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August 2, 2006

From City Hall News

Claims Ken Diamondstone missed residency requirement by one day

By Edward Isaac Dovere

****UPDATE: The Board of Elections removed Ken Diamondstone from the ballot Thursday morning (of August 3, 2006), with 8 votes in favor and 1 abstention. Diamondstone is expected to appeal, meaning a trial would likely occur on Monday August 7 or Tuesday August 8, with a decision by August 9. Further appeals are possible.****

State Sen. Martin Connor (D-Manhattan/Brooklyn), who was knocked out of his post as State Senate minority leader in 2002, is looking to do a little deposing of his own. He has filed a complaint with the board of elections looking to remove his Democratic primary challenger, Ken Diamondstone, from the ballot. Diamondstone was served Wednesday morning, with a Board of Elections hearing expected Thursday and a court case expected sometime during the week of August 7.

Connor, an election lawyer, who was first elected to the State Senate in 1978 and has been essentially unchallenged in the 28 years since, says he is challenging Diamondstone on the validity of his residency in the district. Among the problems Connor cited was a claim that Diamondstone moved into the district on November 8, 2005, one day after the legal limit, a year in advance of Election Day this year.

"Suddenly he pops up on November 8," Connor said, adding that he had evidence Diamondstone had left behind a home undergoing renovations for a rent-stabilized apartment for the express purpose of waging the primary challenge this year.

"You decide you're redoing your kitchen and have workers in there, and you go someplace else for six months. That doesn't change your legal residence," Connor said. "If you really want to move, then really move."

Diamondstone has said that he weighed running against Connor in 2004, but waited until this year when "we had the resources and we saw that there's been no improvement" in what he characterized as ineffective representation of the district, which covers parts of Park Slope and Brooklyn Heights in Brooklyn, as well as Lower Manhattan.

Diamondstone says he has building a grassroots campaign, and has received the backing of the several local groups, including Democracy for New York City. He has also loaned approximately $230,000 of his own money to the campaign, which exceeds Connor's by about $100,000 in fundraising. Diamondtone is also backed by the Working Families Party, meaning that he will appear in the general election regardless of the outcome of the Sept. 12 primary.

This has led some political observers to call Diamondstone the first real challenger ever faced by Connor, who is simultaneously campaigning among his State Senate colleagues to regain his leadership post now that current minority leader State Sen. David Paterson (D-Manhattan) is running for lieutenant governor.

Connor said he had no qualms pressing for tight adherence to state Constitutional law.

"You file your petition a day late, you're off the ballot too," he said. "The fact of the matter is, if he's Constitutionally ineligible, even if he were to win, he could be denied his seat, and that won't serve the voters of the 25th Senate District at all, would it?"

He would not discuss the details of his case any further because it is headed to court.

"The Board of Elections is having a hearing tomorrow and we'll see what they do," is the extent to which he would further elaborate on the particulars of his challenge, sounding optimistic about his chances.

Diamondstone confirmed that he had been served Wednesday morning, but said he had not really examined the papers.

"Whatever it is, we're not particularly concerned with what's in there, but what he's doing again what he always does," Diamondstone said, calling Connor a man who will use his expertise in election law as an alternative recourse to campaigning.

"We've always thought that he would try and use his skills. He's not campaigning, he's not raising money. The only thing he has left is using his skills as an election lawyer," Diamondstone said. "This is his stock and trade, trying to knock people off the ballot."

Diamondstone has long retained an election lawyer, and said he plans to discuss his defense of the Connor challenge with that lawyer soon.

He insisted that Connor was simply "tinkering," trying to preoccupy the campaign's time and resources.

Election law expert Jerry Goldfeder, who had briefly discussed the case with Connor, explained that for a case like this, "the burden starts with Connor to raise the issue that a party has not lived in the place for the applicable time, but then once you've shown enough, the burden shifts to the candidate to refute those allegations and essentially to prove where they have lived."

To establish his residency, Goldfeder said Diamondstone could use a driver's license, lease, bills, voter registration, tax returns or even laundry bills.

As for what will be enough, he said, it "depends. There's no bright line test. It's an accumulation of evidence."

If Diamondstone fails to accumulate enough evidence, Goldfeder said he would "absolutely" expect a judge to toss Diamondstone from the ballot, even if the question of residency hinges on a single day's difference.

But Diamondstone is not concerned.

"We can prove everything," he said. "These are not issues that will be in dispute."

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