BOE Finds Misconduct But No Evidence of Effect on Election Outcome


Members of the Union County Board of Elections (UCBOE) noted that misconduct and violations occurred during Marvin’s election but dismissed Christopher Smith’s election protest. They ultimately concluded there was insufficient evidence that the misconduct and violations had an effect on the election’s outcome.

Smith, candidate for Mayor in Marvin, filed the protest on Nov. 15. Smith was the sole candidate in the mayoral race until the day before Election Day (Nov. 4). Incumbent Mayor Joe Pollino won as a write-in candidate by 18 votes; however, Pollino did not file as a write-in candidate with the Union County Board of Elections.

Smith was present and testified at the Board of Election hearing. He also attended the Board’s deliberation. Pollino and his cohorts were not present at the election hearing, nor the deliberation.

Instead, Mr. Kenneth Helms, the attorney representing Joe Pollino, Jamie Lein, Bob Marcolese, Kim Vandenberg, Michael Lavelle and John Jones, presented at least eight affidavits to the board instead of having them available as witnesses for questioning. A third witness, Marvin Village Planner, Mr. Rohit Ammanamanchi, had been subpoenaed and did not appear.

Overview

Smith’s election protest claimed Pollino, Lein, Marcolese, Lavelle and Jones intimidated him in an attempt to get him to drop out of the mayoral race. They also attempted to coerce his electoral support for particular Council candidates. Smith did not drop out of the race and did not change his support for Mary Shkut.

Smith reported the incidents to a county magistrate the day after Election Day and also requested a new election. In response, the County Board was required to review the protest and determine the following:

(a) Whether or not there was substantial evidence of violations of election law, or misconduct, or other irregularity, and

(b) Whether or not the violation of election law, or misconduct, or other irregularity, might have affected the outcome of the election.

The Board needed to find evidence to meet both of the standards outlined above, in order to call for a new election.

Board members seemed to agree on violations of election law and misconduct, yet they did not find enough evidence to determine these factors affected the outcome of the election. Therefore, the protest was dismissed. Mr. Chris Smith is free to appeal the decision to the State Board of Elections. In the meantime, the Union County BOE will write a formal report outlining their findings and is expected to have that available by 5 p.m. next Tuesday.

Board of Election Member's Comments

Shirley C. Bossbach: Bossbach said she did not appreciate that defendants did not appear to provide testimony. She believed intimidation occurred and said she believed the testimony provided by the witnesses. However, she wondered why the witnesses didn’t call the police after the planning board meeting on the night before Election Day.

Chris Smith’s protest outlines how four men encircled him at the end of a ramp at the Village hall entrance. According to the protest, the four men yelled accusations at Smith, screamed in his face, pointed their fingers in his face, and paced around him aggressively in anger. He reported feeling trapped and looking to see where he might be able to fall, if he were hit by one of the men.

Bossbach said calling for a new election would set a bad precedent She said if the state board of elections were handling this case, they probably wouldn’t call for a new election.

Blanca A. Gonzalez said what occurred was unfortunate. She reflected on the lessons parents often teach children about bullying. She said perhaps the teaching “should start with the adults”. However, when looking at the information presented, Gonzalez said, she was not sure a new election would produce a different result.

Sanford L. Steelman Jr. said it is the board’s responsibility to assess the credibility of the evidence and witnesses presented. “I would say it is difficult if not impossible to evaluate evidence in this case given by affidavit,” Steelman said.

The defendants did not appear at the hearing. Instead, their renditions of what happened during the campaign period were outlined in affidavits that were given to BOE members at the hearing. The board’s deliberation was delayed by one day so they could have time to read the affidavits.

“I’ve got a problem assigning greater credibility to a piece of paper than to live testimony,” Steelman said. Yet, in terms of finding for a new election, Steelman stated, “There has to be a nexus between the irregularity or misconduct and the result of the election. An irregularity or misconduct alone is not sufficient.”

He said the board was ultimately presented with “speculation” that violations or misconduct caused doubt in the result of an election. However, speculation is not substantive enough.

Ms. Tiffany Wilson said she did not “give a lot of weight to the affidavits.” She said she had wanted to hear from the actual witnesses and had wanted the opportunity to address issues and concerns that were brought up. She said it was clear to her there was misconduct but doubted whether the misconduct changed the election’s outcome. She said she would have liked to have heard from someone who did not vote due to the misconduct.

Chairman Harry B. Crow Jr. said the standard that Smith’s counsel had to reach, in order to prove the misconduct affected the election outcome, was an “extremely high” standard to meet. He felt Mr. Caudill made a commendable effort. However, he said evidence showing that “maybe” the violations, or misconduct, affected the outcome is not enough. Crow said there was “simply not enough evidence to cast doubt on the results of the election.”

Smith's Civil Lawsuit

Smith also filed a civil lawsuit on Nov. 22 against Mayor Pollino, Council-elect Marcolese and Lein, along with Marvin Planning Board Chairman John Jones and Marvin Planning Board member Lavelle.

In an article by The Enquirer-Journal, Smith said the dismissal of his election protest would not affect the lawsuit. The lawsuit contains many of the same allegations.

“This was a tough election, especially there at the very end.” “I think there was opportunity for the board to consider the level of misconduct that occurred and what happened to me, but also whether they thought it affected the outcome of the election,"

Smith believes the misconduct did affect the outcome saying, "Obviously, I do. I was there.” but he also accepted that the “the board found what they thought was right.” He pointed out that a difference of only 18 votes is a “close election” but that “there will always be another.”

Smith doesn’t seem dispirited by the outcome. The EJ article quotes him as saying, “Marvin is a good place,” he said. “It’s full of wonderful people. It’s a diverse community. I want to see this through, because I want to make Marvin better.”

In speaking about the lawsuit, in the EJ article, he says, “I want to see this through. What happened to me was wrong. That’s not how Americans should behave in our electoral process.”

On Nov. 18, former Councilwoman Mary Shkut also filed an election protest. Her protest gave recorded evidence of an exchange with a Board of Election employee detailing how she needed to file as a write-in candidate, for her votes to count. However, incumbent Mayor Joe Pollino did not register or file as a write-in candidate, although his votes counted, and he won the mayoral race.

Shkut’s protest, like Smith’s, was dismissed. Hers was dismissed because of a conflict in the Statute; one that requires municipal candidates in non-partisan races to submit a “notification of candidacy”, while another section says all write-in votes must be counted, regardless.

In her protest, Shkut explained how she had told some Marvin residents that, according to BOE information, votes for Pollino would not count because he did not file with the BOE. She said the information caused some residents not to campaign as vigorously and/or not vote. She felt it plausible that the misinformation, and non-uniform application of the law, may have made a difference in the outcome if voters were dissuaded from voting.

The BOE met on Nov. 25 to review Shkut’s protest in a preliminary consideration hearing. In an article from the Enquirer Journal, Shkut was quoted as saying the following: “I’m just glad the board read through the protest,” She said she knew there was a “slim chance” the board would “take it up on a formal appeal.”

She further explained “I just felt somewhat responsible for conveying the information." Hearing it may have altered voters' actions that day, made me feel responsible” for conveying the information. "I felt like the least I could do was put it down on paper for the board’s consideration,” Shkut said.

With regard to running as a write-in candidate, Shkut explained how she had only known Smith for about a year. He had made an effort to become acquainted with all members of the Village Council.

She said when Smith approached her about becoming a write-in candidate, he had made an “independent assessment” about her qualifications and knew he had not made it frivolously. She said she was “flattered” by his suggestion. However, she also says she is “disheartened” that civic participation in Marvin has “risen to the level of thunderdome politics.” She said, these days, Marvin politics rarely allows for civility and free thought"

The Enquirer Journal article asked whether she thought the Village of Marvin might find peace and a period of less contention, Shkut said she wished she knew the answer.

“I don’t know that it will happen unless people decide that’s what they want, and they vote accordingly.” Shkut said, “more than anything we need good citizens to step forward and run [for office] -- even more than vote…” Shkut said.

In the Enquirer Journal article, Shkut mentioned a conversation with Smith where he allegedly said, “All I did was run for mayor. That’s all I did.”

We asked Shkut about what she believed was significant about the comment. She said, “the comment was profound in that it showed how precarious it has become to be involved in Marvin politics.” She equated it to how she felt after accepting her appointment to the Marvin Council. She recalled how simply accepting an appointment to the Council resulted in endless attempts at intimidation. “Suddenly, democratic participation is a perilous undertaking”, she said.

Shkut was present when the Board of Elections gave preliminary consideration hearings to her protest and Smith’s. She was also present at Smith’s Board of Election hearing and the deliberation on Tuesday.

The Enquirer-Journal article closes by conveying that, “attempts by The Enquirer-Journal to contact Pollino, and his attorney, for comment were unsuccessful.”