Erie County Ballot Tampering: Most Unprosecutable Case Ever?
by Geoff Kelly - posted 2:07 pm, October 31, 2011
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?