The numerous videos presented in Democrat John Gomes’ challenge of Mayor Joe Ganim’s primary win this summer of alleged absentee ballot “harvesting” by the incumbent’s supporters should be all the evidence a judge needs to take the drastic step of ordering a new primary and throwing out Ganim’s 251-vote victory, Gomes’ lawyer argued in a legal brief filed Wednesday.
In the documents filed with the court, attorneys for Gomes and city officials presented their final arguments on whether there is enough evidence to support a do-over of the September primary.
Although they expressed opposing views on the merits of the case, the attorneys agreed that they expect that a judge will decide the case before Election Day next month and that the general election will go forward regardless of the judge’s decision.
“Connecticut courts have never confronted a case like this with widespread absentee ballot harvesting by campaign partisans,” attorney William Bloss wrote in his 47-page brief.
“Consequently, the facts of other absentee ballot cases bear only limited resemblance to the facts of this case,” Bloss argued. “Courts will order new primaries or elections where only small numbers of absentee ballots were improperly cast, even in the absence of evidence of other misconduct, and particularly where ‘partisans’ have inserted themselves into the process. At a minimum a new primary is absolutely required given the widespread, partisan misconduct proven here.”
But attorneys representing city officials argued that Bloss — in presenting a “highlight reel” of Bridgeport Democratic Committee Vice Chairwoman Wanda Geter-Pataky and others placing absentee ballots into drop boxes multiple times — failed to show how any voter’s ballot was not properly counted.
“Plaintiff proffered no tangible evidence of ballot fraud,” attorney’s Richard Burturla and John B. Kennelly wrote in their brief.
“Despite alleging that Wanda Geter-Pataky improperly handled a litany of absentee ballots, the plaintiff did not call one voter to testify to that effect. Instead, the plaintiff asserts that raising the specter of fraud is the same as proving fraud and is enough to overturn the results of the primary and throw out thousands of legitimate votes. It is not.”
Judge William Clark had ordered the two sides to submit their written briefs by Wednesday, rather than hear oral arguments. Both sides then will have until Friday afternoon to file reply briefs and attorneys on both sides said they plan on doing so.
While Clark did not indicate when he would issue a written ruling, attorneys for both sides said they expected him to do so before Election Day.
Ganim defeated Gomes by 251 votes in the Sept. 12 Democratic primary, but Gomes filed the lawsuit seeking to overturn those results after a video surfaced of Geter-Pataky placing multiple absentee ballots into one of the four absentee ballot drop boxes in the city.
Geter-Pataky was one of eight witnesses who testified during the five-day hearing. She asserted her Fifth Amendment rights not to answer Bloss’ questions 71 times during her testimony.
City Council challenger Eneida Martinez also asserted her Fifth Amendment right when Bloss showed her videos that he claimed were of her dropping multiple ballots into a drop box.
They were followed to the witness stand by Ganim, who testified that he has never talked with Geter-Pataky about distributing absentee ballots for his campaign. Ganim repeatedly referred to her as a “volunteer” and testified his paid campaign staff is trained to never touch someone else’s ballot.
Besides the videos, Bloss is basing his argument that a new primary is needed on numbers — arguing that as many as 1,253 were submitted through drop boxes while 2,100 hours of surveillance videos of the cities four drop boxes shows only about 420 people placing ballots in them.
“The issue that the Court must decide is not to a mathematical certainty whether 252 absentee ballots were mishandled,” Bloss said. “The issue of fact that the Court must decide is whether on this record a sufficient number of ballots were mishandled to conclude that “the reliability of the result of the election is seriously in doubt.”
Bloss returns to the videos to argue they alone raise enough doubt for a new primary.
“In short, the number of absentee ballots returned through drop boxes simply is not close to the number of people recorded using them,” Bloss said.
“Under these circumstances, where data impels a conclusion of a deliberate effort to harvest ballots and video proves a large number of harvested and mishandled absentee ballots, the reliability of the result of the election is seriously in doubt,” he said, in the filing.
But the city’s attorneys argued that Bloss did not present one witness who testified their vote was not counted and presented no evidence that people shown in the videos could have been designated to do so by others or were dropping in family members, both permissible under election laws.
“Not only has the plaintiff failed to offer evidence that any ballots deposited by Ms. Geter-Pataky or Ms. Martinez were actually defective; he has also failed to prove the number of ballots deposited by them. Nor has he shown that they and other users of the ballot collection boxes were unlawful designees,” the brief said.
“Moreover, the announced winner of the primary won by a margin of 251 votes. There is no reliable evidence before the Court that anywhere near 251 ballots were defective or improperly cast,” Burturla wrote. “Moreover, there was no testimony by any voter that their ballot was handled by anyone other than themselves or their lawful designee. Not one voter.”
In an interview, Bloss called the argument that Geter-Pataky could have been the designee for the more than 340 applications she witnessed “nonsensical.”
“It defies common sense that they could conceivably be caregivers for the multitude of voters whose ballots they had,” Bloss said. “Second, the numbers of outer envelopes with no postmarks and visits to drop boxes still are simply too far apart – everyone voting would have needed to be a proper designee for three or more other persons on average.”
Gomes is running as an independent candidate in the general election, and Bloss claimed the results of that race may make Clark’s ruling moot.
Gomes and Ganim are going up against Republican David Herz and petitioning candidate Lamond Daniels.
Bloss said the Connecticut Supreme Court has ruled that the judge does not have the authority to postpone the general election, only to order a new primary.
“If there was a new primary ordered, and John Gomes wins on the Independent Party line in November, the court case would end, in my view, because he would have already gotten the relief he sought in court,” Bloss said.
But Bloss acknowledged that would be unprecedented territory legally. And Kennelly said there are several scenarios that could occur, including the city appealing directly to the state Supreme Court prior to Election Day if Clark orders a new primary.
But it’s also possible the do-over primary would take place, even if Ganim were to win the general election.
More than 590 people have already cast an absentee ballot in the upcoming general election, according to numbers from the Bridgeport Town Clerk’s office.
Meanwhile, the Connecticut Secretary of the State’s Office is struggling to find someone to serve as an election monitor in the pending election and has yet to hire anyone as of Wednesday, spokeswoman Tara Chozet said.