Richard J. Smith, personally and as Candidate-aggrieved, Petitioner,
Roseanne Sullivan, Respondent-Candidate; and, THE ORANGE COUNTY BOARD OF ELECTIONS; and SUSAN A. BAHREN and DAVID C. GREEN in their official capacity as Commissioners of the Orange County Board of Elections; Respondents. ROSEANNE SULLIVAN, Candidate-aggrieved, Petitioner, RICHARD J. SMITH, Candidate; -and- THE ORANGE COUNTY BOARD OF ELECTIONS. Respondents. ROSEANNE SULLIVAN, Candidate-aggrieved, Petitioner,
RICHARD J. SMITH, Candidate; -and- THE ORANGE COUNTY BOARD OF ELECTIONS. Respondents.
Jonathan Jacobson, Esq. A. Joshua Ehrlich, Esq. Jonathan Chase, Esq. Attorneys for Petitioner/Respondent Roseanne Sullivan.
Bonacic, Krahulic, Cuddeback, McMahon & Brady, LLP. Langdon Chapman, Esq. Damian Brady, Esq Attorneys for Petitioner/Respondent Richard J. Smith.
Sharon Worthy-Speigl, Esq. Chief Assistant County Attorney Office of the Orange County Attorney, David L. Darwin Attorney for Respondent Orange County Board of Elections and Commissioners Susan A. Bahren and David C. Green.
Paul I. Marx, J.
These two Election Law proceedings were commenced simultaneously, or nearly so, by Richard J. Smith  and Roseanne Sullivan , the candidates in the special election  for the office of County Legislator in the 18th District of Orange County, each of whom presented an Order to Show Cause to me for signature on November 19, 2012. In essence, each candidate seeks the disqualification and nullification of certain ballots cast, but not yet counted, in the election held on November 6, 2012, for that office. In addition, because of unusual circumstances surrounding the casting of ballots at the Bullville Fire Station, circumstances that this Court would hope will not ever be repeated, candidate Smith seeks to have this Court order certain voters who were given incorrect ballots on Election Day be allowed to cast affidavit ballots for that office. The reasons for that request are discussed more fully below. Suffice it to say that such a request presents a case of first impression. Except as noted herein, each party has opposed the other's application. On the Court's own motion, the two proceedings are consolidated for disposition.
On December 4, 2012, this Court held a hearing on the parties' applications. Representing candidate Smith was the firm of Bonacic, Krahulik, Cuddeback, McMahon & Brady, LLP by Langdon Chapman, Esq. and Damian Brady, Esq. Representing candidate Sullivan was Jonathan Jacobson, Esq., A. Joshua Ehrlich, Esq. and Jonathan Chase, Esq. Representing the Orange County Board of Elections and the Commissioners of the Board of Elections, Susan A. Bahren and David C. Green, was Chief Assistant County Attorney Sharon Worthy-Spiegl, Esq.
The following papers were papers considered on these applications:
1. Order to Show Cause and Verified Petition of Roseanne Sullivan dated November 18, 2012;
2. Order to Show Cause and Verified Petition of Richard J. Smith dated November 18, 2012 with exhibits "A" through "C";
3. Verified Answer of Roseanne Sullivan dated November 28, 2012;
4. Verified Answer of Richard J. Smith dated November 29, 2012;
5. Verified Answer of the Orange County Board of Elections to the Sullivan Petition dated November 30, 2012;
6. Verified Answer of the Orange County Board of Elections to the Smith Petition dated November 30, 2012;
7. Affidavit of Susan A. Bahren, Democratic Commissioner of Board of Elections, dated November 30, 2012;
8. Affidavit of David C. Green, Republican Commissioner of Board of Elections, dated November 30, 2012;
9. Affidavit of Courtney Canfield-Greene, Republican Deputy Commissioner of the Board of Elections, dated November 30, 2012 with Exhibit "A";
10. Memorandum of Law submitted in behalf of Roseanne Sullivan dated November 29, 2012 with exhibits "A" through "E";
11. Memorandum of Law submitted in behalf of Richard J. Smith dated December 3, 2012 with exhibits "A" through "E".
STATUS OF THE CONTESTED ELECTION
This is a tight race. At the commencement of these proceedings Smith trailed by 4 votes. Smith withdrew certain challenges both before and during the morning session of the hearing. The parties counted those ballots that they both agreed, and the Court ruled, should be counted at the Court's lunch recess.  As a result, by the time of the afternoon session and at the time of the writing of this Decision, Smith trails by 12 votes. This is the exact number of votes which remain subject to the parties' challenges (2 by Sullivan; 10 by Smith). Hence, if this Court invalidates even one vote on either party's application, Smith cannot possibly prevail in this election. Nevertheless, he asks the Court to disqualify 10 ballots. Thus, although he could have withdrawn his challenge to those votes and, perhaps, saved a chance at victory, or at least a tie, if he "ran the table", he chose otherwise. I must conclude, therefore, that he seeks either a pyrrhic victory or to create law relating to the Bullville error which is more fully described below. Curiously, Sullivan has not withdrawn her opposition to the ballots which Smith wants disqualified even though doing so would guaranty her victory by rendering it mathematically impossible for Smith to garner enough votes to close the current gap.
Leaving their respective strategies to them, based on the evidence presented to me at a hearing held on December 4, 2012, the oral arguments of counsel and their various legal memoranda, I hold as follows:
I. THE SULLIVAN APPLICATION
Sullivan moves to have the Court declare as null and void two ballots on the basis that each of them contain extraneous marks. The extraneous marks, according to Sullivan, mandate the rejection of the ballots. Smith opposes that application.
As a preliminary matter, the Court notes that Smith's counsel contends that only one ballot was actually contested by Sullivan and that the other was contested by Election Commissioner Bahren. At oral argument Sullivan's counsel asserted, as an officer of the Court, that he had joined Commissioner Bahren's objection. The answer submitted on behalf of the Orange County Board of Elections and the Commissioners for both major political parties state that Sullivan's counsel objected to two ballots.  Accordingly, the Court finds that Sullivan objected to both of the contested ballots.
Smith opposes Sullivan's petition, asserting that she does not sufficiently identify the claimed defects of these ballots in her petition. He also asserts that any extra marks that appear on the ballots were not pertinent to the casting of the votes in this race and, therefore, the votes cast in this race should be counted.
As to the first of Smith's contentions regarding the sufficiency of Sullivan's petition, fundamental fairness dictates that a party should know, in advance, which ballots are being challenged and the basis for the challenge so that the party opposing the application can be prepared to rebut those claims. In her petition, Sullivan placed Smith on notice of her intention to challenge two ballots (para.5) and the basis for that challenge. At paragraph 6 of her petition, she states that "[t]he objections involved marking on the ballots"; "extraneous marks on the ballots"; "irregular markings." Unlike the facts in Matter of Kreuger v Richards, 59 N.Y.2d 680 , Smith has not been surprised by a last minute objection voiced by Sullivan at the hearing and has had adequate time to prepare to rebut Sullivan's application to disqualify the votes.
I hold that the petition sufficiently identifies the claimed defects with the ballots as involving extraneous markings and that such allegations gave sufficient notice to Smith as to the nature of the challenge mounted. The claimed defects on the challenged ballots fall within the general category of extraneous markings. As such, I will address the merits of that challenge.
Election Law § 9-112 (1) provides, in pertinent part:
"The whole ballot is void if the voter (a) does any act extrinsic to the ballot such as enclosing any paper or other article in the folded ballot or (b) defaces or tears the ballot... (c) makes any erasure thereon or (d) makes any mark thereon other than a cross X mark or a check V mark in a voting square, or punching a hole in the voting square of a ballot intended to be counted by machine or (e) writes, other than in the space provided, a name for the purpose of voting; except that an erasure or a mark other than a valid mark made in a voting square shall not make the ballot void but shall render it blank as to the office, party position or ballot proposal in connection with which it is made. " (emphasis added)
A. OBJECTED BALLOT NO. 1
For her first challenge, Sullivan urges that a ballot, which has been admitted into evidence as Exhibit K-1, should be rejected and nullified because the word "Abandon" has been scrawled across its face.
The law is clear that "[w]here, ... there were written words deliberately placed on the ballot by the voter' the entire ballot is void." Matter of Mondello, 6 A.D.3d 18, 25, 772 N.Y.S.2d 693 [2nd Dept 2004] (emphasis added), quoting Matter of Scanlon v Savago, 160 A.D.2d 1162, 1163, 554 N.Y.S.2d 81 [3rd Dept 1990]; (citations omitted). Hence, if the word "Abandon" was, in fact, ...