Tenney v. Oswego Cnty. Bd. of Elections

• Court: New York Supreme Court
• Writing for the Court: Scott J. DelConte, J.
• Citation: Tenney v. Oswego Cnty. Bd. of Elections, 71 Misc.3d 385, 140 N.Y.S.3d 670 (N.Y. Sup. Ct. 2021)
• Decision Date: 20 January 2021
• Docket Number: EFC-2020-1376
• 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.

71 Misc.3d 385

140 N.Y.S.3d 670

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.

EFC-2020-1376

Supreme Court, New York, Oswego County.

Decided on January 20, 2021

Paul DerOhannesian, Esq., and Joseph Burns, Esq., for Claudia Tenney

Bruce Spiva, Esq., and Martin Connor, Esq., for Anthony Brindisi

Robert Pronteau, Esq., Vincent Rossi, Esq., and John Dillon, Esq., for Oneida County Board of Elections

Richard Mitchell, Esq., for Oswego 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

Lorraine Lewandrowski, Esq., for Herkimer County Board of Elections

Alan Gordon, Esq., for Chenango County Board of Elections Kimberly Galvin, Esq., and Nicholas Cartagena, Esq., for New York State Board of Elections

Scott J. DelConte, J.

On December 8, 2020, following a two-day hearing that revealed the County Boards of Elections in this action failed to comply with the affidavit and absentee ballot canvassing procedure set forth in Election Law § 9-209, this Court returned those ballots to the Boards with an order to correct their errors and fulfill their statutory canvassing duties. The most serious error occurred in Oneida County, where the Board had administratively rejected nearly 1,800 affidavit ballots without canvassing them at all. Remarkably, even after the ballots were remanded to be properly canvassed, the Oneida County Board attempted to summarily reject them once again, before finally agreeing, on December 21, 2020, to actually review the affidavit ballots and the statewide voter registration database, resulting in the casting of 700 additional votes.

When the judicial review of the challenges in Oneida County resumed in January, new concerns were raised by a series of rejected affidavit ballots that the Board claimed had been cast by voters who were "not registered," despite incontrovertible evidence that those voters had timely filed voter registration applications. In astonishing testimony on January 8 and 11, 2021, the Court learned that the Board had failed to process over 2,400 timely-filed voter registration applications and, to make matters worse, did not openly disclose this fact until January 6, 2021. The Board had also failed to review any of the unprocessed applications during its canvass, despite the law requiring it to do so and the fact that the voters who filed those applications were, as a matter of law, duly registered and entitled to vote in the 2020 general election.

The Oneida County Board of Elections remains subject to this Court's jurisdiction and to the directives in its December 8, 2020 Order (NYSCEF Docs. 110, 111). Accordingly, for the reasons set forth below, ALL affidavit ballots submitted by voters residing in Oneida County are hereby remanded to the Oneida County Board of Elections, and the Board is ORDERED to immediately comply with this Court's prior Order and properly canvass those ballots.

I.

The role of the Court in this proceeding is to preserve the integrity of the electoral system by ensuring that the laws governing the conduct of elections are strictly and uniformly followed ( 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 that the Court's jurisdiction and authority are narrowly limited to: (1) determining whether a challenged ballot is valid on its face, pursuant to Election Law § 16-106(1) ; and (2) directing the correction of errors made by canvassers, pursuant to Election Law § 16-106(4) ( Delgado v. Sunderland , 97 N.Y.2d 420, 423, 741 N.Y.S.2d 171, 767 N.E.2d 662 [2002] ; citing Corrigan v. Bd. of Elections of Suffolk County , 38 A.D.2d 825, 827, 329 N.Y.S.2d 857 [3d Dept. 1972] affd 30 N.Y.2d 603, 331 N.Y.S.2d 35, 282 N.E.2d 122 [1972] ).

This Court has no authority to grant any other relief, regardless of the severity of the transgression or the innocence of the affected voters (Gross , 3 N.Y.3d at 260, 785 N.Y.S.2d 729, 819 N.E.2d 197). Accordingly, this Court cannot — as the Appellate Division admonished in Mondello v. Nassau County Bd. of Elections, 6 A.D.3d 18, 772 N.Y.S.2d 693 (2d Dept. 2004) — "render a determination as to whether a voter was ‘lawfully registered and eligible to vote’ " ( Mondello , 6 A.D.3d at 20-21, 772 N.Y.S.2d 693 ), nor can it direct that an unregistered voter be registered ( Johnson v. Martins , 30 Misc.3d 844, 847, 918 N.Y.S.2d 698 [Sup. Ct. Nassau Cty 2010] ). Other than in a special proceeding under Election Law § 16-108 brought by the voter herself, only a Board of Elections can make the determination that an individual is, or is not, a "registered voter."

However, this Court does have the express statutory authority, and constitutional responsibility, to order the Boards of Elections to perform "any duty imposed by law" relating to their canvassing of ballots ( Mondello , 6 A.D.3d at 21, 772 N.Y.S.2d 693 ; Carney v. Niagara County Bd. of Elections , 8 A.D.3d 1085, 1086, 778 N.Y.S.2d 631 [4th Dept. 2004] ; Election Law § 16-106[4] ), and it cannot allow the Oneida County Board of Elections' incomplete and improper canvass of affidavit ballots to compromise the true election results, nor to disenfranchise any voter. The primary purpose of the Election Law, which this Court must enforce, is to secure the right of qualified individuals to vote, and to safeguard them from disenfranchisement whenever possible ( Hirsh v. Wood, 148 N.Y. 142, 147, 42 N.E. 536 [1895] ; Carney , 8 A.D.3d at 1086, 778 N.Y.S.2d 631 ). This is particularly true here, where the validity of affidavit ballots, which serve as a constitutional safeguard against reoccurring and systemic errors by Boards of Elections, are at stake ( Common Cause/New York v. Brehm , 432 F.Supp.3d 285, 289-300 [S.D.N.Y.2020] ).

II.

A.

This is the last, undecided congressional election in the nation. Unofficial results on election night for early and same day in-person voting placed Petitioner Claudia Tenney, the Republican candidate, 28,422 votes ahead of Respondent Anthony Brindisi, the Democratic candidate, with over 60,000 affidavit, military, special and absentee ballots remaining to be canvassed and counted. On November 4, 2020, the day after the polls closed, Tenney commenced this special proceeding to preserve any ballot challenges for judicial review (NYSCEF Doc. 1). Brindisi thereafter counter-petitioned for the same relief (NYSCEF Doc. 23). On November 10, 2020, this Court issued a Decision and Order permitting the canvasses to proceed and directing the Boards of Elections to take additional steps to preserve certain types of challenged ballots during the canvassing process (NYSCEF Doc. 40).

On November 19, 2020, the parties reported that the Boards' canvasses were completed, and that there were several hundred challenged ballots preserved for judicial review. The Court then set a hearing to begin on November 23, 2020, to review those challenges pursuant to Election Law § 16-101(1) (NYSCEF Doc. 54), which would be broadcast virtually for the parties and the public. At that time, based upon unofficial reports from the Respondent Boards, it was the understanding of the parties and the Court that, out of just over 310,000 votes cast, Tenney led Brindisi in the race by less than 200 votes.

By November 24, 2020, the end of the second day of the judicial hearing, it was apparent to the Court that the Oswego, Oneida, Madison, Herkimer, Chenango, Broome and Cortland County Boards of Elections had failed to comply with the plain and unambiguous statutory mandates governing the performance of their duties with respect to the canvassing of affidavit, absentee, military and special ballots, including the preservation of challenges to rulings by the Boards on objections, the sending of notices to cure, and the canvassing of affidavit ballots. The most egregious error was in Oneida County, where 1,797 affidavit ballots had been administratively rejected by the Board, and were not canvassed at all.

These errors by the Boards of Elections precluded meaningful judicial review of the challenged ballots by the Court at that time. In response to this problem, and upon motions brought on by both Tenney and Brindisi by Orders to Show Cause (NYSCEF Docs. 91-92), the Court issued a Decision and Order on December 8, 2020 directing the Boards to properly canvass all of their affidavit, absentee, military and special ballots in accordance with the procedure set forth in Election Law § 9-209 (NYSCEF Doc. 110, 111). This was to be done publicly, and before representatives from both campaigns, on a staggered schedule over the following three weeks. The Oneida County Board of Elections was the last of the scheduled court-ordered canvasses, set to begin on December 17, 2020.

B.

Judicial review of the challenged ballots resumed the week of December 21, 2020, and was to start with the challenges in Oswego, Herkimer, Madison, Cortland and Chenango Counties, which had already been completed, and then conclude the following week with the challenges in Broome and Oneida Counties. During a December 21, 2020 videoconference, however, the Court was notified by counsel for two of the Respondents that the Oneida County Board of Elections Commissioners were, once again, administratively rejecting all of the affidavit ballots without canvassing them. After discussing this matter with the Court, counsel for the Oneida County Board agreed to restart the court-ordered canvass, and properly canvass all affidavit...