A primary election was held for the office of Rockland County Legislator, 17th Legislative District, for the Independence Party on September 18, 2007 as a result of the filing of a petition for an Opportunity to Ballot as well as the filing of a candidate's petitions. After the election, the Rockland County Board of Elections ("Board of Elections") certified the results giving Candidate Connie L. Coker 32 votes and Petitioner Paul Valentine 31 votes. Candidate Coker's name appeared on the machine ballot; Petitioner Valentine's name did not. Independence Party voters who wished to cast their ballots for Valentine had to cast write-in ballots.

Petitioners, including Candidate Valentine, all registered voters of the Independence Party, then commenced this proceeding to have this Court direct that the Respondent Board of [*2]Elections count the votes of certain Petitioners that, they contend, were prohibited from being cast by virtue of actions of certain election officials.

Petitioners seek to have Valentine declared the winner of the primary or in the alternative, for the Court to conclude that sufficient irregularities existed precluding the Court from determining who won the primary and as a result direct a new primary election. A hearing was held on October 3, 2007 and October 4, 2007.

It is Petitioners' contention that the irregularities consisted of voters being directed to place their write-in ballots for Valentine in the wrong slot, being told that the voter had to vote for Candidate Coker because her name was the only one on the face of the machine ballot, that certain voters were made to leave the voting machine without voting for any candidates, that the voters were not able to open the write-in slot to cast their ballot. They also contend that some voters were told that there was no provision for write-in ballots or that they had to go to a different location to cast a write-in ballot. In essence, Petitioners contend that the voters were disenfranchised as a result of the misinformation provided by the election officials.

Respondents Board of Elections contends that it found no sufficient evidence of irregularities with the election, in general, and the write-in ballots, in particular.

It is well settled that the results of an election are entitled to a presumption of regularity and that a party attempting to impeach these results carries the burden of proof. In the Matter of Nodar v. Power,18 NY2d 697.

The court has no power to set aside an election simply because a candidate may be "aggrieved" or because a candidate or one or more voters were deprived of a legal right by reason of some irregularity or other defect in the voting process. It is clear that the court is empowered to act only when such irregularities as may have existed could have affected the result and because of such irregularities it is impossible to determine who was rightfully elected or nominated. Matter of McGuinness v. De Sapio, 9 AD2d 65.

Election Law § 16-102 provides, in relevant part, as follows:

* * *

3. The court may direct ... the holding of a new primary election, ... where it finds there has been such fraud or irregularity as to render impossible a determination as to who rightfully was nominated or elected.

After hearing the testimony offered, the Court finds that Petitioners first witness asked the election officials for help in casting a write-in ballot for Valentine and an official entered the closed voting booth with her. While in the booth, the official instructed her on how to cast a write-in ballot but then told her that she could not vote for a write-in candidate since she had already cast her ballot for someone else. The witness did not cast her vote since she returned the mistakenly pulled lever back to its prior position. [*3]

Petitioner's second witness became confused when entering the booth after seeing no listing for Candidate Valentine - the candidate he sought to vote for. While the voting booth curtain was closed, he stepped through the curtain in search of assistance. Apparently none of the election officials at this polling place were able to provide him with sufficient information at allow him to cast his vote by write-in ballot. He became frustrated in not receiving any meaningful advice and left without voting.

Another of Petitioner's witnesses also sought to write in Petitioner Valentine's name and was told that he had to travel from his place of voting to "Orangetown" to cast his write-in ballot. That advice did not make sense to him and, in frustration, he cast his ballot for Respondent Coker, the only name on the ballot.

The next witness also attempted to cast a write-in vote for Petitioner Valentine and inquired how to cast a write-in ballot. An official entered his voting booth and advised that he was to put his write-in ballot "...there...", pointing to a row on the top of the machine ballot. He placed his write-in ballot where he was instructed by the election official and it was the wrong slot. The witness said that his vote was not counted.

The Republican Commissioner of Elections, acknowledged that a write-in ballot for Petitioner Valentine from the same polling place was deemed an invalid ballot and not counted since it was placed in the wrong column.

None of the witnesses who had problems casting a write-in ballot were advised that they could appear before a Supreme Court Justice, register a complaint or vote by an emergency ballot.

The common thread among all of the witnesses is that there was incorrect, little or wrong information imparted to them by the election officials when each sought assistance in casting their write-in ballots for Petitioner Valentine.

Given the undisputed narrow margin of victory - in this case one (1) vote - the Court concludes that Petitioners have met their burden of proof and established there were sufficient irregularities in the primary as to render impossible a determination as to who rightfully was nominated. Election Law §16-102(3); Matter of Ippolito v. Power, 22 NY2d 594.

Every dictate of fairness and protection of the voters franchise demands that a new election be held. Accordingly, the Court directs that a new primary election be held for the Independence Party for the 17th Rockland County Legislative District and that such election be held at the earliest possible time.

Submit judgment.

Dated:New City, New York

October 5, 2007

[*4]E N T E R:

__________________________

Alfred J. Weiner

Justice of the Supreme Court

To:

Vincent J. Messina, Jr., Esq.

Attorney for Peitioners

Clayton Rivet Esq.

Attorney for Respondent Coker

Patricia Zugibe, Esq.

County Attorney

Attorney for Respondent

Board of Elections