WPCNR WHITE PLAINS LAW JOURNAL. By John F. Bailey. February 10, 2011: The Westchester County Attorney’s office filed a motion to dismiss Monday in U.S. District Court, asking Judge Susan Cacace to dismiss the suit filed by former Councilman Glen Hockley and Martin London alleging “Conspiracy with Malicious Intent by Individuals acting under cover of Government Authority for the Purpose of Keeping Glen Hockley off the Ballout, Trying to Suppress the Vote During Election Day and their continuing efforts after the election of trying to manipulate the results.”
Glen Hockley, former White Plains Councilman will respond in two weeks to keep his court case for a new election for Mayor going.
According to spokesperson for the County Attorney, Lori Alesio, Attorney Matt Gallagher filed the motion to dismiss Monday. She said Mr. Hockley has approximately two weeks to file a rebuttal as to why the case should not be dismissed, after which Judge Cacace is expected to make a decision whether or not to dismiss the case, or proceed to a jury trial.
Mr. Hockley seeks a jury trial; a finding that Defendants violated Plaintiffs’ constitutional rights, (their right to Equal Protection Under the Law), a finding that New York Election Law was unconstitutional as applied to Mr.Hockley’s failure to file a Certificate of Acceptance (the basis for the Westchester County Board of Elections act of removing him from the November 2009 Mayoral ballot), a new election with Mr. Hockley on the ballot; compensatory and punitive damages, and legal fees and costs.
Mr. Hockley’s amended complaint, submitted after Judge Cacace refused to consider his complaints of being kept off the ballot being dismissed by the Court of Appeals, frames the court action in terms of his constitutional rights being violated, to wit:
“The Defendents’ intentional actions kept Mr. Hockley off the ballot and violated his First and Fourteenth Amendment rights to associate for the advancement of his political beliefs, to political expression and to run for office. It also violated the voters’ fundamental voting right by limiting their choice of candidate on the ballot to one (Adam Bradley). This violated the voters’ right to cast their votes effectively, their right to associate for the advancement of political beliefs,and their right to political expression.”
Hockley’s amended complaint also contends New York State Election Law (requiring a signed Certificate of Acceptance of nomination),as applied to Mr. Hockley under the statute is “unconstitutional,” being that Hockley alleges “The law focuses on allowing a political candidate to decline nomination if they don’t want to run. The State Appellate Division applied this law to Plaintiff Hockley even though there was no question he wanted to run. He personally collected the signatures and signed the nominating petition.” Hockley’s amended brief points out,
Citing Burdick v. Takushi in 1992,which ruled “a court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forth by the State as jusitifications for the burden imposed by its rule, taking into consideration the extent to which whose interests make it necessary to burden the plaintiff’s rights”the Hockley amended brief argues,
“The injury to Plaintiffs’ fundamental civil rights is very grave while the State’s interest in requiring a Certificate of Acceptance from an Independent candidate is very small.There is no danger that an independent candidate (Mr. Hockley) will be nominated against their will if he has personally signed the petition.”
Hockley’s amended brief concludes, “New York State Election Law as it was applied to Mr. Hockley violated the right under the First and Fourteenth Amendment to run as a candidate for election, his right to associate for the advancement of his political beliefs, and his right of political expression as a candidate for Mayor of the City of White Plains, NY. It also violated the rights of voters in White Plains, like Plaintiff London, who wanted to vote for Mr. Hockley but could not. It violated their fundamental right to vote, their right to cast their votes effectively, their right to associate for the advancement of their political beliefs, and their right to political expression.”
The amended brief also catalogs a series of affidavited incidents suppressing write-in votes, which the brief maintains violated voters’ constutional rights.
They include failing to supply pencils at voting booths (for write-ins), alleged erroneous instructions to write-in voters; alleged failure to make sure write-in mechanisms worked smoothly in the voting machines; purposeful failure to provide instructions on how to cast write-in votes; Board of Election refusal to count votes cast for him on absentee ballots; and violations of Equal Protection Under the Law.
There are 25 Westchester County Board of Elections Incident Reports attached to the Amended Brief, documenting Mr. Hockley’s charges. There are also 13 communications from voters depicting their experiences.
WPCNR is the process of obtaining the motion to dismiss filed Monday by the County Attorney.
