Write-in candidate sues fire district after apparent one-vote loss

12/18/2013 1:48 PM |
PAUL SQUIRE FILE PHOTO

PAUL SQUIRE FILE PHOTO

The Wading River Fire District commissioner race isn’t over just yet.

A write-in candidate who appeared to have lost the election for the open seat by one vote has filed a lawsuit against the district and his incumbent opponent, claiming the district improperly cast aside 10 ballots that would have handed him the election.

A state Supreme Court judge has ordered that the district hold off on declaring an official winner, and produce all the ballots and voting machines to be examined, according to legal filings made last week.

Glenn Erick — the firefighter in the Wading River Fire Department who staged a write-in campaign to unseat incumbent commissioner Timothy Deveny — filed the suit against the Wading River Fire District, Mr. Deveny, and the Brookhaven and Riverhead Town Clerks last Thursday.

Mr. Erick claims that eight votes were invalidated because “notwithstanding the clear intent of the voters,” his name was written into the wrong location on the ballot. Instead of the box for the write-in candidate’s name, the claim notes that the names were written in a blank box on the ballot for the subject’s public office.

Two other ballots were reportedly not counted because Mr. Erick’s “first name was omitted and/or his last name misspelled.”

As a result of the mishandling, Mr. Erick claims the election swung in his opponent’s favor, and hopes the suit — first reported on RiverheadLocal.com — will earn him a seat on the board of commissioners.

He also alleges that those tallying the votes “removed themselves from public view” into a room where only the candidates were allowed to see the proceedings, according to the suit.

Mr. Erick’s attorney, Vincent Messina, said the suit — filed on Dec. 12, two days after the election — doesn’t claim the mistakes were made purposefully.

“We don’t want to imply nefarious intent,” Mr. Messina said.

He said that prior case law shows that in cases where there are only two candidates, and one is a write-in, it’s possible to determine who voters intended to vote for, even if they write the names in the wrong column or misspell them.

Mr. Messina added that Mr. Erick wasn’t seeking to convert other votes — like ones made for his family members — into votes for himself. He also found it strange that the results took so long to be announced.

“Normally they’d be done the next day, but they weren’t,” Mr. Messina said.

When reached by the News-Review last Wednesday to disclose the results of the election, officials at the district said the tallies were not available.

In a phone conversation Wednesday, district secretary Steven Donnelly said the results had been available on time and said there had been no delay in the results. He declined to comment on the lawsuit against the district because it was a pending matter.

The fire district’s attorney, Sal Sapienza, said in a phone interview the ten votes were discounted because the instructions on the electronic voting machines were clear.

“The board of elections determined that [for] eight of them … the people who voted didn’t follow the directions on the ballot,” he said, adding that mispellings of Mr. Erick’s name were allowed and that only cases where the board “couldn’t discern the intent” of voters were not counted.

He said the case law cited by Mr. Messina related to physical lever-operated voting machines, where voters were not “locked out” of using the wrong boxes.

“The basis of that decision may not be applicable in this case,” Mr. Sapienza said.

The fire district was ordered to provide “voting machines, ballots and other papers or worksheets” to Mr. Erick and his attorney to be inspected before Dec. 24.

Both parties are scheduled to appear before state Supreme Court judge Ralph Gazzillo on Jan. 6, according to court documents.

psquire@timesreview.com