Opinion
2007-7797.
Decided December 6, 2007.
Joseph Cote, Esq., Cote, Limpert Van Dyke, LLP, Attorneys for Petitioner George P. Alessio, Syracuse, NY.
Jeffrey T. Buley, Esq., Attorney for Respondent Paul G. Carey, Albany, NY.
Joanna Gozzi, Esq., Anthony P. Rivizzigno, Onondaga County Attorney, Attorneys for Onondaga County Respondents, Onondaga County Department of Law, Syracuse, NY.
By order to show cause dated November 21, 2007 and signed by Justice James Murphy, petitioner George P. Alessio sought court examination of seven disputed absentee ballots cast in the November 6, 2007 general election for the office of town justice in the Town of Salina. Petitioner in the order to show cause also sought a "preliminary injunction affording the relief requested in Plaintiff's Motion," which this court construes as the relief requested in Alessio's verified petition filed on November 21, 2007. The petition seeks the following relief: (1) a judicial determination that seven disputed ballots are valid; (2) an order directing the Board of Elections to recanvass returns in the election of Salina town justice to include seven disputed ballots; and (3) an order directing correction of any statement by the Board of Elections to include seven disputed ballots as valid ballots. Respondent Paul G. Carey field a verified answer to the petition but no cross-petition.
An evidentiary hearing took place on November 30, 2007. At that time, counsel for petitioner amended the petition to clarify that Alessio sought a judicial determination regarding the validity of the seven disputed ballots but not a ruling that all seven were valid.
Justice Murphy on December 3, 2007 signed an amended order to show cause in this matter. Among other things, the amended show cause order nunc pro tunc allowed service of the original order to show cause, petition and supporting papers upon Carey by personal service on or before November 28, 2007. In an amended answer verified on December 3, 2007, respondent Carey asserted two cross-claims.
II. Facts
Petitioner George P. Alessio was the Democratic and Working Families candidate for the office of Salina town justice in the November 6, 2007 general election. Respondent Paul G. Carey was the Republican, Conservative and Independence candidate for the same office.
Acting in their capacity as Board of Elections commissioners, Respondents Helen M. Kiggins and Edward J. Szczesniak, oversaw the canvass of absentee ballots in the town justice race. During that process, elections inspectors ruled that seven ballots were invalid. These ballots were not included in the final vote totals. Petitioner's representatives objected to the ruling. Five of the seven ballots cast votes for Alessio and the other two cast votes for Carey.
Petitioner contends that the Board of Elections intended to declare Carey the winner of the Salina town justice race by a two-vote margin out of nearly 9,000 votes cast. The original and amended orders to show cause enjoined respondents from certifying the result of the election or taking any action to alter the status quo pending the outcome of this proceeding.
Alessio's petition does not seek court action with respect to three affidavit ballots described in petitioner's supporting affidavits as unopened and uncounted. The Board of Elections opened the affidavit ballots pursuant to Justice Murphy's oral order on or about November 21, 2007. Two votes were for Carey and one was for Alessio. In his amended answer, Carey asserted a cross-claim seeking a declaration that these three affidavit ballots are valid and should be counted.
Although counsel for the county respondents participated in the November 30, 2007 evidentiary hearing, the county submitted no papers in these proceedings. Counsel for the county respondents stated that they oppose Alessio's petition and Carey's cross-claims because the actions of the Board of Elections and its two commissioners were consistent with law.
III. Discussion
A. Personal jurisdiction over respondent Carey
During the evidentiary hearing, counsel for respondent Carey for the first time clarified the basis for his first affirmative defense claiming a lack of personal jurisdiction. Specifically, Carey argued that petitioner failed to effect proper service of the original order to show cause pursuant to CPLR Section 308(2) because the mailing to Carey's actual place of business did not include the legend "personal and confidential" on the envelope.
The original order to show cause required that service on respondents be made pursuant to CPLR § 308 on or before November 23, 2007. Petitioner chose to serve respondent Carey pursuant to Section 308(2). An affidavit of service sworn to on November 21, 2007 and filed on November 29, 2007 demonstrates that petitioner timely served the required papers on a person of suitable age and discretion at Carey's actual place of business. Section 308(2) required that petitioner then mail the papers to Carey within twenty days. An affidavit of service sworn to on December 3, 2007 and filed on the same date states that petitioner sent the follow-up mailing on November 30, 2007 and that the envelope bore the required "personal and confidential" legend. Petitioner thus complied with the service requirements of the order to show cause, and this court has personal jurisdiction over respondent Carey.
Justice Murphy amended his order to show cause nunc pro tunc to allow a different method of service. The amended order to show cause required personal service upon Carey on or before November 28, 2007. Respondent's Exhibit 2 is an affidavit of service sworn to on November 28, 2007 and filed on November 29, 2007 showing personal service upon Carey on November 28, 2007. Petitioner also complied with the service requirements of the amended order to show cause.
B. Scope of judicial authority and burden of proof
Section 16-100 of New York Election Law vests the Supreme Court with jurisdiction "to summarily determine any question of law or fact arising as to any subject set forth in this article, which shall be construed liberally." NY Elec. Law § 16-100(1). Section 16-106(4) of the Election Law gives the court power to "direct a recanvass or the correction of an error, or the performance of any duty imposed by law on such a . . . county . . . board of [election] inspectors." NY Elec. Law
§ 16-106(4). The court's powers in a summary proceeding under Article 16 include determination of the validity of protested or rejected absentee or paper ballots. Delgado v. Sunderland, 97 NY2d 420, 423 (2002).
Election results are entitled to a presumption of regularity, and a party who attempts to impeach those results carries the burden of proof.Panio v. Sunderland , 14 AD3d 627, 630-31 (2nd Dep't 2005), aff'd, 4 NY3d 123 (2005); see also Ruffo v. Margolis, 61 AD2d 846 (3rd Dep't 1978).
C. Status of the seven disputed absentee ballots
Section 9-112(1)(d) of the Election Law governs the validity of the seven disputed ballots. The statute states that the whole ballot is void if the voter "makes any mark thereon other than a cross X mark or a check V mark in a voting square, or filling in the voting square, or punching a hole in the voting square of a ballot intended to be counted by machine . . . except that an erasure or mark other than a valid mark made in a voting square shall not make the ballot void, but shall render it blank as to the office, party position or ballot proposal in connection with which it is made." NY Elec. Law § 9-112(1)(d). The statute defines voting square to "include the voting space provided for a voter to mark his vote for a candidate or ballot proposal." Id. § 9-112(1).
Case law in the Fourth Department holds that "[m]arks made unintentionally,' through inadvertence,' or accidently,' as distinguished from those intentionally made, do not invalidate the ballot." O'Shaughnessy v. Monroe County Bd. of Elections, 15 AD2d 183, 190 (4th Dep't 1961); see also People v. Karns, 176 A.D. 330, 338 (4th Dep't 1917) (upholding consideration of ballots that contain irregular marks made by the voter unintentionally). On the other hand, "extraneous marks outside of the voting squares" for specific offices invalidate the entire ballot. Boudreau v. Catanise, 291 AD2d 838, 839 (4th Dep't 2002). See also Kolb v. Casella, 270 AD2d 964 (4th Dep't 2000) (holding that entire ballot is invalid where "voter improperly marked the ballot outside the voting square"). While the Fourth Department case law does not further define an "extraneous" or "improper" mark, the Second Department describes extraneous marks as those "that could serve to distinguish the ballot or identify the voter." Brilliant v. Gamache , 25 AD3d 605 , 606 (2nd Dep't 2006).
The court applies these principles to the seven disputed ballots marked as exhibits during the evidentiary hearing.
A copy of the disputed ballots can be found in the Appendix.
Petitioner's Exhibit 4 is a ballot containing two faint pen marks in the lower left-hand margin of the ballot. The marks are outside of any voting square. While respondent characterizes these marks as an intentional "X," the court finds that the two marks which do not touch each other appear to have been made through inadvertence. The marks in no way distinguish the ballot or identify the voter, so the entire ballot is valid.
Petitioner's Exhibit 5 is a ballot in which the voter's marks in several voting squares crossed over into adjacent voting squares. In the "Councilor" column, this voter made marks in two voting squares. The invalid marks in the voting squares render the ballot blank only as to specific offices. See Carney v. Davignon, 289 AD2d 1096 (4th Dep't 2001). There are no invalid marks in the "Town Justice" column, so this ballot is valid as to that office.
Petitioner's Exhibit 6 is a ballot in which the voter tried to cross out a vote for the office of district attorney and wrote the word "error" on the ballot outside of a voting square. The entire ballot is invalid. See Mondello v. Nassau County Bd. of Elections , 6 AD3d 18 , 25 (2nd Dep't 2004).
Petitioner's Exhibit 7 is a ballot in which the voter filled in an extra oval in the voting square for the proposal question. The ballot is blank only as to the proposal question. The ballot is valid with respect to the other offices, including the town justice office.
Petitioner's Exhibit 8 is a ballot in which the voter drew a box around the phrase "civilian absentee and military voter's ballot" on the back of the paper ballot. This is an intentional mark and an extraneous mark outside a voting square, so the entire ballot is invalid.
Petitioner's Exhibit 9 is a ballot in which the voter drew circles around the candidates' names in the voting squares. In all but two columns, including the column for the office of town justice, the voter circled the same names in more than one voting square, e.g., the voter circled the same name on both the Independence and Conservative lines. Circles are not valid X or check marks in the voting square, nor are they a proper way to fill in the voting square. NY Elec. Law § 9-112(1)(d); see also Minick v. Scranton, 145 Misc 2d. 1006, 1008 (Saratoga Co. 1989). The invalid marks are within voting squares, rendering the votes for those particular offices blank. In this case, the entire ballot is invalid because the votes for every office are blank.
Petitioner's Exhibit 10 is a ballot in which the voter made a mark over the party symbol in the voting square rather than in the oval in the voting square. In addition, in the column for the office of town justice, the voter's mark crossed into both Carey's and Alessio's voting squares. The marks are not valid X or check marks in the voting squares, nor are they a proper way to fill in the voting square. The invalid marks are within voting squares, rendering the votes for those particular offices blank. In this case, the entire ballot is invalid because the votes for every office are blank.
D. Status of three affidavit ballots
The petition did not seek action with respect to the three affidavit ballots, and respondent Carey initially filed no cross-petition seeking a judicial determination regarding the ballots. During the hearing, counsel for petitioner confirmed that petitioner did not seek to disturb a ruling by the Board of Elections that the three affidavit ballots were invalid. In his amended answer, respondent Carey asserted a cross-claim stating that "[t]he affidavit ballots from Town of Salina Election District #11 that were invalidated by the respondent Board of Elections should be validated because any extrinsic material found in the ballot was either placed there by an election inspector or at the direction of an election inspector." Am. Ans. ¶ 6.
With respect to the three affidavit ballots, respondent Carey bears the burden to demonstrate that a ministerial error of the board of elections or its employees caused the three affidavit "ballots envelopes not to be valid on [their] face." NY Election Law § 16-106. "As used in this context, the phrase ministerial error' suggests a clerical or other inconsequential mistake." Panio, 14 AD3d at 631.
On the record in this proceeding, the Court cannot conclude that a ministerial error is present without resorting to speculation. First, the only portion of the affidavit ballots moved into evidence were the affidavit ballot envelopes that were received as Court Exhibits I, II and III. Second, Election Commissioner Helen Kiggins testified that the affidavit ballots were not canvassed because they were delivered in sealed and unsigned emergency ballot envelopes that, in turn, were sealed in affidavit ballot envelopes. Although Commissioner Kiggins testified that the emergency ballot envelopes are generally kept behind the table at which the election inspectors are seated, she had no personal knowledge of where the emergency ballots envelopes at issue were kept. Moreover, the testimony did not establish who included the emergency ballot envelopes with the affidavit ballots in the affidavit ballot envelopes.
In any event, the act of including extraneous materials in affidavit ballot envelopes is not inconsequential. Pursuant to Section 9-112(a) of the Election Law, "[t]he whole ballot is void if the voter (a) does any act extrinsic to the ballot such as enclosing any paper or other article in the folded ballot." NY Elec. Law § 9-112(a). Enclosure of the unsigned emergency envelope was an act extrinsic to the three affidavit ballots and, further it presents a risk that the voters could be identified. Thus, respondent's first cross-claim is denied.
IV. Conclusion
Based on the foregoing, the court finds that the Board of Elections improperly disregarded the votes for the office of town justice on the ballots designated as Petitioner's Exhibits 4, 5, and 7. The Board of Elections is directed to recanvass the ballots for the office of Salina town justice to correct these errors and count these three ballots.
Counsel for petitioner is directed to submit an order on 15 days' notice in accordance with this decision.