The Perfect Enemy | Staten Island grand jury calls for election law changes after investigating fraud charges in ‘21 race
December 2, 2022

Staten Island grand jury calls for election law changes after investigating fraud charges in ‘21 race

Staten Island grand jury calls for election law changes after investigating fraud charges in ‘21 race  SILive.com

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STATEN ISLAND, N.Y. — A grand jury convened to consider allegations of fraud in a 2021 Staten Island primary issued a blockbuster report calling for changes to state election law after the panel said it found there was criminality involved in the race.

The report, thought to be the first of its kind, was announced by District Attorney Michael E. McMahon on Monday.

The grand jury report that New York State Supreme Court Justice Wayne Ozzi released to the public earlier this month lays out the jury’s concerns with an unspecified June 2021 primary election on the borough.

The grand jury said it found that fraud had occurred in that primary, but that it did not affect the outcome of the election due to the safeguards in place at the time. Despite that, the group concluded that an overhaul of the state’s electoral system is needed.

The report cited several specific incidents of alleged signature fraud in the unspecified 2021 election that, according to the panel, included a man signing an election document after his death, and multiple signatures for different people that looked to have been written by the same person. The grand jury made recommendations instead of filing charges because the alleged fraud could not be ascribed to any individual, officials said.

Though the courts empaneled the grand jury, McMahon announced the report Monday and his office helped guide the jury through its proceeding.

“This report should alarm all involved in the electoral process on Staten Island and across New York City and State, including the general voting public,” McMahon said. “I personally do not believe the outcome of this particular primary was affected by the misconduct found by the grand jury. However, the report does provide an aperture to view many possible scenarios where the results could be tainted if action is not taken.”

CHANGES TO ELECTION LAW

The grand jury’s report recommends changes to current election law, particularly augmentations to reforms that passed in recent years expanding absentee ballot access amid the coronavirus (COVID-19) pandemic.

While the report took issue with some practices at the New York City Board of Elections (BOE), including its lack of professionally-trained handwriting analysts, BOE Deputy Executive Director Vincent Ignizio wrote in a statement that the entity would continue to follow the law as written.

“The Board of Elections in the City of New York is an administrative agency bound by the laws of the State of [New York],” he wrote. “Any potential alteration to the election law this report asserts can be considered by legislators in its upcoming session, which begins this January. We stand at the ready to implement what is enacted into law.”

In addition to the chaos of COVID-19, the election law changes the grand jury took greatest issue with occurred during Democratic super majorities in both houses of the State Legislature, and there has been no sign of rolling those changes back.

Neither the office of State Senate Majority Leader Andrea Stewart-Cousins (D-Yonkers) nor Assembly Speaker Carl Heastie (D-Bronx) responded to requests for comment by the time of publication, but Perry Grossman, a New York Civil Liberty Union supervising attorney who leads the organization’s efforts on voting rights issues, said changes reverting back to the old system are unnecessary.

“The current system is good for the integrity of elections,” he said. “I think it’s really good to ensure that New Yorkers are able to have their vote counted.”

One key point Grossman took issue with in the report was the grand jury’s desire to restore the ability of campaigns to object to absentee ballots during vote counts.

Previously, campaign staffers had the chance to object to voter signatures, but Grossman said those objections often amounted to political gamesmanship that saw campaigns object to ballots simply because they appeared to be in favor of a rival candidate.

More broadly, Grossman took issue with the report because it has never been proven that widespread voter fraud has had a meaningful impact on any U.S. election.

“We keep hearing these fantastical theories about how there could be fraud, but the fact is that there isn’t, because voter fraud doesn’t make any sense,” Grossman said. “It is like robbing a bank to steal pennies. It is a terrible value proposition.”

One area where Grossman found common ground with McMahon’s office is in the perception of the report as unique.

The civil rights lawyer and Assistant District Attorney Jon Chananie, chief of the Public Corruption Unit in McMahon’s office, said they believed the grand jury report was the first of its kind released in the state.

INSIDE THE REPORT

The assistant district attorney, like the rest of McMahon’s office, did not specify which election the grand jury reviewed, but laid out some of the group’s work that started in September.

They reviewed documents related to the case while hearing from eyewitnesses with specific knowledge of the election and from a forensic expert skilled in handwriting analysis.

“After they had heard all these facts, they were given the opportunity…to issue a report, and they voted in the affirmative that they did,” Chananie said. “They identified some of those… trap doors in the existing law through which, unfortunately it’s easier than it should be for [someone] to vote in your name.”

Under the state’s grand jury law, their reports can propose legislative action based on their findings, but cannot be critical of an identified or identifiable person when doing so.

Despite that requirement, the case described closely mirrors the 2021 Republican primary for the Mid-Island’s City Council seat that came down to City Councilman David Carr (R-Mid-Island) and Marko Kepi.

Marko Kepi (left) and City Councilman David Carr appear in a composite photo. (Staff Composite Photo)David Carr

That race marked the first citywide experience with ranked-choice voting. After the first count round, Kepi led Carr and three other competitors, including Assemblyman-elect Sam Pirozzolo, but that changed as the count rounds went on, according to New York City Board of Elections records.

After all other candidates had been eliminated, Carr emerged victorious with just 42 votes more than Kepi in the fifth and final round.

The race was so close that it resulted in multiple legal actions that culminated in an August 2021 decision from New York State Supreme Court Justice Ralph Porzio in Carr’s favor.

After the court sifted through 160 ballots that the New York City Board of Elections rejected due to voter signatures not matching registration records, Porzio’s decision mostly agreed with the board’s findings only admitting two of the rejected ballots.

The court’s review found similar concerns that the Board of Elections outlined, and Porzio issued a scathing review of the alleged fraud.

“While this Court recognizes that its jurisdiction in this case is limited to determining if the Board made a ministerial error in rejecting the 160 ballots, the Court could not help but make a record of these patterns since they were so glaringly obvious and deeply concerning,” the judge wrote.

During the legal battle, Kepi had decried the count process, saying that ballots tossed were primarily among Albanian-Americans, a community of which Kepi is a member, and vowed to fight on.

In last year’s ruling, Porzio found Kepi failed to prove the BOE or Carr were motivated to suppress votes among the Albanian-American community and did not offer any evidence showing the board deemed the 160 ballots “uncured” based on ethnicity.

On Monday, Kepi did not respond to a request for comment by the time of publication, but Carr said it was important to try to rectify the circumstances that led to the alleged fraud outlined by the grand jury.

“Sadly, it is Staten Islanders who are the victims here after having had their votes and their identities stolen,” the councilman said. “This report underscores that election integrity is a real issue that deserves the attention of state legislators in order to safeguard our democratic process and restore public trust.”

During the vote count, things became so contentious that BOE General Counsel Hemalee Patel sent letters to state Attorney General Letitia James and the United States Department of Justice (DOJ) asking them to launch investigations at the state and federal levels into ballots connected to Kepi’s campaign.

That didn’t happen, but McMahon’s office launched a criminal investigation into Kepi’s campaign amid the allegations of election fraud. No charges have been filed in that investigation.

BURDEN OF PROOF

Chananie said that while cases of signature fraud may seem clear to the general public, the burden of proof is much higher in a courtroom. Simply put, proving someone actually wrote their own signature on a fraudulent document requires more proof than just the signature.

In publicizing the report, McMahon said Monday that he hoped elected officials in Albany would take heed of the grand jury’s warnings, and make it more difficult for potential fraudsters to cheat in New York elections.

“While the report of this grand jury concerns only the actions of those involved in a particular primary election on Staten Island in 2021, this is surely not the only contest where efforts to illegally impact the outcome through ballot malfeasance have taken place,” he said.

“It is our sincere hope that through the release of this report and advocacy to policymakers and lawmakers, New York’s election system will be strengthened and secured to the level necessary to inspire total confidence in election outcomes. Staten Islanders deserve nothing less, and we look forward to the work ahead in urging these changes be adopted without delay.”

According to McMahon’s office, some of those recommendations include:

  • Strengthening the process by which applications to change voter information (name change, party registration change, address change, etc.) and applications for an absentee ballot are submitted by requiring proof of identity beyond publicly available information.
  • Requiring absentee ballot applications be submitted on paper with ink signatures, and require those signatures match the signature on the corresponding voter’s registration form before an absentee ballot is issued.
  • Mandating local boards of election retain the services of qualified experts in the field of forensic document examination to review absentee ballot envelope signatures for potential fraud.
  • Prohibiting absentee ballot applications and absentee ballots themselves from being sent to an address associated with a candidate’s campaign. Currently, this practice allows “vote harvesting.”

‘VOTE HARVESTING’

McMahon, who first took elected office in 2002, took particular issue with the practice of “vote harvesting” by which political campaigns collect supporters’ absentee ballots en masse before turning them in.

While he didn’t say whether he’d be running for re-election in next year’s campaign, McMahon said that he’d never used the practice in one of his campaigns, and wouldn’t be using it should he run next year.

The district attorney, who’s been in his current office since 2016, noted that election integrity had become a hot political issue after recent election cycles, and that the proposed changes would provide New Yorkers with a greater sense of confidence in their elections.

He also said that the recommendations would strike a fair balance between election integrity and the needs of legitimate absentee voters.

Throughout its report, the grand jury conceded that its recommendations would create new burdens for people hoping to cast legitimate absentee votes, but still found it necessary to make their suggestions.

“The importance of protecting election integrity, particularly in such troubled times as these, cannot be overstated. Even perceived flaws in election security, let alone actual flaws, weaken confidence in elections,” the grand jury wrote in their report.

“Therefore, we urge our elected representatives, Board of Elections policymakers, and other stakeholders to review, consider, and act upon these recommendations without delay. Preserving the very fabric of democracy in the state of New York deserves no less.”