Amedore v. Peterson

102 A.D.3d 995, 957 N.Y.S.2d 511

This text of 102 A.D.3d 995 (Amedore v. Peterson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amedore v. Peterson, 102 A.D.3d 995, 957 N.Y.S.2d 511 (N.Y. Ct. App. 2013).

Opinion

Per Curiam.

Cross appeals from an order of the Supreme Court (Tomlinson, J), entered December 19, 2012 in Montgomery County, which, among other things, partially granted 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 November 6, 2012 general election for the office of State Senator for the 46th Senate District.

George A. Amedore Jr. was the Republican, Independence and Conservative Party candidate 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 Families and Green Party candidate for said office. Following the [996]*996election, Amedore and Tkaczyk (hereinafter collectively referred to as the parties) timely commenced these Election Law article 16 proceedings seeking to preserve the ballots cast therein1 —as well as certain associated records and documentation in the possession of the Boards of Elections of Montgomery, Schenectady, Albany, Greene and Ulster Counties—and to determine the validity of certain ballots to which the parties had objected on various grounds. Following Supreme Court’s determination that certain special ballots cast by Ulster County election inspectors would not be canvassed, the court granted the motion of two such inspectors, respondents Barbara Bravo and Carole Fur-man, to intervene in proceeding No. 1. Ultimately, following numerous hearings conducted 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 the election and determined that these ballots would not be cast and canvassed by the respective Boards. Following its receipt of certified canvass results from the Boards, the court accordingly adjudged Amedore to be the winner of the election by a margin of 63,141 to 63,104. The parties, Bravo and Fur-man now cross-appeal, calling into contention several hundred unopened ballots.2 While we agree that Supreme Court properly sustained objections to a majority of those ballots, we find—for the reasons that follow—that 99 of those ballots should have been cast and canvassed.

Supreme Court erred in sustaining objections to 53 special ballots cast by Ulster County election inspectors.3 Election Law § 11-302 entitles an election inspector working “at a polling place other than the one at which he or she is registered to vote” to apply for and cast a special ballot 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 the polls” (Election Law § 11-302). The Ulster County Board of Elections (hereinafter Ulster Board) provided [997]*997the challenged ballots more than two weeks before the election, and the relevant special ballots are at issue because they were returned to the Ulster Board more than two weeks before the election.

While Election Law § 11-302 directs a board of elections to provide the special ballot within the two weeks prior to Election Day, it does not direct a voter to return the ballot within that period. The statute instead only directs that a completed ballot 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 time period applies only to the provision of the ballot and not its return by the voting election inspectors, a reading that is further supported by the statutory history. Significantly, the statute previously read that “[t]he board of elections shall permit such voter to cast 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 the board “provide” the ballot within the two weeks prior to the election, with a new sentence specifying that the voter was to return it before the close of the polls on election day (Election Law § 11-302, as amended by L 2003, ch 243). The statute now only requires that the ballots be submitted by voters prior to the close of the polls, without direction to the voters regarding the earliest time that they may cast their ballots. Despite the Ulster Board’s violation of the statutory direction to provide the special ballots “not earlier than two weeks before the election” (Election Law § 11-302), the voters did not violate any portion of the statute directed at them. Thus, the 53 challenged special ballots should be cast and canvassed.

Supreme Court upheld objections to 209 affidavit ballots on the grounds that the affidavit ballot envelopes contained inaccurate or incomplete information. Those objections were properly raised before Supreme Court because a person may object “to the casting or canvassing of any ballot on the grounds that the voter is not a properly qualified voter of the election district, ... or otherwise not entitled to cast such ballot” (Election Law § 9-209 [2] Ed]). Here, the objections were that the 209 voters were not qualified to cast affidavit ballots. Election Law § 8-302 provides that when a voter appears at a polling place and claims to live in that election district, but his 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 [998]*998the statute (Election Law § 8-302 [3] [e] [i], [ii]). We have reviewed the 209 affidavit ballot envelopes, along with supporting documentation where required, and determine that 26 of them contain all of the statutorily required information.4 Thus, those voters’ ballots should be cast and canvassed. Because the remaining voters failed to accurately complete the affidavit ballot envelopes by including all of the statutorily required information, their ballots were invalid and should not be canvassed (see Matter of Skartados v Orange 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 Carney v Davignon, 289 AD2d 1096, 1096 [2001]; Matter of Kolb v Casella, 270 AD2d 964, 965 [2000], lv denied 94 NY2d 764 [2000]; Matter of McClure v D’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 because it can be reasonably inferred that the invalidity of the ballots was due to ministerial error by the county boards of elections that induced voters to enter inaccurate or incomplete information 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 Supreme Court; nevertheless, the objections should have been overruled in a number of cases.5 Many of those objections pertain to the residency of voters, but a person may properly be a resident, for voting purposes, of any place where he or she is “physically present with the intent to remain for a time” (People v O’Hara, 96 NY2d 378, 384 [2001]; accord Matter of Stewart v Chautauqua County Bd. of Elections, 14 NY3d 139, 146 [2010]; see Election Law § 1-104 [22]).

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102 A.D.3d 995, 957 N.Y.S.2d 511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amedore-v-peterson-nyappdiv-2013.