Matter of Stewart v Rockland County Bd. of Elections

[*1] Matter of Stewart v Rockland County Bd. of Elections 2013 NY Slip Op 52078(U) Decided on December 9, 2013 Supreme Court, Rockland County Alfieri Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 9, 2013
Supreme Court, Rockland County

In the Matter of the Application of Andrew Y. Stewart, Petitioner,

against

The Rockland County Board of Elections, and WALTER J. WETTJE, JR., Respondents.



2259-2013



Alan Goldston, Esq.

Guy Parisi, Esq.

Tom Simeti, Esq.

Victor J. Alfieri Jr., J.

For an Order, pursuant [to] Article 16 of the Election Law, directing the preservation of ballots cast in the General Election held on November 5, 2013 for the Public Office of Town Supervisor of the Town of Orangetown, County of Rockland, requesting the court to rule on the validity of the casting or canvassing, or refusal to cast or canvass, of ballots as set forth in Election Law Section 16-106(1); preserving Petitioner's rights under Article 9 of the Election Law and Section 16-113 thereof, and related sections of law; and pursuant to Section 16-102 of the Election Law, declaring Petitioner the lawfully elected candidate in this election. -

XTo commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.

DECISION, ORDER & JUDGMENT

Index No: 2259-2013

HON. VICTOR J. ALFIERI, JR., A.J.S.C. [*2]

Petitioner, Andrew Y. Stewart (hereinafter "Stewart"), the Democratic candidate for Supervisor of the Town of Orangetown, by Order to Show Cause and Petition, commenced this proceeding pursuant to Election Law Article 16 to, inter alia, preserve for judicial review certain ballots cast in the November 5, 2013 general election. Specifically, Stewart seeks a determination from this Court as to the validity of eleven absentee ballots which have not been cast and canvassed due to a split decision by the Commissioners based on various objections and a determination as to another 41 absentee ballots which have been cast and canvassed based on an objection to the absentee ballot application form.[FN1] Respondent, Walter J. Wettje, Jr. (hereinafter "Wettje"), the Republican candidate for Supervisor, and Respondent, Rockland County Board of Elections (hereinafter "the Board") filed answers to the Petition.[FN2]

On the return date of the Order to Show Cause, i.e., November 26, 2013, and on several days thereafter, the Court held a hearing. Both parties called various witnesses to the stand and moved numerous exhibits into evidence. Following the conclusion of the hearing, the parties submitted post-hearing memoranda of law.

In determining matters pertaining to election proceedings, this Court is acutely aware of the fact that, although not absolute, "voting is of the most fundamental significance under our constitutional structure." Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S. Ct. 983 (1979)(Internal citations omitted). Article II, §1 of the New York State Constitution states that "every citizen shall be entitled to vote at every election." It follows, therefore, that "[t]he right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible . . . transcends technical errors." Matter of Carney v. Niagara County Bd. of Elections, 8 AD3d 1085 (4th Dept. 2004).

Furthermore, it is well-settled that in a summary proceeding such as this one, brought pursuant to Election Law Article 16, "the [Supreme Court's] only powers are (1) to determine the validity of protested, blank or void paper ballots and protested or rejected absentee ballots and to direct a recanvass or correction of any error in the canvass of such ballots * * * and (2) to review the canvass and direct a recanvass or correction of an error or performance of any required duty by the board of canvassers.'" Matter of Delgado v. Sunderland, 97 NY2d 420, 423 (2002), citing, Matter of Corrigan v. Board of Elections of Suffolk County, 38 AD2d 825, 827 (2d Dept.), aff'd without op, 30 NY2d 603 (1972). In [*3]other words, "the Supreme Court lacks the authority to render a determination as to whether a voter was lawfully registered and eligible to vote.'" Matter of Skartados v. Orange County Bd. of Elections, 81 AD3d 757, 758 (2d Dept. 2011), citing, Matter of Mondello v. Nassau County Board of Elections, 6 AD3d 18, 22 (2d Dept. 2004).

The burden of proving the validity or invalidity of a ballot is on the petitioner, i.e., the party asserting the objection to the ballot. See, Ruffo v. Margolis, 61 AD2d 846 (3d Dept. 1978). "If the court determines that the person who cast such ballot was entitled to vote at such election, it shall order such ballot to be cast and canvassed if the court 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 §16-106(1). In other words, and generally speaking, where a ministerial error by the Board of Elections caused a ballot to be invalid on its face, such ballot will be counted. However, where the voter caused a ballot to be invalid on its face, such ballot will not be counted. In making such determinations, this Court must ensure that the provisions of the Election Law are strictly complied with. See, Matter of Gross v. Albany County Board of Elections, 3 NY3d 251, 258 (2004).

With specific regard to absentee ballots, the "detailed scheme for the issuance, collection and canvassing of absentee ballots" is found in Section 8-400, et seq. of the Election Law and is to be strictly followed. See, Matter of Gross v. Albany County Bd. of Elections, 3 NY3d 251, 258 (2004); see also, Matter of Stewart v. Chautaugqu County Bd. of Elections, 14 NY3d 139 (2010). In reviewing these ballots, the Court is mindful of "the fact that absentee ballots are cast without secrecy and other protections afforded at the polling place, giving rise to greater opportunities for fraud, coercion and other types of mischief on the part of unscrupulous partisans." Matter of Gross, 3 NY3d at 255.

Applying these principles to the within matter and turning first to Stewart's challenges to the eleven absentee ballots based on various reasons, i.e., Exhibits #1 through #10 and #12, the Court herein decides as follows:

With respect to Exhibit #1 (ID: 0103770), the challenge to this ballot centers around the fact that the signature of the voter is clearly a stamped signature. "Voters are required to sign absentee ballots on the outside of the ballot envelope." Hosley v. Valder, 160 AD2d 1094, 1096 (3d Dept. 1990), citing, Election Law §7-122. "The requirement for a signature on the ballot envelope apparently derives from NY Const. art. 2, §7, which provides that [*4]the legislature shall provide for signatures of all voters at the time of registration and at the time of voting." Matter of Lynn v. DeWitt, 19 Misc 3d 1118(A) (Tompkins Cnty. Supr. Ct. 2008). Here, a stamped signature, without the signature of a witness attesting to the mark, does not comply with the signature requirement. See, Election Law §7-122(8). Permitting the use of a stamped signature, without more, would greatly enhance the opportunity for fraud and other types of mischief in the absentee voting process. As such, Exhibit #1 is invalid and may not be counted.[FN3]

Next, Stewart challenges numerous absentee ballots on the ground that the signatures on the absentee ballot envelopes do not match the signatures and/or information on the voter's Voter Registration Information Report or Absentee Ballot Application.[FN4] The Court finds that as to Exhibits #6 (ID: 1117540), #7 (ID: 1142465), #10 (ID: 1076615), and #12 (ID: 0599694), the signatures on the absentee ballot envelopes reasonably correspond to the signatures on the respective Voter Registration Information Report and such ballots shall be cast and canvassed. See, Election Law §8-506(1). Contrary to Stewart's contention, "[t]here is no provision in the Election Law which requires the inspectors to compare the signature on the envelope containing the absentee ballot to the signature on the application for the absentee ballot." Mondello v. Nassau County Bd. of Elections, 6 AD3d 18, 26 (2d Dept. 2004).

Furthermore, the voters whose ballot envelopes were marked as Exhibits #6 and #7 testified at the hearing that they signed their respective absentee ballot envelopes. With respect to Exhibits #10 and #12, Petitioner has not offered any evidence as to the genuineness of these signatures and therefore has not met his burden to establish that the signatures do not correspond. As such, this Court finds that there is insufficient evidence to establish that Exhibits #10 and #12 are invalid.

Similarly, this Court finds that Exhibit #5 (ID: 0109056) is valid and shall be cast and canvassed. Petitioner challenges this ballot envelope on the ground that the voter only signed his initials, which constitutes a mark, and the mark was not properly witnessed. In the space provided for the voter's signature, it contains a signature of the voter, but the signature was written by [*5]the voter's wife and noted "POA/MHL" which refers to "power of attorney" and the wife's initials.[FN5] According to Mrs. L, she received a phone call from someone who worked at the Board and was advised that a signature by a power of attorney was not accepted. Mr. L's absentee ballot envelope was therefore returned to them, at which time Mr. L placed his initials (or mark) on the envelope. Although Mrs. L signed Mr. L's name on the signature line, her notation "POA/MHL" is the equivalent of Mr. L's mark being witnessed.[FN6] As such, Mr. L's ballot envelope is valid.

Unfortunately, the same does not hold true for Exhibits #2 (ID: 0001528) and #3 (ID: 0001614).[FN7] "Before canvassing an absentee ballot, the absentee ballot envelope must be examined by inspectors who shall compare the signature, if any, on each envelope with the signature, if any, on the registration poll record, the computer generated list of registered voters or the list of special presidential voters, of the person of the same name who registered from the same address.' (Election Law §9-104[1][d]; see, Election Law §9-104[1][a])." Mondello, 6 AD3d at 25-26. Here, the name of the registered voter to which Exhibit #2 was addressed is Mrs. Y and the name of the registered voter to which Exhibit #3 was addressed is Mr. Y. However, Mr. Y signed the ballot envelope that was addressed to Mrs. Y (Exhibit #2) and vice versa. While Mrs. Y testified that she and her husband completed their ballots at the same time and mistakenly signed each other's ballot envelopes, and while this Court is sympathetic to such an innocent mistake, the Court is nevertheless required to adhere to a strict application of the law when it pertains to the actual elective process. See, [*6]Matter of Gross, 3 NY3d at 258. As the signatures on these two envelopes did not match the signature of the registered voter, this Court is constrained to find that Exhibits #2 and #3 are invalid and shall not be cast and canvassed.

Strict adherence to the provisions of the Election Law also applies to timeliness of receipt of absentee ballots. Specifically, Section 8-412(2) states: 1. The board of elections shall cause all absentee ballots received by it before the close of the polls on election day and all ballots contained in envelopes showing a cancellation mark of the United States postal service or a foreign country's postal service, or showing a dated endorsement of receipt by another agency of the United States government, with a date which is ascertained to be not later than the day before election and received by such board of elections not later than seven days following the day of election to be cast and counted....

In other words, absentee ballots received by the board of elections that are postmarked on or after election day are invalid. Here, although Exhibit #4, which is the envelope bearing "Official Election Mail" and contained an absentee envelope therein, does not contain a postmark at all, it is date-stamped by the Board as having been received on November 8, 2013, three days after the election. Moreover, the voter whose absentee ballot envelope was contained in Exhibit #4 (hereinafter "G.H.") testified at the hearing that he returned from Florida on November 5, 2013 and mailed his absentee ballot the following day. Based on his testimony and the lack of a postmark, it is clear that G.H.'s absentee ballot was not postmarked prior to election day.[FN8] See, e.g., Carney v. Niagara County Bd. of Elections, 8 AD3d 1085, 1086 (4th Dept. 2004)(Absentee ballot that was postmarked on the day of the election was properly invalidated). As such, Exhibit #4 is invalid and may not be counted.

The last two of the eleven ballots, Exhibits #8 (ID: 0601334) and #9 (ID: 0621817), are challenged on the ground that the ballot [*7]envelopes are torn. Specifically, Exhibit #8 appears to have been completely opened and then resealed with tape along the entire top edge of the envelope. In addition, looking at the back side of the envelope, the left edge is sealed with a two-inch piece of tape. Exhibit #9, although not taped at all, contains an approximately four-inch jagged tear at the top edge of the envelope. The ballot inside the envelope is visible, as are the voter's markings as to the propositions that can be seen, and, although it cannot be removed, the ballot itself is accessible.

Election Law Section 8-410 governs the procedure to be followed by a voter who is voting by absentee ballot. That section provides: The absentee voter shall mark an absentee ballot as provided for paper ballots or ballots prepared for counting by ballot counting machines. He shall make no mark or writing whatsoever upon the ballot, except as above prescribed, and shall see that it bears no such mark or writing. He shall make no mark or writing whatsoever on the outside of the ballot. After marking the ballot or ballots he shall fold each such ballot and enclose them in the envelope and seal the envelope. He shall then take and subscribe the oath on the envelope, with blanks properly filled in. The envelope, containing the ballot or ballots, shall then be mailed or delivered to the board of elections of the county or city of his residence.

Election Law §8-410 (Emphasis added).

The term "seal" is not defined in the Election Law. As such, this Court must construe the term using its usual and commonly understood meaning. See, Rosner v. Metro. Prop. & Liab. Ins. Co., 96 NY2d 475, 479-480 (2001). "Seal," as used in this context, is defined as "to fasten with or as if with a seal to prevent tampering; to close or make secure against access, leakage or passage by a fastening or coating." See, Websters New Collegiate Dictionary 1041 (1973), available at http://www.merriam-webster.com/dictionary/seal. The word "seal," as used in this context, is not specifically defined in Black's Law Dictionary. However, Black's Law Dictionary does define "sealing of records," which is analogous to the type of sealing required here, and is defined as "to close by any kind of fastening that must be broken before access can be obtained." Black's Law Dictionary 1349 (6th [*8]ed. 1990).

By just looking at Exhibits #8 and #9 and considering the testimony adduced at the hearing, this Court finds that these ballot envelopes are invalid on their face and shall not be cast and counted. Since Exhibits #8 and #9 were received by the Board, as is indicated by the date stamp, in their current condition (as there is no testimony to contradict this), and because the exhibits, as received, indicate that they may have been tampered with, this Court must find Exhibits #8 and #9 to be invalid.[FN9] Circumstances such as these remind the Court that "the risk of fraud is inherent in [voting by] absentee ballot." Panio v. Sunderland, 4 NY3d 123, 128 (2005).

Turning next to Stewart's challenge to 41 absentee ballots (that have already been cast and counted) on the ground that the absentee ballot application forms utilized by these 41 voters did not comply with Election Law §8-400(3)(c), the Court finds Stewart's contention to be without merit.[FN10] It is well-settled, both legislatively and as interpreted by the courts, that "[e]lection proceedings are governed by the well-established principal that there must be strict compliance with substantive statutory mandates, while substantial compliance is all that is required when dealing with matters regarding form." Barrett v. Scaringe, 112 AD2d 1095, 1096 (3d Dept. 1985)(Emphasis in original). See also, Election Law §8-400(9).

In the within matter, the statute at issue is Section 8-400(3), et seq., which governs the form and content of absentee ballot applications. Specifically and as relevant here, Section 8-400(3)(c) requires that an "application for an absentee ballot when filed must contain ... (c) A statement, as appropriate, that on the day of such election the applicant expects in good faith to be in one of the following categories...." The statute thereafter lists [*9]six categories or reasons for which a voter expects in good faith to be unable to vote in person on election day. The absentee ballot application forms shall be provided by the board of elections and the state board of elections shall prescribe a standard form to be used. See, Election Law §8-400(7) and (9). In other words, the only place to obtain such form is from the respective voters' local board of elections. Moreover, "[t]he use of any application form which substantially complies with the provisions of this section shall be acceptable and any application filed on such form shall be accepted for filing." Election Law §8-400(9).

Applied here, the Court finds that the absentee ballot application used here, see, Exhibit 17, substantially complies with Section 8-400(3)(c). Question 5 on the application form is a statement wherein the voter must check one reason he/she expects to be unable to vote in person. Question 5 reads as follows: I am requesting, in good faith, an absentee ballot due to (check one reason): Absence from county or New York City on election day; Temporary illness or physical disability;

Permanent illness or physical disability;

Duties related to primary care of one or more individuals who are ill or physically disabled;

Patient or inmate in a Veteran's Administration Hospital;

Detention in jail/prison, awaiting trial, awaiting action by a grand jury, or in prison for a conviction of a crime or offense which was not a felony.

See, Exhibit 17 (Emphasis added). Although Question 5 may not state verbatim the exact language set forth in the statute, i.e., "that on the day of such election the applicant expects in good faith to be in one of the following categories," the question contains all of the necessary requirements of the statute. It lists the six reasons for which a voter is requesting an absentee ballot and states that such a request is made in good faith. While the statute requires the voter to have a good faith expectation that he or she will be unable to vote on election day for one of the listed reasons, as opposed to requiring the voter to make a good faith request for an absentee ballot, the Court finds that the application substantially complies with the provisions of Section 8-400(3). Nevertheless, the faulty wording on the application is cured by the fact that the voter signs a statement on his or her absentee ballot envelope wherein he or she reaffirms "that [he or [*10]she] will be unable to appear personally on the day of the election for which this ballot is voted at the polling place of the election district in which [he or she] is a qualified voter because of the reason given on [the] application heretofore submitted."

Furthermore, due to the fact that the Board utilized the application form marked as Exhibit 17 for the November 5, 2013 election and assuming, arguendo, that that form was provided to more than just the 41 voters at issue here who voted by absentee ballot, this Court would be unnecessarily discriminating against the 41 voters who Stewart challenges. Since the same form was utilized by other voters who voted by absentee ballot, the Court cannot countenance such an inconsistent result if some of the applications were found to be invalid, albeit identical to other applications that were valid but just not challenged. Although this Court is unaware of the actual number of voters who voted by absentee ballot and who utilized the subject application form, the Court could only surmise that it would be a large number of voters who voted for Supervisor in the Town of Orangetown election.

Lastly, as previously set forth herein, "the Supreme Court lacks the authority to render a determination as to whether a voter was lawfully registered and eligible to vote.'" Matter of Skartados v. Orange County Bd. of Elections, 81 AD3d 757, 758 (2d Dept. 2011), citing, Matter of Mondello v. Nassau County Board of Elections, 6 AD3d 18, 22 (2d Dept. 2004). The Board, by reviewing an absentee ballot application that it has received and thereafter sending out an absentee ballot, has made a determination that the absentee ballot applicant is registered and eligible to vote. It is not for this Court to second-guess the Board's determination. More importantly, " voters should not be [disenfranchised] for a mistake ... of election officials in performing the duty cast upon them.'" Powers v. Donahue, 276 AD2d 157, 160 (1st Dept. 2000), quoting, Matter of Luck v. Fisk, 243 AD2d 812, 813 (3d Dept.), aff'd, 90 NY2d 979 (1997).

Based on the foregoing, it is hereby

ORDERED that the following ballots shall not be cast and canvassed: Exhibit #1 (Ballot ID: 0103770), Exhibit #2 (Ballot ID: 0001528), Exhibit #3 (Ballot ID: 0001614), Exhibit #4 (Ballot ID: 0083729), Exhibit #8 (Ballot ID: 0601334), and Exhibit #9 (Ballot ID: 0621817); and it is further

ORDERED that the following ballots shall be cast and canvassed: Exhibit #5 (Ballot ID: 0109056), Exhibit #6 (Ballot ID: 1117540), Exhibit #7 (Ballot ID: 1142465), Exhibit #10 (Ballot ID: 1076615), and Exhibit #12 (Ballot ID: 0599694); and it is further [*11]

ORDERED that the Board shall take no action with respect to the 41 ballots that have already been cast and canvassed (Exhibit 18); and it is further

ORDERED that the Board shall preserve all of ballots that are the subject of this Decision and Order that have not previously been preserved for appellate review in the same manner as the ballots that have already been so preserved; and it is further

ORDERED that in accordance herewith, the Board shall forthwith certify the results of the election for Supervisor, Town of Orangetown.

E N T E R

Dated: December 9, 2013

New City, New York

HON. VICTOR J. ALFIERI, JR.

Acting Supreme Court Justice Footnotes

Footnote 1: Originally, Stewart contested twelve ballots but has subsequently withdrawn his objection to Exhibit #11 (ID 1026074), leaving the remaining eleven ballots for this Court's determination.

Footnote 2: Wettje, respondent in the within action, commenced a separate proceeding pursuant to Article 16 of the Election Law, which this Court dismissed. See, Decision and Order dated December 9, 2013 re: Wettje v. Stewart, Index No. 2260-2013.

Footnote 3: As the Court refers to the absentee ballots by exhibit numbers, any ruling by the Court to count or not count the exhibit number is meant to refer to the counting of the ballot contained therein.

Footnote 4: Petitioner's Exhibit 14 contains the Voter Registration Information Reports for each of the eleven voters whose absentee ballots are challenged.

Footnote 5: The voter whose absentee ballot envelope was marked as Exhibit #5 (hereinafter "Mr. L") and his wife (hereinafter "Mrs. L") testified at the hearing. Due to the fact that Mr. L is 93 years old and legally blind, Mr. L's and Mrs. L's testimony was taken in their home.

Footnote 6: Mrs. L's confusion is due in part to the fact that there is no place on the ballot envelope for the witness to the voter's mark to sign. The Court notes that pursuant to Election Law §7-122(8), the reverse side or back of the absentee ballot envelope is required to contain a statement to which the absentee ballot voter must subscribe and sign. Underneath the statement, the envelope must provide a line for the "Signature or mark of voter," as well as a line for the "Signature of Witness," which is "required only if the voter does not sign his own name." There must also be a line for the witness to write his or her address. See, Election Law §7-122(8). Interestingly, the absentee ballot envelopes utilized in the November 5, 2013 general election did not comply with Section 7-122(8) as there was no line for either the signature or address of a witness. The Board may wish to correct this omission prior to the next election.

Footnote 7: The voter whose absentee ballot envelope was marked as Exhibit #2 shall hereinafter be referred to as "Mrs. Y."

Footnote 8: The fact that G.H. mailed his absentee ballot to the Board prior to election day but that it was returned to him due to the fact that he failed to sign the absentee ballot envelope does not excuse the untimeliness of the returned ballot.

Footnote 9: As there was no testimony as to the manner in which Exhibit #9 was delivered to the Board — whether by mail which means it would have been contained in an outer envelope or by hand delivery this Court has no choice but to find that it is invalid. Had there been testimony that it was delivered by mail and the outer envelope received by the Board was sealed, this Court could have found that the voter properly sealed the envelope prior to enclosing it in the outer envelope and the tear occurred at the Board when the outer envelope was opened.

Footnote 10: The Court notes that while Stewart only contests 41 absentee ballot applications on this ground, all voters who voted by absentee ballot in the November 5, 2013 election would have used the same application form as it is the only form utilized by the Board (other than one that is used for Spanish-speaking voters).