MEMORANDUM-DECISION AND ORDER*fn1
The factual background of this matter has been discussed at length in the prior opinions of both this Court and the Second Circuit Court of Appeals. See, inter alia, Hoblock v. Albany County Bd. of Elections, 422 F.3d 77 (2d Cir. 2005) (Walker, C.J.); Hoblock v. Albany County Bd. of Elections, No. 1:04-CV-1205(LEKDRH), 2006 WL 1509967 (N.D.N.Y. May 24, 2006) (Kahn, D.J.); Hoblock v. Albany County Bd. of Elections, 233 F.R.D. 95 (N.D.N.Y. 2005) (Kahn, D.J.); Hoblock v. Albany County Bd. of Elections, 341 F. Supp. 2d 169 (N.D.N.Y. 2004) (Kahn, D.J.). Familiarity is therefore presumed.
Currently before the Court are Defendant Board's challenges and objections (see Dkt. No. 63) to two (2) ballots in the election race between Candidates Messercola and Carman in the 29th Legislative District. Briefing was received on the objections and challenges (see Dkt. Nos. 61-63), and Oral Argument was held on Wednesday, June 14, 2006. At said Oral Argument, Defendant Board's challenges and objections were joined by Candidate Messercola, appearing through counsel. Candidate Messercola, having been previously dismissed from this case, is no longer a party to this action, see Hoblock, 2006 WL 1509967, at *2, *9, but was permitted to appear and be heard by this Court at the Oral Argument.
The facts concerning the challenges and objections to the two (2) ballots at issue are, briefly, as follows.
Following the counting of the disputed ballots, on Monday, June 12, 2006, one of the disputed elections was resolved, but one remains at issue in this case. The race for the 26th Legislative District has been resolved. Candidate Hoblock defeated Candidate Gross by a vote count of 706 to 702. The election was certified, and Hoblock has been sworn-in to office. See Carol DeMare, Elections Resolved After Two-Year Dispute, TIMES UNION, June 13, 2006, at B1, B6. See also Plntfs-Intervens Letter Brief (Dkt. No. 61, Attach. 1) at 3; Albany County Legislature website at http://www.albanycounty.com/departments/legislature/legislator.asp?id=165 (last visited June 14, 2006) (listing William Hoblock as the 26th District's Legislator). Although Defendant Board claims that there were two unopened ballots in the Hoblock-Gross race that could have been challenged, because of the four-vote margin of victory that challenge was moot, and the race was certified. See Deft's Letter Brief (Dkt. No. 63) at 2.
However, Candidate Messercola and Candidate Carman are tied at 508 votes each in the race for the 29th District's seat. See DeMare, supra, at B1. Two (2) absentee ballots are contested in this race. See id.; Plntfs-Intervens Letter Brief (Dkt. No. 61, Attach. 1) at 3; Plntfs-Voters Mem. of Law (Dkt. No. 62) at 2; Deft's Letter Brief (Dkt. No. 63) at 1-2. Those ballots belong to Richard Luke and Suzanne Luke, and are being challenged because, as Defendant claims, the State courts found the ballots to be invalid. See Plntfs-Intervens Letter Brief (Dkt. No. 61, Attach. 1) at 3; Plntfs-Voters Mem. of Law (Dkt. No. 62) at 2; Deft's Letter Brief (Dkt. No. 63) at 2-4.
Said Voters, and their ballots, are part of the Plaintiffs-Voters group in this matter, which included all forty ballots at issue in this case. See id. See also December 5, 2005 MDO (Dkt. No. 33) (granting Candidates status as Intervenors, and finding that Plaintiffs-Voters could proceed with this case because, in amending the Complaint to include representation for all forty voters, they had separate interests from the Candidates, and Rooker-Feldman did not apply); Plntfs-Voters Motion for Sum. Jdmt. (Dkt. No. 38), amended and corrected by Dkt. No. 41 (seeking a Court Order for the counting of the forty absentee ballots in the 26th and 29th Legislative Districts); May 24, 2006 MDO (Dkt. No. 55) at 6, 15 (specifically referring to forty Plaintiffs-Voters in the discussion, granting Plaintiffs-Voters' Motion (Dkt. No. 38, as amended by Dkt. No. 41), and ordering that all disputed ballots be counted and the elections certified).
Pursuant to the Stipulation "So Ordered" by the Court on Thursday, June 8, 2006, this Court retained jurisdiction to hear challenges and/or objections arising from the counting of votes or certification of the election(s). See Minute Entry (Dkt. No. 60); Plntfs-Intervens Letter Brief (Dkt. No. 61, Attach. 1) at 3; Plntfs-Voters Mem. of Law (Dkt. No. 62) at 2.
The issue to be decided is whether either or both of the contested ballots are valid, and should be counted. The challenged ballots have not yet been opened or counted. The ballots are being challenged because the underlying applications were faxed to the Board, contrary to law. See Plntfs-Voters Mem. of Law (Dkt. No. 62) at 5 n.5; Deft's Letter Brief (Dkt. No. 63) at 2-3.
As cited above, Plaintiffs-Voters Motion for Summary Judgment, as joined by Plaintiffs-Intervenors, was granted in full by this Court. That motion sought to have all forty (40) ballots opened and counted. See Dkt. Nos. 38, 41, 50 & 55. At no time during the proceedings have any parties or intervenors voiced a concern or objection as to there being less than forty voters or ballots at issue, for any reason.
Furthermore, the June 8, 2006 Stipulation contained the following language, in pertinent part, which this Court noted at Oral Argument:
[T]he disputed ballots will be canvassed and counted Monday, June 12th at 11:00 AM, in accordance with New York Election Law. In connection therewith, it is understood and agreed that the Court will maintain its jurisdiction of this matter in order to hear any objections that may be registered at the time the disputed ballots are opened.... It is further stipulated and agreed that following the canvassing and counting of the ballots, certification of a winner will occur no later than Wednesday, June 14th, or at any other time subsequently established by [the Court]. It is further stipulated and agreed that the parties and intervenor candidates will execute and file for endorsement by the Court a stipulation of discontinuance with prejudice in accordance with Rule 41 of the Federal Rules of Civil Procedure....
June 8, 2006 Transcript, at 2-3 (emphasis added). In addition, the Stipulation included a provision whereby all parties and intervenors waived any appeal or challenge of this Court's May 24, 2006 MDO, which ordered the counting of all ...