Opinion
Index No. 000427/2024
09-05-2024
Elaine Portuondo Smith and ANDRENA Y. WYATT, PETITIONERS-OBJECTORS, v. Robert F. Kennedy, Jr. and NICOLE SHANAHAN, RESPONDENTS-CANDIDATES, and DONNA L. HARRIS, DAWN M. D'ARCANGELO, ROSS W. ELAKMAN, ALAN S. GOMPERS, LISA B. JACQUES, KEVIN J. MADONNA, VICTORIA E. MADONNA, PHILIP J. MARSESCO, JENSUH Y. MCCORMACK, JAVIER EDUARDO MERIZALDE, JENNIFER L. MEYERSON, KENNETH A. NOGA, MARY C. O'DONNELL, GINA M. KRAUSE, VALENTIN PARKS, JR., NANCY V. PIERRO, TERESA E. POLSKY, VARIN D. SAWH, LAWRENCE P. SCHNAPF, CELESTE L. SHEAR, JAMES L. SHEAR, JEHANZED SYEB, EILEEN S. TEPPER, BRUCE T. THORNE, LITA L. THORNE, JOSUA VOGEL, KRISTIN ANN MARIE WHITE, KELLY A. ZANETO, RESPONDENTS-ELECTORS and HENRY T. BERGER, PETER S. KOSINSKI, ESSMA BAGNUOLA, and ANTHONY J. CASALE, Commissioners constituting the NEW YORK STATE BOARD OF ELECTIONS, RESPONDENTS.
The Law Office of Gary L. Donoyan, Attorneys for Respondents-Candidates and Respondents-Electors-Candidates, By: Gary L. Donoyan, Esq., Mark Hanna, Esq., Of Counsel. Harris Beach PLLC, Attorneys for Petitioners-Objectors, By: Jared A. Kasschau, Esq., Of Counsel, Kyle D.Gooch, Esq., Of Counsel, Thomas J. Garry, Esq., Of Counsel, Chiara Haueter, Esq., Of Counsel. New York State Board of Elections, Respondents, By: Brian L. Quail, Esq., Of Counsel. Woods Oviat Gilman, LLP, Attorneys for Respondent-Candidate, Robert F. Kennedy, Jr., By: William F. Savino, Esq., Michael Ostrander, Esq.
The Law Office of Gary L. Donoyan, Attorneys for Respondents-Candidates and Respondents-Electors-Candidates, By: Gary L. Donoyan, Esq., Mark Hanna, Esq., Of Counsel.
Harris Beach PLLC, Attorneys for Petitioners-Objectors, By: Jared A. Kasschau, Esq., Of Counsel, Kyle D.Gooch, Esq., Of Counsel, Thomas J. Garry, Esq., Of Counsel, Chiara Haueter, Esq., Of Counsel.
New York State Board of Elections, Respondents, By: Brian L. Quail, Esq., Of Counsel.
Woods Oviat Gilman, LLP, Attorneys for Respondent-Candidate, Robert F. Kennedy, Jr., By: William F. Savino, Esq., Michael Ostrander, Esq.
HON. ROBERT G. BOGLE, ACTING SUPREME COURT JUSTICE.
Elaine Portuondo Smith and Andrena Y. Wyatt, Petitioners-Objectors, by way of Order to Show Cause, seek this Court to have the nominating petitions of Robert F. Kennedy, Jr. and Nicole Shanahan, Respondent-Candidates, and Respondent- Electors, declared null and void pursuant to Election Law 16-102 and to direct the Respondent New York State Board of Elections to remove the names of the Respondents-Candidates from the general election ballots, in summary, on the grounds of fraud. The Respondents-Candidates oppose the Petitioner-Objectors and request to the Court to deny and dismiss the petition.
A special proceeding was held before this Court on August 19, 20, 21, 22, 26 and 27, 2024. For the most part, the Court gives credence to a majority of the witnesses' testimony.
The following shall constitute the Findings of Facts, Conclusions of Law and the Decision and Order of this Court.
FINDINGS OF FACTS
Robert F. Kennedy, Jr. (Kennedy) and Nicole Shanahan (Shanahan), at the time of the filing of this petition, are candidates for President and Vice-President of the United States of America, as Independent candidates under the "We the People" party. As a result, "Team Kennedy" was formed to manage the operations of their election campaign.
In order to advance placement on the ballot in all 50 states and the District of Columbia, several companies were hired to facilitate this goal. Among these companies was Accelevate, which was put in charge of numerous states, including New York. In order to accomplish this objective, Accelevate needed to acquire sub-contractors to work the states for signatures for the ballot petition. New York requires 45,000 signatures for Independent Candidates to be placed statewide on the ballot.
Partially due to a recommendation by a local New York City council member, Accelevate hired Dark Horse/Meridian Strategies (Dark Horse) along with other sub-contractors for collection of signatures in New York City. Accelevate was unfamiliar with and unaware of Dark Horse before hiring them, Dark Horse was assigned to work mostly in Brooklyn and parts of Queens.
During the early phase of the trial, several witnesses, Joel S. Berg, Ira S. Pearlstein, Carlos Clazadilla, Kevin Littell, and Jeffrey Norquist, who were at various public locations mostly in Brooklyn and Queens, testified that they were asked to sign petitions for Presidential ballots without identifying the Kennedy candidacy. In all of their situations, the witnesses noted that the names of Kennedy/Shanahan shown at the top of the petition had been hidden and pinned back under the clipboard of the petition.
On April 26, 2024, Marie Therese Guirgis had a similar experience where two "assertive" male petition circulators requested Guirgis to sign a petition with the top of the page concealed (without explaining how it was concealed) Guirgis emailed Team Kennedy and received a response from William Boothby, who at the time was Northeast Regional Director. Boothby promised to investigate, stated it would be a "top priority" and noted that detailed instructions were provided to all canvassers. Thereafter, Boothby sent out an email to staff member Nick Brana, Trent Pool of Accelevate and David Owen, and made a phone call to David Owen. It was apparent from the start that Guirgis's email did not specify if the rogue circulator was affiliated with any specific sub-contractor or was an independent volunteer.
Testimony was taken from Dark Horse field manager, Andre Castro, Supervisor Rajiv Beepot and Manager Cameron Doughty, all of who stated that signatures were taken with the names of Kennedy/Shanahan clipped back, and there was a failure to mention the petitions were for the Kennedy ticket. This activity appears to have evolved as a desire for a greater number of signatures to be collected as the days went on.
Patricia Smith, a canvasser, was informed by some of her supervisors, including Castro, to not mention Kennedy and to fold back Kennedy's name. Ms. Smith declined and refused to engage in this activity. After working for two days in May, she was fired.
On May 9, 2024, the New York Times published an article alleging fraudulent activity of this type set forth by the witnesses who had testified at this trial. The day before, May 8, 2024, Team Kennedy and Accelevate were able to determine that the fraudulent activity was the result of circulators from Dark Horse. No other sub-contractors in New York City or elsewhere throughout New York state were determined to have engaged in fraudulent conduct.
Following the publication of the Times article, Team Kennedy went into "Defcon 1" (quote from Kennedy). Team Kennedy initially stated it would not use any of Dark Horses' 37,000 signatures and directed that Dark Horses' employment be terminated immediately. It was stated on X social media by campaign director Amarzellis Kennedy that all Dark Horse signatures were to be excluded, and this was also set forth by the campaign in a federal complaint in the U.S. District Court.
Thereafter, further discussions were held by Team Kennedy and Accelevate to assess the ongoing situation of the status of the ballots. According to Team Kennedy's senior ballot access counsel, Paul Rossi, Accelevate's Trey Pool initially suggested that all 37,000 signatures should be filed and let the New York State Board of Elections (NYS BOE) to be charged with review. This was completely rejected. The committee then went through "several 180's" (Kennedy's quote) over time to reach a decision. Eventually, it appears a consensus was reached that if some of the Dark Horse petitions were valid they would be acceptable to be filed, particularly since there were more than 100,000 signatures in addition to the signatures collected by Dark Horse. The basis of this determination was the result, at least partially, that Rossi believed that those who signed legitimate petitions to support the Kennedy candidacy deserved to be heard. Also, as Kennedy himself added, the many small donations who contributed to the petition campaign also deserve to have their contributions acted on and be heard. The parties believed this to be based on U.S. Constitutional First Amendment concepts.
After this decision was agreed upon, a "Curative Affirmation" prepared by Attorney Rossi, was sent to Dark Horse circulators by Accelevate to confirm those who did not engage in fraudulent activity. There were 104 affirmations completed, including one by Patricia Smith. Also, Rossi and David Owen relied on Trey Pool, (of Accelevate) to investigate and were satisfied with his review, which also concluded that fraud was strictly limited to Dark Horse.
Before the NYS BOE filing, Emily Eden and Attorney Kera Ramsey (both of Accelevate) reviewed the Dark Horse petitions when they were in New York City. The petitions were also later reviewed at the Long Island office by David S. Owen. They reviewed the petitions for "bent back" petitions where it is clear that there was an attempt to hide the name of Kennedy. Petitions were also checked for other fraud, such as signature fraud. Of these petitions, 25,000 total were rejected for filing.
Following a complete review of the 37,000 Dark Horse signatures, the group rejected 25,000 and found 12,000 valid and acceptable for filing. The 12,000 signatures were placed in the last box, box 75, if the NYS BOE should request further review.
According to the report of the NYS BOE dated July 9, 2024, 146,467 signatures were claimed and 37,385 were invalidated thus leaving valid 108,680, well more than the 45,000 required for a ballot position.
CONCLUSIONS OF LAW
The Burden of Proof under Election Law 16-102 for accusations of fraud is clear and convincing evidence, Matter of Valenti v. Bugbee, 88 A.D.2d 1056 (3rd Dept. 2011); Matter of Ferreyra v. Arroyo, 35 N.Y.3d 127 (2020). The clear and convincing evidence standard requires the party bearing the burden of proof to present evidence that makes it highly probable that what he or she claims is what actually happened. Currine v. McTague, 83 A.D.3d 1184 (3rd Dept. 2011). It is a standard which serves to impress the factfinder with the importance of the decision. Such proof cannot be loose, equivocal or contradictory. Morales v. State, 282 A.D.2d 245 (1st Dept. 2001).
Generally, a designating petition will always be invalidated on the ground of fraud where there is a showing that the entire designating petition is permeated with fraud. Matter of Finn v. Sherwood, 87 A.D.3d 1044 (2nd Dept. 2011). Even when the designating petition is not permeated with fraud, however, if the candidate has participated in or is chargeable with the knowledge of the fraud, the designating petition will generally be invalidated. Matter of Dearmeyer v. Stachura, 217 A.D.3d 1454 (4th Dept. 2023). This can occur even if there is a sufficient number of valid signatures independent of those signatures that were fraudulently procured. Matter of Drace v. Sayegh, 43 A.D.3d 481 (2nd Dept. 2007).
It is clear from all the testimony that neither of the candidates, Kennedy nor Shanahan, had any knowledge and were completely unaware of the Dark Horse fraud activities. Indeed, once upon determining that the offending culprit party was Dark Horse, Team Kennedy requested that Accelevate terminate and fire Dark Horse.
As for Ms. Guirgis's earlier email, it was not known if the rogue circulator was a volunteer or a paid worker, thus making it impossible to investigate until the arrival of the New York Times article.
In retrospect, it could be stated that it would probably have been the preferred practice not to submit any of the signatures of Dark Horse, particularly considering all the subsequent litigation it produced. However, Team Kennedy, for "First Amendment Consideration" opted, with certain safeguards to file a small number of vetted valid signatures due to the "First Amendment Constitutional" rights of individuals to have their signatures filed and for those who contributed small amounts. Additionally, the fact that there was already over 100,000 signatures collected over the 45,000 signature requirement showed they had already reached their goals.
Attorney Rossi provided "Curative Affirmations" to seek out non-fraudulent petitions obtained from Dark Horse and 104 were collected. Accelevate engaged in an independent investigation to assure Team Kennedy that only Dark Horse was involved with the fraud.
It is clear that most of the 25,000 fraud signatures were obtained by a combination of lying as to who the petition was for and hiding the name of candidate Kennedy. As Rossi and Owen testified, engaging in "soft fraud" would not have been successful. In "soft fraud," if a lie was made to the potential subscriber that person would shortly thereafter discover who that petition was for after looking at the non-covered name and the voter would not sign. That is why the pinned back petition was fraudulently used and could easily be detected and removed from filing. The Court further notes that all of the listings of the voter witnesses, with the exception of the ambiguous testimony of Guirgis, were situations of lying to the voter and then having the petition pinned back. This was the overwhelming and an almost exclusive nature of the fraud, resulting in the removal of 25,000 signatures as well as others that were also reviewed by Owen for other potential types of fraud.
Lastly, as a final safeguard, the remaining vetted 12,000 signatures were separated and placed in the last box, "Box 75," for further review by the NYS BOE should the need arise.
It is clear that the collected petitions of the "We the People" candidates were not permeated with fraud. The 12,000 Dark Horse signatures had been extensively reviewed before being filed in a separate box. A total of 146,467 signatures were filed at the NYS BOE. The Board rejected 37.385 and accepted 108,680 signatures. Even assuming all 12,000 Dark Horse signatures were accepted for submission by the NYS BOE, when this number is subtracted there are still 96,680 valid signatures, over double the 45,000 needed for the November ballot.
Courts have held where even if the candidate or his immediate staff are unaware of fraud, if such fraud permeates the required amount of signatures needed for a successful filing, the designating petition is declared invalid. Matter of Sgammato v. Perillo, 131 A.D.3d 648 (2nd Dept. 2015). This is not the case at bar, where even if the 12,000 were declared invalid (which they were not) a remaining non-permeated number of 96.680 signatures was more than sufficient over the 45,000 signature requirement.
Petitioner-Objectors note that two circulators, Khzeem Jaji and Amy Perez, have witnessed petition sheets in Box 75 and in some of the lower number boxes. This Court notes that neither were called as a witness. However, as testified by David Owen, it is not unusual for a circulator to move from volunteer to one of several vendors during a campaign. In any event, it is also a fact that all signatures in Box 75, by all circulators, were reviewed as acceptable for filing.
Lastly, assuming arguendo that even if the Court were to reject the petitions of these two circulators, a mere two people are insufficient to "show, as a matter of law, that an entire designating petition is permeated with fraud." Matter of Klugman v. King, 242 A.D.2d 346 (2nd Dept. 1997); Matter of Meeks v. Pruitt, 185 A.D.2d 961 (2nd Dept. 1992).
A petition also will be permeated with fraud if the candidate has participated in or is chargeable with knowledge of the fraud, even if there are enough signatures for filing. Matter of Butterschon v. Salatino, 164 A.D.3d 1588 (4th Dept. 2018). This is also not the situation in the case at bar.
There was no testimony presented that indicated Kennedy or Shanahan were involved in or had any knowledge of the fraudulent activities of Dark Horse. See, Matter of McHugh v. Comella, 307 A.D.2d 1069 (3rd Dept. 2003). Nor was there any testimony as to the knowledge of Dark Horse's conduct attributable to Team Kennedy or Accelevate. See, Matter of Overbaugh v. Benoit, 172 A.D.3d 1874 (3rd Dept. 2019). Indeed, action was taken to terminate Dark Horse immediately.
Team Kennedy initially rejected the filing of all petitions, and instead opted to limit the filing to a smaller, carefully vetted number of signatures. The entire 37,000 signatures were subject to several reviews by professional practitioners in the field and 25,000 were removed. Curative Affirmations were obtained from 104 circulators. A remaining 12,000 signatures survived the vetting process. Finally, they were kept in a separate box (Box 75).
This Court distinguishes many of the cases submitted by the Petitioner-Objectors. Most, if not all of the caselaw submitted, concern the candidates's conduct on the workings of the local campaigns, either supervisory or actually collecting signatures See, Matter of Haygood v. Hardwick, 110 A.D.3d 578 (2nd Dept. 2013); Matter of Grynspan v. Moore, 194 A.D.3d 1493 (4th Dept. 2021). That was not the situation of the case at bar, which involved a candidacy with potential ballot placement in all 50 states and the District of Columbia, with a large professional staff equipped with checks and balances.
The cases submitted by the Petitioner-Objectors involved fraud that occurred after the filing of the designating petition. Here, the fraudulent petitions were never filed and to help remedy the circumstances, the remaining ones were subject to an arduous review. This was clearly an intent to ensure that valid signatures be filed, in accordance with Team Kennedy's First Amendment belief that voters should be heard. No wrongful intent could be found or chargeable to Team Kennedy or the candidates themselves. Matter of Felder v. Storobin, 100 A.D.3d 11 [2nd Dept. 2012].
Therefore, no permeation of fraud existed on the part of the candidates Kennedy and Shanahan, nor on the part of Team Kennedy.
DECISION and ORDER
In reaching this determination, this Court reviewed the pre-trial and post-trial memorandums of both the Petitioner-Objectors and the Respondent-Candidates and Electors, as well as the exhibits and transcripts of the Court proceeding.
Accordingly, the Petitioner-Objectors have failed to meet their burden of clear and convincing evidence. The petition is denied and hereby dismissed.
This determination shall constitute the Decision and Order of the Court.
SO, ORDERED.