ALBANY - New York state's Board of Elections argues a lawsuit challenging its glowing language of Gov. Andrew Cuomo's referendum to expand casino gambling was filed too late, although the wording wasn't posted on the board's website until two weeks after that deadline to sue.
In papers filed late Wednesday ahead of Friday's court date, the state asks a judge to dismiss the lawsuit by Brooklyn lawyer Eric Snyder. The state criticizes Snyder for his "inexcusable" and "unexplained failure' to meet the 14-day deadline to file a lawsuit after the referendum was approved July 29, according to the court filing. The state says military ballots must be sent by Oct. 4 and the lawsuit "should not disenfranchise those men and women, many of whom are in harm's way."
"No ballot can safely go out under the peril of (Snyder's) litigation," the state's attorney warns.
Cuomo and the Legislature are pushing the Nov. 5 referendum which would amend the constitution to authorize seven Last Vegas-style casinos. They reworded the standard, only-the-facts language provided by the state Attorney General's Office to include promises of jobs, tax breaks and more school aid - all of which are disputed. Voters won't be advised of the possible downsides including addiction and crime.
The Board of Elections told The Associated Press on Wednesday that it first posted the rewording of the referendum to its website on Aug. 23.
The deadline to file a lawsuit challenging that wording was about two weeks before. Board spokesman John Conklin said county boards of election were notified by email on Aug. 5 and the new wording was a public record when adopted by the board on July 29 in a public meeting carried by webcast.
However, the specific added wording wasn't identified in the meeting or in its official minutes.
"The language was given out to anyone who asked for it," Conklin said. He said the League of Women Voters and three others including a newspaper reporter received the language before the lawsuit filing deadline. He said election law only requires a constitutional amendment to be published in legal notices of newspapers in every county a week before the general election.
"By posting it on our website more than two months before the election, I think we more than exceeded that requirement," Conklin said.
The first news reports highlighting the contested wording appeared Sept. 12. Snyder filed his lawsuit Oct. 1.
"This is a process that appears to be rigged in advance for a 'yes' vote," said Blair Horner of the New York Public Interest Research Group. "This is supposed to be the public's government and there's no meaningful way for the public to weigh in on this issue unless they are an insider. That's not right."
He said the casino referendum that newspaper editorials have called unfair and an attempt to dupe voters will prompt NYPIRG to seek new legislation requiring public comment periods for future constitutional amendments. Cuomo said casinos will bring in $1 billion a year in tax revenues. Cuomo and legislators have so far collected more than $3 million in campaign contributions from gambling interest since 2011.
The issue will get its first court airing on Friday before Justice Richard Platkin in state Supreme Court in Albany. Snyder said he will contest the wording and argue the Board of Elections made the changes outside of its July 29 meeting in violation of the state Open Meetings Law.
Conklin disputes that and released a document Tuesday that states the final approval was made July 29.
The board also moved the casino question from the last issue to first on the ballot, a prime spot.