Opinion
August 17, 2000.
Gary Ajello, Yorktown Heights, and Thomas P. Halley, Poughkeepsie, for petitioner.
Alan D. Scheinkman, County Attorney of Westchester County, White Plains (Robert W. Billani of counsel), for respondents.
In this proceeding to validate Petitions designating Donald J. DeBerardinis as the Green Party candidate for Mayor in the Primary Election to be held on September 12, 2000, the petitioner challenges the determination of the Westchester County Board of Elections made on July 21, 2000, which sustained objections to both of the signatures [of registered voters in the Green Party] contained on the Petitions and declared the Petitions invalid. The petitioner contends that he was not given timely notice of the specific objections filed against the Petitions, was not given a timely opportunity to cure the alleged deficiencies, and was, in fact, denied the opportunity to cure the deficiencies when he requested same. The respondents contend that the notice provided to petitioner was proper and that the failure to provide the dates on which the two signatories signed the Petitions was a fatal and non-curable defect.
The Court agrees with the respondents' contentions to the extent that it finds that the failure to provide the dates of the signatures prior to filing the Petitions was a fatal, noncurable defect.
Strict compliance with the requirements of the Election Law is mandated as to matters of prescribed content of nominating petitions (see Election Law § 6-132 Elect.; Keane v. New York State Board of Elections, 122 A.D.2d 966, appeal denied, 68 N.Y.2d 605), and the requirement that each signature be dated is a requirement of content and not merely one of form (see e.g., Bloom v. Power, 21 Misc.2d 885, appeal granted, affirmed 9 A.D.2d 626, affirmed 6 N.Y.2d 1001). However, there is no requirement that the dates appearing beside the names of signers be filled in by the signers or even in their presence (see Zimmerman v. Holwell, 28 A.D.2d 1000, affirmed 20 N.Y.2d 833; also see Bloom v. Power, supra and Election Law § 6-134 Elect., subd. 7). In fact, the dates may be filled in even after the subscribing witness has signed the witness statement so long as the subscribing witness initials the entries (see Brown v. Phillips, 185 A.D.2d 953, leave to appeal denied, 80 N.Y.2d 754).
In the instant case, it is undisputed that the Petitions filed with the Board of Elections contain two signatures, but neither signature was dated. Petitioner went to the Board of Elections on July 24, 2000 and asked to speak to Commissioner Carolee Sunderland for the purpose of curing the defects in the Petitions. He wanted to add the missing dates. Commissioner Sunderland advised the petitioner that there is no provision of law which would permit the petitioner to add dates to the already witnessed and filed Petitions. The correctness of this advice is at the heart of this proceeding. If the law permits a candidate to cure this particular defect, then clearly the respondents' failure to timely notify petitioner of the objections raised, and the subsequent refusal to permit him to "correct" the violation, would require vacatur of respondents' determination and validation of the Petition. On the other hand, if the law prohibits the candidate from adding the dates next to the signatures after the Petition has been witnessed and filed, then the late notice and subsequent refusal to permit such alteration does not violate any right or privilege possessed by the petitioner.
Pursuant to Election Law, § 6-134 Elect., subd. 2, "[w]hen a determination is made that a designating petition does not comply with [ 9 NYCRR Part 6215], the candidate shall have three business days from the date of such determination to cure the violation." Not every omission or defect may be cured. Only those defects which violate the Board of Elections regulations as to the prescribed form of the petition, or those defects of content which are prescribed by both regulation and law, may be cured (see e.g., Matter of Farrell v. Sunderland, 173 Misc.2d 787; May v. Daly, 254 A.D.2d 688).
As previously noted, the requirement that each signature bear the date it was made is an essential requirement of content (see Election Law § 6-132 Elect.) and strict compliance is necessary. This requirement is not provided or incorporated into the regulations, and therefore, the three-day cure provision is not applicable to this defect. Since the defect could not be cured subsequent to filing the Petitions with the Board of Elections, petitioner was not deprived of any fundamental right of due process by reason of the late notice or by respondents' refusal to permit the post-filing amendment of the Petitions.
In accordance with the foregoing, the Petition is denied. and the proceeding is dismissed.