PHILADELPHIA INQUIRER Wednesday, April 27, 1994 Page: A01 Edition: FINAL Section: LOCAL Graphics: PHOTO JUDGE AGAIN DECLARES MARKS THE WINNER IN 2D DISTRICT THE RULING DETAILED A "CIVIL CONSPIRACY" TO STEAL THE ELECTION. THE OPINIONS OF 3 STATISTICAL EXPERTS WERE CITED IN THE DECISION. By Henry Goldman, INQUIRER STAFF WRITER Contributing to this article were Inquirer staff writers Vernon Loeb, Vanessa Williams, Marc Duvoisin, Daniel Rubin and Joseph A. Slobodzian. After reviewing three weeks of testimony and weighing the instructions of an appeals court, U.S. District Judge Clarence C. Newcomer declared yesterday that he got it right the first time: He again ordered Bruce S. Marks sworn into the Pennsylvania Senate. In a 78-page decision, Newcomer reaffirmed a Feb. 18 ruling in which he found that Democrat William G. Stinson, some of his campaign workers and members of the city Board of Elections conspired to steal the Second Senate District election in November through absentee ballot fraud. The judge found no evidence to support the assertions of Democrats, whose lawyers sought to persuade him that some absentee ballot irregularities were a traditional - and therefore acceptable - feature of Philadelphia election campaigns. Newcomer concluded that the fraud-ridden election was unique in the annals of city politics. "There has never been a procedure like that followed in the 1993 special election regarding absentee ballots," he wrote of the Nov. 2 vote in Northeast Philadelphia's Second Senate District. In a decision that relied in part on the opinions of three statistics experts who grappled with the probabilities of vote gathering, Newcomer concluded that at least 1,000 illegal ballots were cast, most of them for Stinson, and that Marks would have won the race had there been no wrongdoing. He ordered Marks seated as the district's state senator by noon tomorrow. City election officials are expected to try to stop that today by asking an appeals court to stay Newcomer's decree. Newcomer's new Second District decision came as the result of an order last month by the Third U.S. Circuit Court of Appeals. The higher court had concurred with Newcomer's decision to remove Stinson, but found the judge went too far in handing the seat to Marks without first finding that Marks would have won the election had it been clean. The appeals court asked Newcomer to consider whether those who cast absentee ballots would have voted at the machines had they not been misled by Stinson workers who told them they could vote absentee for convenience. Yesterday, the judge detailed how the Stinson campaign, aided and abetted by the Board of Elections, conducted a fraudulent absentee ballot campaign. Newcomer concluded that the city commissioners, who administer the election process, participated in a "civil conspiracy" with the Stinson campaign and the Democratic Party to Stinson's benefit and Marks' detriment. Stinson declined to comment yesterday. He has repeatedly denied any wrongdoing in the Second District race, saying he left the absentee ballot campaign to others. City Commissioners Margaret M. Tartaglione and Alexander Z. Talmadge Jr. also declined to comment yesterday. Tartaglione and Talmadge have denied they did anything illegal. "This conspiracy went well beyond a garden variety election dispute," Newcomer wrote. "And it did not simply involve minor technical violations of the Commonwealth's Election Code." As part of the conspiracy, the judge found, the city commissioners had conducted nothing more than "mock hearings," in certifying Stinson the winner in November without giving Marks two days to appeal, as the judge held that the law requires. In short, the judge ruled, the board "intentionally reached decisions that would not reveal their involvement in the ongoing absentee ballot voting conspiracy." The purpose of the conspiracy, the judge ruled, was to deny Latino and African American voters - as well as Marks and the Republican Party - their constitutional rights to a fair election. Newcomer found that the abuses extended into the Democratic Party apparatus. He cited six party committeepeople, including former City Councilwoman Patricia Hughes, Democrat ward leader in the Seventh Ward, who invoked the Fifth Amendment's protection against self-incrimination rather than testify about their role in the absentee ballot campaign. Dozens of voters "testified that they were angered and disillusioned by the Special Election and its aftermath," Newcomer wrote. "Many citizens have expressed a common thread of pent-up feelings reflecting a long-suppressed disgust and outrage at the officials and the system responsible." Of about 40,000 votes cast, Marks had won the machine vote by 564 votes, but Stinson had won about 80 percent of the 1,757 absentee votes, tallying 1,396 to Marks' 371. In February, Newcomer found that Stinson's absentee ballot campaign led to hundreds of improper votes, mostly in the district's Latino and African American neighborhoods. Those improper votes included forgeries and instances in which workers either marked ballots for voters, told them how to vote, or never showed them the ballot that was cast in their names. Scores more voters were told of "a new way to vote," or encouraged to vote absentee for convenience. In that ruling, Newcomer also found that elections officials had violated the law for Stinson's benefit by permitting his campaign workers to take hundreds of the ballots into peoples' homes, distributing them door-to-door and electioneering with them. Citing provisions in the state Election Code that call for the ballots to be "mailed or delivered" by the Board of Elections to the voter, and then returned by the voter the same way, Newcomer issued a preliminary injunction ordering the city commissioners to cease further deliveries of ballots to political workers. In a two-week hearing that ended April 8, attorneys for Stinson and the city commissioners tried to persuade Newcomer that such practices were common and longstanding in Philadelphia. Newcomer rejected these arguments yesterday. "Grave opportunity for misconduct is created" if campaign and party workers are given absentee ballots to deliver to voters, he declared, and he prohibited elections officials from continuing the practice. The evidence at trial, the judge said, revealed that at most the commissioners had received "very limited numbers of absentee ballots" in past elections. Besides, Newcomer wrote, even if the city commissioners had been able to establish that it had been a longstanding practice, "the court will not condone certain activities simply because they may be traced back to the time of William Penn." The judge found that Tartaglione, the city commissioners chairwoman and the Democratic leader of the 62d Ward, had herself helped distribute ballots to the voters. In contrast, Commissioner John Kane, the lone Republican on the three- member board, "offered uncontradicted testimony that no Republican . . . obtained absentee ballot packages from his office," Newcomer said. Tartaglione spent several hours behind closed doors yesterday, reviewing the decision with her deputy, Edward V. Schulgen, and other aides. Speaking on her behalf, Schulgen, a lawyer, said that Newcomer had no basis for concluding that Tartaglione and Commissioner Talmadge, a fellow Democrat, had broken state election laws to help Stinson collect hundreds of improper absentee ballots. "There's not one iota of evidence that establishes a conspiracy," Schulgen said. Schulgen also pointed to one finding of Newcomer's that he said is unsupported by the record: Newcomer's assertion, in yesterday's findings, that 600 absentee ballots were cast by people who were not registered to vote. "There's absolutely no testimony whatsoever that any of those 600 applications were unregistered to vote," he said. The judge drew the inference from Talmadge's secretary, Tanya Brown, who testified in a deposition that she warned Talmadge that several of the absentee ballot applications brought in by Stinson campaign workers had been filled out by individuals not registered to vote. She testified that Talmadge responded by telling her to "keep out of it." Talmadge has denied any wrongdoing. Marks' attorney, Paul R. Rosen, acknowledged that Newcomer had probably drawn an incorrect inference from the testimony. The 600 ballots, Rosen said, were most probably cast by registered voters who were not eligible to vote absentee. Virtually all of these voters, according to the testimony of others in the lawsuit, had been encouraged to cast absentee ballots for convenience. Such ballots are void as a matter of law, according to the Election Code. The discrepancy is important because Newcomer used his understanding of Brown's testimony to satisfy the Third Circuit's concern about voters who were misled into thinking they could cast absentee ballots, and who would have otherwise shown up at the polls. Newcomer ruled that these 600 ballots represented 600 illegal voters, who could not have voted by machine. Elsewhere in his opinion, however, the judge finds evidence of hundreds more illegal votes. He cites the opinions of statistical experts - including one who originally said Marks was not the probable winner - in concluding that most of the absentee ballot voters would not have turned out at the polls. Using the experts' formulas, and a survey conducted by the Marks campaign, Newcomer found that these statisticians helped support the weight of the testimony and the evidence that Marks would have won a clean election. Newcomer concluded that "at least 1,000 ballots were illegally delivered to voters and returned to the Board by the Stinson Campaign, and that these ballots represent improper votes for Stinson." This created the 100 percent probability that Marks would have won, the judge said, citing opinions of all three experts who testified. During a news conference yesterday, Marks, joined by his wife, Irene, his mother, Harriet Marks, Rosen and several campaign aides, said he was ''enormously pleased" by the decision. As the winner in the civil rights lawsuit, Marks is entitled to damages, and Rosen is entitled to attorney fees. During the trial, Newcomer let it be known he was unhappy about more than $1 million in attorney fees and costs that Rosen is seeking. Any damage awards will be paid by the city. In his opinion, Newcomer mused about the impact of the vote fraud, which he said would continue to damage the city despite his best efforts at reform. "It would be a delusion to conclude that the underlying evils which conceived and nurtured the wrongdoing involved have been eliminated," Newcomer wrote. "Only a concerned citizenry can do that. Only then will they have a permanent and justified confidence in the electoral process." Caption: PHOTO (1) 1. Judge Clarence C. Newcomer ordered Marks seated as state senator by noon tomorrow. Copyright 1994 PHILADELPHIA NEWSPAPERS INC. May not be reprinted without permission.