Opinion
Index No. 2023-419
08-16-2023
MacGuire Benton, Candidate-Petitioner, v. Michael Henrici and Lori L. Lehenbauer, Commissioners constituting the Otsego County Board of Elections, Respondents, For an Order, pursuant to Election Law Section 16-100, 16-102 and 16-116, declaring valid the independent Nominating petition which nominated the Candidate-Petitioner as candidate of the Customer Service Independent body for the public office of Otsego County Clerk in the General Election to be held on November 7, 2023, and directing the said Board of Elections to print And place the name of said Candidate-Petitioner on the Official ballot of such General Election.
For Candidate-Petitioner, MacGuire Benton Andrew H. Van Buren, Esq. For Respondents-Objectors, Michael Henrici, SRL, Lori L. Lehenbauer, SRL Denise Hollis, Esq.
Unpublished Opinion
For Candidate-Petitioner, MacGuire Benton
Andrew H. Van Buren, Esq.
For Respondents-Objectors,
Michael Henrici, SRL, Lori L. Lehenbauer, SRL
Denise Hollis, Esq.
Brian D. Burns, J.
The Candidate-Petitioner herein filed an Order to Show Cause seeking a determination that certain petitions nominating him as candidate of the Customer Service Independent Party for the public office of the Otsego County Clerk in the November 2023 election be declared valid. After he filed his petitions, objections were filed with respect to 205 signatures. The Otsego County Board of Elections, on June 15, 2023, sustained a number of signatures and determined that the Candidate-Petitioner, therefore, did not have a sufficient number of signatures to be listed as a candidate for the Customer Service Party for the November 2023 election.
The court heard the matter on July 3, 2023. On the return date, the parties stipulated that the court's review of the challenged signatures would be limited to 29 instances where the Board of Elections invalidated a signature because it was printed, not signed, on the nominating form. The parties further stipulated that the court would receive into evidence and review affidavits each of the 29 individuals whose names were printed on the nominating forms.
The court has reviewed the petitions bearing the signatures in question, the objections, the Board of Elections determination with respect to those objections, and the sworn affidavits the candidate-petitioners submitted in an effort to cure the petitions. Each sworn affidavit avers, in relevant part, "that I did sign the Independent Nominating Petition (Customer Service) of MacGuire Benton for the Office of the Otsego County Clerk. When signing said petition I did use printed letters, in lieu of cursive." Each affidavit appears to be properly signed and notarized.
LEGAL STANDARD
As a general rule, printed signatures on nominating petitions should be ruled invalid unless the signature is also printed on the voter's registration card on file with the Board of Elections (see, Matter of Toles v. Quintana, 183 A.D.3d 1290, 1292, 123 N.Y.S.3d 786 [4th Dept. 2020]) However, candidate-petitioners are allowed to file curative affidavits and the court may rely on such affidavits in determining the validity of printed signatures (see, Matter of Hennessy v Board of Elections of County of Oneida, 175 A.D.3d 1777, 1779-17780, 109 N.Y.S.3d 525 [4th Dept. 2019]). A recent Decision from the Appellate Division, Fourth Department is directly on point. In Maclay v. DiPasquale, 73 Misc.3d 258, 154 N.Y.S.3d 206 [NY Sup. Ct. 2021], the candidate-petitioner's nominating petitions contained signatures that were printed and not in cursive. The candidate subsequently filed curative affidavits wherein the people signing the nominating petition swore that they did sign the nominating petition and that they did so by printing their name in lieu of using cursive. The court held that the affidavits cured any defects and ruled that the signatures of a nominating petitions were valid. The Appellate Division, Third Department, has likewise held that affidavits may be used to cure defects in the petition (see, Matter of Mills v. New York State Bd. of Elections, 207 A.D.3d 943, 172 N.Y.S.3d 220 [3rd Dept. 2022]).
Turning to the present case, an objection was filed to 29 signatures on the Customer Service Party nomination form because signatures were printed and not signed in cursive. The Board of Elections conducted its review and the Commissioners unanimously ruled that the petitions were invalid because individuals who printed their name on the petition had signed their name in cursive, on the Board of Elections registration form. The court finds that the Otsego County Board of Elections acted entirely properly and in accordance with the law in doing so.
The candidate-petitioner, however, filed affidavits in each of the 29 challenged curing this defect. In light of the law controlling these situations, the court finds that the signatures are valid.
Based on the foregoing, it is hereby, ORDERED that the matter be returned to the Otsego County Board of Elections to calculate whether the candidate-petitioner has submitted sufficient valid signatures, which now includes the 29 previously ruled invalid, in order for candidate-petitioner to appear on the ballot for the November 2023 election as a candidate for the Customer Service Party.