Volume 22, Number 14 | The Newspaper of Lower Manhattan | Aug. 14 - 20, 2009
Gerson can run after all, judge rules
By Julie Shapiro
City Councilmember Alan Gerson finally won the chance to run for reelection this week when a State Supreme Court judge reversed a Board of Elections ruling.
“I’m very gratified,” Gerson said once he finished shaking his supporters’ hands outside Judge Edward Lehner’s courtroom Wednesday afternoon. “It’s full speed ahead.”
The only thing that could stop Gerson now is an appeal by Pete Gleason, one of his four opponents in the Sept. 15 Democratic primary. Raymond Dowd, Gleason’s lawyer, plans to bring the case to the Appellate Division on Tuesday.
But after Judge Lehner’s decision Wednesday, Gerson sounded confident that the embarrassing question of whether he would be allowed a spot on the ballot after spending eight years in office had been laid to rest.
Gerson first ran into trouble two weeks ago when the Board of Elections refused to let him on the ballot because his campaign made a series of mistakes on the qualifying petitions. Gerson submitted about 7,000 signatures to support his candidacy, far more than the 900 required, but on some of the pages his address was listed incorrectly as 1505 LaGuardia Pl., instead of 505 LaGuardia Pl.
The Board of Elections called Gerson’s campaign in to fix the problem, but the volunteer elections lawyer who responded forgot to sign and date the amended cover sheet on the petitions, according to Gerson. The campaign says the volunteer realized his mistake and submitted a second amended cover sheet, but the Board of Elections refused to accept it, saying a candidate only has one chance to correct a mistake.
Lehner decided that the Board of Elections should have given Gerson a second chance to fix his mistake — the “one chance” policy is merely a matter of the board’s practice and is not written into the law. The second amended cover sheet put Gerson “in substantial compliance” with the law, Lehner said.
“The candidate should have the right to correct an error,” Lehner said.
Lehner also considered the arguments of Dowd, Gleason’s lawyer, who said Gerson should be disqualified because his campaign committed fraud on the petitions. While the address mistake was initially a printer’s error, Dowd argued that Gerson’s campaign responded by covering up the error and lying about it rather than fixing it.
Lehner did not agree.
“It wasn’t fraud at all,” Lehner said. “It was an error.” Lehner called the Gerson campaign’s errors “minuscule.”
Lehner based his decision on the hour and a half of testimony he heard Wednesday and also on the opinion of referee Leslie Lowenstein, whom Lehner appointed to hear lengthier arguments last week. Lowenstein, too, discounted Dowd’s accusations of fraud and thought Gerson should be on the ballot.
Lehner, though, criticized Lowenstein on one point. Lowenstein did not let Dowd cross-examine Gerson during the hearings last week, and Dowd should have had that chance, Lehner said. Dowd said he could have proved his fraud case if he’d been allowed to ask Gerson “leading questions,” which are not allowed in a direct examination, but Lehner disagreed saying the error was not fatal to Dowd’s case.
Dowd plans to make the cross-examination issue a large part of his appeal.
Dowd tried to prove that there was fraud and that it was directly attributable to Gerson, but Lehner said he didn’t make the case.
Specifically, Dowd focused on one volume of petitions collected by the Harry S. Truman Democratic Club. The seven pages of signatures, a small fraction of the total number collected by Gerson’s campaign, originally had the incorrect address and then were modified by hand. The Board of Elections sent a letter to Gerson on July 22 asking when and how the addresses were changed, but Gerson never responded directly, Dowd said.
During testimony last week, Renee Abramowitz, one of the signature collectors for the Truman club, said she never modified the address on the petitions. But when the Board of Elections received her petitions, the address was changed to the correct one and the change was initialed “RA.” Abramowitz said she had not written her initials there.
Jessica Loeser, president of the Truman club, said she corrected some of the addresses after people had already signed the petitions, but she put her own initials when she did so.
Abramowitz’s testimony also raised eyebrows because of the connections she described between politics and her job at the nonprofit United Jewish Council of the East Side. Abramowitz said she regularly receives signature collection assignments on her desk at work, and when she’s done she turns them in to her boss. The Daily News reported that U.J.C. received $16,000 in discretionary money from Gerson the last two years.
In addition to these issues, Dowd pointed out on Wednesday that when Gerson’s volunteer lawyer submitted the amended cover sheet, the volunteer included the flawed seven-page volume of petition signatures from the Truman club, even though it was clear that the Board of Elections had a problem with it.
Lehner agreed that it wasn’t smart for Gerson’s lawyer to include the problem volume, especially because Gerson had more than enough signatures without it.
“I would guess that if you had to do it over, you would drop that volume,” Lehner said. Still, he did not agree with Dowd that Gerson’s actions constituted fraud.
After Lehner gave his decision Wednesday, Gerson said the worst part of the whole matter was that many of his volunteers told him over the past week that they never want to carry petitions again.
“It discourages grassroots participation,” Gerson said of petitions challenges.
Asked if he now felt differently about his decision to challenge Gleason’s petitions back in 2003, the first time Gleason ran against him, Gerson called the ’03 race “ancient history.”
Gerson added that he challenged Gleason back then because he thought Gleason did not have enough petition signatures, which he thinks is a more fundamental and important issue than the ones Gleason raised over the past two weeks.
Gerson said all the time he has spent in court recently has not set back his campaign. He said that while he spent some of Wednesday’s 90-minute hearing listening to the lawyers’ arguments, he spent much of the time thinking about unrelated district business. He added that it was nice to have a solid block of time to sit and think, uninterrupted by his cell phone.