A.G.'s Office Seeks Court Ruling In White Plains Election

Attorney General Spitzer today filed a legal action in Westchester County that seeks to have a judge rule on who should be the rightful winner of a White Plains Common Council seat in a disputed election that hinges on a malfunctioning voting machine.

This lawsuit arises from a challenge brought by Larry Delgado, a candidate for the Common Council in White Plains, who finished fourth in a field of six candidates vying for three seats in the November 6, 2001 general election. Results compiled by the Westchester County Board of Elections showed that candidate Glen Hockley finished third in the race with 6,140 votes while Delgado finished fourth with 6,093 votes, a difference of 47 votes.

Delgado then filed a declaratory judgment action challenging the results of the election, alleging that the voting machine in the 18th Election District jammed early on election day, and failed to record scores of votes cast for him.

Hockley moved to dismiss the case, asserting that Delgado could not bring a declaratory judgment action and that the only proper form of challenge to the election results would be a "quo warranto" action brought by the Attorney General's Office. (The term "quo warranto" dates back hundreds of years to English common law. Now codified in statute, a quo warranto proceeding involves investigation by the Attorney General of an individual's alleged improper holding of public office, and where appropriate, the filing of a court action.)

Delgado's case eventually reached the New York State Court of Appeals, which agreed with Hockley in a decision issued March 14, 2002, and held that Delgado's only avenue of relief would be to prevail on the Attorney General's Office to file a quo warranto action. Hockley was seated on the Common Council on March 15, 2002.

In March, Delgado requested that the Attorney General consider bringing a quo warranto action. Following long-standing office policy, the Attorney General's Office convened a panel of three seasoned assistant attorneys general to investigate the White Plains Common Council election. During its six-month investigation, the panel interviewed Delgado and Hockley, as well as officials from the Westchester Board of Elections and poll workers.

Information uncovered in the investigation showed that the voting machine in the 18th Election District had, in fact, jammed only on the line with Delgado's name, preventing votes for him from being recorded. In the investigation, the panel received 103 sworn affidavits from White Plains voters who said they voted for Delgado on the voting machine in the 18th Election District. The investigation also determined that those voters had signed in and voted at the 18th Election District. Those 103 votes would have been more than needed to overcome the 47-vote differential between the candidates.

On November 14, 2002, the three-attorney panel issued a report summarizing its findings and recommending that the Attorney General commence a quo warranto action in the White Plains Common Council election, and the Attorney General has agreed to do so.

The quo warranto action filed today is not brought on behalf of a candidate. Rather, it asks the court to consider evidence and determine the rightful winner of the contested election. Both candidates will be allowed to submit evidence in the proceeding in support of their claims.

A quo warranto action was last filed in 1990 in a contested election in Johnsburg, Warren County. Prior to that, a quo warranto was filed in 1988 in a contested election in the Town of East Otto, Cattaraugus County.

The Attorney General's quo warranto panel consisted of Assistant Attorneys General Arnold Fleischer and Tynia Richard and Assistant Solicitor General Julie Mereson.

The case is being handled by Assistant Attorney General Joel Graber of the Attorney General's New York City Litigation Bureau, under the supervision of Bureau Chief James Henly.