Tenney v. Oswego Cnty. Bd. of Elections
| Decision Date | 29 January 2021 |
| Docket Number | EFC-2020-1376 |
| Citation | 71 Misc.3d 400,142 N.Y.S.3d 288 |
| Parties | Claudia TENNEY, Petitioner, v. OSWEGO COUNTY BOARD OF ELECTIONS, Oneida County Board of Elections, Cortland County Board of Elections, Madison County Board of Elections, Broome County Board of Elections, Tioga County Board of Elections, Herkimer County Board of Elections, Chenango County Board of Elections, New York State Board of Elections, Keith D. Price, Jr., and Anthony Brindisi, Respondents. |
| Court | New York Supreme Court |
Paul DerOhannesian, Esq., Albany, Joseph Burns, Esq., and John Ciampoli, Esq., Mineola, for Claudia Tenney
Bruce Spiva, Esq., Martin Connor, Esq., Brooklyn, Alexander Tischenko, Esq. and Alexi Velez, Esq., for Anthony Brindisi
Richard Mitchell, Esq., for Oswego County Board of Elections
Robert Pronteau, Esq., New Hartford, Vincent Rossi, Esq., Utica, and John Dillon, Esq., New York, for Oneida County Board of Elections
Karen Howe, Esq., for Cortland County Board of Elections
Tina Marie Wayland-Smith, Esq., for Madison County Board of Elections
Robert Behnke, Esq., for Broome County Board of Elections
Peter De Wind, Esq., for Tioga County Board of Elections
Kimberly Galvin, Esq., and Nicholas Cartagena, Esq., for New York State Board of Elections
This is a special proceeding pursuant to Election Law § 16-106 seeking judicial review of the Respondent Boards of Elections’ rulings on the validity of absentee and affidavit ballots in the 2020 general election for Member of Congress in New York's 22nd Congressional District. Petitioner Claudia Tenney, the Republican candidate, and her Democratic opponent, Respondent Anthony Brindisi, collectively challenged 1,188 of the Boards’ rulings during the canvasses. The Court heard 11 days of testimony from parties and witnesses, as well as argument from counsel, and received 1,474 exhibits, along with 29 evidentiary proffers. The procedural history was complicated, and judicial review delayed, due to canvassing errors (NYSCEF Docs. 110, 111, 153, 172, 173).
With the exception of ballots still being canvassed by the Oneida County Board of Elections pursuant to Court Order, the record is closed. Of the 1,188 challenges initially made by the candidates at the canvasses, 533 were withdrawn during the hearing, and three were not preserved for judicial review. The candidates stipulated to binding resolutions on 43 challenges. Of the candidates’ 609 remaining challenges, the Court affirms 470 of those rulings, and overrules the other 139. Accordingly, based upon the stipulations and the Court's rulings, it is ORDERED that 54 envelopes containing ballots be canvassed; eight ballots be cast, and those votes counted and added to the tally; 47 ballots be voided, and those votes removed from the tally; and 69 ballot envelopes be remanded and canvassed in accordance with Election Law § 9-209 (). The Court's specific rulings on each of the challenges are set forth in the Appendix consistent with the governing legal principles discussed below.
The Court's role in this proceeding is to preserve the integrity of the electoral system by ensuring that the laws governing elections are strictly and uniformly applied ( Gross v. Albany County Bd. of Elections , 3 N.Y.3d 251, 258, 785 N.Y.S.2d 729, 819 N.E.2d 197 [2004] ). This means ensuring that every single valid vote — and only every single valid vote — is counted. Accordingly, all rulings in this Decision and Order are based upon either existing appellate authority or the plain language of the governing statutes and regulations, and each ruling is applied equally to all similarly situated ballots. Previously, this Court exercised its statutory authority and ordered the Boards of Elections to carry out their "dut[ies] imposed by law" by canvassing all ballots in accordance with the provisions of Election Law § 9-209 ( Election Law § 16-106[4] ). Now, in determining the validity of the properly canvassed ballots, only ballots that were challenged during the canvasses, and only the objections made by the candidates at those canvasses, are considered ( Gross , 3 N.Y.3d 251, 785 N.Y.S.2d 729, 819 N.E.2d 197 ; Benson v. Prusinski , 151 A.D.3d 1441, 1444, 58 N.Y.S.3d 685 [3d Dept. 2017] ). In all, the remaining ballot challenges present 17 distinct legal issues, each of which is addressed, and resolved, in Sections "1" through "17" below. The Court's rulings on the individual ballots, in accordance with the legal principles outlined below, are set forth in the Appendix.
To cast a ballot in New York State, an individual must be both qualified and registered to vote ( Election Law § 5-100 ; NY Const. Art. II, §§ 5, 6 ). Voter registrations are actively maintained through the statewide system known as NYSVoter, the "official" registration database for all of New York (Election Law § 5-614[1], [3][h] ; 9 NYCRR 6217.1 [a], [b]). Through NYSVoter, the eligibility status of every voter is tracked in accordance with regulations promulgated by the State Board of Elections ( 9 NYCRR 6217.9 and 6217.10 ). Qualified individuals who are currently registered, and eligible, to vote on the NYSVoter system are categorized as "active" (they will be listed in the local poll books) or "inactive" (they will not be listed in the local poll books) ( 9 NYCRR 6217.9 [a]). Individuals who were previously registered to vote, but removed by election officials, are identified as "purged" (Id. ).
Purged status means that an individual "is no longer eligible to vote in an election." (Id. ) Once purged, an individual must register all over again in order to be eligible to vote ( 9 NYCRR 6217.9 [a][3]). Individuals may be purged by officials — and removed from the list of eligible, registered voters — for several reasons, including a felony conviction, mental incompetency, moving out of the country, or in the course of federally required voter database maintenance under the National Voter Registration Act ( 9 NYCRR 6217.9 [a][5]).
Regardless of the reason for an individual's purge, however — and even if a voter was erroneously purged — this Court has no authority to restore her to registered status in a proceeding brought by a candidate under Election Law § 16-106 (). An individual's registration status can only be changed by a Court in a special proceeding brought by the individual herself pursuant to Election Law § 16-108. Although this rule may at times be unfair (see e.g. Common Cause New York v. Bd. of Elections in the City of New York , 16-cv-6122), this Court has no jurisdiction to reregister purged voters in this proceeding ( Gross , 3 N.Y.3d at 260, 785 N.Y.S.2d 729, 819 N.E.2d 197 ). Accordingly, the 85 individuals in New York's 22nd Congressional District who were identified in the NYSVoter database as "purged" are not eligible to vote, and their ballots will not be cast or counted.
To register to vote in New York State, an individual must file a completed voter registration application with the Board of Elections in the county in which she resides (Election Law Article 5, Title II; 52 USC § 20503 ). So long as her completed registration application is filed at least 25 days before the next upcoming election, the individual applicant will be entitled to vote — even if the local Board fails to properly enter her information into the NYSVoter system database ( Election Law §§ 5-210[3] ; 9-209[2][a][v]). However, if an individual's application was not substantially completed at the time it was received by the proper Board of Elections, then that individual is not registered, or entitled, to vote ( Election Law§ 5-210[8] ). An application that is unsigned is not substantially completed, because the State Constitution requires an individual to be identified by her signature when she registers to vote ( NY Const. Art. II, § 7 ). Accordingly, if an individual submits an unsigned voter registration application, she is not registered or entitled to vote.
If such an individual is somehow improperly listed on the NYSVoter database as in "active" status, the Board of Elections is required to review her affidavit ballot and its registration records during the canvass to determine whether or not she was actually entitled to vote ( Election Law § 9-209[2][a][v] ).1 This is particularly true when the local Board of Elections has marked a voter as "purged incomplete" in its own records because her registration application was incomplete. Just as this Court cannot permit a Board's ministerial errors to result in the rejection of valid ballots ( Carney , 8 A.D.3d at 1086, 778 N.Y.S.2d 631 ), so too can it not permit a Board's ministerial errors to result in the counting of invalid ballots. Accordingly, the eight individuals in New York's 22nd Congressional District who submitted incomplete voter registration applications and were identified as "purged incomplete" by their county Board of Elections are not eligible to vote, and their ballots may not be cast or counted.
In 2005, the Court of Appeals held in Panio v. Sunderland , 4 N.Y.3d 123, 791 N.Y.S.2d 57, 824 N.E.2d 488 that an affidavit ballot cast by an individual who voted at the wrong polling site cannot be counted ( Id. at 128, 791 N.Y.S.2d 57, 824 N.E.2d 488 ). This is often referred to as the "wrong-church, wrong-pew" rule. The Panio holding was based, in part, upon the Court's finding that it "would be unreasonable to require poll workers to ensure that voters are in their proper...
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