Time out! Election screw-ups can’t save this candidate

No time for justice: Judge David Schmidt agreed with Russell Gallo’s (pictured) claims that the Board of Elections bungled the 45th assembly district’s independent primary and that a new vote was in order, but ultimately kept his opponent, Ben Akselrod, on the ticket.
Courtesy of Russell Gallo

Sometimes, there’s no time for justice.

Bloopers by the Board of Elections prevented nearly half of the 45th District’s independents from voting for him in the primary last month, charged still-smarting Russell Gallo, a former military cop in the Middle East who says he’s seen better managed elections in war-torn Iraq.

Now, he’s slapped the city with a lawsuit because he claims Judge David Schmidt conceded victory to Democratic challenger Ben Akselrod simply because there wasn’t time for another election.

“The judge agreed that it’s impossible to tell who won the primary, because the Board of Elections committed so many irregularities,” said Gallo’s lawyer Gene Berardelli. “But he’s not making the board fix their error because the board said, ‘we don’t have time to fix our mistake.’ ”

Gallo became suspicious after discovering that no independent ballots were cast in certain election districts, despite receiving pledges from independent voters within those districts.

He eventually identified five registered independents who voted in districts that didn’t record any independent votes, and received affidavits from them testifying that they voted for him. Gallo said the handful was enough to tip the scale and cast doubt in a closely contested election that he lost by three votes.

Gallo and Berardelli went through all 82 poll books for each election district, and found that there were 66 recorded independent voters — 31 votes less than the measly 35 counted by the Board of Elections.

They concluded that Independent Party voters were handed Democratic ballots, which would explain why Gallo, who will be running in the general elections on the Republican and Conservative lines, also received some Democratic votes.

“It’s lunacy,” Berardelli said. “Two out of every five independent voters who showed up on election day got the wrong ballot, that’s a crazy error rate.”

Gallo said he was flabbergasted to learn during the court proceedings that the city was blaming voters for the errors.

“Their argument was that the voters bear responsibility for voting on the wrong ballot,” said Berardelli.

“They were basically saying the Board of Elections has a responsibility for putting on fair, but not necessarily perfect elections — I guess it means, if they’re incompetent and corrupt towards both candidates, it’s fair.”

The Board of Elections declined to comment, but Judge Schmidt seemed disappointed with his own decision.

“The result here is unfortunate, since petitioner Gallo has presented what appears to be a meritorious claim which would entitle him to an order directing a new Independence Party primary,” the jurist wrote in his ruling.

Gallo said the irregularities make elections in Iraq seem smooth sailing in comparison.

“I’m only half joking when I say that the election in Iraq was run better than this one,” he said.

Akselod said he was happy to stay on the ballot, but wouldn’t comment on the judge’s decision, saying he hadn’t seen the court document.

Reach reporter Colin MIxson at cmixson@cnglocal.com or by calling (718) 260-4514.

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