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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS
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BOARD OF ELECTIONS IN THE :
CITY OF NEW YORK, : Index No.
:
Plaintiff, :
-against- :
:
BITTA MOSTOFI, as Commissioner :
of the New York City Mayor’s Office : VERIFIED COMPLAINT
of Immigrant Affairs, AYIRINI :
FONSECA-SABUNE, as Chief Democracy :
Officer of the City of New York, and :
JAMES O’ NEILL, as Commissioner of the :
New York City Police Department, :
:
Defendants. :
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Plaintiff Board of Elections in the City of New York (“Board”), by and through its

respective undersigned counsel, Brown & Weinraub, PLLC and Eiseman Levine Lehrhaupt &

Kakoyiannis, P.C., for its Complaint against Defendants hereby alleges as follows:

NATURE OF ACTION

1. This is an action for declaratory judgment and injunctive relief. By way of this

action, the Board seeks to, among other things, ensure the orderly operation of the polls during the

upcoming February 26, 2019 Special Election for Public Advocate of the City of New York and

future elections.

2. The Board is established as an independent entity pursuant to the mandate of the

New York State Constitution and the New York State Election Law ("Election Law").

3. Under the Constitution, the Election Law and applicable federal statutes, the

Board is solely charged with administering elections in the City of New York (the “City”) in a

bi-partisan manner, consistent with the provisions of the Election Law.


4. To ensure the orderly operation of each polling site within the City of New York the

Board regulates who is allowed to enter within one-hundred feet of all designated entrances for

voters at each polling site (the “100-Foot Rule”). Among those allowed are poll workers (including

interpreters hired, vetted and trained by the Board in the languages mandated under the Federal

Voting Rights Act [52 USC §10503]), voters, candidates, properly credentialed poll watchers,

NYPD Press Pass holders as authorized in writing by the Board individuals asked by voters in need

of assistance to assist them and police/peace officers.

5. The purpose of regulating who may enter within one-hundred feet of the polling site

is to maintain voter privacy, ballot secrecy, provide a quiet zone in which voters can make up their

minds if they have not already done so and make sure they have correctly marked the ballot to

indicate the candidate of their choice and to provide an orderly site enabling inspectors to determine

who is entitled to vote, whether the voter has cast a ballot, whether the voter needs or has received

assistance, including interpretation services in the languages other than English authorized by

statute, or whether the voter has voted by an affidavit or emergency ballot.

6. This regulatory scheme applies to all polling sites, regardless of the political

affiliation of the area and without regard to whether they are in neighborhoods supporting or

opposing any particular candidate or political party.

7. The Board has been informed that New York City, through the New York City

Mayor’s Office of Immigrant Affairs (“MOIA”), has hired or contracted for its own interpreters to

interpret in languages other than the languages authorized by statute.

8. The Board has not reviewed the qualifications of these MOIA interpreters nor the

training that these interpreters have received. Moreover, the Board has been informed that these

interpreters are only being provided for at polling sites selected by the City, and that the languages

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being interpreted and the polling sites being selected change from election to election.

Unfortunately, whether correctly or incorrectly, the ad hoc nature of the program creates the

impression that the program could be rigged to favor certain candidates or political parties.

9. The criteria used by the City to select the interpreters, polling places or languages

involved have not been reviewed or approved by the Board.

10. The City has also informed the Board that it intends to station its interpreters

within one-hundred feet of these selected polling sites, whether or not the Board gives the City

permission to do so.

11. The Board is required to conduct elections in a bi-partisan manner.

12. The February 26th Special Election is for the office of Public Advocate which is an

office that serves as a public watchdog of New York City government affairs, including the actions

of the New York City Mayor.

13. The city-funded MOIA interpreters do not operate in bi-partisan teams as required

under the Election Law. And, the city-funded MOIA interpreters are contracted by a Mayoral

agency – not an independent bi-partisan entity like the Board. Having a Mayoral agency assist in

the conduct of the election, at the very least, gives rise to the appearance of impropriety and, at

worst, could provide an opportunity to influence the outcome of the election.

14. Moreover, the City has not identified the methodology it used in selecting the

languages and polling sites for which it has chosen to provide interpreters.

15. The Board is concerned that by providing assistance for certain languages but not

others, and certain polling sites but not others, the presence of the city-funded MOIA interpreters

within polling sites opens the Board (as well as the City) to a potential challenge under the Equal

Protection Clause and the Voting Rights Act.

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16. The Board also does not know whether these interpreters were recruited either at the

urging or with the assistance of partisan advocacy groups favoring one candidate or another.

17. Moreover, the inspectors would not be able to monitor whether they are merely

interpreting as opposed to electioneering as they will be speaking in a language that Board

employees do not speak, thereby preventing the Board from enforcing Section 8-104(1) of the

Election Law.

18. For these and other reasons discussed below, and consistent with its exclusive

statutory authority to ensure the orderly operation of New York City polling sites, the Board has

directed its inspectors to exclude the city-funded MOIA interpreters from being stationed within

one-hundred feet of any designated entrance to the polling place.

19. The Board has also advised the New York City Police Department (“NYPD”)

that, pursuant to the Election Law, Board inspectors will seek the assistance of NYPD officers

stationed at polling sites to remove any city-funded MOIA interpreters stationed within 100 feet of

the designated entrances to the poll site who fail to immediately abide by an inspector’s request to

withdraw beyond 100 feet.

20. The Board has repeatedly requested that the NYPD confirm that officers assigned

to polling sites will follow the written direction of Board inspectors during the February 26, 2019

Special Election to remove the unauthorized city-funded MOIA interpreters.

21. To date, the NYPD has failed to respond to the Board’s request.

22. Thus, the Board seeks judgment declaring the 100-Foot Rule valid -- both as applied

to the city-funded MOIA interpreters as well as to any other unauthorized individuals operating

within one-hundred feet of a designated entrance to a polling site.

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23. Additionally, the Board seeks a declaratory judgment that the NYPD is obligated

to follow the written direction of Board inspectors during the February 26, 2019 Special Election

to remove any city-funded MOIA interpreters from within one-hundred feet of any designated

entrance to a polling place.

24. Finally, the Board seeks to preliminarily and permanently enjoin MOIA and the City

of New York from locating the city-funded MOIA interpreters within one-hundred feet of any

designated entrance to a polling site.

JURISDICTION AND VENUE

25. This Court has personal and subject matter jurisdiction over this action pursuant

to CPLR 301.

26. Venue is proper in Kings County pursuant to CPLR 504(3) because Kings County

is the county in New York City in which the cause of action primarily arose as the City’s plan

calls for the majority of city-funded MOIA interpreters to be placed at polling stations located in

Kings County.

PARTIES

27. Plaintiff Board of Elections in the City of New York is an independent entity

established pursuant to the mandate of the New York State Constitution and the New York State

Election Law.

28. Defendant Bitta Mostofi is sued in her official capacity as the Commissioner of

the New York City Mayor’s Office of Immigrant Affairs.

29. Defendant Ayirini Fonseca-Sabune is sued in her official capacity as the Chief

Democracy Officer of the City of New York.

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30. Defendant James O’Neill is sued in his official capacity as the Commissioner of

the New York City Police Department.

FACTUAL BACKGROUND

31. During the 2017 and 2018 General Elections, the City provided interpreters to a

limited number of voters at certain polling sites as a pilot program. These interpreters were not

stationed within 100 feet of the designated entrances to the poll sites to which they were

assigned.

32. Both the polling sites and the languages for which interpreters were provided

were chosen exclusively by the City.

33. The City allocated funding for the interpreters and the Board played no role in

hiring, training, compensating or supervising these interpreters.

34. And, as stated above, the City has not identified the methodology it used in selecting

the languages and polling sites for which it has chosen to provide interpreters.

35. Indeed, the languages and locations selected by the City appears entirely arbitrary.

For example, during prior elections, city-funded interpreters were placed at over 100 polling sites.

For this upcoming Special Election, the City plan as of February 21, 2019 calls for locating

interpreters at 44 polling sites. Nor is the City consistent with respect to the languages for which it

intends to provide interpreters. During prior elections it provided, for example, Italian interpreters.

For this upcoming Special Election, no Italian interpreters are being provided.

36. The Board also does not know whether these city-funded interpreters were recruited

either at the urging or with the assistance of partisan advocacy groups favoring one candidate or

another nor do the city-funded interpreters operate in bi-partisan teams as required under the

Election Law. The city-funded interpreters are contracted by a Mayoral agency. Thus, at the very

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least, having a Mayoral agency assist in the conduct of an election gives rise to the appearance of

impropriety in that it undermines the Board’s status as an independent agency charged with the

statutory and constitutional exclusive duty to conduct elections held within the City of New York.

37. Furthermore, the Board is subject to state and federal statutory requirements as well

as a Federal Court order to provide accessible polling sites. Pursuant to this order, the Board

ensures that the path of travel to both the poll site and the poll room at every polling site are free

from objects that could impede blind or mobility-impaired voters.

38. The Board contracts with a court-designated third-party vendor to conduct site

surveys and prepare floor plans to ensure the accessibility of polling places.

39. The presence of the city-funded MOIA interpreters within polling sites potentially

threatens the Board’s ability to provide accessible polling sites as required by state and federal law

and the Federal Court order.

40. Because of these concerns, during both the 2017 and 2018 General Elections, the

city-funded MOIA interpreters were not located within one-hundred feet of a designated entrance

to a polling site.

41. The city-funded MOIA interpreters complied with the Board’s instructions and

abided by the 100-Foot Rule during both the 2017 and 2018 General Elections.

42. However, as mentioned above, for the upcoming February 26, 2019 Special

Election for Public Advocate, the City has informed the Board that it intends to station its

interpreters within one-hundred feet of designated entrances of selected polling sites, whether or

not the Board gives the City permission to do so.

43. Specifically, on December 31, 2018, Ayirini Fonseca-Sabune, the City’s Chief

Democracy Officer, sent a letter to the Board requesting that it “establish[] as a matter of Board

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policy that city funded, non-partisan language interpreter services be permitted inside polling

locations.” Ms. Fonseca-Sabune’s letter references the February 26th Special Election and states

that the City is:

committed to continuing to offer interpretation services to the


greatest extent possible for voters in this election and we seek the
Board’s cooperation in ensuring those providing these services can
do so safely, indoors, and protected from inhospitable February
weather.

A true and correct copy of Ms. Fonseca-Sabune’s letter, dated December 31, 2018, is annexed

hereto as Exhibit A.

44. On February 13, 2019, Ms. Fonseca-Sabune sent another letter to the Board. In

this letter, she informed the Board that the “City intends to provide interpretation services at the

poll sites with the largest numbers of Limited English Proficient voters who are not already

provided services through the Board of Elections.” Her letter goes on to state that: “[a]t each of

these locations, our staff will identify an area inside of the building where the interpreters can be

stationed.” A true and correct copy of Ms. Fonseca-Sabune’s letter, dated February 13, 2019, is

annexed hereto as Exhibit B.

45. Thus, the City unilaterally decided to ignore the Board’s exclusive authority and

proceed with its plan to provide interpreters as it chooses -- even though the Board did not

change its policy as requested by Ms. Fonseca-Sabune in her December 31st letter.

46. On February 14, 2019, the day after receiving Ms. Fonseca-Sabune’s letter, the

Board sent a letter to Zachary Carter, Corporation Counsel of the City of New York. The

Board’s letter confirmed:

The Board has determined that it will continue to enforce its


uniform policy and is concerned it is possible that the
implementation of the City plan [to place city-funded MOIA
interpreters within one-hundred feet of a polling sites] will unduly

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interfere with the lawful conducting of the [February 26th] Special
Election.”

A true and correct copy of the Board’s letter, dated February 14, 2019, is annexed hereto as

Exhibit C.

47. Despite the clear position taken by the Board in its February 14th letter, and despite

the Board’s exclusive authority to administer elections, on February 19, 2019, Ms. Fonseca-

Sabune sent an e-mail to the Board stating that “[w]e are working expeditiously to determine

locations for interpreters at each of the identified polling sites.” A true and correct copy of Ms.

Fonseca-Sabune’s e-mail, dated February 19, 2019, is annexed hereto as Exhibit D.

48. On February 20, 2019, Ms. Fonseca-Sabune sent a follow-up e-mail identifying

forty-one polling sites and another e-mail on February 21, 2019 identifying forty-four polling

sites at which the City intended to deploy its interpreters.

49. In light of the City’s plain intention to ignore the 100-Foot Rule with respect to

stationing the city-funded MOIA interpreters, on February 20, 2019, the Board sent a letter to

Police Commissioner O’Neill. A true and correct copy of the Board’s letter to Commissioner

O’Neill, dated February 20, 2019, is annexed hereto as Exhibit E.

50. The Board’s letter to Commissioner O’Neill requested that the NYPD confirm

that, pursuant to applicable law, officers assigned to polling sites will follow the written direction

of Board inspectors during the February 26, 2019 Special Election and remove, and if necessary,

arrest, any unauthorized city-funded MOIA interpreters stationed within 100 feet of the entrance to

the poll site who fail to abide by the Board’s inspectors directions to move beyond one-hundred feet

of a designated entrance of the polling site.

51. Because of the tight timeframe, the Board’s letter to Commissioner O’Neill also

asked for a response by February 21, 2019 at 3 p.m.

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52. After not receiving any response, the Board placed a call to the NYPD Legal Bureau

by telephone at approximately 5 p.m. on February 21, 2019.

53. The NYPD Legal Bureau confirmed that it received the Board’s letter but did not

provide any further information.

54. To date, the NYPD has failed to respond to the Board’s request.

FIRST CAUSE OF ACTION


Declaratory Judgment Against Bitta Mostofi and
Ayirini Fonseca-Sabune In Their Respective Capacities as
Commissioner of the New York City Mayor’s Office of Immigrant
Affairs and the Chief Democracy Officer of the City of New York

55. The Board repeats and realleges each and every part of every paragraph set forth

above as if they were fully set forth herein.

56. Under the New York State Constitution, the Election Law and applicable federal

statutes, the Board is solely charged with administering elections in the City of New York in a

bi-partisan manner, consistent with the provisions of the Election Law.

57. Defendants Mostofi and Fonseca-Sabune have failed and refused, and upon

information and belief, will continue to fail and refuse, to abide by the decision of the Board to

implement the 100-Foot Rule with respect to the stationing of city-funded MOIA interpreters at

polling sites.

58. By reason of the foregoing, the Board is entitled to judgment: (i) determining its

rights to implement the 100-Foot Rule as applied to stationing of city-funded MOIA interpreters

at selected poll sites at the upcoming February 26th Special Election as well as in all future

elections; and (ii) adjudging and declaring that the Board has the authority to exclude city-funded

MOIA interpreters from within one-hundred feet of any polling place during the upcoming

February 26th Special Election as well as in all future elections.

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SECOND CAUSE OF ACTION
Declaratory Judgment Against James O’Neill
in His Capacity as the Commissioner of the New York City Police Department

59. The Board repeats and realleges each and every part of every paragraph set forth

above as if they were fully set forth herein.

60. The Board is authorized to direct the arrest of any person refusing to obey the

lawful commands of polling location inspectors. Specifically, Section 3-402(3) of the Election

Law mandates:

The board of inspectors, and each member thereof shall preserve


good order within and around the polling place or place of
registration, and shall keep access thereto unobstructed. The board
of inspectors, or any member thereof, by order in writing may
direct the arrest of any person who refuses to obey the lawful
commands of the inspectors or who is guilty of disorderly conduct
disturbing their proceedings or violating or attempting to violate
any of the provisions of this chapter. Any peace officer, acting
pursuant to his special duties, or police officer shall, when
requested by the board or a member thereof, execute such order
forthwith.

61. Defendant O’Neill has failed and refused, and upon information and belief, will

continue to fail and refuse, to state whether the NYPD will execute the orders of the Board with

respect to the removal and, if necessary, arrest of any unauthorized city-funded MOIA interpreters

who fail to abide by the Board’s inspectors’ directions to move beyond one-hundred feet of a

polling site.

62. By reason of the foregoing, the Board is entitled to judgment: (i) determining its

rights to order the NYPD to remove and, if necessary, arrest any city-funded MOIA interpreters

who fail to abide by the 100-Foot Rule and the Board’s inspectors’ directions to move beyond one-

hundred feet of a polling site during the upcoming February 26th Special Election as well as in all

future elections; and (ii) adjudging and declaring that the Board has the authority to order the

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NYPD to remove and, if necessary, arrest any city-funded MOIA interpreters who fail to abide by

the 100-Foot Rule and the Board’s inspectors’ directions to move beyond one-hundred feet of a

designated entrance to a polling site during the upcoming February 26th Special Election as well

as in all future elections.

THIRD CAUSE OF ACTION


Permanent Injunction Against Bitta Mostofi and
Ayirini Fonseca-Sabune In Their Respective Capacities as
Commissioner of the New York City Mayor’s Office of Immigrant
Affairs and the Chief Democracy Officer of the City of New York

63. The Board repeats and realleges each and every part of every paragraph set forth

above as if they were fully set forth herein.

64. Under the New York State Constitution, the Election Law and applicable federal

statutes, the Board is solely charged with administering elections in the City of New York in a

bi-partisan manner, consistent with the provisions of the Election Law.

65. By reason of the foregoing, the Board is entitled to judgment permanently

enjoining defendants Mostofi and Fonseca-Sabune from implementing the City’s plan and

causing city-funded interpreters to be stationed within one-hundred feet of any polling place

during the upcoming February 26th Special Election as well as in all future elections unless

authorized by the Board to do so.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Board of Elections in the City of New York prays for judgment in

its favor as follows:

-- On the First Cause of Action, judgment against defendants Mostofi and Fonseca-

Sabune: (i) determining its rights to enforce the 100-Foot Rule as applied to stationing of the

city-funded MOIA interpreters in the upcoming February 26th Special Election as well as in all

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future elections; and (ii) adjudging and declaring that the Board has the authority to exclude city-

funded MOIA interpreters from being stationed within one-hundred feet of the designated

entrances to any polling place during the upcoming February 26th Special Election as well as in

all future elections.

-- On the Second Cause of Action, judgment against defendant O’Neill: (i)

determining the Board’s rights to order the NYPD to remove and, if necessary, arrest any city-

funded MOIA interpreters stationed within 100 feet of the designated entrances of a polling site who

fail to abide by the 100-Foot Rule and the Board’s inspectors’ directions to move beyond one-

hundred feet of a polling site during the upcoming February 26th Special Election as well as in all

future elections; and (ii) adjudging and declaring that the Board has the authority to order the

NYPD to remove and, if necessary, arrest any city-funded MOIA interpreters stationed within 100

feet of the designated entrances to a polling site who fail to abide by the 100-Foot Rule and the

Board’s inspectors’ directions to move beyond one-hundred feet of a polling site during the

upcoming February 26th Special Election as well as in all future elections.

-- On the Third Cause of Action, judgment permanently enjoining defendants

Mostofi and Fonseca-Sabune from implementing the City’s plan and causing city-funded

interpreters to be placed within one-hundred feet of any designated entrances to a polling place

during the upcoming February 26th Special Election as well as in all future elections unless

authorized to do so by the Board.

-- Such other and further relief as the Court deems just and proper.

Dated: February 22, 2019


New York, New York

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EISEMAN LEVINE LEHRHAUPT
KAKOYIANNIS, P.C.

By: /s/ Lawrence A. Mandelker


Lawrence A. Mandelker
Peter J. Reiser
Eric Aschkenasy
805 Third Avenue
New York, New York 10022
(212) 752-1000
lmandelker@eisemanlevine.com

Attorneys for Plaintiff Board of


Elections in the City of New York

&

BROWN & WEINRAUB, PLLC

By: /s/ Jeffrey T. Buley


Jeffrey T. Buley
50 State Street, 4th Floor
Albany, NY 12207
518-427-7350
jbuley@brownweinraub.com

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