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201112:48PM

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4j Lippes Mathias Wexler Friedman LLP

665 Main Street, Suite 300 Buffalo, New York 14203-1425 Telephone: 716.853-5100 Facsimile: 716.853.5199 www.lippes.com

Fax

TO:

NYS Board of Elections

Fax: (518) 486-4068

Attn: James A Walsh

Fax:

Douglas A. Kellner Evelyn J. Aquila

Gregory P. Peterson

From: Richard M. Scherer Jr., Esq. (rscherer@lippes.com)

Date: May 24, 2011

Pages:~!p (including cover page)

D Urgent

C1 For Review

o Please Comment

o Please Reply

-Comments;

Please see attached.

Thank you.

Richard M. Scherer Jr., E:sq.

If You Do Not Receive All The Pages, Please Call And Ask For: Stephanie at Ext. 238

THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTlAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTlFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF iHIS COMMUNICATION IS STRICrl.Y PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICArJON IN ERROR, PLEASE NorlFY US IMMEDIATELY BY TELEPHONE ANO RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU.

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Lippes Mathias Wexler Friedman LLP

Richard M Scherer, Jr.

Associate rscherer@lippes.com

May 24, 2011

VIA FACSIMILE (518-486-4068) New York State Board of Elections James A. W rush

40 Steuben Street

Albany, NY 12207

VIA FACSIMILE (518-486-4068) New York State Board of Elections Evelyn J, Aquila

40 Steuben Street

Albany, NY 12207

VIA FACSIMILE (518~486-4068) New York State Board of Elections Douglas A. Kellner

40 Steuben Street

Albany, NY 12207

VIA FACSIMILE (518-486-4068) New York State Board of Elections Gregory P. Peterson

40 Steuben Street

Albany, NY 12207

RE: Jane Corwin v. The Erie County Board of Elections, et al.

Index No. I-2001-002171

Dear Mr. Walsh, Mr. Kellner, Ms. Aquila, and Mr. Peterson:

Please be advised that we represent Petitioner Jane Corwin in the above-captioned matter.

Enclosed for service please find Petitioner's Verified Petition and an Order to Show Cause with Restraining Order, granted by Judge Hon. Russell P. Buscaglia, lS.C this morning. Said Order to Show Cause is scheduled to be heard before Judge Buscaglia on May 26, 2011 at 10:30 a.m,

If you have any questions or concerns please do not hesitate to contact me.

Very truly yours,

LIPPES MATHIAS WEXLER FRIEDMAN LLP

By: 2::s~~~~.

cc: Dennis C. Vacco, Esq.

Enc,

GG5 Main Street, Suite 300 It Buffalo, New York 14203-1425· ph 116.853.5100· fK 716.853.5199. www.lippes.cDm

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At a Special Term of the Supreme Court for the County of Erie, State of New York on the2!/:Jbj.ay of May, 2011

PRESIDING: Hon. Russell Buscaglia. J.S.C, (Acting)

STATE OF NEW YORK

SUPREME COURT: COUNTY OF ERIE

In a Matter of the Application of

lane Corwin

Petitioner

ORDER TO SHOW CAUSE WITH RESTRAINING ORDER

\IS.

The Erie County Board of Elections, Dennis E. Ward and Ralph M. Mohr, as Commissioners of and Constituting the Board; and

Index No.

The Niagara County Board of Elections, Mary Ann Casamento and N ancy L. Smith, as Commissioners of and Constituting the Board; and

Oral Argument Requested

The Genesee County Board of Elections, Richard Siebert and Dawn Cassidy as Commissioners of and Constituting the Board; and

The Orleans County Board of Elections, J anice E. Grabowski and Dennis 1. Piedimonte, as Commissioners of and Constituting the Board; and

..

o w

The Wyoming County Board of Elections, Anna Mae Balamas and James Schlick as Commissioners of and Constituting the Board; and

The Livingston County Board of Elections, Laura Schoonover and Nancy Leven, as Commissioners of and Constituting the Board; and

The Monroe County Board of Elections, Thomas F. Ferrarese and Peter M. Quinn, as Commissioners of and Constituting the Board; and

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The New York State Board of Elections, James A. Walsh, Douglas A. Kellner, Evelyn J. Aquila, and Gregory P. Peterson, as Commissioners of

and Constituting the Board; and

The Erie County Sheriff's Department; and

The Niagara County Sherifi's Department; and The Genesee County Sheriff s Department; and The Orleans County Sheriff's Department; and The Wyoming County Sheriff's Department; and The Livingston County Sheriff's Department; and The Monroe County Sheriff's Department; and

Jack Davis; and Kathleen Hochul; and Ian Murphy

Respondents.

Upon the annexed Petition of Jane Corwin, verified on May 23, 2011 and

sufficient reason appearing therefore, it is hereby

ORDERED, that respondents herein show cause at a Special Term of this Court to

be held in and for the County of Erie, at 25 Delaware Avenue, Buffalo, New York on the

26th Day of May, 2011 at 10:30 in the forenoon, or as soon thereafter as counsel may be

heard, why an Order of this court should not be made and entered pursuant to the

provisions of CPLR Article 78, Articles Eight, Nine and Sixteen of the Election Law:

1. Determining the validity of affidavit ballots, emergency ballots, absentee

and military ballots cast for the public office of Member of Congress from the 26th

Congressional District, State of New York, in the Special Election-held May 24,2011,

2. Ordering the testing and inspection of any voting machines which have

malfunctioned or been tampered with, and making appropriate findings of fact, orders

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preserving evidence) adjustments to the canvass as may be just and proper in the premises,

3, Ordering that the canvass of the votes made by the Boards of Elections be

corrected and adjusted to reflect a proper tally of the votes for the said public office, together with such other, further, and different relief as this court may find to be just and proper, and it is further

ORDERED, that Respondent Boards of Elections shall not recanvass voting machines. in their respective County until representatives of the Petitioner and Respondent Candidates are present, and that the said Board of Elections shall not count or canvass any paper ballots in the said election pending a final resolution of the recanvassed voting machine totals, and pending the inspection of voting machines which may have malfunction or been tampered with and the hearing, review and determination of any issues raised regarding the voting machines by this Court, except as hereinafter provided) and it is further

ORDERED, that Respondent Boards of Elections produce upon the day of the hearing of this order the ballots, canvass sheets and other records which are the subject of this proceeding, and the determinations of the said Boards of Elections upon any objections and challenges to voters and/or ballots and/or applications therefor, and any other papers or worksheets relating thereto, and it is further,

ORDERED, that the Respondent Boards of Elections shall produce for the Petitioner, upon her request, all documents (or copies thereof) including but not limited to, absentee ballot applications, voter registration records, ballot envelopes, poll books, canvass sheets, challenge reports, machine breakdown reports, mechanic's or custodians'

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logs) affidavits, election day court orders and other election related documents without the need for a subpoena, prior to the canvass of ballots, and it is further,

ORDERED, that absent a stipulation of the parties hereto to the contrary, all the paper ballots of the subject political subdivision shall not be counted and canvassed by the Respondent Boards of Elections until the candidate's representatives are present) and that the Board(s) and the candidate's representatives shall keep and confirm a hand canvass of the said ballots, and it is further

ORDERED, that the Respondent Boards of Elections prepare all necessary records for the canvass of the votes in the subject political subdivision, including the registration records of voters casting paper ballots, absentee applications, pollbooks, and other related documents, forthwith, and it is further) .

ORDERED, that the Respondent Boards of Elections appoint Boards of Inspectors composed of two 'of the Commissioners of Elections for thereof) or alternatively, any two Deputy Commissioners or clerks thereof (in each case, one of each political persuasion) for the purposes of conducting a canvass of all votes for the election to Member of Congress for the 26th Congressional District, said Boards of Inspectors shall be empowered to hear and make a determination upon any and all objections to the canvassing of any and all ballots pursuant to the provisions of Article 9 of the Election Law, and it is further,

ORDERED, that pursuant to Article 78 CPLR any attorney or his employee representing Petitioner be admitted to the place of canvass or recanvass of the votes in this election and be allowed full participation in the administrative proceedings of the Boards of Elections held in relation thereto, without the need for production and filing of

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a poll watcher; s certificate, and shall have an opportunity to review each ballot and ballot envelope before it is processed by the Board; and it is further,

ORDERED, that said Boards of Inspectors shall follow ordinary canvassing procedures and shall canvass each and every vote unanimously found to be valid and/or proper by said Boards of Inspectors, except as hereinafter provided. Any and all ballots unanimously found to be invalid and/or improper shall be laid aside and preserved by said Boards and shall not be canvassed; except as provided herein, and it is further

ORDERED, that said Inspectors shall preserve a record of all objections entered against the canvassing of any ballot, together with a record of the vote upon the objection thereon (sustained, overruled or split vote); and shall further preserve any ballot and supporting documentation upon a split vote of said Inspectors so that this Court may review same, however, in no instance shall said Boards of Inspectors compromise the secrecy of any voter's ballot by way of preserving an objection thereto in violation of Election Law 17-126 (1), (2) or (3); Article 2, Section 7 of the New York State Constitution and relevant provisions of Article 8 and Article 9 of the Election Law; and it is further

ORDERED, that upon the unanimous vote of the Board of Inspectors to canvass any ballot objected to by the Petitioner, the said ballot shall be set for this Court's review aside and shall not be canvassed, and it is further

ORDERED, that in the interests of justice, the efficient administration of the law, and judicial economy, the objection(s) of the Petitioner hereto to any ballot, ballot envelope, affidavit, application or documents relating to the ballots of the 2011 Special Election for the subject public office are hereby ordered to be preserved until the time of

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the canvass and recanvass of such ballots, and the hearing before this Court, regardless of whether three days have elapsed, and all such ballots and documents shall be preserved for the review of this Court, and it is further

ORDERED, that the Respondent Boards of Elections commence the canvass of all paper ballots in the 26th Congressional District of the State of New York not earlier than 24 hours after the 'production of documents to the Petitioner as Ordered herein, subject to the schedule set forth herein, but, should the Court so determine, not earlier than the day after any hearing and determination which may be ordered by this Court relating to issues regarding malfunctioning and or compromised voting machines, or as soon thereafter as the paper ballots and supporting records can be made available, and it is further

ORDERED, that Pursuant to Article 78 CPLR and other applicable law, Respondent Boards of Elections shall not cast or canvass any ballots without the participation of Counsel for the Petitioner and any of the candidates being present and having a full opportunity to review the ballots, applications and other papers and records pertinent to each ballot reviewed, and it is further

ORDERED, that NOT WITHSTANDING A.\"\lY NOTICE OF CANVASS ISSUED BY ANY RESPONDENT BOARD OF ELECTIONS THE CANVASS OF PAPER BALLOTS IS HERBY ENJOINED except as directed by this Court, or as may be the subject of further order of this Court establishing or amending a schedule and order for the canvass of votes from each County and municipality within the 26th Congressional District so as to provide for an orderly canvass process which affords local

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candidates the opportunity to participate in the canvass where they so choose, and it is further

ORDERED, that any Military ballots to be canvassed, in accordance with the above schedule or as soon as is practicable, with Petitioner's representatives being present for the canvass thereof and it is further

ORDERED, that th~ Respondent Boards of Elections shall coordinate the said preservation and security of all voting machines 'With their respective Respondent Sheriff's Department, to ensure the integrity of the machines and the ballots cast thereon, and it is further,

ORDERED, that the Respondent Sheriffs Departments a impound and maintain protection of; and guard over the machines and ballots of the 26th Congressional District, by assigning an officer of said Sherriff's Department or a local Police Department to each and every location at which voting machines and/or ballots are located on a 24 hour per day basis until the completion of the recanvass of machines scheduled for May 2011 by the Boards of Elections, or alternatively_ at the option of the Sheriff, securing control of all means of access to all of the voting machines, as soon as practicable, and keeping said machines under surveillance, and it is further,

ORDERED, that any machines which may be the subject of testing or further inspection by this Court shall be secured by sealing the said voting machines with a tamper resistant seal, and securing control of all means of access to such voting machines and keeping said machines under surveillance, and it is further

ORDERED, that the Sheriff of each County shall assure that all paper ballots, records and keys for voting machines are secured and placed under 24 hour per day

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guard, or altematively. at the Sheriffs oRtion, shall assure that all such items are secured in a safe or storage facility of the Boards of Elections for which there are two separate locks required for access, with each commissioner of elections having a key or combination for only one of the two locks, or alternatively in a safe of the Sheriff s Department to which the Sheriff, or his designee, shall maintain exclusive control of the means of access. Further, the Sheriffs Department shall maintain a record of ail persons accorded access to the ballots and related materials, and shall assure that the handling of ballots is done on a bipartisan basis, however, in no instance shall the town or city clerks (their employees, agents or assigns) within municipal units of the several Counties of the 26th Congressional District be allowed to maintain control over the keys, and or the access to the voting machines, and it is further

ORDERED, that the Boards of Elections and Sheriff shall allow the parties hereto, together with the Court or the Court's designee, to inspect voting machines with irregular returns and to report the findings of said inspection to the Court, and it is further

ORDERED, that upon the completion of the recanvass of voting machines and delivery of recanvass results to counsel for Petitioner, the impoundment of machines may be discontinued, without the need for further order of this Court, however, any machine which is specified by Petitioner's Counsel as having irregular returns, or having been tampered with, shall remain secured and impounded by the Sheriff's Department or local Police Department, and

Sufficient reason appearing therefore, leave is hereby granted to the Petitioner to submit on the date set for the hearing or the trial of this matter additional witnesses, exhibits, proofs and other evidence as may be necessary, and,

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Sufficient reason appearing therefor, leave is hereby granted to the Petitioner to amend his/her pleadings as may be necessary, and,

Sufficient reason appearing therefor, it is further

ORDERED, that pending the hearing and determination of this Court upon the within petition, the Respondent Boards of Elections are hereby TEMPORARILY ENJOINED AND RESTRAINED FROM CERTIFYING ANY CANDIDATES AS BEING A CANDIDATE DULY ELECTED TO THE SUBJECT PUBLIC OFFICE, and

it is further,

ORDERED that in the event the canvass of ballots continues beyond the return date specified hereinabove, counsel for the parties hereto may adjourn same by stipulation, and counsel shall obtain approval of the Court by telephone of same immediately upon agreeing thereon, so that the canvass may proceed with all due speed, and,

Sufficient reason appearing therefore, this proceeding shall be deemed to have been commenced by the signing of this Order to Show Cause.

ORDERED that pursuant to the powers vested in this Court by CPLR 304, the Court determines that these papers shall be filed with the Erie County Clerk immediately. The written and oral application by Petitioner's Counsel is granted, and it is further ORDERED, that the Petitioner shall cause these papers to be filed with the County Clerk I Clerk of the Supreme Court not later than May 24, 2011, and the Petitioner shall pay to the clerk the appropriate filing fees, it is further

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ORDERED that the County Clerk I Clerk of the Court shall accept the 'Within

order to show cause and verified petition for filing upon the presentation thereof with the

.

appropriate fees, and that the failure to do so shall be deemed contempt, returnable before

this Justice of the Supreme Court> and,

Sufficient cause appearing therefore> it is further,

ORDERED, that Petitioner shall cause a copy of this order together with all of the \

1

ancillary papers thereto, upon which this order was granted, upon Respondent Boards of

Elections, by personally delivering same to the offices thereof, Or by personally

delivering same to any of the Commissioners, or Deputy Commissioners, Director or

-Deputy Director or Counsel thereof, or (in the case of County Boards of Elections) the County Attorney, on or before May $'f-fh , 2011 and upon Respondent Candidates, by

personally delivering same to him or any attorney designated by him, on or before May %tb 2011 and upon Respondent Sheriff's Department by personally delivering same to the main offices thereof or the County Attorney, on or before May 2tJ#" 2011,

alternatively, at the option of the Petitioner, service may be made by Facsimile

transmission to any of the above captioned respondents, or their attorney, on or before May~ 2011, or alternatively, at the option of the Petitioner, service may be made

by enclosing same in a securely sealed and post paid wrapper addressed to any or all the

respondents via Overnight Mail and depositing same with an office or depository of the United States Postal Service, on or before May.2J..f.th, 201', or any other means of service allowed by the CPLR on or before Mayz'ih 2011, and that such service shall

be deemed good and sufficient service thereof.

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DATED: May 24, 2011

GRANTED:

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.S.C

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LippesMathiasWexler

STATE OF NEW YORK

SUPREME COURT: COUNTY OF ERIE

In a Matter of the Application of

Jane Corwin

Petitioner

VS.

The Erie County Board of Elections, Dennis E. Ward and Ralph M. Mohr) as Commissioners of and Constituting the Board; and

The Niagara County Board of Elections, Mary Ann Casamento and Nancy L. Smith, as Commissioners of and Constituting the Board; and

The Genesee County Board of Elections, Richard Siebert and Dawn Cassidy as Commissioners of and Constituting the Board; and

The Orleans County Board of Elections, Janice E. Grabowski and Dennis J. Piedimonte, as Commissioners of and Constituting the Board; and

The Wyoming County Board of Elections, Anna Mae Balarnas and James Schlick as Commissioners of and Constituting the Board; and

The Livingston County Board of Elections, Laura Schoonover and Nancy Leven, as Commissioners of and Constituting the Board; and

The Monroe County Board of Elections, Thomas F, Ferrarese and Peter M. Quinn, as Commissioners of and Constituting the Board; and

The New YOIk State Board of Elections, James A. Walsh, Douglas A. Kellner, Evelyn J. Aquila, and Gregory P. Peterson, as Commissioners of

and Constituting the Board; and

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VERIFIED PETITION

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The Erie County Sheriff s Department; and

The Niagara County Sheriff's Department; and The Genesee County Sheriff s Department; and The Orleans County Sheriff's Department; and The Wyoming County Sheriffs Department; and The Livingston County Sheriff's Department; and The Monroe County Sheriff's Department; and

Jack Davis; and Kathleen Hochul; and Ian Murphy

Respondents.

Petitioner, Jane Corwin, by her attorneys, Dennis C. Vacca, Esq., Richard M, Scherer, Jr.,

Esq., and Emilio Colaiacovo, Esq., as and for her Petition against Respondents respectfully

alleges that:

1. Petitioner, Jane Corwin, at all times hereinafter mentioned, was and still is a

resident of the County of Erie, State of New York and a duly registered voter qualified to vote in

the Special Election scheduled to be held on May 24,2011.

2, Jane Corwin is the duly designated Republican Party, Conservative Party, and

Independence Party candidate for the public office of United States House of Representatives,

26th Congressional District at a Special Election to be held On May 24, 2011,

3. Upon information and belief, at all times hereinafter mentioned, Respondents,

Jack Davis, Kathleen Hochul, and Ian Murphy were and still remain residents of the County of

Erie, State of New York.

4, Kathleen Hochul is the duly designated Democratic Party and Working Families

candidate for the public office of United States House of Representatives, 26th Congressional

District at a Special Election to be held on May 24, 2011.

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5. Jack Davis is the duly designated Tea Party candidate for the public office of

United States House of Representatives, 26th Congressional District at a Special Election to be held on May 24,2011.

6. Ian Murphy is the duly designated Green party candidate for the public office of

United States House of Representatives, 26th Congressional District at a Special Election to be held on May 24, 201 L

7. The subject public office is Member of Congress from the 26th Congressional

District) State of New York consisting of parts of or all of Erie, Niagara, Genesee, Orleans, Wyoming, Livingston, and Monroe Counties) State of New York. The Petitioner is a resident of the Distcict and is qualified to run for and hold said Public Office.

8. The Special Election for the subject Public Office was held on May 24, 2011.

9. Petitioner has standing under Sections 16.;.100, 16-102 and 16-106 of the Election Law to bring this proceeding,

10, The winner of the subject General Election will be the Member of Congress

representing the 26th Congressional District, State of New York.

11. Upon information and belief, independent public opinion polls reveal the outcome

of this election will be exceedingly close and said polis show that none of the candidates enjoy a margin beyond the margin of error for the respective polls.

12. As revealed by the aforementioned pons this contest appears particularly close

and the final outcome may hinge upon the recanvass of voting machines and the canvass of paper ballots including emergency ballots) affidavit ballots, absentee ballots and military ballots.

13. The above-captioned Boards of Elections in Erie, Niagara, Genesee, Orleans,

Wyoming, Livingston, and Monroe Counties are responsible for canvassing the returns of the

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elections from the various municipalities within each of the said counties of the 26th Congressional District and certifying the results of elections for the subject public office, acting in their capacity as the County Boards of Canvassers.

14, The above captioned Commissioners of Elections are the commissioners who

constitute the Respondent Boards,

15. The New York State Board of Elections is responsible for the administration of

the Election process in the State of New York, particularly the 26th Congressional District.

16. The above captioned Commissioners of the State Board of Elections constitute the

State Board, and certify the final canvass of the results in their capacities as the State Board of Canvassers.

17. Several of the Respondent Boards of Elections have/has adopted the practice of

opening and then canvassing by mechanical device all absentee ballots.

18. Upon information and belief, some candidates may have reviewed and objected to

individual ballots in at least one county, not all candidates have had the opportunity to do so. They should not be deprived of their right to review ballots before canvassing. Also, where the Board may have unanimously overruled an objection, this Court should not be deprived of the ability to review Board determinations,

19. Therefore, a temporary order staying the immediate canvass of absentee ballots

without the benefit of candidate review is requested.

20. Further, a stay is requested so the Candidates can have representatives at the

various Boards of Elections for the canvass of machines.

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21. The Petitioner respectfully requests the Court direct a schedule for the canvassing

of all votes in the most efficient way possible, and to afford the Petitioner and the candidates the information required for a meaningful inquiry into the subject matter of this litigation.

22. The above-captioned Respondent Sheriffs Departments are charged with

maintaining order during elections within their respective Counties and preserving the integrity of the machines, canvass sheets and ballots cast at elections) and is further required to act upon an order of this Court to assign officers to such task pursuant to the provisions of Article 9 of the Election Law.

23. 'This proceeding is commenced pursuant to the provisions of Article 78 of the

CPLR, and Articles Five, Eight, Nine and Sixteen of the Election Law, which confers authority upon this Court to determine and resolve any disputes arising out of or relating to the canvass of ballots and returns for public office, and to preserve the ballots and machines employed in a general election for a contest relating thereto.

24. This verified petition is brought to continue to preserve the ballots, review

irregular and possibly fraudulent returns from voting machines, preserve the voting machine ballots and determine where Petitioner was deprived of votes by malfunctioning or tampered with 'Voting machines, to protect the petitioner's rights to have this Court review all determinations of me Boards of Elections as is provided for in the Election Law, more fully set the parameters for the recanvass and canvass of votes) allow for this Court to make adjustments in the canvass as may be necessary, enjoin any certification of election results which would prejudice the rights of the petitioners, and to bar or prevent any procedural defect which might be asserted to defeat this Court's determinations,

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25. Moreover, as this is a Special Election, an injunction against issuance of a

certification might be the only remedy available to the petitioner so as to allow for the determination of the rightful claimant to the subject public office without resort to an action quo warranto by the Attorney General,

26. Subject to the supervision and review of this Court, the Respondent Boards of

Elections will be conducting a recanvass of the results of this election recorded on voting machines.

27. Said recanvass of the machines, obviously, is still incomplete, and the petitioners

await the final numbers to be compiled by the Respondent Boards of Elections,

28. Upon information and belief, the unofficial canvass of the votes cast by machine

for the subject public office may be, and often is, incomplete and or inaccurate,

29. Further, upon information and belief, several of the voting machines in the subject

political subdivision may have malfunctioned or broken down and failed to count all of the votes cast for the Petitioner,

30. Such an occurrence requires the Court ordered testing of the subject voting

machinets) and the subsequent adjustment of the canvass to correct the error in vote totals,

31. Impoundment and protection of the voting machines and ballots is essential,

because any lapse in security OJ; breach of protective measures for the machines and ballots relating to this election would irreparably harm the petitioner, and, indeedl undermine public confidence in the electoral process.

32, Only a review of the final voting machine recanvass from the several Boards of

Elections and a physical inspection of the subject voting machines and related documents on file with the Boards of Elections will reveal any irregularity or fraud.

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33. Petitioner requests leave to and reserves the right to submit further proofs by way

of witnesses, affidavits and evidence on the date set by this court for the trial and hearing of this matter, and to amend these pleadings to reflect the facts of the conduct of the subject election andlor facts adduced by the way of further investigation and/or a canvass of the ballots for the election for the subject public office by the Boards of Elections.

34. In the course of the canvass of ballots there may be erroneous determinations

made by the Boards of Elections, and such determinations may be sustained by a unanimous vote.

35. Without Court intervention at this juncture such ballot envelopes would be burst,

the ballot removed therefrom and intermingled with others, depriving the petitioner of the ability to have the administrative determination of the Boards of Elections reviewed by the Court.

36. In the event that there is a split vote and the count at the Boards of Elections, or the return date set by the Court is more than three days from the entry of an objection, absent a protective order of this Court, the ballot envelopes would be burst} the ballot removed therefrom and intermingled with others, depriving the petitioner of the ability to have the administrative determination of the Boards of Elections reviewed by the Court.

37. In the event there are unanimous votes of the commissioners or inspectors against

the objections of the petitioners, the ballot envelopes would be opened, and the ability of this Court to review the objection and the ruling thereon would be mooted.

38. Failure to preserve objections would irreparably harm Petitioner.

39. Petitioner may request various information to be provided to her by the Boards of Elections. This information is required for Petitioner to have a meaningful participatory role in the canvass of paper ballots. It is requested that this be done without the need for a SUbpoena,

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40. In order to expedite the canvass, an order is requested providing for the

production of documents before the canvass of ballots without the need for subpoena.

41. In order to prevent the legal team of a candidate from being overwhelmed and to

ensure meaningful participation in the administrative proceedings before the board this Court should provide for a process in which the documentation needed for a meaningful participation in the administrative is delivered to the Petitioners) Counsel at least 24 hours before the recanvass commences.

42. Further, this Court should provide in its order that counsel for petitioner be

afforded an opportunity to view each ballot as it comes up for consideration and that the recanvass shall be done by teams of inspectors equal to the number of members of the Petitioner'S recanvass team.

43. Moreover, without the infonnation requested) this Court and your Petitioner will

be unable to see that the mandates of the New York State Constitution, Article II, Section 7, which requires that identification of voters be made by their signatures "in all cases" are followed.

44. This information will allow for the full implementation of Sections 8-302, 8-304,

9~104(1) (d), 9-209 (2) (a) (1) of the Election Law and other sections of the law which codify the Constitution l s mandate of signature verification to establish the identity of all voters. The information requested by your petitioner is needed for the Petitioner to have the ability to participate in the canvass. The Election Law which entitles a candidate to have watchers present who may object to the casting or canvassing of any ballot or the refusal to cast or canvass any ballot (Election Law Section 9-209 (2)(d))) to object to the qualifications of any voter, and to have any determination reviewed by the Supreme court (Election Law, Section 16~ 1 06).

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45. The canvass of ballots may include objections to affidavit and absentee ballots by

voters who are not qualified to vote same.

46. The canvass of votes may include challenges to registrations of certain voters,

requiring Court intervention to have law enforcement authorities verify registrations as required by the Election Law in an expedited fashion.

47. The failure to enforce the statute, and the inability adduce the underlying facts

would irreparably harm your petitioner, and prevent a review on the merits of his challenges made on the basis of registration {residency.

48. The State Board of Elections, and all local Boards of Elections in this State allow

attorneys and those working for attorneys to be present in the polling place as poll watchers, without regard to the individuaPs place of residence within the state, so that they might participate in any administrative proceedings before the Boards on behalf of the candidate that they represent. Upon and information and belief the Election Law fails to address the question of the participation of counsel in proceedings on election day at the polling place, or at the canvass and recanvass of paper ballots, The Election Law merely requires that a poll watcher be a resident of the County.

49. Moreover, Petitioner prays for an Order of this Court which would prevent any of

the respondent Boards of Elections from preventing the Petitioner or any of the candidates from having a meaningful participation in the process by way of denial of documentation prior to canvass, and/or the processing of ballots by more teams of inspectors than Petitioner'S legal team can accommodate.

50. Upon information and belief, the facts alleged in the paragraphs hereinabove,

point to the fact that the final result of tills election hinges upon the canvass of the various types

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of paper ballots mentioned hereinabove, as well as a review of the canvass of the machine cast ballots.

51. As this is a Special Election, Petitioner has requested that the Boards of Elections,

acting in their capacity as the County Boards of Canvassers, and the State Board of Elections acting as the State board of Canvassers, be enjoined from certifying the results of this election until such time as these court proceedings are finally resolved and determined.

52. The County Boards of Elections are required by law to certify to the New York

State Board of Elections the results of the contests conducted in their jurisdictions by June 17, 2011 (Section 9-214 Election Law). The New York State Board of Elections is required to certify the results of the 2011 Special Election by July 2,2011 (Section 9-216 Election Law).

53. A restraining order is requested to prevent certification ONLY in the event the

proceedings before this Court extend beyond these statutory deadlines, or is made prematurely by the Respondent Board.

54. No prior application for the relief requested herein has been made by the

petitioners to any court, excepting, as specified herein, which order(s) do/does not necessarily protect your Petitioner's rights under the law.

55. Petitioners have no other remedy at law other than that applied for herein.

56. Leave is respectfully requested and the Petitioners respectfully reserve the right to amend these pleadings as needed.

57. Leave is respectfully requested and Petitioners respectfully reserve their right to

produce evidence in support of this petition by way of testimony, affidavits, and other evidence at the trial or hearing of this matter.

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58. Leave is respectfully requested and the Petitioner respectfully reserve the right to

make further applications to the Court for interim relief as may be needed.

59. Upon information and belief other candidates and or party chairs may move for

impoundment orders on this day, however, in the event such petitioners withdraw his/her/their actiones), the result would be removal of all protections for the canvassing process.

60, Petitioner designates Erie County as venue for this proceeding.

61. Because of the foregoing, the Petitioner is apt to be without any protection or

Court supervision of the post election processes without the relief prayed for in the Order to Show Cause.

62. Upon information and belief: no prior application for the relief requested for in

this petition has been applied for or granted.

WBEREFORE, Petitioner respectfully demands a judgrnent of this COUrt ordering:

1. That the respective Sheriff s Departments secure the ballots and machines used in

this election, and account to the Court therefore; and

2. Staying the canvass of paper ballots; and

3. Ordering the Respondent Boards of Elections to provide the documentation requested herein; and

4. Ordering, pursuant to Article 78 CPLR that Petitioner'S Counsel, and counsel for

any of the candidates participating in proceedings before the Board have a full and fair opportunity to participate in said administrative proceedings; and

5. Enjoining the canvass of the paper ballots pending the completion and overseeing

finalization of the recanvass of the machine cast votes by the Boards of Elections; and

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6. Ordering the continued security and impounding of voting machines which appear

to have malfunctioned, or have been tampered with; and

7. Ordering the preservation, testing and Court inspection of voting machines which

appear to have malfunctioned, been tampered with or to have been compromised; and

8. Ordering the respondent Boards of Elections and the Commissioners thereof, to

preserve for the review of this Court all ballots, ballot envelopes, and documents relating thereto

which may be subject to objection by the petitioner hereto at the General Election held therefore

on the 2nd Day of November 2010; and

9, Determining the validity of affidavit ballots) emergency ballots, absentee and

military ballots cast for the subj ect public office(s); and

10, Awarding to the Petitioner all relief prayed for herein and awarding such other,

further, and different relief that this Court may deem to be just and proper.

DATED:

May?j 2011 Buffalo, New York

's C. Vacco, Esq.

Richard M. Scherer, Jr., Esq.

LIPPES l\1ATIDA.s WEA~ER FRIEDMAN Attorneys for Petitioner, Jane Corwin

665 Main Street

Suite 300

Buffalo, New York 14203 (716) 853-5100

Emilio Colaiacovo, Esq.

BOUVIER PARTNERSHIP LLP Attorneys for Petitioner, Jane C0111lin 350 Main Street

Suite 1400

Buffalo, New York 14202 (716) 856-1344

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VERIFICATION

STATE OF NEW YORK )

) ss.

COUNTYOFERlli )

JANE CORWll'J; being duly sworn, deposes and says that she is the Petitioner in the within action; that she has read the foregoing and knows the contents thereof; that the same is true to the deponent's own knowledge, except as to matters therein stated to be alleged upon information and belief, and that as to those matters deponent believes to be true.

~.

Sworn to before me this d3 day of May, 2011. ~

~f~

No lie

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