Panio v. SunderlandPanio v. Sunderland
In two related proceedings pursuant to
Ordered that the final order is modified, on the law, by (1) deleting the provision thereof directing the Westchester County Board of Elections to count 160 affidavit ballots tendered by voters who appeared at the correct polling place but the wrong election district and substituting therefor a provision directing the Westchester County Board of Elections not to count those ballots, (2) deleting the provisions thereof, in effect, directing the Westchester County Board of Elections to count three affidavit ballots tendered in the wrong election district because of a map error, and, in effect, directing that seven affidavit ballots tendered in the wrong polling place due to map error be cast and canvassed, and substituting therefor provisions directing that those votes not be counted, and (3) deleting the provision thereof directing the Westchester County Board of Elections not to count 45 absentee ballots tendered by poll workers, and substituting therefor a provision directing the Westchester County Board of Elections to count those ballots; as so modified, the final order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
These election appeals involve the race for the office of Member of the New York State Senate from the 35th Senatorial District between the Republican candidate, Nicholas Spano, and the Democratic candidate, Andrea Stewart-Cousins. The general election took place on November 2, 2004, amid a flurry of complaints about voting irregularities. As a result, Rosemarie Panio, in her capacity as the Chairperson of the Westchester County Republican Committee, and the Democratic candidate, Andrea Stewart-Cousins, commenced separate proceedings pursuant to
During the trial, the Supreme Court, Westchester County (Warshawsky, J.), ruled from the bench on hundreds of paper ballots and resolved the remaining issues in a final order dated December 23, 2004. By the end of the trial, Andrea Stewart-Cousins had received a total of 56,928 votes and Nicholas Spano had received a total of 56,986 votes, which gave him a narrow margin of victory of 58 votes. The question presented on the appeal and cross appeal is whether the Westchester County Board
The Election Law provides that “[t]he State of New York shall be divided into election districts which shall be the basic political subdivision for purposes of registration and voting” (
The procedure for voting by an affidavit ballot is set forth in
In this case, the Supreme Court recognized that the election district is the “heart of our electoral system” and the “lynchpin [sic] of the Election Law.” Based on that premise, the Supreme Court properly directed the Board not to count 450 affidavit ballots tendered by voters who appeared at the wrong polling place and, necessarily, in the wrong election district.
However, in counting 160 affidavit ballots tendered by voters who appeared at the correct polling place but the wrong election district, the Supreme Court improperly concluded that there are “meaningful distinctions” between those voters who went to the wrong polling place and those voters who went to the correct polling place but the wrong election district.
Although there is evidence in this trial record that some poll workers did not follow the correct procedures, after carefully reviewing the 2,333-page trial transcript, we conclude that there is insufficient evidence to support a finding that these particular 160 voters tendered affidavit ballots in the wrong election districts because of ministerial errors on the part of the poll workers. Since these 160 voters did not fulfill the requirements of
However, the Supreme Court should have permitted the Board to count 45 absentee ballots of poll workers. In 1982 the New York State Legislature enacted
It is undisputed that the Board has never printed or provided a special ballot application or a special ballot for poll workers. Instead, the Board has historically instructed poll workers to apply for, and vote by, absentee ballots. Although it is alarming that the Board simply ignored
The Supreme Court erroneously directed the Board to count 10 affidavit ballots that were tendered in the wrong election districts because of so-called “map error.” In reaching that conclusion, the Supreme Court relied on the ministerial error provision in
The Supreme Court correctly determined not to count 20 affidavit ballots that were enclosed in envelopes that did not identify the election district for which they were tendered. The record reveals that some Board employees routinely wrote the missing information on the ballot envelopes when they removed them from the election district bags, while other employees placed yellow “Post-it Notes,” or what the Supreme Court called “stickys,” on the envelopes. It is disturbing, to say the least, that Board employees used yellow “Post-it Notes,” which are easily dislodged, on ballot envelopes that are handled by many people, especially in a close election. Unfortunately, it is no longer possible to trace the origin of these ballots; therefore, they cannot be cast and canvassed.
The Supreme Court properly excluded three affidavit ballots tendered by voters who were denied the opportunity to tender their ballots by machine because other voters allegedly signed the poll ledgers in their place. Where, as here, there is a specter of fraud, the remedy is for the voter to seek a court order allowing him or her to vote (see