Matter of Forman v Haight

[*1] Matter of Forman v Haight 2020 NY Slip Op 20221 Decided on August 12, 2020 Supreme Court, Dutchess County Marx, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 12, 2020
Supreme Court, Dutchess County

In the Matter of the Application of Peter Forman, Candidate Aggrieved, Petitioner,

against

Erik Haight and ELIZABETH SOTO, COMMISSIONERS CONSTITUTING THE DUTCHESS COUNTY BOARD OF ELECTIONS, and JESSICA SEGAL, Candidate for County Court Judge, County of Dutchess, Respondents.



2020-51717



Attorney for Petitioner

John Ciampoli, Esq.

Of Counsel to

Sinnreich, Kosakoff & Messina LLP

267 Carleton Avenue

Suite 301

Central Islip, NY 11722

Self Represented Respondent

Erik Haight

Attorney for Respondent Elizabeth Soto

James E. Long, Esq.

Law Office of James E. Long Esq. 668 Central Ave

Albany, New York 12207

Attorney for Respondent Jessica Segal

David A. Sears, Esq.

One Civic Center Plaza, Suite 302

Poughkeepsie, NY 12601
Paul I. Marx, J.

Petitioner, Peter Forman [FN1] ("Forman" or "Petitioner"), a candidate for the position of Judge of the County Court of Dutchess County, challenges the validity of all ballots cast in the Independence Party primary election held on June 23, 2020, and consequently, the results for the nomination to appear on the ballot in the upcoming General Election. Petitioner contends, variously, that:

(1) Election Law § 8-400 (1)(b),[FN2] which permits the issuance of absentee ballots to care givers, is unconstitutional and the absentee ballots cast by care givers in the Independence Party primary election, therefore, cannot be counted;

(2) all ballots which were received by the Board of Elections on Election Day are invalid because the Executive Orders issued by Governor Andrew Cuomo authorizing the counting of such ballots, exceeded the Governor's authority and are unconstitutional;

(3) certain absentee ballots were improperly issued by the Board of Elections because the applications therefor were defective, incomplete or premature;

(4) certain absentee ballots cast are invalid because the signature on the return envelope oath does not match the signature on the voter's official voter registration card maintained by the Board of Elections;

(5) certain absentee ballots cast are invalid because the voter signed the return envelope oath in the wrong place;

(6) certain absentee ballots were defective because they were torn or mutilated;

(7) the affidavit ballot of a voter who was given a ballot for the wrong primary should be counted, notwithstanding that the voter cast a vote by machine for the incorrect primary election; and

(8) the entire primary election was so permeated with irregularities as to require the Court to order a new primary election because several Independence Party voters who appeared to vote in person may have been given a ballot for a different political party.

This proceeding was commenced by Order to Show Cause and Verified Petition on July 6, 2020. Because of the recusal by several Justices and Acting Justices of the Supreme Court assigned to Dutchess County, and because July 6 was the last day to commence this proceeding, the matter was referred to this Court by the chambers of the Hon. Kathie E. Davidson, District Administrative Judge, on an emergency basis. This Court signed the Order to Show Cause, established a schedule [*2]for service (including a direction for service on the New York State Attorney General due to the constitutional challenges) and set a return date of July 13, 2020. The matter was officially assigned to this Court, nunc pro tunc to July 6, 2020, by Justice Davidson on July 7, 2020. NYSCEF Document No. 10.

On July 13, 2020, Petitioner and his counsel, Respondent candidate Jessica Segal ("Segal") and her counsel, Respondent Elections Commissioner Elizabeth Soto ("Soto") and her counsel, and Respondent Elections Commissioner Erik Haight ("Haight"), self represented, appeared at a virtual hearing via Skype. Prior to the commencement of the proceedings, the Court disclosed that it was familiar with Judge Forman, having been assigned to try a medical malpractice action in Dutchess County and by virtue of having been re-assigned some his civil cases several years ago to dispose of pending motions. All parties waived any appearance of impropriety or potential challenge to this Court hearing and determining the matters presented.

The Court set a briefing schedule, including deadlines for the respondents to answer the Petition, and scheduled a hearing. In addition, the Court directed the production by the Board of Elections of various election related materials, including the official voter registration cards (so called "buff cards"), absentee ballot applications and voter return envelopes for those individuals who voted in the primary so that the parties could prepare for the hearing.

On July 9, 2020, Segal filed her Answer to the Petition, generally denying Petitioner's allegations and asserting an affirmative defense that all qualified voters whose votes Petitioner sought to disqualify were necessary parties to the proceeding.

On July 10, 2020, Commissioner Soto filed her Answer to the Petition, also denying the allegations generally and asserting an affirmative defense alleging that Petitioner failed to comply with Executive Law § 71(3) and CPLR §1012(b) which require notice to be given to the Attorney General's office in all proceedings which challenge the constitutionality of a statute, rule or regulation. Commissioner Haight did not file a written answer to the Petition, but participated in the hearing, self represented.

On July 29 and 30, 2020, the matter proceeded to a hearing. At the time of the hearing, Forman was ahead in the vote count by 72 votes. The parties agreed that Forman had challenged 104 votes, Segal had challenged 7 votes and both candidates challenged 1 vote. Segal did not bring her own proceeding, hence her challenges are not before the Court. The 105 challenges asserted by Forman were the subject of the hearing and are disposed in this Decision and Order.[FN3]

Testimony received at the hearing came from Petitioner's purported expert, Roger Rubin, Haight, Republican Deputy Commissioner Timothy Malet ("Malet"), voter J.C., Petitioner's brother, John Forman, Soto, Democratic Deputy Commissioner Ira Margulies ("Margulies"), and voter L.B.[FN4]

Petitioner introduced the following evidence at the hearing: the official records of the Dutchess County Board of Elections pertaining to the votes cast in the Independence Party primary, the applications for absentee ballots, the absentee ballot return envelopes and the notes on which the Commissioners recorded the parties' challenges (Exhibit 1); voter materials pertaining to voter T.D. [*3](Exhibit 1-a); Roger Rubin's curriculum vitae (Exhibit 2); a list of the signatures challenged by Petitioner (Exhibit 3); a summary of the challenges other than signatures raised by Petitioner (Exhibit 4);[FN5] Malet's report of his investigation into the claim of irregularities in the primary (Exhibit 5); Malet's raw data which resulted in Exhibit 4 (Exhibit 5); and voter records pertaining to voters J. E. (Exhibit 7), E. M. (Exhibit 8), R.S. (Exhibit 9), and S.U. (Exhibit 10). In addition, marked separately by Petitioner as Board Exhibits [FN6] were the records of voters A.L (Bates # 297) (Exhibit A), S.K. (Bates # 354) (Exhibit B), and M.N. (Bates # 277) (Exhibit E).[FN7] Finally, Segal offered into evidence affidavits from voters C.C. (Bates #233) (Exhibit A), M.D-S. (Bates # 421) (Exhibit B) and J.M. (Bates # 497) (Exhibit C).

Following completion of the hearing, the Court directed that post hearing memoranda [FN8] be submitted no later than noon, August 5, 2020. The Court later extended the time to file memoranda to 4:00 p.m. at Soto's counsel's request due to a storm related power outage. All parties, except Haight, submitted post hearing memoranda.[FN9]

The Court now addresses the parties' contentions:

[*4]Challenge to Constitutionality of Election Law § 8-400(1)(b) Authorizing Care Giver Ballots

Petitioner challenges the constitutionality of a state statute, Chapter 426,[FN10] New York Laws of 2009, which amended Election Law § 8-400(1)(b) to provide, in relevant part:

1. A qualified voter may vote as an absentee voter under this chapter if, on the occurrence of any village election conducted by the board of elections, primary election, special election, general election or New York city community school board district or city of Buffalo school district election, he or she expects to be: (b) unable to appear personally at the polling place of the election district in which he or she is a qualified voter because of illness or physical disability or duties related to the primary care of one or more individuals who are ill or physically disabled, or because he or she will be or is a patient in a hospital; or (McKinney's Election Law § 8-400) (emphasis added).

Petitioner contends that the provision, which allows a "care giver" to vote by absentee ballot, contravenes the express terms of Article II, section 2 of the New York State Constitution, which provides in pertinent part:

The legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence or, if residents of the city of New York, from the city, and qualified voters who, on the occurrence of any election, may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes. (NY Const. art. II, § 2) (emphasis added).

Petitioner argues that the Legislature exceeded the strict parameters set forth in the Constitution which limit absentee voting to a voter's absence from the county or a voter's inability to vote in person due to the voter's illness or physical disability. Petitioner contends that the Constitution did not authorize the Legislature to allow a voter who renders the primary care to an ill or physically disabled individual to claim the privilege of voting by absentee ballot.

In order to challenge the constitutionality of a state statute where the state is not a party to the action, which is the case here, "the attorney-general, [sic] shall be notified and permitted to intervene in support of its constitutionality." CPLR §1012[b] [1]. There must be proof of service on, or notice to the attorney general pursuant to CPLR §1012[b] [1]. Gina P. v Stephen S., 33 AD3d 412, 415 [1st Dept 2006].

Petitioner provided an Affidavit of Service upon the Attorney General's office in Poughkeepsie, New York, which states that service of the "Order to Show Cause with TRO" was made upon "Investigator Dennis Chums, a person of suitable age and discretion thereat." NYSCEF Doc. # 17. The Order to Show Cause enumerated in paragraph eight thereof that Petitioner sought an order "Declaring unconstitutional any executive order or statute affecting the processes of this election which were applied and or enacted in contravention of the provisions of the New York State [*5]Constitution ".

Service upon an investigator in an office of the Attorney General does not conform with CPLR §307, which requires delivery to "an assistant attorney-general at an office of the attorney-general ". Accordingly, the requisite statutory notification has not been given to the Attorney-General (CPLR 1012, subd, [b]; Executive Law, § 71). This is borne out by the fact that the Attorney General's office did not acknowledge receipt of the papers or respond to Petitioner's claim of unconstitutionality.

Petitioner's failure to provide proper notice to the attorney general means that the issue is not properly before the Court. Gina P. v Stephen S., supra at 416; Weinberg v Omar E, 106 AD2d 448, 448 [2nd Dept 1984] ("The constitutional claims raised by the appellant are not properly before us due to a failure to give the requisite statutory notice to the Attorney-General (CPLR 1012, subd [b]; Executive Law, § 71; Matherson v Marchello, 100 AD2d 233, 241, n 4)). Therefore, the Court cannot consider the issue.

Moreover, Petitioner's request for a declaration of unconstitutionality of "any executive order or statute affecting the processes of this election" was so vague that it failed to provide sufficient notice under CPLR §1012(b)(1).

Accordingly, Petitioner's constitutional challenges are rejected. The Board of Elections is directed to count the following care giver absentee ballots: A.J. (Bates # 57), G.P. (Bates # 103), P.H. (Bates # 167), Y.S. (Bates # 257), J.S. (Bates # 265), H.D. (Bates # 345), H.D. (Bates # 351), L.F. (Bates # 403), C.D. (Bates # 513), R.D. (Bates # 639), J.W. (Bates # 751) and C.S. (Bates # 855).[FN11]

Segal's Necessary Party Defense

Segal raises a threshold issue that the voters whose absentee ballot applications are being challenged must be named in the action as necessary parties or those challenges must be dismissed. Segal contends that Petitioner's challenge to the applications constitutes a challenge to the voters' qualification to vote, which renders them necessary parties pursuant to Election Law § 16-108(2). That provision reads:

2. In any such proceeding the board of elections or other official charged with the conduct of the election, in which it is claimed the registration of the voter unlawfully was refused or unlawfully registered, shall be a necessary party and the person whose name is sought to be stricken from the register shall likewise be a necessary party, and the board and such person shall receive such notice as the court, justice or judge shall direct.

The Court rejects Segal's contention, as Petitioner has not claimed either in his Petition or at the hearing, that the registration of any of these voters was unlawful or improper. Petitioner merely challenges the issuance of an absentee ballot to the voters based upon alleged irregularities in their applications and the right of their absentee ballots to be counted, not whether the voters were registered to vote in the Independence Party primary. Election Law § 16-108 (2) is inapplicable. [*6]Meyer v Whitney, 132 AD3d 1062 [3rd Dept. 2015], lv denied 26 NY3d 909 [2015]; Messina v Albany Cty. Bd. of Elections, 66 AD3d 1111, 1113-14 [3rd Dept 2009], lv denied 13 NY3d 710 [2009]. The relief requested in the Petition can be considered and granted, if appropriate, without joining the voters, none of whom will be inequitably affected by the outcome. Messina, 66 AD3d at 1113 (citations omitted).

Challenge to Allegedly Incomplete Absentee Ballot Applications

As set forth on Exhibit 4, Petitioner challenged 25 ballots on the grounds that the absentee ballot application was incomplete or defective. Some of the claimed deficiencies were ruled on during the hearing. Thus, the Court re-states the determinations without the rationale which is set forth on the record made at the hearing. The following five challenges were denied at the hearing and the ballots should be counted for these voters: M.H. (Bates # 13), M.D. (Bates # 19),[FN12] S.B. (Bates # 29), K.T. (Bates # 89), J.B. (Bates # 133).

In addition, Petitioner subsequently limited this challenge to 12 voters in his post hearing papers. Petitioner's Memorandum of Law at 9. The challenges included claims that: (1) the affidavit in support of the application was incomplete because the voter failed to fill out a specific question or sub-question, (2) the voter did not specifically request a ballot for this primary election, failed to include a date range specifying the date range of the elections for which absentee ballots were requested, or specified more than one election by checking off an excessive number of boxes, (3) the application had been altered, (4) the voter did not state a reason for the request for the absentee ballot or stated too many reasons, and (5) the voter's address on the application did not match that on the Board of Elections' records. Petitioner contends that where an application is incomplete, the Board of Elections should not have issued an absentee ballot to the voter and, consequently, any vote thus cast is void. Petitioner asserts that the Court of Appeals, in Stewart v Chautauqua Board of Elections, 14 NY3d 139 [2010], mandated strict compliance with the Election Law in order for an absentee ballot to be issued and counted.

Segal and Soto counter that notwithstanding the Court of Appeals' mandates, the legislature amended Election Law § 9-209(2)(E)(v) to provide that the Board of Elections' determination of whether to issue a ballot is based upon whether the voter "substantially complied" with the requirements of Chapter Seventeen of the Election Law.

Without addressing the argument that substantial compliance is sufficient for the Board of Elections to issue and count an absentee ballot, Petitioner asserts that the Court should reject these ballots relating to the sufficiency, in many cases, of the reasons why the absentee ballot was requested. This, despite the provisions of Executive Orders No. 202.15 and 202.23 issued by Governor Cuomo on April 9, 2020 and April 24, 2020, respectively.

Under Executive Order 202.15, the Governor, pursuant to his declaration of a State disaster emergency on March 7, 2020, issued the following directive:

Section 8-400 of the Election Law is temporarily suspended and hereby modified to provide that due to the prevalence and community spread of COVID-19, an absentee ballot can be granted based on temporary illness and shall include the potential for contraction of the [*7]COVID-19 virus for any election held on or before June 23, 2020. (https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files /EO_202.15.pdf)

Executive Order 202.15 continued:

Solely for any election held on or before June 23, 2020, Section 8-400 of the Election Law is hereby modified to allow for electronic application, with no requirement for in person signature or appearance to be able to access an absentee ballot. Id.

This information was made available to all voters on the New York State Board of Elections website. NYS Board of Elections, https://www.elections.ny.gov/VotingAbsentee.html (last accessed August 10, 2020). Consistent therewith, the Dutchess County Board of Elections website provided information to voters on how to obtain an absentee ballot for the June 23, 2020 primary at https://www.elections.dutchessny.gov/voter-information/voting-by-absentee-ballot (last accessed August 10, 2020). Notably, the website informed voters that applications could be obtained via email, fax or phone call for the June 23, 2020 primary.

To the extent that Petitioner challenges the Governor's authority to issue the Executive Orders where a state disaster has been declared, that claim is rejected. Not only were the Governor's actions reasonable and necessary in response to the COVID-19 pandemic, they were well founded in the law. Executive Law § 29-a clearly authorized the Governor to take such action in light of the COVID-19 pandemic and declared state of emergency. "The governor, by executive order, may issue any directive during a state disaster emergency declared in the following instances: ... disease outbreak ... . Any such directive must be necessary to cope with the disaster and may provide for procedures reasonably necessary to enforce such directive."

The Court recognizes that the Court of Appeals rejected COVID-19 as an excuse for a candidate not to timely file a cover sheet for her nominating petitions or for her failure to timely file an acceptance certificate in Seawright v Board of Elections of the City of New York, 2020 WL 2568804 [2020]. That case is, however, distinguishable as the Executive Orders did not affect the time to file these candidate required documents whereas the Executive Orders were designed to protect the rights of voters in the midst of the greatest pandemic the world has seen in over a hundred years. Further, in Seawright, the Court found that the candidate could have had someone else file the certificates or cover sheets for her. By contrast, no one else can legally cast an individual voter's ballot for them.

As can be seen by the Court's determinations below, the votes cast by voters who failed to include the type of election for which they desired an absentee ballot shall be counted. Simply put, the circumstances of the COVID-19 pandemic and the declared disaster mandate that the individual rights of citizens be counted, technical objections notwithstanding. The Court is aware that certain individuals in the national limelight are suggesting, without evidence, that mail-in voting will lead to massive voter fraud. Here, no one has suggested that there has been massive voter fraud. Rather, Petitioner asserts that where the voter has not indicated on the application for which election he/she/they desired an absentee ballot, the application is defective. Yet, one can easily discern that these voters desired absentee ballots for the June 23 primary from the fact that the voter, in fact, voted in the primary. This conclusion, under the totality of the circumstances, is inescapable. Had the voter specified that he/she desired an absentee ballot for a specified election or specified time period, the conclusion that the voter intended to limit the request would be obvious. Where the voter [*8]has included no limitation on which election/elections for which they desired an absentee ballot, subject to any other law that limits permanent absentee ballot eligibility, all elections where the voter participated should be deemed to be proper.

Election Law § 9-209(2)(E)(v) provides:

If the board of elections determines that a person was entitled to vote at such election, the board shall cast and canvass such ballot if such board finds that the voter substantially complied with the requirements of this chapter. For purposes of this subparagraph, substantially complied shall mean the board can determine the voter's eligibility based on the statement of the affiant or records of the board. (emphasis added)

Thus, it is clear from this provision that the Board of Elections is held to the standard of substantial compliance when determining whether an application for an absentee ballot meets the requirements of the Election Law. Stewart v Chautauqua County Bd. of Elections, 14 NY3d 139.

In Stewart v Chautauqua County Bd. of Elections, the Court of Appeals distinguished the type of inquiry at issue here—whether an absentee ballot application contains the necessary information—from the issue the court addressed in Gross v Albany County Bd. of Elections, 3 NY3d 251 [2004], where the subject Board of Elections issued absentee ballots to voters without requiring an application from the voters. In Gross, the Court of Appeals held that the Board's failure to require an absentee ballot application could not be viewed as "technical, ministerial or inconsequential because it was central to the substantive process by which voters are determined to be qualified to cast absentee ballots". Id. at 258-259. Further, the Court of Appeals held that strict compliance with the requirements of the Election Law was required in Gross, because the Board of Elections had no basis upon which to determine whether an absentee ballot was warranted where it had not received an application for such ballot. By contrast, where, as here, an application has been submitted to the voter and responded to, challenges to the content of the application fall within Election Law § 9-209(2)(E)(v)'s substantial compliance standard. Of course, the nature of the omission, if any, by the voter will affect the Board of Election's determination and this Court's review of the Board's decision to issue an absentee ballot to the voter.

Against this backdrop, the Court has examined the challenged ballots and finds as follows:[FN13]

Voter

Bates #

Challenge [FN14]

L.W.

205

(section 1 — no box checked as per instructions), sec 2 is ambiguous — primary election box not checked)

[*9]Determination:

The challenge is disallowed. The voter wrote in section one the word "COVID-19". This is a valid explanation for the request for an absentee ballot under Executive Order. 202.15 The voter requested an absentee ballot for "any election held between" ... "5/31/20 and 5/31/21". This date range includes the June 23, 2020 primary.

M.N.

277

incomplete application (Sec 2) Application altered w white out

[*10]Determination:

The challenge is disallowed. The voter requested an absentee ballot for "any election held between" but omitted a date range. The Court construes the totality of the circumstances, including the timing of the application, in chronological proximity to the primary, along with the fact that the voter actually voted in the primary, to indicate that the voter desired an absentee ballot for the June 23, 2020 primary. The Court has also examined the white out on the application. The whited-out portion of the application indicates that the voter removed the explanation of "temporary illness" and replaced it with "permanent illness". The Court finds this to be of no consequence. Either explanation would suffice for an absentee ballot to be issued.

N.C.

293

incomplete application (Sections 2 and 6)

[*11]Determination:

The challenge is disallowed. As to section 2, the voter requested an absentee ballot for "any election held between" but omitted a date range. See the Court's rationale for M.N., above. As to Section 6, the Board of Elections Commissioners clearly found that "the voter substantially complied with the requirements of this chapter" as allowed by Election Law § 9-209. The mailed ballot reached and was returned by the voter from the address she is registered to vote.

S.N.

385

incomplete application (sec 1 no box checked) altered application

Determination:

The challenge is disallowed. Although the voter did not check a box, she "altered" the application by creating her own box, writing in "COVID-19" and checking the box. This "alteration" is of no consequence. The voter clearly indicated a valid reason that an absentee ballot was requested.

D.D.

391

incomplete application (sec. 1 no box checked) altered application

[*12]Determination:

The challenge is disallowed. Although the voter did not check a box, she "altered" the application by writing in "COVID-19". This "alteration" is of no consequence. The voter clearly indicated a valid reason that an absentee ballot was requested.

D.R.

437

incomplete application (sec. 1 no box checked) altered application

Determination:

The challenge is disallowed. Although the voter did not check a box, she "altered" the application by writing in "COVID-19". This "alteration" is of no consequence. The voter clearly indicated a valid reason that an absentee ballot was requested.

J.G.

573

Section 2 incomplete (no election selected & no date range)

Determination:

The challenge is disallowed. As to section 2, the voter requested an absentee ballot for "any election held between" but omitted a date range. See rationale for M.N., above.

J.W.

683

1. Application has multiple boxes checked in Sec. 1 (Instructions permit 1) 2. "Care giver" absentee law unconstitutional. (Other objections to post mark withdrawn at hearing.)

[*13]Determination:

The challenge is disallowed. Although the voter appears to have checked 2 boxes in section 1, both temporary illness and care giver duties, the voter appears to have crossed out the care giver reason by initialing that check mark. In any event, the instructions do not state "check ONLY one"; the instructions state "check one reason". The Board of Elections determined the voter to be entitled to an absentee ballot. The Court will not disturb that finding on this record. See section of this Decision and Order which addresses the constitutional challenge to care giver ballots.

D.M.

767

incomplete application (sec. 2 no date range specified)

Determination:

The challenge is disallowed. As to section 2, the voter requested an absentee ballot for "any election held between 6/blank/2020 and 6/blank/2021". This is sufficient to satisfy the requirement for identity of the elections for which an absentee ballot has been requested. In addition, see the Court's rationale for M.N. above.

J.L.

799

incomplete application (sec. 2 has no end date for absence)

[*14]Determination:

The challenge is disallowed. As to section 2, the voter requested an absentee ballot for "any election held between 5/16/20 and blank". See the Court's rationale for M.N.. above.

H.A.

847

1. Unsigned (no "wet" signature / non original application) 2. Emailed application pursuant to unconstitutional Exec. Order

Determination:

The challenge is disallowed. Executive Order 202.15 permits a voter to request an absentee ballot by email. See discussion of the constitutional challenge with respect to the assertion that the Governor's Executive Order exceeded his authority.

M.S.

899

1. "Corrected" Application incomplete (sec.1) 2. Multiple boxes checked in Sec. 2 (Primary Election only/General Election Only/Special Election Only) p. 895 suffers from the same infirmities

Determination:

The challenge is disallowed. The absence of a reason for requesting the absentee ballot is of no consequence in light of Executive Order 202.23.

Accordingly, the Board of Elections shall count the following ballots: L.W. (Bates # 205), M.N. Bates # 277), N.C. (Bates # 293), S.N. (Bates # 385), D.D. (Bates # 391), D.R. (Bates # 437), J.G. (Bates # 573), J.W., (Bates # 683), D.M. (Bates # 767), J.L. (Bates # 799), H.A. (Bates # 847), and M.S. (Bates # 899).

[*15]Incorrect and Premature Applications

Petitioner challenges five (5) ballots on a variety of additional grounds relating to the absentee ballot application. These are voter R.H. (Bates # 213), B.K. (Bates # 251), R.C. (Bates # 607), J.C. (Bates # 619) and N.F. (Bates # 719). These challenges are only addressed in this section of the Decision and Order if not discussed elsewhere or the ballot survived a different challenge.

The challenge to R.H. (Bates # 213) is that the voter checked the box in the application that states he desired an absentee ballot for the General Election only. Petitioner asserts that since the voter limited himself to the General Election, it was improper for the Board of Elections to issue an absentee ballot for the primary election. In addition, Petitioner alleges that the portion of the application which identifies the reason an absentee ballot is requested is blank. This ballot shall not be counted. The voter, by specifying that an absentee ballot was desired for the General Election, limited the election for which he desired a ballot.

The challenge to voter B.K. (Bates # 251) is that the voter's application is "unsigned" because it was electronically signed. Petitioner alleges that the Governor's Executive Order permitting electronic signature is unconstitutional. For the reasons set forth above concerning the power of the Governor to suspend or modify laws in response to a declared state of emergency, the ballot shall be counted.

The challenge to voter R.C. (Bates # 607) is that the application is incomplete because section 2 is either not filled out completely or that a part of the application is missing. The Board documents include multiple copies of the application, one of which indicates that an absentee ballot is desired for the primary election, the others of which reflect that an absentee ballot is desired for all elections between a specific date range, although the date range appears to have been obscured in the copying process. This ballot shall be counted. In both cases, the voter's intent to obtain an absentee ballot is clear and unequivocal.

The challenge to voter J. C. (Bates # 619) (in addition to a challenge to his signature, which was rejected) is that the post mark is illegible. The Court agrees. The second digit of the day on the post mark is partially obscured, such that the Court cannot discern whether it is dated June 23 or June 24. Consequently, the ballot is disallowed.

The challenge to voter N.F. (Bates # 719) is that the address on the voter registration differs from the address on the absentee application. The former sets forth a street address in Stanfordville, NY. The latter sets forth the same street address, which is a residence, but lists it as located in Bangall, NY. Both Bangall and Standfordville lie within the Town of Stanford in Dutchess County. The ballot shall be counted.

Accordingly, the Board of Elections shall count the following ballots: B.K. (Bates # 251), R.C. (Bates # 607), and N.F. (Bates # 719).

Challenge to the Acceptance by the Board of Elections of Ballots Received on Election Day

As set forth on Exhibit 4, Petitioner challenged 11 ballots which were received by the Board of Elections on Election Day, rather than the day before, contending that Election Law § 8-412 required absentee ballots to be received the day before Election Day. In addition, Petitioner asserted that the Governor's Executive Order which extended the time for ballots to be counted if received on Election Day was unconstitutional.

During the hearing, Petitioner's counsel was informed that Election Law § 8-412 had been [*16]amended by the legislature on June 7, 2020, effective immediately, to allow absentee votes to be counted if received by the Board of Elections on Election Day, rather than the day before. The amended statute provides:

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 of the election and received by such board of elections not later than seven days following the day of election to be cast and counted. Elec. Law § 8-412(1).

Consequently, at the hearing, Petitioner withdrew his opposition to those ballots which were challenged solely on that basis. The Board of Elections is hereby directed to count the following seven (7) ballots as a result: K.S (Bates # 461), I.I. (Bates # 469), C.B. (Bates # 477), J.L. (Bates # 523), H.H. (Bates # 561), H.C. (Bates # 625), and K.I. (Bates # 761), if it has not already done so.

To the extent that Petitioner challenged four (4) absentee ballots on grounds other than lateness, those challenges will be addressed separately.

Challenge to Absentee Ballot Signatures

Next, petitioner challenges certain absentee ballots because of alleged infirmities. He asserts that certain ballots which were or are about to be counted are infirm because of defects in the signatures of voters. More specifically, Petitioner contends that the envelopes within which certain ballots were returned contained signatures which varied from the signature contained on the voter's registration form or buff card. He asserts, therefore, that these ballots cannot be counted since the Election Law and NYS Constitution require that identification of voters be made by "matching" signatures on ballots to the official voter registration on file with the Board of Elections. Alternatively, he asserts that where the signature on the buff card does not match the signature on the absentee ballot application, the ballot was issued in error.

In support of this contention, petitioner called Roger Rubin as a purported expert in handwriting analysis. Generally stated, Mr. Rubin asserted that he is an expert in handwriting analysis who has examined numerous challenged documents and signatures and trained under Felix Klein, an individual reported by Mr. Rubin to be a leading expert in handwriting examination. Mr. Rubin is, principally, a graphologist, an individual who attempts to discern a person's personality from their handwriting. While he has no certificates or other qualifications issued by the American Board of Forensic Document Examiners, he claims that he was "grandfathered" in as a member. He asserts that he has been qualified as an expert in handwriting analysis by various courts throughout the state in election law related matters.

This Court declines to qualify Mr. Rubin as an expert in forensic handwriting analysis in this proceeding. In order to preserve the record, the Court permitted Mr. Rubin to give opinion testimony, subject to the Court's evaluation of the weight to be accorded to such testimony, as described below. Generally stated, Mr. Rubin opined that after review of the official registration card, absentee ballot application and return envelope for the absentee ballot, the signatures on certain ballots did not match. Petitioner contends, therefore, that these ballots must not be counted.

On cross examination by Segal's counsel and Commissioner Soto's counsel, it was [*17]established that Mr. Rubin's opinions were predicated on a much smaller sampling of signatures than that which is generally and customarily relied on by experts in forensic handwriting analysis, according to standards established by the American Board of Forensic Examiners. Mr. Rubin did not testify to any scientific methodology employed to analyze the challenged signatures. Rather than the 20 or more exemplars generally used as the basis of handwriting comparison, at most, Mr. Rubin compared only three signatures — the one on the voter registration card, the one on the absentee ballot application and the one on the envelope in which the absentee ballot was returned by the voter. Further, Mr. Rubin admitted that he did not consider any of the factors generally accepted by handwriting experts in determining if handwriting is genuine, although he said these would be "useful". These factors include, age, gender, dominant hand, type of writing instrument used, irregularities in the writing surface, and more.

Although at one point, without elaboration, Mr. Rubin stated that he considered "space, form and figure" of the signatures, he did not state what significance any of these had, nor did he define why they were relevant. When asked by the Court whether he had performed anything different than what anyone else in the Court could do, Mr. Rubin stated that his was the expert eye. Without further elaboration, Mr. Rubin testified that he looked at the challenged signatures and concluded, with his experienced eye, that they were different. This was his repeated refrain — as he stated with respect to voter N.C. (Bates # 155) — "I just know that looks different".

Mr. Rubin's testimony was interrupted by a stipulation entered into between and among the parties whereby they agreed, in an effort to avoid repeating the same direct (and cross examination) testimony for each voter whose signature he challenged, that if asked about each signature referred to on Petitioner's 3 in evidence, he would attest that the signatures did not match either the voter registration card, the absentee ballot application or the ballot envelope.

Mr. Rubin's testimony boiled down to an ipse dixit opinion, in which he asserted that the signatures did not match because "to his specially trained eye, they did not match". As the trier of fact, the Court rejects Mr. Rubin's testimony as not being the product of any scientific evaluation and being nothing more than that which the Court and any lay person can opine about. As Petitioner's counsel conceded, it is the Court which is the ultimate arbiter of whether the challenged ballot signatures "correspond" to the voter registration card, as stated in Election Law § 8-506(1).

Notably, and further undermining Mr. Rubin's testimony is the fact that with respect to at least 2 voters, he changed his opinion from "no match" to "match" after nothing more than an additional evaluation of the signatures either on the witness stand or during a break in the proceedings. The ease with which Mr. Rubin modified his opinions as to the consistency of the challenged signatures leads the court, as the trier of fact, to find his testimony unreliable. Further, as stated above, his opinion was not the product of any scientific evaluation. As such, I hold Mr. Rubin's testimony to be incompetent as a matter of law and reject it as a matter of fact.

Thus, the Court examines the challenged ballots on its own to determine if the signatures on the ballot envelope sufficiently corresponds to the signature on the buff card. The Court notes that Petitioner's counsel asserted that the signature on the absentee ballot application must also match the signature on the buff card, contending that if it did not, then the absentee ballot was improperly issued and should not be counted. This is not the law. Mondello v Nassau County Board of Elections, 6 AD3d 18 (2nd Dept 2004).

On this issue, in Mondello, the Appellate Division held:

Before canvassing an absentee ballot, the absentee ballot envelope must be examined by [*18]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] ). The challenge in issue was not whether the signature on the envelope matched the signature in the registration poll record but rather whether the signature on the envelope matched the signature on the application for an absentee ballot. There 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. Rather, it appears that the question of whether the application is proper should be considered by the Board of Elections "[u]pon receipt" of the application (Election Law § 8—402[1]) and resolved before the absentee ballot is delivered to the voter (see Election Law § 8—402[5] ). Mondello v. Nassau Cty. Bd. of Elections, 6 AD3d at 25—26.

The Election Law provision which governs challenges to absentee ballots provides that an absentee ballot may be challenged on the grounds generally allowed for challenges to ballots, or on three additional specific grounds, including, as relevant to the instant issue, that the voter's signature on the ballot envelope "does not correspond" with the voter's signature in the Board of Election's registration poll record. Election Law § 8-506(1). That section reads as follows:

1. During the examination of absentee, military, special federal and special presidential voters' ballot envelopes, any inspector shall, and any watcher or registered voter properly in the polling place may, challenge the casting of any ballot upon the ground or grounds allowed for challenges generally, or (a) that the voter was not entitled to cast an absentee, military, special federal or special presidential ballot, or (b) that notwithstanding the permissive use of titles, initials or customary abbreviations of given names, the signature on the ballot envelope does not correspond to the signature on the registration poll record, or (c) that the voter died before the day of the election. (emphasis added)

Courts interpreting this provision of the Election Law have held that the ballots shall be counted where the signature on the ballot envelope "sufficiently corresponds" to the signature on the voter's registration record, Smith v Babcock, 110 AD3d 837, 838 [2nd Dept 2013]("the Supreme Court properly determined that the signature on the envelope containing the subject absentee ballot at issue sufficiently corresponds to the signature on the voter's registration poll record"), or "reasonably correspond[s]" to the signature on the registration record. Stewart v Rockland County Board of Elections, 41 Misc 3d 1238(A) at *3 [Sup Ct, Rockland County 2013], affd 112 AD3d 866 [2nd Dept 2013].

Where the signature on the ballot envelope is found to be "substantially different" from the signature on the buff card, the absentee ballot cannot be counted. Kolb v Casella, 270 AD2d 964, 964 [4th Dept 2000], lv denied 94 NY2d 764 [2000]; Hosley v Valder, 160 AD2d 1094, 1096 [3rd Dept 1990] ("The signature on the voter registration card was substantially different than the signature on the absentee ballot envelope"); see also Kelley v Lynaugh, 112 AD3d 862, 864 [2nd Dept 2013] ("the envelope in which that absentee ballot was submitted did not correspond to the signature on the voter's registration poll record"); Johnson v Martins, 79 AD3d 913, 920—21 [2nd Dept 2010]("Upon reviewing the absentee ballot designated as exhibit 8, we agree with the [*19]appellants that 'the signature on the ballot envelope does not correspond to the signature on the registration poll.' (Election Law § 8-506 [1])"), affd 15 NY3d 583 [2010]; Mondello v Nassau Cty. Bd. of Elections, 6 AD3d at 25.

On the Court's own, independent evaluation of the evidence submitted in connection with the challenged signatures, the Court finds that the following seventeen (17) signatures sufficiently correspond to the signature on the voter registration card to require them to be counted, unless the vote is disqualified on other grounds:

J.M (Bates # 541),[FN15] M.D.S. (Bates # 421),[FN16] J.G. (Bates # 109), Z.A. (Bates # 307), R.S. (Bates # 813), J.C. (Bates # 615), N.C. (Bates # 155), J.V. (Bates # 217), C.C. (Bates # 233),[FN17] B.D. (Bates # 789), J.M. (Bates # 505), R.N. (Bates # 329), M.C. (Bates # 369), E.G. (Bates # 449), K.G. (Bates # 869), M.P. (Bates # 563), and J.M. (Bates # 497).[FN18]

The following fourteen (14) signatures were determined not to sufficiently correspond to the voter registration card and therefore should not be counted:

J.V. (Bates # 125), A.M. (Bates # 49), L.F. (Bates # 139), W.H. (Bates # 195), B.K. (Bates # 249), M.M. (Bates # 443), F.R. (Bates # 429), J.G. (Bates # 335), T.D. (Bates # 829), P.B. (Bates # 773), K.M. (Bates # 689), S.H. (Bates # 579), C.L. (Bates # 549), M.R. (Bates # 533).

The Board of Elections is hereby directed to count those ballots indicated above as having sufficiently authenticated signatures and to reject those found with inadequate signatures.

Challenge to Absentee Ballots Claiming Voter Did Not Sign the Oath

As limited by his post hearing brief, Petitioner challenges nine (9) ballots on the basis that the voter did not sign the oath on the ballot envelope as required by Election Law § 7-122(5).[FN19] Rather than sign in the space where the voter is supposed to sign or make their mark, the voter signed in the space provided for an individual to witness a voter's mark.[FN20] Petitioner asserts that the requirement of a signature is inviolate and that the absence of one is fatal to the ballot.[FN21] He contends [*20]that the affirmation of the voter is to prevent fraud and asserts that where a signature is not genuine, the ballot is void. Petitioner's Memorandum of Law at 11, citing Kolb v Casella, 270 AD2d 964 [4th Dept 2000], and Hosley v Valder, 160 AD2d 1094 [3rd Dept 1990]. Petitioner asserts that because some ballots which were not signed at all were stipulated as invalid by Segal, the Court should similarly disallow those where the affirmation was executed improperly, with the signature on a line different than the one which calls for the voter to sign.

Segal submits that the ballots have been signed, but in the space provided for a witness to a mark, not the one provided for a voter's signature. She contends that this voter error should not disenfranchise the voter, particularly since there is no claim of fraud or challenge to the signatures themselves. She asserts that case law has long held that "the right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever possible ... transcends technical errors 'such as this'. " Segal Post Hearing Memorandum at 7, quoting Carney v Davignon, 289 AD2d 559, aff'd 19 NY2d 995 [2004]. She urges that "this is not a new or novel claim." Courts have rejected this attempt to prevent voting in identical cases. Id., citing Kelley v Lynaugh, 112 AD3d 862 [2nd Dept 2013].

The placement of the voter's signature in the space identified for a witness does not, contrary to Petitioner's contention, render the vote invalid. The cases cited by Petitioner are inapposite to the issue presented here. Kolb, supra, held that it was improper to counts ballots which were submitted 17 days after Election Day and where, in one instance, the voter marked the actual ballot outside of the designated space for casting a vote for a specific candidate. Kolb, 270 AD2d at 964 (citing Matter of Pavlic v Haley, 20 AD2d 592, aff'd 13 NY2d 1111). Kolb also disallowed a ballot where the envelope "lacked statutorily required information". Hosley, supra, is distinguishable because it involved challenges to two (2) write in absentee ballots on which the voter wrote the desired candidate's name in an incorrect column on the ballot. Hosley also involved a challenge regarding whether the signature on the ballot matched the signature on the voter registration card. Neither of these cases addressed the immediate issue here, which concerns whether a signature which has been inadvertently placed on an incorrect line on an absentee ballot envelope invalidates the ballot, where the authenticity of the signature is otherwise unchallenged.

More to the point, the Appellate Division, Fourth Department, has addressed the specific issuance of a misplaced signature on a ballot envelope head on. In Carney v Davignon, supra, 289 AD2d 1096, the Appellate Division upheld the Supreme Court's determination that the voter's failure to sign on a correct line did not invalidate that ballot. In a case involving multiple ballot challenges, the Appellate Division held:

In addition, the court properly validated a third ballot (Exhibit 9) despite the voter's failure to sign the Statement of Absentee Voter on the correct line. "The right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever possible ... transcends technical errors" such as this (Matter of Weinberger v Jackson, 28 AD2d 559, aff'd 19 NY2d 995."

Moreover, in Kelley v Lynaugh, supra, the Appellate Division, Second Department, held that an absentee ballot envelope which had the signatures of two different voters, one of which was [*21]crossed out, the actual voter's intent to vote was clear and should not be disregarded. The double signing was by two voters who resided at the same address, both of whom voted by absentee ballot. The ballot accepted by the court was signed by both voters, one of whom crossed out her signature and completed her own separate absentee ballot. The remaining signature, which matched that voter's registration card, was deemed to be the "proper" voter and her ballot was held to be valid. As the Appellate Division stated, "[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 ..." Kelley, supra at 863 (citing 9 NYCRR 6210.13[a][2],[3]; Matter of Stewart v Chatauqua County Board of Elections, 14 NY3d at 149 (other citations omitted). Thus, it is clear that the Appellate Division will not invalidate a ballot due to such technical errors where the voter's intent is clearly expressed.

In this case, the otherwise unchallenged signature of a voter placed in the wrong place on an absentee ballot envelope does not invalidate the ballot. The voter's signature is the only signature on the ballot. Clearly, the voter intended to vote by marking the ballot and signing and returning it in the envelope provided. This Court has previously lamented the lack of clear instructions on absentee ballot envelopes and has entreated the Board of Elections for corrective action. Teets v Belcher, 42 Misc 3d 513, 524 [Sup Ct, Orange County 2013].

Consequently, the Court holds that the nine (9) challenged ballots cast by voters N.C. (Bates # 160), R.C (Bates # 274), T.M. (Bates # 288), K.M. (Bates # 517), D.P. (Bates # 592), K.M. (Bates # 650), T.L. (Bates # 662), G.E. (Bates # 716), and L.M. (Bates # 866)[FN22] should be counted.

Claimed Mutilated Ballots

Petitioner challenges two (2) ballots on the grounds that they are "mutilated" because the ballot was inadvertently glued to the envelope during the sealing of the envelope and resulted in the ballot being "torn, mutilated, defaced, or 'marked' and made identifiable by tearing and attaching envelope paper to the ballot". Petitioner's Memorandum of Law at 12. The two ballots, those of voters A.L. (Bates # 297) and S.K. (Bates # 354), have been marked as Board's exhibits A and B.

Petitioner argues that a portion of the ballot which was adjacent to the portion of the envelope where it was sealed pulled away resulting in a slight tear. Petitioner submits that Election Law § 9-112 provides that a ballot is void if the voter does any act "extrinsic to the ballot" and that, consequently, these ballots should be rejected.

Petitioner asserts that because of the presence of the glue/tear on the reverse side of the ballot, the voters' identities have been made known. He argues that this requires disqualification of the votes "to prevent fraud". Petitioner submits that the state of the ballots required them to be hand counted in order to prevent glue or attached papers from adversely affecting the voting machines. He continues, arguing matters which are dehors of the record, to state that

it is axiomatic that glue and paper attached to the ballot — and any foreign substance, and computer equipment do not mix well. If we allow for ballots like these to be run through the scanners the sensors which read the ballots will become fouled and those who have legally voted will end up losing their votes. If hand canvassing is required, the circle of people [*22]identifying the ballot with a voter grows and the process is slowed. We must keep shards of paper, glue and the like OUT of the computer equipment, while setting up a barrier to fraud. Petitioner's Memorandum of Law at 12.

Segal responds to Petitioner's assertion, urging that the ballots be counted in accordance with Mondello v Nassau County Board of Elections, 6 AD3d 18 [2nd Dept 2004]. She contends that Mondello stands for the proposition that "inadvertent marks, or in this case, inadvertent pieces of outside envelope, do not render a ballot void in whole or in part." Segal Post Hearing Memorandum at 10.

The Court finds no support in the record for Petitioner's assertions concerning the effect which a ballot with a small tear flap will have on voting machines. No testimony was adduced on that point and the Court will not speculate on what Petitioner contends is "axiomatic". Moreover, the fact that the Board of Elections may have to hand count certain ballots because of the transfer of glue from a poor quality envelope or an overzealous sealing of an envelope is not a ground to disenfranchise a voter. Stewart v Chautauqua, 14 NY3d at 148 (manual count of ballots that were "non-machine processable" was proper); see In re Cosgrove, 46 NYS2d 196, 197 [Sup Ct, Richmond County 1943](flap of envelope stuck against edge of ballot did not invalidate ballot), affd 267 AD 822 [2nd Dept 1944], affd on different issue 292 NY 115 [1944]. These voters' intentions are clear from the ballots and there are no marks or other extrinsic information which would cast doubt on their intentions. Moreover, the portions of the envelope which adhered to the back side of the ballots did not identify the voters.

Consequently, the Board of Elections is directed to count both of the ballots of A.L. (Bates # 297) and S.K. (Bates # 354).

Petitioner's Request for a New Election Based on Claimed Errors at the Polling Places and Affidavit Ballot of Voter D.A.

Petitioner seeks a new election under Election Law §16-102 based on what he contends were errors committed by poll workers who gave incorrect ballots to certain voters.[FN23] Petitioner asserts that errors so permeated the election as to warrant the Court directing a new election. Petitioner claims that the irregularities are "sufficiently large in number and are of such a nature to establish the probability that the election results would be changed absent the irregularities." Petitioner's Memorandum of Law at 13, citing Matter of Lisa v Board of Elections of the City of New York, 40 NY2d 911 [1976], and Fogarty v Wolf, 133 AD2d 794 [2nd Dept 1987].

In support of this contention, Petitioner offered the testimony of his brother, John Forman, voter J.C., both Elections Commissioners, and Timothy Malet ("Malet"), a Republican Party "machine coordinator".

J.C. testified that when he appeared at the firehouse to vote as an Independence Party voter, he asked for his ballot and observed a man (identity unknown) intercede and a poll worker with the statement "no, no, no, he's an Independence voter".

John Forman testified that he is Petitioner's brother and member of the Independence Party. [*23]He stated that he received a telephone call from a voter on primary day at approximately 11:00 a.m. in which he was told that the voter was concerned that the ballot he received did not include Petitioner as a candidate. As a result, Mr. Forman obtained an emergency certificate as a poll watcher and proceeded to the polling place.

Mr. Forman testified that while at the polling place, he observed two individuals who were initially given an incorrect ballot. The error for the first individual was corrected and, as far as Mr. Forman knows, the individual voted in the correct primary election held by the voter's party.

The second individual, a woman, now known as D.A., approached the table where the poll workers were seated and inquired why she had been given an incorrect ballot. According to Mr. Forman, the poll worker stated that it was her fault and apologized. A few minutes later, at the direction of the Commissioners, D.A. was permitted to vote by affidavit ballot. Petitioner seeks to have this vote counted in the Independence Party primary.

Haight and Soto both testified to having learned in the morning of Election Day that some poll workers were distributing incorrect ballots to voters. In response, they dispatched their training team to the polling sites to re-educate the poll workers. Soto testified that D.A. voted on the machine. Haight testified that, with respect to D.A., he believed that he and Soto had an agreement to count her affidavit ballot. Soto testified that the voter was issued an affidavit ballot merely to quell any possible disturbance and not because of any agreement to count the ballot.

Malet testified that in response to the report of possible irregularities in voting at polling places, he undertook to determine whether voters had, in fact, voted in the wrong primaries. To do so, he examined the records of the number of voters who checked in to vote at the polling places and compared that to the number of ballots cast in each primary. Having done so, Malet concluded that there were 24 fewer voters cast in the Independence Party primary than voters who checked in to vote in the Independence Party primary.

Petitioner also submitted affidavits from voters, J.E. (Exhibit 7), E.M. (Exhibit 8), R.S. (Exhibit 9), S.U. (Exhibit 10) and D.A. (Exhibit 11).[FN24] Each of these voters attested that he/she/they were members of the Independence Party and that on June 23, they were issued a ballot for the "Democractic" [sic] party and were instructed to vote that ballot.

The Court first addresses Petitioner's request that the Court direct the Board of Elections to count the affidavit ballot completed by D.A. based on the alleged error and Haight's purported agreement with Soto to count D.A.'s affidavit ballot. The Court rejects the request. Simply put, a voter is limited to one vote in an election. See Election Law § 17-132(3) (illegal to vote or attempt to vote more than once). To count D.A.'s affidavit ballot would, effectively, allow her to vote twice. To be sure, the Elections Commissioners lack any legal authority to allow a person to vote twice. That D.A. may have inadvertently voted in the Democratic primary rather than the Independence primary does not negate the fact that her ballot was cast and counted.

Next, addressing Petitioner's request for the Court to order a new election, Petitioner concedes that:

A new primary election may not be held unless the petitioner proves that the irregularities are sufficiently large in number and are of such a nature as to establish the probability that the election results would be changed absent the irregularity. Matter of Fogarty v Wolf, 133 [*24]AD2d at 795, citing Matter of Lisa v Board of Elections, 40 NY2d 911, and Matter of Henry v. Mahoney, 105 AD2d 1159 [4th Dept 1984].

The Court of Appeals in Matter of Lisa, supra, held that the fact that an election is mathematically close, is not sufficient to warrant a new primary on the basis of irregularities:

petitioner did not meet the burden of proving that the irregularities were of such a nature as to establish the probability that the result of the election would be changed by a shift in, or an invalidation of, the questioned votes. That burden is not sustained by a mere showing that the election was mathematically close. Lisa v Bd. of Elections of City of New York, 40 NY2d at 912.

Here, Petitioner asserts that, at most, 24 voters have been identified as having received an incorrect ballot. The testimony was that 467 ballots were cast, 495 voters checked in with 5 under votes and 3 over votes. Thus, fewer than 5% of those voters who checked in may have been given incorrect ballots. As of the time of the hearing, Petitioner was ahead by 72 votes. The claimed irregularities were not sufficiently large in number or of such a nature to establish the probability that the election results would be changed absent the irregularities. Pfoser v Larkin, 40 AD2d 605 [2nd Dept 1972], affd 31 NY2d 656 [1972]. To be sure, although it appears that errors occurred at multiple polling sites, there is no suggestion that the errors were anything other than innocent mistakes and, in any event, Petitioner has failed to prove that he is aggrieved by the outcome of the as yet concluded election count or that the errors would have made a difference in the outcome.

Under the circumstances, Petitioner's request for a new primary is denied in all respects.

SUMMARY

It is ORDERED that Petitioner's challenge to the care giver absentee ballots is rejected on the ground that the Court cannot consider the constitutionality of Election Law § 8-400(1)(b), which authorizes the issuance of such ballots, because Petitioner did not properly serve the Attorney General of the State of New York, as required by Executive Law § 71(3) and CPLR §1012(b). The Board of Elections is directed to count the following ballots: A.J. (Bates # 57), G.P. (Bates # 103), P.H. (Bates # 167), Y.S. (Bates # 257), J.S. (Bates # 265), H.D. (Bates # 345), H.D. (Bates # 351), L.F. (Bates #403), C.D. (Bates # 513), R.D. (Bates # 639), J.W. (Bates # 751) and C.S. (Bates # 855); and it is further

ORDERED that Petitioner's challenge to certain absentee ballots on the grounds that the absentee ballot application was incomplete or defective is granted in part and denied in part. The Board of Elections is directed to count the following ballots: L.W. (Bates # 205), M.N. Bates # 277), N.C. (Bates # 293), S.N. (Bates # 385), D.D. (Bates # 391), D.R. (Bates # 437), J.G. (Bates # 573), J.W., (Bates # 683), D.M. (Bates # 767), J.L. (Bates # 799), H.A. (Bates # 847), M.S. (Bates # 899), M.H. (Bates # 13), M.D. (Bates # 19), S.B. (Bates # 29), K.T. (Bates # 89), J.B. (Bates # 133); and it is further

ORDERED that Petitioner's challenge to certain absentee ballot applications as incorrect or premature (such as, that the application not specifying the election for which a ballot was sought, the application was unsigned, the postmark date was obscured) is granted in part and denied in part. The Board of Elections is directed to count the following ballots: B.K. (Bates # 251), R.C. (Bates [*25]# 607), and N.F. (Bates # 719); and it is further

ORDERED that Petitioner's challenge to ballots which were received by the Board of Elections on Election Day, rather than the day before, having been withdrawn at the hearing, the Board of Elections is directed to count the following ballots: K.S (Bates # 461), I.I. (Bates # 469), C.B. (Bates # 477), J.L. (Bates # 523), H.H. (Bates # 561), H.C. (Bates # 625), and K.I. (Bates # 761); and it is further

ORDERED that Petitioner's challenge to certain absentee ballots because the signatures on the ballot envelopes did not correspond to the signatures contained on the voter registration cards is granted in part and denied in part. The Board of Elections is directed to count the following ballots: J.M (Bates # 541), M.D.S. (Bates # 421), J.G. (Bates # 109), Z.A. (Bates # 307), R.S. (Bates # 813), J.C. (Bates # 615), N.C. (Bates # 155), J.V. (Bates # 217), C.C. (Bates # 233), B.D. (Bates # 789), J.M. (Bates # 505), R.N. (Bates # 329), M.C. (Bates # 369), E.G. (Bates # 449), K.G. (Bates # 869), M.P. (Bates # 563), and J.M. (Bates # 497); and it is further

ORDERED that Petitioner's challenge to certain ballots on the basis that the voter did not sign the oath on the ballot envelope is denied in its entirety. The Board of Elections is directed to count the following ballots: N.C. (Bates # 160), R.C (Bates # 274), T.M. (Bates # 288), K.M. (Bates # 517), D.P. (Bates # 592), K.M. (Bates # 650), T.L. (Bates # 662), G.E. (Bates # 716), and L.M. (Bates # 866); and it is further

ORDERED that Petitioner's challenge to certain ballots on the ground that they are "mutilated" because the ballot was inadvertently glued to the envelope during the sealing of the envelope is denied in its entirety. The Board of Elections is directed to count the following ballots: A.L. (Bates # 297) and S.K. (Bates # 354); and it is further

ORDERED that Petitioner's request for a new primary election is denied in all respects.

The foregoing shall constitute the Decision and Order of the Court. All arguments, including those not specifically referred to herein, have been considered.

Dated: August 12, 2020

New City, NY

ENTER:

________________________

HON. PAUL I. MARX

Justice of the Supreme Court Footnotes

Footnote 1:Peter Forman is a Judge of the County Court of Dutchess County serving out the remainder of his current term and running for reelection to that position.

Footnote 2:Petitioner's Memorandum of Law states that the challenge is to "Chapter 165, New York Laws of 2009". That chapter of the session law does not address the care giver statute.

Footnote 3:Petitioner withdrew the following objections: M.D. (Bates # 19), M.B. (Bates # 68), D.K. (Bates # 703), M.M. (Bates # 783) and C.R. (Bates # 807) at the hearing.

Footnote 4:Voters are identified by initials and, where applicable, Bates stamp number of the Board of Elections document which appears first applicable to them in Petitioner's Exhibit 1.

Footnote 5:Exhibit 4 reflects that there are 56 such challenges.

Footnote 6:These documents were original records of the Board of Elections which must be returned to it. The original records were produced because of Petitioner's claim that the absentee ballot application or envelope was altered or mutilated.

Footnote 7:The careful reader will note that Board Exhibits C, D, and F have not been identified. This is because Petitioner's counsel withdrew the proffered documents after they were already marked into evidence.

Footnote 8:The Court asked the parties to brief the burden of proof applicable to Petitioner's challenges. Petitioner asserted that the burden of proof, "[a]s in most any other civil proceeding is a preponderance of the evidence." Petitioner's Memorandum of Law at 3. Petitioner contended that the higher burden of proof of clear and convincing evidence was not applicable because he has not alleged fraud or fraudulent practices. Attempting to cast petitioner's challenges to the absentee ballot signatures as constituting claims of forgery, Segal argued that Petitioner must show by clear and convincing evidence that the signatures on the ballots were forged. Segal skirts the issue regarding petitioner's other challenges. As petitioner did not allege fraud in his Petition or at the hearing, the Court finds that the burden of proof by clear and convincing evidence is not applicable to petitioner's challenges. Instead, the burden of proof by a preponderance of the evidence must be shown. In any event, the burden squarely rests on Petitioner to show that the challenged ballots should not be counted on the various grounds he alleged in his Petition.

Footnote 9:The parties all served their memoranda timely. Petitioner's counsel emailed his memoranda to opposing counsel and the Court's Assistant Law Clerk prior to the 4:00 p.m. deadline. However, Petitioner did not efile his memoranda until 10:25p.m. on August 5, 2020. NYSCEF Doc. # 22. Notwithstanding that the filing occurred late, the Court has considered the papers in the interests of justice and because no party was prejudiced by the late filing.

Footnote 10:Petitioner incorrectly identified the Chapter of the Laws of 2009 as Chapter 165, which concerned military voting and did not address care givers.

Footnote 11:The additional objection to this voter's address allegedly not being a place of residence was rejected at the hearing.

Footnote 12:This challenge was withdrawn at the hearing.

Footnote 13:The Court's ruling on each challenge is stated below the heading "Determination:", which appears just below the line identifying the voter, the document number and the challenge.

Footnote 14:As set forth on Exhibit 4.

Footnote 15:Voter J.M. signed the ballot envelope with a mark sufficiently similar to the mark on the absentee ballot application to require the ballot to be counted. The voter is 80 years old and the mark was witnessed.

Footnote 16:Voter M.D.S. submitted an affidavit attesting to her signature. (Exhibit B).

Footnote 17:Voter C.C. submitted an affidavit attesting to her signature. (Exhibit A).

Footnote 18:Voter J.M. submitted an affidavit attesting to his signature. (Exhibit C).

Footnote 19:Segal's Post Hearing Memorandum indicates that she believes Forman has only challenged 8 voters on this basis. Exhibit 4 and Forman's Memorandum of Law clearly reflects a challenge to 9.

Footnote 20:Voter T.M. (Bates # 288) signed both lines.

Footnote 21:In an apparent typographical error, Petitioner refers to himself as "respondent candidate" and states that he "opposes validation". Page 11 of Petitioner's Memorandum of Law. That statement is incorrect. Respondent candidate Segal supports validation of the ballots. Petitioner candidate Forman opposes.

Footnote 22:Incorrectly referred to in Petitioner's Memorandum of Law as Bates # 86.

Footnote 23:Apparently wishing to hedge his bets, Petitioner seeks this relief only if "Petitioner be trailing in the canvas of votes". Memorandum of Law at 13.

Footnote 24:The affidavits were accepted into evidence by stipulation of the parties.