Matter of Ward v Westchester County Bd. of Elections

[*1] Matter of Ward v Westchester County Bd. of Elections 2005 NY Slip Op 51321(U) Decided on August 10, 2005 Supreme Court, Westchester County Dickerson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 10, 2005
Supreme Court, Westchester County

In the Matter of Nancy Tejeda Ward, ROSEMARY PANIO, ANN PERRON and DANIEL SADOFSKY, Petitioners,

against

Westchester County Board of Elections and WILLIAM REYNOLDS, Respondents.



12356/05



Guy T. Parisi, Esq.

Parisi & Patti, LLP

Attorneys For Petitioners

222 Bloomingdale Road

Suite 302

White Plains, NY 10605

Charlene M. Indelicato, Esq.

Eric Rotfeld, Esq.

Attorneys For Respondent WCBE

Michaelian Office Building

148 Martine Avenue

White Plains, NY 10601

Thomas J. Abinanti, Esq.

Attorney for Respondent

William Reynolds

61 Kathwood Road

White Plains, NY 10607

Thomas A. Dickerson, J.

The Petitioners brought an Order to Show Cause seeking an Order "1) Declaring valid, proper, sufficient and legally effective the Republican Party Designating Petition of Nancy Tejada-Ward as a candidate for [ Westchester ] County Legislator from the 9th County Legislative District; 2) Directing the Respondent Board of Elections to place and print the name of Nancy Tejada-Ward as the candidate of the Republican Party from the 9th Legislative District or in the alternative, directing that Respondent Board of Elections conduct an opportunity to ballot Republican Primary in the 9th Legislative District on September 13, 2005 to nominate a Republican candidate in the 9th Legislative District for the November 8, 2005 General Election"[FN1].



[*2]The Parties

The Petitioner Nancy Tejada-Ward resides at 27 Watson Avenue, Ossining, New York and is a candidate for the public office of Westchester County Legislator, 9th Legislative District. The Petitioner Rose Marie Panio is chair of the Westchester Republican County Committee. The Petitioners Ann Perron and Daniel Sadofsky are the chairmen of the Ossining and Cortlandt Republican Town Committees respectively, the two towns in which the 9th Legislative District is contained. The Respondent William Reynolds filed general objections and specifications of objections with the Respondent Westchester County Board of Elections regarding Petitioner Ward's designating petitions.

The Designating Petition

On July 14, 2005, a designating petition was filed with Respondent Board of Elections designating Petitioner Nancy Tejada-Ward as a candidate for election to the Office of County Legislator for the Republican Party in the 9th Legislative District of Westchester County. After the filing of this designating petition, written Objections and Specifications in support of those Objections were filed in the Office of the Respondent Board of Elections by Respondent/Objector William Reynolds.

The Board's Determination

By letter dated July 27, 2005 addressed to Respondent William Reynolds, the Respondent Board of Elections ruled on the Specifications of Objections which were filed against the Ward Republican Designating Petition. The petition as filed contained four hundred thirty ( 430 ) signatures, and the Respondent Board of Elections sustained ninety-four ( 94) objections, leaving a total of three hundred thirty-six ( 336 ) valid signatures. The determination of the Respondent Board of Elections is as follows[FN2]:

Objections sustained

Not enrolled in the Republican Party 15

Unidentifiable by name/address 2

Duplicate signature, same petition 1

Witnessed own signature 1

Alteration not dated or initialed 2

Witness statement alteration not dated or initialed 41

Witness Identification no Town or City 32

Total Objections Sustained 94

Designating Petition Declared Invalid

Since four hundred eighteen ( 418 ) valid signatures are required by the Respondent [*3]Board of Elections for Petitioner Ward to be designated as a candidate for the office of Westchester County Legislature, 9th Legislative District, the petition was ruled invalid. As a consequence, the Respondent Board of Elections stated that Petitioner Ward's name will not appear on the Republican Party primary ballot on September 13, 2005[FN3].

The Trial

On August 5, 2005, this Court held a trial on the instant matter wherein Petitioners stated that they would not challenge the determination of the Respondent Board of Elections regarding Petitioner Ward's Designating Petition. The Petitioners, however, requested an opportunity to ballot pursuant to Election Law § 6-164.

Election Law § 6-164

Election Law §6-164 sets forth the requirements which must be met for Respondent Board of Elections to conduct an opportunity to ballot as follows: " Enrolled members of a party entitled to vote in the nomination of a candidate for public office or the election of a candidate for party position in a primary election of such party, and equal in number to at least the number of signers required to designate a candidate for such office or position may file with the officer or board from whom or which are filed designating petitions for such office or position a petition requesting an opportunity to write in the name of a candidate or candidates, who need not be specified, for such office or position. Upon the receipt of such a petition, such office or position shall be deemed contested and the primary ballots of the party shall afford an opportunity to vote thereon. Requests for an opportunity to write in the names of candidates for two or more offices or positions may be included in the same petition. Such petitions shall be subject to objections and court determination thereof in the same manner as designating petitions so far as the provisions therefor are applicable. All required notices shall be served on the members of the committee named in the petition. A signature to a petition for an opportunity to ballot in primary elections made earlier than sixteen days before the last day to file designating petitions for the primary election shall not be counted."

The Opportunity To Ballot Remedy

"The 'opportunity to ballot' remedy fashioned in Matter of Hunting v. Power, 20 NY2d 680, 282 N.Y.S.2d 548, 229 N.E.2d 227 ( 1967 ) was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office. It was not intended to be a generally available substitute for the petition process set forth in Article 6 of the Election [*4]Law. That legislatively prescribed process ensures that there is a sufficient level of support among party members eligible to vote for the office to justify placing a particular candidate's name on the primary ballot or, in the case of a petition under Election Law §6-164, that there is sufficient voter interest to justify holding a primary election by write-in ballot" [ See e.g., Harden v. Board of Elections in the City of New York, 74 NY2d 796, 797, 545 N.Y.S.2d 686 ( 1989 ); see also Matter of Quaglia v. Lefever, 143 AD2d 238, 532 N.Y.S.2d 29 ( 2d Dept. 1988 )( " a candidate may be granted the opportunity to ballot by write-in where the political party involved has manifested the 'intention***to nominate some candidate' for the office to which the candidate seeks to be designated***citations omitted*** by submitting a facially valid designating petition, which has otherwise failed to be sustained and which would leave the political party without a designated candidate for that office. " )].

Technical Defects

The court in Harden, supra, at 74 NY2d 797, held that courts should invoke the Hunting remedy only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters [ See e.g., Matter of Plunkett v. Mahoney, 76 NY2d 848, 560 N.Y.S.2d 276 ( 1990 ); Matter of Longo v. Loeffler, 242 AD2d 348, 661 N.Y.S.2d 53 ( 2d Dept. 1997 )].

Examples of technical defects in designating petitions include a situation where the petition's cover sheet states that the petition contained 789 signatures when, in fact, the petition contained 790 signatures [ See e.g., Matter of Barrett v. Scaringe, 112 AD2d 1095, 493 N.Y.S.2d 238 ( 3d Dept. 1985 ); see also Matter of Quintyne v. Canary, 104 AD2d 473, 478 N.Y.S.2d 979 ( 2d Dept. 1984 )( " A 'technical irregularity' such as the mathematical error in the instant case resulting in a cover sheet misstating the number of signatures by one does not justify invalidating the designating petition...")]. In addition, "the failure of two subscribing witnesses to identify themselves as either a notary public or a commissioner of deeds constituted a mere technical defect, as they stated their identification numbers and the expiration date of their offices as notaries public***citations omitted***." ( Matter of Hudson v. Board of Elections of the City of New York, 207 AD2d 508, 509, 616 N.Y.S.2d 62 ( 2d Dept. 1994 ).

Denial Of An Opportunity to Ballot

An opportunity to ballot has been denied where designating petitions have been rejected for substantive rather than technical defects. For example, in Matter of Van Stockum v. Castine, 218 AD2d 915, 630 N.Y.S.2d 811 ( 3d Dept. 1995 ), the court found that the failure to timely file a certificate of authorization required by the Election Law was not a mere technicality, but was rather a fatal defect to the designating petition. A petition for opportunity to ballot has also been denied where the designating petition was invalidated on allegations of irregularities due to fraud ( See e.g., Matter of DellaBadia v. D'Apice, 133 AD2d 190, 518 N.Y.S.2d 696 ( 2d Dept.

1987 ), or where more than half of the signatures on the petition were of persons who resided out of the district or were not enrolled in the Democratic Party ( See e.g., Matter of Weingarten v. D'Apice, 153 AD2d 726, 544 N.Y.S.2d 884 ( 2d Dept. 1989 ). [*5]

In Harden, supra, at 74 NY2d 798, the court stated that " This case - where a majority of the signatures on the designating petitions of each candidate were invalid because they were obtained from persons who were ineligible to sign the petitions, either because they lived outside the district, were not registered voters or were not members of the Democratic Party - does not qualify for the exceptional equitable remedy of a write-in primary. "

In addition, the Second Department has made it clear that where the designating petition is facially invalid because of the failure to obtain the statutorily required minimum number of signatures, the candidate is not entitled to ballot by write-in..." ( Quaglia, supra at 143 AD2d 238; Matter of Gray v. Hochberg, 175 AD2d 892, 573 N.Y.S.2d 742 ( 2d Dept. 1991 ).

THE DECISION

Upon a review of the objections which were ruled upon by the Respondent Board of Elections, this court finds that all of them were substantive and not technical in nature. These substantive defects

" call into serious question the existence of adequate support among eligible voters " ( Harden, supra, at 74 NY2d 797 ). Hence, Petitioner Ward is not entitled to an opportunity to ballot. In addition, the Petitioner Ward is not entitled to an opportunity to ballot since the designating petition is facially invalid due to the failure to obtain the statutorily required number of signatures[FN4]

( Quaglia, supra, at 143 AD2d 238 ).

The Conservative Party Candidate [*6]

It should be noted that Petitioner Ward's name will appear on the November ballot on another party line in that " Nancy Tejada-Ward is the Conservative candidate for the office of County Legislator, 9th Legislative District, for the general election in November 8, 2005. "[FN5]

Accordingly, for all the aforesaid reasons, Petitioners' request is denied in its entirety.

Dated: White Plains, NY

August 10, 2005___________________

HON. THOMAS A. DICKERSON

JUSTICE SUPREME COURT



Footnotes

Footnote 1: Petitioners' Order To Show Cause dated July 28, 2005 at pp. 1-2.

Footnote 2: Respondent Board of Elections' Verified Answer at Ex. A.

Footnote 3: Respondent Board of Elections' Verified Answer at Ex. A.

Footnote 4: It is interesting to note that Petitioners concede that 15 of the objections that were sustained by the Respondent Board of Elections were substantive ( " 79 of the 94 objections sustained by the Board of Elections were technical..." ) [ Petitioners' Memorandum dated August 8, 2005 ]. When those 15 substantive objections are subtracted from the 430 signatures submitted to the Respondent Board of Elections, only 415 valid signatures remain. It appears, then, that Petitioners have conceded that they do not have the 418 signatures required to validate the designating petition.

Footnote 5: See letter dated August 5, 2005 from Respondent Board of Election Commissioners Carolee C. Sunderland and Reginald A. LaFayette to the Court.