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Top court: Ballot images aren’t public

Essex County ends up winning landmark FOIL case

Elisa McIntosh of Saranac Lake casts her ballot by inserting the paper original into an electronic scanner on the morning of Nov. 8, 2016, in the Harrietstown Town Hall auditorium in Saranac Lake. (Enterprise photo — Chris Knight)

ELIZABETHTOWN — The state’s highest court has ruled in favor of Essex County in a lawsuit that called into question whether electronically scanned images of ballots can be obtained without a court order following an election.

In an opinion released June 13, state Court of Appeals Chief Judge Janet DiFiore wrote that electronic images of ballots should be subject to the same restrictions as paper ballots, which can only be examined within two years of an election with a court order or direction from a state legislative committee.

“The Election Law’s closely regulated framework for handling of ballots and reviewing their contents balances ballot secrecy, anti-tampering measures, accuracy and finality,” DiFiore wrote.

The Court of Appeals’ 4 to 3 decision marks the end to a four-year-long lawsuit that started with a Freedom of Information Law request in 2015.

Attorney: Not about ‘catching some boogeyman’

Bethany Kosmider, a former Crown Point town supervisor and chairwoman of the county Democratic committee, sought access to electronic images of ballots cast in the 2015 general election through a FOIL request filed that year.

When a person votes, his or her paper ballot is fed into a machine that automatically creates an electronic copy of that ballot. That electronic copy is put onto a flash drive and sent to the county Board of Elections. The paper ballot goes into a secure box.

New York City attorney Daniel Novack, who is representing Kosmider, said no identifying information is on these ballot scans and they should be public — a belief that the state’s now-former executive director of the Committee on Open Government, Robert Freeman, affirmed in a 2014 opinion.

“Bethany asked for the ballot images. In New York state, those have been widely available for many years,” Novack said. “Essex County had provided them the year before with no incident.

“There’s nothing on there that isn’t public. There’s nothing on the ballot images that would give you information on who voted for whom. It would tell you whether a machine has been tampered with.

“This isn’t necessarily about catching some boogeyman. Machines are susceptible to tampering and there is an error rate. There’s no downside to seeing the ballots.”

Essex County Attorney Dan Manning disagreed and said in some election districts within the county, there may only be one or two voters weighing in on a certain ballot line, like the Conservative Party line.

“In a small primary, about 10 to 15 election districts have only one or two people in the Conservative line that vote in that primary,” he said. “They would be able to determine how a person voted.”

Faced with Kosmider’s FOIL request, the county’s Board of Elections commissioners were split on whether they could legally release the electronic records she was asking for, so the request was forwarded to Manning, the county’s FOIL officer.

He believed that a section of Election Law, 3-222, barred access to the records without a court order. Kosmider appealed that ruling, but the county’s FOIL appeals officer, then-Board of Supervisors Chairman Bill Ferebee, agreed with Manning.

In July 2016, Kosmider — represented by Lake Placid attorney Bryan “Liam” Kennelly — filed a lawsuit in county court against Essex County Republican Election Commissioner Alison McGahay, then-Essex County Democratic Election Commissioner Mark Whitney, and Ferebee.

The Essex County Supreme Court ordered the county to release the records. The court concluded that the digital images aren’t confidential and aren’t subject to the same standard two-year restriction on viewing paper ballots. The county appealed that decision to the state Supreme Court Appellate Division, Third Department, which affirmed the original court decision 3 to 2. The county appealed again to the state’s highest court, which ultimately overturned the two courts’ decisions and ruled that Kosmider’s lawsuit be dismissed.

DiFiore wrote that she believed section 3-222 of Election Law should also apply to electronic scans of ballots.

“By restricting access to voted ballots for a two-year period following an election — subject to precise statutory mechanisms for addressing election disputes, including allegations of tampering — the statute balances the competing concerns of finality and transparency,” she wrote. “Without doubt, the confidentiality promised in the Election Law is not absolute — there are occasions during the official canvassing, objection and judicial challenge processes when revelation of a particular person’s vote may be unavoidable.

“But the (state) Legislature has taken steps to guard against unjustified erosion of the policies of ballot secrecy and finality by curbing the extent to which parties with no role in these official processes may gain access to voted ballots.”

The state Court of Appeals ruled that Kosmider’s petition be dismissed and previous court orders dismissed, with costs.

That decision was narrow, however.

From the seven Court of Appeals justices, three dissented.

Justice Leslie Stein, in her dissent, wrote that the electronic ballot images shouldn’t be protected as paper ballots are.

“The majority’s analysis relies on an unfounded assumption that electronic images of cast paper ballots are, themselves, ‘ballots,'” she wrote. “However, electronic images of paper ballots do not meet the statutory definition of ‘ballots’ or ‘official ballots’ because they are neither a paper ballot nor an electronic display within the ballot frame on the face of a voting machine as prepared for a voter to cast a vote.

“A voter casts only one ‘ballot’ in an election, and a scanned image thereof is not, itself, a voted ‘ballot.’ Thus, while the majority may be correct that the Election Law closely regulates access to ‘ballots’ in order to ensure the integrity of elections, it does not follow that the Legislature intended to restrict access to scanned electronic images — the records sought by (Kosmider) in this case.”

Both sides react

Essex town Supervisor Ronald Jackson on Monday praised Manning and McGahay for continuing to fight the lawsuit over the last four years.

“It would’ve been easy to fold and say ‘to heck with it.’ But they stuck it out and won in court. Congratulations to the two of you,” he said.

“We worked hard,” said Manning. “We had to go all the way up through.

“I thought (the Court of Appeals justices) did a great job, I thought (the opinion) was thorough and well-analyzed.

“We’re always beat up when we’re not transparent, we’re witholding things — we’re not. There’s all these steps that the Legislature has determined, not me, that you’ve got to go through to look at the ballots.”

Kosmider didn’t respond to requests for comment. But Novack characterized the decision as a blow to election transparency.

“This is a real setback and really unfortunate,” he said. “The court is reading too deeply into potential motivations to take this transparency away from New Yorkers.

“This was a very useful tool, and it’s effectively diminished, if not gone.”

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