Smith v. Sullivan
| Decision Date | 11 December 2012 |
| Citation | 959 N.Y.S.2d 588,2012 N.Y. Slip Op. 22368,38 Misc.3d 727 |
| Parties | Richard J. SMITH, personally and as Candidate-aggrieved, Petitioner, v. Roseanne SULLIVAN, Respondent–Candidate; and The Orange County Board of Elections; and Susan A. Bahren and David C. Green in their official capacity as Commissioners of the Orange County Board of Elections, Respondents. Roseanne Sullivan, Candidate-aggrieved, Petitioner, Richard J. Smith, Candidate; and The Orange County Board of Elections, Respondents. Roseanne Sullivan, Candidate-aggrieved, Petitioner, v. Richard J. Smith, Candidate; and The Orange County Board of Elections, Respondents. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Jonathan Jacobson, Esq., A. Joshua Ehrlich, Esq., Jonathan Chase, Esq., New Windsor, for Petitioner/Respondent Roseanne Sullivan.
Langdon Chapman, Esq., Damian Brady, Esq., Bonacic, Krahulic, Cuddeback, McMahon & Brady, LLP, Middletown, for Petitioner/Respondent Richard J. Smith.
Sharon Worthy–Speigl, Esq., Chief Assistant County Attorney, Office of the Orange County Attorney, David L. Darwin, Goshen, for Respondent Orange County Board of Elections and Commissioners Susan A. Bahren and David C. Green.
These two Election Law proceedings were commenced simultaneously, or nearly so, by Richard J. Smith 1 and Roseanne Sullivan 2, the candidates in the special election 3 for the office of County Legislator in the 18th District of Orange County, each of whom presented an Order to Show Cause to me for signature on November 19, 2012. In essence, each candidate seeks the disqualification and nullification of certain ballots cast, but not yet counted, in the election held on November 6, 2012, for that office. In addition, because of unusual circumstances surrounding the casting of ballots at the Bullville Fire Station, circumstances that this Court would hope will not ever be repeated, candidate Smith seeks to have this Court order certain voters who were given incorrect ballots on Election Day be allowed to cast affidavit ballots for that office. The reasons for that request are discussed more fully below. Suffice it to say that such a request presents a case of first impression. Except as noted herein, each party has opposed the other's application.
On the Court's own motion, the two proceedings are consolidated for disposition.
On December 4, 2012, this Court held a hearing on the parties' applications.
This is a tight race. At the commencement of these proceedings Smith trailed by 4 votes. Smith withdrew certain challenges both before and during the morning session of the hearing. The parties counted those ballots that they both agreed, and the Court ruled, should be counted at the Court's lunch recess.4 As a result, by the time of the afternoon session and at the time of the writing of this Decision, Smith trails by 12 votes. This is the exact number of votes which remain subject to the parties' challenges (2 by Sullivan; 10 by Smith). Hence, if this Court invalidates even one vote on either party's application, Smith cannot possibly prevail in this election. Nevertheless, he asks the Court to disqualify 10 ballots. Thus, although he could have withdrawn his challenge to those votes and, perhaps, saved a chance at victory, or at least a tie, if he “ran the table”, he chose otherwise. I must conclude, therefore, that he seeks either a pyrrhic victory or to create law relating to the Bullville error which is more fully described below. Curiously, Sullivan has not withdrawn her opposition to the ballots which Smith wants disqualified even though doing so would guaranty her victory by rendering it mathematically impossible for Smith to garner enough votes to close the current gap.
Leaving their respective strategies to them, based on the evidence presented to me at a hearing held on December 4, 2012, the oral arguments of counsel and their various legal memoranda, I hold as follows:
I. THE SULLIVAN APPLICATION
Sullivan moves to have the Court declare as null and void two ballots on the basis that each of them contain extraneous marks. The extraneous marks, according to Sullivan, mandate the rejection of the ballots. Smith opposes that application.
As a preliminary matter, the Court notes that Smith's counsel contends that only one ballot was actually contested by Sullivan and that the other was contested by Election Commissioner Bahren. At oral argument Sullivan's counsel asserted, as an officer of the Court, that he had joined Commissioner Bahren's objection. The answer submitted on behalf of the Orange County Board of Elections and the Commissioners for both major political parties state that Sullivan's counsel objected to two ballots.5 Accordingly, the Court finds that Sullivan objected to both of the contested ballots.
Smith opposes Sullivan's petition, asserting that she does not sufficiently identify the claimed defects of these ballots in her petition. He also asserts that any extra marks that appear on the ballots were not pertinent to the casting of the votes in this race and, therefore, the votes cast in this race should be counted.
As to the first of Smith's contentions regarding the sufficiency of Sullivan's petition, fundamental fairness dictates that a party should know, in advance, which ballots are being challenged and the basis for the challenge so that the party opposing the application can be prepared to rebut those claims. In her petition, Sullivan placed Smith on notice of her intention to challenge two ballots (para. 5) and the basis for that challenge. At paragraph 6 of her petition, she states that “[t]he objections involved marking on the ballots”; “extraneous marks on the ballots”; “irregular markings.” Unlike the facts in Matter of Krueger v. Richards, 59 N.Y.2d 680, 463 N.Y.S.2d 413, 450 N.E.2d 219 [1983], Smith has not been surprised by a last minute objection voiced by Sullivan at the hearing and has had adequate time to prepare to rebut Sullivan's application to disqualify the votes.
I hold that the petition sufficiently identifies the claimed defects with the ballots as involving extraneous markings and that such allegations gave sufficient notice to Smith as to the nature of the challenge mounted. The claimed defects on the challenged ballots fall within the general category of extraneous markings. As such, I will address the merits of that challenge.
Election Law § 9–112(1) provides, in pertinent part:
“The whole ballot is void if the voter (a) does any act extrinsic to the ballot such as enclosing any paper or other article in the folded ballot or (b) defaces or tears the ballot ... (c) makes any erasure thereon or (d) makes any mark thereon other than a cross X mark or a check V mark in a voting square, or punching a hole in the voting square of a ballot intended to be counted by machine or (e) writes, other than in the space provided, a name for the purpose of voting; except that an erasure or a mark other than a valid mark made in a voting square shall not make the ballot void but shall render it blank as to the office, party position or ballot proposalin connection with which it is made.” (emphasis added)
For her first challenge, Sullivan urges that a ballot, which has been admitted into evidence as Exhibit K–1, should be rejected and nullified because the word “Abandon” has been scrawled across its face.
The law is clear that “[w]here, ... there were written words deliberately placed on the ballot by the voter' the entire ballot is void.” Matter of Mondello, 6 A.D.3d 18, 25, 772 N.Y.S.2d 693 [2nd Dept.2004] ( emphasis added ), quoting Matter of Scanlon v. Savago, 160 A.D.2d 1162, 1163, 554 N.Y.S.2d 81 [3rd Dept.1990]; (citations omitted). Hence, if the word “Abandon” was, in fact, written on the ballot by the voter, the ballot would clearly be void and of no effect.
At the hearing, counsel for the Board of Elections advised the Court that “Abandoned” is a term of art used where ballots are completed and cannot be associated with a voter and that when such ballots are found on a voting machine unattended,6 they are marked “Abandoned” and are placed into an “Abandoned Ballot Bag”. The ballot in question bears a sticker that reads “Objected to by Jacobson, From Abandoned Ballot Bag”. The proof therefore compels the conclusion that this ballot was, in fact, retrieved from the Abandoned Ballot Bag.
Sullivan's counsel asserted at the hearing that, generally, where a ballot is abandoned, the word “Abandon” would be written on the rear of the ballot. 7 While this may be true as a general proposition, counsel for the Board of Elections advised that the word can be written on either the front or the rear and that there is no clear practice in place with respect to where the word should be written. Clearly, better practice would be for election workers who discover a ballot believed to be “abandoned” to write the word on the rear so as not to create extraneous marks on the face. Doing so would avoid confusion as to whether markings were made on a ballot by a voter or an election worker. Even better practice would be for the election worker to actually write a brief explanation on the rear indicating the time and location where the ballot was found so that a clear determination of the factual scenario under which the ballot was found could be made by a court at a later date, if necessary. Had such a method been in place for this election, the parties and the Court would have greater certitude as to the relevant circumstances.
On its own motion, the Court directs the Orange County Board of Elections Commissioners to develop and implement a consistent procedure and method throughout the County for the identification and marking of ballots believed to be abandoned.8 Election poll workers shall be instructed, as part of their pre-election training as to the procedure and method developed. This will avoid circumstances like this one where a court is...
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