| Matter of Alessio v Carey |
| 2008 NY Slip Op 01833 [49 AD3d 1147] |
| March 3, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of George P. Alessio, Jr., Respondent, v Paul G.Carey, Appellant, and Helen M. Kiggins et al., Respondents. |
—[*1] Cote, Limpert & Van Dyke, LLP, Syracuse (Joseph S. Cote, III, of counsel), forpetitioner-respondent.
Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.),entered December 14, 2007 in a proceeding pursuant to Election Law article 16, and said orderhaving been reversed by order of this Court entered January 18, 2008 (47 AD3d 1194 [2008]),and petitioner on February 5, 2008 having been granted leave to appeal to the Court of Appealsfrom said order (10 NY3d 725 [2008]), and the Court of Appeals on February 15, 2008 havingreversed said order and remitted the case to this Court for consideration of issues raised but notdetermined on the appeal to this Court (10 NY3d 751 [2008]).
Now, upon remittitur from the Court of Appeals and having considered the issues raised butnot determined on the appeal,
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the petition in its entirety and vacating the last ordering paragraph and as modified theorder is affirmed without costs.
Memorandum: Paul G. Carey (respondent) appeals from an order that granted the petition inpart and directed respondent Onondaga County Board of Elections (Board) to count threeabsentee ballots cast in petitioner's favor in the November 6, 2007 general election for the officeof town justice in the Town of Salina. The Board had invalidated those ballots and, pursuant tothe relief granted by Supreme Court, petitioner gained a one-vote margin of victory. Wepreviously concluded that the court lacked subject matter jurisdiction in this proceeding(Matter of Alessio v Carey, 47 AD3d 1194 [2008]), but the Court of Appeals reversedour order and remitted the matter to this Court "for consideration of issues raised, but notdetermined" in our prior decision (Alessio, 10 NY3d 751, 752 [2008]). We now concludethat the court erred in granting the petition in part and directing the Board to count the threeabsentee ballots cast in petitioner's favor, and we therefore modify the order accordingly.[*2]
We note at the outset the well-established principle that "'[b]road policy considerations weigh in favor of requiring strict compliance with the ElectionLaw . . . [for] a too-liberal construction . . . has the potential forinviting mischief on the part of candidates, or their supporters or aides, or worse still,manipulations of the entire election process' " (Matter of Gross v Albany County Bd. of Elections, 3 NY3d 251,258 [2004], quoting Matter of Staber v Fidler, 65 NY2d 529, 534 [1985]). We furthernote that, pursuant to Election Law § 9-112, "[t]he whole ballot is void if the voter. . . makes any mark thereon other than a cross X mark or a check V mark in avoting square, or filling in the voting square" (§ 9-112 [1] [d]). "The term 'voting square'shall include the voting space provided for a voter to mark his [or her] vote for a candidate orballot proposal" (§ 9-112 [1]), and here the "voting square" is the oval that voters aredirected to "fill in," pursuant to the explicit instructions on the three absentee ballots in question.
The three absentee ballots in question contain irregular markings, and we thus conclude thatthey are void (see id.). The first of the three absentee ballots, designated as exhibit 4,contains an intentional mark on its lower left-hand margin, outside of any voting square; thesecond ballot, designated as exhibit 5, contains marks that traverse certain of the boxes thatcontain the candidates' names, voting ovals, and party symbols and affiliations; and the thirdballot, designated as exhibit 7, contains an extra filled-in oval drawn on the ballot by the voterbefore the word "Yes" under the ballot proposal. The marks on the three absentee ballots inquestion fall outside or extend well beyond those ovals and the Board therefore properlyinvalidated those absentee ballots in their entirety because "[t]he voter[s] improperly marked theballot[s] outside the voting square[s]" (Matter of Kolb v Casella, 270 AD2d 964, 964[2000], lv denied 94 NY2d 764 [2000]; see Matter of Pavlic v Haley, 20 AD2d592 [1963], affd 13 NY2d 1111 [1964]; Matter of Boudreau v Catanise, 291AD2d 838, 839 [2002]; cf. Matter ofMondello v Nassau County Bd. of Elections, 6 AD3d 18, 24 [2004]). Indeed, we notethat the marks "could have identified the voter[s]" (Matter of Carney v Davignon, 289AD2d 1096, 1096 [2001]; cf. Matter of Morphy v Wade, 208 AD2d 1039, 1040 [1994],affd 84 NY2d 900 [1994]).
Even assuming, arguendo, that petitioner is correct that the "voting squares" on two of thethree absentee ballots, i.e., exhibits 4 and 5, are the boxes that contain the candidates' names,voting ovals, and party symbols and affiliations, we note that the disputed marks on those ballotsextend beyond those boxes. Thus, those two entire ballots are invalid because the marks arebeyond even petitioner's broadly-defined "voting squares." With respect to the last of the threeabsentee ballots, i.e., exhibit 7, we reject petitioner's contention that the entire ballot panelcontaining the proposal is the "voting square." The voter's placement of a separate oval markbefore the "Yes" choice with respect to the proposal not only contravenes the directive that suchmarks be placed "in a voting square following the word 'Yes' or the word 'No' " withrespect to a ballot proposal (Election Law § 9-112 [5] [emphasis added]), but also "couldhave identified the voter," rendering the entire ballot invalid (Carney, 289 AD2d at1096).
With respect to respondent's cross claim concerning three invalidated affidavit ballots, wenote that "a cross claim is not permitted in a special proceeding without court order" (Matterof Williams v Rensselaer County Bd. of Elections, 98 AD2d 938, 939 [1983], appealdismissed 61 NY2d 737 [1984], lv denied 61 NY2d 606 [1984]), and no such orderwas issued herein. Thus, although the court denied respondent's first cross claim, that cross claimwas never properly before the court, and we therefore further modify the order accordingly. Werewe to address the parties' contentions with respect to those ballots, we would conclude that thetestimony of respondent Helen M. Kiggins, the Board's Commissioner, and the sworn statementof petitioner's representative concerning his observation of what transpired provide a basis fromwhich it may be "reasonably infer[red] that [the insertion of disputed affidavit ballots into extraenvelopes was] the result of a ministerial error on the part of a poll worker" (Matter of Panio v Sunderland, 4 NY3d123, 128 [2005], [*3]rearg denied 4 NY3d 794[2005]). Because the insertion of those affidavit ballots into extra envelopes does not otherwisehave the effect of identifying those ballots (cf. People ex rel. Brown v Keller, 170 AppDiv 324 [1915], affd 216 NY 741 [1915]), those affidavit ballots should have beencounted pursuant to Election Law § 16-106 (1). Present—Scudder, P.J., Hurlbutt,Lunn and Gorski, JJ. [See 18 Misc 3d 1102(A), 2007 NY Slip Op 52381(U) (2007).]