To the raucous applause of a packed house in the city commissioners’ room Tuesday, July 7, the board of elections dismissed two complaints related to the 2008 pre-election activities of political action committee Save Our City and the city’s absentee ballot affidavit.

The complaints, filed by attorney Gene Lawson on behalf of former Commissioner Ron Paterson and Judge Henry Horsey, challenged the absentee ballot affidavit used by the city in the 2008 election. It alleged illegal or fraudulent activity by Save Our City and member Nancy Martin relating to emails sent out by the group regarding early voting by absentee ballot in the 2008 election and in the current election, set for Saturday, Aug. 8.

The hearing got off to an eventful start when Horsey and Guy Martin, representing his wife, Nancy, on behalf of Save Our City, had a heated exchange. Horsey claimed Martin called him “a stinking pile of [expletive deleted].”

Martin denied making the remark and later stated he said to Horsey, “Your ship is sinking.”

City Solicitor Glenn Mandalas, representing the city, started off by making a motion to dismiss the complaints. Mandalas cited three reasons: lack of standing, because the actions regarding the city on absentee ballots are now moot, the board’s lack of personal jurisdiction over third parties such as Save Our City and the board’s lack of subject-matter jurisdiction over emails sent out by Save Our City.

After hearing arguments from Lawson and Horsey on the absentee ballot affidavit, the board quickly voted unanimously to dismiss all charges against Nancy Martin and Save Our City before taking up the arguments on absentee balloting.

Board member Ned Kesmodel said, “I think what she did was basically a public service to all of us in the community. She was not trying to do anything sneaky. And I don’t think we have any jurisdiction over telling Nancy Martin what she can do.”

Fellow board members Lee Artis and Chairman Allen Morris agreed, saying there was nothing objectionable about the activities of Martin or Save Our City.

Absentee ballots

The crux of Lawson and Horsey’s argument regarding absentee balloting is that the template provided by the state for the municipality to follow was inconsistent with state law.

Lawson and Horsey also stated that the affidavit used by the city indicated that citizens could vote absentee giving as a reason, “eligible nonresident.” However, the state’s election law, known as Title 15, lists six reasons a voter can vote by absentee ballot, but eligible nonresident is not one of them.

The complaints said 188 voters in the 2008 election claimed “eligible nonresident” on absentee affidavits. Paterson lost his commissioner seat in that election by nine votes.

Mandalas said after the 2008 election, the city has been proactive in trying to get the affidavit changed. The affidavit was changed June 26 to remove “eligible nonresident,” which Mandalas said was what Horsey and Lawson wanted all along. The change did take place after Paterson’s complaint was filed June 19. The city has sent out new absentee affidavits with a letter from the city manager instructing recipients to prepare and return them by Friday, Aug. 7, or the ballot will be voided.

In the 2008 election, Mandalas said the city was required to use the absentee ballot template provided by the state Department of Elections and that the city repeatedly inquired with the state concerning the use of “eligible nonresident” on the affidavit.

Lawson conceded that the city had corrected the affidavit but requested the board find irregularities in the 2008 affidavit. He also requested the board convene a public meeting in advance of the upcoming Saturday, Aug. 8 election to provide the opportunity to challenge, among other things, absentee affidavits.

The city does hold a public meeting the day of the elections to count absentee ballots, but according to state law, has the option to start counting the day before the election.

The board dismissed the claims regarding absentee affidavits because the city has already rectified the situation.

Reaction

For the complainants, the nearly three-hour hearing ended in disappointment.

“The city has now taken an about-face on absentee voter issues, which must come as a complete shock to the Save Our City political-action committee members,” Horsey said. “Their strategy for their candidates to win elections has always been a heavy reliance on getting out and securing as heavy an absentee vote as possible for their candidates, well in advance of the election before their candidates can even be seen on their merits for public election.”

Paterson said, “Needless to say, I am disappointed with the decisions made. I do not feel the board of elections had a full grasp of the gravity of the issues before them.”

Regarding Save Our City, Paterson said, “When a significant group is called on to vote early without having merit, this means they are often doing so without reading materials from the candidates, without seeing the candidates debate, without examining the records of the candidates or any of the other duties necessary to be an informed voter.”

On the absentee affidavit, Paterson said, “The defense of the city was that it corrected the faulty form. They did, but only after I filed a complaint. The facts are clear: the form used last year was flawed, the city knew it and still attempted to use the same improper form in the 2009 municipal election.”

Nancy Martin said, “Putting it plainly, it is both ridiculous and outrageous to charge that my emails to other citizens, informing them of their rights to vote by absentee ballot, are somehow criminal. There is no question that the filings of the complaints are purely political acts.

“I come from a perspective that deeply respects voters and celebrates a democratic process that allows and encourages as many citizens as possible to express their views. Encouraging citizens to vote is a charge to which I plead guilty.”