Tom Noonan

In Eric Mitchell’s column in The Blood-Horse, he calls for a new election for President of the New York Thoroughbred Horsemen’s Association.  Mitchell, apparently, accepts the arguments of challenger Terry Finley without looking at the contradictory evidence provided by NYTHA officials.  Further, he attacks the integrity and transparency of NYTHA.

As for the purported lack of transparency, NYTHA has posted the submissions from all the principals on its web site.  So anyone, including Mitchell, can go to those submissions  –  made under oath  –  and evaluate the competing claims.  I’ve done that, and what follows is based on the submitted evidence, and not on what I have been told by any of the principals.

Mitchell bases his conclusion that a new election is needed on three assertions:

• 30% of eligible voters did not receive a ballot;
• Receipts required for NYTHA to issue a replacement ballot were not available at the law office where the votes were counted;
• There was a separate voting list maintained by NYTHA that was not provided to the law firm.

Needless to say, making ballots available to eligible voters is an essential component of any fair election.  NYTHA’s ability to identify those voters is the heart of the dispute here.  NYTHA eligibility has two components:  being a licensed owner or trainer in New York, and starting a horse at a track of the New York Racing Association in 2013 or 2014.  While the identity of licensees is available on-line at the web site of the New York Gaming Commission, the Commission had refused to provide addresses to NYTHA, citing privacy concerns.  Finley’s attorney was initially denied access to the addresses, but eventually obtained them following the intervention of New York’s Committee on Open Government.

The next piece of the puzzle is to then identify those owners or trainers who raced at a NYRA track.  The affidavit of Jim Gallagher, NYTHA’s Executive Director, describes the steps taken by NYTHA staff to identify those owners and trainers by going through each day’s racing program and searching available data bases.  That, however, would not identify those individuals who own a horse through a partnership, such as Finley’s own West Point Thoroughbreds.  For that, NYTHA contacted the managers of 55 such partnerships to provide contact information for its members.

So, identifying the pool of eligible voters is not as simple as coming up with a voting list in Saratoga Springs  –  although NYTHA eligible members can simply register on NYTHA’s web site and provide contact information.

Finley retained an expert witness to  estimate how many eligible voters there were in NYTHA.  (Mitchell’s article did not identify the witness as being paid by Finley.)  Now, “expert” is not synonymous with “infallible.”  Such a witness is generally proffering an opinion, and is often subject to challenge by the opposing party.  In this instance, a key “fact” leading to her conclusion that 30% of voters did not receive a ballot had been disclaimed by the source for her information before she completed her affidavit.  Much was made of NYTHA Board member Steve Zorn’s statement that NYTHA had between five and six thousand members.  In an earlier stage of this litigation, Zorn submitted a sworn statement essentially saying he had no factual basis for making such a comment.

The expert’s affidavit (Exhibit D to Finley’s Supplement 1) actually lends support to the difficulty NYTHA confronted in coming up with a comprehensive list of voters when she stated, “between 2,488 and 6,028 owners were presumptively eligible to vote.”  That is a level of precision that clearly means that the Finley camp’s assertion that 30 per cent of voters were not mailed ballots is nothing more than a wild guess.

The second major point made by Mitchell pertains to a requirement of NYTHA’s by-laws that a replacement ballot can only be issued if the voter submitted a signed receipt indicating the original was not received.  In Finley’s initial submission he argued that NYTHA issued replacement ballots “without obtaining a single receipt.”  That assertion was later watered down to the receipts not being at the office of the outside law firm that oversaw the election.  Why that is a matter of any significance is beyond me, but Mitchell does not state that copies of more than four dozen such receipts are part of the evidence submitted by Jim Gallagher.

Finally, Mitchell appears to be arguing that there was a secret “master list” of eligible voters maintained by the NYTHA office that was not provided to the outside law firm.  NYTHA had retained the independent law firm to run the election after NYTHA’s Counsel, Alan Foreman, spoke with Finley in August and was convinced that he would “challenge every aspect of the election.”

Ballots were mailed to the firm which retained possession of them through the counting of the ballots at their office.  An attorney with the firm submitted an affidavit (Halder Affidavit) describing efforts to verify that the ballots were eligible voters by matching the returned ballots against voting lists provided by the NYTHA office, and annotating the voting list with the date the ballot was received.  The list of voters who returned ballots is part of the evidence.  It can be examined on the NYHTA web site as part of the Halder Affidavit.  There was no “master list” kept by NYTHA and not provided to the law firm.

This latter assertion is a particularly puzzling one.  The identities of those who voted are in evidence.  It is a relatively simple matter to go through the Halder exhibits, count the ballots received by the law firm, and measure that against the final vote tally.  If there was a separate list not provided the law firm, it would be obvious.  Interestingly, Finley does not claim that there is a discrepancy in the vote tallies, instead relying on the secret “master list.”

It is disturbing when a regular columnist for a leading industry publication impugns the integrity of one of the sport’s major organizations without bothering to do even basic research into the validity of his claims.  The evidence presented by both sides in this bitter dispute is there for all to see.  Yes, it requires a lot of work to go through hundreds of pages of documents, but that should be a prerequisite before calling into question the integrity of others.