Egan, Application of
| Citation | 511 N.Y.S.2d 465,134 Misc.2d 500 |
| Parties | In the Matter of the Application of William J. EGAN and Roger P. Higgins, For a Recanvassing of Void, Blank, and Protested Ballots; for an Examination of Ballots; for an Order to Transfer Enrollments and Ballots; and for Recanvassing of Votes Where Absentee Ballots were Improperly Allowed and Counted in Legislative District VII of the Town of Wappinger and Town of Poughkeepsie for the Office of County Representative for the County of Dutchess at the General Election held on the 4th day of November, 1986. |
| Decision Date | 06 December 1986 |
| Court | United States State Supreme Court (New York) |
Bernard Kessler, Hyde Park, for petitioner Egan.
James Coombs, Poughkeepsie, for petitioner Higgins.
Raymond C. Baratta and Alan Rappleyea, Poughkeepsie, for respondent McCluskey.
With the candidates locked in a tie vote, petitioners have brought on this proceeding pursuant to § 16-106 of the Election Law, in connection with the election for the 7th District County Representative for the Dutchess County Legislature, held on November 4, 1986. 1
Petitioners seek an order directing that the absentee ballot of Raymond J. Kane be opened and counted. Respondents resist, and assert that it is defective because the ballot envelope is undated, and is thereby allegedly in violation of Election Law § 8-410.
Notably, the date of the postmark is clear, unlike Matter of Nicolaysen v. D'Apice, 100 A.D.2d 501, 472 N.Y.S.2d 458. Here, the existing documentation and dates are undisputed and conclusive.
We begin with the premise that "The right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible ... transcends technical errors." [See, Matter of Ballien v. Alpert, 42 A.D.2d 302, 303, 346 N.Y.S.2d 886, citing Matter of Weinberger v. Jackson, 28 A.D.2d 559, 280 N.Y.S.2d 235, aff'd, 19 N.Y.2d 995, 281 N.Y.S.2d 834, 228 N.E.2d 816].
The opening words of the New York State Constitution provide that:
... "No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land...." (N.Y.Const., Art. I, § 1.)
The Constitution is a lengthy document, and we take it as instructive that the draftsmen of our Constitution did not discuss voting rights at some more obscure location deep within the document, but that the right to vote was so paramount in their minds as to be expressed first and foremost.
The parties could not produce any case law in which a New York State absentee ballot was challenged because the voter did not fill in the date, nor has the court located any reported case in point. Beyond that, the court's research into case law and statutes outside of New York, yielded no reported instance in which a court decided the validity of an undated absentee ballot. The reason for this became clearer following the exploration of the absentee ballot statutes of other states. Owing to the immediacy and time constraints in election cases, time did not permit a full fifty state survey of statutes, but after reviewing the absentee ballot statutes in the more populous states, the explanation for this dearth of case law is evident. Most of these states do not have a space for the insertion of a date on the absentee ballot envelope. The court has examined the relevant statutes of California, New Jersey, Illinois, Ohio, Michigan, Nebraska, and Texas, among others. 2
Of these states, only California [West's Anno.Cal.Election Codes § 1009] has a date line. There is no date line in the New Jersey statutory absentee ballot [New Jersey Statutes Annotated, § 19:57-16-19] nor is there any in Illinois [see Illinois Election Code, Ch. 46, § 19-5], Ohio [see Ohio Rev.Code Anno. § 3509.04], Michigan [see Mich.Comp.Laws Anno., § 168.761], Nebraska [see Nebraska Rev.Statutes § 32-835], or Texas [see Texas Annotated Elec.Code, Title 7, § 86.013]. The reason for this is obvious. The exact moment at which an absentee voter signs the ballot envelope is seen as immaterial, provided he signs it and returns it to the Board of Elections within the proper time frame. At bar, the voter Kane was concededly a duly registered voter, who concededly received a proper absentee ballot from the Board, and returned it well in time. There is no claim of deception, dishonesty, or wrongdoing, nor room for any. The documentary evidence, examined by the court and the parties, reveals that Kane, with absolute mathematical certainty, signed and returned the ballot sometime between October 21, 1986 and October 23, 1986. The records of the Board plainly show that Kane signed the application on October 21, 1986, that the application was received by the Board on the same day, that the ballot was postmarked on October 23, 1986, and received by the Board on October 24, 1986. Although Kane did not fill in the date, the postmark date appears clearly on the envelope as October 23, 1986. Whether Kane signed it on Tuesday, October 21, 1986 at 2 p.m. or Wednesday, October 22, 1986 at 4 p.m. or Thursday, October 23, 1986 at 6 a.m. is completely beside the point, and has no bearing whatever on the integrity of the election process. The compliance here is strict enough to establish, beyond any and all doubt, by unquestioned and unquestionable documentation, that the ballot envelope was signed and returned in timely manner.
This is not to say that a date line on the envelope is always superfluous--although many states consider it so. Conceivably, a case may arise--unlike the present one--in which the information may be useful or pertinent, much the same as other information which other states include, but which New York has omitted. For example, the Florida absentee ballot, which has provision for date/notarization [Fla.Statutes Anno. § 101.64] contains boxes by which the voter is directed to check the reason for his absentee status. When a voter failed to check any box, his vote was judicially upheld, and the challenge rejected, because, like here, the omission had nothing to do with the objectives of strictest compliance, namely, the prevention of fraud or disorder [McLean v. Bellamy (Fla.1983), 437 So.2d 737, 746-748].
We do not for a moment purport to decide New York law based on the facial content of sister state forms. But the omissions of date lines on these sister state forms is instructive because it speaks to the way in which even Presidential elections are decided. Tens of thousands of absentee ballots, without date line, but timely signed and returned, are counted in these populous states, and we can easily understand the reason. The date adds nothing of materiality, and the point is well illustrated by one state, Connecticut, wherein the relevant statute [Connecticut Gen. Stat. Anno. § 9-158f], has a date line, but provides as follows: The failure of the voter to date the statement shall not invalidate the ballot. And why should it? Connecticut said what one would expect most any legislature or judge to say, if only asked. Unlike Connecticut, New York is silent as to the consequences of date line omission, and that is why the contention is pressed. Given legislative silence, we should not, either on grounds unsupported by national practice, or common sense, apply a rule of such grudging exclusion that it would strip an honest voter of his right to be heard. Considering that the New York legislature has not decreed that a voter should be denied the franchise in an instance such as this, the court must construe the relevant statutes--so far as they deal with absentee ballot envelopes--to comport with general legislative objectives and to avoid objectionable consequences [McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 141, 143, 146]. Given the basic, constitutional right to vote [New York State Constitution, Art. I, § 1], the legislature is empowered to make laws to implement that right, and is expressly authorized to make provision for absentee voting [N.Y.Const., Art. II, § 2]. Indeed, the Congress passed legislation designed to ease its conduct [42 U.S.C. 1973cc et seq]. 3
In regulating voting, the legislature, reflective of public will, has been zealous to enhance rather than compromise or defeat the right to vote [McCrary, American Law of Elections, p. 1-20]. The courts have historically been equally vigilant in enforcing that right [People ex rel. Deister v. Wintermute, 194 N.Y. 99, 109, 86 N.E. 818], so that the honest voter should not be rebuffed.
Sister state decisional law, close in point, supports the validity of the Kane absentee ballot. In Lanser v. Koconis, (1974), 62 Wis.2d 86, 214 N.W.2d 425, a number of absentee ballots submitted by nursing home residents were held to be valid despite that each ballot envelope was not signed by the voter in the space provided at the bottom of the certification paragraph,...
To continue reading
Request your trial
-
Roe v. Mobile County Appointment Bd.
...(indicating that New York applies a substantial compliance standard in applying election laws); Application of Egan, 134 Misc.2d 500, 511 N.Y.S.2d 465 (N.Y.Sup.Ct.1986) (The court held that no date was needed on the absentee ballot in order to substantially comply. "The right of the voter t......