[EL] Some background on the O'Hara fraud case in NYC

Wed Jan 21 14:29:01 PST 2015

It's very rare that a claim of selective prosecution is successful, and the fact that a crime is rarely prosecuted is only tangentially related to a successful claim. An infrequent or carefully chosen prosecution can be just fine as long as the defendant wasn't picked for unacceptable reasons; such a prosecution can be considered as having a deterrent effect.

The classic language is from Yick Wo v. Hopkins, US Sup Ct 1886, forbidding "a public authority from applying or enforcing an admittedly valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances"."  A more modern summary is in 303 W. 42ND v. Klein, 46 NY 2d 686, Court of Appeals 1979, unusual as most of these cases are criminal appeals and that is not. 

There are also issues as to whether the claim was properly preserved, since it is supposed to be raised pre-trial, but I wouldn't be so concerned about that.

The best thing that O'Hara has going for him is all the research about the other residency issues that have been overlooked, particularly in that office.  If he can show that the prosecution was mainly politically motivated (good chance of that), he has a good case

Sarah Steiner

-----Original Message-----
From: Robbin Stewart <gtbear at gmail.com>
To: Lorraine Minnite <lminnite at gmail.com>
Cc: law-election <law-election at uci.edu>
Sent: Tue, Jan 20, 2015 3:42 pm
Subject: Re: [EL] Some background on the O'Hara fraud case in NYC

One of several ironies of the John Kennedy OHara case is that John F Kennedy
during his years in congress and the senate was registered to vote from a Boston hotel room that he did not live at.

How rare does prosecution have to be before someone can make a winning argument of selective prosecution?  

On Tue, Jan 20, 2015 at 12:12 PM, Lorraine Minnite <lminnite at gmail.com> wrote:

I ran a Brooklyn City Council primary race in 1991 in which O'Hara was one of the candidates.  Over the years he was often a candidate for all kinds of elective office.  This did not endear him to the powers-that-be in Brooklyn.  The NYC city council had been expanded and redistricted in 1991.  O'Hara wanted to run in a 'new' district (the 38th) where there was no incumbent and where he thought he'd have a better chance of winning, so he claimed to have moved in with his girlfriend at the 47th Street address in Sunset Park.  Our campaign made much of the fact that he didn't really live there, and he didn't.  My candidate had intended to run against the Park Slope incumbent - she made that known before the district lines were drawn, an unavoidable vulnerability given the timing of the line-drawing and the upcoming primary.  At the last minute, she was cut out of the district she intended to run in (the new (38th) district line cutting her out of her contest with the incumbent shot north from Sunset Park, circled her block and shot back down again), and forced into a primary with eight other unknowns (she won).  

O'Hara was much later convicted on five felony illegal voting counts, and two felony counts concerning his voter registration at the ex-girlfriend's address where he registered so he could run in the new 38th.  His case is interesting because it raises questions about legal interpretations of voting residency in NYS election law.  I don't know if the claims about no one since Susan B. Anthony having been prosecuted for illegal voting in New York are true or not - I believe there are elected officials who have been prosecuted for not living in their districts, and candidates thrown off ballots for not living in districts, but the NYS election law experts will know this better than I do.

Lori Minnite

Posted in Supreme Court

Must Read Jim Dwyer NYT Piece on Lone Voter              Fraud Prosecution in NYC

Posted on January                20, 2015 8:03 am by Rick Hasen

Somehow I missed this Jim Dwyer NYT piece last week:

John Kennedy O’Hara            spent most of 2003 picking up garbage in city parks and            cleaning public toilets as part of his sentence for illegal            voting in Brooklyn. Also, he had to pay a fine and            restitution amounting to $15,192. His supposed crime was            that he registered to vote using the address of a girlfriend            on 47th Street in Sunset Park, where he claimed to live part            of the time. But he also maintained a residence 14 blocks            away.

While this            sounds like pretty serious punishment for virtually nothing            — the state election laws are so remarkably elastic on            matters of residency that a former head of the Brooklyn            Democratic Party was actually living in Queens during his            reign — we cannot be sure if Mr. O’Hara got more than his            unfair share.

There are,            after all, very few people to compare him with.

Practically            no one.

 It appears                    that the last person to be convicted of illegal                    voting in New York State before Mr. O’Hara was the                    abolitionist and suffragist Susan                      B. Anthony, who cast a ballot in Rochester in                    1872, flagrantly disregarding that she was a woman                    and therefore not allowed to do so. She was not                    sentenced to pick up garbage in the parks, but was                    fined $100. She never paid.

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