In the Matter of the Application of Cheryl L. Teets and PETER TOMASI, Candidates-Aggrieved, Petitioners,
George A. Belcher and ROBERT C. RITCHIE, Candidates, Respondents, and THE ORANGE COUNTY BOARD OF ELECTIONS, Respondent.
Jonathan G. Jacobson, Esq. Attorney for Petitioners.
Sharon Worthy-Spiegl, Esq. Chief Assistant County Attorney.
Attorneys for the Orange County Board of Elections.
Robert E. Krahulik, Esq. Beattie & Krahulik Attorneys for Respondents.
PAUL I. MARX, J.
In this Election Law proceeding, Petitioners, Cheryl L. Teets ("Teets") and Peter Tomasi ("Tomasi"), the candidates of the Democratic and Working Families parties for the two City Council seats in the Second Ward of the City of Port Jervis, NY, seek an Order directing the Respondent Orange County Board of Elections to count two absentee ballots cast, but not yet counted, in the General Election held on November 5, 2013. Respondents George A. Belcher ("Belcher") and Robert C. Ritchie ("Ritchie") are the candidates of the Republican, Conservative and Independence parties for that office. The Orange County Board of Elections ("the Board of Elections") is the governmental entity charged with the responsibility of overseeing, canvassing and tallying votes within the County of Orange.
This proceeding was commenced on November 21, 2013 when counsel for Teets and Tomasi presented an Order to Show Cause to me for signature. The Order to Show Cause sought various relief, including: (a) an Order declaring insufficient, defective and invalid those ballots to which petitioner objected; (b) an Order declaring certain ballots previously ruled invalid by the Board of Elections to be valid; (c) an injunction restraining the Board of Elections from casting and counting those ballots objected to by petitioner; (d) an order directing the Board of Elections to cast and count those ballots ruled by it to be invalid; (e) declaring Teets and Tomasi to be the winners and elected in the race for Councilman for the Second Ward in the City of Port Jervis. Since the proposed Order to Show Cause included an application for injunction, in accordance with 22 NYCRR 202.7(f), petitioners' counsel was directed to give notice to respondents' counsel of the application and the matter was scheduled for the next morning for consideration.
On November 22, 2013, counsel for all parties appeared and an expedited schedule for service of pleadings and completion of discovery was set. In addition, in order to ensure that this Court's decision could be rendered prior to the final day for result certification, November 30, 2013, a hearing was scheduled for November 26, 2013. Finally, counsel for the Board of Elections was directed to provide copies of all relevant materials to all counsel upon request. All counsel were directed to file their submissions with the Court simultaneous with service on their adversaries. As is befitting their professionalism, all counsel complied with the Court's directives and on November 26, 2013, a hearing was held on the petition.
At the hearing, the relevant documents were admitted into evidence: Exhibit "A" is the unopened envelope in which an un-cast ballot remains pending this Decision; Exhibit "B" is the absentee ballot on which it is alleged an erasure was made; Exhibit "C" is the Voter Registration Form for voter M.D.  and Exhibit "D" is the Absentee Ballot application for M.D.
Because petitioners did not present any evidence with respect to any ballots to which they objected, the relief sought in items (a) and (c) are deemed to have been abandoned and will not be addressed further in this Decision and Order. Hence, this Decision and Order will address only those portions of the Order to Show Cause which seek to have this Court declare valid the two ballots which were, in the one case, declared invalid due to an erasure mark on the ballot and, in the other case, declared invalid because the Board of Elections determined that the signature on the envelope in which it arrived did not match that on the Voter Registration Form. The ultimate determination as to which candidates prevailed in the election must abide the outcome of the review of the ballot(s) as provided for herein.
The race for the second of two positions of Councilman in the Second Ward of the City of Port Jervis is a close one.
After all ballots from the General Election were counted, Ritchie led with 262 votes, Belcher held second place with 250 votes, Teets was running a very close third with 249 votes and Tomasi trailed with 233 votes. Since there are only two ballots at issue here, Ritchie is safely ahead and Tomasi is out of the running. Thus, neither will be affected by this proceeding. However, depending on which candidate the voters cast his/her challenged ballot for, the two votes in question here could determine the outcome for Teets and Belcher. Indeed, depending on this Court's determination as to whether these votes should be counted, and who they were cast for, the possibility exists for either Teets or Belcher to prevail or for a tie to occur.
AUTHORITY TO REVIEW THE BOARD OF ELECTIONS' DETERMINATIONS
That this Court has authority to review the Board of Elections' determinations cannot be seriously challenged for Election Law §16-106 provides courts with authority to review "a board's decision to canvass or refuse to canvass a particular ballot during the canvass." Matter of Gross v Albany County Board of Elections, 3 N.Y.3d 251, 257 . Hence, this proceeding is properly before me for determination. Indeed, there has been no challenge to that authority.
The Standard of Review
Respondent Candidates assert that the Board of Elections' determination must be affirmed because it was neither arbitrary nor capricious. I reject this argument as it suggests a standard of review which is inapplicable.
Courts are called upon to examine issues using an "arbitrary and capricious' standard when deciding proceedings brought under Article 78 of the CPLR; not when deciding issues under the Election Law. Matter of Rossetti v Lopez, 33 Misc.3d 295, 299-300 [Sup. Ct., Westchester County 2011].
THE FIRST BALLOT
I turn my attention first to the ballot which was declared to be invalid based on a "stray mark"; described as an erasure which appears in the column entitled "Councilman — 2nd Ward." The mark appears in the oval for Ritchie as the Republican candidate for that office. The mark may represent an erasure or a smudge, but looks to this Court to be an erasure and, as the finder of fact, I hold it to be such. In addition to the erasure mark, the voter completely filled in the ovals to vote for Candidates Teets and Tomasi. As noted above, this ballot was admitted into evidence as Exhibit "B".
Petitioner argues that the absentee ballot should be counted because: (a) the mark is not significant, or (b) if held to be significant, should invalidate only the column in which it appears, or (c) should be disregarded because the instructions to the voter which appear on the bottom of the absentee ballot are inconsistent and incorrect. Respondents Candidates oppose the counting of the ballot because, they argue, under Election Law §9-112, the presence of an erasure ...