INTRODUCTION

This special proceeding was commenced in accord with the provisions of Article 16 of the Election Law by Order to Show Cause executed March 28, 2008, seeking an Order directing that an absentee ballot be opened, counted and canvassed. The ballot was cast in an election held on March 18, 2008, for the office of Mayor of the Village of Cayuga Heights, Tompkins County. The application arises upon Petition by Walter R. Lynn, one of three candidates for the office, sworn to on March 28, 2008. Respondent James S. Gilmore, III, another candidate for the office, opposes the application, and submits the Affidavit of Counsel, John Alden Stevens, Esq., sworn to April 3, 2008. Respondents Cree and Dewitt, as Election Commisioners, take no position relative to the issues presented, but submit the Affidavit of Stephen Dewitt, sworn to April 1, 2008, for the aid of the Court. All parties appeared by Counsel for oral argument upon the record conducted at the Tompkins County Courthouse in Ithaca, NY on April 8, 2008. This matter was one of three related proceedings presented and argued; the Court rendered a decision from the bench relative to the first two petitions and reserved upon this one for written determination. The legal issues raised in all three petitions were addressed by Counsel for Respondent Gilmore in a Memorandum of Law dated April 3, 2008, and by Counsel for Petitioner Lynn by Petitioner's Memorandum of Law dated April 7, 2008. [*2]

Election Law § 8-410, which provides the method for absentee voting, requires a voter to "subscribe the oath on the envelope" before mailing in an absentee ballot. The format of the oath is prescribed by Election Law § 7-122 [8], which requires the "Statement of Absentee Voter" to include a line for the "Signature or Mark of Voter." The requirement for a signature on the ballot envelope apparently derives from NY Const. art. 2, § 7, which provides that the legislature shall provide for signatures of all voters at the time of registration and at the time of voting. The Appellate Division, Third Department has held that a voter is required to sign an absentee ballot on the outside of the ballot envelope.( Hosley v. Valder et al, 160 AD2d 1094 [3d Dept 1990]). Thus, the law requires a valid absentee ballot to bear the voter's signature on the outside of the envelope.

At the time of oral argument the original unopened envelope containing the contested ballot was presented for review and inspection, and was returned thereafter to the County Attorney to be held pending this determination. What appears on the envelope, though it is only very barely visible on the photocopy annexed to the Petition as Exhibit A, is a circular scrawl, centered on the signature line almost directly over the word "signature". The mark curves upward, with a loop. The issue posed is whether this constitutes a "signature" sufficient by law, and Petitioner's Counsel makes a strong argument that important legal documents of many types often are subscribed and even notarized by an illegible scrawl rather than a clearly legible signature.

General Construction Law § 46 provides that the term "signature" includes "any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing." Interpreting that provision, the Third Department has held that "[i]ntention is a necessary requisite of a signature." (People v. LoPinto, 27 AD2d 63, 66 [3d Dept 1966]). Whether such an intention may be inferred from a particular signature or mark may be a question of law or a question of fact, depending on the circumstances. (Mesibov, Glinert & Levy, Inc. v. Cohen Bros. Mfg. Co., 245 NY 305, 310 [1927]).

The Board of Elections determined not to count the ballot due to the lack of a clearly apparent signature. The Commissioners further located the voter's ballot for the recent presidential primary election, and found a clear signature accompanying the oath on that ballot. (Dewitt Affd para 6). Petitioner's Counsel urges that the Court may direct the Commissioners to conduct further investigation, perhaps by inquiring directly of the affected voter, as the individual resides within the County. There is no precedent or authority for such direction, either in statutory or common law, and this request is therefore denied; the potential for myriad problems in future elections should this procedure be allowed is entirely forseeable.

Under Election Law 9-104 [d], inspectors are required to compare the signature on the ballot envelope with the signature on the registration poll record, the computer generated list of registered voters or the list of special presidential voters and to certify the ballot with the inspector's initials if the signatures correspond. As it did not initially appear from the record that this inspection and comparison had been performed, the Court issued an interim Order by correspondence sent by fax to Counsel in the afternoon following oral argument directing the County Attorney to assist in this regard. [*3]

By correspondence submitted via fax on April 9, 2008, the County Attorney clarifies that the Commissioners had, in fact, made the comparison to the registration poll record, but had also made the comparison to the more recent record, as stated in their Affidavit. Copies of the registration poll record and the voter registration card of this voter were also transmitted for review. There is no correspondence between the clearly legible signatures on these two documents and the scrawl on the ballot.

In the Election Law there are two well established and competing principles underlying this matter. On the one hand, the Court of Appeals has said that "[t]he right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible transcends technical errors . . . There is no question that the object of election laws is to secure the rights of duly qualified electors, not to frustrate them by posing technical obstructions that bear no relationship to the policies underlying the statutes." (Gross v. Albany County Board of Elections, 3 NY3d 251, 258 [2004]). On the other hand, "[b]road policy considerations weigh in favor of requiring strict compliance with the Election Law, for a too-liberal construction has the potential for inviting mischief on the part of candidates, or their supporters or aides, or worse still, manipulations of the entire election process." (Matter of Alessio v. Carey, 2008 NY Slip Op 1833 [4th Dept 2008], quoting Gross, id.) As the Court of Appeals held in Gross, "[a]bsentee voting serves the laudable purpose of opening the voting process to a larger electorate but there are dangers inherent in the system that warrant adherence to Article 8's legislative prescriptions."

In consideration of all the established circumstances as set forth above, and particularly in light of the lack of correspondence between the mark on the ballot and the voter's signatures on record, and with upon due review and consideration of the legal authority as stated, in this matter proper application of the law requires that the ballot be rejected.

Accordingly, the Petition is denied, and the ballot shall not be considered. This constitutes the Memorandum Decision and Order of the Court.

DATED: April 9, 2008

ENTER_________________________________

Hon. Elizabeth Garry [*4]

Original Memorandum Decision and Order together with papers listed in Memorandum Decision and Order: Paula Nichols, Chief Clerk