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Judge: Bove, Shuster on ballot

September 12, 2019 08:45 am

WINDHAM — A state Supreme Court judge ruled in favor of placing Windham Democratic candidates Nick Bove and Natasha Shuster on the November ballot on Wednesday.

Windham attorney Kevin Maldonado filed a petition on behalf of Bove, who is running for town supervisor, and Shuster, who is seeking a seat on the town council.

The two candidates claimed at an August press conference that Windham’s Democratic caucus had been undermined by Town Democratic Party Chairman Tom Poelker. Poelker submitted their paperwork after the July 25 deadline, which resulted in the county board of elections not placing them on the ballot.

Judge Lisa M. Fisher ordered that the results of the July 24 caucus be honored and Bove and Shuster appear on the Democratic line of the November ballot.

“It is a good day for democracy,” Maldonado said. “The will of the voters has prevailed.”

Bove was thrilled with the judge’s decision.

“I think it’s dynamite news,” he said. “Thank God for the judicial branch. The will of the voters and the will of democracy came through. It righted a wrong.”

The parties were originally to appear before Fisher at 10:15 a.m. Wednesday at the Greene County Courthouse for a judicial hearing but Poelker withdrew his answer to the petition, Maldonado said.

“This meant the allegations were not denied and deemed valid by the court,” Maldonado said. “There was no need for a hearing because it is considered an admission by law.”

Poelker did not intend to take matters to court, he said.

“I had no inclination initially and never wanted to fight a lawsuit until lots of fiction and mistruths were alleged,” Poelker said. “After holding the two party system alive and together on our Mountaintop for over two decades and my many years of service to my town, to my party, to my county and to the Democratic principles for the good of all citizens; I had made a simple mistake in vetting candidates where there was chatter in the community that needed answers from anyone who wished to run for elected office. Then, they libeled me with false allegations of a conspiracy. I was only doing my job as town chair to vet the candidates. I am sure I will be totally vindicated with the simple questions asked warranting yes or no answers.”

Poelker believed it was best to withdraw his response, he said.

“In the meantime with my basic rights in the process, there may have been a time it could have been holding up ballots being printed and sent to military voters across the world and as a Marine who had served his Country honorably, that was never my intention, so I withdrew the defense of the suit so ballots can be printed and voted.”

Poelker’s initial denial included a motion to dismiss on the grounds that Bove and Shuster had waited too long after the caucus to file their petition.

State election law requires that such action be taken within 10 days of a caucus.

Fisher noted the timeline in her decision on Poelker’s motion dated Sept. 5.

“Shockingly, Respondent Poelker mailed the certificates of nomination late on July 27,” Fisher wrote. “As a result, the Greene County Board of Elections received the certificates of nomination on July 30 and rejected the certificates of nomination as untimely. [The board] sent correspondence to Poelker signed on July 31, but was postmarked Aug. 1 rejecting Petitioner’s nominations as untimely.”

Bove did not realize he would not be on the ballot until Aug. 5, according to court papers. Maldonado filed the petition the following day.

Maldonado cited the case Pell to support the court extending the time frame.

“Courts are obligated to apply a statute to the extent possible to accomplish its purpose and to avoid incongruous, unreasonable or unjust results,” according to Pell. “If we were to apply the statute in this case simplistically, based on a mechanical reading of language, the legislative purpose of providing judicial remedy would be denied in precisely the kind of case where it might be most needed, namely, where the board has been guilty of undue delay unnecessarily, or worse, deliberately.”

Maldonado also cited Bessinger, a case in which the petitioners were not informed of the board of election’s decision until after the time frame to take legal action had ended. Instead the petitioners initiated their proceeding three days later and the court supported their decision.

Fisher found Maldonado’s actions on behalf on Bove and Shuster to be timely and dismissed Poelker’s motion.

“It is further noted that the untimely submission of the certificates of nomination were made by Poelker,” Fisher wrote. “Notice of the rejection was held by Poelker. It would be manifestly unfair to allow the individual who seemingly caused the rejection and to then hide notice of the rejection and then hide behind a procedural device like the statute of limitations.”

Fisher questioned Poelker’s reasons for not supporting Maldonado’s case against the county or state board of elections.

“The sheer fact that Respondent Poelker, who is the purported Chairman of the Democratic Committee and is deputized to act in its best interest in assuring the wishes of the parties’ caucus be honored, is not joining in the application by Petitioners against the Greene County Board of Elections or [the state Board of Elections] is baffling and illogical,” Fisher wrote. “The respondent’s actions and arguments are practically affirming the allegations in the petition that he did not want Petitioners to be nominated.”

Bove and Shuster were nominated at the July 24 Democratic caucus.

“It is not a coincidence that he (Poelker) held the caucus the day before the deadline,” Maldonado said in August.

Paperwork from the caucus was due at the Greene County Board of Elections Office on July 25, Greene County Democratic Chairwoman Carolyn Riggs said last month.

In addition to Poelker, the Greene County Board of Elections and the state Board of Elections were also named as defendants.

State election law allows paperwork postmarked July 25 to be accepted if it is received within two business days, Riggs said.

“I reached out to Mr. Poelker on Thursday to make sure we received the paperwork by the end of business,” Riggs said. “After multiple attempts, I received no reply.”

Bove and Shuster met with Poelker on July 25 and Poelker assured them the paperwork would be filed, according to the petition.

Poelker mailed the paperwork on Saturday and it was received on July 30, Maldonado said.

Poelker faulted Shuster for the late paperwork, he said in a statement last month.

“I called Natasha Shuster, congratulating her, with very specific and clear directions to execute an affidavit of acceptance, signed, notarized and returned to me in a timely fashion for inclusion with other documents to be conveyed to the county board of elections,” Poelker said. “Unfortunately, this acceptance letter was never returned to me as directed to include in proper form with other paperwork, as New York State Board of Election Law requires. As a result, the filing was deemed late.”

Shuster has denied Poelker’s allegation.

“He was not waiting for my paperwork,” she said.

Poelker visited Shuster at her store and handed her the paperwork, she said.

“He told me to get it back to him by the end of the weekend,” she said. “But I knew it was due at the end of the day.”

Shuster took the paperwork to the courthouse to be notarized and delivered the paperwork to the board of elections, she said.

The board of elections gave Shuster a time-stamped copy of the paperwork, Shuster said.

“He had his wife drop off another set of papers at the store and she also said they were due at the end of the weekend,” Shuster said.

Shuster texted Poelker Friday morning to inform him that she delivered the paperwork herself.

Maldonado is a bit dismayed the issue did not go to a hearing, he said.

“It would have been nice to expose other issues we discovered during discovery,” he said.

Maldonado believes Poelker’s phone records show a larger story, he said.

“He received many calls from county officials on critical dates at times when they would not be in the county office and the calls are from their cell phones,” Maldonado said.

Maldonado will not be pursuing further legal action on the matter, he said.

“It’s up to the authorities to pursue [the issue],” he said. “We’ve taken it as far as we’re going to on the civil line.”