| Matter of Amedore v Peterson |
| 2013 NY Slip Op 00114 [102 AD3d 995] |
| January 9, 2013 |
| Appellate Division, Third Department |
| In the Matter of George A. Amedore Jr.,Respondent-Appellant, v Gregory Peterson et al., as Commissioners of the New YorkState Board of Elections, et al., Respondents, and Cecilia F. Tkaczyk et al.,Appellants-Respondents. (Proceeding No. 1.) In the Matter of Cecilia F. Tkaczyk,Appellant-Respondent, v Evelyn Aquila et al., as Commissioners of the NewYork State Board of Elections, et al., Respondents, and George A. Amedore Jr.,Respondent-Appellant. (Proceeding No. 2.) |
—[*1] Lanny E. Walter, Saugerties, for Barbara Bravo and another, appellants-respondents. Lewis & Fiore, New York City (David L. Lewis of counsel), forrespondent-appellant.
Per Curiam. Cross appeals from an order of the Supreme Court (Tomlinson, J.),entered December 19, 2012 in Montgomery County, which, among other things, partiallygranted petitioners' applications, in two proceedings pursuant to Election Law article 16,to, among other things, direct that certain ballots be cast and canvassed in the November6, 2012 general election for the office of State Senator for the 46th Senate District.
George A. Amedore Jr. was the Republican, Independence and Conservative Partycandidate for the office of State Senator for the 46th Senate District in the November 6,2012 general election, and Cecilia F. Tkaczyk was the Democratic, Working Familiesand Green Party candidate for said office. Following the election, Amedore and Tkaczyk(hereinafter collectively referred to as the parties) timely commenced these Election Lawarticle 16 proceedings seeking to preserve the ballots cast therein[FN1]—as well as certain associated records and documentation in the possession of theBoards of Elections of Montgomery, Schenectady, Albany, Greene and UlsterCounties—and to determine the validity of certain ballots to which the parties hadobjected on various grounds. Following Supreme Court's determination that certainspecial ballots cast by Ulster County election inspectors would not be canvassed, thecourt granted the motion of two such inspectors, respondents Barbara Bravo and CaroleFurman, to intervene in proceeding No. 1. Ultimately, following numerous hearingsconducted over the course of more than two weeks, Supreme Court, as is relevant here,sustained the parties' objections to numerous affidavit and absentee ballots voted in theelection and determined that these ballots would not be cast and canvassed by therespective Boards. Following its receipt of certified canvass results from the Boards, thecourt accordingly adjudged Amedore to be the winner of the election by a margin of63,141 to 63,104. The parties, Bravo and Furman now cross-appeal, calling intocontention several hundred unopened ballots.[FN2] While we agree that Supreme Court properly sustained objections to a majority of thoseballots, we find—for the reasons that follow—that 99 of those ballotsshould have been cast and canvassed.[*2]
Supreme Court erred in sustaining objections to53 special ballots cast by Ulster County election inspectors.[FN3] Election Law § 11-302 entitles an election inspector working "at a polling placeother than the one at which he or she is registered to vote" to apply for and cast a specialballot in that election. The statute directs the local board of elections to provide the"ballot not earlier than two weeks before the election and not later than the close of thepolls" (Election Law § 11-302). The Ulster County Board of Elections (hereinafterUlster Board) provided the challenged ballots more than two weeks before the election,and the relevant special ballots are at issue because they were returned to the UlsterBoard more than two weeks before the election.
While Election Law § 11-302 directs a board of elections to provide thespecial ballot within the two weeks prior to Election Day, it does not direct a voter toreturn the ballot within that period. The statute instead only directs that a completedballot be returned "not later than the close of the polls on election day" (Election Law§ 11-302). The clear language of the statute provides that the two-week timeperiod applies only to the provision of the ballot and not its return by the voting electioninspectors, a reading that is further supported by the statutory history. Significantly, thestatute previously read that "[t]he board of elections shall permit such voter tocast a special ballot" within a week of the election (Election Law former §11-302 [emphasis added]). In 2003, however, the statute was amended to direct that theboard "provide" the ballot within the two weeks prior to the election, with a newsentence specifying that the voter was to return it before the close of the polls on electionday (Election Law § 11-302, as amended by L 2003, ch 243). The statute now onlyrequires that the ballots be submitted by voters prior to the close of the polls, withoutdirection to the voters regarding the earliest time that they may cast their ballots. Despitethe Ulster Board's violation of the statutory direction to provide the special ballots "notearlier than two weeks before the election" (Election Law § 11-302), the voters didnot violate any portion of the statute directed at them. Thus, the 53 challenged specialballots should be cast and canvassed.
Supreme Court upheld objections to 209 affidavit ballots on the grounds that theaffidavit ballot envelopes contained inaccurate or incomplete information. Thoseobjections were properly raised before Supreme Court because a person may object "tothe casting or canvassing of any ballot on the grounds that the voter is not a properlyqualified voter of the election district, . . . or otherwise not entitled to castsuch ballot" (Election Law § 9-209 [2] [d]). Here, the objections were that the 209voters were not qualified to cast affidavit ballots. Election Law § 8-302 providesthat when a voter appears at a polling place and claims to live in that election district, buthis or her name does not appear in the poll ledger or computer-generated registration list,that person may only vote in one of two ways: he or she can (1) obtain a court order, or(2) "swear to and subscribe an affidavit" containing specific information listed in thestatute (Election Law § 8-302 [3] [e] [i], [ii]). We have reviewed the 209 affidavitballot envelopes, along with supporting documentation where required, and determinethat 26 of them [*3]contain all of the statutorily requiredinformation.[FN4] Thus, those voters' ballots should be cast and canvassed. Because the remaining votersfailed to accurately complete the affidavit ballot envelopes by including all of thestatutorily required information, their ballots were invalid and should not be canvassed(see Matter of Skartados vOrange County Bd. of Elections, 81 AD3d 757, 758-759 [2011]; Matter of Johnson v Martins,79 AD3d 913, 921 [2010], affd 15 NY3d 584 [2010]; Matter of Carneyv Davignon, 289 AD2d 1096, 1096 [2001]; Matter of Kolb v Casella, 270AD2d 964, 965 [2000], lv denied 94 NY2d 764 [2000]; Matter of McClure vD'Apice, 116 AD2d 721, 723 [1986]). Tkaczyk contends that, despite the voters'failure to properly complete the forms, their ballots should be cast and canvassed becauseit can be reasonably inferred that the invalidity of the ballots was due to ministerial errorby the county boards of elections that induced voters to enter inaccurate or incompleteinformation on the forms. We disagree (see Matter of Panio v Sunderland, 4 NY3d 123, 128[2005]; Election Law § 16-106 [1]).
Amedore's various objections to absentee ballots were properly before SupremeCourt; nevertheless, the objections should have been overruled in a number ofcases.[FN5] Many of those objections pertain to the residency of voters, but a person may properlybe a resident, for voting purposes, of any place where he or she is "physically presentwith the intent to remain for a time" (People v O'Hara, 96 NY2d 378, 384[2001]; accord Matter ofStewart v Chautauqua County Bd. of Elections, 14 NY3d 139, 146 [2010];see Election Law § 1-104 [22]). Inasmuch as Amedore failed to providesufficient evidence to overcome the presumption that the individuals who cast ballotsU7, U16, U19, U23, U42, U235, U300, U361, U370 and U466 resided where they wereregistered to vote, those ballots must be cast and canvassed (see Election Law§ 5-104 [2]; Matter ofWillkie v Delaware County Bd. of Elections, 55 AD3d 1088, 1089 [2008];Matter of Dorman v Scaringe, 245 AD2d 949, 950 [1997], lv denied 91NY2d 813 [1998]).
Turning to Supreme Court's rulings on Amedore's other objections, the Ulster Boardinvestigated questions regarding ballots U161, U278, U357 and U425 and presumablysatisfied itself that their issuance was appropriate, and Amedore provided nothing to callthat conclusion into question (see Election Law § 8-402 [2], [4];Matter of St. John v Board of Elections of [*4]Countyof Albany, 145 Misc 2d 324, 328 [Sup Ct, Albany County 1989]; Sheils vFlynn, 164 Misc 302, 315-316 [1937], affd 252 App Div 238 [1937],affd 275 NY 446 [1937]). His objections to ballots G111 and U514 were notpremised upon information that was statutorily required and, as such, did not invalidatethose ballots. Lastly, his objections to ballots U150 and U172 were not addressed bySupreme Court and have been abandoned by virtue of his failure to raise that issue in hisbrief on appeal. We thus direct that absentee ballots G111, U7, U16, U19, U23, U42,U150, U161, U172, U235, U278, U300, U357, U361, U370, U425, U466 and U514 becast and canvassed.
Tkaczyk's contentions regarding voters who applied or arguably should have appliedfor special federal ballots are also properly before us (see Election Law§§ 7-124 [1]; 11-200 [1]; 11-204 [3]). While we are unpersuaded by thebulk of those arguments, the voters who cast ballots U485 and U502 were either out ofthe country for a limited period or did not state that they were out of the country at all.Nothing in the record thus calls into question the Ulster Board's determination that thoseindividuals remained residents who were not required to vote by special federal ballots.As such, the objections to their ballots should have been overruled (see ElectionLaw §§ 1-104 [22]; 11-202 [1] [c]; cf. Election Law § 11-200[1]).
We have examined the parties' remaining arguments and, to the extent that they areproperly preserved for our review, have found them to be without merit.
Mercure, J.P., Spain, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that theorder is modified, on the law and the facts, without costs, by directing the respectivecounty boards of elections to cast and canvass ballots A25, G52, G67, G68, G69, G73,G92, G111, G210, U3, U7, U8, U16, U19, U21, U23, U36, U42, U59, U71, U74, U82,U86, U97, U116, U134, U137, U138, U150, U161, U162, U165, U172, U174, U177,U178, U179, U218, U223, U227, U235, U241, U242, U278, U280, U281, U286, U300,U302, U309, U313, U321, U327, U338, U341, U353, U354, U357, U361, U368, U370,U371, U372, U377, U385, U387, U388, U391, U393, U394, U395, U403, U406, U409,U410, U411, U412, U413, U414, U415, U416, U417, U425, U429, U431, U434, U459,U460, U461, U466, U473, U485, U497, U502, U504, U511, U514, U524 and U529,and, as so modified, affirmed.
Footnote 1: In order to preserve theanonymity of the individual voters at issue, reference will be made to specific ballots bysuch ballot's exhibit number as determined by the parties and Supreme Court.
Footnote 2: Amedore hasabandoned his cross appeal by failing to address same in his brief (see Matter ofBjork v Bjork, 58 AD3d 951, 952 n [2009], lv denied 12 NY3d 708 [2009];Matter of Dickinson vWoodley, 44 AD3d 1165, 1166 n 1 [2007]).
Footnote 3: Those ballots arenumbered U8, U36, U59, U71, U82, U116, U137, U162, U165, U177, U178, U179,U218, U223, U227, U241, U242, U280, U281, U286, U302, U309, U313, U327, U338,U341, U353, U354, U368, U371, U372, U387, U388, U391, U393, U394, U395, U410,U412, U413, U414, U415, U416, U417, U429, U431, U434, U460, U461, U473, U497,U504 and U524.
Footnote 4: Those ballots arenumbered A25, G52, G67, G68, G69, G73, G92, G210, U3, U21, U74, U86, U97, U134,U138, U174, U321, U377, U385, U403, U406, U409, U411, U459, U511 and U529.
Footnote 5: Supreme Court isempowered to resolve "challenges to absentee ballots based on nonresidency" (Matterof Delgado v Sunderland, 97 NY2d 420, 423 n [2002]; see Matter of Mondello v NassauCounty Bd. of Elections, 6 AD3d 18, 21 [2004]), and Amedore preserved thosechallenges by objecting to the casting or canvassing of the ballots at issue (seeElection Law §§ 8-506, 9-209; Matter of Gross v Albany County Bd. of Elections, 3 NY3d251, 257 [2004]). To the extent that Matter of Fingar v Martin (68 AD3d 1435 [2009]) holdsthat individuals who are not commissioners of the board of elections must raise sucharguments at the time an absentee ballot is issued, it is not to be followed(compare Election Law § 8-402; Matter of Messina v Albany County Bd. of Elections, 66 AD3d1111, 1114 n [2009], lv denied 13 NY3d 710 [2009]).