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Voter Beware

It’s Election Day, and I can’t stop thinking of John Kennedy O’Hara, whose sad and bizarre tale in the polling places and the courtrooms of New York ought to be a warning to all Americans. His story is simple: O’Hara, who grew up and lives still in Brooklyn, New York, was a good citizen. He voted in every election he was eligible to vote in since the age of 18 – it was a point of pride for a once geeky civics student who when he was just 11 years old handed out fliers for George McGovern – and as a young man he tried to run for office, tried to better the system. Five times he ran unsuccessfully, for the New York city council and the New York state Assembly. As thanks for his effort, the earnest kid became, on the cusp of middle age, a disbarred attorney and convicted felon, an official second-class citizen whose future had been seemingly forever darkened. And the decade-long prosecution in the case of the People vs. John O’Hara now has some chilling ramifications for each of the 11 million or so people eligible to vote today across New York. It means they, like O’Hara, could face felony prosecution for stepping into a voting booth. In fact, anyone who might vote anywhere in the United States today could find themselves with a prosecutor on their tail.

It’s been four and a half years since I came to know O’Hara, a one-time rising Wall Street lawyer who at 44 is now bankrupted and jobless. When in April 2001 he telephoned my office in the editorial page department of the Albany Times Union, the paper of record in the state capitol, he was alternately articulate and earnest, desperate and incredible, at once deadly serious about his plight and unable to keep from laughing at its absurdities. It turned out this stranger on the phone, who reassured me this wasn’t some crazy hoax, had clashed with the Democratic bosses in Brooklyn just often enough that the bosses had to make an example of him. His most unforgivable act of rebellion in the backbiting world of Brooklyn machine politics was to demand in court that the U.S. Department of Justice step in and order the suspension and rescheduling of the Democratic primary election in 1996. The ’96 voting, such as it was, had been a fiasco, with tens of thousands of voters disenfranchised. Voting machines throughout Brooklyn arrived as late as ten hours after polls were supposed to open. The Village Voice called it “the worst electoral debacle in modern city history” and a federal judge reviewing the case – finally ordering a new election – wondered whether the election had been purposely stolen (much as some people still suspect, with no small supply of evidence, that those 20 electoral votes at stake in Ohio last year were similarly commandeered). It was a lawsuit by O’Hara that brought about a new election. His heroism left him more of an enemy than ever to the Brooklyn establishment. An aide to Brooklyn State Assemblyman James Brennan, a particular nemesis of O’Hara’s, told a reporter seven years later, “John O’Hara deserved some sort of street justice; that’s what a lot of people wanted to mete out.” A month after the electoral debacle of September of 1996, O’Hara was indicted. The same aide to Brennan tried to defend the indefensible this way: “If there was anybody who should have been selectively prosecuted, it was John Kennedy O’Hara.”

His arrest had come at the hands of Brooklyn District Attorney Charles “Joe” Hynes, a powerhouse prosecutor who served Brooklyn’s political bosses. The charge was a strange one: O’Hara had voted from what prosecutors contended was an illegal residence. It was the address of his then-girlfriend, fourteen blocks away from an apartment he’d kept for almost 25 years. O’Hara says, to this day, that he was effectively, and legally, living in both apartments. But he was voting from just one of them. The evidence backed that up, with financial records and testimony from neighbors attesting that he frequently stayed at the address in question. The district attorney’s office, however, insisted that the girlfriend’s address was a sham that failed to meet the legal standard of a “principal and permanent residence to which [he] had always intended to return,” as the court record put it.

A five-years ordeal of conviction, reversal, reinstatement and appeal – three trials in all – left O’Hara guilty of a felony, stripped of his license to practice law (his means of survival), fined $20,000, sentenced to five years probation and 1,500 hours of community service. He had been reduced by political attrition to a life that only faintly resembled all that he had aspired to through college and law school and his rebellious, abortive career as a politician.

On that April day of 2001, O’Hara was making his pitch to me at the editorial board — a common enough act of last resort – because his case was pending before the highest court in New York, the oddly and perhaps misleadingly named Court of Appeals. O’Hara took a special delight in pointing out that he was the first person to be successfully prosecuted for illegal voting in New York since 1873. His compatriot in crime, he gleefully told me, was Susan B. Anthony.

O’Hara’s story checked out. So the Times Union ran with an editorial urging the court to stop an abuse of justice that had rendered what was unbelievable into something unforgivable. The editorial boards of the New York Daily News and the New York Sun – not exactly papers itching to side with the likes of O’Hara against an often-vengeful prosecutor like Hynes – followed with denunciations of the case. Even Harper’s Magazine published an 8,000-word cover story on O’Hara’s saga.

But O’Hara’s plea to the high court fell on deaf ears among the justices at the Court of Appeals, who, incredibly, upheld his conviction. Since then, the injustice has been magnified by the indifference to it. The New York Times editorial page has never said a word about him. Neither Howell Raines nor his successor as editorial page editor, Gail Collins, appear the least bit troubled that the precincts of Brooklyn are home to a political prisoner.

Today, O’Hara fights on, in a struggle ever more daunting. The setbacks accumulate – the Supreme Court declined to hear the case in January of 2004, and a New York State judge last month rejected his claim of selective prosecution – while his legal options erode. O’Hara is left paying his public penance cleaning out garbage cans in a city park, across the street from where he went to high school and unrecognized by the people whose votes he used to seek.

Election day, of course, is depressing enough, given the miserable voter turn-out and the near 100 percent incumbency of so many legislatures (the worst example probably being the U.S. Congress). O’Hara’s case makes it even more so. Today marks one more election in which O’Hara can’t vote. It’s an indignity that rivals any other miserable lesson about American politics.

When I last interviewed O’Hara, in September, two things stood out in the kitchen of his apartment. There was the usual pile of weeks-old and months-old beer cans, and there was a voting notice from the New York City Board of Elections. The city government still had him on the list of citizens entrusted with enfranchisement.

O’Hara could legitimately be among those voters, if only he’d given in just a bit. Indeed, People vs. O’Hara could have been plea-bargained down to a misdemeanor and would today be long-settled and forgotten. But O’Hara felt that he had no choice but to stand his ground. He couldn’t stomach the example he’d otherwise be setting. What might DA Hynes and the corrupt elected officials he served do next?

O’Hara’s legacy, of one legal defeat after another, carries its own legal precedent, of course – one that goes well beyond Brooklyn. Clearly, voters can now be prosecuted anywhere in New York State, if they can’t prove something as chimerical as a “principal and permanent residence.” By refusing to hear O’Hara’s case, the Supreme Court brought national implications to his plight. What happened in New York conceivably could happen elsewhere.

Bennett Gershman, a Pace University law professor, recognized as much two years ago as O’Hara awaited word of his last-ditch appeal. The lesson for anyone involved in the political system in New York, he said, is, “There but for the grace of God go I.”

The polling place where I vote in Albany is not more than a few blocks from the state capitol where he had hoped to serve. Such aspirations have left him, at just 44, a battered man.

If that doesn’t frighten you, what does?

JIM McGRATH is the chief editorial writer for the Albany Times Union. He can be reached at: jmickgee@aol.com

 

 

 

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