Supreme Court, Niagara County, December 22, 2021

Messina, Perillo & Hill (John Ciampoli of counsel) for petitioner.

Michael E. Benedict for William D. Kennedy, II, respondent.

Claude Joerg, County Attorney, for Niagara County Board of Elections, respondent.

The principal issues before the court are whether to invalidate three electoral ballots and [*2]whether to burst open an envelope containing another one.

Petitioner Christopher P. Voccio and respondent William D. Kennedy, II, are opposing candidates for the office of County Legislature District 6, for the County of Niagara. Respondent Niagara County Board of Elections is authorized under the Election Law with the administration of the elections for the County of Niagara.

A general election was held on November 2, 2021. The initial count for the office of County Legislature District 6 was so close that a mandatory hand count of all ballots took place. Three previously scanned ballots (NY St Cts Elec Filing [NYSCEF] Doc Nos. 9, 14) are now in dispute as a result of the hand count.

There is also an outstanding affidavit ballot that has neither been opened nor counted. The affidavit ballot was completed by a voter who presented to the polls on election day but whose name could not be located in the registered voter ledger, apparently{**74 Misc 3d at 319} because the voter's so-called "mail check" postcard had been returned to the Board of Elections by the Postal Service (NYSCEF Doc No. 11). The voter affirmed under penalty of perjury that she had not moved from her residence and knew of no reason why she could not vote in the election. The voter completed her ballot and it was placed in an envelope, where it remains sealed.

Respondent Kennedy objected to the affidavit ballot and it was set aside for review and consideration by the Board of Elections Commissioners. Both initially ruled the affidavit ballot should not be opened because the address on the voting records purportedly did not match the voter's name. When it became apparent that the three hand-counted ballots all contained votes for respondent Kennedy and placed him in the lead, Acting Republican Commissioner Michael Carney changed his mind about keeping the affidavit ballot sealed. He now wishes it opened and its unknown vote counted.

On December 6, 2021, petitioner filed the instant petition and order to show cause seeking, inter alia, to invalidate the three hand-counted ballots and to "burst" the envelope containing the affidavit vote. In support of bursting the envelope, petitioner Voccio submits a more detailed affidavit of the disenfranchised voter, which essentially attests that she has lived at and voted from the same address for 40 years (NYSCEF Doc No. 3). Board of Elections voting records submitted by the Niagara County Attorney further document that she has been consistently voting from the same address since at least 1998 (NYSCEF Doc No. 17).

The order to show cause was signed and uploaded to NYSCEF on December 7, 2021. Respondent Kennedy filed an answer and a memorandum of law on December 9, 2021. Oral argument was heard on December 13, 2021. All parties agreed that an evidentiary hearing was unnecessary and the issues at bar could be decided on the basis of the submissions made.

Regarding the three disputed hand-counted ballots, each one has an oval filled in the appropriate voting square, indicating a vote for William D. Kennedy, II, for County Legislature. Petitioner contends that the ballots should be invalidated because they also contain extraneous markings, in violation of Election Law § 9-112. While respondent concedes that each of the three ballots has additional markings, he urges that they should nonetheless be counted. More specifically, respondent contends that a ballot with an additional "X" and the initials {**74 Misc 3d at 320}"DDH" in the voting square for judicial candidate John Licata merely invalidates the voter's Supreme Court vote but not his County Legislature vote. Respondent also contends that a ballot where the voter apparently wrote "Byron Brown" on the face of the ballot (but not in any particular voting square) should be counted because Byron Brown was a mayoral candidate in the City of Buffalo but not an eligible voter in Niagara County. Respondent further contends that a ballot with Mr. [*3]Kennedy's middle initial "D" filled in should be validated because the marking was inadvertent.

Pursuant to Election Law § 9-112 (2), a cross "X" mark or a check "V" mark, made by the voter, in a voting square at the left of the candidate name, or the voter's filling in such voting square, shall be counted as a vote for such candidate. Pursuant to Election Law § 9-112 (1), the vote does not count and the whole ballot is generally void (with an exception to be discussed below) when the voter makes any other mark in the voting square. It is well-settled that extraneous marks in ballots that could serve to distinguish the ballot or identify the voter, as opposed to so-called "inadvertent marks," will render an entire ballot blank. (See 50 NY Jur 2d, Elections § 562 ["Ballot irregularities by marks outside voting square—Distinguishing or identifying marks"].)

[1] Respondent relies upon an exception set forth in Election Law § 9-112 (1) (d), which permits an individual voting square (here, for judicial candidate John Licata) to be invalidated but not the entire ballot. While this exception applies to extraneous markings that are inadvertent, it does not apply to markings that are either distinguishing or identifying. Here the markings—the apparent initials of the voter—tend to be both distinguishing and identifying—thus invalidating the entire ballot (Matter of Smajic v Oneida County Bd. of Elections, 66 AD3d 1529 [2009]; Matter of Carney v Davignon, 289 AD2d 1096 [2001]). Statewide regulations also support the conclusion that the entire ballot must be struck. Pursuant to 9 NYCRR 6210.13 (a) (1),

"A ballot that is marked or signed by the voter in such a way that it can be identified from other ballots must be voided and none of its votes counted. Examples of such markings include, but are not limited to: voter signature, initials, . . . or unusual markings not related to indication of the vote choice for a contest" (emphasis supplied).

{**74 Misc 3d at 321}Accordingly, the ballot containing the voter's initials over the John Licata voting square is invalid in its entirety.

[2] As to the ballot containing the extraneous handwritten words, "Byron Brown" (NYSCEF Doc No. 14), markings containing written words are distinguishing, rendering the ballot invalid. (See Matter of Young v Fruci, 112 AD3d 1138 [2013]; Matter of Mondello v Nassau County Bd. of Elections, 6 AD3d 18 [2004].) A ballot with the extraneous marking in the form of a name, including "Mickey Mouse," is also identifying, thus invalidating the whole ballot. (See Matter of Franke v McNab, 73 AD2d 679 [1979].) Whether "Byron Brown" was a registered Niagara County voter or candidate for Mayor of Buffalo is as relevant as whether "Mickey Mouse" was a registered Niagara County voter or candidate for Mayor of Disneyland. The issue is whether "Byron" and "Brown" are written words. Both clearly are. They are also "unusual markings not related to indication of the vote choice for a contest" as set forth in 9 NYCRR 6210.13 (a) (1). Accordingly, the ballot containing the words "Byron Brown" is invalid in its entirety.

[3] This leaves the third contested ballot, the one with both respondent William D. Kennedy's middle initial "D" and the voting square oval filled in. While this extraneous marking might be redundant, it is neither distinguishing nor identifying. The ballot is therefore not invalidated and shall remain counted.

As to the still unopened affidavit ballot and as previously noted, it was completed by a long-active voter who presented to the polls but whose name could not be located in the voter ledger because someone removed her name from the ledger. The purported basis for removal was a postcard, also referred to as a "mail check post card," with the name and address of the voter in question on its face, sent by the Postal Service to the Niagara County Board of Elections, and stamped "return to sender, postage due." While it appears that this was the basis for removing the voter from the ledger, it is unclear who removed the voter's name from the [*4]ledger, when that occurred and what if anything else was done—such as checking the Board's own voting records—to justify removing the voter's name from ledger. What is clear is that the voter affirmed, under penalty of perjury, that she had not moved from her residence and knew of no reason why she could not vote in the election. The voter then made another, more detailed affidavit, attesting to the fact that she lived at that address on election{**74 Misc 3d at 322} day, has lived there for 40 years and has voted every year. The voter's voting records were located and confirm her sworn averments.

In support of bursting the ballot, petitioner contends, inter alia, that regardless of the timing or result of the Commissioners' votes on whether to open the ballot, it was a mistake to have removed the voter's name from the ledger in the first place and she should have been permitted to cast her vote without further ado. In opposition to the bursting of the ballot, respondent urges the court to strictly interpret the Election Law and contends the court is "barred" from ordering that it be burst or counted, principally because the court lacks the authority to determine whether a voter lives at a claimed address or was a properly registered voter.

While the court might not have the authority to determine the residency of a voter, it clearly has the authority to review whether an employee at the Board of Elections made a mistake. More to the point, Election Law § 16-106 (1) requires the court to order the casting and canvassing of all ballots rendered invalid solely because of a ministerial error by a Board of Elections or its employees. Ministerial errors are clerical or other minor errors apparent on the face of the ballot and the Board's records, such as overlooking a voter's registration records. When the Board of Elections is canvassing an affidavit ballot envelope, and the Board's records—along with the sworn statements on the face of the affidavit ballot envelope—establish that the voter was eligible and entitled to vote in the election, it must then cast and canvass her ballot (Tenney v Oswego County Bd. of Elections, 71 Misc 3d 400, 409-410 [2021]). In elaborating upon a motion court's powers under Election Law § 16-106 (1)—including the power to ameliorate ministerial errors—our state's highest Court has made it clear that "[t]he right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever . . . possible . . . transcends technical errors" (Matter of Gross v Albany County Bd. of Elections, 3 NY3d 251, 258 [2004]).

[4] Here, there is no genuine issue as to whether the voter in question lived at the address in question and was registered to vote. The pertinent issue is whether removing her name from the ledger, based solely upon a return-to-sender card from the post office, was a mistake. In light of the voter's sworn affirmations and the Board of Elections' own voting record data, it clearly was. Accordingly, the court orders the envelope to be burst and the affidavit ballot to be counted.{**74 Misc 3d at 323}

In summary, as to the three hand-counted ballots, two shall be invalidated and one shall be counted. As to the unopened absentee ballot, the envelope shall be burst and the vote counted, unless there is some other legal infirmity.