Volume 22, Number 12 | The Newspaper of Lower Manhattan | August 7 - 13, 2009

Downtown Express photo by Elisabeth Robert

Councilmember Alan Gerson, left, came to the First Precinct’s National Night Out against crime Tuesday night after testifying earlier in the day to secure a place on the ballot.

Gerson’s opponents make the ballot, but he’s kept off another week

By Julie Shapiro

City Councilmember Alan Gerson remains off the ballot five weeks before the Democratic primary for his seat.

The Board of Elections refused to let Gerson on the ballot last week after his campaign committed a series of small errors. Gerson’s first chance to join his four opponents on the ballot won’t come until next week, when Judge Edward Lehner will hear a court referee’s opinion on the case.

“I’m as confident as ever,” Gerson told Downtown Express Wednesday. He called the Board of Elections’ ruling against him “totally bogus” and said he was not even considering the possibility of being kept off the ballot. “By any legal analysis, there’s no question that we’ll be on the ballot,” said Gerson, who is an attorney.

To get on the Democratic primary ballot, City Council candidates have to file a petition with signatures of at least 900 registered Democrats in their district. Gerson submitted about 7,000 signatures, which should have been more than enough, but two of the 13 volumes of signatures misstated his address. Parts of those volumes, containing about 1,000 signatures, incorrectly showed Gerson’s address as 1505 LaGuardia Place, rather than 505 LaGuardia Place, based on a printer’s mistake, Gerson said.

When the Board of Elections noticed the discrepancy last month, they contacted Gerson’s campaign, and Gerson sent a volunteer elections lawyer to fix it. But the lawyer did not sign and date a modified cover sheet for the stack of petitions, an error that the Board of Elections decided was fatal to Gerson’s application. Gerson is appealing.

Judge Lehner, in the New York State Supreme Court in Manhattan, sounded surprised by the details of the case when he heard an outline of it from the bench Monday morning.

“We’re still doing cover sheets in this day and age?” he asked the lawyers who were standing before him. “I thought cover sheet issues were passé these days.”

Lehner added that if he were allowed to just make a discretionary decision, he would not remove a candidate from the ballot because of a cover sheet problem, but he said he would hear the matter and follow the law.

Lehner appointed referee Leslie Lowenstein to hold hearings on the case and report back with an opinion. Gerson testified before Lowenstein on Tuesday, and Lowenstein will hear additional testimony on Thurs., Aug. 6 before writing up an opinion by early next week. Lehner could render a decision as soon as Aug. 12.

At the first hearing Tuesday, Lawrence A. Mandelker, an election lawyer Gerson hired, argued that the Board of Elections never should have removed Gerson because his original cover sheet was not defective. If the board had a problem with the address mistake, they should have simply invalidated those signatures, which still would have left Gerson with plenty of signatures to qualify for the ballot.

The Board of Elections did not argue against Gerson’s position at the hearing, but instead Raymond Dowd, lawyer for Gerson challenger Pete Gleason, jumped into the fray. Dowd brought a separate action against Gerson, seeking to keep him off the ballot, and the referee is weighing both Gerson and Gleason’s requests simultaneously.

At Tuesday’s hearing, Dowd said Gerson purposely misstated his address, with “clear deception and intent to confuse the Board of Elections.” He accused Gerson of fraud, an issue Lowenstein plans to take up in more detail at the second hearing Thursday. Specifically, Dowd will make the case that Gerson’s campaign changed the incorrect address on the petitions after people signed them, meaning that people did not sign the final version of the document.

Gerson called Dowd’s accusation of fraud “ridiculous.”

“At most it was an innocent mistake by volunteers,” Gerson said after the hearing.

Gerson spent about an hour on the witness stand at Tuesday’s hearing but offered little new information. He frequently said he could not recall the dates and contents of conversations.

Separately, the Board of Elections held a hearing related to Gerson’s petitions on Wednesday, but it was narrowly focused on the two volumes of signatures that had the address mistake. Gerson thought last week that he had a chance to be allowed on the ballot at the hearing, but when it was clear he didn’t, he took the case to court. The Board of Elections unanimously decided Wednesday that the two volumes were invalid, a ruling that has no impact since the board previously decided that Gerson’s entire application is invalid.

Gerson isn’t the only candidate to have trouble getting on the ballot in the First District. Challenger Arthur Gregory was also briefly off the ballot after Dowd, Gleason’s lawyer, objected to Gregory’s signatures. The Board of Elections found that Gregory had only about 830 valid signatures, fewer than the 1,100 Gregory submitted and the 900 required.

But at a hearing Wednesday, Gregory’s lawyer pointed out that Dowd was one day late in filing his objection to the signatures, which meant that the objection was invalid and Gregory was automatically allowed onto the ballot.

Gregory said his reaction to the news looked something like a football player who has just scored a touchdown. Dowd said he would not appeal the decision.

The two additional Democratic candidates for Gerson’s seat — Margaret Chin and PJ Kim — are also locked in a battle over signatures, with Chin claiming that 5,000 or about 90 percent of Kim’s 5,500 signatures are invalid. Lowenstein, the referee, is also hearing that matter and will submit an opinion to Judge Lehner for a hearing on Aug. 12. Unlike Gerson, Kim remains on the ballot despite the challenge, at least for now.

A. Joshua Ehrlich, Chin’s lawyer, accused Kim of fraud, claiming the witnesses who signed most of Kim’s petitions either forged their names or conducted some other type of fraud. In response, Jerry Goldfeder, Kim’s lawyer, said Ehrlich’s accusations amounted to nothing more than “a fishing expedition.”






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