Chastised for telling the truth

Jerry Moore

It’s hard to defend a case of poorly constructed logic.

But Jude R. Seymour has persisted in doing this for nearly three weeks. Despite the major gaps in his argument for why he won’t carry out his duties as Jefferson County’s Republican election commissioner, he’s doggedly stuck to his story.

The June 25 primary for Watertown mayor resulted in an inconceivable and unprecedented scenario: two candidates tied for second place. The 1993 state law governing the city’s elections declares that the county Board of Elections “shall certify under the hand of its secretary or commissioners the names of the persons who received the largest and next largest number of votes for mayor …”

Jeffrey M. Smith received the largest number of votes in the mayoral primary (837). Allison Crossman and Cody Horbacz received the next largest number of votes (597 apiece).

OK, so what’s the problem? The language of the law requires the board to certify Crossman, Horbacz and Smith and place their names on the ballot for the general election in November.

However, Seymour contends the law calls for no more than two candidates to be certified — and that’s all he’ll authorize. He said the board only has a mandate to declare Smith as one of the winners, and he can’t decide whether Crossman or Horbacz should join him.

Seymour is wrong on a couple of points.

The law does not limit mayoral primary winners to no more than two candidates. In addition, it doesn’t make an issue of ties. So he’s creating a problem with the law that doesn’t exist.

But in response to his critics, Seymour has channeled the spirit of Tevye from “Fiddler on the Roof.” What makes him so sure he’s correct about the law?

“Tradition!”

For longer than anyone can remember, Watertown residents have presumed the law intends to restrict the number of mayoral primary winners to two. That’s the way it’s always been, and that’s the way it should remain.

Seymour, who previously worked here at the Watertown Daily Times, sent me an email to elaborate on his rationale after we published an editorial July 12 taking issue with his position. We debated his points in some back-and-forth messages.

He asked me if I agreed that the Board of Elections did not err when it chose not to hold a primary because only two mayoral candidates had filed petitions in 2011. He also asked if I thought the board was correct in holding a primary when three mayoral candidates filed petitions in 2015.

I replied that the board appeared to act appropriately both times. As these two candidates would advance in 2011, it seemed prudent not to incur the expenses of a primary if it wouldn’t change the result of not holding one. And while it would eliminate only one mayoral candidate in 2015, a primary was necessary to see who would receive the highest and second-highest vote totals in this case.

Seymour reasoned that this proved the protocol of only two mayoral candidates advancing from the primary was the law’s accepted intent. No one ever questioned this practice, so it must continue forever.

But after we exchanged several emails on this question, I pored over the law again. I found nothing in it that permits the board to cancel a primary — ever.

The law reads: “At the time of the fall primary as defined by the election law, in any year when officers of the city are to be elected, there shall be held a non-partisan primary election for the purpose of nominating the candidates for mayor or council member, or both, for a term of office commencing on the first of the second calendar month next succeeding their election. Such primary election shall be held at the same places as such fall primary and conducted by the same officers.”

And here is the essential provision highlighting why a primary must be held regardless of how many mayoral candidates run: “Every qualified voter shall be entitled to vote at such non-partisan primary election at the polling place in the election district in which that are a resident.”

This enshrined right of eligible city residents to participate in non-partisan primaries played a critical role in the decision to hold such an election in 1969 despite there being only two candidates running for two council seats. Laurence H. Kissel, who at that time served as Jefferson County’s attorney, declared that a primary must be held that year based on a 1961 opinion rendered by then-state Attorney General Louis J. Lefkowitz.

State law covering elections outside of the city declared that polls would be closed in the case of non-competitive races. People initially adopted Seymour’s rule: Since only two candidates were running for two council seats in 1969, this provision would be applied to Watertown with no primary being held.

But the city’s elections were governed by a special state law passed in 1920. According to Lefkowitz’s written opinion, the law for Watertown concerned its non-partisan elections (as opposed to the partisan elections held throughout much of the rest of the state).

Lefkowitz wrote: “The special legislation enacted for your city concerns non-partisan primaries. Therefore, it is my opinion that the uncontested primary sections of the [other] election law do not apply. … [Y]our primary ballot must contain a blank line upon which voters may write in the name of a candidate of their own choice whose name is not printed on the ballot.”

So voters must be allowed to cast ballots for write-in candidates during a primary. In 1969, the names of two write-in candidates were placed on the ballot for the general election — a huge benefit for anyone pursuing a seat via this method.

While the state’s 1920 law was replaced by its 1993 law, the same principle applies due to this legal precedent. The newer law also says nothing about closing the polls for non-competitive races. And all primary ballots leave spaces for write-in candidates — meaning that voters must be allowed to jot down the names of candidates of their choosing.

Therefore, Seymour is wrong about the Board of Elections being right in 2011. In retrospect, it should have held a primary that year. Not doing so denied voters their right to cast ballots for any write-in candidates they wanted.

His claim that the Board of Elections gets to pick and choose when to hold city primaries is false. And there are other factors that make his stance on certifying mayoral candidates dubious.

The state law governing the city’s primaries strives for competitive general elections. To certify one candidate would violate this principle.

And Seymour confirmed the board has no authority to conduct a hand recount. So there’s no way to finagle any votes from discounted ballots by “divining” the intent of anonymous primary voters. Crossman and Horbacz, therefore, are stuck at 597 each.

We’re now left with the question of which second-place candidate should be tossed off the ballot. This is impossible to decide. No irregularities have been discovered with the ballots cast for either of them.

They’re both equally entitled to proceed to the general election. Add to this the fact that the law doesn’t concern itself with ties or limit mayoral primary winners to two candidates, and I’m confused about why Seymour is so confused.

In one of his emails to me, Seymour admitted that the traditional view of the law is the interpretation he prefers. This contradicts previous statements that both he and Scott A. Gray, chairman of the Jefferson County Board of Legislators, have made. They’ve said that interpreting the law isn’t the role of the Board of Elections; rather, it must enforce the law.

Funny, Seymour is doing the exact opposite. He wants to interpret the law to say something it doesn’t say, so he won’t enforce it. Why don’t he and Gray see the irony in this position?

And now Seymour is pleased that the county is being taken to court. Samuel S. Thomas, who serves as the city’s Zoning Board of Appeals chairman, filed an Article 78 proceeding in state Supreme Court on Tuesday. This allows an individual with standing to object to an action taken by a government entity.

Seymour forced a stalemate so a judge would make the decision that he’s supposed to make. This will cost taxpayers more money than it would if he would simply do his job and carry out the mandate of the law as it’s written.

Talk about the benefits of being on the government payroll! Seymour is making more than $56,000 a year to sit on his hands and wait for his agency to be sued. Nice work if you can get it, eh?

Jerry Moore is the editorial page editor for the Watertown Daily Times. Readers may call him at 315-661-2369 or send emails to jmoore@wdt.net.

Johnson Newspapers 7.1

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(7) comments

LAW

“Every qualified voter shall be entitled to vote at such non-partisan primary election at the polling place in the election district in which that are a resident.” Does it really say "that"? What does 'that' mean, in English?

brasher boy 19

Seems odd an election commissioner is working to disenfranchise voters from having a choice on Election Day.

LAW

Ever been to Georgia? Or North Carolina? Or Texas? Or Alabama? Or ...

JohnMcElroy

First thought Mr Seymour favors one of the 2 tied candidates. However as the editor points out someone is going to sue. Logic says both tied candidates must continue in the process as one candidate. Watertown must insert a provision for tied primary candidates in their election processes.

rockloper

Wadaya expect from a republican. None of them are capable of making a decision and certainly none of them have a pair.

rdsouth

It's a state law. Watertown can't change it.

JohnMcElroy

Granted but a judge will rule both must be on the ballot with Smith.

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