Johnson v. Martins
| Decision Date | 15 December 2010 |
| Parties | In the Matter of Craig M. JOHNSON, appellant, v. Jack M. MARTINS, et al., respondents. (Proceeding No. 1). In the Matter of Jay Jacobs, etc., petitioner-appellant, Joseph Mondello, etc., petitioner-respondent, v. Nassau County Board of Elections, respondent-respondent. (Proceeding No. 2). |
| Court | New York Supreme Court — Appellate Division |
WILLIAM F. MASTRO, J.P., MARK C. DILLON, DANIEL D. ANGIOLILLO, and JOHN M. LEVENTHAL, JJ.
In two related proceedings pursuant to Election Law article 16, inter alia, to preserve for judicial review certain ballots cast in a general election for the public office of State Senator for the 7th Senatorial District held on November 2, 2010, to contest the casting and canvassing or the refusal to cast those ballots, and to direct a manual audit of the voter verifiable audit records of the same general election, Craig M. Johnson, the petitioner in proceeding No. 1, and Jay Jacobs, a petitioner in proceeding No. 2, appeal, as limited by their brief, from (1) stated portions of a decision of the Supreme Court, Nassau County (Warshawsky, J.), dated December 1, 2010, (2) stated portions of a decision of the same court dated December 2, 2010, (3) so much of an order of the same court entered December 6, 2010, as denied those branches of the petitions which were, in effect, to direct a manual audit of the voter verifiable audit records of the same general election, and (4) so much of a final order of the same court dated December 8, 2010,as, upon the decisions dated December 1, 2010, and December 2, 2010, respectively, and upon the order entered December 6, 2010, denied those branches of the petitions which were, in effect, to direct the opening and canvassing of 48 ballots voted in affidavit envelopes or by absentee ballots in the same general election, to direct the casting and canvassing of certain ballots and to prohibit the casting of certain other ballots in the same general election, and to direct a manual audit of the voter verifiable audit records of the same general election.
ORDERED that the final order is modified, on the law and the facts, (1) by deleting the provisions thereof denying those branches of the petitions which were, 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 directing the Nassau County Board of Elections to cast and canvass the absentee ballots designated as Exhibits 33, 154, and 166, and (2) by deleting the provisions thereof denying those branches of the petitions which were, in effect, to prohibit the casting and canvassing of absentee ballots designated as Exhibits 8 and 127 and the ballots designated as Exhibits 182 and 183, and substituting therefor provisions granting those branches of the petitions and directing the Nassau County Board of Elections not to cast and canvass the absentee ballots designated as Exhibits 8 and 127 and the ballots designated as Exhibits 182 and 183; as so modified, the final order is affirmed insofar as appealed from, without costs or disbursements.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the final order in the proceedings ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the intermediate order are brought up for 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 were two candidates for the public office of State Senator for the 7th Senatorial District. These two related proceedings were commenced, among other things, to review the validity of certain ballots pursuant to Election Law § 16-106 and to direct a manual audit of the voter verifiable audit records of the voting 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 federal resources to assist in achieving that goal" (Mem in Support, N.Y. Senate, 2005 McKinney's Session Laws of N.Y., at 2088). To this end, the Legislature enumerated standards, applicable to voting machines or systems, which were to serve as prerequisites for approval by the state board of elections ( see Election Law § 7-202 [L. 2005, ch. 181, § 6] ). One such requirement was that an approved voting machine or system must "retain all paper ballots cast orproduce and retain a voter verified permanent paper record ... [which] shall allow [for] a manual audit" (Election Law § 7-202[1][j] ).
The procedure to be followed by voters and election inspectors on election day was amended to account for the use of the updated voting machines and systems ). 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 ballot scanner 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 by printing the ballot scanner tabulated results tape" (Election Law § 9-102[2][a] ). These tabulated results are to be combined with the results of any hand-counted paper ballots in the return of canvass prepared by the election inspectors ( id.; see Election Law § 9-120).
The board of elections of each county-or a bipartisan committee appointed by that board-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 the committee thereof, shall proceed thoroughly to examine all the election day paper ballots in that election district to determine the result ... [and this] result ... shall supersede the returns 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 must also cast and canvass absentee ballots and ballots voted in affidavit envelopes by persons whose registration was missing on election day ( see Election Law § 9-209). Such ballots are subject to challenge on various grounds ( see Election Law §§ 8-506[1], 9-209[2] [a] ). Moreover, "[a]ny person lawfully present may object to the refusal to cast or canvass any ballot on the grounds that the voter is a properly qualified voter of the election district" (Election Law § 9-209[2][d] ). "The casting or canvassing or refusal to cast challenged ballots, blank ballots, void or canvass absentee ... ballots and ballots voted in affidavit envelopes ... may be contested in a proceeding instituted in the supreme or county court" (Election Law § 16-106[1]; see Matter of Alessio v. Carey, 10 N.Y.3d 751, 753, 853 N.Y.S.2d 528, 883 N.E.2d 352).
The county board of canvassers ( see Election Law § 9-204), must "canvass the votes cast within the county for state ... offices" (Election Law § 9-206). "Upon the completion of the canvass the canvassing board shall make statements thereof, showing separately the result for each office" (Election Law § 9-210). "Such statements shall be certified as correct over 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 of canvassers of each county" (Election Law § 9-216[2] ), and "transmit a certified copy" of a tabulated 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 re-convene "by order of a court of competent jurisdiction, for the purpose of correcting an error or of performing a duty imposed by law ... any new or corrected statement, determination or certificate which is made 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 an order of the court, shall vary from the original statement or certificate" issued by a county board of election, it may become necessary for the state board of canvassers to re-convene and make a new determination 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 the voting machines or systems used in each general election ( see Election Law § 9-211). "Within fifteen days after each general ... election ... the board of elections or a bipartisan committee appointed by such board shall manually audit the voter verifiable audit records from three percent of voting machines or...
To continue reading
Request your trial
-
Forman v. Haight
... ... ] ("the envelope in which that absentee ballot was submitted did not correspond to the signature on the voter's registration poll record"); Johnson v. Martins , 79 A.D.3d 913, 920—21, 917 N.Y.S.2d 207 [2nd Dept. 2010] ("Upon reviewing the absentee ballot designated as exhibit 8, we agree with ... ...
- Amedore v. Peterson
- In the Matter of Frank K. Skartados v. Orange County Bd. of Elections
-
Young v. Fruci
... ... Nassau County Bd. of Elections, 6 A.D.3d at 25, 772 N.Y.S.2d 693; see Matter of Johnson v. Martins, 79 A.D.3d 913, 921–922, 917 N.Y.S.2d 207 [2010], affd.15 N.Y.3d 584, 917 N.Y.S.2d 617, 942 N.E.2d 1043 [2010]; Matter of Scanlon v ... ...