every ballot yet to be canvassed were voted for Governor Romney, the outcome of the popular vote would not be different. New Yorks process is often called a winner take all process The candidate for 1 president who obtains the highest popular vote total is accorded all of the New York State electors. As a result, the winner takes all provisions of the New York State election law awards all the electoral votes to President Obama without regard to the final tallies in this state. In this case it is beyond purview, that the 31 electors of the State of New York will upon convening of the Electoral College will cast each of their votes for Barack Obama. The Courts attention is respectfully directed to Rios v. Blackwell, 345 F.Supp.2d 833 (M.D. Ohio 2004). Tn Rios, plaintiff voters and candidates sought a preliminary injunction to obtain a recount prior to certification of the presidential results in the state of Ohio. The Court, in effect, by denying the request for the injunction, ruled that the certification for the purposes of the Electoral College may go forward and it may be followed by the recount of votes even in the actual presidential election. Neither candidate of the Green or Libertarian party who sued in 4 had a credible claim that they did or could win the right to have Ohios presidential electors cast their Electoral College votes for him, Therefore the Court ruled that the fact that the counting might not be completed is irrelevant because none of the presidential candidates for the Green and Libertarian Party could alter the Electoral College outcome Neither candidate 1 plaintiff can credibly maintain that he possesses even a remote chance of victory through a recount. Simply stated, neither candidate has a credible claim that they did or could win the right to have Ohios presidential electors cast their Electoral College votes for him, The possibility that such counting may not be completed by the time Ohio appoints its electors burdens only their chances of victory.

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Bonorable Guy P. Tomlinson November 14, 2012 Page 5 of 5

The local Boards of Election are governed by the order of the Court. They can and should count all the ballots that do not impact upon the subject State Senate race. They then 1h would transmit on the 25 day the vote totals then on hand. Thus the County Boards may report and the State Board may report such numbers as they currently have and the State provisionally certify the ballot and the electoral results as they have done in previous years when down ballot races were still being counted, and thereby meet the Electoral College obligations under Article 12 of the Election Law and Title 3 U.S C. 1 et seq.. CONCLUSION This would return us all to the schedule set and agreed upon by both candidate parties with the input of the legal representatives of the Counties affected. The original order provided that the counting shall proceed, one county at a time and with only one table of canvassers and attorneys doing the ballot reviews and objections, in each county until we are finished county by county, with the understanding that as soon as one county is complete we will move to the next one 1 Respectfully yours,

DAVID L, LEWIS DLL/bf

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Sawn A. Walsh Co-Chair Gregory?. Peterson Connilsaloner Todd IL Valentine Co.flecuttve Director

STATE BOARD OF ELECTIONS

40 flEUBEN STREET ALBANY, N.Y. 12207-2109 Phouo: 518/474.6336 Part 5181474-1009 URL: http://www.elettinusstatauy.us

Douglas A. Keliner Co-Chair

Zvctyn Mu Iii
Commissioner
SI.oley L, Zalen Co.Esecnttve Director

November 26, 2008

1,.

To Commissioners of: Dutchess County Board of Elections Orange County Board of Elections Ulster County Board of Elections Dear Commissioners:
th Pursuant to statute, the State Board has a scheduled meeting for December 4 to certify the results of this Novembers election for all state-wide and multi-county races (i.e. Presidential, Judicial District, Senate, etc.). Your failure to provide election results as you have on hand inhibits that effort and we ask that you provide your countys results no later than Friday November 28th,

We recognize the inability of your Board to certify results as to the 1O0 Assembly District race that is subject to an outstanding court ordered impoundment. We ask that you issue a certification based upon the current vote totals you have In your possession with respect to all other races and with the understanding that such certification may change when disputed ballots in the affected race are ultimately canvassed. Please contact us if you have any questions. Sincerely,

Todd 0. Valentine