Liz Benjamin has a document from one of the Senate Dems attorneys about Senator Padavan's stroll through the chamber yesterday. I know the validity of the session yesterday has taken quite a beating around this site since yesterday and even I thought it was kinda shady. But I think this guy makes a pretty good case:
Our legal team has concluded that today's procedures were entirely proper under the New York State Constitution, the laws of the State of New York, and long standing Senate Rules and Procedures. Accordingly, we have sent a letter to the Governor and the Speaker of the Assembly demonstrating the following:
1. The Senate Obtained a Quorum in Regular Session today
* 31 Democrats were recorded as present in the chamber. The Senate convened a regular session at noon today. Lisa Copeland, Deputy Journal Clerk of the Senate, identified 31 Democratic members as present in the Senate Chamber and, in accordance with longstanding Senate procedure and custom, marked them as present in the Chamber.
* Senator Padavan was also recorded as present in the chamber. In addition to the 31 Democratic members, Ms. Copeland identified Senator Frank Padavan (R-Queens) as being present in the Chamber at the time attendance properly and timely was recorded. Many Senators and Senate staff also observed Senator Padavan in the Chamber at this time. Accordingly, Ms. Copeland marked Senator Padavan as present.
* These attendance records are included in the day's Senate Journal in the ordinary course of Senate business, and the Journal of the Senate is conclusive proof of the proceedings of the Senate.
2. A Senator counts toward quorum if he enters the Chamber and is marked as present by the Journal Clerk.
* The Court of Appeals in 1982 held that a Senator counts toward quorum if he enters the Senate Chamber and is marked as present by the Journal Clerk. See Heimbach v. State, 89 A.D.2d 138 (2d Dept. 1982), aff'd 59 N.Y.2d 891 (1983), app. dismissed 464 U.S. 956 (1984).
* It is longstanding custom and practice of the Senate that the mere physical presence of a Senator on the floor during the proceedings is deemed to be attendance.
3. A Senator's exit from the Chamber after being recorded as present does not render him absent from the Senate for quorum purposes
* Senator Padavan, having been recorded as present for quorum purposes, is not deemed absent for quorum purposes when he leaves the chamber.
As the Appellate Division noted in the Heimbach case: "By long-standing custom, a Senator's presence is established by his actual entry into the chamber at some point during a session day and having himself marked present by the clerk of the Senate. Thereafter, his presence is presumed to continue unless he requests that he be excused or informs the clerk of his departure." Heimbach, 89 A.D.2d at 147.
4. Quorum, After Being Properly Established, has to be Challenged ... and it never was by Sen. Padavan or anyone else.
* At no time did any Senator question the existence of a quorum after Senator Padavan left the chamber.
* Mason's Manual of Legislative Procedure which is binding as a matter of law in this case, holds that: "[w]hen a body has convened with a quorum present, it can continue to transact business as long as a quorum is present and it is presumed that the quorum continues to be present until the question of no quorum is raised or the lack of quorum is disclosed by a vote." See Mason's § 504(1).
5. The "Fast Roll Call" Procedure was Typical and Valid under the Law and Rules of the Senate
* Once quorum was obtained, the Senate took up non-controversial legislation by well-established "fast roll" call vote under Senate Rule VIII, § 6(b). (Under the same rule a fast roll call is actually the norm. A "slow" roll call of all Senators - where each Senator is called by name and must say "aye" or "nay" - is only conducted when five Senators demand a slow roll call. No such request was made today at any time.
* In a "Fast Roll Call", a bill can be passed after the Journal Clerk calls the names of five Senators and any negative votes are counted. Under a fast roll call Senators marked as present are presumed to vote "yes" on the bill. Accordingly, if there are 32 senators present and none vote "no" then a bill is passed.
6. The Assembly and Governor Must Deem the Bills Passed
* The Constitution does not permit the Assembly to question Senate passage of bills. The Constitution is clear that "[e]ach house shall determine the rules of its own proceedings." N.Y. Const., art. III, § 9.
* Accordingly, the Constitution requires that the Senate alone must determine and apply the rules of its own proceedings.
* The Assembly cannot legally collaterally challenge Senate proceedings.
* Once the Presiding Officer of the Senate certifies on a bill jacket that the Senate has passed a bill, the Assembly must consider the bill passed. See Mason's § 760(6).
* The Constitution and the Court of Appeals have made clear that the Assembly has no discretion but to present such bills to the governor for executive action. King v. Cuomo, 81 N.Y. 2d 247 (1993).
* The Governor must accept these bills as properly passed by the Senate. (He can, of course, veto the bills). The Constitution is clear that upon presentment to the Governor of bills passed by both Houses, the Governor must sign, veto or withhold action on such bills. These options do not include challenging the validity of legislative action on bills: the signature of the Presiding Officer on the bill jacket is conclusive proof of passage. See Legislative Law § 40.
To my eyes, it looks like they did actually stumble upon a quorum yesterday thanks to Senator Padavan. Padavan or any of the other GOP + Pedro Espada "reform coalition" types could have challenged the quorum at any time. They didn't.
Also it looks to be clear that the Assembly doesn't really have the power to decide which laws passed by the Senate it will choose to forward to the Governor.
At a press conference at the Governor's Manhattan office last week to announce the introduction of the marriage equality bill, Mayor Bloomberg blew up at wheelchair-bound Examiner reporter Michael Harris, who was trying to pick up a tape recorder he had dropped.
If marriage equality is important enough to Mike Bloomberg for him to publicly humiliate a wheelchair-bound journalist for no particular reason, then is it not important enough for him to use whatever popularity he has left to pressure Senators like Pedro Espada and Frank Padavan to vote yes? Bloomberg picked the winner in the Squadron-Connor primary last year, and it's hard to imagine a scenario where Espada avoids a serious primary challenge in 2010. Padavan squeaked by in his last contest and could struggle against a Bloomberg-endorsed Democrat next year.
The race in SD-11 is finally over. The current margin of 578 votes is too much to beat.
With all but 265 ballots fought over, counted and recounted, Republican Frank Padavan retains a 578-vote lead over his Democratic challenger, Councilman Jim Gennaro, according to a Queens GOP source who has been monitoring the situation.
That makes it arithmetically impossible for Gennaro to pull out a victory - even if those last remaining ballots all cut his way, which, of course, they wouldn't.
This was always going to be a tough race for Jim Gennaro, but he worked his tail off. Few people believed that it would ever be this close.
Well done, Mr Gennaro.
And congratulations, Senator Padavan. Hope you have a ball in the minority.
City Board of Elections commissioners voted unanimously today to reserve their December decision and allow disputed paper ballots to be counted in the yet-undecided 11th SD race, signaling the beginning of the end of what has been an extremely contentious and drawn-out process.
Depending on how long the count takes - and there have been conflicting reports as to exactly how many ballots are out there, but it's somewhere between 1,700 and 2,700 - this contest could be a contender for the title of longest-running undecided legislative race in modern history.
...
Republican Frank Padavan, who was the incumbent GOP senator when this whole mess started, has a lead of several hundred votes - perhaps as many as 500 - over his Democratic challenger, Councilman Jim Gennaro.
Obsevers and operatives on both sides of the aisle have been more or less in agreement (at least privately) that Padavan is going to be declared the winner.
Much like now ex-Senator Serph Maltese was a top Dem target in 2008, should these numbers hold, expect much attention be paid to Padavan in 2010.
Just as we thought all the votes were counted everywhere when the MN Canvassing Board concluded its good work, this press release was received from the Jim Gennaro State Senate Campaign:
MEDIA ADVISORY
The State Supreme Court in Jamaica, Queens will hold a hearing to determine why the Board of Elections did not follow established rules in the ballot counting of the still-undecided race between then-incumbent Republican State Senator Frank Padavan and Democratic challenger James Gennaro.
The Jan. 16 hearing is expected to be attended by key Board of Elections personnel with, according to the court, "actual knowledge of the facts." Among those ordered to testify are Judith Stupp, the Republican Commissioner who is also on the Senate Republican payroll and considered to be one of the chief agents of Republican efforts to disenfranchise new, Democratic, student and minority voters in the recent battle for Queens' Senate District 11.
The unresolved State Senate contest between Senator Frank Padavan, a Republican, and his Democratic challenger, James F. Gennaro, moves on Tuesday into a Queens courtroom, where nearly a dozen college students have been subpoenaed to verify their residences.
Republican lawyers have challenged the votes of students, mostly from St. John's University, saying that they filled out affidavit ballots with addresses that were not their permanent residences. In the paper ballot count, Mr. Padavan is leading by about 600 votes, but about 1,000 more ballots remained to be counted and the validity of an additional 2,000 must still be reviewed.
While the challenges and subpoenas have angered students, who are being forced to appear during exams, they underscore the high stakes attached to winning the Senate seat in Queens...
What makes this turn of events all the more ridiculous, is that college students can absolutely register and vote from their college addresses. Period. What a great way to treat those first time voters, right? Let's drag their asses into court during exams simply for exercising their right to vote.
Steven H. Richman, the general counsel at the New York City Board of Elections, said that under state law, a student can vote from a polling place near either his or her permanent address or a college address.
"A college student has the option," Mr. Richman said. "If you're living on campus, you have the right to register and vote from that district. Or you can register from your parents' address. You just can't vote in two places."
Democratic officials said they were incensed by the subpoenas. "It's outrageous that this is the lesson that Republicans want to teach young voters," said, a spokesman for the Democratic Senatorial Campaign Committee. "They are teaching students that they can be dragged into court just for fulfilling their civic duty. It's absolutely outrageous."
...
Cristina Fernandez, a student at St. John's, said by phone that it was more convenient to vote near the school. "Even though my parents live in Manhattan, I live right here in Queens and didn't see any reason to vote back in Manhattan when I could register to vote right here in the neighborhood," said Ms. Fernandez, a senior majoring in accounting.
"I was so excited to vote this year," she added. "But then I had some man showing up on my doorstep issuing me a subpoena because the Republicans are trying to challenge my vote. So, I have to go to court in the middle of finals, instead of studying. It makes you not want to vote ever again."
The recount in the SD-11 race continues and it's starting to get ugly. I've been hearing about these shenanigans for about a week now. Finally, the Times has a story describing the mess out in Forest Hills. Basically, the GOP is challenging the ballots of pretty much anyone with an Asian or Hispanic surname. Oh, and the whole process is being run by a woman on Dean Skelos' payroll. Really.
Democratic officials and lawyers have accused the Republicans of systematically challenging the ballots of voters with surnames that sound Asian or Hispanic, a charge that Republican officials deny. The charge is particularly stinging in a Senate district that, in the 2000 census, was nearly 25 percent Asian and 13 percent Hispanic.
"They are challenging ballots based on a technicality that had never been enforced in the past," said Michael H. Reich, the executive secretary of the Queens Democratic Party and one of the lawyers overseeing the counting. "But they are only doing it to Democratic voters and voters with names that they assume are African-American, Latino or Asian. They're not doing it with voters they presume are white. I am outraged by this."
Specifically, Mr. Reich said that under a longstanding bipartisan practice, the votes of those who have filled out paper ballots have been counted, so long as they are listed as registered voters. The controversy centers on so-called affidavit ballots, in which voters attest to having moved into a district other than where they are registered. In some cases, the paper ballots failed to include the voter's prior address. In other cases, the voter neglected to check one of several boxes indicating a change of address. Those ballots have been deemed ineligible by the Republican officials.
In the past, Democrats claim, all such ballots were counted. But this time, they say, the Republican commissioner of the Board of Elections in Queens has ruled that ballots should be invalidated if they do not include the signature or stamp of a poll worker.
And just who is this Republican BoE Commissioner? That would be one Judith Stupp, director of downstate operations for the Senate GOP. Oh, and did I mention she's a Padavan donor?
That ruling brought a firestorm of criticism from Democratic officials and lawyers, who point out that the Republican commissioner, Judith Stupp, is also employed as the manager of downstate operations for New York State Senate Republicans. She is also a contributor to Mr. Padavan's campaign.
If this doesn't sound fishy, I don't know what would. Regardless, Stupp's crew is systematically challenging the ballots of Democrats with ethnic sounding surnames - these are all Padavan's constituents, mind you, the people he was elected to serve so many times - whilst seemingly ignoring those from folks who sound sufficiently white and Republican.
On a recent afternoon, over a period of several hours, a reporter observed that the Democratic lawyers objected to none of the ballots that came before the group. Meanwhile, the Republican lawyer, John Ciampoli, registered repeated objections, in several cases regarding voters with names that could be perceived as Hispanic or Asian.
Keep your eye on this one, folks. Liz is reporting that today's machine recount in the SD-11 race cut Frank Padavan's lead from 723 to just 502 votes. And there is still the matter of over 8,000 paper ballots yet to be counted:
Today's machine recount in the 11th SD is complete and GOP Sen. Frank Padavan's lead over Democratic Councilman Jim Gennaro has shrunk from an already-close 723 votes to 502.
There remain 8,300 paper ballots yet to be counted, a good number of which are likely to be disqualified, as is fairly standard.
Democratic political consultant Evan Stavisky, who worked on Gennaro's campaign, touted the fact that his candidate "closed the gap significantly," adding: "We're confident, and we always have been, that the paper ballot will put Jim over the top."
500 votes is not an insignificant hurdle to be overcome, but it is certainly doable. One thing is for certain though. If Gennaro pulls this off, he definitely won't be joining any "gangs" of petulant children with their hands out.
I was just reading Liz's post on the money trail during the New York State Senate battle and whether or not personal feelings played too strong of a role on both sides of the aisle and where the DSCC's and SRCC's money went.
On the Democratic side, the race in the 56th Senate District was one that Liz used to argue her point. The DSCC spent a lot of money on Rick Dollinger. As Liz pointed out, that race was seen as a competitive one because Dolliger is a former senator and he received key backing from Governor David Paterson, who served in the Senate with Dollinger.
But was it truly a waste? I don't think so. The results of the race show that Sen. Joe Robach only beat Dollinger by 4,889 votes. Percentage wise, that comes out to a 52-48 win for Robach. It wasn't nearly a double-digit blowout that Siena showed it to be and it wasn't a waste. There are a few other factors that come into play (like Robach's cowardly way of not telling people what party he is a member of) and in the end, Dollinger only lost by a rather small margin.
Then there is the Jim Gennaro and Frank Padavan race in SD-11. This one shocked the Republicans as Gennaro is within Padavan by 723 votes at last check. Gennaro outraised Padavan and the DSCC only invested over $4,000 in that race.
So were our priorities misplaced? As someone I talked to today said, even if we do end up losing Gennaro's seat, now we have a target for 2010. The same can or could be said for other seats, even Robach's. And as always, hindsight is 20-20. We can look back on it and now and say we should have spent more money and sent more resources there or here, but it won't do any good. Learn from our mistakes this time and make sure next time we compete in other areas.
I'm not satisfied with only two pickups. I was hoping for at least three and was really disappointed that SD-56 and/or SD-61 didn't go our way. We had great candidates in both but it didn't work out. That said, there was a time when I thought SD-11 was competitive but my opinion is only from afar. People on the ground there had other opinions and I'm sure, at the time, their opinions were quite valid. But it is hard to argue against that kind of enrollment advantage in that district. If Dollinger was targeted for, among other things, his district's enrollment advantage, Gennaro's should have been as well.
But again, 2010 looks just as good. And I think we can pick up more than two seats next time with the possibility of some special elections mixed in.
NARAL Pro-Choice New York is targeting Sen. Frank Padavan because of Padavan's bragging about New York State requiring insurance coverage of mammograms. The truth is that Padavan was actually one of ten senators in the New York State Senate to vote against it.
In what can only be called the pinnacle of hypocrisy, Senator Padavan uses his website to brag about New York State's law requiring insurance coverage of mammograms. How dare he promote this service when he was one of only ten extremist senators -- along with Serphin Maltese and Caesar Trunzo -- to vote against the law requiring it (Women's Health and Wellness, S765/ A11723, 2002)?
Says Kelli Conlin, President of NARAL Pro-Choice New York, "Mr. Padavan has been saying one thing in his district and doing another in Albany. In the final days of his campaign, he is misleading his constituents and orchestrating a candidate 'Extreme Makeover.' He's set up a bus to provide mammograms outside of his office but in Albany, he OPPOSED insurance coverage for breast cancer screening. This bus isn't a service; it's an election year smokescreen. Like they say in the 'Extreme Makeover, Home Edition' show: Frank Padavan, move that bus!"
NARAL Pro-Choice New York has endorsed Mr. Padavan's opponent, Councilman Jim Gennaro for State Senate.
Jim Gennaro is running against Padavan. Gennaro has run a solid campaign, but does have his hands full with Padavan.
I spoke briefly with Councilman Jim Gennaro yesterday about his race against Senator Frank Padavan. I asked him about what is at stake in this year's election.
According to Gay City News, the Empire State Pride Agenda is joining the battle for control of the state Senate in a major way. ESPA says they've already committed $300K to the effort and they are focusing their efforts in the districts everyone expects to be the real battleground next year.
With more than a year to go before New Yorkers return to the polls to vote on legislative candidates seeking office in Albany, the Empire State Pride Agenda (ESPA) has already directed upwards of $300,000 to the effort to shift control of the State Senate to Democratic hands.
...
Alan Van Capelle, the group's executive director, said that at the current time, four Republican incumbents, all of whom oppose gay marriage, seem the most vulnerable - Caesar Trunzo of Suffolk County, Kemp Hannon of Nassau County, Serph Maltese of Queens, and Joseph Robach, a former Democrat, from the Rochester area.
Van Capelle also identified what he termed a "second tier" of Republican senators who might have reelection problems - two more Long Islanders, Carl Marcellino, who represents portions of Nassau and Suffolk Counties, and Owen Johnson of Suffolk, and James Alesi, who like Robach is from the Rochester area.
Notably absent from ESPA's current calculations is a long-time gay rights foe, Frank Padavan from Queens.
According to Van Capelle, for the first time in New York political history, the gay community is part of the "coordinated victory campaign" by the Democrats. ESPA recently set up a meeting between Smith, the Senate majority leader, and Paterson, the lieutenant governor, and representatives of the Gill Action Fund - the political arm of the LGBT work initiated by computer entrepreneur and philanthropist Tim Gill.
Gill has come through with $100,000, half of which went to the Democratic Senate Campaign Committee, the other $50,000 going to ESPA's PAC. Another anonymous donor working with the Pride Agenda similarly gave $50,000 to the DSCC. The Pride Agenda PAC itself has directed $170,000, drawn from 17 donors giving $10,000 each, to the state Democratic Party.
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The Pride Agenda is also emphasizing its work at building a field organizing capacity. Van Capelle pointed to more than 300 marriage ambassadors across the state and said 100 new activists will attend a Long Island workshop this weekend co-facilitated by the National Gay and Lesbian Task Force, where they will receive training to work on legislative races out there and in Queens next year.
Van Capelle took pains to argue that electing Democrats to the Senate is the default position required to build a pro-marriage majority; efforts to work with the GOP majority on the issue are currently dead in the water. The Pride Agenda is committed, however, to shoring up the political position of the handful of Assembly Republicans who joined the Democratic majority in passing the marriage bill in June.
This is very, very good news. Long Island is going to be a tough nut to crack and recent developments have made the task all the more difficult. Those of us working for reform in New York (and for, ya know, basic human rights) know that retaking the State Senate is an absolute necessity. The news that ESPA and their allies are joining that fight in a major way, with not just money but with people, is really quite inspiring.
Democrats in the state Senate, looking to seize enough seats from Republicans to capture a majority, have been eyeing police-union head Patrick Lynch as a potential candidate, sources told The Post.
Several sources close to Senate Democrats said the idea would be for Lynch, the president of the Patrolmen's Benevolent Association, to run against Queens Republican Sen. Frank Padavan.
The 11th District Senate district includes Bayside - where Lynch was raised - and is home to some of the city's most conservative-tilting voters.
"I know he's been approached, and so far there hasn't been a 'no,' " said one source familiar with the conversations.
Another source with direct knowledge of the issue said some Senate Democrats recently made the pitch to Lynch to gauge his interest in running next year.
And a third source close to Queens Sen. Malcolm Smith, the Democratic minority leader, said, "We're interested in him, of course."
Asked about the possibility of a Lynch candidacy, PBA spokesman Al O'Leary insisted his boss laughed at the question. "It's not true. He hasn't had conversations about running," O'Leary said.
