Essex County Board of Supervisors to rest of state: ‘We got this’
Without much fanfare on Thursday, June 13, the New York State Court of Appeals rendered a decision that received little attention. Given the statewide implications and Essex County’s involvement, it’s a shame. Local leaders, election commissioners and attorneys across this state were anxiously anticipating a decision. New York’s top judge, Chief Judge Janet DiFiore, a Gov. Cuomo appointee, reversed two lower court rulings and upheld the Essex County Republican Board of Elections commissioner and Essex County attorney’s determination that under New York State Election Law 3-222, voted ballots, whether paper or digital images of paper ballots, are not subject to the Freedom of Information Law and that you must have a court order if you want to look at voted ballots.
Voters across all of New York state can thank the Essex County Board of Supervisors for protecting their right to a secret ballot. Why? Because in 2016 the majority of the Essex County board decided that it was worth spending the money to appeal a trial court decision that allowed voted ballots to be obtained by anyone simply by submitting a written FOIL request.
To recap, in 2016 a lawsuit was filed by known Democrat activists who some felt were determined to “test” New York Election Law for reasons we still don’t know. Former Essex Democrat Chairwoman Bethany Kosmider hired Democrat activist attorney and Lake Placid school board member Bryan “Liam” Kennelly to file an Article 78 petition against Essex County. Kennelly claimed in his suit that Kosmider’s FOIL request for copies of ballots cast in the Rick Meyer vs. Brian Barrett judge race was improperly denied. Why did Kosmider want to see the ballots from a race where the loser, Brian Barrett, was defeated by over 1,700 votes? Nobody knows. Not even Kosmider, who gave different reasons throughout the three years of litigation ranging from, “I wanted to look at ballots I had questions about,” to, “I wanted to study voting behaviors and patterns in Essex County.”
Kennelly, who shares a law office with Barrett, in an attempt to publicly advocate for his client authored a letter to the editor titled, “No reason for Essex to litigate FOIL request” (Adirondack Daily Enterprise, Sept. 14, 2016) in which he argued, “why waste money?” that this was “all settled law” based on a 2014 advisory opinion by Robert Freeman, a state agency “official,” and that the practice of handing out voted ballots had been common practice in New York state. Attorney Kennelly was found wrong on both counts. County Attorney Dan Manning surveyed several counties for their policies, with most counties responding that they did not release ballot images without a court order.
Ironically, Kennelly, with only five years of legal experience (admitted to the bar in 2011), also asked in his lawsuit for the court to award him attorney’s fees at $375 per hour, to be paid by Essex County. That hourly rate would make most senior attorneys in the Adirondacks blush. After asking for the court to award him attorney’s fees, Kennelly then stated that Essex County should not be wasting taxpayer dollars by paying outside attorneys. He’s right and need not worry; the New York State Court of Appeals ruled that his client Bethany Kosmider is now responsible for paying costs associated with the lawsuit.
On the topic of spending taxpayer dollars on this case, the attorney who represented the Republican election commissioner and Essex County, James Walsh, also a candidate for Supreme Court this year, felt so strongly about this case that he decided to move forward with the appeal pro bono, ” no charge” to the county. New York state voters owe Jim Walsh a debt of gratitude as well.
Kosmider unfortunately has a history of questionable interference with election activities in Essex County. On July 30, 2015, Kosmider locked herself and then Democratic Election Commissioner Mark Whitney behind closed doors in a public building and refused to allow a county employee to take part in an official proceeding with his counterpart. See “Tensions flare,” Sun Community News, Pete DeMola, July 30, 2015.
This lawsuit raises more questions: Should counties be put in a situation where they need to be the decision-making body in matters of Election Law? I would hope not. We already have enough frivolous lawsuits clogging up our courtrooms.
Every American wants transparency and fair elections; it is a sacred right that many have fought and died for. Just as sacred to Americans is the protection of the “secret ballot.” Many of our 42 election districts in the 18 towns in Essex County are very small, and in some elections, only a few voters cast a ballot in a primary election in a specific election district. Viewing those ballot images could potentially expose the individuals’ confidential voting decision. So much for your secret ballot if Kosmider had gotten her way.
Small counties like Essex with tight budgets (and there are many) should not be used as a testing ground for statewide Election Law politics. As predicted (see “Election Law is Clear: What’s the real reason for the lawsuit?” Sun Community News, McGahay, Oct. 12, 2016), this issue played out on a larger stage and in the highest court. In the end, the highest court in New York reversed the lower court rulings based on Election Law, not an opinion. It’s too bad Essex County had to be the laboratory for questionable purposes and disingenuous motives. Perhaps in the future, the progressive, downstate-controlled state Legislature will decide to amend this section of Election Law. For now, this matter is “settled law.”
For those New York voters who expect their votes to be kept secret, they will be, thanks to Essex County supervisors and the New York State Court of Appeals.
For those looking to test the resolve of Essex County leadership, be forewarned, “Don’t mess with Essex.” And if you want “my” voted ballot, hire an attorney and go to court to get it.
Bill McGahay lives in the town of North Elba, is a former executive director of the New York State Republican Party and is a Conservative state committeeman for the 21st Congressional District.