Matter of Myrtle v Essex County Bd. of Elections

[*1] Matter of Myrtle v Essex County Bd. of Elections 2011 NY Slip Op 52153(U) Decided on December 2, 2011 Supreme Court, Essex County Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2011
Supreme Court, Essex County

In the Matter of Hugh Myrtle, Petitioner,

against

Essex County Board of Elections, DERINDA SHERMAN and ROBERT PELL- deCHAME, Constituting the Board of Elections of Essex County, and RONALD MOORE, Respondents.



0712-11



Rehfuss, Liguori & Associates, PC, (Stephen J. Rehfuss, Esq., of counsel) Latham, New York, for petitioner.

Daniel T. Manning, Esq. Essex County Attorney, Elizabethtown, New York, for Respondents Essex County Board of Elections, Derinda Sherman and Robert Pell-deChame.

Viscardi, Howe & Rudgers LLP, (Dominick J. Viscardi, Esq. and Brian H. Breedlove, Esq., of counsel), Ticonderoga, New York for respondent Ronald Moore.

Richard B. Meyer, J.

Special proceeding pursuant to Election Law article 16 challenging the validity of five (5) absentee ballots tallied in the November 2011 general election.

Petitioner Hugh Myrtle (Myrtle) is a candidate for the office of town supervisor of the town of North Hudson, Essex County, New York on the Democratic and Citizen Honesty parties' lines. His opponent, respondent Ronald Moore (Moore), is the Republican and Square Deal parties' candidate. The respondents Derinda Sherman (Sherman) and Robert Pell-deChame (Pell-deChame) are, respectively, the Republican and Democratic commissioners of election and together comprise the Essex County Board of Elections (BOE).

I. Procedural History

This proceeding was commenced by the filing of a petition[FN1] with the County Clerk on November 18, 2011. An order to show cause was issued by this Court the same date, returnable November 21, 2011. On the return date, Moore filed an affidavit in opposition to the petition, while the BOE, Sherman and Pell-deChame filed a verified answer. The Court directed that the ballots be preserved (Election Law §16-112), and the parties agreed to immediately proceed to the BOE office to inspect the ballots. Shortly thereafter, the parties and counsel reappeared before the Court, at which time Myrtle's counsel informed the Court that there was a new issue in the case involving whether the ballots just inspected[FN2] were the same absentee ballots which were opened and accepted by the BOE on November 16, 2011. Myrtle was granted the right to serve an amended petition and a hearing thereon was set for November 29, 2011. Myrtle then served an amended verified petition dated November 23, 2011, with exhibits A through D, with exhibit A consisting of an affidavit of Myrtle sworn to November 23, 2011. The respondents BOE, Sherman and Pell-deChame served an answer dated November 28, 2011 to the amended verified petition. Moore served a verified response bearing that same date, with exhibits A through D consisting of affidavits of four of the absentee voters indicating that they had cast their votes for Moore in the town supervisor race. The hearing commenced on November 29, 2011 and concluded on November 30, 2011.

At the close of Myrtle's direct case, the respondents moved for judgment dismissing the amended petition, which was opposed by Myrtle. The Court partially granted the motion by dismissing Myrtle's claims challenging the use of tape to close and secure two of the envelopes containing absentee ballots[FN3] and any challenge to the competency of the voter residing in the [*2]nursing home at the time that absentee ballot was completed and cast[FN4], and decision was reserved on all other aspects of the motion.

The Court has considered the evidence adduced at the hearing, including the exhibits received in evidence, and evaluated the credibility of the witnesses based upon their demeanor, the manner in which they testified, and the consistency, accuracy and probability or improbability of their testimony in light of all other evidence.

II. Findings of Fact

On November 3, 2011 two BOE clerk-technicians, appointed by Pell-deChame and Sherman as the "bi-partisan" board of inspectors to deliver and oversee the casting of the absentee ballots for nursing home residents eligible to vote in that manner (Election Law §8-407), went to the Heritage Commons nursing home in Ticonderoga, New York. There were ten to twelve residents of that facility eligible to cast absentee ballots in the November 8, 2011 general election, one of which was eligible to vote in the town of North Hudson. A social worker at the nursing home communicated with this voter as to each contest on the ballot and informed the voter of the names of the candidates in each race. The worker assisted this voter in marking the ballot, casting a vote for the name of each candidate the voter stated was his/her choice. Upon completion of the ballot, the worker placed the ballot in the envelope provided by the inspectors, read the "statement of absentee voter" on that envelope to the voter, witnessed the voter's mark being placed on the envelope containing the marked ballot, and sealed the envelope [*3]with tape. All of this was witnessed by the board of inspectors[FN5]. The inspectors took custody of the envelope containing the completed absentee ballot, and upon returning to the BOE offices placed it in a locked file cabinet.

At the close of the polls on election day, November 8, 2011, the machine count had Myrtle leading Moore by 3 votes, 72 to 69. Five absentee ballots were received by the respondent Essex County Board of Elections (BOE), and the canvass of those ballots was scheduled for November 16, 2011. At the time of the canvass of the absentee ballots by the BOE, Myrtle and Moore were both present, as was Sindy Brazee (Brazee), a former Democratic deputy commissioner of the BOE and a Myrtle supporter. Sherman, Pell-deChame, their two deputy commissioners and two clerk-technicians, comprising the entire staff of the BOE office, were present as were media representatives and members of the general public.

Prior to the opening of any envelopes containing the absentee ballots, Brazee, on behalf of Myrtle, submitted written objections to the absentee ballot cast by the nursing home resident[FN6]. Specifically, Brazee asserted that the signature on the ballot envelope did not match the voter's signature on file with the BOE, the envelope was not properly sealed in that tape was used to close and secure the envelope flap, and the applicable provisions of the Election Law were not followed in the completion and casting of that ballot by the voter, including that there were no certified inspectors present. The BOE did not sustain those objections and entered a notation on the subject envelope stating "Objections not sustained attached", and both Pell-deChame and Sherman initialed that notation[FN7]. An objection was also raised as to the use of tape to close and secure the envelope flap containing another absentee ballot[FN8]. Although there was no dispute that this objection was also not sustained, no notations were placed on the envelope so indicating. The minutes of the BOE[FN9] reflect these objections and the determinations of Sherman and Pell-deChame thereon. [*4]

Pell-deChame and Sherman proceeded to open the envelopes containing the five absentee ballots[FN10] and the absentee ballots were removed from each envelope. The envelopes and ballots were shuffled to prevent disclosure of which absentee ballot was in a particular envelope. Sherman and Pell-deChame then tallied the votes on these ballots and, with respect to the town supervisor race, counted all five votes for Moore, thereby moving him ahead of Myrtle in the vote count and making him the presumptive victor in the race by a count of 74 to 72.

The absentee ballots were shown to Myrtle and Brazee, who reviewed each one and openly discussed what they perceived to be inconsistent markings and deficiencies on three of the ballots. According to Brazee and Myrtle, these three ballots contained at least two different types of ink, indicating the use of two or more writing instruments. One ballot contained both blue and black ink from ball point pens, as well as black marker ink such as from a Sharpie marker. The blue ink appeared just outside the oval in box 1A[FN11] of the ballot, but completely inside that box, and the oval was filled in with different ink. The second ballot contained both black ball point pen ink and black Sharpie marker ink. The third ballot was completed using black ball point pen ink and black Sharpie marker ink, and on one of the ovals filled in with marker there was a small line extending from the outside of the filled-in oval to the right and upwards but fully contained within the box for the candidate. It was conceded that the blue ink marking on the one ballot and the black line outside the oval on the third ballot were in columns other than that for town supervisor and that all five absentee ballots reviewed by Myrtle and Brazee on November 16, 2011 clearly contained votes for Moore. Brazee and Myrtle commented on the different inks used and the markings, but did not specifically inform Sherman or Pell-deChame that they objected to those conditions of the three ballots. Myrtle informed those present that he was going to contact a lawyer and asked where the media representatives could be found. He and Brazee then left. The five absentee ballots were accepted by the BOE and the votes counted for Moore, resulting in this proceeding.

On November 21, 2011 all parties reviewed the ballots at the BOE office. Myrtle testified at the hearing that the ballots he inspected at that time were not the same ballots which were taken from the envelopes on November 16, 2011. Brazee, upon inspecting the ballots received into evidence at the hearing[FN12], also asserted that these ballots were not the same as those she examined on November 16, 2011. Review of the ballots reveals that all five appear to have been filled out with black ballpoint ink pens. In the voting square for state supreme court justice candidate John M. Silvestri on the ballot marked as exhibit 2, there is a small area of black ink extending outside the voting oval into the upper right corner of that voting square but not outside of that square. This marking outside the oval is not as dark as the ink inside the oval. On the [*5]same ballot, in the voting square for the Republican candidate for town councilman, there is a short line of ink extending to the right and up from the voting oval but inside the voting square for that candidate.

III. Determination of the Rights of the Parties

Analysis of the issues presented begins with the application of three fundamental principles. First, "[t]he constitution confers upon every citizen meeting the requirements specified therein the right to vote at elections for all offices that are elective by the people, and . . . the constitutional right, and its enactments are to be construed in the broadest spirit of securing to all citizens possessing the necessary qualifications the right freely to cast their ballots for offices to be filled by election, and the right to have those ballots, when cast in compliance with the law, received and fairly counted" (People ex rel. Goring v. Wappinger's Falls, 144 NY 616, 621, 39 NE 641, 642). Second, "[b]road policy considerations weigh in favor of requiring strict compliance with the Election Law . . . [for] a too-liberal construction . . . has the potential for inviting mischief on the part of candidates, or their supporters or aides, or worse still, manipulations of the entire election process" (Matter of Staber v. Fidler, 65 NY2d 529, 534, 493 NYS2d 288, 482 N.E.2d 1204). Third, " [t]he right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible . . . transcends technical errors . . . [since] the object of election laws is to secure the rights of duly qualified electors,' not to frustrate them by posing technical obstructions that bear no relationship to the policies underlying the statutes (People ex rel. Hirsh v. Wood, 148 NY 142, 147, 42 NE 536 [1895])" (Gross v. Albany County Bd. of Elections, 3 NY3d 251, 258, 785 NYS2d 729, 733, 819 NE2d 197, 201; see also Weinberger v. Jackson, 28 AD2d 559, 280 NYS2d 235 affirmed 19 NY2d 995, 281 NYS2d 834, 228 NE2d 816).

A.

Myrtle's remaining challenges to the absentee ballot cast by the nursing home voter must be denied. The ballot and envelope were completed in compliance with the applicable provisions of the Election Law (Election Law §8-406, §8-407, §8-410). Neither the fact that the voter's mark on the ballot envelope did not match her signature on file with the BOE, nor the failure of the board of inspectors to prepare and file a challenge report (Election Law §8-508[3]), assuming one was required by that statute, invalidates the absentee ballot.

That an elderly nursing home resident may not be capable of signing their name after the passage of time from when their signature was placed on file with the BOE is not an unexpected or unusual circumstance. The purpose underlying the requirement "that the signature on the ballot envelope . . . correspond to the signature on the registration poll record" (Election Law §8-506[1]) is to insure that an absentee ballot marked outside of the presence of election officials is in fact completed by the voter entitled to cast that ballot. Here, the voter in question cast the absentee ballot, with the assistance of a third person as allowed by law (Election Law §8-407[10]), in the presence of the board of inspectors who witnessed the marking of the ballot, its [*6]placement inside the ballot envelope, the sealing of the envelope, the reading to the voter of the "statement of absentee voter" printed on that envelope, and the physical act of the voter in placing her mark on the signature line under that statement. As a result, the signature comparison requirement of Election Law §8-506(1) was inapplicable.

Because the filing of a challenge report (Election Law §508) is a ministerial act — "conduct requiring adherence to a governing rule, with a compulsory result" (Lauer v. City of New York, 95 NY2d 95, 99, 711 NYS2d 112, 115, 733 NE2d 184, 187) — any failure on the part of the board of inspectors to perform that duty will not invalidate a vote otherwise cast in compliance with the law. "If the board of inspectors determines that a person was entitled to vote at such election it shall cast and canvass such ballot if such board finds that ministerial error by the board of elections or any of its employees caused such ballot envelope not to be valid on its face" (Election Law §9-209[2][a][ii]). In this case, the lack of a challenge report did not render the ballot invalid on its face or otherwise.

B.

Turning to the challenges based upon the use of different inks on three of the absentee ballots, and the two marks outside the voting ovals but within the voting squares of two of those same ballots, as testified to by Myrtle and Brazee, those conditions as described are insufficient to invalidate the votes for Moore on any of those ballots. Significantly, Myrtle admitted that each one of the five absentee ballots he reviewed on November 16, 2011 clearly and unquestionably cast votes for Moore. So even if some fraud on the part of the BOE occurred as alleged involving the replacement or substitution of the absentee ballots opened and tallied on November 16, 2011, those original ballots represented five votes for Moore unless one or more of them are otherwise invalid for the reasons asserted by Myrtle.

"The law is well settled that inadvertent marks on a ballot do not render the ballot void in whole or in part (see Matter of Franke v. McNab, 73 AD2d 679, 423 NYS2d 494: Matter of Moritt v. Cohen, 255 AD 804, 7 NYS2d 338)" (Mondello v. Nassau County Bd. of Elections, 6 AD3d 18, 24, 772 NYS2d 693, 699). Indeed, "[c]rooked or retraced lines or other voting marks which are irregular in form are not grounds for invalidating a ballot in whole or in part (see Election Law § 9—112[1]; Matter of Fallon, supra)" (id.). Only "extraneous marks on ballots that could serve to distinguish the ballot or identify the voter, as opposed to inadvertent marks, will render a ballot blank as to the relevant office if the mark is confined to the voting square pertaining to that office, or render a ballot invalid as a whole if the mark appears outside of the voting square [citations omitted]" (Brilliant v. Gamache, 25 AD3d 605, 607, 808 NYS2d 728, 730, leave to appeal denied 6 NY3d 783, 812 NYS2d 26, 845 NE2d 457). Thus, it is only where the markings "fall outside or extend well beyond" the ovals and voting square that the entire ballots are rendered void (Alessio v. Carey, 49 AD3d 1147, 1149, 854 NYS2d 830, 832, leave to [*7]appeal denied 10 NY3d 803, 857 NYS2d 31, 886 NE2d 795)[FN13]. The blue ballpoint ink mark on one ballot located within the voting square for a state supreme court justice candidate but outside the voting oval within that square does not invalidate the entire ballot (see Election Law §9-112[1] [FN14]) or the vote for Moore cast by that ballot. An ink blot caused by a faulty pen does not render a ballot void (see Devine v. Haley, 32 Misc 2d 341, 222 NYS2d 179. Similarly, the black mark, described by Brazee as a "tadpole" tail which went to the right and up from the oval but within the voting square, is the type of inadvertent mark which does not invalidate either the vote cast within that voting square or the entire ballot. None of the marks described by Myrtle or Brazee are such as could possibly identify the voter who cast the ballot.

According to regulations adopted by the State Board of Elections establishing "general standards" to be applied "in the counting of all ballots and votes, regardless of the voting system used" and "in determining whether a ballot has been properly voted and whether a vote should be counted for any office or ballot question", "[a] vote for any candidate or ballot measure shall not be rejected solely because the voter failed to follow instructions for marking the ballot" (22 NYCRR §6210.13[1][A][2]). "A mark is considered valid when it is clear that it represents the voter's choice and is the technique consistently used by the voter to indicate his or her selections. Such marks may include, but are not limited to, properly filled in voting position targets, cross mark X', a checkmark [Checkmark]', circles, completed open arrow [Left Pointing Arrow]', or any other clear indication of the voter's choice" (22 NYCRR §6210.13[1][A][3]). Also, "[a]ny ballot which has any other mark or marks in the target area or sensitive area including circling the target area and/or candidate's name or making a mark through the target area, provided that the votes do not exceed the maximum allowable votes per race or question than the number for [*8]which the voter is eligible to vote, shall be counted as a vote for such candidate(s) or ballot question(s)" (22 NYCRR §6210.15[A][7]). "A voter's choice shall be considered an invalid vote, if the . . . [v]oter uses random markings and there is no distinctive and consistent voting pattern to clearly indicate voter choice(s) . . . [or there is] [a] mark that is between or across more than one candidate's name, target areas or sensitive areas" (22 NYCRR §6210.15[B][1]-[2]). Applying these standards to the ballots described by Myrtle and Brazee results in the ballots, and particularly the votes for Moore, being valid.

As to the use of different inks and writing instruments to complete a ballot, the Election Law neither prohibits nor addresses such use. The ink color or type does not have to be uniform throughout and the votes on the ballot are valid as long as the "technique" or marking method — "properly filled in voting position targets, cross mark X', a checkmark [Checkmark]', circles, completed open arrow [Left Pointing Arrow]', or any other clear indication of the voter's choice" (22 NYCRR §6210.13[1][A][3]) — used by the voter is consistent.

Review of all five of the absentee ballots received in evidence discloses no defects in any of them. Each one complies with the requirements of the Election Law and is therefore valid.

C.

For the foregoing reasons, the five absentee ballots cast are valid, and the BOE properly accepted them and tallied the votes for Moore in determining the final results of the election to the office of supervisor of the town of North Hudson, Essex County, New York. Because courts should abide by "the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more" (PDK Laboratories Inc. v. US DEA, 362 F3d 786, 799 [Roberts, J, concurring]; see also People v. Carvajal, 6 NY3d 305, 316, 812 NYS2d 395, 402, 845 NE2d 1225, 1232 ["We are bound, of course, by principles of judicial restraint not to decide questions unnecessary to the disposition of the appeal"], this Court need not reach any other issues raised including whether Myrtle adequately objected to the markings on three of the absentee ballots or whether any or all of the five absentee ballots opened on November 16, 2011 were replaced or substituted[FN15].

This constitutes the judgment of this Court, and IT IS SO ADJUDGED. [*9]

ENTER

_________________________________

Richard B. Meyer, A.J.S.C. Footnotes

Footnote 1:The petition is dated November 18, 2011 and is unverified, but it includes exhibits A through D, with Exhibit A being an affidavit of Myrtle sworn to November 18, 2011 containing allegations of fact similar to those in the petition.

Footnote 2:These ballots, received in evidence at the hearing as Exhibits 1 through 5, are claimed by Myrtle to have been substituted by the BOE, Sherman and Pell-deChame for the original absentee ballots opened on November 16, 2011.

Footnote 3:Once cast, absentee ballots must be "sealed" in the envelope provided for that purpose (Election Law §8-407, §8-410). The Election Law does not define what it means for an envelope to be "sealed". "In cases where the term at issue does not have a controlling statutory definition, courts should construe the term using its usual and commonly understood meaning' (Rosner v. Metropolitan Prop. & Liab. Ins. Co., 96 NY2d 475, 479, 729 NYS2d 658, 754 NE2d 760 [2001])" (Orens v. Novello, 99 NY2d 180, 186, 753 NYS2d 427, 430, 783 NE2d 492, 495). In dismissing Myrtle's claim that the use of tape did not constitute proper sealing of the envelopes, this Court consulted the common definitions of the verb "seal" as contained in Webster's II New College Dictionary, Third Edition [2005], at page 1018. The word "seal" was defined to include "[t]o close with or as if with a seal", and "[t]o close hermetically". The term "hermetic" is defined in the same dictionary to mean "[t]otally sealed, esp. against the escape or entry of air" and "[i]mpervious to outside interference or influence". This Court also referred to Black's Law Dictionary, Eighth Edition [2004] which defined the word "sealed" to mean "[t]o close (an envelope, etc.) tightly; to prevent access to (a document, record, etc.)". After observing that no statutory or case authority could be found prohibiting the use of tape to close an envelope containing an absentee ballot, the Clerk dismissed that claim.

Footnote 4:The Court dismissed the challenge to the nursing home voter's competence because there had been no adjudication of incompetence by order of a court or other competent judicial authority (Election Law §5-106[6]), there was no evidence that the voter did not qualify to vote under Election Law §5-102(1), and the voter in question was a necessary party (see Election Law §16-108[2]; Messina v. Albany County Board of Elections, 66 AD3d 1111, 887 NYS2d 688, leave to appeal denied 13 NY3d 710, 890 NYS2d 448, 918 NE2d 963). Moreover, [i]n a proceeding pursuant to Election Law §16—106 for judicial review of the canvass of votes in a general election, the Supreme Court lacks the authority to render a determination as to whether a voter was lawfully registered and eligible to vote' (Matter of Corrigan v. Board of Elections of Suffolk County, 38 AD2d 825, 827, 329 NYS2d 857, affd. 30 NY2d 603, 331 NYS2d 35, 282 NE2d 122; see Matter of Delgado v. Sunderland, 97 NY2d 420, 423, 741 NYS2d 171, 767 NE2d 662)" (Mondello v. Nassau County Bd. of Elections, 6 AD3d 18, 20-21, 772 NYS2d 693, 696).

Footnote 5:No challenge report was prepared by the board of inspectors (Election Law §8-508[3]). The issue of whether such a report was required to be prepared pursuant to that statute need not be reached.

Footnote 6:Petitioners Exhibit 14.

Footnote 7:Petitioners Exhibit 10. Election Law §8-506 provides that "[u]nless the board by majority vote shall sustain the challenge, an inspector shall endorse upon the envelope the nature of the challenge and the words not sustained', shall sign such endorsement, and shall proceed to cast the ballot as provided herein". The failure of Sherman and Pell-deChame to sign, rather than merely initial, the endorsement to Exhibit 10 is not fatal.

Footnote 8:Petitioners Exhibit 6. The failure of Sherman and Pell-deChame to place any endorsement on this envelope is also not fatal.

Footnote 9:Respondent County Exhibit A.

Footnote 10:Petitioners Exhibits 6-10.

Footnote 11:This box was on the Democratic line for that party's candidate for state supreme court justice, John M. Silvestri.

Footnote 12:Exhibits 1 through 5.

Footnote 13:Even where the voting squares were filled in for two candidates for the same office, only the vote for that particular office was invalid, not the entire ballot (see Carney v. Davignon, 289 AD2d 1096, 735 NYS2d 263

Footnote 14:"§ 9-112. Canvass ballots; validity of ballot

1. The whole ballot is void if the voter (a) does any act extrinsic to the ballot such as enclosing any paper or other article in the folded ballot or (b) defaces or tears the ballot except that a ballot card which is in perforated sections shall not be void because it has been separated into sections or (c) makes any erasure thereon or (d) makes any mark thereon other than a cross X mark or a check V mark in a voting square, or filling in the voting square, or punching a hole in the voting square of a ballot intended to be counted by machine or (e) writes, other than in the space provided, a name for the purpose of voting; except that an erasure or a mark other than a valid mark made in a voting square shall not make the ballot void, but shall render it blank as to the office, party position or ballot proposal in connection with which it is made. No ballot shall be declared void or partially blank because a mark thereon is irregular in form. The term voting square' shall include the voting space provided for a voter to mark his vote for a candidate or ballot proposal."

Footnote 15:There is no allegation here that Moore or any of the five voters who cast absentee ballots engaged in fraud in the casting of those ballots. Myrtle's claim of fraud is directed only against the BOE, Sherman and Pell-deChame. In the case of designating petitions which, after being duly filed, were lost by the board of elections, it was held that where there was no allegation of fraud on the part of the candidate "it would be manifestly unfair to deprive respondent of a place on the ballot solely because the Board of Elections lost her original petition" (Meier v. Mahoney, 113 AD2d 1020, 1021, 494 NYS2d 573, 574, leave to appeal denied 65 NY2d 607, 494 NYS2d 1030, 484 NE2d 138).