COUNTY OF KINGS
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BOARD OF ELECTIONS IN THE :
CITY OF NEW YORK, : Index No.
:
Plaintiff, :
-against- :
:
BITTA MOSTOFI, as Commissioner :
of the New York City Mayor’s Office : VERIFIED COMPLAINT
of Immigrant Affairs, AYIRINI :
FONSECA-SABUNE, as Chief Democracy :
Officer of the City of New York, and :
JAMES O’ NEILL, as Commissioner of the :
New York City Police Department, :
:
Defendants. :
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Plaintiff Board of Elections in the City of New York (“Board”), by and through its
respective undersigned counsel, Brown & Weinraub, PLLC and Eiseman Levine Lehrhaupt &
Kakoyiannis, P.C., for its Complaint against Defendants hereby alleges as follows:
NATURE OF ACTION
1. This is an action for declaratory judgment and injunctive relief. By way of this
action, the Board seeks to, among other things, ensure the orderly operation of the polls during the
upcoming February 26, 2019 Special Election for Public Advocate of the City of New York and
future elections.
New York State Constitution and the New York State Election Law ("Election Law").
3. Under the Constitution, the Election Law and applicable federal statutes, the
Board is solely charged with administering elections in the City of New York (the “City”) in a
Board regulates who is allowed to enter within one-hundred feet of all designated entrances for
voters at each polling site (the “100-Foot Rule”). Among those allowed are poll workers (including
interpreters hired, vetted and trained by the Board in the languages mandated under the Federal
Voting Rights Act [52 USC §10503]), voters, candidates, properly credentialed poll watchers,
NYPD Press Pass holders as authorized in writing by the Board individuals asked by voters in need
5. The purpose of regulating who may enter within one-hundred feet of the polling site
is to maintain voter privacy, ballot secrecy, provide a quiet zone in which voters can make up their
minds if they have not already done so and make sure they have correctly marked the ballot to
indicate the candidate of their choice and to provide an orderly site enabling inspectors to determine
who is entitled to vote, whether the voter has cast a ballot, whether the voter needs or has received
assistance, including interpretation services in the languages other than English authorized by
6. This regulatory scheme applies to all polling sites, regardless of the political
affiliation of the area and without regard to whether they are in neighborhoods supporting or
7. The Board has been informed that New York City, through the New York City
Mayor’s Office of Immigrant Affairs (“MOIA”), has hired or contracted for its own interpreters to
8. The Board has not reviewed the qualifications of these MOIA interpreters nor the
training that these interpreters have received. Moreover, the Board has been informed that these
interpreters are only being provided for at polling sites selected by the City, and that the languages
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being interpreted and the polling sites being selected change from election to election.
Unfortunately, whether correctly or incorrectly, the ad hoc nature of the program creates the
impression that the program could be rigged to favor certain candidates or political parties.
9. The criteria used by the City to select the interpreters, polling places or languages
10. The City has also informed the Board that it intends to station its interpreters
within one-hundred feet of these selected polling sites, whether or not the Board gives the City
permission to do so.
12. The February 26th Special Election is for the office of Public Advocate which is an
office that serves as a public watchdog of New York City government affairs, including the actions
13. The city-funded MOIA interpreters do not operate in bi-partisan teams as required
under the Election Law. And, the city-funded MOIA interpreters are contracted by a Mayoral
agency – not an independent bi-partisan entity like the Board. Having a Mayoral agency assist in
the conduct of the election, at the very least, gives rise to the appearance of impropriety and, at
14. Moreover, the City has not identified the methodology it used in selecting the
languages and polling sites for which it has chosen to provide interpreters.
15. The Board is concerned that by providing assistance for certain languages but not
others, and certain polling sites but not others, the presence of the city-funded MOIA interpreters
within polling sites opens the Board (as well as the City) to a potential challenge under the Equal
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16. The Board also does not know whether these interpreters were recruited either at the
urging or with the assistance of partisan advocacy groups favoring one candidate or another.
17. Moreover, the inspectors would not be able to monitor whether they are merely
employees do not speak, thereby preventing the Board from enforcing Section 8-104(1) of the
Election Law.
18. For these and other reasons discussed below, and consistent with its exclusive
statutory authority to ensure the orderly operation of New York City polling sites, the Board has
directed its inspectors to exclude the city-funded MOIA interpreters from being stationed within
19. The Board has also advised the New York City Police Department (“NYPD”)
that, pursuant to the Election Law, Board inspectors will seek the assistance of NYPD officers
stationed at polling sites to remove any city-funded MOIA interpreters stationed within 100 feet of
the designated entrances to the poll site who fail to immediately abide by an inspector’s request to
20. The Board has repeatedly requested that the NYPD confirm that officers assigned
to polling sites will follow the written direction of Board inspectors during the February 26, 2019
21. To date, the NYPD has failed to respond to the Board’s request.
22. Thus, the Board seeks judgment declaring the 100-Foot Rule valid -- both as applied
to the city-funded MOIA interpreters as well as to any other unauthorized individuals operating
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23. Additionally, the Board seeks a declaratory judgment that the NYPD is obligated
to follow the written direction of Board inspectors during the February 26, 2019 Special Election
to remove any city-funded MOIA interpreters from within one-hundred feet of any designated
24. Finally, the Board seeks to preliminarily and permanently enjoin MOIA and the City
of New York from locating the city-funded MOIA interpreters within one-hundred feet of any
25. This Court has personal and subject matter jurisdiction over this action pursuant
to CPLR 301.
26. Venue is proper in Kings County pursuant to CPLR 504(3) because Kings County
is the county in New York City in which the cause of action primarily arose as the City’s plan
calls for the majority of city-funded MOIA interpreters to be placed at polling stations located in
Kings County.
PARTIES
27. Plaintiff Board of Elections in the City of New York is an independent entity
established pursuant to the mandate of the New York State Constitution and the New York State
Election Law.
28. Defendant Bitta Mostofi is sued in her official capacity as the Commissioner of
29. Defendant Ayirini Fonseca-Sabune is sued in her official capacity as the Chief
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30. Defendant James O’Neill is sued in his official capacity as the Commissioner of
FACTUAL BACKGROUND
31. During the 2017 and 2018 General Elections, the City provided interpreters to a
limited number of voters at certain polling sites as a pilot program. These interpreters were not
stationed within 100 feet of the designated entrances to the poll sites to which they were
assigned.
32. Both the polling sites and the languages for which interpreters were provided
33. The City allocated funding for the interpreters and the Board played no role in
34. And, as stated above, the City has not identified the methodology it used in selecting
the languages and polling sites for which it has chosen to provide interpreters.
35. Indeed, the languages and locations selected by the City appears entirely arbitrary.
For example, during prior elections, city-funded interpreters were placed at over 100 polling sites.
For this upcoming Special Election, the City plan as of February 21, 2019 calls for locating
interpreters at 44 polling sites. Nor is the City consistent with respect to the languages for which it
intends to provide interpreters. During prior elections it provided, for example, Italian interpreters.
For this upcoming Special Election, no Italian interpreters are being provided.
36. The Board also does not know whether these city-funded interpreters were recruited
either at the urging or with the assistance of partisan advocacy groups favoring one candidate or
another nor do the city-funded interpreters operate in bi-partisan teams as required under the
Election Law. The city-funded interpreters are contracted by a Mayoral agency. Thus, at the very
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least, having a Mayoral agency assist in the conduct of an election gives rise to the appearance of
impropriety in that it undermines the Board’s status as an independent agency charged with the
statutory and constitutional exclusive duty to conduct elections held within the City of New York.
37. Furthermore, the Board is subject to state and federal statutory requirements as well
as a Federal Court order to provide accessible polling sites. Pursuant to this order, the Board
ensures that the path of travel to both the poll site and the poll room at every polling site are free
38. The Board contracts with a court-designated third-party vendor to conduct site
surveys and prepare floor plans to ensure the accessibility of polling places.
39. The presence of the city-funded MOIA interpreters within polling sites potentially
threatens the Board’s ability to provide accessible polling sites as required by state and federal law
40. Because of these concerns, during both the 2017 and 2018 General Elections, the
city-funded MOIA interpreters were not located within one-hundred feet of a designated entrance
to a polling site.
41. The city-funded MOIA interpreters complied with the Board’s instructions and
abided by the 100-Foot Rule during both the 2017 and 2018 General Elections.
42. However, as mentioned above, for the upcoming February 26, 2019 Special
Election for Public Advocate, the City has informed the Board that it intends to station its
interpreters within one-hundred feet of designated entrances of selected polling sites, whether or
43. Specifically, on December 31, 2018, Ayirini Fonseca-Sabune, the City’s Chief
Democracy Officer, sent a letter to the Board requesting that it “establish[] as a matter of Board
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policy that city funded, non-partisan language interpreter services be permitted inside polling
locations.” Ms. Fonseca-Sabune’s letter references the February 26th Special Election and states
A true and correct copy of Ms. Fonseca-Sabune’s letter, dated December 31, 2018, is annexed
hereto as Exhibit A.
44. On February 13, 2019, Ms. Fonseca-Sabune sent another letter to the Board. In
this letter, she informed the Board that the “City intends to provide interpretation services at the
poll sites with the largest numbers of Limited English Proficient voters who are not already
provided services through the Board of Elections.” Her letter goes on to state that: “[a]t each of
these locations, our staff will identify an area inside of the building where the interpreters can be
stationed.” A true and correct copy of Ms. Fonseca-Sabune’s letter, dated February 13, 2019, is
45. Thus, the City unilaterally decided to ignore the Board’s exclusive authority and
proceed with its plan to provide interpreters as it chooses -- even though the Board did not
change its policy as requested by Ms. Fonseca-Sabune in her December 31st letter.
46. On February 14, 2019, the day after receiving Ms. Fonseca-Sabune’s letter, the
Board sent a letter to Zachary Carter, Corporation Counsel of the City of New York. The
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interfere with the lawful conducting of the [February 26th] Special
Election.”
A true and correct copy of the Board’s letter, dated February 14, 2019, is annexed hereto as
Exhibit C.
47. Despite the clear position taken by the Board in its February 14th letter, and despite
the Board’s exclusive authority to administer elections, on February 19, 2019, Ms. Fonseca-
Sabune sent an e-mail to the Board stating that “[w]e are working expeditiously to determine
locations for interpreters at each of the identified polling sites.” A true and correct copy of Ms.
48. On February 20, 2019, Ms. Fonseca-Sabune sent a follow-up e-mail identifying
forty-one polling sites and another e-mail on February 21, 2019 identifying forty-four polling
49. In light of the City’s plain intention to ignore the 100-Foot Rule with respect to
stationing the city-funded MOIA interpreters, on February 20, 2019, the Board sent a letter to
Police Commissioner O’Neill. A true and correct copy of the Board’s letter to Commissioner
50. The Board’s letter to Commissioner O’Neill requested that the NYPD confirm
that, pursuant to applicable law, officers assigned to polling sites will follow the written direction
of Board inspectors during the February 26, 2019 Special Election and remove, and if necessary,
arrest, any unauthorized city-funded MOIA interpreters stationed within 100 feet of the entrance to
the poll site who fail to abide by the Board’s inspectors directions to move beyond one-hundred feet
51. Because of the tight timeframe, the Board’s letter to Commissioner O’Neill also
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52. After not receiving any response, the Board placed a call to the NYPD Legal Bureau
53. The NYPD Legal Bureau confirmed that it received the Board’s letter but did not
54. To date, the NYPD has failed to respond to the Board’s request.
55. The Board repeats and realleges each and every part of every paragraph set forth
56. Under the New York State Constitution, the Election Law and applicable federal
statutes, the Board is solely charged with administering elections in the City of New York in a
57. Defendants Mostofi and Fonseca-Sabune have failed and refused, and upon
information and belief, will continue to fail and refuse, to abide by the decision of the Board to
implement the 100-Foot Rule with respect to the stationing of city-funded MOIA interpreters at
polling sites.
58. By reason of the foregoing, the Board is entitled to judgment: (i) determining its
rights to implement the 100-Foot Rule as applied to stationing of city-funded MOIA interpreters
at selected poll sites at the upcoming February 26th Special Election as well as in all future
elections; and (ii) adjudging and declaring that the Board has the authority to exclude city-funded
MOIA interpreters from within one-hundred feet of any polling place during the upcoming
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SECOND CAUSE OF ACTION
Declaratory Judgment Against James O’Neill
in His Capacity as the Commissioner of the New York City Police Department
59. The Board repeats and realleges each and every part of every paragraph set forth
60. The Board is authorized to direct the arrest of any person refusing to obey the
lawful commands of polling location inspectors. Specifically, Section 3-402(3) of the Election
Law mandates:
61. Defendant O’Neill has failed and refused, and upon information and belief, will
continue to fail and refuse, to state whether the NYPD will execute the orders of the Board with
respect to the removal and, if necessary, arrest of any unauthorized city-funded MOIA interpreters
who fail to abide by the Board’s inspectors’ directions to move beyond one-hundred feet of a
polling site.
62. By reason of the foregoing, the Board is entitled to judgment: (i) determining its
rights to order the NYPD to remove and, if necessary, arrest any city-funded MOIA interpreters
who fail to abide by the 100-Foot Rule and the Board’s inspectors’ directions to move beyond one-
hundred feet of a polling site during the upcoming February 26th Special Election as well as in all
future elections; and (ii) adjudging and declaring that the Board has the authority to order the
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NYPD to remove and, if necessary, arrest any city-funded MOIA interpreters who fail to abide by
the 100-Foot Rule and the Board’s inspectors’ directions to move beyond one-hundred feet of a
designated entrance to a polling site during the upcoming February 26th Special Election as well
63. The Board repeats and realleges each and every part of every paragraph set forth
64. Under the New York State Constitution, the Election Law and applicable federal
statutes, the Board is solely charged with administering elections in the City of New York in a
enjoining defendants Mostofi and Fonseca-Sabune from implementing the City’s plan and
causing city-funded interpreters to be stationed within one-hundred feet of any polling place
during the upcoming February 26th Special Election as well as in all future elections unless
WHEREFORE, Plaintiff Board of Elections in the City of New York prays for judgment in
-- On the First Cause of Action, judgment against defendants Mostofi and Fonseca-
Sabune: (i) determining its rights to enforce the 100-Foot Rule as applied to stationing of the
city-funded MOIA interpreters in the upcoming February 26th Special Election as well as in all
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future elections; and (ii) adjudging and declaring that the Board has the authority to exclude city-
funded MOIA interpreters from being stationed within one-hundred feet of the designated
entrances to any polling place during the upcoming February 26th Special Election as well as in
determining the Board’s rights to order the NYPD to remove and, if necessary, arrest any city-
funded MOIA interpreters stationed within 100 feet of the designated entrances of a polling site who
fail to abide by the 100-Foot Rule and the Board’s inspectors’ directions to move beyond one-
hundred feet of a polling site during the upcoming February 26th Special Election as well as in all
future elections; and (ii) adjudging and declaring that the Board has the authority to order the
NYPD to remove and, if necessary, arrest any city-funded MOIA interpreters stationed within 100
feet of the designated entrances to a polling site who fail to abide by the 100-Foot Rule and the
Board’s inspectors’ directions to move beyond one-hundred feet of a polling site during the
Mostofi and Fonseca-Sabune from implementing the City’s plan and causing city-funded
interpreters to be placed within one-hundred feet of any designated entrances to a polling place
during the upcoming February 26th Special Election as well as in all future elections unless
-- Such other and further relief as the Court deems just and proper.
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EISEMAN LEVINE LEHRHAUPT
KAKOYIANNIS, P.C.
&
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