Attorneys for Glen Hockley and Larry Delgado agreed, based on a telephone conference call Wednesday with a voting machine expert, that Mr. Delgado’s vote total jammed at 39 in District 18. Both said no further inspection of the machine can shed further light on the crucial Delgado count.
Jeffrey Binder, the D-Team Lead Attorney plans a statistical recreation of the possible lost vote. The historic White Plains Council Election of 2001 continues Thursday at 2 in Supreme Court.
Wednesday afternoon, Mr. Binder requested permission of the court to present statistical evidence for a projected Delgado missing vote count. The judge may rule on the admission of this Thursday.
Conference Call agreed to Wednesday AM
An 8-minute conference call at the Board of Elections conducted with Sherwood Danielson, an expert repair supervisor of the Voting Machine Service Center in Jamestown, Erie County, New York, was arranged based on agreement in court Wednesday morning. The 5-way conversation shed light on what happened within the bowels of the District 18 voting machine at George Washington School Election Night.
LITIGANTS LISTEN IN TO EXPERT ON FACT-FINDING CALL at Board of Elections Wednesday. Shown are Carolee Sunderland, Commissioner of Board of Elections, Jeffrey Binder, Delgado attorney, and Adam Bradley, attorney for Glen Hockley.WPCNR PHOTO.
Trouble getting the conference call started
The conference call was about to begin (suggested by Judge Francis Nicolai), at around 12:30, when Adam Bradley, Glen Hockley’s attorney began protesting to the Board of Elections Commisioners. He expressed concern that the expert about to be called was a Delgado attorney-supplied expert. Two reporters waiting outside the open office could clearly see Mr. Bradley stalking around Reginald LaFayette’s desk in front of the two Board of Elections Commissioners, Carolee Sunderland and Mr. LaFayette.
Communications Break Down
When the conference call was ready to be placed, it could not be set up to work on the phone in Mr. LaFayette’s office. Ms. Sunderland said she could do it on her phone. After the entourage trooped down to Ms. Sunderland’s office, she could not get the conference feature to work either.
BINDER FINALLY GETS THROUGH. Jeffrey Binder is finally able to put together the conference call. He is shown coordinating the call with his New York office which set up the call with their Verizon equipment.WPCNR PHOTO.
Mr. Binder, Mr. Delgado’s attorney, with Mr. Bradley agreeing, set up the call finally through his law offices in New York which got all three parties and the conference call listeners on line in about 2 minutes.
Technicians lead off the questions
At approximately 1:30 PM Thursday afternoon, Steve Schoengold and Frank Luiso, the Board of Elections technical experts who conducted the inspection of the voting machine Tuesday, began the call, explaining to Danielson what they had discovered.
TALKING TECH TO TECH: Board of Elections Technicians, Steve Schoengold, foreground and Frank Luiso explained what they found to Danielson and asked his opionion.WPCNR PHOTO.
Danielson said “It sounds like failure in that counter station.”
Mr. Schoengold, saying he and Mr. Luiso had given their opinions in court on this question, asked Danielson if the counter could have counted past 39 to 100 and somehow rolled back to 39 when it jammed. Danielson, replied, “No. No. Un-Un. No way.”
Nothing more in the machine to indicate vote
Jeffrey Binder, Mr. Delgado’s representative, jumped in, asking if there “was anything in there (inside the machine) we might find that might tell us if the (Delgado) count had gone past 100?”
Danielson said, “There’s no way I could determine that. I would not know (by examining the gears) how many more times it (may have) turned. I don’t know there’s anyone who could determine this. There’s nothing (inside) to indicate the count. (An examination) will show you where the breakage is. In my opinion it broke at 39.”
Gears on the “1′s” wheel cannot turn the 100′s wheel
Binder asked if the gear moving the “10” wheel (the second numbered wheel counter), could move the 100 counter. Danielson indicated this was impossible, saying, “when the 1’s wheel gets to 9, it transfers to zero, moving the 10s wheel (WPCNR NOTE: in this case moving the 3 to a 4). The 10s wheel is moved by a separate gear from the 100’s wheel. The 3 (changing to 4) would not move zero (in the 100′s wheel) to 100. No way.”
Binder replied, “O.K.”
Bradley establishes agreement between experts
Adam Bradley asked, “It’s fair to say your expert opinion is the same as the technical experts (of the Board of Elections)?”
Danielson said, “Yes.”
Binder asked an earlier question in a different way, asking “if there was any possible indicia (of the count inside the machine), no indicia to that effect?” And was told no.
A Man Who Knows Voting Machines
Matthew Gallagher, legal counsel from the Westchester County Attorney’s office asked Mr. Danielson what his experience was.
Danielson said he was presently an instructor for his company training repairers of voting machines, that he had started at the company in 1981.
He said, “I can tear down machines, do major repairs, minor repairs, in-field service. You name it I can do it.”
On that note, the call was concluded.
The Litigants Who Listened In.
Helping conduct the call were the two technicians executing the Tuesday inspection, Steve Schoengold and Frank Luiso, Mr. Bradley and Mr. Binder, Carolee Sunderland, Commissioner of the Board of Elections, Reginald A. LaFayette, Commissioner, Board of Elections, Mr. Delgado, Mr. Hockley, Matthew Gallagher of the County Attorney office, Steve Levy and Jeannie Palazola, Deputy Commissioners of the Board of Elections.
After the Call, Back to Court.
The two attorneys and their entourage returned to court at 2:30 PM Wednesday afternoon to report their findings to Judge Nicolai in Supreme Court.
It should be noted that Mr. Danielson was arranged for at the order of Judge Nicolai’s Principal Law Clerk, Diane Lundin. Acting on instructions from Judge Nicolai, she had asked the Board of Elections to find a voting machine expert to shed a third opinion the previous Tuesday evening after the inspection had been completed. Mr. Bradley was reported present when this instruction to the Board of Elections Deputy Commissioners, Mr. Levy and Ms. Palazola, was given.
Levy calls Board of Elections service company for expert
Steven Levy, Deputy Commissioner, contacted Dale Marshall of Voting Machine Service Center, which maintains the Westchester County voting machines to find an expert. Mr. Marshall arranged for Mr. Danielson’s availability for a Wednesday morning call.
Parties Return to Court for 2:30 Session to Discuss Call.
Judge Nicolai called the session to order and asked if the call had been made.
Mr. Binder, Mr. Delgado’s counsel said it had, and that “my client (Mr. Delgado) is completely satisfied there will be nothing to be gained by further examination of the machine.”
The judge queried Mr. Bradley. Mr. Bradley said, “I sat here and heard from two Board of Elections technicians. My understanding was this gentleman confirming what they said.”
After this fact-finding that nothing more was to be found by further machine breakdown was agreed to on the record by both attorneys counsel Binder requested a new avenue of inquiry.
Binder Suggests Statistical Projection
Binder then asked Judge Nicolai for the opportunity to bring in an expert statistician’s analysis of the votes Mr. Delgado most likely would have received.
Judge Francis A. Nicolai raised his dark eyebrows, advising Mr. Binder, “It can’t be too much longer. We’re already into December 1. They (the candidates) need some time to prepare.”
Binder said the statistical analysis he is suggesting could give Judge Nicolai information that would suggest “it may be reasonable to adjust the canvas.”
The Judge asked “Who and What?” and that the analysis had to allow time for Mr. Bradley to be heard and react to the analysis.
Binder stated dramatically, “A 99% probability of over 140 votes (for Delgado) on that line.”
Judge Nicolai rose in his seat knitted his brows, and said he needed to know “on what theory he is presenting? I disagree completely with your expert.”
Binder, in his quiet, unruffled voice, said, “Certainly a strong case could be made.”
The Judge said he would have to see an Offer of Proof from Binder explaining the credentials of the expert, what he/she intends to say, and the methods of his analysis before he would agree to allow the statistician’s testimony to be heard.
His Honor, expressing skepticism, remarked, “seems like more speculation than mathematical certainty.”
Judge Nicolai moved swiftly, summing things up: “There is no further need to redo the voting machine. You must prepare a written Offer of Proof, serving this to Mr. (Adam) Bradley not later than 11 o’clock tomorrow (Thursday) AM.”
Bradley Reasserts Objections to the Show Cause Order.
Adam Bradley repeated his assertion that the original Delgado complaint should have not been heard because it had not been given an index number by the County Clerk. Judge Nicolai, who had sternly refused to dismiss on this ground Monday morning roared: “It’s nonsense. I am not going to dismiss a case of this importance on a technicality.”
Bradley repeated his complaint about the way the original documents was written. Judge Nicolai said “Why are you having a problem with it? What don’t you understand?” rising and pounding his desk and saying “Exception is all. You object to my ruling. You’re wasting time.”
In a third complaint, Bradley raised the issue of not being notified by Delgado’s attorneys (when he requested by letter to be notified) that there was no need to appear in court on November 9, when the original show cause order was called.
Judge Nicolai did not give this much credence because he pointed out the letter wording in Bradley’s own words said “no petition at this time,” indicated Bradley was expecting a petition and might have checked before he arrived.
Bradley raises “remedy” issue.
Taking a deep breath, Mr. Bradley then attempted to plunge into what was obviously on everyone’s mind. He said he wanted to focus on an issue of tremendous importance, the remedy.
Judge Nicolai held up a hand, smiling with teeth not showing, brows knitted, tightlipped, “You’re being premature. That’s assuming I find a need for a remedy.”
Bradley protested, “So much is occurring and we keep doing things.”
Judge Nicolai, taking firm control in a sublime manner, defended what he called the fact-finding process:
“At every phase, that next step was helpful. It may not be your point. But it’s my point. You have an adversary role, and I have a neutral role. We have very different roles.”
Bradley responded, “This is a process of speculation. We are prolonging it, delaying the reality here: A tremendous issue about the remedy.”
The Judge serenely replied, “I don’t care. We have to establish facts…Your view is at midnight election’s over, we won, good-bye. You don’t want a factual foundation to establish a remedy. It’s fair to explore the issue, then we have a factual foundation. I’m not convinced there’s a need for a remedy.”
Public belief in election, the Judge’s goal
The judge somberly entoned his overriding concern he stated at the beginning of this winding litigatory journey Monday morning: that the public must have confidence in the integrity of the election process.
Tom Roach and Rita Malmud who had been in court Monday and Tuesday supporting Mr. Hockley, were not in court Wednesday. Mr. Roach and Ms. Malmud were essentially cleared for certification by Judge Nicolai’s ruling Tuesday morning.
Judge Nicolai adjourned proceedings to resume Thursday afternoon at 2 PM in State Supreme Court in the Westchester County Court House.