Opinion
Index Nos. 85114/2021 85114/2021
08-25-2021
In the Matter of the Application of MARKO KEPI Petitioner, v. DAVID M. CARR, et al. Respondent-Candidates and THE BOARD OF ELECTIONS OF THE CITY OF NEW YORK Respondent-Board for an Order, pursuant to Sections 16-102, 16-106, 16-112 and 16-113 of the Election Law, requesting the court to rule on the validity of the casting or canvassing, or refusal to cast or canvass, any ballot in the Republican Party Primary Election held on June 22, 2021 for the Republican Party nomination for the public office of Member of the New York City Council from the 50lh Council District and declaring Petitioner and the lawfully nominated candidate in this election; or ordering a new primary election.
Unpublished Opinion
DECISION & ORDER
Hon. Ralph J. Porzio, J.S.C.
FACTS
This special proceeding centers around the Republican Primary Election held on June 22, 2021 ("Primary Election") for the seat of New York City Council from the 50th Council District in Richmond County, New York ("Council Seat"). The candidates for the Primary' Election were Petitioner Marko Kepi ("Kepi") and Respondents Sam T. Pirozzolo, David M. Carr ("Carr") and Kathleen Sforza. The initial ranked choice voting results released by Respondent Board of Elections ("Board") showed Carr in the lead, subject to a canvass of the absentee ballots. On June 22, 2021, Carr commenced a special proceeding under Carr v. Kepi, Index No. 85114/2021 ("Carr Action") seeking to preserve his rights under the New York State Election Law, including to correct any errors in the canvass of returns in the Primary Election and to preserve the paper ballots under King v. Smith, 308 A.D.2d 556 [2d Dept., 2003], This Court signed Carr's Order to Show Cause and ordered that the Board preserve absentee, affidavit, special and military ballots that were counted over any objection by any candidate or their representative. In his Order to Show Cause, Carr further seeks an Order from the Court:
(a) determining the validity of all ballots and votes, including but not limited to, all ballots cast in and for the Primary Election, (including scanned and/or manually cast ballots on the voting machines, as well as non-scanned and hand-counted: emergency ballots, absentee ballots, affidavit ballots, special ballots and military ballots (the "Paper Ballots") voted by the voters in 50th Council District within the City of New York;
(b) determining the accurate tally upon the canvass, recanvass, audit and/or manually recanvass of the votes cast utilizing electronic voting machines, ballot marking devices and/or ballots canners (collective, "Voting Machines") and those cast upon the Paper Ballots in and for the Primary Election and ordering the canvass of the votes made by the Board be corrected and adjusted to reflect such proper tally;
(c) ordering that all ballots cast on Voting Machines and all Papers Ballots cast in and for the Primary Election be completely manually re-canvassed, with authorized poll watchers of all parties having the right to be present and interpose challenges, consistent with Board rules;
(d) ordering that any manual recanvass held pursuant to the rules of the Board be completely re-canvassed, with authorized poll watchers of all parties having the right to be present and interpose challenges;
(e) ordering the Board to certify the correct vote tally and certify Carr as the Republican Nominee for the election of the Council Seat to be held on November 2, 2021.
On June 28, 2021, the Board conducted a canvass of absentee, military, affidavit and special ballots from the Primary Election. Kepi and Carr were represented by watchers during the canvass. According to Kepi, Carr's watchers challenged over 550 absentee ballots "on the grounds that the signatures on the affirmation envelopes did not match the signatures on the corresponding voter registrations." Kepi represents that while his watchers did not challenge the validity of any ballots, they did challenge the Board's refusal to count ballots that Carr's watchers had challenged. Kepi also asserts that "each and every challenge put forth by Carr's watchers was to the ballot of an Albanian-American voter, or in a couple of cases to a voter perceived to be an Albanian-American." The Board ruled against the challenges made by Carr's watchers as to approximately 131 ballots and subsequently counted such ballots. The Board sustained objections to 358 of the ballots challenged by Carr's watchers on signature match grounds and refused to open and count such ballots. Pursuant to Election Law §9-209(3)(a), the Board mailed a "notice to cure" to the 358 voters whose absentee ballots were rejected to give them the opportunity to submit a written cure affirmation within seven business days of the canvassing board's determination. Out of the 358 notices to cure that the Board sent out, the Board received 313 affirmations to cure.
These 131 ballots were preserved with copies placed back in the respective envelopes pursuant to this Court's Order pursuant to King v. Smith.
On July 15, 2021, the Board conducted a canvass of the 313 absentee ballots for which affirmations to cure were filed. Carr represents that he interposed 313 objections on varying grounds to the casting of the "allegedly 'cured'" absentee ballots. The Board sustained 158 of Carr's objections and found that 160 ballots were deficient. Over Carr's objection, the Board counted the remaining 155 cured ballots, of which Kepi received 154 votes. As a result of the canvass. Carr led Kepi in the ranked choice voting by 46 votes and such margin mandated a full manual count of all ballots in the election pursuant to Election Law §9-208(4). The manual count, which took place on July 28, 2021, revealed Kepi to be 46 votes behind Carr and the Board certified the election results with Carr as the winner of the Primary Election.
Kepi commenced this proceeding pursuant to Election Law §16-102 and §16-106 by filing a Petition and an Order to Show Cause on June 28, 2021. In his Order to Show Cause, Kepi requested that the Court enter an Order
(a) determining the validity of all ballots that were cast and canvassed by the Board contrary to the objections of Kepi's poll watchers or ballots rules invalid and not canvassed by the Board contrary to a protest by Kepi;
(b) determining the accurate tally upon the recanvass of the votes cast on the special ballot marking devices and/or ballot scanners for the Council Seat; and/or
(c) ordering the testing and inspection of any scanners that have malfunctioned or been tampered with, and making appropriate findings of fact, and adjustments to the canvass and/or re-canvass as may be just and proper including, but not limited to, the preservation of evidence; and/or
(d) declaring Kepi to be the duly nominated candidate of the Republican Party for the Council Seat by virtue of having received the greatest number of valid ranked choice votes, cast in the Republican Primary Election and directing the Board to certify Kepi as such nominee; and/or
(e) directing the holding of a new primary election upon a finding that there were irregularities as to render impossible a determination who was rightfully nominated as the Republican Party nominee for the Council Seat.
Procedural History
Based upon the papers submitted and the arguments made by the parties, this Court held that a hearing was required to rule upon Kepi's application under Election Law §16-106 and determine if the Board committed a ministerial error in rejecting any of the 160 ballots on July 15, 2021 ("160 Ballots"). On August 13, 2021, counsel for Kepi, Carr and the Board marked each of the Rejected Ballots as Court's Exhibits in the following order: (a) the absentee ballot; (b) voter registration; (c) affirmation to cure; and (d) miscellaneous (including additional affirmations to cure or other relevant documentation presented in relation to the rejected ballot). After consolidating this Action with the Carr Action, the Court subsequently commenced the hearing on August 13, 2021 and carefully examined each Court's Exhibit and their subsections, including the signatures on Exhibits A, B and C, on the record in the presence of the parties and their counsel. Upon review of each Court's Exhibit, the Court carefully compared the signatures contained in each affirmation to cure to the signature of the relevant voter registration to determine if the Board made a ministerial error in rejecting any of the 160 Ballots. After reviewing each individual Court Exhibit, the Court heard the arguments from counsel for Kepi and Carr and ruled upon any objections.
The Court notes that pursuant to Election Law §5-802(1)(c), which allows a voter to register online and consent to the use of an electronic signature kept by the Department of Motor Vehicles as their registration exemplar signature, some documents marked as Court's Exhibit (b) were the voter's signature kept by the Department of Motor Vehicles instead of the voter registration form issued by the Board.
Based upon the review of Court's Exhibits 1-160, the Court determined that the Board committed a ministerial error in rejecting the ballots marked as Court's Exhibit 111(a) and 115(a), as the signatures contained in the affirmations to cure sufficiently corresponded with the signatures contained in the relevant voter registrations. However, the Court held that the Board did not commit a ministerial error in rejecting the remaining 158 ballots, as the Court found that the signatures contained in each Exhibit C of Court's Exhibits 1-110, 112-114 and 116-160 did not correspond to the relevant signatures contained in each Exhibit B of Court's Exhibits 1-110, 112-114 and 116-160 ("158 Uncured Ballots"). Based upon these findings, the Court ordered the Board to recanvass the ballots contained in Court's Exhibits 111(a) and 115(a) and open the ballots. In a written order dated August 18, 2021, the Court further ordered the Board to count these two ballots and re-certify the Primary Election. On August 18, 2021, the Board recanvassed the ballots contained in Court's Exhibit 111(a) and 115(a).
Upon completion of the hearing and this Court's directive that the Board recanvass the ballots contained in Exhibit 111(a) and 115(a), Carr's counsel made a motion to conduct testimony from a handwriting expert. Kepi's counsel then moved to bring in over fifty witnesses regarding the 158 Uncured Ballots. As the Court's decision had been orally rendered and the hearing was complete, the Court denied both motions as untimely. The Court permitted both Kepi and Carr the right to file post-hearing memorandum of law regarding their various objections and motions. Counsel for Carr and Kepi both filed such post-hearing memoranda of law on August 19, 2021. The Court will now address its findings and rule upon any issues raised by Kepi and Carr in their post-hearing memoranda of law.
DISCUSSION
Voting by Absentee Ballot Under the Election Law
Pursuant to the Election Law of the State of New York and the New York Constitution, an individual must be qualified and registered to vote in order to cast a ballot in New York State. (see Election Law § 5-100; NY Const art. II, §§ 5, 6). To register to vote, an individual must complete and file a voter registration application with the Board of Elections in the county where that individual resides, (see Election Law §5-210). As required by the New York State Constitution, an individual must be identified by his or her signature when that individual registers to vote, (see NY Const art. II, §7). Election Law §8-400 authorizes "qualified" voters to vote by absentee ballot in limited circumstances, including if the voter expects to be absent from the county of his or her residence or from the City of New York if he or she is a resident there, has an illness or a physical disability, is hospitalized or is a primary caregiver of an individual who is ill or has a physical disability, (see Election Law §8-400).
In light of the COVID-19 pandemic, the New York State legislature expanded this statute and effective until January 1,2022, a qualified voter may vote by absentee ballot if there is a risk of contracting or spreading a disease that may cause illness to the voter or to other members of the public, (see Election Law §8-400). In their application to obtain an absentee ballot, voters must state that they are a qualified and registered to vote and that they fit one of the criteria making them eligible to vote by absentee ballot on the day of such election. Such application for an absentee ballot contains the language in bold face above the signature line that "such application shall be accepted for all purposes as the equivalent of an affidavit and if it contains a material false statement shall subject the person signing it to the same penalties as if he had been duly sworn." According to Election Law §8-400(6), the use of titles, initials or customary abbreviations of given names by the signers to an absentee ballot envelope shall not invalidate such voter's signature upon canvass or recanvass of the ballot, (see Election Law §8-400(6)).
Election Law §8-506 governs the examination of absentee ballots and provides the rules by which such absentee ballots may be challenged. The statute states that during the examination of absentee voters' ballot envelopes,
any inspector shall, and any watcher or registered voter properly in the polling place may, challenge the casting of any ballot upon the ground or grounds allowed for challenges generally, or (a) that the voter was not entitled to cast an absentee, military, special federal or special presidential ballot, or (b) that notwithstanding the permissive use of titles, initials or customary abbreviations of given names, the signature on the ballot envelope does not correspond to the signature on the registration poll record, or (c) that the voter died before the day of the election. Election Law §8-506.
The Appellate Division, Second Department has held that the signature on the envelope containing the subject absentee ballot at issue must "sufficiently correspond" to the signature on the voter's registration poll record pursuant to Election Law §8-400(6) and Election Law §8-506(1). (see Matter of Smith v. Babcock, 110 A.D.3d 837, 838 [2d Dept 2013]). Election Law §8-506 further dictates the procedure by which the board of inspectors must determine each challenge and requires that the board of inspectors cast any ballots for which they cannot sustain the challenge by majority vote. If the board of inspectors determines by majority vote that it lacks sufficient knowledge and information to determine the validity of a challenge, the inspectors must properly mark the ballot envelope and return it to the Board so that it may be cast and canvassed under Election Law §9-209. Under Election Law §9-209(1)(a), the Board must designate a set of poll clerks to cast and canvass the ballots and to fix a time and place for their meeting. The set of clerks, which is divided equally between representatives of the two major political parties, are deemed a central board of inspectors for the purposes of the statute. According to Election Law §9-209(2)(a)(i), "upon assembling at the time and place fixed for such meeting, each central board of inspectors shall examine, cast, and canvass the envelopes and the ballots therein contained as nearly as practicable." The statute then provides procedures by which the Board must examine, cast and canvass such ballots.
Election Law §9-209(3) was enacted on August 21, 2020 and therefore has only applied to the 2020 General Election and 2021 Primary Election. Pursuant to Election Law §9-209(3)(a), if the Board determines that "an absentee ballot affirmation envelope signature does not correspond to the registration signature", the Board is required, within one day of such determination, to send a written notice explaining the reason for the rejection and the procedure by which to cure such rejection. The voter may then cure the defect by filing a "duly signed affirmation" attesting to the same information required by the affirmation envelope and attesting that the signer of the affirmation is the same person who signed the absentee ballot envelope. The Board is required to include a form of this affirmation with the notice to cure and the voter must file the cure affirmation with the Board no later than seven business days after the Board's mailing of the notice to cure. Election Law §9-209(3)(c) further mandates that "provided the board determines that such affirmation addresses the curable defect, the rejected ballot shall be reinstated and duly canvassed." If the Board is split "as to the sufficiency of the cure affirmation", the envelope will be set aside for three days and then canvassed unless a court order directs the board otherwise, (see Election Law §9-209(3)(c)). The Board must notify the voter "when the board of election invalidates a ballot envelope and the defect is not curable." Election Law §9-209(3)(d).
Under the statute, the Board shall send the written notice to the absentee voter's address indicated in the registration records and, if different, the mailing address indicated on the absentee ballot application. The board shall also contact the voter by either electronic mail or telephone, if such information is available to the board in the voter's registration information, in order to notify the voter of the deficiency and the opportunity and the process to cure the deficiency.
The Board testified in this Action that the along with the notice to cure that the Board sends to the voter, the affirmation to cure has a special code and VSN number on the bottom. The Court notes that some affirmations to cure submitted for the 160 Ballots did not contain the VSN number and therefore were not the form that the Board sent to the voter along with the notice to cure.
Since Election Law §9-209(3) was enacted approximately one year ago, the Court is aware of only one case that discusses the ability to cure absentee ballot defects through an affirmation to cure under this statute. In Tenney v. Oswego County Board of Election, the Court explained the recent surge in absentee voting as a result of the COVID-19 Pandemic and the amendment of Election Law §8-400(1)(b) to temporarily allow absentee ballots by voters due to COVID-19 concerns. The Court further noted
Anticipating an increase in-first-time absentee voters, the Legislature also added a new cure provision to the Election Law, which requires Boards of Election to: review absentee ballot envelopes as they arrive; identify minor, curable defects (such as missing signatures); and immediately inform voters of their right to correct those problems (Election Law § 9-209[3]). Voters who remedied, or cured, defects in their ballots within the statutory period (either five or seven days), were lawfully entitled to have their absentee ballot canvassed (Id.-, Executive Order 202.58). Tenney v. Oswego County Bd. of Elections, 70 Misc.3d 680, 683 [Sup Ct 2020],
In Tenney, the Court found that the respondent Boards of Elections committed serious ministerial errors, including failing to canvass certain absentee and affidavit ballots, and ordered the Boards of Elections to correct such errors. The Court ruled that a judicial review of a Board of Election's ruling on the validity of an affidavit ballot under Election Law §16-106(1) is limited to determining whether the Board committed a ministerial error when deciding whether to cast the ballot "based upon the affirmant's oath and the Board's own records." The Court noted that "because of this, the Court may not consider 'extrinsic evidence' beyond that which the Board had - or should have had - during the canvass." Tenney v. Oswego County Bd. of Elections, 71 Misc.3d 400, 416 [Sup Ct 2021]) (citing Matter of Gross v. Albany County Bd. of Elections, 10 A.D.3d 476, 479; Carney v. Davignon, 289 A.D.2d 1096, 1096 [4th Dept. 2001].
Election Law §16-116 and §16-106
Election Law §16-116 provides that "a special proceeding under the foregoing provisions of this article shall be heard upon a verified petition and such oral or written proof as may be offered, and upon such notice to such officers, persons or committees as the court or justice shall direct, and shall be summarily determined." Election Law §16-116. This statute also provides that "the proceeding shall have preference over all other causes in all courts." Id. The Court of Appeals has held that "Election Law § 16-106(1) 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 Bd. of Elections, 3 N.Y.3d 251, 257 [2004]. (see Matter of Alessio v. Carey, 10 N.Y.3d 751, 753, [2008]); Matter of Johnson v. Martins, 79 A.D.3d 913, 919-20 [2d Dept 2010], affd, Matter of, 15 N.Y.3d 584 [2010])). In such a proceeding, the Supreme Court "has the authority to 'direct a recanvass or the correction of an error, or the performance of any duty imposed by law' (Election Law § 16-106[4])." Matter of Mondello v. Nassau County Bd. of Elections, 6 A.D.3d 18, 20 [2d Dept 2004], The Appellate Division, Second Department has ruled that "a court is only granted the power "(1) to determine the validity of protested, blank or void paper ballots and protested or rejected absentee ballots and to direct a recanvass or correction of any error in the canvass of such ballots, and (2) to review the canvass and direct a recanvass or correction of an error or performance of any required duty by the board of canvassers." Matter of Johnson v. Martins, 79 A.D.3d 913, 919-20 [2d Dept 2010], affd, Matter of, 15 N.Y.3d 584 [2010]. (quoting Corrigan v. Board of Elections of Suffolk. County, 38 A.D.2d 825, 827 [2d Dept., 1972]). (see Matter of Delgado v. Sunderland, 97 N.Y.2d 420, 423 [2002]).
In Matter of Gross v. Albany County Bd. Of Elections, the Court of Appeals explained that "the primary objective of this comprehensive statutory scheme is to ensure fair elections by protecting the integrity of the ballot." Matter of Gross v. Albany County Bd. of Elections, 3 N.Y.3d 251, 258 [2004], The Court of Appeals further noted that it has "previously recognized in the context of the Election Law that where, as here, the Legislature 'erects a rigid framework of regulation, detailing ... specific particulars,' there is no invitation for the courts to exercise flexibility in statutory interpretation." Id. (citing Matter of Higby v. Mahoney, 48 N.Y.2d 15, 20 n. 2 [1979]). Emphasizing the need for strict adherence to the election law, the Court explained
Rather, when elective processes are at issue, "the role of the legislative branch must be recognized as paramount" (id. at 21, 421 N.Y.S.2d 35, 396 N.E.2d 183). "Broad 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" (Matter of Staher v. Fidler, 65 N.Y.2d 529, 534, 493 N.Y.S.2d 288, 482 N.E.2d 1204 [1985]). Strict compliance also "reduces the likelihood of unequal enforcement" (id.). The sanctity of the election process can best be guaranteed through uniform application of the law. Matter of Gross v. Albany County Bd. of Elections, 3 N.Y.3d 251, 258 [2004].
in the Matter of Gross, the Court found that the Albany County Board of Elections committed a ministerial error when it forwarded absentee ballots to voters for a special election solely based upon voters' prior absentee ballot application for a previous general election. Noting its sympathy for voters who presumed they were submitting valid absentee ballots, the Court found that the absentee ballots were void since the Albany County Board of Elections sent the absentee ballots to voters who had not applied for them and therefore circumvented the "legislature's carefully crafted procedure for ensuring the validity of absentee votes." Id. at 259. The Court of Appeals emphasized that "absentee 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." Id.
The Kepi v. Carr Hearing
Upon bringing this Action, Kepi argued that the Court should order the 160 Ballots be counted without comparing any voter signatures since the filing of an affirmation to cure automatically cured any defects found therein. In opposition, Carr argues that statutory interpretation of the Election Law requires that a signature on a cure affirmation be duly signed and correspond with the signature on the voter registration. Recognizing the lack of legal precedent surrounding Election Law §9-209(3), the Court must rely upon by the rules of statutory interpretation, which holds that the "starting point in any case of statutory interpretation must, of course, always be the language itself, giving effect to its plain meaning." Am. Tr. Ins. Co. v. Sartor, 3 N.Y.3d 71, 76 [2004]. "Where the language of a statute is clear and unambiguous, courts must give effect to its plain meaning." Anonymous v. Molik, 32 N.Y.3d 30, 37 [2018], Here, the Court finds that the plain language of the statute is unambiguous and clearly demonstrates that the filing of an affirmation to cure pursuant to Election Law §9-209(3) does not automatically cure the defect. In forming the statutory framework of Election Law §9-209(3)(a), the Legislature carefully "crafted a procedure for ensuring the validity of the absentee votes" by providing procedures the Board must follow when it examines whether an affirmation addresses the curable defect or is split as to the "sufficiency" of the cure affirmation. (See generally Matter of Gross v. Albany County Bd. of Elections, 3 N.Y.3d at 259). The statute also requires the Board to notify the voter when it has invalidated a ballot envelope "and the defect is not curable." Election Law §9-209(3)(d). Based upon the plain language of the statute and the clear legislative intent, the Court finds that the filing of an affirmation to cure does not automatically cure the defect.
The Court is also unpersuaded by Kepi's argument that Election Law §9-209(3) does not state that a matching signature is required to cure a signature mismatch. Based upon the clear and unambiguous language of the statute, the affirmation to cure must sufficiently cure the defect in order for the defective absentee ballot to be cast and counted. If, as in this case, the defect in the absentee ballot envelope is that it fails to match the voter registration signature as required by Election Law §8-506, the affirmation to cure must therefore correct the defect by containing the voter's signature that corresponds to the signature on the voter registration. To hold that the defect is cured simply by having corresponding signatures on the affirmation to cure and absentee ballot envelope would defy logic and fail to correct the defect in violation of Election Law §9-209(3) and §8-506. More importantly, such a holding would greatly increase the chance for fraudulent election practices and circumvent the "legislature's carefully crafted procedure for ensuring the validity of absentee votes."
Matter of Gross v. Albany County Bd. of Elections, 3 N.Y.3d at 259.
Based upon this Court's finding that the filing of an affirmation to cure does not automatically cure a defect of non-corresponding signatures under Election Law §9-209(3), the Court proceeded to a hearing pursuant to Election Law §16-106 to determine whether the Board made a ministerial error by determining that the affirmations to cure filed in connection with the 160 Ballots did not cure the defects found therein and subsequently invalidating such ballots.
The Board's Canvass of the Absentee Ballots
Throughout the hearing, the Court heard extensive testimony from the Board's witnesses about their canvassing procedures generally and with respect to the 160 Ballots. The Board testified that it failed to conduct its preliminary review of the absentee ballots and instead reviewed the absentee ballots for the first time at the canvass in the presence of the candidates and their watchers. While Election Law §9-209(2)(a)(i) requires the Board to examine, cast and canvass the envelopes and the ballots contained therein "as nearly as practicable", there is no statutory amount of time in which the Board must perform this duty.
Furthermore, the Board subsequently followed the requirements of Election Law §9-209 and examined each ballot envelope during the canvass. In accordance with the statute, the Board also heard and considered any objections made by the candidates' watchers. After hearing the objections made by Carr's watchers, the Board determined that 358 absentee ballot envelopes needed to be cured. The Board also overruled Carr's watcher's objections to 131 ballots and counted such ballots after opening the envelopes. Upon reviewing the absentee ballots at the canvass on July 15, 2021, the Board properly canvassed the 313 affirmations to cure in accordance with Election Law §9-209. While the Board deviated from its normal practice in failing to conduct a preliminary review, the Court finds that such error did not fatally violate the Election Law or result in any prejudice to the candidates or any voter.
The Court's Review of the 160 Ballots
To determine whether the Board committed a ministerial error in rejecting any of the 160 Ballots, the Court meticulously examined and compared the signatures contained in the affirmation to cure and the voter registration for each Court Exhibit. In accordance with the Board's testimony about their methods of signature review', the Court reviewed both the print and script contained in any affirmation to determine if such corresponded to the writing contained on the voter registration. Where two cure affirmations were filed with the Board, the Court examined both affirmations to determine if either or both corresponded to the signatures contained on the voter registration. The Court heard arguments from Kepi's counsel on each of the 160 Ballots and gave ample time to Kepi's counsel and Carr's counsel to raise any arguments and review the relevant Court Exhibits. While the Court examined the signatures contained in each Exhibit A, B and C, the Court repeatedly noted during the hearing that it was only considering whether the signatures on the affirmations to cure corresponded to the signatures on the voter registration in accordance with Election Law §9-209.
The Court notes that in some instances, the signature in Exhibit B was from a DMV record.
Upon this review' of Court's Exhibits 1-160, the Court found that the Board committed a ministerial error in rejecting the affirmation to cure in Court's Exhibit 111(c), as the signature contained therein corresponded to the signature on the voter registration contained in Court's Exhibit 111(b). The Court also found that the Board committed a ministerial error in rejecting the affirmation to cure in Court's Exhibit 115(c), since the signature contained therein corresponded to the signature contained in the voter registration marked as Exhibit 115(b).
For the remaining 158 ballots that were rejected by the Board, the Court further held that the signatures contained in each Exhibit C of Court's Exhibits 1-110, 112-114 and 116-160 did not correspond to the relevant signatures contained in each Exhibit B of Court's Exhibits 1-110, 112-114 and 116-160. Notwithstanding the permissive use of titles, initials or customary abbreviations of given names, the Court found that the signature on the affirmations to cure did not correspond to the relevant voter registrations for such Court Exhibits. The Court notes that the differences in such signatures were not minor and or consisting of inconsequential abbreviations or initials. Nor were the discrepancies caused by illegible handwriting. As explained above, the Court even considered the use of both script and print on the affirmations to cure and voter registrations in accordance with Board procedures. Kepi's argument that voter signatures can change over time is unavailing, as an overwhelming majority of the voter registrations examined were filed within the last two to five years. Rather, the signatures contained in the affirmations to cure did not even remotely correspond to the signatures contained in the relevant voter registrations.
Therefore, as directed in a Decision and Order dated August 18, 2021, the Court ordered the Board to canvass and count the ballots contained in Court's Exhibits 111(a) and 115(a) and re-certify the Primary Election accordingly. The Court further determined that based upon its finding regarding the 160 Ballots, it did not need to judicially review the remainder of the 155 ballots preserved under King v. Smith.
Deeply Concerning Patterns Observed by the Court
In addition to this Court's finding regarding the 158 Uncured Ballots, the Court also noted several patterns that emerged over the course of the hearing that are deeply concerning and disturbing. Most significantly, the Court found that the same handwriting appeared on multiple affirmations to cure and absentee ballots. The Court also observed that some of the different voter registrations contained the same signatures or handwriting. This was particularly evident amongst voter registrations for different members of the same family or neighborhood. One particularly concerning example is Court's Exhibit 160(d), in which the individual wrote a letter after appearing at the Board's office to inform them that he was not a citizen and unable to vote. In the letter, the individual explains that he did not understand what he was signing and never voted. Despite this individual's written statement, Court's Exhibit 160(a) contained an absentee ballot in his name and Court's Exhibit 160(c) contained an affirmation to cure purportedly signed by him. Other distributing examples were Courts' Exhibits 134 and 135, which contained voter registrations for two individuals with the exact same signature at the bottom of each registration form. A review of the record will show that these were not isolated incidents. While this Court recognizes that its jurisdiction in this case is limited to determining if the Board made a ministerial error in rejecting the 160 Ballots, the Court could not help but make a record of these patterns since they were so glaringly obvious and deeply concerning.
In adjudicating this matter, the Court fully recognizes the "laudable purpose of absentee voting" in "opening the voting process to a larger electorate." Matter of Gross v. Albany County Bd. of Elections, 3 N.Y.3d at 259. However, the Court's observation of concerning patterns and similarities amongst numerous absentee ballots and affirmations to cure, in addition to identical handwriting found on different voter registrations, serves as a reminder that there are dangers inherent in the system that require adherence to the Election Law's rigid framework, (see id.) As held by the Court of Appeals in Matter of Gross v. Albany County, the "need to ensure fair elections by protecting the integrity of the ballot" is paramount and serves as the "primary' objective" of the comprehensive statutory scheme of the Election Law, which must be upheld by the courts. Id. at 258.
Kepi's Post-Hearing Motion
As reflected in the record, the Court denied Kepi's post-hearing oral application to have the Court hear the testimony of fifty-nine voters, who Kepi represents will testify that they signed their respective cure affirmations. The Court deemed the motion to be untimely, as the Court already rendered its decision that the 158 Uncured Ballots could not be counted. Assuming arguendo that Kepi's motion was timely, the Court denies such motion and finds that the Court is not required to hear such testimony. While Election Law §16-116 provides that a special proceeding brought under Article 16 of the Election Law "shall be heard" upon "such oral or written proof as may be offered", the Court finds that Kepi has still failed to provide this Court with any oral or written proof from any witnesses, including any witness affidavits or statements. Not once has Kepi identified any such witnesses or informed the Court which voters he wishes to have testify. A general statement regarding such possible witnesses does not suffice as "oral or written proof' that would require this Court to consider the testimony under Election Law §16-116.
Even if Kepi provided such oral or written proof, the Court finds that it should not consider such extrinsic evidence, (see Tenney v. Oswego County Bd. of Elections, 71 Misc.3d 400, 416 [Sup Ct 2021]) (citing Gross v. Albany County Bd. of Elections, 10 A.D.3d 476, 479, [3d Dept. 2004] affd 3 N.Y.3d 251; Carney v. Davignon, 289 A.D.2d 1096, 1096[4th Dept. 2001]). As Kepi himself argued, the Court's jurisdiction is limited under Election Law §16-106 to determine whether the Board committed a ministerial error in rejecting the 160 Ballots on the basis that the signatures on the affirmations to cure did not correspond to the voter registrations. The record demonstrates that the Court painstakingly reviewed each Court's Exhibit and heard any arguments made by both Carr's counsel and Kepi's counsel. Based upon the statutory framework enumerated in Election Law §9-209 and §8-506, the Court finds that voter testimony regarding whether they signed the affirmation to cure, or even the absentee ballot envelope, is not relevant to the inquiry under Election Law §16-106 Since the Board did not consider voter testimony or statements when it made its determination as to the 160 Ballots, the Court finds that it should not consider such evidence under Election Law §16-106. Therefore, Kepi's post-hearing motion to present fifty-nine witnesses is hereby denied.
While the Courts in Tenney, Gross and Carney did not explicitly address the issue of extrinsic evidence with regards to affirmation to cure under Election Law §9-209(3), the Court finds that such rulings demonstrate that the Court should not consider extrinsic evidence that was not presented to the Board when it made its determination as to the 160 Ballots.
Under the statutory requirements, the Board first examines whether the absentee ballot envelope signature corresponds to the voter registration signature pursuant to Election Law §8-506. If the Board finds that the signatures do not correspond, the Board then sends out the notice to cure and affirmation form for the voter to complete and return within seven days. Once the Board receives the affirmation to cure, the Board only compares the signatures on the affirmation to cure and voter registration.
Kepi further argues that there was no statutory authority for the Board to compare signatures on the absentee ballot cures with voter registration records or to permit challenges to cure affirmations. As the Court has already delineated the mandates of Election Law §8-506 and §9-209, the Court finds such arguments to be unavailing and unmeritorious.
The Court notes that during the course of the hearing, counsel for Kepi argued that the Court did not have jurisdiction to examine the signatures contained in the 160 Ballots since Carr allegedly objected to the ballots during the canvass, instead of his poll watchers, in violation of the Election Law. While Kepi presented no testimony to prove such allegation, Kepi's counsel pointed to Carr's Affidavit in which he states "on July 15, 2021, at the Board's office, I interposed 313 objections, for varying reasons, to the Board's counting of those allegedly 'cured' absentee ballots." The Board's witnesses testified that Carr's watchers made the objections to the ballots. Carr testified that while he made some objections on July 15, 2021, his watchers made the other objections on July 15, 2021 and all of the objections made on June 28, 2021. Kepi's counsel had an opportunity to question the Board's witnesses and Carr, but failed to introduce any evidence to contradict this testimony. The Court denied Kepi's motion to have the 160 Ballots counted automatically without review, holding that the Court had the jurisdiction to conduct the review even if Carr improperly objected to some ballots since the Court has the power to determine the validity of "protested or rejected absentee ballots." Matter of Johnson v. Martins, 79 A.D.3d at 919-20. The Court notes that Kepi has failed to raise this issue in his post-hearing memorandum of law and therefore the Court's prior ruling on this issue remains the same.
Carr's Post-Hearing Motion
Over the course of the special proceeding, counsel for Carr have repeatedly noted and argued that the Kepi Action should be dismissed for Kepi's failure to submit a verified petition in accordance with Election Law §16-116. Carr notes in his post-hearing motion that Kepi has failed to submit any verified findings. However, the Court finds that Kepi's petition is properly verified by his attorney in accordance with CPLR §3020(d). The Appellate Division, Second Department has held that nothing in Election Law §16-116 requires a ruling that the verification may not be based upon an attorney's verification pursuant to CPLR §3020 (d). (see Matter of Tenneriello v. Bd. of Elections of City of New York, 104 A.D.2d 467, 468 [2d Dept 1984], affd Matter of, 63 N.Y.2d 700 [1984]). "In fact, the equities of an election proceeding weigh heavily in favor of allowing such a verification because these proceedings are subject to severe time constraints and require immediate action." Id. Therefore, this Court finds that Kepi's petition was properly verified pursuant to CPLR §3020(d) and any failure by Kepi to personally verify any pleadings does not warrant dismissal of his Petition.
As reflected in the record, counsel for Carr moved to bring in testimony from a handwriting expert after the Court made its determination as to Exhibits 111 and 115, as well as the 158 Uncured Ballots. This Court denied the motion as untimely. However, even if Carr moved to allow this testimony in a timely fashion, the Court would deny the motion in its discretion. As the Appellate Division has held, "a court sitting as the trier of fact 'may make [its] own comparison of handwriting samples in the absence of expert testimony on the subject.'" Trevisani v. Karp, 164 A.D.3d 1586, 1587 [4th Dept 2018] (quoting Matter of Smith v. Coughlin, 198 A.D.2d 726, 726 [3d Dept 1993]). (see CPLR §4536. See also People v. Hunter, 34 N.Y.2d 432, 435-436 [1974]). Therefore, the Court in its discretion hereby denies Carr's motion to bring in such testimony.
The Court also denies Carr's post-hearing motion for attorney's fees. Under 22 NYCRR 130-1.1, the Court may, in its discretion, award costs for actual expenses and reasonable attorney's fees "resulting from frivolous conduct." According to the Appellate Division, Second Department, "conduct is frivolous if, inter alia, it is 'completely without merit in law' or 'undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another' (22 NYCRR 130-1.1 [c][1]." Hutter v. Citibank, N.A., 142 A.D.3d 1049, 1049-50 [2d Dept 2016]. In Hutter v. Citibank, the Appellate Division, Second Department further held
In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should
have been apparent, or was brought to the attention of counsel or the party. (22 NYCRR 130-1.1 [c]). Hutter v. Citibank, N.A., 142 A.D.3d 1049, 1049-50 [2d Dept 2016].
Here, Carr argues that Kepi engaged in frivolous conduct when he declined to withdraw his Petition during this Court's hearing after it became mathematically impossible for him to win the Primary Election based upon this Court's findings. However, the Court finds that Kepi's decision not to withdraw his Petition over the course of the proceeding does not constitute "frivolous conduct" warranting the granting of attorney's fees. The Court finds that Carr has otherwise failed to show that Kepi engaged in frivolous conduct under 22 NYCRR 130-1.1(c) and therefore denies Carr's post-hearing motion for attorney's fees.
Alleged Suppression of Albanian-American Voters
In his first memoranda of law, Kepi stated that "each and every challenge put forth by Carr's watchers was to the ballot of an Albanian-American voter, or in a couple of cases to a voter perceived to be an Albanian-American." Carr argues in opposition that the "entirety of Mr. Kepi's petition stems from the notion that either the Board or Mr. Carr, or both, acted to suppress the votes of the Staten Island Albanian-American community." Based upon the papers submitted and the evidence presented in this Action, the Court finds that Kepi has failed to present any proof that the Board, or Mr. Carr, attempted to suppress voters, including those belonging to the Albanian-American community. Kepi even fails to sufficiently plead that the actions of the Board or Carr were motivated by, or resulted in, voter suppression among the Albanian-American community. Kepi has also failed to offer any evidence showing that the Board deemed the 160 Ballots "uncured" based on the voters' ethnicity. With the exception of Court's Exhibits 111(a) and 115(a), this Court came to the same conclusion as the Board with respect to the 158 Uncured Ballots. Since the Court can only consider the evidence brought before it, the Court finds that Kepi has failed to submit any proof that the voters' ethnicity played a role in the Board's determination. The Court also finds that Kepi has failed to demonstrate that Carr objected to any of the ballots at issue in an attempt to suppress the rights of Albanian-American voters.
Allegations of Fraud
The Court would like to note that it has not made any rulings as to allegations of fraud in this Action. Neither Carr or Kepi pled allegations of fraud with the required specificity necessary to bring a cause of action for fraud, (see CPLR §3016(b); Matter of Waugh v. Nowicki, 10 A.D.3d 437, 438 [2d Dept 2004]). While the Court has not made any determinations as to any allegations of fraud, the Court is well within its authority to ensure strict compliance with the Election Law and note the concerning patterns it has observed in this Action that highlight "dangers inherent" in the absentee ballot system.
See Matter of Gross v. Albany County Bd. of Elections, 3 N.Y.3d 251, 258-59 [2004].
Conclusion
When adjudicating this matter, the Court fully appreciated the need to ensure strict compliance with the Election Law while giving due deference to the right to vote, which is an essential part of our democracy. However, as the U.S. Supreme Court held in Bush v. Gore, one person's vote cannot be valued over another, (see Bush v. Gore, 531 U.S. 98, 104-05 [2000]). Therefore, the individuals who exercise their right to vote through the absentee ballot system must follow the Election Law as strictly as those individuals who vote in person, by affidavit ballot or any other form allowed under the statute. If the Court were to order that the 158 Uncured Ballots be counted, this would result in such votes being valued over other individuals' votes, which must conform to the rigid framework of the Election Law in order to be cast and counted. This is a result that the Court cannot and will not allow.
Accordingly, it is hereby
ORDERED that in accordance with this Court's oral decision on August 15, 2021, the Board shall not cast or count the absentee ballots marked as Exhibit A of Court's Exhibits 1-110, 112-114, and 116-160 in the Primary Election; it is further
ORDERED that upon the opening and counting of the absentee ballots marked as Court's Exhibit 111(a) and 115(a), the Board shall re-certify the Primary Election accordingly if the Board has not already done so; it is further
ORDERED that Carr's post-hearing motion is hereby denied; it is further
ORDERED that Kepi's post-hearing motion is hereby denied; it is further
ORDERED that Carr's Petition is otherwise denied; it is further
ORDERED that the Carr Action is hereby dismissed; it is further
ORDERED that Kepi's Petition is otherwise denied; it is further
ORDERED that the Kepi Action is hereby dismissed; and it is
ORDERED that any and all other requests for relief are hereby denied.