Opinion
2007-1134.
Decided December 18, 2007.
Schlather, Geldenhuys, Stumbar Salk, By: Diane V. Bruns, Esq., Attorneys for Petitioner, Ithaca, New York.
Tompkins County Attorney's Office, By: Jonathan Wood, Esq., Tompkins County Attorney.
Attorneys for Respondents Stephen DeWitt and, Elizabeth Cree, Ithaca, New York.
Paul N. Tavelli, Esq., Attorney for Respondent Peter C. Hoyt, Ithaca, New York.
The question presented in this proceeding pursuant to Article 16 of the Election Law is whether a vote in one voting square of an absentee ballot should be invalidated. The petitioner asserts two grounds: 1) that the marking constitutes "an attempt to obliterate and retract" the vote for that candidate, and 2) that the marking used is a distinguishing or identifying mark.
The original ballot has been presented to the Court. The parties have waived an evidentiary hearing.
DISCUSSION
1. Obliteration
The voting square at line 8B of the absentee ballot appears to contain an "X" similar to the other X marks in the other voting squares, yet it is accompanied by multiple circles or loops. No other marked voting square has such a marking.
Section 9-112 of the Election Law provides:
"The whole ballot is void if the voter. . .
(d) makes any mark thereon other than a cross X mark or a check V mark in a voting square, or filling in the voting square. . .
except that an erasure or mark other than a valid mark made in a voting square shall not make the ballot void, but shall render it blank as to the office . . . in connection with which it is made. No ballot shall be declared void or partially blank because a mark thereon is irregular in form."
17 McKinney's Cons. Laws of NY, Election Law Section 9-112
Crooked or retraced lines or other voting marks which are irregular in form are not grounds for invalidating a ballot in whole or in part; an indistinguishable scribble rather than a cross X mark or a check V mark satisfies the requirements of the Election Law and shall not render the ballot void in whole or in part. Matter of Mondello, et al. , 6 AD3d 18, 23-24 (Second Dept., 2004), citing Matter of Carola v. Saratoga County Bd. Of Elections , [ 180 AD2d 962 (Third Dept., 1992)].
However, in this case we are presented with an apparent X mark combined with scribbled circles looped through the X. In Moritt v. Cohen , the Court determined that the marking appeared to have been an obliteration by the voter and not an attempt "to make his vote clear." 255 AD 804, 806 (Second Dept., 1938), affirmed 279 NY 617 (1938). Similarly, the circles here cannot be deemed an emphasis or clarification of the vote, since they appear to be drawn through the X.
The Court finds that this marking is more than a mere irregularity and constitutes sufficient grounds for invalidation of the vote for this candidate as an attempt at obliteration.
2. Distinguishing Mark
The Court also finds that the mark in voting square 8B is a distinguishing mark requiring invalidation of the vote.
In Matter of Nicolaysen v. D'Apice [ 100 AD2d 501 (Second Dept., 1984)] the Court invalidated a ballot where it had "distinguishing, rather than inadvertent, marks in the voting square with respect to the office of town councilman, thereby rendering the ballot blank as to that office." Extraneous marks "outside the voting square" have been held sufficient to invalidate a ballot if they "could possibly identify the voter." Matter of Gross, et al. , 10 AD3d 476, 480 (Third Dept., 2004), affirmed 3 NY3d 251 (2004). Here the voter used an X with circles in only one voting square out of eight, making the ballot distinct. In Carney v. Davignon , a ballot was invalidated "based on marks made at the top of eight of the nine voting columns that could have identified the voter." 289 AD2d 1096 (Fourth Dept., 2001). Common to all of these decisions is the absence of any extrinsic evidence that the distinguishing marks were made with the intent to identify the voter.
The Court of Appeals has noted that the statutory provisions regarding absentee ballots were designed to safeguard voter privacy and the integrity of the ballot, recognizing the fact that absentee ballots are cast without the secrecy and other protections afforded at the polling place, giving rise to greater opportunities for fraud, coercion and other types of mischief on the part of unscrupulous partisans. Matter of Gross v. Albany County Board of Elections , 3 NY3d 251, 255 (2004).
Thus, although there is no evidence presented here that the voter's marking of voting square 8B was made with any fraudulent intent, the Court is compelled to conclude that the ballot is invalid with regard to that vote.
CONCLUSION
For the foregoing reasons, the petition is granted.
Submit order on notice.
Signed this ___ day of December 2007 at Ithaca, New York.