St. John v. Board of Elections of County of Albany
| Decision Date | 19 September 1989 |
| Citation | 546 N.Y.S.2d 301,145 Misc.2d 324 |
| Parties | In the Matter of the Application of Keith C. ST. JOHN, Petitioner, v. BOARD OF ELECTIONS OF the COUNTY OF ALBANY, George P. Scaringe, and Raymond J. Kinley, Commissioners, and John Klein, Joseph Mele, Raymond Scaringe, Election Inspectors, Respondents, For an order pursuant to 16-106 and 16-112 of the Election Law requiring the examination and preservation of certain ballots cast within the Fourth Election District, Second Ward in a party primary for member of the Common Council, City of Albany, Second Ward and directing that said ballots not be counted as being obtained and cast contrary to the provisions of the Election Law. |
| Court | New York Supreme Court |
Thomas K. Keefe, Albany, Attorney for petitioner.
William J. Conboy, II, Albany County Atty., Albany, for respondents (F. Patrick Jeffers, of counsel).
James H.K. Bruner, Albany, for intervenor.
In this special proceeding, petitioner, Keith C. St. John, contends that a significant number of absentee ballots cast for the office of member of the Common Council/Alderman, Second Ward, City of Albany, New York should not be counted by the Board of Elections of the County of Albany because, it is alleged, such ballots were obtained and cast contrary to the provisions of the Election Law. Petitioner seeks an order enjoining and restraining the Board of Elections and the other respondents named from opening and counting the ballots. Arthur Scott, petitioner's opponent in the Democratic Party primary race, appeared in person and by counsel upon the return date.
The crux of the matter concerns alleged uncompleted application forms filed with the Board of Elections by applicants for absentee ballots for the primary election held on September 12, 1989. Following the close of the polls, a poll watcher for petitioner challenged in writing and personally approximately 160 absentee ballots. 1 These specific challenges were made in the Fourth Election District of the Second Ward. The gravamen of the challenge of 108 ballots is that the applicants for such ballots failed to state therein the name of his or her medical practitioner or christian science practitioner. In 19 other cases it is contended that the voters were actually available to vote in person on Primary Day and therefore should not have voted the absentee ballots previously obtained 2.
The right to vote by absentee ballot stems from Article II, Section 2 of the New York Constitution which allows the legislature to provide a manner in which qualified voters who may be absent from their county on election day or who may be unable to appear personally because of illness or physical disability may vote. The specific manner for voting by absentee ballot is governed by the provisions of Title 4 of Article 8 of the Election Law.
Section 8-400 of the Election Law provides in pertinent part as follows:
8-400. Absentee voting; application for ballot
1. A qualified voter may vote as an absentee voter under this chapter if, on the occurrence of any primary election, special election called by the governor, general or New York city community school board district or city of Buffalo school district election he will be:
(a) unavoidably absent from the county of his residence, or if a resident of the city of New York absent from said city, because his duties, occupation, business, or studies require him to be elsewhere on the day of election; or
(b) absent from such county or city because he is on vacation elsewhere on the day of election; or
(c) unable to appear personally at the polling place of the election district in which he is a qualified voter because of illness or physical disability, whether permanent or temporary or because he will be or is a patient in a hospital; or
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(e) absent from the county of his residence, or if a resident of the city of New York, absent from said city, because of his accompanying a spouse, parent or child who would be entitled to apply for the right to vote by absentee ballot if a qualified voter;
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Section 8-400(3) of the Election Law specifies what information the application for absentee ballot must contain and the provisions which are pertinent to this proceeding are as follows:
3. The application for an absentee ballot when filed must contain in each instance the following information:
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(c) A statement, as appropriate, that on the day of such election the applicant expects in good faith to be in one of the following categories:
(i) unavoidably absent from the county of his residence, or if a resident of the city of New York absent from said city, because his duties, occupation, business or studies require him to be elsewhere on such day, and where such duties, occupation, business or studies are not of such a nature as ordinarily to require such absence, a statement briefly describing the special circumstances requiring such absence and the dates when he expects to begin and end such absence; or
(ii) absent from the county of his residence, or if a resident of the city of New York absent from said city, because he will be on vacation elsewhere on such day, the dates upon which he expects to begin and end such vacation, the place or places where he expects to be on such vacation, the name and address of his employer, if any, or if self-employed or retired a statement to such effect; or
(iii) ill or physically disabled; that he has been advised by his medical practitioner or christian science practitioner, giving said practitioner's name and address, that he will not be able to go to his polling place for such election, and whether said illness is permanent or temporary; if he expects to be a patient in a hospital he shall state the name and address of said hospital; or
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(vi) absent from the county of his residence, or if a resident of the city of New York absent from said city,...
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