| Matter of Johnson v Martins |
| 2010 NY Slip Op 09195 [79 AD3d 913] |
| December 15, 2010 |
| Appellate Division, Second Department |
| In the Matter of Craig M. Johnson, Appellant, v Jack M.Martins et al., Respondents. (Proceeding No. 1.) In the Matter of Jay Jacobs, Appellant, and JosephMondello, Respondent, v Nassau County Board of Elections, Respondent. (Proceeding No.2.) |
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In two related proceedings pursuant to Election Law article 16, inter alia, to preserve for judicialreview certain ballots cast in a general election for the public office of State Senator for the 7thSenatorial District held on November 2, 2010, to contest the casting and canvassing or the refusal tocast those ballots, and to direct a manual audit of the voter verifiable audit records of the same generalelection, Craig M. Johnson, the petitioner in proceeding No. 1, and Jay Jacobs, a petitioner inproceeding No. 2, appeal, as limited by their brief, from (1) stated portions of a decision of theSupreme Court, Nassau County (Warshawsky, J.), dated December 1, 2010, (2) stated portions of adecision of the same court dated December 2, 2010, (3) so much of an order of the same court enteredDecember 6, 2010, as denied those branches of the petitions which were, in effect, to direct a manualaudit of the voter verifiable audit records of the same general election, and (4) so much of a final orderof the same court dated December 8, 2010, as, upon the decisions dated December 1, 2010, andDecember 2, 2010, respectively, and upon the order entered December 6, 2010, denied thosebranches of the petitions which were, in effect, to direct the opening and canvassing of 48 ballots votedin affidavit envelopes or by absentee ballots in the same general election, to direct the casting andcanvassing of certain ballots and to prohibit the casting of certain other ballots in the same generalelection, and to direct a manual audit of the voter verifiable audit records of the same general election.
Ordered that the appeals from the decisions are dismissed, without costs or disbursements, as noappeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984];Matter of Jennings v Board of Elections ofCity of N.Y., 32 AD3d 486 [2006]); and it is further,
Ordered that the appeal from the order entered December 6, 2010, is dismissed, without costs ordisbursements; and it is further,
Ordered that the final order is modified, on the law and the facts, (1) by deleting [*2]the provisions thereof denying those branches of the petitions whichwere, in effect, to direct the casting and canvassing of the absentee ballots designated as exhibits 33,154, and 166, and substituting therefor provisions granting those branches of the petitions and directingthe Nassau County Board of Elections to cast and canvass the absentee ballots designated as exhibits33, 154, and 166, and (2) by deleting the provisions thereof denying those branches of the petitionswhich were, in effect, to prohibit the casting and canvassing of absentee ballots designated as exhibits 8and 127 and the ballots designated as exhibits 182 and 183, and substituting therefor provisionsgranting those branches of the petitions and directing the Nassau County Board of Elections not to castand canvass the absentee ballots designated as exhibits 8 and 127 and the ballots designated as exhibits182 and 183; as so modified, the final order is affirmed insofar as appealed from, without costs ordisbursements.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the final order in the proceedings (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the intermediate order are brought upfor review and have been considered on the appeal from the final order (see CPLR 5501 [a][1]).
At a general election held on November 2, 2010, Craig M. Johnson and Jack M. Martins weretwo candidates for the public office of State Senator for the 7th Senatorial District. These two relatedproceedings were commenced, among other things, to review the validity of certain ballots pursuant toElection Law § 16-106 and to direct a manual audit of the voter verifiable audit records of thevoting machines utilized in this contest pursuant to Election Law § 16-113.
The stated purpose of the "Elections Reform and Modernization Act of 2005" (L 2005, ch 181),was "[t]o modernize and update the voting systems utilized in New York State and access federalresources to assist in achieving that goal" (Senate Mem in Support, 2005 McKinney's Session Laws ofNY, at 2088). To this end, the Legislature enumerated standards, applicable to voting machines orsystems, which were to serve as prerequisites for approval by the state board of elections (seeElection Law § 7-202 [L 2005, ch 181, § 6]). One such requirement was that anapproved voting machine or system must "retain all paper ballots cast or produce and retain a voterverified permanent paper record . . . [which] shall allow [for] a manual audit" (ElectionLaw § 7-202 [1] [j]).
The procedure to be followed by voters and election inspectors on election day was amended toaccount for the use of the updated voting machines and systems (see L 2010, chs 163-164).Under the applicable statutory framework, voters mark their ballots in "privacy booth[s]" (Election Law§ 8-312 [1]) and then "proceed at once to the ballot scanner, insert such ballot into the ballotscanner and wait for the notice that the ballot has been successfully scanned" (Election Law §8-312 [2]).
After the close of the polls, election inspectors are required to "canvass the machine vote byprinting the ballot scanner tabulated results tape" (Election Law § 9-102 [2] [a]). Thesetabulated results are to be combined with the results of any hand-counted paper ballots in the return ofcanvass prepared by the election inspectors (id.; see Election Law § 9-120).
The board of elections of each county—or a bipartisan committee appointed by thatboard—is required to "recanvass the tabulated result tape from each ballot scanner. . . by comparing such tape with the numbers as recorded on the return of canvass"(Election Law § 9-208 [1]). In the event of a discrepancy, "the board of elections, or thecommittee thereof, shall proceed thoroughly to examine all the election day paper ballots in that electiondistrict to determine the result . . . [and this] result . . . shall supersede thereturns filed by the inspectors of election" (Election Law § 9-208 [3]).
Before completing the canvass of votes cast in any general election, the board of elections mustalso cast and canvass absentee ballots and ballots voted in affidavit envelopes by persons whoseregistration was missing on election day (see Election Law § 9-209). Such ballots aresubject to challenge on various grounds (see Election Law § 8-506 [1]; § 9-209[2] [a]). Moreover,[*3]"[a]ny person lawfully present may object to therefusal to cast or canvass any ballot on the grounds that the voter is a properly qualified voter of theelection district" (Election Law § 9-209 [2] [d]). "The casting or canvassing or refusal to castchallenged ballots, blank ballots, void or canvass absentee . . . ballots and ballots voted inaffidavit envelopes . . . may be contested in a proceeding instituted in the supreme orcounty court" (Election Law § 16-106 [1]; see Matter of Alessio v Carey, 10 NY3d 751, 753 [2008]).
The county board of canvassers (see Election Law § 9-204), must "canvass thevotes cast within the county for state . . . offices" (Election Law § 9-206). "Uponthe completion of the canvass the canvassing board shall make statements thereof, showing separatelythe result for each office" (Election Law § 9-210). "Such statements shall be certified as correctover the signatures of the members of the board, or a majority of them, and such statements. . . shall be filed in the office of the board of elections" (id.).
The county board of elections must then "transmit . . . to the state board of elections,a certified copy of the statement of the canvassing board relating to . . . state offices"(Election Law § 9-214). The state board of canvassers (see Election Law §9-216 [1]), must in turn "canvass the certified copies of the statements of the county board ofcanvassers of each county" (Election Law § 9-216 [2]), and "transmit a certified copy" of atabulated statement of the results "to [each] person shown thereby to have been elected to. . . office" (Election Law § 9-216 [4]).
In the event that the state board of canvassers or a county board of canvassers must reconvene "byorder of a court of competent jurisdiction, for the purpose of correcting an error or of performing a dutyimposed by law . . . any new or corrected statement, determination or certificate which ismade to give effect to the order shall stand in lieu of the original statement, determination or certificate"(Election Law § 9-218 [1]). If "a new or corrected statement or certificate, to give effect to anorder of the court, shall vary from the original statement or certificate" issued by a county board ofelection, it may become necessary for the state board of canvassers to reconvene and make a newdetermination of the candidate duly elected to the affected office (Election Law § 9-218 [2]).
The current statutory scheme also includes a provision which requires an audit of a portion of thevoting machines or systems used in each general election (see Election Law § 9-211)."Within fifteen days after each general . . . election . . . the board of electionsor a bipartisan committee appointed by such board shall manually audit the voter verifiable auditrecords from three percent of voting machines or systems within the jurisdiction of such board"(Election Law § 9-211 [1]). To this end, "[t]he manual audit tallies for each voting machine orsystem shall be compared to the tallies recorded by such voting machine or system" (Election Law§ 9-211 [2]).
Pursuant to Election Law § 9-211 (3), the state board of elections has promulgated uniformstatewide regulations used to determine when a discrepancy between the manual audit tallies and thevoting machine or system tallies requires an expanded manual audit of the voter verifiable audit records(see 9 NYCRR 6210.18). If unresolved discrepancies from the initial three percent audit,aggregated for each contest, meet or exceed specified statistical thresholds, an expanded audit isrequired (see 9 NYCRR 6210.18 [e] [1]). Further expansions of the audit may be triggered bythe results of the expanded audit (see 9 NYCRR 6210.18 [f], [g]), and it may eventuallybecome necessary to initiate a full audit of "all voter verifiable paper audit trail records from all theremaining unaudited machines and systems where the contest appeared on the ballot" (9 NYCRR6210.18 [g] [3]).
In the event that "a complete audit [is] conducted, the results of such audit shall be used by thecanvassing board in making the statement of canvass and determinations of persons elected" (ElectionLaw § 9-211 [4]; see 9 NYCRR 6210.18 [j]). However, "[t]he results of a partial voterverifiable record audit shall not be used in lieu of voting machine or system tallies" (Election Law§ 9-211 [4]; see 9 NYCRR 6210.18 [j]).
The Legislature has also granted supremeand county courts the authority to direct, under certain circumstances, a manual audit of voter verifiableaudit records (see Election Law § 16-[*4]113 [asadded by L 2005, ch 181, § 15, as amended by L 2010, ch 129, § 1; ch 163, §14]; cf. Matter of Delgado v Sunderland, 97 NY2d 420 [2002]; Matter of Tarantino v Westchester County Bd.of Elections, 8 AD3d 672, 673 [2004]). That section provides: "The supreme court, by ajustice within the judicial district, or the county court, by a county judge within his or her county, in aspecial proceeding by any candidate or his or her agent, may direct a manual audit of the voterverifiable audit records applicable to any candidate running for office within such judicial district orcounty where (1) the uniform statewide standard promulgated by regulation by the state board ofelections pursuant to subdivision three of section 9-211 of this chapter with respect to discrepanciesbetween manual audit tallies and voting machines or systems tallies requires a further voter verifiablerecord audit of additional voting machines or systems or all voting machines or systems applicable tosuch election, or (2) where evidence presented to the court otherwise indicates that there is a likelihoodof a material discrepancy between such manual audit tally and such voting machine or system tally, or adiscrepancy as defined in subdivision three of section 9-208 of this chapter, which creates a substantialpossibility that the winner of the election as reflected in the voting machine or system tally could changeif a voter verifiable record audit of additional voting machines or systems or of all voting machines orsystems applicable to such election were conducted" (Election Law § 16-113 [as amended by L2010, ch 129, § 1; ch 163, § 14]; accord 9 NYCRR 6210.18 [h]). By thislanguage, the Legislature has made clear that, even where the conditions specified in Election Law§ 16-113 (1) or (2) have been satisfied, a manual audit is not necessarily required and thedecision of whether to direct such an audit is left to the discretion of the court.
In these proceedings, the appellants contend that the Supreme Court erred in denying thosebranches of their petitions which were pursuant to Election Law § 16-113, in effect, to direct amanual audit of the voter verifiable audit records applicable to this contest. The appellants assert thatthey sustained the statutory burden necessary to permit the Supreme Court to grant an additionalmanual audit pursuant to Election Law § 16-113 and that the Supreme Court improperlyconsidered factors promulgated by the state board of elections in reaching its determination.
Contrary to the appellants' contention, their citation to the total number of "undervote[s]" recordedin this contest (9 NYCRR 6210.13 [A] [6]), does not, without more, indicate any degree of aberrationor mandate a manual recount of the voter verifiable audit records pursuant to Election Law §16-113. Moreover, the Supreme Court did not err when, in the exercise of its discretion, it utilizedfactors enumerated by regulation which were material to its determination including "whether, whenprojected to a full audit, the discrepancies detected . . . might alter the outcome of thecontest" (9 NYCRR 6210.18 [h] [7]). In this regard, we decline to disturb the Supreme Court'sconclusion that, given the limited number of discrepancies which were not resolved by both theRepublican and Democratic Commissioners, and given the number of votes separating the candidates,an additional manual audit pursuant to Election Law § 16-113 was not warranted. Accordingly,we conclude that, under the circumstances, the Supreme Court did not improvidently exercise itsdiscretion in denying those branches of the petitions which were, in effect, to direct a manual audit ofthe voter verifiable audit records relevant to this contest (see Election Law § 16-113).
The appellants also contend that certain rulings made by the Supreme Court with respect tochallenged ballots were erroneous. As previously noted, Election Law § 16-106 (1) providescourts with authority to review "[a] board's decision to canvass or refuse to canvass a particular ballotduring the canvass" (Matter of Gross v Albany County Bd. of Elections, 3 NY3d [*5]251, 257 [2004]; see Matter of Alessio v Carey, 10 NY3d at753). Under that section, however, a court is only granted the power "(1) to determine the validity ofprotested, blank or void paper ballots and protested or rejected absentee ballots and to direct arecanvass or correction of any error in the canvass of such ballots, and (2) to review the canvass anddirect a recanvass or correction of an error or performance of any required duty by the board ofcanvassers" (Matter of Corrigan v Board of Elections of Suffolk County, 38 AD2d 825, 827[1972] [citations omitted]; see Matter of Delgado v Sunderland, 97 NY2d at 423).
The appellants contend that the determination not to open and canvass 48 ballots denominated ascourt's exhibit I was error. However, the Supreme Court's determination was proper, since "[i]n aproceeding pursuant to Election Law § 16-106 for judicial review of the canvass of votes in ageneral election, the Supreme Court lacks the authority to render a determination as to whether a voterwas 'lawfully registered and eligible to vote' " (Matter of Mondello v Nassau County Bd. of Elections, 6 AD3d 18,20-21 [2004], quoting Matter of Corrigan v Board of Elections of Suffolk County, 38 AD2dat 827; see Matter of Delgado v Sunderland, 97 NY2d at 423). In any event, contrary to theappellants' contention, they failed to demonstrate that "ministerial error by the board of elections or anyof its employees caused such ballot envelope[s] not to be valid on [their] face" (Election Law §16-106 [1]; see Matter of Gross v Albany County Bd. of Elections, 3 NY3d at 259 n 3; cf. Matter of Panio v Sunderland, 4 NY3d123, 128-129 [2005]; Matter of Marraccini v Balancia, 182 AD2d 628, 629-630[1992]; Matter of McClure v D'Apice, 116 AD2d 721, 723 [1986]; Matter of Nicolaysenv D'Apice, 100 AD2d 501, 502 [1984]). Moreover, the Supreme Court properly concluded thatthe ballots designated as exhibit 125 should be cast and canvassed (see Sheils v Flynn, 275NY 446, 452 [1937]; Matter of Dorman v Scaringe, 222 AD2d 887, 887-888 [1995];see also Matter of Gross v Albany County Bd. of Elections, 3 NY3d at 257).
The appellants next raise an issue with respect to absentee ballots determined to be valid by theSupreme Court which were designated as exhibits 8, 11, 106, 147, and 157, and absentee ballotsdetermined to be invalid by the Supreme Court which were designated as exhibits 33, 34, 154, and166. Upon reviewing the absentee ballot designated as exhibit 8, we agree with the appellants that "thesignature on the ballot envelope does not correspond to the signature on the registration poll record"(Election Law § 8-506 [1]). Accordingly, that absentee ballot should not have been cast andcanvassed. We also agree that the absentee ballots designated as exhibits 33, 154, and 166 shouldhave been determined to be valid (id.). However, the absentee ballots designated as exhibits11, 106, 147, and 157 were properly determined to be valid and the absentee ballot designated asexhibit 34 was properly determined to be invalid (id.).
The appellants also maintain that an absentee ballot designated as exhibit 127 was erroneouslydetermined to be valid by the Supreme Court. Upon reviewing that ballot's envelope, we agree that itdoes not bear any "cancellation mark of the United States postal service" and that the Nassau CountyBoard of Elections date stamp indicates that it was not "received by it before the close of the polls onelection day" (Election Law § 8-412 [1]). Accordingly, the absentee ballot designated as exhibit127 should not have been cast and canvassed (see Matter of Carney v Davignon, 289 AD2d1096, 1096 [2001]; Matter of Kroening, 187 AD2d 1045 [1992]; Matter of Nicolaysen vD'Apice, 100 AD2d at 502).
The appellants further contest the Supreme Court's determination that affidavit ballots designated asexhibits 17, 18, 19, 24, and 140 were invalid due to incomplete ballot envelopes. The appellants assertthat the fact that these envelopes were left incomplete by the voters can be inferentially attributed to thefailure of poll workers to provide verbal instructions in addition to the instructions written on theenvelopes. Based on this record, we decline to infer ministerial error, and the appellants otherwisefailed to demonstrate that "ministerial error by the board of elections or any of its employees causedsuch ballot envelope[s] not to be valid on [their] face" (Election Law § 16-106 [1]; cf.Matter of Panio v Sunderland, 4 NY3d at 128-129).
Finally, the appellants contend that extraneous markings rendered ballots designated as exhibits177, 182, 183, 184, and 186 invalid. "[E]xtraneous marks on ballots that could serve to distinguish theballot or identify the voter, as opposed to inadvertent marks, will render a ballot blank [*6]as to the relevant office if the mark is confined to the voting squarepertaining to that office, or render a ballot invalid as a whole if the mark appears outside of the votingsquare" (Matter of Brilliant v Gamache,25 AD3d 605, 606-607 [2006]; see Election Law § 9-112 [1]; Matter ofMondello v Nassau County Bd. of Elections, 6 AD3d at 25). After review of these ballots, weconclude that the ballot designated as exhibit 184 was properly determined to be valid, since the markon that ballot "appear[s] to be inadvertent" (Matter of Mondello v Nassau County Bd. ofElections, 6 AD3d at 24). Moreover, the contested marks visible on ballots designated exhibits177 and 186 were not such that the ballots should be rendered wholly void and, thus, the SupremeCourt properly deemed them valid for the purposes of this contest (id.). However, the ballotsdesignated as exhibits 182 and 183 both contain written words. "Where, as here, 'there were writtenwords deliberately placed on the ballot by the voter' the entire ballot is void" (id. at 25, quotingMatter of Scanlon v Savago, 160 AD2d 1162, 1163 [1990]; see Matter of Franke vMcNab, 73 AD2d 679, 679-680 [1979]). Mastro, J.P., Dillon, Angiolillo and Leventhal, JJ.,concur.
Application by Common Cause for leave to file papers as an amicus curiae on appeals from twodecisions of the Supreme Court, Nassau County, dated December 1, 2010, and December 2, 2010,respectively, an order of the same court entered December 6, 2010, and a final order of the same courtdated December 8, 2010.
Upon the papers filed in support of the application and no papers having been filed in opposition orrelation thereto, it is
Ordered that the application is granted; and it is further,
Ordered that the papers submitted by Common Cause as an amicus curiae which were served andfiled with the Clerk of this Court on December 15, 2010, have been considered on the appeals.Mastro, J.P., Dillon, Angiolillo and Leventhal, JJ., concur.
On the Court's own motion, it is
Ordered that the aggrieved parties are granted leave to appeal to the Court of Appeals, if they beso advised, pursuant to CPLR 5602 (b) (1) from the decision and order of this Court, inter alia,modifying the final order of the Supreme Court, Nassau County (Warshawsky, J.), dated December 8,2010, and the following question is certified to the Court of Appeals: Was the decision and order of thisCourt properly made? Questions of law have arisen, which, in our opinion, ought to be reviewed by theCourt of Appeals (see CPLR 5713). Mastro, J.P., Dillon, Angiolillo and Leventhal, JJ.,concur.