Opinion
Index Nos. EF 008252-2023 EF 008275-2023
12-08-2023
In the Matter of the Application of GEORGE SERRANO Candidate-Aggrieved, v. NEIL MEYER ORANGE Respondent-Candidate, and COUNTY BOARD OF ELECTIONS, by LOUISE VANDEMARK and COURTNEY CANFIELD GREENE, CONSTITUTING COMMISSIONERS, Respondents. In the Matter of the Application of NEIL MEYER Petitioner, v. GEORGE SERRANO, Respondent-Candidate, COURTNEY CANFIELD and LOUISE VANDEMARK, as Commissioners of the Orange County Board of Elections, Respondent-Board for an Order pursuant to the Election Law.
Unpublished Opinion
DECISION & ORDER
DAVID S. ZUCKERMAN, J. S. C.
The papers in NYSCEF numbered 1 to 9 under Index Number EF008252-2023 and 1 to 12 under Index Number EF008275-2023 were considered in connection with these two motions. Each party opposes the other's motion. On its own motion, the court has consolidated the two for disposition.
The motions are brought by Order to Show Cause.
RELEVANT FACTS AND PROCEDURAL HISTORY
Movants George Serrano ("Serrano") and Neil Meyer ("Meyer") were candidates for the position of Wallkill Town Supervisor in the November 7, 2023 General Election. Respondents Louise Vandemark and Courtney Canfield Greene are the two Commissioners of the Orange County Board of Elections ("the Commissioners").
After canvassing the ballots, the Commissioners determined that each candidate received 1,910 votes. On November 27, 2023, the Commissioners conducted a manual recount (see Election Law § 9-208[4]) resulting in Serrano receiving 1,910 votes and Meyer 1,908. Three paper ballots were set aside as disputed.
Prior to oral argument on these two motions, Serrano withdrew an objection to one of the three contested ballots. It was counted as cast for Meyer.
On November 29, 2023, Serrano filed a Petition and proposed Order to Show Cause. In the Order to Show Cause, the relief sought includes an Order
"(1) Requiring the Respondent Board of Elections to validate and order the canvassing of the a (sic) ballot that has been set aside following an objection wherein the vote was cast by the voter manifesting his or her intent by way of marking an "X" in the ballot square for Petitioner George Serrano (and consistently making such mark throughout the ballot in other races) on the Republican Party line for the public office of Wallkill Town Supervisor in the November 7, 2023 General Election; and
(2) Restrain the Respondent Board of Elections from canvassing a ballot that has been set aside following an objection wherein the voter intentionally wrote extrinsic identifying marks, more specifically a name, in three distinct places at the top / margin of the ballot, rendering the ballot invalid in toto by operation of law, while purporting to cast a vote for Respondent Neil Meyer, on the Democratic Party line for the public office of Wallkill Town Supervisor in the November 7, 2023 General Election" (Serrano Order to Show Cause, p. 2).
On November 30, 2023, Meyer also filed a Petition and Order to Show Cause. In the Order to Show Cause, the relief sought includes an Order
"1. Declaring the contested ballot in the November 7 2023 General Election set aside by the Respondent BOARD which failed to show a vote for the public office of Supervisor of the Town of Walkill (sic) should not be counted for said office (WKL/001/002 as set forth in the Petition); and
2. Declaring that the two candidates in the November 7, 2023 General Election for the public office of Supervisor of the Town of Walkill each received 1910 votes as shown on the original canvass by Respondent Board"(Meyer Order to Show Cause, p. 1). On December 8, 2023, the court entertained oral argument.
At issue here are two paper ballots. In the first ("Exhibit 1"); the parties disagree on whether the entry on the ballot is an X intended to be a vote for Serrano or merely a stray mark. The Commissioners disagreed on whether the first ballot properly shows a valid vote for Supervisor. In the second ("Exhibit 2"), the parties disagree about the impact of certain markings located on the ballot. Serrano characterizes these markings as written entries where "the voter wrote his name in three spaces at the top margins of the ballot above any row containing candidate's names" (Memorandum of Law, p. 4) while Meyer denominates them simply as "marks" (Answer, p. 2) . Although the Commissioners agreed that the ballot indicated a vote for Meyer, they disagreed on whether it should be counted.
At oral argument, Meyer suggested that the mark represented initials.
CONTENTIONS OF THE PARTIES
Serrano first argues that Meyer's Petition must be summarily dismissed "based on the first filed rule" (Memorandum of Law, p. 6) and for failure to name the Orange County Board of Elections as a necessary party. Serrano also argues that the first ballot includes an "X" in the ballot square next to his name.
Consequently, it must be counted as a vote for him. Finally, Serrano argues that the second ballot contains "a name, written in three distinct places at the top/margin of the ballot, rendering the ballot invalid in toto, by operation of law" (Serrano Petition, p. 5) .
Meyer argues that the mark, on the first ballot does not indicate a vote for supervisor, characterizing it as "a stray mark or initial" which does not "resemble either a cross "x" mark or a check V mark in the voting square" (Answer, p. 2). Meyer argues that the challenged marks on the second ballot are "in the voting square for another office" (id). Consequently, they do not invalidate the vote for Meyer.
The Orange County Board of Elections and the Commissioners appeared by counsel. They have not, however, submitted any papers in connection with these two motions.
DISCUSSION
Pursuant to Election Law § 16-606,
1. The post-election refusal to cast: (a) challenged ballots, blank ballots, or void ballots; (b) absentee, military, special, or federal write-in ballots; (c) emergency ballots; and (d) ballots voted in affidavit envelopes may be contested in a proceeding instituted in the supreme or county court, by any candidate or the chairman of any party committee, and by any voter with respect to the refusal to cast such voter's ballot, against the board of canvassers of the returns from such district, if any, and otherwise against the board of inspectors of election of such district. 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, including 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.
Consequently, in these two actions, the 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" (Delgado v Sunderland, 91 N.Y.2d 420, 423 [2002] quoting Matter of Corrigan v Board of Elections of Suffolk County, 38 A.D.2d 825, 827, affd without op 30 N.Y.2d 603 [1972]; Skartados v Orange County Bd. of Elections, 81 A.D.3d 757 [2d Dept 2011]). If the Board of Elections is deadlocked on whether to cast or refuse to cast a ballot, the Supreme Court is authorized to make that determination (Ragusa v Bd. of Elections in City of New York, 57 A.D.3d 807 [2d Dept 2008]).
"It is well settled that the results of an election are entitled to a presumption of regularity and that a party attempting to impeach these results carries the burden of proof" (Stevenson v Nine, 35 A.D.2d 121, 123 [1st Dept 1970] affd sub non. Stevenson v Power, 21 N.Y.2d 152 [1970] quoting Ippolito v Power, 22 N.Y.2d 594, 600 [1968]). Generally, Petitioners have the burden of proving that alleged voting irregularities were of such nature as to establish probability that the result of the election would be changed by a shift in, or invalidation of, questioned votes (Lisa v Bd. of Elections of City of New York, 40 N.Y.2d 911, 912 [1976]). Where multiple ballots are challenged, "each ballot must be examined and considered individually and not in comparison to other ballots" (Nicolaysen v D'Apice, 100 A.D.2d 501, 502 [2d Dept 1984]).
1. The First in Time Rule
As the Court of Appeals instructs, "[i]t has always been the rule that proceedings begun in another state should not be interfered with unless there is some, necessity clearly shown * * *. Generally the court which has first taken jurisdiction is the one in which the matter should be determined and it is a violation of the rules of comity to interfere" (City Trade &Indus., Ltd. v New Cent. Jute Mills Co., 25 N.Y.2d 49, 58 [1969] citing H. M. Hamilton &Co. v American Home Assur. Co., 21 A.D.2d 500, 506 [1st Dept 1964]; Seneca Specialty Ins. Co. v T.B.D. Cap., LLC, 143 A.D.3d 971 [2d Dept 2016]). Known as the first in time rule, it applies equally to actions initiated in different counties within the state.
Oddly, Serrano seeks dismissal of Meyer's Petition, pursuant to the first in time rule, solely in an affirmation and memorandum of law. "The moving papers generally consist of three items: (1) a notice of motion or order to show cause; (2) affidavits and affirmations with exhibits; and (3) a memorandum of law" (David D. Siegel, New York Practice § 246 [6th ed 2018]). Pursuant to CPLR 2214 (a),
Notice of motion. A notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor.
Pursuant to 22 NYCRR 202.7 (a),
There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless there have been served and filed with the motion papers (1) a notice of motion ...
Here, Serrano failed to file a Notice of Motion. Therefore, Serrano's "motion" to dismiss Meyer's Petition must be summarily denied.
Moreover, other than general recitation of the first in time rule, Serrano fails to indicate the statutory basis for dismissal. Typically, the first in time rule is cited in support of a motion, pursuant to CPLR 3211(a) (4), due to "another action pending between the same parties for the same cause of action." Serrano, however, fails to so indicate. Without a Notice of Motion, the court will not speculate as to the legal basis for Serrano's application. Therefore, Serrano's "motion" must be summarily denied.
In addition, both actions were filed in the same court. Consequently, it is questionable whether the first in time rule has any application at all (Roberts v. 112 Duane Assocs. LLC, 32 A.D.3d 366, 368 [1st Dept 2006][The rule "is most frequently applied where the other actions have been commenced in other jurisdictions, thus implicating considerations of comity and raising questions of forum shopping"]) . Since the rule provides that "the court which has first taken jurisdiction is the one in which the matter should be determined" (Syncora Guar. Inc. v. J.P. Morgan Sec. LLC, 110 A.D.3d 87, 95 [1st Dept 2013] [internal quotation marks omitted]), it would not apply here because both actions are before the same court.
Finally, a common exception to the first in time rule is "where competing actions have been commenced 'reasonably close in time' to one another" (Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v Jordache Enterprises, Inc., 205 A.D.2d 341, 343 [1st Dept 1994] quoting Flintkote Co. v Am. Mut. Liab. Ins. Co., 103 A.D.2d 501, 505 [2d Dept 1984), affd, 61 N.Y.2d 857 [1986]). Here, the actions were filed, at most, within one day of each other. Consequently, the first in time rule does not apply. Therefore, Serrano's "motion" must be denied. In any event, any potential prejudice was obviated when the court, sua sponte, consolidated the two pending motions for disposition.
2. Failure to Name a Necessary Party
"The absence of a necessary party may be raised at any stage of the proceedings, by any party or by the court on its own motion" (Migliore v. Manzo, 28 A.D.3d 620, 621 [2d Dept 2006]). "A party is defined as 'necessary' when his or her presence is needed for complete relief to be accorded between persons who are parties to the action or who might be inequitably affected by a judgment in the action" (Hon. Mark C. Dillon, Practice Commentaries, McKinney's Cons Laws of NY, C3211:32).Oddly, Serrano argues that Meyer's Petition must be dismissed, due to the absence of a person who should be a party, solely in an affirmation. As set forth above, Serrano's failure to submit a Notice of Motion is fatal to an application. Here, Serrano failed to file a Notice of Motion. Therefore, the "motion" must be summarily denied.
Serrano's simultaneously filed Memorandum of Law is silent on the issue.
Moreover, as with the application pursuant to the first in time rule, other than general recitation of the principle, Serrano fails to indicate the basis for the dismissal. Notwithstanding, the court notes that CPLR 3211(a)(10) provides for dismissal of a proceeding "in the absence of a. person who should be a party" (see also CPLR 1003). Serrano argues that Meyer's Petition must be dismissed because it "failed to name a necessary party - the Orange County Board of Elections" (Affirmation, p. 3) . Not only does Serrano fail to cite the applicable statute, it completely fails to cite any support for this argument.
Notwithstanding, the court notes that "failure to join a necessary party to an election law proceeding requires dismissal of a petition" (Quis v Putnam Cnty. Bd. of Elections, 22 A.D.3d 585, 586 [2d Dept 2005]). With respect to Boards of Elections generally, they are necessary in any election law action where they are responsible for the conduct of the underlying election (Castracan v Colavita, 173 A.D.2d 924 [3d Dept 1991] app dismissed 78 N.Y.2d 1041 [1991]). In an action similar to these, joinder of the County "Commissioners of Elections . . . who together constitute the Board . . . was' unquestionably proper" (Gage v Hammond, 309 A.D.2d 1061 [3d Dept 2003]). That is exactly what Meyer did here.
In addition, in Meyer's Petition, the caption includes the following language: COURTNEY CANFIELD and LOUISE VANDEMARK, as Commissioners of the Orange County Board of Elections, Respondent-Board
Clearly, the two election commissioners are specifically named as parties. Moreover, collectively, they are denominated the "Respondent-Board;" clearly referencing the Orange County Board of Elections printed directly above. Finally, since the motions are consolidated, and Serrano included the Orange County Board of Elections as a Respondent in its Petition, that entity is a party to the consolidated action. Consequently, the action includes the Orange County Board of Elections. Therefore, Serrano's "motion" to dismiss Meyer's Petition due to the absence of a person who should be a party must be denied.
Serrano specifically consented to consolidation in the event the court did not dismiss Meyer's Petition.
3. Ballot Markings (Exhibit 1)
With respect to stray marks on a ballot, pursuant to Election Law § 9-112,
1. The whole ballot is void if the voter (a) does any act extrinsic to the ballot such as enclosing any paper or other article in the folded ballot or (b) defaces or tears the ballot except that a ballot card which is in perforated sections shall not be void because it has been separated into sections or (c) makes any erasure thereon or (d) makes any mark thereon other than a cross X mark or a check V mark in a voting square, or filling in the voting square, or (e) writes, other than in the space provided, a name for the purpose of voting; except that an erasure or a mark other than a valid mark made in a voting square shall not make the ballot void, but shall render it blank as to the office, party position dr ballot proposal in connection with which it is made. No ballot shall be declared void or partially blank because a mark thereon is irregular in form. The term "voting square" shall include the voting space provided for a voter to mark his or her vote for a candidate or ballot proposal.
2. A cross X mark or a check V mark, made by the voter, in a voting square at the left of a candidate's name, or the voter's filling in such voting square, shall be counted as a vote for such candidate.
The statute mandates that determination of the validity of a ballot challenged for having extraneous or stray marks "involves a determination of whether certain marks thereon are 'inadvertent' as opposed to 'distinguishing' or 'identifying'" (Franke v McNab, 73 A.D.2d 679 [2d Dept 1979]; Nicolaysen v D'Apice, supra). The Second Department has held that, absent allegations that disputed ballots were marked by the voters with fraudulent intent, "these provisions should be interpreted liberally" (Mondello v Nassau Cnty. Bd. of Elections, 6 A.D.3d 18, 23 [2d Dept 2004]; compare Williams v Rensselaer Cnty. Bd. of Elections, 98 A.D.2d 938 4th Dept 1983), affd sub nom. Quinn v. Tutunjian, 61 N.Y.2d 730 [1984]). Consequently, although markings on certain ballots may not strictly comport with the instructions for marking the ballot, they must be counted because "they clearly represented each voter's choice" (Kelley v Lynaugh, 112 A.D.3d 862, 863 [2d Dept 2013]) . Likewise, ballots on which a voter failed to include an X, or check mark must be counted even though they technically violated the ballot instructions because "the candidate whom the voter' intended to select was clear" (Rosenblum v Tailman Fire Dist., 117 A.D.3d 1064, 1066 [2d Dept 2014]). In contrast, marks which constitute written words render the entire ballot invalid (Mondello v Nassau Cnty. Bd. of Elections, supra; Young v. Fruci, 112 A.D.3d 1138 [3d Dept 2013]).
Similarly, a stray mark located outside a voting square invalidates an entire ballot (Brilliant v Gamache, 25 A.D.3d 605 [2d Dept 2006] Iv denied 6 N.Y.3d 783 [2006]). A voting square includes "the voting space provided for a voter to mark his vote" (Election Law §9-112 [1]). The term voting square, however, is not limited to "the small box in the corner of the square containing the candidate's name. A check or cross mark placed in the larger square containing a candidate's name does not invalidate the vote for the candidate" (Mondello v Nassau Cnty. Bd. of Elections, supra at 24). Finally, as clearly set forth in the statute, "a mark other than a valid mark made in a voting square shall not make the ballot void, but shall render it blank as to the office, party position or ballot proposal in connection with which it is made" (Election Law §9-112[1]). Notwithstanding, in Carola v Saratoga Cnty. Bd. of Elections, 180 A.D.2d 962, 965 [3d Dept 1992]), the court held "we agree with Supreme Court's rejection of petitioner's challenge to an absentee ballot containing what he describes as 'an indistinguishable scribble' rather than 'a cross X mark or a check V mark' (Election Law § 9-112 [1]) in respondent's voting square."
Here, Serrano urges the court to find that the voter manifested "his or her intent by way of marking an "X" in the ballot square for Petitioner George Serrano" (Serrano Petition, p. 4) . Meyer argues that the only entry is "a stray mark on the ballot" (Meyer Petition, p. 2) . Consequently, the "ballot does not bear a vote for supervisor" (id).
Upon review of the ballot, the relevant marking is similar to the voting entries on either side of it. Consequently, based upon examination of the specific marking and the others on the ballot, the court finds that the marking is an "X" in Serrano's voting square. Therefore, the ballot must be counted as a vote for Serrano.
4. Names Written on the Ballot in the Margin
With respect to a voter writing a name on the ballot, in addition to the provisions of Election Law § 9-112, 9NYCRR 6210.13 provides:
(a) The following general standards shall apply in the counting of all ballots and votes, regardless of the voting system used:
(1) A ballot that is marked or signed by the voter in such a way that it can be identified from other ballots must be voided and none of its votes counted. Examples of such markings include, but are not limited to: voter signature, initials, voter name and address, voter identification number, messages or text, or unusual markings not related to indication of the vote choice for a contest. If there are distinctly identifiable markings on one page of a multiplepage ballot, the entire ballot must be voided.
Generally, written words deliberately placed on the ballot by the voter voids the entire ballot (Mondello v Nassau Cnty. Bd. of Elections, supra). Thus, in Smajic v Oneida Cnty. Bd. of Elections, 66 A.D.3d 1529 [4th Dept 2009]), the court invalidated four ballots because the voters had written their names on them. In Brilliant v Gamache, supra at 606-07, however, the court held that "extraneous marks on ballots that could serve to distinguish the ballot or identify the voter, as opposed to inadvertent marks, will render a ballot blank as to the relevant office if the mark is confined to the voting square pertaining to that office, or render a ballot invalid as a whole if the mark appears outside of the voting square".
Here, the ballot is cast for Meyer but contains handwritten ballot entries of the same name in three boxes. The boxes are on the top (Democratic Party) line of the ballot and in columns other than the one for Supervisor. The three boxes are otherwise empty; i.e., there are no preprinted words or voting ovals in any of them. Serrano argues that the entries invalidate the entire ballot while Meyer argues that they only invalidate the votes for those three elections. Consequently, determination turns on whether the boxes containing the handwritten names are voting squares.
There is no other mark in any of those three columns.
Pursuant to Election Law §112(1)(d),
The term "voting square" shall include the voting space provided for a voter to mark his or her vote for a candidate or ballot proposal.(see also Alessio v Carey, 49 A.D.3d 1147 [4th Dept 2008]).
Here, other than the handwritten entries, the three relevant squares are totally blank. A voter could not cast a vote by marking them. Consequently, they are not "the voting space provided for a voter to mark his or her vote;" i.e., they are not voting squares. Since the three handwritten entries are not in voting squares, pursuant to Election Law § 9-112(1), the entire ballot is invalid (Brilliant v Gamache, supra). Therefore, the ballot cannot be counted as a vote for Meyer.
In fact, most of the squares on the ballot are totally blank.
The remaining contentions, if any, do not compel a different result. Any additional relief requested by any party not expressly considered herein is denied.
Accordingly, upon the foregoing, it is hereby
ORDERED that Respondents Orange County Board of Elections, Louise Vandemark and Courtney Canfield Greene are directed to canvass or recanvass the ballot marked as Exhibit 1 in these actions and count said ballot as cast for George Serrano on the Republican Party line for the public office of Wallkill Town Supervisor in the November 7, 2023 General Election; and it is further
ORDERED that Respondents Orange County Board of Elections, Louise Vandemark and Courtney Canfield Greene are restrained from canvassing, recanvassing or counting the ballot marked as Exhibit 2 in these actions.
The foregoing constitutes the Opinion, Decision, and Order of the Court.