Opinion
11057/11
08-08-2011
Patricia M. Maher, Petitioner-Candidate Aggrieved, v. Philip C. Jordan, Respondent-Objector, - and - JOSEPH P. SPINOLA, Respondent-Candidate, -and- WILLIAM T. BIAMONTE and LOUIS G. SAVINETTI, COMMISSIONERS CONSTITUTING THE NASSAU COUNTY BOARD OF ELECTIONS, et al., Respondents.
Robert A. Lifson, Esq. Attorney for Patricia M. Maher Jaspan Schlesinger LLP Attorneys for Joseph P. Spinola and Philip C. Jordan Office of the County Attorney, Nassau County Attorneys for the Board of Elections
Robert A. Lifson, Esq.
Attorney for Patricia M. Maher
Jaspan Schlesinger LLP
Attorneys for Joseph P. Spinola and Philip C. Jordan
Office of the County Attorney, Nassau County
Attorneys for the Board of Elections
Presiding by Administrative Order of the Deputy Chief Administrative Judge dated August 2, 2011.
This is a special proceeding pursuant to § 16-102 of the Election Law to validate the petitions designating Petitioner-Candidate Aggrieved Patricia M. Maher ("Maher") as candidate of the Democratic Party for the primary election for the public office of County Legislator, 13th Legislative District, Nassau County (the "office"). Maher seeks an order (1) declaring valid her petition for the office; (2) directing that the Nassau County Board of Elections (the "Board") place or print her name on the ballots for the office; (3) declaring her designating petition to be legal and valid, and reversing any contrary determination of the Board; (4) requiring the Board to restore her true and accurate registration voting address, 339 Spring Drive, East Meadow, NY 11554, as set forth in her application for change of address dated June 1, 2011; and (5) that her costs and attorneys' fees relating to this proceeding be reimbursed by Philip C. Jordan and the Board.
The Court held a hearing on this matter (and the related matter of Spinola v. Maher, Index Number 10992/2011) on August 3, 2011. At the hearing, the parties agreed that the sole issue before the Court is that of Maher's address.
The facts, as adduced at the hearing, are not in dispute. The Court heard testimony from Maher and her mother, Doris Maher, as well as Leona Cittadino and Matthew Kiernan, the Democratic and Republican representatives from the Board of Elections, respectively. The facts are as follows. Maher and/or her mother, Doris Maher, sold a house located at 2337 Marlboro Street in East Meadow. The closing occurred on May 24, 2011. Maher and her mother on May 25, 2011 moved to a leased residence located at 339 Spring Drive, also in East Meadow. They moved to this address while their permanent residence, located at 335 Spring Street in East Meadow, is under construction. Maher's prior address, before moving to 339 Spring Drive, was 2430 Hampton Street, in East Meadow. Her mother's prior address was the Marlboro Street address.
It was not clear who actually owned the Marlboro Street house, but it is not relevant for purposes of these decisions.
On June 1, 2011, Maher and her mother together went to the Board and changed their addresses. Each sworn affidavit filled out by each woman states that each woman's mailing address is 335 Spring Drive, and her residence is 339 Spring Drive. Maher's affidavit stated that her previous address was 2430 Hampton Street, while her mother's affidavit stated that her prior address was 2337 Marlboro Street. Both are registered Democrats. Maher's previous address on file with the Board, as of April 20, 2009 was the Hampton Street address. The affidavit that Maher filed on June 1st did not reference the Marlboro Street address. Maher further testified that she also went to the Department of Motor Vehicles on June 6, 2011 and filled out a form entitled Application for Driver License or Non-Driver ID Card. Maher testified that she used 335 Spring Drive on her driver's license because a clerk at the Department of Motor Vehicles suggested to her that by using 335 Spring on her driver's license, she would not have to pay to change it again once they were able to move in to that residence.
Soon thereafter, Maher and her mother each received in the mail, addressed to 339 Spring Drive, a postcard from the Nassau County Board of Elections. This postcard states that "Your voter registration application/change of address is effective immediately." The records from the Board show that this postcard was mailed to Maher at the 339 Spring Drive address on June 9, 2011. Thereafter, the Board received from the State Board of Elections an electronic database list entitled "Moved Within County." This list, dated July 1, 2011, shows Maher's address as 2337 Marlboro Street. Her mother does not appear on the list as having moved within the county.
Upon receiving this list, the Board again changed Maher's address, from her correct address at Spring Drive, to Marlboro Street, where she had not lived in several years, and which had been sold in late May. The Board thereafter sent out a new postcard to Maher at Marlboro Street. Not surprisingly, this postcard was returned to the Board by the United States Post Office on July 15, 2011. The Post Office stamp states, in relevant part, "Return to Sender. Maher 335 Spring Drive East Meadow."
Maher timely filed her petition for the office. She testified that she only learned of the problem with her address when she saw Spinola's objections. She testified that she immediately went to the Board, and filed an affidavit on July 27, 2011 that states that she did not authorize anyone to change her address since the Spring Drive address change made on June 1st.
On August 1, 2011, both Maher and her mother went to vote in the special election held concerning the Nassau Coliseum. Doris Maher testified that she had no difficulty voting, as her address was listed as Spring Drive. In contrast, Maher's name was not on the voter roles at that polling place. Maher had to vote by affidavit.
Two representatives from the Board testified, one a Democratic representative, and the other a Republican. Both admitted that because the Board only receives the list from the State Board of Elections once a year, that it was possible that it did not contain the most up-to-date information. Neither Board representative explained how the Marlboro Street address could have gotten into the State's database for Maher.
Indeed, no one testifying at the hearing was able to explain how Maher's address could have been changed in the State's database from her present address, Spring Drive, to her two-homes-ago previous address, Marlboro Street, where she had not lived since 2009. Regardless of whether Maher's address change from Spring to Marlboro was a deliberate fraud, or some unusual clerical error, it is evident that the State's database should not have reflected an incorrect address for Maher, and should not have transmitted the Marlboro Street address to the Board.
"The burden of proof in a proceeding brought to reinstate an invalidated petition is on the petitioner, who must prove the petition's validity by clear and convincing evidence." Mielnicki v. New York State Bd. of Elections, 224 AD2d 819, 637 N.Y.S.2d 808 (3d Dept. 1996). Maher has made such a showing here. The Board changed Maher's address based on the list from the State, which was plainly incorrect. Election Law Section 5-614 does not mandate a contrary result. This section states, in relevant part, that "There shall be one official record of the registration of each voter. Such record shall be maintained in an interactive, statewide, computerized, voter registration list. Such statewide voter registration list shall constitute the official list of voters for the state of New York." The statute goes on to state that "Such list shall be in the custody of the state board of elections and administered and maintained by the state board of elections, subject to rules and regulations promulgated by the state board of elections." Neither party, or the Board, introduced these rules and regulations at the hearing.
It is evident that there is no basis — and no rational explanation — for Maher's address to have been changed, by an unknown hand, to the Marlboro Street address. Maher had not used that as her official address since April 2009, when she changed her records from Marlboro to Hampton. Maher and her mother together properly filed all of the required documents to change their addresses to Spring Drive. Both women received confirming postcards from the Board. It was only thereafter, unbeknownst to Maher, that her address was changed improperly. Whether fraud was committed is not for this Court to decide. However, this Court will not allow this unusual set of facts to displace Maher from the ballot. Election Law § 5-614 does not state that the "official statewide voter registration list" controls the local board of elections, when the "official" list contains what is undisputedly a mistake. As Section 5-614 states, "Adding, changing, canceling or removing voter registration records shall be conducted only by local boards of elections," and, thus, this Court orders the Board to change Maher's records to reflect her correct address, the Spring Drive address, as set forth on the forms that she properly filled out on June 1, 2011.
The Court notes as an aside that all of the addresses — Spring, Hampton and Marlboro — are in the 13th Legislative District, so Maher's nonresidency has never been an issue.
Accordingly, the Court hereby orders the Board to declare Maher's petition as candidate of the Democratic Party for the primary election for the public office of County Legislator, 13th Legislative District, Nassau County to be valid and sufficient. It further orders the Board to place or print Maher's name on the ballots for the Democratic Primary for the office of County Legislator, 13th Legislative District, Nassau County. It also orders the Board to change immediately her address back to the 339 Spring Drive address (with her mailing address to be 335 Spring Drive). Maher's request for costs and attorneys' fees is denied.
This constitutes the decision and order of this Court.
Dated:Mineola, New York
_____________________________
Hon. Linda S. Jamieson,
J.S.C.