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For most New York City Council incumbents, election day was largely predictable and uneventful, with all but one councilmember running for re-election settling in for another four years. (Queens councilwoman Liz Crowley was narrowly defeated by challenger Bob Holden.) Yet for many voters in Brooklyn’s District 40 — which includes parts of Flatbush and Prospect Lefferts Gardens, among other neighborhoods — the re-election of incumbent councilmember Mathieu Eugene was not without controversy.
Both Reform Party challenger Brian Cunningham and many voters have accused Eugene and his campaign staff and volunteers of engaging in what’s known as electioneering — encouraging voters to support a candidate or ballot measure — within a hundred radial feet of polling places on election day, which is illegal under state law.
The line between proper and improper behavior by a candidate for office and their staff in a polling station isn’t always entirely clear-cut. It is legal for a politician to enter a polling place and greet the people running the polling site, as long as he or she doesn’t encourage any particular voting activity.
It’s indisputable that Eugene spent time at polling places throughout the day. However, what he did while there is in dispute.
“What I witnessed myself was long stretches of the councilman being there in the poll site,” Cunningham tells the Voice. “He was talking to voters and poll workers.” Multiple people who were present describe Eugene having entered P.S. 249, his polling location, at least twice on election day, and photographs show him chatting with poll workers. Joyce David, an attorney and adviser to Cunningham, characterized Eugene’s behavior as a “meet and greet.”
Multiple voters who spoke with the Voice also described behavior by Eugene supporters that seem more self-evidently improper. Prospect Park South resident Jamie Larson says she saw a man walking back and forth right in front of P.S. 249 with “two big loudspeakers on a rolling cart,” blaring prerecorded messages in support of Eugene. “I walked up the stairs and I told the person at the table where they tell you which direction to go, and she just kind of shrugged like she didn’t know what to do,” she says. A supervisor told her that a police officer stationed at the poll site had already been dispatched to make the man leave, but apparently he’d returned.
Marie Farrell, who also reported the loudspeaker man, was one of several voters who described poll workers telling them how to vote. “When I went into my polling place after, the young woman who was handing me the ballot, she says, ‘You vote here down the ballot. If you’re a Democrat, you vote here, if you’re a Republican, you vote here.’ It sounded really sketchy. I voted how I wanted.” Farrell says she called the Board of Elections to report this incident to a staffer there, “but it didn’t seem like she took down a formal report.”
The BOE has not responded to requests for comment on complaints it received, but spokeswoman Valerie Vazquez told City Limits, “We did receive complaints, and we dispatched a district monitoring team to District 40.” Eugene did not respond to requests for comment.
The Cunningham camp initially indicated that it would explore legal options; David says of a possible civil suit against Eugene or the Board of Elections, “I don’t think that would be productive.” The campaign is now focusing on gathering evidence for a complaint it will make to the office of the state attorney general, Eric Schneiderman. (Schneiderman’s office declined to comment on whether it had received complaints in relation to the District 40 election and on whether it would commence any sort of inquiry.)
State election law states that anyone found electioneering can be charged with a misdemeanor. Beyond that, it’s unclear what a lawsuit could lead to in terms of the outcome of the election. Cunningham said the campaign was filing challenges “not because we think we’re going to change the results, but because we believe in accountability.”
The burden of proof that an accuser must reach in electioneering cases is very high, and longtime election attorney Sarah Steiner cannot recall a time when a candidate was successfully sued in an electioneering case. According to Steiner, the only civil penalty that could be handed down in this case would be a new election, and that would require Cunningham’s campaign “to prove a number of ‘irregularities’ sufficient to change the vote total.”
Steiner says that this is a high evidentiary bar to clear: “There is no proof he did anything illegal when he was inside the polling places unless they know he was doing something other than — as the elected in the area — saying hello to his poll workers.”
If nothing comes of the electioneering allegations — Steiner says she isn’t holding her breath — it won’t be the first time that reported election day irregularities will have come to nothing. It isn’t even the first time the district’s voters have criticized Eugene himself: Larson says she told the police officer at her polling place that during the September primary, she’d seen Eugene standing at the site’s staircase and shaking hands. The officer’s response? “Oh, I’m not surprised.”