Cite as: Murphy v. Victor Work, 13-4033, NYLJ 1202638482975, at *1 (Sup. UL, Decided January 10, 2014)

13-4033

Justice Richard Mott

Decided: January 10, 2014

ATTORNEYS

Petitioner: Law Offices of James E. Walsh, Esq., Schenectady, NY.

Respondents for John Sisti: Andrew Zweben, Esq., Kingston, NY.

For Ulster County Board of Elections Beatrice Havranek, Esq., Ulster County Attorney, Kingston, NY.

Papers Considered:

1. Order to Show Cause, dated November 22 2013 Verified Petition dated November 22 2013

2. Petitioner's Memorandum of Law, dated December 23, 2011

3. Respondent's Memorandum of Law, dated December 4, 2013, 4nsrwi dated November 29, 2013, Memorandum of Law, dated December 23, 2013.

4. Transcripts of December 13 and 17, 2013 hearing und the exhibits thereto.

DECISION / ORDER

 

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Petitioner Robert W. Murphy (Petitioner), a candidate for Plattekill Town

 

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Justice, commenced this action to prevent the counting or opening of an absentee ballot submitted in the November, 2013 general election by Joseph A. Demske.

Following the counting of regular ballots, the Respondent Board of Elections canvassed the absentee, affidavit and unscanned ballots. Ultimately, following objections, only Demske's ballot remained unopened and objected to by Petitioner. Presently, Petitioner leads Respondent John Sisti by one vote.

Following the counting of regular ballots, the Respondent Board of Elections canvassed the absentee, affidavit and unscanned ballots. Ultimately, following objections, only Demske's ballot remained unopened and objected to by Petitioner. Presently, Petitioner leads Respondent John Sisti by one vote.

Background

A primary election in Ulster County was held on September 10, 20131. On September 14, 2012, Joseph A. Demske, who, in prior years voted by absentee ballot, requested that the Ulster County Board of Elections issue him an absentee ballot for every election from September 16, 2012 through September 16, 2013, which included the September 10, 2013 primary election. Thirteen days after the September 10, 2013 primary election, Demske submitted to the Ulster County Board of Elections an application dated September 20, 2013 requesting an absentee ballot. In the application, notwithstanding that the primary election date had passed, Demske checked the box requesting a ballot for "Primary Election," but failed to check the box for the impending "General Election"2, or the

 

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box for any election between certain dates3. Demske testified unequivocally that he inadvertently checked the "Primary Election" box rather than the "General Election" box, but his intent was to request the latter. Following receipt of his September 20, 2013 absentee ballot application, the Ulster County Board of Elections issued an absentee ballot to Demske for the 2013 general election, which he timely returned. Petitioner challenges that absentee ballot.

The Parties' Contentions

Petitioner contends that Demske's ballot should not be counted because he did not request an absentee ballot for the 2013 general election. Further, he claims that fraud was perpetrated by reason of an alteration made to Demske's application subsequent to its submission to the Board of Elections4.

Respondent urges that Petitioner failed to meet his burden of proof as to both claims: that he failed to establish the commission of fraud, and that any error by Respondent Board of Elections in providing Demske with an absentee ballot for the 2013 general election was substantial, rather than ministerial.

Discussion

The Election Law provides the procedure for the issuance of absentee ballots

 

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(Election Law §8-400, Matter of Gross v. Albany County Bd. Of Elections, 3 N.Y3d 251, 256 (2004)). A voter is required to complete an absentee ballot application (Election Law §8-400(2)), which must include certain information (see, e.g., Election Law §§8-400(3)(b),(c)) and must be mailed to the Board of Elections at least seven days prior to, or delivered to it by the day before, the election. Election Law §8-402. The Board then determines "upon such inquiry as it deems proper whether the applicant is qualified to vote and to receive an absentee ballot" (Election Law §§8-402(1),(2)) and, if it is satisfied by its inquiry, the absentee ballot is sent to the voter. See, Matter of Gross, 3 N.Y.3d at 256. If the Board decides not issue an absentee ballot, it is required to notify the voter and provide a reason therefor. Election Law §8-402(5).

In Matter of Gross, 3 N.Y.3d at 258, the Court of Appeals emphasized the need for compliance with the framework specified in the absentee ballot provisions of the Election Law. The Court concluded that the error of sending voters absentee ballots with no request therefor could not be "characterized as technical, ministerial or inconsequential because it was central to the substantive process by which voters are determined to be qualified to cast absentee ballots". Matter of Stewart v. Chautauqua County Bd. Of Elections, 14 N.Y.3d 139, 150 (2010). However, in Stewart the concerns that prompted the Gross decision were absent. There, the Board of Elections received timely applications for absentee ballots, albeit lacking necessary information, but nevertheless mailed absentee ballots to such voters with directions to return completed ballot applications along with the absentee ballots. Matter of Stewart, 14 N.Y.3d at 151. The Court held that "the slight deviation from the prescribed procedure utilized by the Board 'can be viewed as substantial compliance

 

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with statutory directives' (Gross, 3 N.Y.3d at 259). The defect in procedure was not a 'substantive deficiency implicating voter qualification' (id at 259 n 3)." Matter of Stewart, 14 N.Y.3d at 151.

Inconsequential deviations from the letter of the law, as here, which do not implicate voter qualification are not fatal. As aforesaid, it is beyond dispute that Demske was qualified to vote in the 2013 general election and intended to request an absentee ballot for that election. However, on his application he mistakenly checked the wrong box. Significantly, his clear intention to vote by absentee ballot in the 2013 general election emerges not only from his testimony, but also by reason of the fact that he submitted his application for an absentee ballot subsequent to the date of the primary election and prior to the 2013 general election. Where, as here, Demske's intent is manifest, his simple error in checking the "Primary Election" rather than the "General Election" box must be deemed to be a mere, technical, inconsequential error, which cannot invalidate his absentee ballot and thereby disenfranchise him. See, e.g., Matter of Stewart v. Chautauqua County Board of Elections, 14 N.Y.3d at 151-2, Matter of Gross v. Albany County Board of Elections, 10 A.D.3d 476, 479 (3d Dept.), aff'd 3 N.Y.3d 251 (2004), Matter of St. John v. Board of Election of County of Albany, 145 Misc.2d 324, 328 (Albany County, 1989).

As the Court of Appeals wrote in Matter of Weinberger v. Jackson, 19 N.Y.2d 995 (1967) affg on op. below, 28 A.D.2d 559 (2d Dept., 1967), "The right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible…transcends technical errors…" Indeed, the "object of election laws is to secure the rights of duly qualified electors, not to frustrate them by posing technical

 

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obstructions that bear no relationship to the policies underlying the statutes." Matter of Gross, 3 N.Y.2d at 258, citing People ex rel Hirsh v. Wood, 148 N.Y.142, 147 (1895). The rationale for requiring a proper application for an absentee ballot is to ensure that no candidate or his/her supporters manipulates the system by issuing ballots that ought not be issued or by refusing to issue ballots that are proper, neither of which applies in this case. Here, Petitioner failed to establish that any election worker acted to favor a particular candidate or that Demske did not intend to request an absentee ballot for the 2013 general election. Therefore, any error by the Board of Election was inconsequential or ministerial and cannot frustrate Demske's intention to cast an absentee ballot. In fact, the Board's transmission of an absentee ballot to Demske for the 2013 general election persuades this Court that the Board perceived Demske's intention to request an absentee ballot for the 2013 general election because his application postdated the September 10, 2013 primary election.

Further, Petitioner utterly has failed to carry his burden of proof that fraud was committed within the Board of Elections by not proving when and by whom the "General Election" box in Demske's application was checked or that such alteration caused Demske's receipt of an absentee ballot. Moreover, Petitioner's reliance upon the doctrine of res ipsa loquitur is clearly misplaced. That doctrine applies to negligence cases and then, in proper circumstances, only permits the inference of ordinary negligence. See, e.g., Davis v. Town of Babylon, 39 Misc.3d 139(A), 2013 WL 1909160 (App. Term, 2013), James v. Wormuth, 93 A.D.3d 1290, 1293 (4th Dept. 2012).

The Board of Elections is directed forthwith to open the subject absentee ballot and

 

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to count it.

This constitutes the Decision and Order of this Court. The Court is forwarding the original Decision and Order directly to Respondent Board of Elections, which is required to comply with the provisions of CPLR §2220 with regard to filing and entry thereof. A photocopy of the Decision and Order is being forwarded to all other parties who appeared in the action. All original motion papers are being delivered by the Court to the Supreme Court Clerk for transmission to the County Clerk.

1. There was no primary election in the Town of Plattekill.

2. Documents submitted by the Board of Elections contain an application for an absentee ballot in which both the primary and general election boxes are checked. Demske testified that in the application he submitted, he checked only the "Primary Election" box.

3. In prior years, Demske had submitted absentee ballot applications in which the "Any election held between these dates" box was checked.

4. The claimed alteration was that the "General Election" box was checked.