This proceeding arises under Election Law § 16-106 from the November 4, 2025 General Election for the office of Town Supervisor of the Town of Newark Valley, Tioga County, New York. Respondent Kathleen Grant was the duly nominated Democratic Party candidate whose name appeared on the ballot in Row A for that office. No candidate appeared in the Republican [*2]Party Row B for Town Supervisor. Petitioner James Marzen did not appear on the ballot but mounted a well-publicized write-in candidacy for Town Supervisor. His candidacy was publicly endorsed by the Tioga County Republican Committee, and he was the only actively campaigning write-in candidate for the office.

Following the canvass of ballots cast on November 4, 2025, the initial tally reflected 282 votes for Kathleen Grant and 280 votes for James Marzen. Because the margin of victory fell within the statutory threshold, the Board of Elections was required to conduct a mandatory recanvass pursuant to Election Law §§ 9-208(1) and 9-210.

The Tioga County Board of Elections conducted a public manual recanvass on November 19, 2025. At the conclusion of that recanvass, the Board reported totals of 281 votes for Kathleen Grant and 268 votes for James Marzen, with a limited number of ballots left unresolved due to disagreement between the two Election Commissioners, Kelly A. Johnson and James C. E. Wahls, who serve on a bipartisan basis. Commissioner Johnson took the position that sixteen disputed ballots reflected clear voter intent and should be counted for Petitioner Marzen. Respondent Grant, consistent with Commissioner Wahls's position, argued that a subset of those ballots (thirteen) must be rejected as invalid due to impermissible extraneous or identifying marks, and that additional ballots (three) could not be counted because voter intent could not be ascertained. Respondent Grant also noted her objection to four additional ballots which both commissioners agreed should be counted for Petitioner Marzen.

Petitioners commenced this proceeding by petition filed on November 24, 2025, seeking judicial determination of the disputed ballots. Respondent Grant, by answer and cross-petition, filed December 10, 2025, sought affirmative relief, including a ruling that thirteen ballots be declared void due to extraneous identifying marks and that three additional ballots be rejected because voter intent could not be ascertained.

Because time was of the essence for the citizens of the Town of Newark Valley, the Court conducted the evidentiary hearing on December 12, 2025, at the Tioga County Courthouse. Twenty-one ballots were received into evidence as Court Exhibits 1 through 21. On December 12, 2025, Petitioner's Exhibits 1 through 3 were also received without objection. Additionally, without objection and at the Court's request, Commissioner Wahls submitted voter-registration information for the Town of Newark Valley. The parties were afforded a full opportunity to present argument, and final written submissions were completed by December 22, 2025.

In reaching its determination, the Court has reviewed and considered the petition, answer, cross-petition, affirmations, exhibits, correspondence, and memoranda of law submitted by the parties and the Election Commissioners, together with the testimony and documentary evidence received at the December 12, 2025 evidentiary hearing, including Court Exhibits 1 through 21, each of which was received into evidence and physically examined by the Court on the record, Petitioner's Exhibits 1 through 3, and stipulated voter registration records received both before and after the evidentiary hearing.

Petitioner Marzen's Election Law § 16-106 petition was timely filed on November 24, 2025, within thirty days of the November 19, 2025 mandatory recanvass. Respondent Grant preserved her objections during the recanvass and thereafter timely asserted those objections by answer and cross-petition filed on December 10, 2025, also within thirty days of the recanvass.

Election Law § 16-106(2) expressly provides:

"A proceeding to contest the canvass of returns by a board of canvassers must be instituted within thirty days after the election or alleged erroneous statement or determination was made, or within thirty days after the time when the board shall have acted in the particulars as to which it is claimed to have failed to perform its duty."

Because this proceeding challenges determinations made by a board of canvassers during the November 19, 2025 recanvass, it is governed by this thirty-day limitations period. Both Petitioners' initiating petition and Respondent Grant's responsive filings fall squarely within that jurisdictional window. It would be irrational—and contrary to the structure of the Election Law—to require the prevailing candidate at the administrative level to commence an independent proceeding. Responsive relief by answer and cross-petition is procedurally proper in an Election Law § 16-106 proceeding.

1. Court Exhibit 1 — "James Marzen" written twice: once in Republican Party Row B and once in the write-in space.

2. Court Exhibit 2 — "Jim Marzen" written twice: once in Row B and once in the write-in space.

3. Court Exhibit 3 — "Jim Marzen" written twice: once in Row B with a strikethrough and once in the write-in space.

4. Court Exhibit 4 — "James Marzen" written twice: once in Row B and once in the write-in space.

5. Court Exhibit 5 — Single write-in of "James" once in the write-in space.

6. Court Exhibit 6 — "Jim Marzen" written twice: once in Row B and once in the write-in space.

7. Court Exhibit 7 — "Jim Marzen" written twice: once in Row B and once in the write-in space.

8. Court Exhibit 8 — "Jim Marzen" written twice: once in Row B and once in the write-in space.

9. Court Exhibit 9 — "Jim Marzin" written twice: once in Row B and once in the write-in space.

10. Court Exhibit 10 — "Jim Marzen" written twice: once in Row B and once in the write-in space.

11. Court Exhibit 11 — "Jim Moranz" written twice: once in Row B and once in the write-in space.

12. Court Exhibit 12 — Single write-in of "Martin" once in the write-in space.

13. Court Exhibit 13 — Single write-in of "James" once in the write-in space.

14. Court Exhibit 14 — "Jim Marzen" written twice: once in Row B and once in the write-in space.

15. Court Exhibit 15 — "Jim Marzen" written twice: once in Row B and once in the write-in space.

16. Court Exhibit 16 — "Jim Marzen" written twice: once in Row B and once in the write-in space.

17. Court Exhibit 17 — "Joseph Tomazin" written twice: once in Row B and once in the write-in space.

18. Court Exhibit 18 — Write-in of "Todd Marzen."

19. Court Exhibit 19 — Write-in of "John Marzen."

20. Court Exhibit 20 — Write-in of "John Marzin."

21. Court Exhibit 21 — Write-in of "Jim Marzen," with the printed word "write-in" circled.

New York courts have consistently held that voter intent must be effectuated where it can be reasonably ascertained from the face of the ballot, and that minor misspellings, phonetic spellings, or variations of a candidate's surname do not defeat voter intent where the candidate's identity is otherwise clear. See, Ballien v. Alpert, 42 AD2d 302 (3rd Dept. 1973). At the same time, courts may not supply missing identifying information or speculate as to voter intent where the ballot itself fails to identify any candidate with sufficient specificity. Young v. Fruci, 112 AD3d 1138 (3rd Dept. 2013).

Commissioner Kelly A. Johnson's sworn affirmation and the public voter-registration and tax-roll records submitted therewith establish that Petitioner James Marzen and his wife are the only individuals in the Town of Newark Valley bearing the surname "Marzen," and that no other registered voter or property owner in the Town bears that surname. These undisputed public records permit the Court to ascertain voter intent with certainty where the surname "Marzen" appears on a ballot, including ballots reflecting minor spelling variations, without resort to speculation or inference.

Commissioner Wahls's voter-registration submissions established that, as of December 15, 2025, there are twenty-eight (28) registered voters in the Town of Newark Valley with the first name "James." The record also established that no individual in the Town of Newark Valley is registered to vote with the last name "James." Further, the record established that there are nine (9) registered voters in the Town with the last name "Martin" and six (6) registered voters with the first name "Martin."

Consequently, with respects to ballots, (i.e., Court Exhibits) 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 14, 15, and 16, the Court agrees with Commissioner Johnson that voter intent is readily and clearly ascertainable from the face of the ballots and all such voters, regardless of minor spelling variants, intended to cast their votes for James Marzen. However, although voter intent may be clear, the Court, must determine whether the writing in empty square Row B mandates that such votes nevertheless be voided. See discussion, hereinbelow.

Court Exhibits 5, 12, and 13, which contain only the single common name "James" or "Martin," fail to identify any candidate with sufficient specificity to permit the Court to ascertain voter intent. Crediting such ballots would require the Court to speculate as to which individual—or even whether the voter intended a first name or a surname—the voter meant to designate, a step the Election Law does not permit. Nor may the Court supply a surname or candidate identity that the voter did not write. Although "James" is Petitioner Marzen's first name, the record establishes that "James" is a common first name in the Town of Newark Valley. While the Court could reasonably infer that a voter who wrote only "James" intended to vote for Petitioner Marzen, the Court could also reasonably infer that such a ballot reflects an incomplete or abandoned expression of intent, or that the voter lacked sufficient knowledge of the candidate's identity to formulate a fully formed intent. Where multiple reasonable inferences are possible, voter intent is not readily ascertainable from the face of the ballot. Where a ballot [*3]reflects an incomplete or abandoned expression of intent, and the record demonstrates that the name used corresponds to numerous registered voters in the Town, the ballot must be rejected as incapable of reliable interpretation.

The name "Martin" is neither a misspelling nor a phonetic variation of the surname "Marzen." It is a complete, distinct, and properly spelled name, commonly used as both a first name and a surname, and bears no reasonable linguistic or phonetic similarity to "Marzen." A ballot bearing only the name "Martin" therefore does not identify Petitioner Marzen in any discernible manner. The Court agrees with Commissioner Wahls that these ballots do not identify any candidate with sufficient specificity without resorting to impermissible inference and speculation. Accordingly, with respect to Court Exhibits 5, 12, and 13, voter intent cannot be ascertained without resort to impermissible inference or speculation.

While the intent of the voter is paramount where it can be reasonably ascertained from the face of the ballot, courts may not disregard statutory mandates designed to protect ballot secrecy and uniformity. Where ballot markings undermine secrecy or violate express statutory prohibitions, the Legislature has mandated rejection even at the cost of excluding votes cast in good faith.

Election Law § 9-112(1) draws a deliberate distinction between technical voting errors and ballot-level defects that compromise ballot secrecy. Where a ballot contains an impermissible extraneous or identifying mark—i.e., a mark that could possibly distinguish or identify the ballot—the Legislature has mandated rejection of the ballot notwithstanding otherwise clear voter intent. In such circumstances, courts are without discretion to count the ballot.

Election Law § 9-112(1) provides, in relevant part, that "the whole ballot is void if the voter . . . (d) makes any mark thereon other than a cross X mark or a check V mark in a voting square, or filling in the voting square, or (e) writes, other than in the space provided, a name for the purpose of voting[emphasis added]." The statute thus addresses intentional voting-related writing or marking made for the purpose of casting a vote, not inadvertent or accidental marks unrelated to voting. Where a voter deliberately writes a candidate's name, or deliberately makes any other type of identifying mark, outside the space provided for voting, the Legislature has mandated rejection of the ballot in its entirety. This statutory command leaves no room for partial validation once an impermissible voting-related marking is found. It is reinforced by regulation. 9 NYCRR 6210.13(a)(1) provides that "[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."

The operative test of whether the ballot with extraneous marking can be identified from other ballots is possibility, not certainty, of identification [emphasis added]. As the Third Department has held, a ballot must be invalidated where extraneous markings "could possibly identify the voter," even absent proof of actual identification. Gross v. Albany County Bd. of Elections, 10 AD3d 476, 479 (3rd Dept. 2004), affd. 3 NY3d 251 (2004); Scanlon v. Savago, 160 AD2d 1162 (3rd Dept. 1990); Young v. Fruci, 112 AD3d 1138 (3rd Dept. 2013); Brilliant v. Gamache, 25 AD3d 605 (2nd Dept. 2006).

In Kuczynski v. Marshall, 2025 NY Slip Op. 30509(U) (Sup. Ct. Saratoga County 2025), the court, relying on and synthesizing recent Third Department authority, applied Election Law § 9-112 to reject ballots containing impermissible words or markings outside the space provided for voting, notwithstanding otherwise clear voter intent. In doing so, the court cited and followed the Third Department's identifying-mark jurisprudence, including Scanlon v. Savago, supra, and Young v. Fruci, supra, recognizing that where a ballot contains intentionally made distinguishing marks outside the voting box, Election Law § 9-112(1) mandates rejection of the ballot as a whole, regardless of voter intent.

In Nicholson v. DeWitt, 18 Misc 3d 1106(A) (Sup. Ct. Tompkins County 2007), Mulvey, J., citing Gross v. Albany County Bd. of Elections, supra, applied the Third Department's identifying-mark rule and invalidated the ballot upon finding that the extraneous markings "could possibly identify the voter," notwithstanding the absence of fraudulent intent.

Older Third Department authority emphasized effectuating voter intent where technical errors did not compromise ballot secrecy. In Ballien, the Court explained that "[t]he Election Law vests the courts with the power to determine, on a reasonable basis, the intent of the voter in casting his ballot for a 'write-in' candidate," and that "'[t]he right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible . . . transcends technical errors' (Matter of Weinberger v. Jackson, 28 AD2d 559, affd. 19 NY2d 995)." Ballien v. Alpert, 42 AD2d 302, 303 (3rd Dept. 1973). However, although Ballien focused on the intent of the voter, the Third Department noted that the protested ballots, although technically imperfect, did not compromise the "integrity of the secret ballot[emphasis added]." Id.

In Carpinello v. Tutunjian, 154 AD2d 872 (3rd Dept. 1989), addressing minor technical deviations in the placement of write-in votes, the Third Department upheld absentee ballots where voters wrote the candidates' names on the wrong line within the space designated for write-in voting under the correct office, concluding that such technical misplacement did not defeat otherwise clear voter intent. Critically however, Carpinello did not confront — and had no occasion to address — the circumstance presented here: intentional voting-related writing placed outside any area designated by the Legislature for voting. Where a voter deliberately writes a candidate's name in a location not authorized for voting at all, the defect is not a minor technical irregularity but a ballot-level violation governed by Election Law § 9-112(1) and 9 NYCRR 6210.13(a)(1). In such circumstances, the Legislature has mandated rejection notwithstanding otherwise clear voter intent.

Although older authority may have emphasized effectuating voter intent where reasonably ascertainable, even in the face of technical errors, the prevailing Third Department approach has consistently applied strict identifying-mark principles where ballot secrecy is compromised. The modern Third Department line of cases — including Scanlon v. Savago, Young v. Fruci, and Gross v. Albany County Bd. of Elections — reflects this distinction. These decisions recognize that once voting-related writing appears outside the designated space provided, the analysis shifts from voter intent to ballot secrecy and uniformity, and the whole ballot must be rejected if the marking could possibly identify the ballot or voter.

Applying prevailing Third Department precedent, this Court concludes, and concurs with Commissioner Wahls, that ballots containing names written in the blank Republican Party Row B for Town Supervisor must be voided in their entirety. The defect arises not from duplication, but from the placement of voting-related writing in a location the Legislature has not authorized [*4]for voting. Row B contained no listed candidate, no voting square, and no lawful mechanism for casting a vote. Writing names in that location constitutes writing "other than in the space provided" for the purpose of voting within the meaning of Election Law § 9-112(1).

These markings—particularly because they appear on a small, discrete subset of ballots and, in one instance, include a strikethrough—render those ballots distinguishable from the large number of ballots cast in conformity with the ballot design. Under the governing test, the fact that such marks could possibly identify the ballot or voter mandate rejection. Because these defects implicate ballot secrecy itself, the whole ballot is void and none of its votes may be counted. In sum, the Court's determination reflects the careful distinction drawn by the Election Law between voter intent and ballot validity. Although voter intent to vote for Petitioner James Marzen is clear with respect to certain ballots, Legislative and statutory mandates, and controlling precedent protecting ballot secrecy require rejection and voiding of such ballots. Consequently, thirteen ballots, i.e., Exhibits 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 14, 15, and 16 must be voided.^[FN1]

With respect to Court Exhibits 18, 19, 20, and 21, the Court declines to disturb the unanimous determinations of both election commissioners made during the November 19, 2025 recanvass. Where election commissioners unanimously agree as to the validity of a ballot, judicial interference is unwarranted absent a clear violation of statute or controlling precedent. Each of these ballots contains a write-in vote identifying "Marzen," including minor spelling variations, which—given the undisputed voter-registration evidence—uniquely identifies Petitioner James Marzen without ambiguity or speculation. None of these ballots contains extraneous writing or markings made for the purpose of voting outside the space provided within the meaning of Election Law § 9-112.

Nor does the circled printed word "write-in" on Court Exhibit 21 require invalidation. Under 9 NYCRR 6210.13(a)(1), only markings that could possibly identify the ballot or the voter would render a ballot void. Neutral markings that merely emphasize or draw attention to a printed portion of the ballot, within the voting area, without adding words, symbols, or personalized indicia, do not constitute identifying marks. The circle on Exhibit 21 does not distinguish the ballot from others, does not reveal voter identity, and does not compromise ballot secrecy. Accordingly, the unanimous determinations of the Commissioners as to Court Exhibits 18, 19, 20, and 21 remain undisturbed, and those ballots were properly counted for Petitioner James Marzen.

The Court notes, and expressly commends, the professional, fair-minded, and bipartisan manner in which both election commissioners conducted the November 19, 2025 recanvass. Commissioner Wahls and Commissioner Johnson approached their statutory responsibilities conscientiously, transparently, and in good faith, each articulating reasoned positions with respect to the very few ballots in which they could not come to agreement. Their careful stewardship of the recanvass process exemplifies the role entrusted to local election officials and serves the citizens of the Town of Newark Valley by ensuring both electoral integrity and public confidence in the administration of elections.

The Court's determinations dispose of the challenged ballots as set forth herein. The November 19, 2025 recanvass totals remain undisturbed, namely 281 votes for Kathleen Grant [*5]and 268 votes for James Marzen. Accordingly, it is

ORDERED that the challenged ballots are disposed of as determined herein, that the November 19, 2025 recanvass totals of 281 votes for Kathleen Grant and 268 votes for James Marzen remain undisturbed, and that the Tioga County Board of Elections shall canvass and certify the election results consistent with this Decision and Order; and it is further

ORDERED that no costs, disbursements, or attorneys' fees are awarded; and it is further

ORDERED that service of a copy of this Decision and Order with notice of entry upon all parties shall constitute notice of entry for purposes of CPLR § 5513 and any appeal taken pursuant to the Election Law.