Gross v. Bd. of Elections

• Decision Date: 14 October 2004
• Parties: In the Matter of RICHARD A. GROSS et al., Respondents, v. ALBANY COUNTY BOARD OF ELECTIONS, Respondent, and WILLIAM M. HOBLOCK et al., Appellants. (And Another Related Proceeding.)
• Court: New York Court of Appeals Court of Appeals

3 N.Y.3d 251

819 N.E.2d 197

785 N.Y.S.2d 729

In the Matter of RICHARD A. GROSS et al., Respondents, v. ALBANY COUNTY BOARD OF ELECTIONS, Respondent, and WILLIAM M. HOBLOCK et al., Appellants. (And Another Related Proceeding.)

Court of Appeals of the State of New York.

Argued September 8, 2004.

Decided October 14, 2004.

DerOhannesian & DerOhannesian, Albany (Paul DerOhannesian II of counsel), for appellants.

A. Joshua Ehrlich, Albany, for Richard A. Gross and another, respondents.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, GRAFFEO and READ concur in per curiam opinion; Judge ROSENBLATT dissents in a separate opinion in which Judge R.S. SMITH concurs.

OPINION OF THE COURT

Per Curiam.

This appeal concerns the validity of certain absentee ballots cast during a special general election for two seats on the Albany County Legislature.

In April 2003, the Albany County Legislature's redistricting plan was challenged in federal court. As a consequence of the litigation, the Albany County Board of Elections was enjoined from conducting the primary and general elections for particular districts of the Albany County Legislature that had been scheduled for fall 2003. A revised redistricting plan was accepted by the federal court in October 2003, but the resolution came too late to permit election officials to implement the new plan for the November elections. The United States Court of Appeals for the Second Circuit therefore determined that a special primary election would be conducted on March 2, 2004 (to coincide with the national primary elections), and ordered a special general election to be held "expeditiously thereafter" on terms established by the District Court on remittal (Arbor Hill Concerned Citizens v County of Albany, 357 F3d 260, 263 [2d Cir 2004]).

Consistent with the Second Circuit decision, the District Court issued a written order on February 2, 2004 dictating the manner in which the special primary and special general elections would be conducted. Pertinent to the issue on this appeal, the court directed that registered voters who had filed applications requesting absentee ballots for the fall 2003 elections would be sent absentee ballots for the special primary election scheduled for March 2, 2004 without having to file new applications. This accommodation was apparently made because there was insufficient time in the four-week period between the District Court order and the special primary to notify the public of the election, solicit and process absentee voter applications, and forward ballots to the affected voters as the New York Election Law ordinarily requires. With respect to the special general election — scheduled for April 27, 2004 — the court ordered that "[t]he process for obtaining and counting absentee ballots . . . shall be governed by Article 8 of the New York Election Law." Under article 8, in order to become qualified to cast an absentee vote, the voter must file an application requesting an absentee ballot that particularizes why the voter is unable to vote at the polls on election day.¹

The Albany County Board of Elections followed the District Court directives on absentee balloting with respect to the special primary election but failed to do so with respect to the special general election, instead forwarding an absentee ballot to any voter who had requested one during the fall 2003 elections. As a result, a number of voters who cast absentee ballots during the special general election did not file applications establishing that they were eligible to do so as the Election Law and the federal court order required.

At issue in this case are races in two Albany County legislative districts — the 26th and 29th districts. After the machine counts revealed that the electoral results were close, the affected candidates and their counsel met at the Albany County Board of Elections on May 5, 2004 to canvass the absentee, military and special ballots filed in those districts. In addition to other objections not relevant to this appeal, the candidates asserted that certain absentee ballots were invalid due to the Board's noncompliance with the federal court order and article 8 of the Election Law.

Having timely lodged their objections before the Board, the candidates filed cross petitions in Supreme Court under Election Law § 16-106 raising the question whether the absentee ballots collected in violation of the court order and the Election Law could be counted. At the hearing, the testimony indicated that the Board's failure to require absentee ballot applications arose from a misinterpretation of the federal court order, with no allegation of fraud or other intentional misconduct. Supreme Court held that the noncompliant absentee ballots should not be canvassed. A majority of the Appellate Division affirmed but two Justices dissented prompting an appeal as of right to this Court. We agree with the determination of the courts below that the absentee ballots collected in violation of both a federal court order and article 8 of the Election Law are invalid and we therefore affirm the order of the Appellate Division.

Article II, § 2 of the New York Constitution, adopted in 1919, states that "[t]he legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence or . . . may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes."² Thus, in New York, the right to vote by absentee ballot is purely a statutory right (see NY Const, art II, § 2; Election Law § 8-400).

The Legislature passed absentee voting legislation in 1920 (see L 1920, ch 875). New York was among the many states that "built in elaborate provisions to safeguard voter privacy and the integrity of the ballot" (J. Fortier and N. Ornstein, The Absentee Ballot and The Secret Ballot: Challenges for Election Reform, 36 U Mich JL Reform 483, 492-493 [2003]). The safeguards were adopted in recognition of the fact that absentee ballots are cast without the secrecy and other protections afforded at the polling place, giving rise to greater opportunities for fraud, coercion and other types of mischief on the part of unscrupulous partisans (id. at 492-493, 512-513).

Consistent with the limited circumstances contemplated in the Constitution, Election Law § 8-400 (1) provides that a voter may be qualified to cast an absentee ballot if he or she will be "unavoidably absent from the county of . .. residence" on election day, is "unable to appear personally at the polling place . . . because of illness or physical disability," including due to treatment at a hospital, or is detained in jail awaiting trial or in prison after conviction for a nonfelony offense. Like its predecessors, the current New York Election Law prescribes a detailed scheme for the issuance, collection and canvassing of absentee ballots. Prior to casting an absentee vote, the Election Law requires that the voter apply for an absentee ballot. Among other information, the written application must contain "[a] statement, as appropriate, that on the day of such election the applicant expects in good faith to be in one of the . . . categories" qualified to vote by absentee ballot (Election Law § 8-400 [3] [c]). The prospective voter must sign the application, certifying that the information in it is true and correct, and affirm an understanding "that this application will be accepted for all purposes as the equivalent of an affidavit and, if it contains a material false statement, shall subject me to the same penalties as if i had been duly sworn" (Election Law § 8-400 [5]). Significantly, the Election Law does not allow automatic renewal of absentee ballot applications unless a voter is determined to be "permanently disabled" or is a "hospitalized veteran" (see Election Law § 8-400 [4]; § 8-404); only then are election officials permitted to send absentee ballots without a specific request.

Upon receipt of an absentee ballot application, the local board of elections determines "upon such inquiry as it deems proper whether the applicant is qualified to vote and to receive an absentee ballot," which may include conducting an investigation into the accuracy of the information provided (Election Law § 8-402 [1], [2]). If the board finds the application acceptable, the absentee ballot will be forwarded to the voter (Election Law § 8-402).

The form of the absentee ballot is dictated by Election Law § 7-122. Under the statute, the ballot is enclosed in an envelope bearing an affirmation that must be signed by the voter, as follows:

"I do declare that I am a citizen of the United States, that I am duly registered in the election district shown on the reverse side of this envelope and I am qualified to vote in such district; that I will be unable to appear personally on the day of the election for which this ballot is voted at the polling place of the election district in which I am a qualified voter because of the reason given on my application heretofore submitted . . .

"I hereby declare that the foregoing is a true statement to the best of my knowledge and belief, and I understand that if I make any material false statement in the foregoing statement of absentee voter, I shall be guilty of a misdemeanor" (Election Law § 7-122 [8]).

Thus, at the time the completed ballot is forwarded to the board, the voter reaffirms that he or she continues to be unable to vote in person at the polls on the day of the election for the reason previously attested to in the application.

Once the ballot is returned to the board, it is subject to challenge by an inspector, watcher or any registered voter "upon the ground . . . that the voter was not entitled to cast an absentee . . . ballot," among other grounds (see Election Law § 8-506 [1])....