Amedore v. Peterson

• Decision Date: 07 January 2013
• Parties: In the Matter of George A. AMEDORE Jr., Respondent–Appellant, v. Gregory Peterson et al., as Commissioners of the New York State 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 New York State Board of Elections, et al., Respondents, and George A. Amedore Jr., Respondent–Appellant. (Proceeding No. 2.).
• Court: New York Supreme Court — Appellate Division

102 A.D.3d 995
957 N.Y.S.2d 511
2013 N.Y. Slip Op. 00114

In the Matter of George A. AMEDORE Jr., Respondent–Appellant,
v.
Gregory Peterson et al., as Commissioners of the New York State 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 New York State Board of Elections, et al., Respondents,
and
George A. Amedore Jr., Respondent–Appellant. (Proceeding No. 2.).

Supreme Court, Appellate Division, Third Department, New York.

Jan. 7, 2013.

[957 N.Y.S.2d 512]

James E. Long, Albany, for Cecilia F. Tkaczyk, appellant-respondent.

Lanny E. Walter, Saugerties, for Barbara Bravo and another, appellants-respondents.

Lewis & Fiore, New York City (David L. Lewis of counsel), for respondent-appellant.

Before: MERCURE, J.P., SPAIN, STEIN, McCARTHY and EGAN JR., JJ.

PER CURIAM.

[102 A.D.3d 995]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 [102 A.D.3d 996]election, Amedore and Tkaczyk (hereinafter collectively referred to as the parties) timely commenced these Election Law article 16 proceedings seeking to preserve the ballots cast therein ¹—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 Furman, 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 Furman 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

[957 N.Y.S.2d 513]

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.³Election 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 [102 A.D.3d 997]the 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...