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Erie County Ballot Tampering: Most Unprosecutable Case Ever?

Yesterday, Erie County Executive Chris Collins appeared on FOX News to accuse his Democratic opponent, Mark Poloncarz, and the New York State Democratic Party of commissioning a veteran Democratic Party operative at Erie County Board of Elections to create the appearance that Republican operatives at the Erie County Board of Elections where conspiring to commit election fraud on behalf of Collins, in order to embarrass Collins in the last two weeks of a race that, according to an independent poll, is closer than the Collins campaign has been pretending it to be for the past several months.

(Try reading that sentence aloud without pausing to take a breath.)

At first Poloncarz reacted to the revelation that absentee ballots had been sent to some Lackawanna voters with Collins’s name already filled out by accusing the Collins campaign of resorting to dirty tricks. Soon, word leaked that the person of interest (in the parlance of the times) is in fact a Democrat who works at the BOE, Mark Galvin, who has been around since the Gorski administration and who worked very hard for Democrat Jim Keane in 2007 but is not close to Poloncarz. Poloncarz then backed off his accusation, calling for a thorough investigation of the incident and prosecution of the parties responsible.

The Erie County Sheriff’s Department is investigating the case, which involves at least 10 ballots; last week the sheriff indicated that an arrest was imminent but that nothing his investigators had learned indicated that neither campaign had been involved. Which is to say, the conspiracy Collins tried to peddle on FOX News is nonsense—and that Collins is guilty of the “irrational zeal to blame others” with which his spokesman, Stefan Mychajliw, characterized Poloncarz’s initial reaction.

Whether Galvin is guilty or not, the case is close to unprosecutable. First, if Galvin’s fingerprints are on a ballot pre-marked for Collins that was returned to the BOE because of an address, that proves nothing: It’s his job to handle the ballots and the envelopes.

Second, anyone who wanted to try Galvin or anybody else for tampering with ballots would have to overcome a difficult chain of custody issue: Within the offices of the BOE, the handling of ballots always occurs in the presence of at least one Democratic and one Republican employee. That’s how it works when the absentee ballots are stuffed into addressed envelopes.

But before the ballots are stuffed into the envelopes, they are sent outside the BOE to a private firm—in this case, Elma Printing on Clinton Street—to be folded by a machine. It’s a tricky five-fold process, and the machines that can do that are expensive, so the BOE outsources the work. There is no team of Republicans and Democrats present to supervise that process, according to the BOE: The ballots are sent out to be folded and then returned to the BOE, where employees proceed to stuff them in envelopes.

So the ballots are  in private hands, unmonitored, for a period of time.

This is not intended to cast suspicion on Elma Press, only to suggest that a prosecutor faces a difficult obstacle here. The threshold is reasonable doubt, and a good defense attorney could argue that no one knows what happened to the ballots while in the possession of the private contractor. A prosecutor can’t build a strong argument on the political interest of the parties involved, either: Galvin is a Democratic operative who donated to Democratic campaigns but never directly to Poloncarz; the owners of Elma Press are Republicans who have donated to Republican campaigns but never directly to Collins.

Again, I’m not suggesting that Elma Press is in any way responsible and I’m not trying to exonerate Galvin or anyone else. I’m just saying that, barring something like video evidence or an admissible confession, the case seems to me unprosecutable. And that all of those who dutifully reported last week that an arrest was “imminent” have not asked enough questions.

The sheriff’s investigators know this; the outsourcing for folding was discussed with the BOE. They also know that, the way the ballots were folded this year, the races for county executive and county family court judge were on the top-facing fold. So the ballot tamperer, if there was one, need not unfold them to mark them for Collins and then refold them.

Still, it seems to me that the chain of custody issue poses a problem for a potential prosecution. Any lawyers out there want to weigh in?

 


  • Peter A Reese

    What’s the motive? Influence the election or make the other side look bad? Why is this guy even under suspicion? How about the Rep handling the ballots? Primary suspect has already lawyered up. He’s not talking and he shouldn’t. As Geoff points out, chain of custody alone creates reasonable doubt. Mohr says he can’t see how it happened. Maybe Ward did it. DNA, fingerprints? What do they prove? You might be justified in firing an employee who refuses to answer questions, but criminal conviction? Not going to happen.

  • Jay360

    dear Artvoice Editorial staff. your investigative sleuthing, ability to think through the dribbling campaign haze, and obvious credentials to your sources puts that other local print team-McCarthy and Watson, who must use themselves as their own sources, to shame! speaking the truth to power is your forte! Now the snews team is agreeing with you a day later that charges are unlikely after announcing in print earlier that an “arrest was “imminent”.

    this whole ballot thing was either designed as or has become one of those misdirectional ploys to take attention away from the real dirty tricks like those annoying and continuous phone calls to Poloncarcz supporters. Sounds like one of those anonymous PAC driven roviankochpidgeon ploys to roil confidence in democracy.
    brrrrrr…its getting cold again in Buffalo!

  • NOBODY

    I heard it was Donald Duck in the Library with a wrench.
    Who’s the next fall guy in the political witch hunt??
    Tired of seeing the same old politics year after year??
    It’s 2012, it’s the end of the world and NOBODY CARES!!!
    NOBODY has your back, NOBODY will turn the system around.
    Stop putting somebody in office, Vote NOBODY for real CHANGE.
    Corporations run the nation, They elect YOUR president.
    ELECT NOBODY 2012ELECT NOBODY 2012ELECT NOBODY 2012!!

    occupy your mind, be a poet!!

  • Peter A Reese
  • dana gwin

    The only way damnocrats can get things done is to use trickery, lies and fraud to con votes from the ignorant and misinformed because most Americans believe in capitalism, the American work ethic and limited government involvement in commerce. After 3 years in the “Socialist Welfare State of New York” it is amazingly easy to see why this state is lower on the food chain than most third world countries…(makes my Mississippi home state look like the intellectual center of the universe…thanks!. At least your obselete unions have driven a lot of jobs to the south…unfortunately they drove most of them out of the country. And while we’re at it…what were you numbskulls thinking when you drove Bass Pro out of Buffalo. That was sheer idiocy…look around you and see what this area has become and use a little logic and you’ll see who the real culprits have been…people that think like columnists at Artvoice and the mindset of many of its readers are the reason this is a pathetic wasteland. One more thing…dump that psuedo-advice column and pick up “Savage Love”…a little Dan Savage might loosen you uptight libs up a bit!

  • Sally Silkwiec

    Get a life!