CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/15/2023 1

Incorrect Election Results 

Because of a Malfunctioning Voting Machine 

Shannon v. Jacobowitz 

(David N. Hurd, N.D.N.Y. 5:03-cv-1413) 

After votes were counted in a November 2003 election for a town 

supervisor, a challenger was ahead of an incumbent by twenty-five 

votes. There was evidence, however, that a voting machine registered only one vote for the incumbent because it failed to advance 

its tally with each additional vote. Supporters of the incumbent filed 

a federal complaint alleging that a comparison of the malfunctioning machine to another machine at the same location implied that 

the incumbent was deprived of approximately 134 votes. The district judge enjoined certification of the election and enjoined the 

challenger from taking office. In January 2005, the court of appeals 

determined that the district court’s interference with the election 

was error. The incumbent remained in office through 2007. 

Subject: Voting irregularities. Topics: Voting technology; 

enjoining certification. 

On November 21, 2003, Matthew Shannon, the incumbent town supervisor 

in Whitestown, New York, filed a federal constitutional action contesting the 

election of a challenger for his office, David Jacobowitz, in the November 4 

election.1 Apparently, a single voting machine malfunctioned and registered 

only one vote for the incumbent on the Democratic Party line, because the 

counter failed to advance with each vote on that line.2 (The incumbent was 

listed on the Democratic, Independence, and Conservative party lines; the 

challenger was listed on the Republican and Working Families party lines.3

) 

After the votes were counted, the challenger was ahead of the incumbent by 

twenty-five votes.4 Comparing the malfunctioning machine to another machine at the same location, the plaintiffs estimated that the incumbent was 

deprived of approximately 134 votes.5 The plaintiffs included five voters who 

said they voted for the incumbent on the Democratic line at the malfunctioning machine.6

On the complaint’s filing, a general order set a status conference before a 

magistrate judge for March 2004.7 On December 4, 2003, the plaintiffs submitted a brief, a proposed order to show cause, and affidavits of seventy vot1. Complaint, Shannon v. Jacobowitz, No. 5:03-cv-1413 (N.D.N.Y. Nov. 21, 2003), D.E. 

1; Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005); Shannon v. Jacobowitz, 301 F. Supp. 

2d 249, 251 (N.D.N.Y. 2003). 

2. Shannon, 394 F.3d at 91–92; Shannon, 301 F. Supp. 2d at 252–53. 

3. Shannon, 394 F.3d at 91; Shannon, 301 F. Supp. 2d at 252; see Complaint, supra note 1, 

at 4. 

4. Shannon, 394 F.3d at 91; Shannon, 301 F. Supp. 2d at 252. 

5. Complaint, supra note 1, at 5. 

6. Id. at 3; Shannon, 301 F. Supp. 2d at 251. 

7. Docket Sheet, Shannon v. Jacobowitz, No. 5:03-cv-1413 (N.D.N.Y. Nov. 21, 2003). 
Incorrect Election Results Because of a Malfunctioning Voting Machine 

2 Federal Judicial Center 9/15/2023 

ers who said that they voted for the incumbent on the Democratic line at the 

malfunctioning machine.8

 That day, Judge David N. Hurd issued an order to 

show cause why the incumbent should not be declared the winner of the 

election.9

 At a hearing on December 18,10 Judge Hurd issued a temporary restraining order enjoining the county board of elections from certifying a 

winner of the election and enjoining the challenger from taking the office.11

On December 30, Judge Hurd converted the temporary restraining order 

into a preliminary injunction.12 He determined that federal relief was appropriate because the only possible state remedy was a quo warranto action,13

which could be so slow as to take the entire term of office and which would 

be discretionary with the attorney general.14 On January 27, 2004, Judge 

Hurd granted the plaintiffs a summary judgment.15

On January 7, 2005, the court of appeals reversed the judgment, holding 

that Judge Hurd was wrong to consider the adequacy of the quo warranto 

remedy without a showing of intentional state action against the plaintiffs.16

Judge Hurd, therefore, dismissed the action on February 2.17

The incumbent, nevertheless, held his office through 2007.18

8. Id.; Shannon, 394 F.3d at 92; Shannon, 301 F. Supp. 2d at 253; Order to Show Cause, 

Shannon, No. 5:03-cv-1413 (N.D.N.Y. Nov. 21, 2003), D.E. 8. 

9. Order to Show Cause, supra note 8. 

10. Minutes, Shannon, No. 5:03-cv-1413 (N.D.N.Y. Dec. 18, 2003), D.E. 23; Shannon, 301 

F. Supp. 2d at 251. 

11. Temporary Restraining Order, Shannon, No. 5:03-cv-1413 (N.D.N.Y. Dec. 18, 2003), 

D.E. 22; Shannon, 301 F. Supp. 2d at 251. 

12. Shannon, 301 F. Supp. 2d at 258. 

13. “A common-law writ used to inquire into the authority by which a public office is 

held or a franchise is claimed . . . .” Black’s Law Dictionary 1371 (9th ed. 2009). 

14. Shannon, 301 F. Supp. 2d at 254–58. 

15. Opinion, Shannon, No. 5:03-cv-1413 (N.D.N.Y. Dec. 18, 2003), D.E. 48, 2004 WL 

180253. 

16. Shannon v. Jacobowitz, 394 F.3d 90, 97 (2d Cir. 2005). 

“We have no occasion to consider, and therefore express no opinion on, whether the 

New York Attorney General’s refusal to bring a quo warranto action on facts such as these 

might constitute intentional state action of the sort necessary to create a potential due process violation.” Id. at 93 n.2. 

17. Judgment, Shannon, No. 5:03-cv-1413 (N.D.N.Y. Feb. 2, 2005), D.E. 66. 

18. Compare Whitestown Town Board Minutes, Jan. 1, 2008, town.whitestown.ny.us/ 

content/MinuteCategories/View/1/2008:field=minutes;/content/Minutes/View/138 (identifying Charles Gibbs as supervisor), with Whitestown Town Board Minutes, Dec. 19, 2007, 

town.whitestown.ny.us/content/MinuteCategories/View/1/2007:field=minutes;/content/Minutes/ 

View/156 (identifying Matthew Shannon as supervisor).