Amedore Memo

7/30/2019 Amedore Memo

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONTGOMERY--------------------------------------------------xIn the Matter of

GEORGE A. AMEDORE, JR.Petitioner,

-against- MEMORANDUMOF LAW

IN SUPPORT OF THEOBJECTIONS OFPETITIONER AMEDORE

GREGORY PETERSON, DOUGLAS KELLNER, JAMES WALSH, and EVELYN AQUILA, INDEX # 2012-887COMMISSIONERS constituting

The New York State Board of Elections; and

JAMIE M. DUCHESSI and TERRANCE J. SMITHCommissioners, constituting The Board of ElectionsFor Montgomery County, and

C. VICTOR WORK and THOMAS F. TURCOCommissioners, constituting The Board of ElectionsFor Ulster County, and

THOMAS J. BURKE and BRENT BOGARDUS

Commissioners, constituting The Board of ElectionsFor Greene County, and

MATTHEW J. CLYNE and RACHEL L. BLEDICommissioners, constituting The Board of ElectionsFor Albany County, and

BRIAN QUAIL and ART BRASSARDCommissioners, constituting The Board of ElectionsFor Schenectady County, and

MICHAEL J. AMATO, Sheriff of Montgomery County, and The Sheriff’s Department of Montgomery County

PAUL VAN BLARCUM, Sheriff of Ulster County, and The Sheriff’s Department of Ulster County

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GREGORY R. SEELY, Sheriff of Greene County, and The Sheriff’s Department of Greene County

CRAIG APPLE, Sheriff of Albany County, and The Sheriff’s Department of Albany County

DOMINIC D'AGOSTINO, Sheriff of Schenectady County, and The Sheriff’s Department of Schenectady County

CECILIA F. TKACZYK,Candidate for the New York State Senate46th Senate District

Respondents,

For an ORDER, pursuant to Sections 16-102, 16-106, 16-112and 16-113 of the Election Law, directing the preservation of all ballots cast in the General Election held on November 6,2012, for the public office of State Senator for the 46th StateSenate District, in the County of Greene, Montgomery,Albany, Schenectady and Ulster and invoking the jurisdiction of the Court to rule upon the casting orcanvassing or the refusal to cast or canvass any ballot asset forth in Election Law 16-106(1) and preserving the rights of

Petitioner(s) under Articles Five, Six, Seven, Eight, TenNine and Sixteen of the Election Law and Section 16-113of the Election Law and related sections of law; andpursuant to Section 16-100 of the Election Law, declaringPetitioner, Candidate the lawfully elected candidate in this Electionand ordering the certification of said Petitioner Candidateby Respondents Boards of Election.-------------------------------------------------------------------------------x

MEMORANDUM OF LAW IN SUPPORT OF THE

OBJECTIONS OF THE PETITIONER GEORGE AMEDORE

PRELIMINARY STATEMENT

Petitioner George Amedore, a candidate for the office of State Senate,

46th Senate District, respectfully submits the following memorandum of law in

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support of his objections to three classes of items, absentee ballots, affidavit

ballots and ballot faces, viewed after opening. Such objections include issues as

to the qualifications of the voter, the qualifications of the voter to receive a ballot

and whether such ballot should be cast and canvassed, the prima facie invalidity

of the absentee ballot application should have precluded issuance of the ballot,

various apparent signatures that are not those of the voter and other objections

itemized herein, followed by the legal basis and argument for the sustaining of

such objections.1

STATEMENT OF FACTS

Petitioner, Amedore, by counsel objected to a universe of ballots in

the Counties of Montgomery and Schenectady. Petitioner made approximately

665 legal objections to the casting and canvassing of the same number of

ballots.2 The number of Petitioner’s objections in Schenectady County is 40, and

13 in Montgomery, 31 in Albany, 115 in Greene and 466 in Ulster. The legal

rulings on these specific objections will in the main also decide the legal

objections made by both parties in the entire race.3

Petitioner’s objections in these two counties principally divide into

questions of law and a limited number of fact based determinations such as

signature veracity and other issues that may require the taking of testimony from

experts.

ARGUMENT

1

2 Certain items required more than one objection to cover the legal defects in the iem sought o be voted.3 Counsel for the Petitioner urges the Court not to entertain what purports to be argument from any one

Commissioner or any County Attorney purporting to speak for the Board without determining that both Commissioners

have sought the argument to be presented to the Court. Election Law 3-212 requires that all actions of the Board shall

require a majority vote of the Commissioners. See also In the Matter of County of Nassau v. State, 513309, 2012 NY Slip

Op 07236 (3d Dept 11-1-2012)

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INTRODUCTION

There is no question that the purpose of the Election Law is to secure

the rights of duly qualified electors, not to frustrate them by posing technicalobstructions that bear no relationship to the policies underlying the statutes. Only

ballots cast in conformance with the law have the right to be counted. But still,

the Election Law is uniformly held to be strictly construed, Staber v Fidler, 65 NY

2d 529, 534 (1985), so as to prevent the possibility of fraud and to decrease the

urge to engage in mischief in the election process for partisan benefit. In the

Election Law, there are two well established and competing principles underlying

this matter. The Court of Appeals has said that "[t]he right of the voter to be

safeguarded against disenfranchisement and to have his intent implemented

wherever reasonably possible transcends technical errors." Gross v. Albany

County Board of Elections, 3 N.Y.3d 251, 258 (2004). But objections that relate to

the policies underlying the statutes secure the rights of those voters who observe

the law in all respects and protect the franchise from mischief. See People ex rel

Hirsh v. Wood, 148 NY 142, 147 (1895) reaffirmed in Gross, supra. On the other

hand, "[b]road policy considerations weigh in favor of requiring strict compliance

with the Election Law, for a too-liberal construction has the potential for inviting

mischief on the part of candidates, or their supporters or aides, or worse still,

manipulations of the entire election process." See Matter of Alessio v. Carey, 49

A.D. 3d 1147, 4th Dept. 2008) reversed on other grounds, 10 NY 3d 751,753,

cited in Gross, 3 N.Y.3d at 251.

It is important that the franchise which is a right not be granted when

the voter has engaged in malfeasance or misfeasance in the execution of legally

binding documents and either omitted, misinformed or otherwise failed to provide

the material information that permits the exercise of the franchise. The providing

of the material information is what qualifies the voter and not merely appearing

ready and willing to vote.

Both absentee ballots and affidavit ballot systems are such that they

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present temptation for fraudulent conduct in different opportunities and in

different degrees. For example, it is clear that there is believed to be a greater

opportunity for fraud in the election process in the absentee ballot process since

the voter is usually not presenting themselves to a polling place in an election

district. See, Panio v. Sunderland, 4 N.Y.3d 126, 128 (2005). But certain basic

common sense elements guide determinations. For example, an affidavit ballot, it

is accepted, has a lesser likelihood for fraud because the voter is the one

presenting themselves in person at a polling place. If it is required for affidavit

ballots to be valid that they be complete in terms of the statutorily required

information, with a lesser likelihood of fraud, then the applications for absentee

ballots should follow the same prophylactic requirement. The entire absentee

process from application to the vote itself takes place outside of the watchful eye

of bipartisan election officials, except for over the counter or in office voting.

Thus, the determination to issue an absentee ballot is reviewable to the same

degree as the validity of the affidavit ballot. Jacobs v. Biamonte, 15 Misc. 3d 223,

228 (Sup Ct Nassau Cty. 2007). Incomplete information should clearly void each

of those ballots.

The objections made by Petitioner Amedore relate not to ministerial

error by the Board of Elections. In the case of both absentee ballots and affidavit

ballots, Petitioner’s objections relate to the statements made by voters, not

ministerial error. Ministerial error exists when poll workers lead a voter into error

because the voter knows no better. In Panio v. Sunderland, 4 NY 3d 123(2005),

the Court of Appeals ruled that voters who went to the entirely wrong polling

place may not vote because of their error. For those voters who were at the

correct polling site but not the correct election district, those voters were allowed

to vote. In that case it was the fault of the Board personnel not to direct the voter

to the proper table within the proper site.

Therefore, a voter seeking an absentee ballot must be truthful in the

application, seek the ballot for the correct period of time, i.e. Election Day, and

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for the correct election, i.e. the General Election, and not the primary or special

election, must fill in and cannot make any materially false statement on the

application for the ballot.4 Similarly the person who signs the request for an

absentee ballot must be the actual voter, and not someone who signs the voter’s

name so as to prevent fraud.5

A voter who seeks an affidavit ballot must likewise be qualified to

vote and when they make a statement of qualification that is not correct, they

should not have their vote counted.6 The applicant for an affidavit ballot must be

within the correct poll site. They have to execute an accurate and complete

affidavit statement. The material which they swear to must match the Board’s

information such as when they claim to have moved, the place from which they

moved must match the Board’s information, they must fully execute the affidavit

in that they must select one of the reasons for the use of the affidavit ballot and

must provide all the material information such as an accurate address, a date of

birth and other information demanded by the face of the document from the

voter that serve to identify and corroborate the identity of the voter. Similarly,

they cannot leave out that information because an incomplete affidavit ballots

fails to qualify under law to be voted.

In each of the instances as to affidavit ballots and absentee ballot

applications, these matters are first within the voter’s control and secondly are

the material elements which do allow for verification and corroboration that they

are in fact who they claim to be and reside where they claim to reside. These

matters are material and function as predicates to the right to vote.

4 See Election Law 8-400 and 17-132 (6)5 Although little litigation has occurred surrounding absentee ballot applications, where a person appears at the

Board of Election and signs the name of another voter to obtain a ballot, even where the ballot envelope is signed by the

voter, there is nothing that stops the applicant from voting the ballot and procuring the signature of the voter. In fact the

process of someone forging the voter’s signature on the absentee ballot application allows the inference that the ballot is not

truly that of the signatory.6 See Election Law 17-132 (1)

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JURISDICTION OF THE COURT IN ELECTION LAW CASES UNDER

ARTICLE 16

The role of the Court in the determination in the matter is that of confined jurisdiction. The court, however, has no equity powers in election cases.

Schieffelin v. Komfort, 212 N.Y. 520 (1914) . In Schieffelin, the Court of Appeals

stated: "It is the settled law in this state that equity has no jurisdiction over

contests of office even if the election is claimed to be void. Parties aggrieved are

required to assert their rights in proceedings provided by statute or in actions at

law."212 NY at 525. The Court of Appeals reaffirmed this limitation most recently

in Matter of Delgado v Sunderland, 97 NY2d 420, 423 (2002), quoting Schieffelin

v Komfort, 212 NY 520, 535 (1914).

ABSENTEE BALLOTS

The right to an absentee ballot is established by Article II Section 2 of

the New York State Constitution, and the relevant procedures are codified in

Election Law 8-400 et seq. The Election Law describes in detail the appropriate

procedure for the issuance of an absentee ballot. As the Court of Appeals held in

Gross, supra, "[a]bsentee voting serves the laudable purpose of opening the

voting process to a larger electorate but there are dangers inherent in the system

that warrant adherence to Article 8's legislative prescriptions." Election Law 8-

400. The law of absentee ballots has been both strictly construed and liberally

construed. As a consequence, in recent years the Legislature has enacted

statutes to liberalize the process governing the issuance of absentee ballots so

that the voter needs to provide less information in order to qualify for the receipt

of such ballot. The voter must now only provide a legal basis for why an absentee

ballot is needed, the duration of the absence and that such person is qualified to

vote and registered to vote in that election. Election Law 8-400 (1). The voter also

has to identify which election they claim absence for, i.e. a primary, general or

special election. The voter must complete the application. Election Law 8-400 (2).

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The Court of Appeals has mandated that such minimal requirements

are to be strictly construed. Thus, a voter need only submit a statement under

the penalties of perjury stating a reason for the issuance of the absentee ballot

that is to be reviewed by the Board of Elections before issuance of the ballot. With

the minimal amount of information required on the face of the application, it still

must justify the issuance of the ballot. When a local board of elections receives

an application for an absentee ballot, the board is statutorily obligated to make

an inquiry, that it deems proper, as to whether the applicant is qualified to vote

and to receive an absentee ballot. Election Law 8-402. If it is satisfied in its

inquiry then the absentee ballot is forwarded to the voter. The statute requires

some inquiry, which at minimum, includes ascertaining whether the application is

properly executed and complete. Where the applications are incomplete the

Boards sometimes mail the ballot with instructions to complete the application

and return it. See Stewart v. Chautauqua County Bd. of Elections, 14 N.Y.3d 139,

151 (2010). The voter must complete the application. Election Law 8-400 (2).

Stewart states that the return of the now-complete absentee ballot application

with the ballot and the subsequent examination of the returned application

allowed examination of the qualifications of each voter to cast the enclosedabsentee ballot. Only then did the Board have a basis to determine that the voter

was entitled to an absentee ballot. See, Stewart, 14 N.Y.3d at 151.

In Gross v. Albany County Board of Elections, 3 N.Y.3d at 258, the

Court of Appeals re-stated the need for compliance with the framework specified

in the absentee ballot provisions. Certain failures in the process are attributable

to technical, inconsequential or ministerial error because the element is not

central to the substantive process by which voters are determined to be qualified

to cast absentee ballots. Voters who were never made to articulate why they

were not able to vote at the polls are not qualified to receive such ballots.

Stewart, 14 N.Y.3d at 151, quoting Gross 3 N.Y.3d at 259.

ABSENTEE BALLOT APPLICATION

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The objections by Petitioner to absentee ballots break down into a

number of catagories of objections. The first is that the potential voter failed to

complete the affidavit by omitting altogether the reason for seeking an absentee

ballot. The law in its most recent iteration now requires only that a voter state

why such voter needs an absentee ballot but it is clear that the law requires some

explanation given that the "explanation" requires no more than a check in a box

or the supplying of an address of the voter. The statute, Election Law 8-302(3)(e)

(ii) is explicit, in that it imposes the minimum possible burden upon the person

seeking to vote by absentee ballot given the Constitutional mandates of Article II,

Section 2. The Court of Appeals in Stewart v. Chautauqua County Bd. of Elections,

14 N.Y.3d at 151 held that where there is an omission in the process of seeking

an absentee ballot there is not “substantial compliance with statutory directives."

Citing Gross, 3 N.Y.3d at 259. Where the voter seeking the ballot omits required

information in the application, I.e. any reason for issuance of an absentee ballot,

or the failure to swear under oath to a residence within the county, then the

defect is a "substantive deficiency implicating voter qualification." Gross, Id. at

259 n.3. Counting such ballots would invite continued mischief by the Boards in

the issuance of absentee ballots. Gross, Id.

The issue for the Court to first confront is whether or not it may rule

upon the providing of an absentee ballot to a voter who for any number of

reasons does not qualify to receive such ballot on the face of the application. In

Gross, the Court reviewed the applications for absentee ballots to ensure that the

person applying for such a ballot, an exception to the general rule of the in

person requirement for voting is a qualified voter. Where the voter provides an

incomplete and insufficient reason for obtaining a ballot, the Court may so find.

Gross, supra.

As a threshold issue, Petitioner made a significant number of

objections to the issuance of absentee ballots on the basis of an application that

was inadequate, failed to state a basis or indicated an out of county address.

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Respondents occasionally claimed that such objections are barred by law on the

basis that the objection should have been lodged at the time of the issuance or

application of the absentee ballot. It appears that issue was resolved as within the

jurisdiction of the Court by Gross, supra. Reference to Election Law 8-402 (7) for

the proposition that the list of absentee voters was available and objections

should have been lodged prior to Election Day are not borne out by the statute or

the case law. First, the access to the list as opposed to the applications is given

only to the county chair and candidates are not by statute given access to the

applications so as to lodge objections prior to the time that the absentee ballot is

sought to be cast and canvassed. Jacobs v. Biamonte, 15 Misc 3d 223 (Sup Ct

Nassau Cty. 2007) aff’d 38 AD 3d 777 (2d Dept 2007). Where the face of the

application indicates that the voter is not qualified, the Board of Elections is

without jurisdiction to determine the sufficiency of the special circumstances that

authorize the issuance of the ballot to a purported absentee. The Board may

conduct its own investigation Election Law 8-402 (2). It is a limited investigation.

See Sheils v. Flynn, 164 Misc 302 aff’d 252 AD 238 aff’d 275 NY 446 (1937).

The Board personnel, when faced with a sworn statement, cannot

then take an unsworn statement of another person, not the voter and amend

alter or otherwise change the application or But when the Board conducts an

investigation it may not then alter the face of the sworn statement of the voter or

take hearsay information from the voters’ mother as it has done in some

circumstances. In other cases the Board employee merely changed the address

on the sworn document to match Board records. These facts defeat the

presumption that the Board has “satisfied itself” that the applicant was legally

qualified to vote at this particular election by inquiry and investigation extrinsic to

the application. Sheils, Id.

Incomplete Application

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The uniform rule of law is that absentee ballots that are incomplete

may not be cast or canvassed. Ballots cast were nonetheless invalid as a result of

the failure on the part of the individual voters to accurately complete them.

Additionally, voters were not misled into omitting the required information by

Board personnel. Panio, 4 N.Y.3d at 128. Where Board of Elections personnel

make the "ministerial error” which “causes such ballot envelope[s] not to be valid

on [their] face," then the ballot should be counted if it is without any other legal

defect. Panio, 4 NY3d at 128-129 (2005). See, also, In Re Frank K. Skartados, 81

A.D.3d 757 (2d Dept. 2011).

The objections Petitioner has made include those to incomplete

applications. A voter’s failure to indicate a permissible reason, any permissible

reason, for unavailability under Election Law 8-400 to justify the ballot will void

the ballot. Gross v. Albany County Board of Elections, 10 A.D.3d 476 (3d Dept.

2004) aff'd. 3 N.Y.3d at 251. Without the requisite information, the Board of

Elections has no basis to issue an absentee ballot to the voter. Thus, where the

applicant fails to indicate any reason by a check mark on the application as to the

reason for why they cannot present themselves in person to vote on Election Day,

then the applicant has not established a basis for the ballot being issued. The

Board of Elections, in that event, has issued a ballot to a person who is on the

face of their application not qualified to vote. Since such a ballot is not properly

issued it thus should be null and void when it appears. Because the execution of

the application is wholly under the control of the voter, this does not implicate the

Board of Elections, nor any ministerial error on the part of its employees.

Qualification for Absentee Ballot: Residence Outside the County

Any voter who provides sworn statement on her absentee ballot

application stating that his or her residence is outside the County, as one did

regarding her address in Binghamton, is likewise invalid and a nullity. Election

Law 8-302 (3)(e)(ii) requires that the voter provide on the application for an

absentee ballot the address in such election district from which he or she

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registered.

Ballot without Evidence of Time of Receipt

This Department has held that the Election law does not permit the

canvassing of absentee ballots received by boards of election after the close of

the polls on election day. Ryan v. Scarnge, 85 AD 2d 797(3d Dept. 1981). In the

case at bar, a number of absentee ballots bear date stamps of the Boards of

Election demonstrating that they were received by the Boards after the date of

the election and thus are untimely on their face. Election Law 8-412 (2) requires

the Boards of Election receiving such ballots should be cast and canvassed as

provided for in Election Law 9-209. Many of the ballot envelopes objected to, bear

the date of November 7, 2012 or beyond. It is the Boards’ practice to stamp the

envelope so as to demonstrate the acceptance and to evidence its existence and

receipt at a particular time. The ballot envelopes objected to fail to bear any

indication to validate its receipt and to establish whether they were timely

received by the respective Boards. Based on the deviation from law, it can be

presumed to be untimely. Many of the ballot envelopes time stamps in the

subject Boards are in the latter part of the day at approximately three to four PM,suggesting of course that these items appear in the mail of the morning of the

seventh of November and were date stamped upon being received and then

opened. There is no stamp or marking to indicate when and under what

circumstances the Board received the envelope.

Commissioners in various counties claim that they reviewed the

postmark on such items when they were received, and then determined that the

ballots were postmarked in a timely manner and then destroyed the envelope

which would have been the evidence for the Court to consider on the issue.

Instead these Boards now insist that the ballots are timely despite their own date

stamp and tell us to trust them. No objective evidence exists of any such review

of any individual ballot. Indeed there appears to be no list or log of mailing

envelopes that would record which ballots were the product of the review. Indeed,

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the Boards state that they only saved the ones that were questionable but again

there is no log and no recordation. Case law relies on the resuscitation of

otherwise invalid ballots by reference to the postmark on the mailing envelope

that constitutes the actual evidence of the alleged timely receipt of such ballots.

Case law relies on the resuscitation of otherwise invalid ballots by reference to

the postmark on the mailing envelope that constitutes the actual evidence of the

alleged timely receipt of such ballots. But without such a postmark the ballot is

not capable of being cast and canvassed. Where there is no cancellation mark

found on an envelope, and the envelope is not time and date stamped by the

Board, the ballot cannot be cast or canvassed. Johnson v. Martins, 79 A.D. 3d 913,

(2d Dept. 2010 ), aff’d. 15 N.Y.3d 584 (2010); see, also, Hoyt v. Dewitt, 849

N.Y.S.2d 747 (Sup. Ct., Tompkins Co. 2007). See also In Re Gross, 10 AD 3d 478,

479 (3d Dept. 204) aff’d 3 N.Y.3d 251. See also Nicolaysen v. D’Apice, 100 AD

2d 501 (2d Dept. 1984). The statute makes the cancellation mark to be part of

the official ballot documentation.

Election Law § 8-412 (1) states: "The board of elections shall cause all

absentee ballots . . . contained in envelopes showing a cancellation mark of the

United States postal service . . . with a date which is ascertained to be not later

than the day before election and received by such board of elections not later

than seven days following the day of election to be cast and counted." Since the

date of the postmark cannot be ascertained, and the receipt of the ballot six days

after the election did not establish that it had been timely mailed, the ballot may

not be cast and canvassed. It has been held that where the date of a postmark on

an absentee ballot cannot be ascertained without extrinsic evidence, such ballot

should be invalidated. Matter of Kroening, 187 AD2d 1045 (187 AD 2d 1045 (4th

Dept. 1992); Matter of Bennett v. Board of Elections, 10 Misc 2d 804, 810 (Sup Ct

Onondoga Cty 1957) aff’d 6 AD 2d 989 (4th Dept 1957), lv denied 5 NY 2d 708

(1957). Carney v. D'Avignon, 282 A.D.2d 1026 (4th Dept 2001); Election Law § 8-

412(1).

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In another context of timeliness, this Department has held that a

"presumption exists that the actual filing date is the date the [document is]

stamped filed… However, extraordinary circumstances may exist establishing

that the actual filing of these documents occurred on an earlier date than that

reflected on the stamp and, if clear and unequivocal evidence exists establishing

that fact, it will serve to rebut the presumption" Resch v Briggs, 51 AD3d 1194,

1196 (3d Dept 2008). Crainsville v. Spring, 53 A.D.3d 998, 1000 (3d Dept 2008).

The “receipt” of a ballot, which is the same as filing it with the Board of Elections,

is governed by the existing law and the natural meaning of the term. Delivery to

an official whose duty it is to receive papers for filing and who is required to

maintain an office for their deposit is a filing. Receipt is the end product of the

filing. See Matter of McBride v. Regan, 125 A.D.2d 797 (3d Dept 1986). Case law

holds that a document is "filed" only when it is delivered to or received by the

appropriate official. Placing the application in an envelope in the mail is not the

equivalent of filing; filing is accomplished when the application is received.

McBride, supra.

Request for Ballot for the Wrong Election

A number of absentee ballots have been objected to on the basis that

the voter’s application requests a ballot for the “Primary Election.” Election Law

1-104 (9) defines a primary election as “only the mandated election at which

enrolled members of a party may vote for the purpose of nominating party

candidates and electing party officers”. When the voter has asked for only a

primary election ballot and not a ballot for the general election as well, without an

application pertaining to the particular election, the Board of Elections had no

authority to issue the ballot. Mondello v. Nassau Board of Elections, 6 A.D.3d 18,

22 (2d Dept. 2004); see, also, Matter of Baker, 126 Misc. 49 (Sup. Ct. Oneida Co.

1925), aff’d. 215 A.D. 791 (4th Dept. 1925). Nor can the matter be attributed to

ministerial error on the part of Board personnel. It is clear that no law permits a

finding that the issuance of an absentee ballot invalid ab initio cannot be a

14



ministerial error. Voters who in the execution of their affidavit for an absentee

ballot selected which election they wished to vote in, are in effect “at fault” as

opposed to the fault of Board personnel. While one can believe that the voter

actually meant to seek a ballot for a general election, the face of the sworn

document as executed by the voter cannot be modified in effect by parol

evidence, such that it contradicts the document in an absolute assertion by the

voter that cannot be modified by an assumption. Indeed even a voter may not

now disclaim the statements in a sworn statement seeking a ballot without

engendering potential liability under Election Law Article 17.

Ballot Envelopes Signed by Wrong Voter

In Montgomery County, a husband and a wife failed to sign their own

ballot. Instead they appear to have signed each others ballots invalidating both

ballots. The law requires that the voter sign her own ballot envelope. In fact the

oath on the rear of the absentee ballot states that it is that voter’s ballot.

Conclusion

As the Court of Appeals wrote in Stewart v. Chautauqua County Bd. of Elections, and quoted in Gross, there must be an emphasis on the need for

compliance with the framework specified in the absentee ballot provisions.

Therefore, the Court should uphold the objections of Petitioner to the ballots that

are incomplete.

AFFIDAVIT BALLOTS

The affidavit ballot process, where the voter presents him or herself

at the polling place and asserts that they have the right to vote and obtains an

affidavit ballot is governed by Election Law 8-302 (3)(e). The statute provides that

a person who presents themselves at a polling place, claiming to live in the

election district but no registration poll record can be found in the poll book or on

any registration list produced by and for the Board can either vote by seeking and

15



obtaining a court order pursuant to Election Law 8-302 (3)(e)(i) or by subscribing

an affidavit stating that he is duly registered to vote, the address in the election

district from which he is registered and that he is and remains a duly qualified

voter.

The law provides that affidavit ballots that are incomplete may not be

cast or canvassed. Ballots are invalidated as a result of the failure of the

individual voters to accurately complete them. Some other elements are required

in certain cases, such as when such person claims to have moved within the

county since last registered. In that case, the previous address from which he had

been registered must be supplied as well as his current address. Election Law 8-

302 (3)(e)(ii).

The uniform rule of law is that affidavit ballots that are incomplete

may not be cast or canvassed. An incomplete affidavit ballot, which is incomplete

because the voter failed to provide the statutorily required information could not

be counted. See, Kolb v. Casella, 270 A.D.2d 964 (4th Dept. 2000) (failure to sign

the ballot); McClure v. D’Apice, 116 AD 2d 721, 723 (2d Dept. 1986)(voter did not

properly complete the address portion of affidavit renders the ballot invalid). It isthe responsibility of the voter seeking to vote by affidavit-- for whom there is no

registration or no evidence to justify an assertion of registration and thus

eligibility to vote--to provide the information in order that they may exercise the

franchise.

Ballots were invalid as a result of the failure on the part of the

individual voters to accurately complete them. Additionally voters were not

misled into omitting the required information by Board personnel. Where Board

of Elections personnel make the "ministerial error” which “causes such ballot

envelope[s] not to be valid on [their] face," then the ballot should be counted if it

is without any other legal defect. Panio, 4 N.Y.3d at 128-129 (2005). See, also, In

Re Frank K. Skartados, 81 A.D.3d 757 (2d Dept. 2011). Incomplete affidavits may

not be voted when it is the voter who fails to provide the requisite information so

16



as to validate the ballot.

For example, in Matter of McClure v. D'Apice, 116 A.D.2d 721 (2d

Dept. 1986) the Court examined the validity of the ballot of potential voter,Lunde, a properly registered voter, whose registration was not at the polling

place. Lunde voted by affidavit ballot pursuant to Election Law § 8-302 (3) (f) (ii).

He did not, however, properly complete the address portion of the affidavit, as

required under that statute. Because voter Lunde did not comply with the clear

mandate of the statute, his vote was held to not be counted. Where the voter

does not complete the address portion properly either by omission or the wrong

information, the voter has not complied with the mandate of the statute and by

failing to provide material information or providing information that is material

but incorrect, then the vote cannot be counted. None of the omissions can

legitimately be ascribed to ministerial error since the execution of the affidavit is

by the voter in the absence of elections personnel.

INSPECTOR APPLICATION AND ILLEGAL EARLY VOTING

New York State is not one of the states that permit early voting. The

assumption of the law is at minimum, every voter, who is able, will appear at their

polling place to exercise their right of franchise. Those who fail to appear do not

exercise their right to vote, no matter what their desire may be. The State

Constitution makes a limited exception, carried into statute for those voters who

are temporarily out of the county , disabled or ill or otherwise engaged but wishto exercise the franchise. The law however does not see this as carte blache to

early vote as a matter of convenience. It requires a true statement of a legitimate

reason under the Constitution and the law to permit the act of early voting to

occur.

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Election Law § 11-302 entitled “Special ballots for board of election

employees” states that a board of elections employee or an inspector of

elections, or election worker at a polling place other than the one at which he or

she is registered to vote, may deliver to the inspectors of election of the election

district in which he or she is registered, or to the board of elections, at any time

during the period in which an application for an absentee ballot may be so

delivered pursuant to the provisions of this chapter, a written statement that he

or she will be unable to appear at the polling place for such election district on

the day of an election because his or her duties as an employee of such board or

as an inspector, poll clerk or election coordinator require him or her to be

elsewhere.

Quite a number of people took advantage of this provision of law and

executed the application especially for elections personnel and inspectors. The

face of the application tells the person seeking the ballot when they can receive

and vote the ballot. It is a specific directive to the voter, and not ministerial on

the part of the Board. Many of the Boards claim that they gave the ballots to the

voters and gave classes in which they told them to fill out the ballot, in particular

Ulster County. Such cast ballots may be delivered to an office of such board of

elections or to any board of inspectors not later than the close of the polls on

election day. Such ballots shall be retained at the board of elections and cast and

canvassed pursuant to the provisions of section 9-209 of this chapter.

The Commissioners in Ulster County, when the objection was made,

claimed that they caused the ballots to be early voted. Thus the Commissioners

such as in Ulster admitted that they taught the inspectors to violate the election

law. The position is an attempt to resurrect the ballots as the result of ministerial

error on the part of the Board. Such a dodge, using Panio v. Sunderland, supra,

should not be countenanced. First, elections officials who obtain such a ballot

should be required minimally to know the law and follow it. So the timing of the

vote set by statute should be charged to such voters by virtue of their training

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and their role as judges of the elections at the polls on Election Day. The person

who seeks a ballot, even if provided and trained by the Board to in effect violate

the Election Law, is also at minimum chargeable with the knowledge of what they

sign and what the sworn statement tells them to do. The application for an

absentee ballot under Election Law 11-302 states on its face the following legend,

after the check mark for the voter and the statute: “My duties as a Board of

Elections Employee, election inspector, poll clerk, election coordinator, or voting

machine custodian/technician require me to be elsewhere. (Ballot to be cast in

person not earlier than two (2) weeks before the election and not later than the

close of polls on election day)”. Therefore, the voter is instructed on the face of

the application that they cannot vote early and sets the dates for which they can

vote and when such a vote is too early. The election workers who followed the

instructions purportedly given by the Commissioners were instructed on the face

of their application what the law actually provides and were obligated to follow it.

Here the Board did not err by failing to provide the inspectors and election

workers with the proper application as in Panio. In this instance they provided the

workers with the proper paperwork and provided them with the law on when they

can vote. The elections personnel who “early voted” did it in the face of theaffidavit they had just signed for their own convenience. Such elements of

convenience are not to trump the strict legal requirements of the Election Law

especially where the Legislature specifically set the deadlines and parameters

which are not flexible but rigid in the Election Law. Earlier than two weeks before

election day in this year’s cycle is October 23. Such ballots voted by filing and

submission to the Board prior to this date, based upon their date stamp are voted

too early. New York State with the limited exception of specific statutory

commands bars early voting. By voting early the voter’s ballot may not be

counted since its voting and filing for voting is a breach of the law.

SIGNATURES

It is required that the voter in order to validate the ballot so that it

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can be cast and canvassed must affix his or her signature to the requisite ballot

envelope whether it be an affidavit envelope or absentee envelope. Election Law

8-304. The signature is evidence that the person who signed the ballot envelope

has executed and subscribed to the oath that qualifies the voter. See People v.

LoPinto, 27 AD 2d 63, 66 (3d Dept. 1966). See also Cotrone v. Board of Elections,

166 Misc 2d 63 (Sup Ct Monroe Cty 1990). The requirement is fulfilled by

ensuring that the signature on the envelope matches the registration signature

before the ballot can be cast or canvassed. Election Law 8-304. Where the

inscription is not substantially similar, it cannot be voted. Proof of fraudulent

intent is not required. Further extrinsic evidence is not permitted to resuscitate

the ballot. The term signature is defined by the General Construction Law 46,

which provides that “signature” includes any memorandum, mark or sign,

written, printed, stamped, photographed, engraved or otherwise placed upon any

instrument or writing with intent to execute or authenticate such instrument or

writing. The General Construction Law should be read into every statute

subsequently enacted unless the wording of such later statute plainly expresses a

contrary intent. See O'Keeffe v Dugan, 185 App. Div. 53 (2d Dept. 1918), aff’d

225 N.Y. 667 (1919).

In Johnson v. Martins, 79 A.D.3d 913,921 (2d Dept. 2010) aff'd. 15

N.Y.3d 584 (2010) the Court faced with the signature issue noted that "the

signature on the ballot envelope does not correspond to the signature on the

registration poll record" (Election Law § 8-506 [1]), and held that such absentee

ballots should not have been cast and canvassed. The Court may compare only

the signature on the registration card with that on the outside of the ballot

envelope. See, Matter of Hosley v. Valder, 160 A.D.2d 1094 at 1096 (3d Dept

1990). In Hosley, the Court examined the issue as to determination of the validity

of signatures on absentee ballot envelopes. Where the signature on the voter

registration card is substantially different than the signature on the absentee

ballot envelope, those signatures do not match. Election Law 8-304 requires that

the voter’s signature match his registration signature before he is permitted to

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vote. The Board and the Court are bound by the evidence adduced and

speculations as to age or physical disability in the absence of evidence of such for

example from the absentee ballot application, cannot be relied upon.7 Election

Law § 8-304 requires that a voter's signature match his registration signature

before he is permitted to vote. Further, voters are required to sign absentee

ballots on the outside of the ballot envelope, ensuring a comparison can be made

without requiring the canvass of the ballot (Election Law § 7-122).

Legibility

The issue with regard to signature and similarity also guides the issue

of whether the signature is legible. In some cases the signature objected to by

Respondent Tkaczyk are partially illegible but significant numbers of letters may

be perceived as to admit the ballot as a signed ballot. These names, as written,

could properly be found to meet the legibility test utilized in Matter of Pauly v.

Mahoney, 49 A.D.2d 1016 (4th Dept. 1975), cited with approval in Hosley, 160

A.D.2d at 1096.

In Montgomery County for example, Petitioner objected to a ballot of

an obviously elderly voter whose application and ballot envelope did not match

the registration of the person it was claimed to be. So radically different was the

signature, the registration clearly reflecting the afflictions of age and yet the

absentee application and ballot appearing to be a rejuvenated person such that

the process of voting absentee alone was the Fountain of Youth.

Miscellaneous

There are a number of objections not captured in the categories set

7 Respondent Tkaczyk, for example objected to the absentee ballot of an individual on the basis that the

signature was a stamped signature as opposed to a signed signature. While the ballot, and the law, allow a

person to use a mark instead of a full signature, this individual had the stamp witnessed and the application for

the absentee ballot stated that he was blind. The law does not require a person to reveal the nature of their

disability, see Disability Advocates v. Board of Elections in the City of New York, -- F Supp 2d -- , 2012 WL

1142888 (NDNY 2012).

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out above.8 Objections were made in Ulster County to the issuance of absentee

ballots to individuals not constitutionally qualified to receive a ballot. There is an

inherent conflict between New York State Constitution Article II Section 2 and the

statutory enactment regarding obtaining an absentee ballot. The statute allows

ballots to be given to caregivers of ill persons on the reliance that that exception

to in person voting is part of the constitutional scheme. Article II Section 2 states

“The legislature may, by general law, provide a manner in which, and the time

and place at which, qualified voters who, on the occurrence of any election, may

be absent from the county of their residence or, if residents of the city of New

York, from the city, and qualified voters who, on the occurrence of any election,

may be unable to appear personally at the polling place because of illness or

physical disability, may vote and for the return and canvass of their votes.” The

section of the constitution speaks to an inability to appear because of illness or

physical disability and only in reference to voters. It is a terrible strain to read into

the section of the Constitution an exception for caregivers that is not in the

document. While the Constitution allows for the enactment fo a general law, it

does not permit the legislature to add new categories or read into the

Constitution new exceptions. But Article II Section 2 provides specifically and canonly be read to relate to the voter’s illness or disability which keeps them from

the polls, and their ability to obtain an exception to the requirement of in person

voting. There is no basis to conclude from the face of the Constitution that the

illness of another allows for the obtaining of an absentee ballot for the person

who is healthy but gives care. In fact, under the theory that the caregiver gets an

absentee ballot, every health care professional should therefore be eligible for an

absentee ballot, which of course permits the rule of constitutional law to be

devoured by the statutory exception.

8 For example, respondent objected to a ballot that was signed by the voter with a line across the

signature. Respondents claim that such indicated the intent of the voter to cross out his own name and not vote

as opposed to the more conventional explanation that the signature with a ballot in the envelope clearly

evidences an intent to vote. Such objections should not be sustained.

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FACES OF THE BALLOTS

This Department has determined that the importance of order and

precision in the voting process requires strict interpretation of the law, includingobjections to the face of the ballot. See, Williams v. Rensselaer Board of Elections,

98 AD 2d 938 (3d Dept. 1983) aff’d 61 NY 2d 730 (1983). The mandate is the

application of objective criteria to the faces of the ballot objections. Id.

Traditionally, ballots that contained writing which could distinguish the ballot from

others cast, and mark that ballot for identification, would be excluded. Matter of

Scanlon v Savago, 160 AD2d 1162 (2d Dept 1990). See also Brilliant v. Gamache,

25 AD 3d 605 (2d Dept. 2006). The law recognizes that not every mark by a voter

voids a ballot. Inadvertent and extraneous marks should not void the entire ballot

but do so only for the race in which the mark appears. Matter of Mondello v

Nassau County Bd. of Elections, 6 AD3d 18, 24 (2d Dept 2004). Resolution by the

Court of whether the challenged ballots were improperly marked involves a

determination of whether certain marks thereon are "inadvertent" as opposed to

"distinguishing" or "identifying" Election Law, § 9-112; Matter of Pavlic v Haley, 13

N.Y.2d 1111

Election Law § 9-112 (1) provides, in part, that the ballot is void if it is

defaced by the voter, includes any paper or article in the ballot, makes an erasure

on the ballot, or in Election Law 9-112 (1)(d), if the voter 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 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. 9 The statute states as well that the ballot with 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. Neither the statute nor the

regulations of the State Board of Elections at 9 NYCRR 6210.13 address the issue

9 Respondents objected to a write in of the name not on the ballot, what appears to be “Frank Pastore”, claiming that

the voter “signed” the ballot in the open space on the bottom. No voter with the name written in script on the ballot had

delivered a ballot in that district and thus it was clearly a write in and thus valid. Respondents pressed their objection to theface of the Amedore vote.

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of when the erasure or mark is not in the Senate race boxes but is unique enough

to identify the ballot so as to permit a voter to pluck it out of the pile of ballots as

unique. Extraneous marks on ballots that could serve to distinguish the ballot or

identify the voter, as opposed to inadvertent marks, will render a ballot blank as

to the relevant office if the mark is confined to the voting square pertaining to

that office, or render a ballot invalid as a whole if the mark appears outside of the

voting square. Election Law § 9-112 (1); Matter of Mondello v Nassau County Bd.

of Elections, supra at 25; Matter of Boudreau v Catanise, 291 AD2d 838, 839 (4th

Dept 2002); Matter of Carney v Davignon, supra; Matter of Nicolaysen v D'Apice,

supra; see generally Matter of Gross v Albany County Bd. of Elections, 3 NY3d

251, 255-258 [2004]). In such circumstances the ballot should be void, for all

offices as it is by virtue of the voter’s action to go further on the continuum of

inadvertent mark to identifying marks.

No ballot shall be declared void or partially blank because a mark

thereon is irregular in form. The law is well settled that inadvertent marks on a

ballot do not render the ballot void in whole or in part" Matter of Mondello v

Nassau County Bd. of Elections, 6 AD3d at 24. However, extraneous marks on

ballots that could serve to distinguish the ballot or identify the voter, as opposed

to inadvertent marks, will render a ballot blank as to the relevant office if the

mark is confined to the voting square pertaining to that office, or render a ballot

invalid as a whole if the mark appears outside of the voting square. Election Law §

9-112 (1); Mondello. 6 AD 3d at 25.

Election Law 9-112 (6) provides for possible validity of marks on the

ballot. A cross X mark or a check V mark made by the voter is a vote for the

candidate. But both the statute and the regulations of the Board do not permit a

voter to use both methods because such a method of an oval overlaid with an X

creates a distinctive mark on the ballot. The State Board of Elections has adopted

regulations governing the casting and canvassing of paper ballots. 9 NYCRR

6210.13. The regulations also provide that a ballot shall not be void for the voter

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not following instructions unless it is impossible to determine the voter’s choice.

Where there are clear indications of voter intent and the indications are

consistently used to indicate the voter’s choices then the ballot may not be void.

The State Board of Elections regulations provide that examples of

such markings that void the entire ballot include but are not limited to: voter

signature, initials, voter name and address, voter identification number,

messages or text, or unusual markings not related to indication of the vote choice

for a contest. The regulation also provides in 9 NYCRR 6210.13 a(3)(i), that a

mark crossed out by the voter, an erasure, or words such as no next to a

candidate's name or a voting position target area for a ballot question shall not

be considered to be a valid vote but will, instead, be deemed an indication that

the voter did not choose to cast a vote for that candidate or measure and the

vote for that candidate or proposition shall be considered void. Thus, Petitioner’s

objection to a ballot in which there are cross out of the democratic candidates for

all offices except of the two lower local offices, then the ballot should not be

counted for the offices marked with a filled in oval with X across the oval.

However there is a ballot in this matter in which there are cross out of the

democratic candidates for all offices except of the two lower local offices, then

the ballot should not be counted for the offices marked with a filled in oval with X

across the oval.

In the case of voters who make a mistake on the ballot and correct it,

such ballots should be reviewed by the Court. In one case Respondents insisted

that the crossed out mark on the ballot in this race was the voter entering his

initials on to the ballot and thus voiding it. Where a voter attempts to correct his

ballot so as to match his choice and acts to permit determination that he made

the correction as opposed to another person tampering with the ballot, the ballot

should not be seen as bearing a distinguishing mark.

In a number of cases there are ballot faces that appear to be irregular

such that they should not count for the Respondent. It is clear that anything that

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identifies the voter is a mark that voids the ballot. There are three categories.

First, does the marking identify the ballot and thus the voter? Second, is the

marking in compliance with the instructions that require certain marks? The third

and last category is extraneous marks as opposed to deliberate marks.

Identifiable Ballot

Markings which are inadvertent do not spoil the ballot. Johnson v.

Martins, 79 AD 3d 913 aff’d 15 NY 3d 584 (2010). This relates in the main to stray

marks. Where the marks are not trifling or just smudges and erasures then the

ballot could be void. Ballots with marks that are not identifiable as to the voter

may be void for the office directly affected or for the entirety of the ballot due to

the nature of the marks. Respondents have argued that the mark can only be

either actual words, which is an inaccurate statement of the law or can only be

marks made in the box or bloc for voting for the office of State Senator which is

not in fact always the case. An erasure may void only the race in which that

erasure was made. See Ruffo v. Margolis, 61 AD 2d 846 (3d Dept 1978). Where it

appears that the erasure is intended to be an identifying mark on the ballot then

the entire ballot is void. See e.g. O’Shaunessy v Monroe County Board of Elections, 15 AD 2d 183 (4th Dept. 1961).

When a voter executes the ballot in red ink or in multi-colored (black

and blue) ink, the voter has not merely failed to follow the instructions on the

ballot. Instead the voter has acted to identify the ballot and the ballot cannot be

counted. Matter of Lorenzen v. McAffee, 76 Misc.2d 776 (Sup. Ct. Fulton Co.

1973). The secrecy of the ballot is compromised by the use of red ink in

derogation of the command clearly written on the face of the ballot to use either

blue or black ink. The instruction amply warns the voter of the requirements to

use either black or blue ink. Such instruction precludes the use of red ink or even

in another case the use of both colors. The voter acts contrary to warning and

instruction. Nor is this the result of ambiguity that could justify a claim of

ministerial error. Thus where a voter executes the ballot in red ink or in multi

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colored (black and blue) ink, the voter has acted to identify the ballot. It is

fundamental that no ballot should be marked in such a fashion as to make it

possible for the identity of the voter to be known. Color is as much a ballot

identifier of any words. See, People ex rel. Nichols v. Board of County Canvassers

of Onondaga Co., 129 N.Y. 395 (1891); People ex rel. Colne v. Smith, 188 A.D. 834

(1st Dept. 1919).

It is claimed that identifiable marks void only the race so marked. But

where the marks are in an entire column such as one such ballot marking every

candidate for president on every line, that ballot is then identifiable from all

others. In that case, the mark is sufficiently unique that the same evil sought to

be prevented is available regarding such ballot as a whole and it should be void.

Marks within the voting circle where the voter both fills in the oval

and also makes a cross over the same ovals are likewise an identifying mark.

Although the State Board of Elections may see such markings as within what they

consider to be acceptable, the nature of the mark, with the intent to not follow

the specific instructions that allow either marking but not both, should serve to

disqualify the ballot and it must not be counted.

The objections made by Petitioner regarding the face of the ballots

should be sustained.

CONCLUSION

Petitioner’s objections made at each of the Boards of Election should

be sustained in all

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respects and such ballots should not be cast or canvassed.

Dated: New York, N.Y.November 30, 2012

Respectfully submitted,

DAVID L. LEWISAttorney for PetitionerGeorge Amedore225 Broadway, Suite 3300New York, N. Y. 10070(212)-285-2290

Amedore Memo

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