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Judge Calls For Fleischmanns Votes To Be Counted

Written By Editor on 5/15/23 | 5/15/23

Petitioners Expected to Appeal;

Ballots Remain Unopened Until May 19

By Mary A. Crisafulli
DELHI - After nearly eight days of trial, Delaware County Supreme Court Justice Brian D. Burns ruled llast week that all 81 challenged absentee ballots in the Fleischmanns Village Election are valid.

Mayoral candidate Elizabeth Hughes and trustee candidates Todd Pascarella and Yvonne Reuter petitioned ballots on the basis that the individuals who submitted those absentee ballots were not Fleischmanns residents.
Nearly 50 of the challenged voters appeared in court for testimony. Petitioners argued that voters' ballots who did not testify in court should be tossed.

Justice Burns ruled that it is the obligation of petitioners to produce evidence sufficient to overcome the "presumption of validity" voters received from their voter registration and application for an absentee ballot.

"It is not the respondents' burden to produce witnesses to prove that they are eligible to vote," he wrote, which is why challenged voters who did not appear on subpoena are made valid by the court.

Petitioners also asked the court to review Election Law 1-104(22) which states voters' residences should be fixed, permanent and principal homes. However, Justice Burns said the Court of Appeals has ruled that voters with dual residency have a right to vote from either. He further stated that the Appellate Division of the Supreme Court determined seasonal residence may be used for voting. 

Petitioners’ Attorney Daniel Belzil said, "We disagree with the ruling in several respects and will be appealing it. 

Mr. Pascarella was in troubled by the ruling.

“We completely disagree with the judge’s decision. For almost all of the challenged voters, he seems to have overlooked the lack of tangible connection the election law requires to establish residency in favor of subjective claims to an emotional attachment to visiting the village," said Pascarella, "This is a very disappointing result of our challenges and we have no choice other than to pursue appeal."

Jeremy Rase, 1st assistant district attorney for Delaware County, was unavailable for comment by press time. In his closing summation, ADA Rase argued, on behalf of Delaware County Board of Elections, that the challenged ballots should remain unopened.

Editor's note: Since publication, we received the following information: Fleischmanns Village Clerk Diane Rossman got back to me and said "We are awaiting instruction from our attorney, no comment at this moment."

Trustee Stewart Cohen's Attorney James Curran argued petitioners provided no evidence of sham or scam during court proceedings to warrant invalidation of the absentee ballots.

The court had prohibited Village Clerk Diane Rossman from opening and counting challenged ballots until an official ruling. The village has been left with no declared winners since the March 21 election. Trustees Sam Gil and Stewart Cohen and Mayor Winifred Zubin remain in office until the election is certified.

Justice Burns’ ruling declares the clerk to now carry out respective duties as it pertains to election results. Petitioners are given until May 19 to appeal before ballots can be opened. 

Mayor Zubin had no statement regarding the ruling. Ms. Rossman was unavailable for comment by press time.
Delaware County Elections Commissioner Judith Garrison expects the village to perform the opening of the ballots according to regular procedure.

Ms. Garrison noted that the elections office conducts a county-wide mail check annually at the end of April or early May. Each registered voter receives a card in the mail letting them know of upcoming elections. Any cards that are undeliverable by mail are then inspected by other means, she explained. The process helps voter rolls to stay up to date, she added. If any voters have not received their cards this year, Ms. Garrison advises them to call the office at 607 832-5321.

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