Judge To Decide If Lawsuit Against Town Over Petition Signatures Goes Forward
Photo: Blue Diamond Gallery. (CC BY-SA-3.0)
Assistant Town Clerk Acknowledges In Sworn Statement 11 Wrongfully-Disqualified Signatures
A judge in Hampshire Superior Court will determine whether a lawsuit against the Amherst Board of Registrars over wrongfully-disqualified petition signatures will continue, now that the Town Council has voted to hold a November 2 referendum on the borrowing for the $35 million Jones Library reconstruction project.
A lawyer representing the Town and the Board of Registrars, Gregg Corbo of KP Law, argued during a teleconference yesterday (8/ 13) that the lawsuit is now moot. “There is no relief that this court can grant, other than an advisory opinion,” Corbo said.
However, Attorney Thomas O. Bean of Verrill Dana, who represents 40 plaintiffs who are suing the Board, argued that the referendum set is not a remedy for the violations of voting and free speech rights that took place. The Town Council’s adopted referendum language, Bean said, doesn’t follow the structure set by the Amherst Home Rule Charter for Voter Veto petitions. “(Just) putting a referendum on the ballot does not award the plaintiffs relief,” Bean said, adding that voters “want their rights vindicated.”
Judge Richard Carey took the Town’s emergency motion for a “stay” in the case Terry Y. Allen vs. Board of Registrars under advisement and didn’t say when he would rule, although Carey previously agreed to an expedited case schedule and set an Aug. 23 evidentiary hearing.
The plaintiffs are seeking summary judgment, including a ruling that the Board of Registrars breached its duty, and violated their rights under the Massachusetts Declaration of Rights and the First Amendment to the U.S. Constitution, by failing to certify legitimate signatures.
Petitioners submitted 1,088 signatures to the Town in April, more than 22% of which were disqualified. The Town Clerk’s Office, which conducted the certification, concluded that only 842 signatures could be certified, and that the petitioners fell 22 short of the 864 which would represent 5% of the Town’s registered voters.
Plaintiffs in the case have asked the Court to order the Board of Registrars to certify at least 76 signatures, and conclude that the threshold was met for the Voter Veto petition to pass under the Charter.
Court documents cite dozens of petition signatures disqualified over trivial issues which are not valid reasons for rejection under state regulations, including addition or omission of a middle initial, abbreviation (or lack thereof) of the words “Street” and “Brook,” in an address, or addition of the words “Amherst” and “Massachusetts,” and a zip code.
Massachusetts General Law states that if registrars can “reasonably determine” from a signature the identity of the duly registered voter, the name shall be “deemed to have been signed substantially as registered.”
At yesterday’s hearing, Bean said the individuals whose signatures were wrongly disqualified include voters who immigrated from foreign countries, where last names would traditionally be written first, or where a second surname would be included.
Without a ruling that the disqualifications were improper, “the Town could repeatedly violate civil rights,” he said.
Town’s Lawyer Maintains That Referendum Will Be Binding
The Town Council set the referendum under Section 8.6 of the Charter, “Submission of Other Matters to Voters” which allows the Council to place initiatives on the ballot, or to present a “non-binding public opinion advisory,” question. However, at yesterday’s hearing, Corbo said the Nov. 2 referendum would be binding. “The Town Council will be bound by it,” he said.
The petitioners sought a referendum under Section 8.4,“Voter Veto Procedures,” which sets the 5% threshold. A referendum under 8.4 would only lead to repeal of a Town Council decision if 20 percent of voters participate in the election, and this is the first time Amherst residents have attempted to exercise the Voter Veto provision of the Charter adopted in 2017.
The referendum language adopted by the Town Council under 8.6 asks if its vote in favor of the project should be “affirmed.” “Such phrasing arguably encourages voters to vote “yes” to confirm the decision of the Town Council,” the plaintiffs stated. Meanwhile, 8.4 includes proscribed referendum language which would ask, “shall the following measure or part thereof protested against … through the Voter Veto procedure … take effect?”
The Town, Bean stated, also chose to add a “summary” to the referendum question, while 8.4 makes no mention of such summaries.
Town Clerk Was On Vacation While Petitions Were Certified
Meanwhile, Assistant Town Clerk Amber Martin acknowledged in a sworn statement filed on August 9 that there are 11 signatures which were wrongly disqualified, but did not offer explanations for them. “I do not dispute that this signature should have been certified,” Martin stated several times.
Martin’s affidavit notes that in other instances, she was able to identify signatures but disqualified them, because two people having the same name lived at an address. “I was not able to decipher who the signatory was,” she stated.
In more than two dozen cases, signatures were disqualified because the residents omitted their apartment numbers.
Corbo said the apartment number issue and others are “questions of statewide concern which should potentially involve the State Secretary.”
Martin stated that she was “trained on the certification process by Town Clerk Susan Audette,” who was on vacation from April 20 to April 23, “leaving me to serve as Acting Town Clerk,” in her absence.
Martin began working for the Town as a management assistant in October 2019, according to the affidavit, and served as assistant Town Clerk since September 2020, receiving a permanent appointment this past April.
Meanwhile, Martin’s sworn statement references “black check marks” of unknown origins on petitions, in addition to the disqualification codes she wrote in red. “The N designation was written by myself in red ink, the check marks written in black ink were from an unknown origin … I did not make the black check marks … as this is strictly prohibited by law,” Martin stated.
The Town Council voted on August 2 for the referendum after conducting several closed sessions, and with minimal public discussion.
In an August 9 sworn statement, Town Manager Paul Bockelman said that “due to the mounting legal costs and continuing uncertainty,” the Town Council voted to place a question on the ballot.
Bockelman acknowledged that the library project would have been stayed pending reconsideration or a referendum if the Voter Veto petitions met the 5% threshold. However, the project is moving forward, and the Massachusetts Board of Library Commissioners, which was slated to issue $2.77 million on June 30, will now issue the first payment around Nov. 7.
Yesterday, Corbo argued that “principles of equity and judicial economy” dictate that the case should be ended, and that there is no reason to hold further hearings.
The plaintiffs argued that the Town seems more concerned with defense of the lawsuit than compliance with law, including the Charter.
“Governments must comply with the law notwithstanding the administrative or financial burdens,” Bean stated.
This lucid account of what’s become a procedurally complex case is excellent, Art. At heart, though, the case is still simple: did the Town violate Amherst voters’ rights under the Massachusetts and U.S. Constitutions?
Assistant Town Clerk Amber Martin gave a partial “Yes,” by swearing under the pains and penalties of perjury that 11 of the signatures she disqualified “should have been certified.” This admission is remarkable. It undercuts the Town’s position that it did nothing wrong. This makes it all the more vital that the Court determine whether additional “disqualified” signatures, for which Plaintiffs have presented evidence, should have been certified, as well.
Plaintiffs’ attorney Thomas Bean was therefore right to call out the Town on its evident failure to act lawfully here. He emphasized the need for the court to issue a declaratory judgment that the Town has violated voters’ rights. Amherst voters should never have had to bring this case. They should never have to bring another one. The Town obviously needs the Court to tell it: Never violate voters’ rights again.
In addition, the attitude of the Town’s attorney toward the Plaintiffs is shocking. As the post above makes clear, Town Council gave something for which the Voter Veto Petition Plaintiffs did not ask, a referendum — and under a section of the Charter that does not apply to Voter Veto Petitions. The Town’s attorney, Gregory Corbo, then said that the Plaintiffs want a “pound of flesh” for refusing, now, to dismiss their case. This was in open court, remember. It’s on the record. Permanently.
Most members of Town Council are running for re-election this November. Do they really approve of this insult to Amherst voters whose votes they presumably want?