Regular Session - September 17, 2001
11381
NEW YORK STATE SENATE
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
September 17, 2001
1:25 p.m.
REGULAR SESSION
SENATOR JOHN R. KUHL, JR., Acting President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
ACTING PRESIDENT KUHL: Senator
Bruno.
SENATOR BRUNO: Mr. President,
can we at this time ask you to call the house
to order for an ordinary session of the
Senate.
ACTING PRESIDENT KUHL: The
Senate will come to order.
I ask all the members and staff and
everybody in the chamber to rise and join with
me in saying the Pledge of Allegiance to the
Flag.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
ACTING PRESIDENT KUHL: In the
absence of clergy, may we bow our heads in a
moment of silence.
(Whereupon, the assemblage
respected a moment of silence.)
ACTING PRESIDENT KUHL: Reading
of the Journal.
THE SECRETARY: In Senate,
Friday, September 14, the Senate met pursuant
to adjournment. The Journal of Wednesday,
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September 12, was read and approved. On
motion, Senate adjourned.
ACTING PRESIDENT KUHL: Hearing
no objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
Senator Bruno, that brings us to a
calendar.
SENATOR BRUNO: Mr. President,
can we return to reports of standing
committees. I believe there's a report of the
Rules Committee at the desk.
ACTING PRESIDENT KUHL: We will
return to the order of reports of standing
committees.
There is a report of the Rules
Committee at the desk. The Secretary will
read.
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THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bill direct to third reading:
Senate Print 5792, by Senator
Maltese, an act to amend a chapter of the Laws
of 2001, enacting the Emergency Primary
Rescheduling Act of 2001.
ACTING PRESIDENT KUHL: Senator
Bruno.
SENATOR BRUNO: Move to accept
the report of the Rules Committee.
ACTING PRESIDENT KUHL: The
motion is to accept the report of the Rules
Committee. All those in favor signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT KUHL: Opposed,
nay.
(No response.)
ACTING PRESIDENT KUHL: The Rules
report is accepted, and the bill is reported
directly to third reading.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time take up the Rules report.
11385
ACTING PRESIDENT KUHL: The
Secretary will read.
THE SECRETARY: Calendar Number
1476, by Senator Maltese, an act to amend a
chapter of the Laws of 2001, enacting the
Emergency Primary Rescheduling Act of 2001.
SENATOR CONNOR: Explanation.
ACTING PRESIDENT KUHL: Senator
Maltese.
SENATOR BRUNO: Is there a
message at the desk?
ACTING PRESIDENT KUHL: Senator
Maltese, before you do that, there is a
message of necessity at the desk.
SENATOR BRUNO: Move to accept
the message.
ACTING PRESIDENT KUHL: The
motion is to accept the message of necessity
on Calendar Number 1476. All those in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT KUHL: Opposed,
nay.
(No response.)
ACTING PRESIDENT KUHL: The
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message is accepted. The bill is before the
house.
The chair recognizes Senator
Maltese.
SENATOR MALTESE: Mr. President,
there's no need for me at the present time to
go into the terrible circumstances that
dictate the speed of this legislation in order
to protect one of our most precious freedoms,
the right to vote.
This legislation, I am advised, has
been agreed upon by the Assembly, the Senate,
and the Executive, or the Governor.
Basically, what the bill enacts is
the Emergency Primary Rescheduling Act of
2001. What it seeks to do is supplement the
legislation that we have just passed in
response to the emergency situation. And this
would refer to absentee ballots.
This legislation seeks to permit
those persons residing in an area south of
Canal Street whose lives have been disrupted
and families disrupted, to give them access to
the right to vote if their residences are no
longer habitable, if their polling places in
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many instances are closed or inaccessible and
if that situation still prevails as of
Election Day.
This provides that rather than an
application, the application can be done by
letter requesting an absentee ballot after the
effective date of this act.
In addition, it dispenses with all
the -- and waives only for the purpose of this
emergency the requirements of having the
applications themselves received prior to
Election Day. In most cases, the prior law
stated seven days.
What we're attempting to do, with
the cooperation of -- the splendid
cooperation, I might add, of the City Board of
Elections, all parties involved, despite the
fact that the director, Danny DeFrancesco, has
just undergone a double bypass and is resting
well -- I spoke to him earlier at Lenox Hill
Hospital -- despite the fact that I am advised
by Mr. Gentili, the deputy director, that
power has not yet been restored, yet with all
that in mind, they are prepared to go ahead to
the best of their ability.
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This legislation would therefore
provide that those date requirements would be
waived only for this emergency.
In addition, it provides that the
Board of Elections shall make a good faith
effort to provide absentee ballot applications
and absentee ballots to voters requesting such
applications, provided that any ballot not
timely returned to the board shall be void.
Those rules are still in effect as
to the actual ballots rather than the
applications, and they provide that they can
be returned to the board right up until
9:00 o'clock on September 11th or that they
are received by the board, canceled by a duly
authorized postal authority, not later than
the day before election -- those are the same
rules now in effect -- and with the additional
proviso that they must be received not later
than seven days after the election, which
provides the finality to the election that we
might need in a close election.
In addition, with respect to the
area south of Canal Street, it provides that
any registered voter eligible to vote for
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September 25th or the October 11th runoff in
the city shall be entitled to vote by absentee
ballot without making any showing other than
that they reside south of the Canal Street
line -- and it recites from the Hudson River,
west side to the east side.
In addition, it provides that the
ballot and the application may be returned at
the same time to the Board of Elections. This
is something, by the way, that in many cases
has been done at the board, in many cases
unofficially.
In addition, it does provide that,
insofar as possible, requests for applications
and ballots may be made by telephone. I am in
touch with some of the boards -- not all of
them, yet, in the city -- but certainly the
Queens board and the Brooklyn board, they're
advising that by virtue of the increase in pay
for inspectors and coordinators, they feel
that they can even expand the hours for
telephone contact with the board.
I discussed with the Queens board
they're hoping to have telephone lines
available perhaps up until midnight of every
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day for those applicants who wish to obtain an
absentee ballot.
The ballots still have to comply
with the rules as far as the absentee ballot
would be in the envelope; the application,
which would be filled in, would be in the
outer envelope.
Basically, those are the changes.
They've been put into effect by -- in,
hopefully, a very prudent but in an immediate
manner by counsel. And I wish to express our
appreciation to the counsel, all three, for
the Governor, the Assembly Speaker, and of
course our own leader, Senator Bruno.
There is also a provision in the
law seeking to provide -- showing legislative
intent that seeks to protect that the
inability of a Board of Elections to provide
an absentee ballot application or an absentee
ballot in a timely fashion shall not in any
way impair the validity of the results of the
September 25, 2001, or October 11, 2001,
runoff election. What that's seeking to do is
indicate both legislative intent and provide
guidelines for a court that might be called
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upon to act in the event of a close election.
ACTING PRESIDENT KUHL: Senator
Connor, why do you rise?
SENATOR CONNOR: Thank you, Mr.
President. And thank you, Senator Maltese,
for that explanation of what the bill does.
My concern is what the bill doesn't
do. And in my mind, this bill is the epitome
of the majority mentality in this Capitol.
And I'm not talking about this house.
As you all know, Senator Duane and
I represent the area below Canal Street, as
does Assembly Member Glick and the Speaker.
As you all may not know, last week I quietly
voiced objections to the bill we were doing
because it didn't address the real needs with
respect to redoing this primary. It still
doesn't.
We have problems with a consent
decree from a federal court that requires we
certify the results by October 2nd so military
ballots can go out. Well, we have a runoff on
October 11th. How are we going to comply with
the federal court decree and get military
ballots out? We need to address that in
11392
legislation. We haven't addressed it yet.
This bill deals with a very real
problem that came up yesterday when 400 or 500
people at an outdoor community board meeting
on Canal Street, just outside the frozen zone,
were very unhappy with what was done last week
and were blaming their legislators. People in
the other house said they'd do a bill, and
apparently they worked all night.
Well, my colleagues, Article 2,
Section 2 of the State Constitution says no
absentee ballot is valid unless the person is
outside the county. So we're providing relief
here that's unconstitutional.
Simple way to do it, though.
Because you may say, Gee, then how did we let
election inspectors vote? We always call it
absentee so they don't have to leave their
polling place. How do we let other categories
of people who are within the county vote?
Under Article 9, there's a special ballot
provision. This bill should provide special
emergency ballots for these people. Then it's
constitutional.
We've done it before when people
11393
knew how to draft bills, when people listened
to colleagues who had a little bit of
expertise. If we did that, these people would
get constitutional ballots.
And, you know, we're not going to
be the final judge of this. Some court is
going to judge this when there's an election
dispute. And they're going to assume our
legislation says what it says and our
constitution says what it says. And so the
people who are literally bombed out of their
homes and somehow go to the trouble to get one
of these ballots may find out their vote
didn't count. Thank you, America. Thank you,
New York State Legislature.
What else is not done here? The
application for the absentee ballot, how are
people going to get them, get them back to the
board? How are they going to get their
ballots?
And, you know, there are other
answers. Florida was devastated by a
hurricane a few years back just before
Election Day. Their legislature provided for
mobile voting stations manned by the National
11394
Guard so people could go and vote. And they
had different ones set up for different
precincts so people were voting for the right
candidates.
There's no reason we couldn't do
that. For the Battery Park City EDs, set up a
mobile voting station outside the frozen line
on Canal Street and tell people, announce: Go
there and vote, that way you'll get to vote
for the right council candidates, the right
whatever.
Nobody wanted to listen to that.
All in a big hurry, we are. All in a big
hurry to do a press release and tell people in
Lower Manhattan: We've solved your problem,
you can vote.
Yeah, you can vote if you jump over
backwards, spin through hoops, get an
application into the board, get your absentee
back by close of polls on that day. When in
fact most of these people are still in
Manhattan, they're just staying with friends
or relatives somewhere else. They're working
in Manhattan. We're getting back to work in
New York.
11395
Just tell them where to go to vote.
Don't tell them they've got to go to the board
and get an application and fill it out. There
are other ways to address this. We have
affidavit ballots that anybody can walk into a
polling place and ask for. All we had to do
was provide that people who were displaced
could go to any polling place.
Because if they're staying with a
relative out in Queens or whatever, it's very
difficult to get in and out of Manhattan
today. It's not -- I know we want to say it's
back to normal. We're working very hard to
get back to normal. The mayor and the
governor are working very hard to get us back
to normal. A lot of businesspeople and
residents are working very hard to get back to
normal. But it's not normal.
Let them go into any polling place
and get an affidavit ballot, fill it out, put
their address where they reside, where they
resided, and hand it in.
We're all, But wow, they'll get the
wrong ballot for council. But their vote -
it's very simple, you provide that their vote
11396
counts for any office they were eligible to
vote for. It counts for mayor and public
advocate and comptroller. And if there's
countywide judges running and it's in the
right county, it counts for those judges. And
if they've voted for the council candidate
listed on the ballot but they don't reside
there, then it doesn't count for that.
But aha, if they cared enough to go
to vote in the primary and they wrote in the
name of one of the candidates who was running
in their district -- because they all
campaigned right up until 10 o'clock on
September 11th, or 9:30 -- so if somebody out
in Queens who used to live in Battery Park
City says, I want Candidate X for my
councilman, they go into a place in Queens,
they vote for all the other offices for which
they're eligible -- they're can't vote for
Queens borough president, obviously, but if
they're smart enough to write in a candidate
who's running in Manhattan, it counts. It
doesn't count if they checked off a Queens
candidate.
And if they write the name of their
11397
neighbor seven candidates down there, I think,
seven or eight running for City Council, and
they write in one of those names, they're a
good citizen -- they paid attention to the
campaign, and they're for somebody -- count
it. Count it.
To say they have to go get an
application now and get it back -- mail
service, I assure you, throughout the city is
not quite normal. It's very good, they
delivered the mail every day, but some of it
was a few days late as they delivered it,
naturally.
We're just doing -- we're doing a
press release here instead of sitting down and
thinking and listening to ideas that come, oh,
from the Minority. Well, my colleagues, Mr.
President, I think all know I know a little
bit about election law. There are ways to
address this. There are ways other states
have addressed it in crises, in hurricanes and
the like. Why aren't we doing that? Why are
we in a such a hurry, why are we so
ill-prepared?
You know, why was this an overnight
11398
thing because some residents yelled? Why
wasn't it done last week? Why weren't these
suggestions considered then? And the fact of
the matter is we're not helping these people
the way we ought to help them. There are
simple solutions that will work legally, won't
offend our state constitution and will allow
these people to get special ballots.
You know, "below Canal Street," we
say that as if all the EDs begin at Canal
Street and go north and all the election
districts begin at -- the others go south. I
believe in my district and in Senator Duane's
districts there are election districts part of
which are north of Canal Street and part of
which are south of Canal Street. In some
cases the polling place may be north of Canal
Street in those EDs, and in other places the
polling place may be south of Canal Street.
And there may be EDs that are
wholly above Canal Street whose polling place
is below Canal Street. So those people get no
relief. Policemen and National Guardsmen will
say to them, "ID? You don't reside below
Canal Street, you can't walk in there." "Oh,
11399
but my polling place is over there."
Why wasn't more thought given to
this? Why can't we pause and give it more
thought? I don't understand it.
Now, Mr. President, I'm not going
to vote against it, because I don't want to
get in a fight in Lower Manhattan with
somebody saying: Oh, we had the bill to help
you and, you know, Connor got all the
Democrats to vote against it and there weren't
enough people left here and it went down in a
slow roll call. I'm not going to fall into
that.
But I'm not going to remain quiet,
Mr. President. This bill doesn't cut it. It
doesn't cut it, and there are ways to make it
work and we're not even considering it.
ACTING PRESIDENT KUHL: Senator
Maltese.
SENATOR MALTESE: First of all, I
would like to read Article 3, Section 25 of
the State Constitution: "Notwithstanding any
other provision of this Constitution, the
Legislature, in order to ensure continuity of
state and local governmental operations in
11400
periods of emergency caused by enemy attack or
disasters, natural or otherwise, shall have
the power and the immediate duty to provide
for prompt and temporary succession for the
powers and duties of public officers of
whatever nature, and whether filled by
election or appointment, the incumbents of
which may become unavailable for carrying on
the duties and powers of such offices; and (2)
to adopt such other measures that may be
necessary and proper for ensuring the
continuity of governmental operations.
Nothing in this article shall be construed to
limit in any way the power of the State to
deal with emergencies arising from any cause."
Mr. President, far be it from me to
in any way criticize or imply criticism of a
colleague. But over the last few days since
that terrible day, we have had occasion, all
of us, to work with members of the other
party, members of the other house, members of
the other branches of government. I do not
believe that this is by any stretch of the
imagination a press release. I regard such
conversation at this time and in this place is
11401
as unseemly, improper, and insulting to not
only the members of the Legislature but to the
victims of the terrible tragedy.
I understand that Senator Connor,
representing a district that is affected, and
most affected, is upset. At the same time, I
do not believe that this gives anyone license
to take this Legislature or any member of the
Legislature or any member of the government to
task for trying to remedy a terrible
situation, for trying to alleviate the
suffering of people who feel that their right
to vote has been abridged or terminated in any
shape, manner, or form.
Certainly we are hopeful that any
future judicial act respecting a complaint or
an appeal to the court would take into
consideration the legislative intent behind
this legislation. At the same time, this
legislation uses the terminology "good faith
effort." I think, most respectfully, Mr.
President, most respectfully, fellow Senators,
this is a good faith effort.
ACTING PRESIDENT KUHL: Any other
Senator wish to speak on the bill?
11402
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President.
I don't have much at all to add to
what Senator Connor has said about the
travesty of this bill. It virtually ensures
the disenfranchisement of people who live
below Canal Street and may in fact
disenfranchise people living above Canal
Street. And it certainly would have the
effect, undoubtedly, of tainting an election
for a council district, which is a very
critical election for an area which is the one
most impacted by this terrible disaster.
So to negatively impact any voters
in that district is wrong, absolutely wrong.
I mean, bizarrely, there's a
section here which calls for people to write a
letter requesting an absentee ballot. At the
meeting that Senator Connor and I worked with
community members to put together and chair
yesterday, people didn't even have a piece of
paper or pens. I actually brought pads and we
handed out sheets of paper to people so they
could write down information.
11403
People don't have paper there, they
don't have a desk, they don't have telephones,
they don't have anything. They have nothing.
We don't even know where tremendous numbers of
them have scattered to.
For us to unilaterally
disenfranchise any voters in that district is
just plain wrong. I urge my colleagues not to
do that to citizens of the State of New York,
and particularly not to do it to citizens of
the State of New York who have been most
horribly impacted by this despicable act of
terrorism. They've been hurt enough. Don't
hurt them more by not allowing them the
opportunity to vote for people who are going
to be fighting for their future.
Thank you.
ACTING PRESIDENT KUHL: The
Secretary will read the last section.
THE SECRETARY: Section 3. This
act shall take effect, expire and be deemed
repealed on the same date and in the same
manner as a chapter of the Laws of 2001.
ACTING PRESIDENT KUHL: Call the
roll.
11404
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Announce
the results.
THE SECRETARY: Ayes, 54.
ACTING PRESIDENT KUHL: The bill
is passed.
Senator Connor, why do you rise?
SENATOR CONNOR: Yes, Mr.
President, I'd like unanimous consent to be
recorded in the negative on that last vote.
ACTING PRESIDENT KUHL: Without
objection, hearing no objection, Senator
Connor will be recorded in the negative on
Calendar Number 1476, I believe it was.
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President. Similarly, I'd like to be recorded
in the negative on Calendar Number 1476.
ACTING PRESIDENT KUHL: Without
objection, hearing no objection, Senator Duane
will be recorded in the negative on Calendar
Number 1476.
Senator Bruno.
SENATOR BRUNO: Mr. President, I
am waiting to hear back from our counsels. We
11405
have one more piece of legislation that, if we
can get it done in a short time frame, it adds
to some of what we've already done in terms of
strengthening the antiterrorist activities
here in the state and in the country.
I'm waiting back to hear
momentarily on what the time frames are. I
was told five minutes ago or six minutes ago
that it will be here in 15 or 20 minutes.
Now, if that is so, then I would suggest that
we will just be in recess for 10 or 15
minutes. If it looks like it's going to be
extended and not critical, then we will live
to look at it another time.
But that's what we're waiting for.
I just wanted to share that with you. So we
should hear within a couple of minutes. And
if we're going to do it, we'll just stand at
ease until about ten after.
(Whereupon, the Senate stood at
ease at 1:58 p.m.)
(Whereupon, the Senate reconvened
at 2:05 p.m.)
ACTING PRESIDENT KUHL: Senator
Bruno.
11406
SENATOR BRUNO: Mr. President,
can we ask for an immediate meeting of the
Rules Committee in Room 332.
ACTING PRESIDENT KUHL: There
will be an immediate meeting of the Rules
Committee, immediate meeting of the Rules
Committee in the Majority Conference Room,
Room 332.
And the Senate continues to stand
at ease.
(Whereupon, the Senate stood at
ease at 2:06 p.m.)
(Whereupon, the Senate reconvened
at 2:11 p.m.)
ACTING PRESIDENT KUHL: I ask the
members to take their places, staff to take
their places.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we return to reports of standing
committees. I believe there's a report from
the Rules Committee at the desk. I ask that
it be read at this time.
ACTING PRESIDENT KUHL: We will
return to the order of reports of standing
11407
committees.
There is a report of the Rules
Committee at the desk. The Secretary will
read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bill direct to third reading:
Senate Print 5793, by Senator
Volker, an act to amend the Criminal Procedure
Law.
ACTING PRESIDENT KUHL: Senator
Bruno.
SENATOR BRUNO: Move to accept
the report of the Rules Committee.
ACTING PRESIDENT KUHL: The
motion is to accept the report of the Rules
Committee. All those in favor signify by
saying aye.
(Response of "Aye.")
ACTING PRESIDENT KUHL: Opposed,
nay.
(No response.)
ACTING PRESIDENT KUHL: The Rules
report is accepted.
The bill is ordered directly to
11408
third reading.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time take up Calendar Number
1479.
ACTING PRESIDENT KUHL: The
Secretary will read Calendar Number 1479.
THE SECRETARY: Calendar Number
1479, by Senator Volker, Senate Print 5793, an
act to amend the Criminal Procedure Law, in
relation to interception.
SENATOR BRUNO: Is there a
message of necessity from the Governor at the
desk?
ACTING PRESIDENT KUHL: There is.
SENATOR BRUNO: I'd move that we
accept the message.
ACTING PRESIDENT KUHL: The
motion is to accept the message of necessity
on Calendar Number 1479. All those in favor
signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT KUHL: Opposed,
nay.
(No response.)
11409
ACTING PRESIDENT KUHL: The
message is accepted.
The bill is before the house.
SENATOR CONNOR: Explanation.
ACTING PRESIDENT KUHL: Senator
Volker, for an explanation.
SENATOR VOLKER: Mr. President,
this bill has been amended from its initial
version, which -- and it relates to
wiretapping. It now relates only to the
wiretapping of people who are covered by the
bills that we passed today -- that is,
terrorism -- so that only people who would be
covered under the terrorist provision would be
able to use what is known here as a roving
interception.
You have to go in to get an order
but if the person moves or whatever, you'd
have to go back in and ask for a subsequent
order. Under a roving interception, you
wouldn't have to do that. The feds already
have authority quite similar to this.
And so this bill is limited to
terrorists. It is effective -- has the
effective date of the other bills that we
11410
passed today. And it shall sunset after two
years from the effective date.
ACTING PRESIDENT KUHL: Does any
other member wishing to speak on the bill?
Hearing none, the Secretary will
read the last section.
THE SECRETARY: Section 2. This
act shall take effect on the same date as a
chapter of the Laws of 2001.
ACTING PRESIDENT KUHL: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT KUHL: Record
the negative and announce the results.
THE SECRETARY: Ayes, 53. Nays,
1. Senator Duane recorded in the negative.
ACTING PRESIDENT KUHL: The bill
is passed.
Senator Bruno.
SENATOR BRUNO: Mr. President and
colleagues, there being no further business to
come before the Senate at this time, I would
move that we stand adjourned, subject to the
call of the Majority Leader, with intervening
days being legislative days.
11411
And, as we adjourn, that we stay
mindful of all the victims and continue to
mourn those that are lost in this terrible
tragedy here in this state and across the
country, and that we also remember in our
thoughts and prayers the families of many of
the victims that have been afflicted.
Thank you, Mr. President.
ACTING PRESIDENT KUHL: On
motion, the Senate stands adjourned, subject
to the call of the Majority Leader,
intervening days to be legislative days.
(Whereupon, at 2:16 p.m., the
Senate adjourned.)