December 14, 2016
VIA UPS OVERNIGHT
James P. Hoffa
March 1, 2017
Page 1
James P. Hoffa
2593 Hounds Chase
Troy, MI 48098
Ron Carey, General President
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
John Sullivan, Associate General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, DC 20001
Carey Campaign
c/o Nathaniel Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman
32300 Northwestern Highway, Suite 200
Farmington Hills, MI 48334
James P. Hoffa
March 1, 2017
Page 1
Re: Election Office Case No. P-1324-LU104-NYC
Gentlemen:
A pre-election protest was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by
James P. Hoffa, a candidate for general president. Mr. Hoffa alleges that a campaign flyer distributed by the Ron Carey No Corruption-No Dues Increase Slate impermissibly encouraged IBT members who have already mailed ballots to the Election Officer to request a second ballot and to cast that ballot for Mr. Carey. Mr. Hoffa contends that this alleged inducement is impermissible because the right of members to change their vote after having mailed a ballot to the Election Officer is not specified in the Rules.
This protest was investigated by New York City Protest Coordinator Barbara Deinhardt.
James P. Hoffa
March 1, 2017
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Jim Edgmon, a member of Local Union 104, states that on November 27, 1996, he saw multiple copies of the alleged campaign flyer on a table at Local Union 104 headquarters.
Gil Torres, a retired member of Local Union 104, corroborates Mr. Edgman’s account.
In Shea, P-1124-IBT, aff’d, 91 - Elec. App. - 243 (SA) (December 9, 1991), the Election Officer addressed a set of facts nearly identical to the acts protested here. In Shea, a communication from the R.V. Durham campaign encouraged members who had already marked and mailed their ballots to request a new ballot from the Election Office. The communication, which was purportedly spurred by the indictment of Dan Ligurotis, a 1991 candidate for secretary-treasurer, stated:
It’s not too late to shift, even if you previously supported Shea-Ligurotis . . . If you or your members have mismarked a ballot, you can obtain a new ballot by calling 1-800-IBT-VOTE. The ballot with the latest postmark will be counted.
The communication was protested by counsel for the Shea-Ligurotis slate who characterized it as an attempt to solicit IBT members who had already cast ballots for the Shea-Ligurotis slate. The Election Officer rejected the protester’s contention and stated:
Under the procedures implemented by the Election Officer, IBT members who have not received their ballots, or who wish a duplicate ballot, may request a ballot by contacting the Election Office at a special toll free number established for that purpose . . .
Members calling this number requesting a duplicate ballot are asked, inter alia, the reasons for their request. Duplicate ballots are not withheld from members simply because they state they have ‘changed their mind’ or want to ‘change their vote’ as the reason for requesting a duplicate ballot. Under the Election Officer’s procedures for processing duplicate ballots which are received by the Election Office in a timely manner, i.e., on or before 12 noon on December 10, 1991, the ballot with the latter post mark will be counted. If both or one of the post marks are/is not legible so that the Election Officer is unable to determine which was the later mailed ballot, the ballots will be voided.
James P. Hoffa
March 1, 2017
Page 1
In his administration of the Election Rules, the Election Officer has consistently held that the date of a mail ballot election is the date and time on which the ballots must be returned to the post office box designated by the Election Officer . . . Implicit in this application of the Rules is the recognition that a voter has until the return date to make his choice or change his choice of candidate(s). Such application of the Rules is consistent with the practice followed in all elections, even in in-person balloting. In a walk-in election, a voter having once marked his ballot may decide to change his vote; if he does so, the voter has the right to request that a new ballot be issued. The first ballot is marked as spoiled and the second ballot marked by the voter, with his changed vote, is counted.
These same rules are applied here by the Election Officer; the date of the 1991 IBT International Union officer election is December 10, 1991; until that date--the date when the ballot is in effect cast--the voter has the right to change his mind and request a duplicate ballot to effectuate that change. The Election Officer notes it is not unusual for a voter to change his mind with respect to a choice of candidate(s) because of last minute campaigning and to change his vote accordingly.
Mr. Hoffa argues that the circumstances in this protest make the decision in Shea inapposite. Mr. Hoffa states that while the Durham campaign in 1991 attempted to persuade voters who marked their ballot in favor of Mr. Shea, it did so only after Mr. Ligurotis was indicted and when Mr. Ligurotis’ candidacy was no longer viable. Mr. Hoffa argues that since there is no candidate-viability issue here, Shea should not be utilized as precedent.
Mr. Hoffa also argues that the omission of any explicit mention in the Rules, the Election Officer’s voting instructions printed in the November-December 1996 issue of The Teamster, or The Cookbook supports the contention that a voter may not request a new ballot in order to express his/her new choice of candidate(s).[1] Further, Mr. Hoffa argues that Article V,
Section 6 of the Rules and the voting instructions printed in The Teamster suggest that a ballot is “cast” when it is marked, placed in a ballot envelope and mailed. This reference, it is argued, precludes any construction that equates the “casting” of a ballot with its “receipt” and suggests that a second ballot cannot be requested. Finally, Mr. Hoffa states that the “absence of any understanding or instructions suggesting that voters may change their votes after they are mailed” favors Mr. Carey’s campaign and disrupts “the level playing field that the Election Officer is sworn to maintain.”
The Election Officer is unpersuaded by the protester’s arguments. Shea, which was affirmed by the Independent Administrator in 1991, is clearly on point and is not distinguish-able. As the analysis in Shea makes clear, the reason for the rule permitting members to request a new ballot if they have changed their mind after marking a ballot is to ensure that the ballot counted accurately reflects the voter’s choice. The reason a voter has asked for a new ballot is not pertinent:
James P. Hoffa
March 1, 2017
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It is beyond cavil that IBT members are entitled to obtain a duplicate ballot if they improperly marked their ballot--such as voting for too few or too many candidates--even if they only learn of their error after the ballot is mailed. Were the Election Officer to deny duplicate ballots to members seeking duplicate ballots because they have changed their candidate preference(s), the member would invariably supply some other reason for seeking the duplicate ballot.
Accordingly, it is not violative of the Rules for a voter, who has already mailed his ballot, to seek a duplicate ballot in order to express his new choice of candidate(s) as long as this change of sympathy is not coerced or fraudulent.
There is no indication of fraud or coercion in this case.
Accordingly, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Barbara C. Deinhardt, New York City Protest Coordinator
James P. Hoffa
March 1, 2017
Page 1
[1]The Cookbook: How the Election Officer Supervised the 1991 Teamster Election was written by the 1991 Election Officer Michael H. Holland.