— PART 3 IN A MULTI-PART SERIES —
Focus — Going into primary day 1996, both the Brooklyn Democratic and the Brooklyn Republican Parties were poised for heavily contested primaries. The primaries that should have settled those intra-party disputes turned into complete fiascos with multiple complainants coming forward in court with their arguments and evidence of widespread fraud related to the alteration, distribution and operability of the mechanical voting machines.
— Federal Court was skeptical of claims that Board of Elections’ errors were inadvertent and did not benefit specific candidates in the 1996 Primary
— A similar electoral atmosphere and environment to 1996 is there for the 2013 Primary
In order to attempt to steal an election on a county-wide basis in Kings County, an urban borough large enough to be referred to as “the fourth largest city in America,” you need a perfect storm among the Democratic and Republican operators at the Board of Election having concurrent interests in steering the outcome of the election or elections being conducted.
In Brooklyn, the elements of such an electoral perfect storm were present in the1996 primaries, because of the presence of at least two hotly contested primaries, one involving the bedrock base of the Brooklyn Republican Party in Bay Ridge, Dyker Heights and Bensonhurst; and the other among massive factions in the Democratic Party countywide squabbling over the selection of their candidate for Kings County Surrogate. As things moved forward, each of those contests would have a direct impact on the future course of both parties; and there was plenty of motivation for various players and groups to try to tip the scales in favor of their chosen candidates.
The biggest, most observed and reported upon, and most criticized primary in 1996 in Brooklyn was the Democratic Primary to select a new Kings County Surrogate. In April, Timesman Jonathan Hicks wrote: “Once informally called the Widows and Orphans Court, the Surrogate's Court is a mystery most familiar to those few voters dealing with estates and adoptions. But politicians know it as a last bastion of patronage, funneling hundreds of thousands of dollars a year to lawyers who serve as guardians and conservators in thousands of estate cases." The New York Times and Hicks would also opine that, “This year the race will also determine who controls the Democratic Party in Brooklyn. In fact, it is already revealing in a most unvarnished form the fractious, balkanized nature of politics in New York City's most populous borough....” (See “A Little Brooklyn Job With Lots of Influence” by Jonathan P. Hicks, 4/14/96 [http://www.nytimes.com/1996/04/14/nyregion/a-little-brooklyn-job-with-lots-of-influence.html]). The Times piece, which loosely described several of the competing factions and quoted several of Brooklyn’s key Democratic leaders ended with this ominous and predictive quote: “ ‘This is a test of the strength of the county organization,’ [Clarence A. Norman Jr., Assemblyman from Crown Heights and the Brooklyn Democratic Party Leader] said. “That's why we have to go all out for this.” What was not discussed by Mr. Hicks in this article about the Brooklyn Surrogates' race were the obvious machinations that were ongoing at another more aptly described and entitled “last bastion of patronage” — the Board of Elections; the non-mention of the BOE would change with some of Hick’s reports after the 1996 primary for Surrogate and other 1996 Brooklyn primaries.
Simultaneous to the simmering brouhaha percolating among the Brooklyn Dems over their 1996 choice for Surrogate, Kings County and other NYC Republicans were squaring off for a fight of their own on what was then considered by some Republicans to be the last remaining piece of GOP turf in Brooklyn. In the 23rd State Senate District including parts of Brooklyn into parts of Staten Island, Republican incumbent State Senator Robert DiCarlo had influential political enemies, including Brooklyn County GOP Chairman Arthur Bramwell and Staten Island Borough President Guy Molinari. DiCarlo had some powerful political friends of his own, including Mayor Rudolph Giuliani. Things had gotten so intense that Guy Molinari had become chairman of Dicarlo’s primary opponent John Gangemi's campaign. ( See “Republicans Fighting Over Seat in Brooklyn” by Jonathan P. Hicks, 4/26/96, NY Times [http://www.nytimes.com/1996/04/26/nyregion/republicans-fighting-over-seat-in-brooklyn.html]; also see “Intraparty Rivalries Go To Polls” by Marc Humbert, 9/8/96, Associated Press/ timesunion.com [http://alb.merlinone.net/mweb/wmsql.wm.request?oneimage&imageid=5780455]). All of this was intended to deny incumbent State Senator Robert DiCarlo the GOP line for State Senate in the 1996 General Election and ultimately to try to run him out of Brooklyn GOP politics completely. Bramwell had taken over the Brooklyn GOP after defeating the DiCarlo faction in 1993; and by the time of the 1996 primary, The Bramwell faction had virtual control of all the key Republican operatives at the BOE. For many in the Brooklyn GOP those were indeed desperate times and some said they called for desperate measures.
On Primary Day, September 10, 1996, it didn’t take long for it to become obvious what form those desperate measure might have taken. “A colossal snafu delayed poll openings across much of Brooklyn for [the 1996] primary election, triggering a voter hue-and-cry and demands for an investigation and new elections. Blamed on a last-minute court-imposed ballot change in the race for Brooklyn surrogate, the voting chaos overshadowed the few hotly contested races in which several incumbents were in trouble. In Brooklyn, Republican State Sen. Robert DiCarlo narrowly trailed challenger John Gangemi, who declared victory although he led by fewer than 200 votes.... DiCarlo decried the Election Day chaos and called for a federal probe. Court action is likely over the outcome.... In the race for Brooklyn surrogate, which sparked the Election Day chaos, favorite Michael Feinberg led with 45% of the incomplete vote tally. Lila Gold had 39% and Howard Lasher had 15%. This is the race most likely to face a rerun. Late arrival of hundreds of voting machines kept scores of Brooklyn voting sites closed for hours after the 6 a.m. official start. At some polls, voters were given paper ballots or asked to return later. Others were simply locked out. ‘It was the worst ever in the 30 years I've been here,’ said Daniel DeFrancesco, executive director of the city Board of Elections. ‘I apologize. I understand voters' screaming, but this was like a Murphy's Law election everything that could go wrong did.’ At least 400 of 1,900 Brooklyn voting machines were delivered up to eight hours late, officials said.” (See “Late Vote A Primary Concern in B’klyn” by Tara George, Bill Farrell, and Frank Lombardi, 9/11/96, NY Daily News
“Officials said polling places across a wide swath of Brooklyn, including Fort Greene, Carroll Gardens, Brooklyn Heights and Coney Island, had no voting machines when the polls officially opened at 6 A.M. yesterday, and some sites were still closed as late as 3 P.M., frustrating voters who turned up to cast their ballots. *** While the election focused primarily on a relatively obscure race, the Democratic primary for the county surrogate's job, the ballot problems potentially affected dozens of other races, and gave the losers possible grounds for contesting the results. In addition, the delays exposed the complications of the electoral process in New York City.... Councilman Kenneth K. Fisher said the late [changes to the ballot] was no excuse for depriving many New Yorkers of their chance to vote, and he asked the United States Attorney General to open a Federal civil rights investigation under the auspices of the Voting Rights Act. *** ‘This is not the first time it's gone down to the wire,’ said Mr. Fisher, who was turned away from his polling place at Public School 8 in Brooklyn Heights when machines had not arrived by 11:30 A.M. ‘Normally, they'd send machines out and you'd just pull the names off, he said. ‘Clearly, they did something different today than they've done in the past’.” (See “Primary Voting in Brooklyn Disrupted by Lack of Machines” by Charisse Jones, 9/11/96, NY Times
Soon several candidates were marching into court. “Charging they were robbed by a mammoth Primary Day snafu in Brooklyn, two defeated candidates said yesterday they will go to court to force a new election. Republican State Sen. Robert DiCarlo lost by 149 votes, while Brooklyn Surrogate's Court candidate Lila Gold, a Democrat, was swamped by more than 6,000 votes. ‘I believe there was massive fraud going on here involving up to the highest level of the Board of Elections,’ said DiCarlo. ‘I can prove that I had more than enough votes to win based on the people who said they couldn't vote for me because machines weren't there.’ Hundreds of voting machines weren't delivered to Brooklyn sites for up to eight hours after the polls opened at 6 a.m. Tuesday. Many voters were turned away. Aides to Brooklyn U.S. Attorney Zachary Carter and Brooklyn District Attorney Charles Hynes said any complaints will be examined. Neither indicated plans were under way to launch probes. However, Public Advocate Mark Green announced he would conduct an administrative investigation to determine why so many machines were delivered late, hoping to prevent repeats of the ‘disenfranchisement of thousands’....” (See “B’klyn Losers Cry Foul Say They’ll Go To Court In Vote Machine Snafu” by Frank Lombardi, 9/12/96, NY Daily News [http://www.nydailynews.com/archives/news/b-klyn-losers-cry-foul-court-vote-machine-snafu-article-1.741632]).
The failure to timely deliver the mechanical voting machines was not the only irregularity that plagued the voting machines on September 10, 1996. I have interviewed several witnesses that remembered details of the 1996 primary. Among the problems that were recalled: several of the small voting levers next to certain candidates’ names were jammed throughout Brooklyn with several machines reported with jammed candidate levers in polling places in Windsor Terrace from early in the day; name rotations on the machines were not observed in whole neighborhoods: and maintenance crews went through polling places and made changes to the face cards on the voting machines (possibly reversing the names of candidates mid-vote).
A Federal District Judge, Hon. David Trager, EDNY, who conducted several days of hearings about the 1996 primaries, said early in the proceedings that the widespread foul-ups in the 1996 primary elections in Brooklyn had interfered with many people's right to vote, and he assailed the system that led to those failures. He also said to one of the trial lawyers on the case that he thought that it was entirely “possible that the ‘procedures used by the Board of Elections were designed to end up with this result,’ although he did not elaborate on how delays in delivering voting machines might have benefitted a particular candidate.” (See “Judge Attacks Ballot System's Failures” by Joseph P. Fried, 9/21/96, NY Times [http://www.nytimes.com/1996/09/21/nyregion/judge-attacks-ballot-system-s-failures.html?n=Top%2fReference%2fTimes%20Topics%2fSubjects%2fP%2fPrimarie]).
The New York Times and its reporter Joseph Fried did almost daily reports on the 1996 Primary cases before Judge Trager. What was obvious throughout the proceedings is that the witnesses from the Board of Elections were giving inconsistent and unreliable testimony on various aspects of the failure of the BOE to have voting machines at all polling places in proper working condition for Primary Day, September 10, 1996.
On September 27th, 1996, Mr. Fried’s report in the Times indicated that Judge Trager, who had been asked to order new primary elections in about ten different cases because of ballot problems that kept many voters away from the polls in Brooklyn, said that in at least one race, he might instead reopen the polls so that people who did not vote would have an opportunity to do so. Specifically referring to the case involving a Democratic Primary race for the Assembly seat held by incumbent Felix Ortiz, whose opponent was candidate- plaintiff John Kennedy O’Hara, Judge Trager announced that “The October balloting would not be a new primary election or a special election, the judge said, but a ‘continuation’ of the election ‘for those whose right to vote was denied’ because of the mix-ups.” (See “U.S. Judge May Reopen Primary Polls” by Joseph J. Fried, 9/27/96, NY Times [http://www.nytimes.com/1996/09/27/nyregion/us-judge-may-reopen-primary-polls.html]). Since that remedy appeared to satisfy none of the parties in his court, an appeal to the U.S. Circuit Court of Appeals was virtually guaranteed; and as Fried of the Times reported on September 27th, “...as [Democratic Assembly Candidate John Kennedy] O'Hara put it, the Sept. 10 balloting was too ''tainted'' to be retained. He vowed to appeal if [Judge Trager] did not order a completely new election in his race.”
On the following day, after assessing some of the worst polling-place foul-ups in New York City history, Judge Trager declared that ''incompetence'' by the Board of Elections had prevented many voters in Brooklyn from casting ballots during the recent primary election in nearly a dozen legislative and judicial races in Brooklyn. Judge Trager said that the whole primary had been a ''massive snafu'' by the Board of Elections, as a result of its ''failure to supervise what was going on.'' He also said some kind of remedy was in order, but that it would be the ''limited relief'' of reopening the polls, but only for those who had been unable to vote (See “Judge Blames Board of Elections for Problems During a Primary in Brooklyn” by Joseph P. Fried
9/28/96, NY Times [http://www.nytimes.com/1996/09/28/nyregion/judge-blames-board-of-elections-for-problems-during-a-primary-in-brooklyn.html]). The major failure in the 1996 Primary was the late delivery of hundreds of voting machines at scores of polling places across the Borough of Brooklyn, with some machines not arriving until late afternoon for balloting that was supposed to have begun at 6 AM that morning.
According to his September 28th report, Joseph Fried noted that: “The judge made his remarks on a day when testimony by the supervisor of the Board of Elections warehouse in Brooklyn painted a picture of confusion and uncertainty at the warehouse on the night before the primary as attempts were made to ship hundreds of machines to polling sites in time for the 6 A.M. opening. *** The supervisor, John Barrile -- whose father, Leo Barrile, is chief clerk of the Brooklyn office of the Board of Elections -- also told of a decision around midnight to stop the shipments after truckers making the deliveries reported, he said, that schools where many of the polling places were located were closed. *** School officials have denied that voting-machine deliveries were thwarted by closed school buildings. *** The absence of the machines after the polls opened at 6 A.M. caused a large but undetermined number of voters to be turned away when they arrived, and the losing candidates hold that the delays in delivering the voting machines, and in some cases problems with machines that had been delivered on time, could have cost them the election while depriving people of their right to vote.” The very same Times report also specifically stated that “In a year in which there were no statewide or citywide contests to draw voters, the most prominent races in the borough were the surrogate race and the Republican primary in the 23d Senate District.”
On October 1, 1996, Judge Trager of the United States District Court for the Eastern District of New York entered an order that granted a preliminary injunction directing the continuation of the September 10, 1996 Democratic primary election for Surrogate of Kings County and certain other offices in Kings County in a number of specified election districts, with the “continuation” of the primary election to be held on October 10, 1996.
However, Judge Trager’s Decision and Order didn’t stand for very long, on October 8, 1996, a panel of the U.S. Second Circuit Court of Appeals issued a terse “Per Curiam” order reversing the Trager decision and countermanding his order ( See Gold v. Feinberg, 97 F.3d 680 [2d Cir.1996]). The NYC BOE immediately cancelled the continued primary in Brooklyn. According to the last in Joseph Fried’s series of reports in the NY Times about the federal cases that had been made of the 1996 primaries in Brooklyn, “after new court rulings, officials canceled plans to reopen balloting at more than 100 polling places in Brooklyn. *** The cancellation means that the results of the Sept. 10 primary balloting -- in which many voters were turned away from the polls because hundreds of voting machines were not delivered on time -- will stand as final, unless further court action dictates otherwise.” (See “Renewed Primary Voting Is Canceled in Brooklyn” by Joseph P. Fried, 10/9/96, NY Times
When the formal decision was filed by the Second Circuit on October 28,1996, the court indicated that the Judge Trager had abused his discretion in issuing the preliminary injunction ordering a continuation of the state senate primary, because it did not understand and/or follow controlling precedent from a 1970 case that continued to be the governing law in the circuit with jurisdiction over Kings County, New York. Without mentioning any of Judge Trager’s observations about the September 10th Primary, the Circuit Court of Appeals said that there was no evidence of any specific intentional or willful conduct by any state officials necessary to establish a federal claim for deprivation of the right to vote, thus none of the plaintiffs established a likelihood of success on the merits or a sufficiently serious question going to the merits of the appeal. Consequently, the district court's preliminary injunction had to be vacated in its entirety (See Gold v. Feinberg, 101 F.3d 796 [2d Cir. 1996]; see also Coto v. New York City Bd. of Elections, 101 F.3d 803 [2d Cir. 1996]).
There was little left for the losing parties to do except petition the U.S. Supreme Court for emergency relief. One of those was John Kennedy O’Hara, who according to Judge Trager had one of the strongest cases that Board of Elections wrongdoing had disrupted and distorted the result in his primary election in the 51st AD. O’hara had prepared to go to Washington, D.C. early in the morning of October 21,1996 and, if necessary, to appear before Justice Ruth Bader Ginzberg and present his emergency petition. But that didn’t happen; late on the night of October 20, 1996, O’Hara’s election lawyer, Rob Meyers, was called by the Brooklyn DA’s office and told that John Kennedy O’hara had been charged with multiple counts of “Election Fraud” in connection with various elections from 1992 onward, and that if O’Hara didn’t turn himself in, he’d be arrested. O’Hara turned himself in and was booked on “Election Fraud” charges on October 21, 1996 instead of going to Washington to help pitch his case to Justice Ginzberg.
Interestingly, until early 1996, Harvey Greenberg was the former Chief of Staff of the Brooklyn DA whose office had called and said it was charging Mr. O’Hara with the multiple counts of “Election Fraud” the night before O’Hara had announced and was scheduled to go to the Supreme Court for emergency relief. What’s more, Greenberg had recently resigned from his duties at the Brooklyn DA’s Office in order to help run the campaign of Michael Feinberg in his run for Surrogate in the 1996 primary and election. Greenberg served Feinberg in a plenipotentiary capacity that was similar to what he had done for the election of the Brooklyn DA. Greenberg's post for Michael Feinberg was more significant than chief counsel, campaign manager and/or chairman. Needless to say, the legal positions Greenberg had taken on behalf of candidate Feinberg on all of the issues connected to the disruption of the voting in the 1996 primary caused by problems with the delivery and use of the lever voting machines were completely adverse to those that would have been advanced by John Kennedy O’Hara. Also, none of the charges that the DA had brought against O’Hara involved the 1996 campaign, primary or election; to have brought such charges might well have given rise to the issues of a direct conflict of interest and/or the appearance of impropriety involving the Brooklyn DA and his former top executive employee, Mr. Greenberg.
In the 1996 General Elections, Michael Feinberg easily won his election for Kings County Surrogate. However in the 23rd Senate District, the nasty Republican primary fight left a three-way split that let Democrat Vincent Gentile literally sneak in with 50.9 % if the vote. Incumbent Sen. Robert DiCarlo, after losing the primary and challenging the results in court, had campaigned vigorously on the Conservative Party line, making life miserable for GOP nominee John Gangemi; but in the end, Gangemi finished second and DiCarlo came in last.