Matter of Schiener v Sessler

[*1] Matter of Schiener v Sessler 2012 NY Slip Op 51922(U) Decided on September 28, 2012 Supreme Court, Livingston County Ark, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 28, 2012
Supreme Court, Livingston County

In the Matter of the Application of Eric Schiener, Candidate, Petitioner, V.

against

Steven D. Sessler, Candidate, NANCY LEVEN and LAUREN SCHOONOVER, Election Commissioners, and LIVINGSTON COUNTY BOARD OF ELECTIONS, Respondents. In the Matter of the Application of STEVEN D. SESSLER, Petitioner, V. THE LIVINGSTON COUNTY BOARD OF ELECTIONS, LAURA SCHOONOVER and NANCY LEVEN, as Election Commissioners, and ERIC R. SCHIENER, et al Respondents.



In the Matter of the Application of STEVEN D. SESSLER, 907-2012 Petitioner, V.

against

THE LIVINGSTON COUNTY BOARD OF ELECTIONS, LAURA SCHOONOVER and NANCY LEVEN, as Election Commissioners, and ERIC R. SCHIENER, et al Respondents.



906-2012



Counsel: Hiscock and Barclay, LLP, Robert M. Shaddock, of counsel, for Petitioner Eric R. Schiener; Steven D. Sessler, pro se; Livingston County Attorney David J. Morris; Mary Conway Calabrese, Esq. for respondents Bill Nojay, Richard E. Burke and Lowell G. Conrad.

John J. Ark, J.

Decision and Order

Hon. John J. Ark, J.S.C.

These two related proceedings were commenced pursuant to article 16 of the Election Law following the September 13, 2012 primary election for the Republican party nomination for Livingston County District Attorney.

The unofficial result of the September 19, 2012 canvas was that Schiener received 1880 votes and Sessler received 1879 votes. After oral argument on September 26, 2012, five absentee ballots were in dispute.

1. The special ballot submitted by poll inspector R.O. pursuant to his day late application for a special ballot.

Inquiring about a special ballot for poll inspectors, R.O. called the Livingston County Board of Elections at 4:20 p.m. on September 12, 2012. He was told that the board had closed at 4:00 p.m. and that he could apply for and receive a special ballot the next day, which he did at 8:12 a.m. The challenge is whether his ballot should remain unopened since his special ballot application was untimely.

Similar to applications for absentee ballots, applications for special ballots for board of election employees ( Election Law § 11-302) "must be mailed to the board of elections not later than the seventh day before the election for which a ballot is first requested or delivered to such [*2]board not later than the day before such election" (§ 8—400[2][c] ). By implication, when a local board of elections receives an application for an absentee ballot or a special ballot, the board determines "upon such inquiry as it deems proper whether the applicant is qualified to vote and to receive an absentee ballot" (§ 8—402[1], [2] ). If the board is satisfied by its inquiry, the absentee ballot is then forwarded to the voter. In Matter of Gross v. Albany County Bd. of Elections, 3 NY3d 251 (2004), the Court of Appeals emphasized the need for compliance with the framework specified in the absentee ballot provisions. In that case, the Board of Elections, rather than following the particularized requirements of the Election Law, forwarded an absentee ballot for an April 2004 special general election to any voter who had requested one in the November 2003 general election without requiring an absentee ballot application from each voter.

The concerns that motivated the Court of Appeals in Gross are not present here. The Livingston County Board of Elections, unlike the board in Gross, did have a basis upon which to determine that R.O. was entitled to cast a special ballot. In this case, the election commissioner knew that R.O. was qualified to receive a special ballot and should have known that an application for a special ballot was time-sensitive. Most certainly if a citizen is going to avail him or herself to serve as an election inspector, he or she should be extended the opportunity to receive a timely application to receive a ballot and vote. The election commissioner could have allowed R.O. to immediately come to the board of elections and deliver his application for a special ballot.

Regardless, R.O. set in motion the delivery of the application the day [FN1] before the election but was inhibited by the 4:00 p.m. summer closing hour [FN2] of the office and the advice of the election commissioner to come in the next day. As stated by the Court of Appeals in Stewart v.

Chautauqua County Bd. of Elections, 14 NY3d 139 at 151(2010): "However, unlike the mistakes committed by the Board of Elections in Gross, the slight deviation from the prescribed procedure utilized by the Board "can be viewed as substantial compliance with statutory directives" (Gross, 3 NY3d at 259). The defect in the procedure was not a "substantive deficiency implicating voter qualification ( id. at 259 n.3)."Accordingly, by timely calling the board of elections and being told that he could come in the following day, R.O. substantially complied with the statutory directive. His ballot is to be counted.

2. Two disputed ballots with claimed stray marks.

The Avon District 7 absentee ballot (exhibit 5) contains a single cross mark in the circle for Steven D. Sessler and a white out in the circle for Eric R. Schiener. The Mt. Morris District 5 absentee ballot (exhibit 6) contains a filled in circle for Steven D. Sessler and a check mark under his name.

"A vote for any candidate or ballot measure shall not be rejected solely because the voter failed to follow instructions for marking the ballot ...

"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 [*3]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. (i) A mark crossed out by the voter, an erasure, or words such as no next to a candidate's name or a voting position target area...shall not be considered to be a valid vote but will, instead, be deemed an indication that the voter did not choose to cast a

vote for that candidate...and the vote for that candidate...shall be considered void." (9 NYCRR 6210.13[A][2], [3] ).

Here, the ballot markings clearly indicate the voters' selections for candidate Steven D. Sessler and, therefore, are to be counted.

Exhibit 8, which has a cross mark under Eric R. Schiener's name, but no mark in the appropriate box, is not to be counted.

3. Two unsealed envelopes containing ballots.

Per Election Law § 9-209(2)(a)(i)(A) these envelopes were clearly not and never were sealed and are to be "laid aside unopened".

In sum, this court holds that R.O.'s affidavit ballot (exhibit 1) is to be opened and counted, the two ballots with stray marks (exhibits 5 and 6) are to be counted, and the two unsealed absentee ballot envelopes (exhibits 3 and 4) are to remain laid aside unopened.

If, upon final tabulation of the ballots, a tie occurs, the nominee shall be determined pursuant to Election Law §6-148(3).[FN3]

So ordered this 28th day of September, 2012 at Rochester, New York.

_________________________

John J. Ark, J.S.C. Footnotes

Footnote 1:New York General Construction Law §19: A calender day includes the time from midnight to midnight. Nor was there any requirement that the application be filed during normal business hours.

Footnote 2:As of September 12, 2012, Livingston County government was still on summer office hours which close at 4:00 p.m.

Footnote 3:A tie did occur and Eric Schiener was nominated by the Livingston County Republication Committee on October 4, 2012.