Brooklyn Surrogate's Court 2005

Keep up to date with the latest Newspaper and Internet articles on this year's Brooklyn Surrogate Court race

Monday, October 17, 2005

Court Finds Lopez Torres To Be Brooklyn Surrogate

New York Law Hournal -
Court Finds Lopez Torres To Be Brooklyn Surrogate

Daniel Wise 10-12-2005
Civil Court Judge Margarita Lopez Torres has won the tight race for Brooklyn surrogate, a Supreme Court judge ruled yesterday.

Justice Leslie G. Leach, the administrative judge in Queens, refused to intervene to examine whether Judge Lopez Torres' thin 102-vote lead over Brooklyn Supreme Court Justice Diana A. Johnson should be overturned.

Justice Johnson's lawyer, B. Mitchell Alter, vowed to appeal, saying Justice Leach was incorrect to have decided the case without conducting a formal hearing into Justice Johnson's claims that an additional 1,500 affidavit ballots should have been counted.

In an oral decision from the bench, Justice Leach ordered New York City's Board of Elections to certify Judge Lopez Torres the victor.

In the latest tally by the board, Judge Lopez Torres led Justice Johnson, 41,911 votes to 41,809. Brooklyn Justice Lawrence S. Knipel trailed with 23,296.

If the decision is upheld, Judge Lopez Torres, a Democrat, will succeed former Surrogate Michael H. Feinberg because Republicans did not nominate a candidate for the slot.

Surrogate Feinberg was removed by the Court of Appeals in June for having awarded excess compensation to the Brooklyn public administrator's counsel, who was a personal and political friend of the former surrogate.

After hearing oral argument yesterday, Justice Leach found that the Johnson campaign's failure to object to the affidavit ballots at the time they were counted was "dispositive."

He also ruled that state law requires that voters casting paper ballots disclose both their addresses and party affiliations.

Mr. Alter had argued that the Board of Elections' form instructing voters how to prepare the affidavits, which must accompany paper ballots, was hopelessly confusing.

For instance, he argued, a form instructed voters to "check" one of four boxes to indicate the reason they had not been permitted to cast a machine ballot.

Three of the four boxes were associated with reasons why a voter may not have been permitted to cast a machine ballot. The fourth, however, related to a statement as to a voter's enrollment in a political party.

To disclose that a voter was a Democrat, and therefore eligible to vote in the Sept. 13 primary, the voter would have had to check two of the four boxes, not one, Mr. Alter contended.

But Justice Leach said the form had been approved by the state Board of Elections, and any objections as to whether it was confusing would have to be "lodged with some other forum."

The judge, however, did not address Mr. Alter's most explosive allegation: that paper ballots like those excluded because they did not contain the voter's address or a declaration of enrollment as a Democrat were counted in the Bronx.

Mr. Alter submitted copies of the "affidavit oath" that was submitted by 19 such voters whose ballots were counted in the Bronx.

Justice Leach further found that Justice Johnson had failed to meet her burden of showing that, after properly excluded votes were discarded, there were enough questionable votes to change the outcome of the election.

Mr. Alter had contended that some 1,200 paper ballots were excluded because voters did not state they were Democrats in the affidavit. Another 300 were excluded because they did not contain addresses, he contended.

But Ms. Lopez Torres' lawyer, Martin E. Connor, argued that Mr. Alter's 1,200-ballot figure was too high, and the number of votes that "arguably" could be excluded was around 400. He also said that 356 ballots were properly excluded because the voters were not, in fact, registered Democrats and another 450 were excluded for other valid reasons.

Meanwhile, Cesar A. Perales, president of the Puerto Rican Legal Defense and Education Fund, said yesterday his group is weighing whether to bring a federal suit to challenge a law that created a second surrogate seat in Brooklyn.

Democratic leaders have nominated Assemblyman Frank R. Seddio for that seat, which became effective Aug. 1, too late for the primary.

The fund had asked the U.S. Justice Department to void the legislation as a violation of minority voting rights, but last month the Justice Department "pre-cleared" the statute.

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