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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONTGOMERY --------------------------------------------------x In the Matter of GEORGE A. AMEDORE, JR.

Petitioner, -againstOF LAW IN SUPPORT OF THE OBJECTIONS OF PETITIONER AMEDORE GREGORY PETERSON, DOUGLAS KELLNER, JAMES WALSH, and EVELYN AQUILA, COMMISSIONERS constituting The New York State Board of Elections; and JAMIE M. DUCHESSI and TERRANCE J. SMITH Commissioners, constituting The Board of Elections For Montgomery County, and C. VICTOR WORK and THOMAS F. TURCO Commissioners, constituting The Board of Elections For Ulster County, and THOMAS J. BURKE and BRENT BOGARDUS Commissioners, constituting The Board of Elections For Greene County, and MATTHEW J. CLYNE and RACHEL L. BLEDI Commissioners, constituting The Board of Elections For Albany County, and BRIAN QUAIL and ART BRASSARD Commissioners, constituting The Board of Elections For Schenectady County, and MICHAEL J. AMATO, Sheriff of Montgomery County, and The Sheriffs Department of Montgomery County PAUL VAN BLARCUM, Sheriff of Ulster County, and The Sheriffs Department of Ulster County 1 INDEX # 2012-887 MEMORANDUM

GREGORY R. SEELY, Sheriff of Greene County, and The Sheriffs Department of Greene County CRAIG APPLE, Sheriff of Albany County, and The Sheriffs Department of Albany County DOMINIC D'AGOSTINO, Sheriff of Schenectady County, and The Sheriffs Department of Schenectady County CECILIA F. TKACZYK, Candidate for the New York State Senate 46th Senate District Respondents, For an ORDER, pursuant to Sections 16-102, 16-106, 16-112 and 16-113 of the Election Law, directing the preservation of all ballots cast in the General Election held on November 6, 2012, for the public office of State Senator for the 46th State Senate District, in the County of Greene, Montgomery, Albany, Schenectady and Ulster and invoking the jurisdiction of the Court to rule upon the casting or canvassing or the refusal to cast or canvass any ballot as set forth in Election Law 16-106(1) and preserving the rights of Petitioner(s) under Articles Five, Six, Seven, Eight, Ten Nine and Sixteen of the Election Law and Section 16-113 of the Election Law and related sections of law; and pursuant to Section 16-100 of the Election Law, declaring Petitioner, Candidate the lawfully elected candidate in this Election and ordering the certification of said Petitioner Candidate by Respondents Boards of Election. -------------------------------------------------------------------------------x MEMORANDUM OF LAW IN SUPPORT OF THE OBJECTIONS OF THE PETITIONER GEORGE AMEDORE PRELIMINARY STATEMENT Petitioner George Amedore, a candidate for the office of State Senate, 46th Senate District, respectfully submits the following memorandum of law in 2

support of his objections to three classes of items, absentee ballots, affidavit ballots and ballot faces, viewed after opening. Such objections include issues as to the qualifications of the voter, the qualifications of the voter to receive a ballot and whether such ballot should be cast and canvassed, the prima facie invalidity of the absentee ballot application should have precluded issuance of the ballot, various apparent signatures that are not those of the voter and other objections itemized herein, followed by the legal basis and argument for the sustaining of such objections.1 STATEMENT OF FACTS Petitioner, Amedore, by counsel objected to a universe of ballots in the Counties of Montgomery and Schenectady. Petitioner made approximately 665 legal objections to the casting and canvassing of the same number of ballots.2 The number of Petitioners objections in Schenectady County is 40, and 13 in Montgomery, 31 in Albany, 115 in Greene and 466 in Ulster. The legal rulings on these specific objections will in the main also decide the legal objections made by both parties in the entire race.3 Petitioners objections in these two counties principally divide into questions of law and a limited number of fact based determinations such as signature veracity and other issues that may require the taking of testimony from experts. ARGUMENT

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Certain items required more than one objection to cover the legal defects in the iem sought o be voted. Counsel for the Petitioner urges the Court not to entertain what purports to be argument from any one Commissioner or any County Attorney purporting to speak for the Board without determining that both Commissioners have sought the argument to be presented to the Court. Election Law 3-212 requires that all actions of the Board shall require a majority vote of the Commissioners. See also In the Matter of County of Nassau v. State, 513309, 2012 NY Slip Op 07236 (3d Dept 11-1-2012)

INTRODUCTION There is no question that the purpose of the Election Law is to secure the rights of duly qualified electors, not to frustrate them by posing technical obstructions that bear no relationship to the policies underlying the statutes. Only ballots cast in conformance with the law have the right to be counted. But still, the Election Law is uniformly held to be strictly construed, Staber v Fidler, 65 NY 2d 529, 534 (1985), so as to prevent the possibility of fraud and to decrease the urge to engage in mischief in the election process for partisan benefit. In the Election Law, there are two well established and competing principles underlying this matter. The Court of Appeals has said that "[t]he right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible transcends technical errors." Gross v. Albany County Board of Elections, 3 N.Y.3d 251, 258 (2004). But objections that relate to the policies underlying the statutes secure the rights of those voters who observe the law in all respects and protect the franchise from mischief. See People ex rel Hirsh v. Wood, 148 NY 142, 147 (1895) reaffirmed in Gross, supra. On the other hand, "[b]road 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." See Matter of Alessio v. Carey, 49 A.D. 3d 1147, 4th Dept. 2008) reversed on other grounds, 10 NY 3d 751,753, cited in Gross, 3 N.Y.3d at 251. It is important that the franchise which is a right not be granted when the voter has engaged in malfeasance or misfeasance in the execution of legally binding documents and either omitted, misinformed or otherwise failed to provide the material information that permits the exercise of the franchise. The providing of the material information is what qualifies the voter and not merely appearing ready and willing to vote. Both absentee ballots and affidavit ballot systems are such that they 4

present temptation for fraudulent conduct in different opportunities and in different degrees. For example, it is clear that there is believed to be a greater opportunity for fraud in the election process in the absentee ballot process since the voter is usually not presenting themselves to a polling place in an election district. See, Panio v. Sunderland, 4 N.Y.3d 126, 128 (2005). But certain basic common sense elements guide determinations. For example, an affidavit ballot, it is accepted, has a lesser likelihood for fraud because the voter is the one presenting themselves in person at a polling place. If it is required for affidavit ballots to be valid that they be complete in terms of the statutorily required information, with a lesser likelihood of fraud, then the applications for absentee ballots should follow the same prophylactic requirement. The entire absentee process from application to the vote itself takes place outside of the watchful eye of bipartisan election officials, except for over the counter or in office voting. Thus, the determination to issue an absentee ballot is reviewable to the same degree as the validity of the affidavit ballot. Jacobs v. Biamonte, 15 Misc. 3d 223, 228 (Sup Ct Nassau Cty. 2007). Incomplete information should clearly void each of those ballots. The objections made by Petitioner Amedore relate not to ministerial error by the Board of Elections. In the case of both absentee ballots and affidavit ballots, Petitioners objections relate to the statements made by voters, not ministerial error. Ministerial error exists when poll workers lead a voter into error because the voter knows no better. In Panio v. Sunderland, 4 NY 3d 123(2005), the Court of Appeals ruled that voters who went to the entirely wrong polling place may not vote because of their error. For those voters who were at the correct polling site but not the correct election district, those voters were allowed to vote. In that case it was the fault of the Board personnel not to direct the voter to the proper table within the proper site. Therefore, a voter seeking an absentee ballot must be truthful in the application, seek the ballot for the correct period of time, i.e. Election Day, and 5

for the correct election, i.e. the General Election, and not the primary or special election, must fill in and cannot make any materially false statement on the application for the ballot.4 Similarly the person who signs the request for an absentee ballot must be the actual voter, and not someone who signs the voters name so as to prevent fraud.5 A voter who seeks an affidavit ballot must likewise be qualified to vote and when they make a statement of qualification that is not correct, they should not have their vote counted.6 The applicant for an affidavit ballot must be within the correct poll site. They have to execute an accurate and complete affidavit statement. The material which they swear to must match the Boards information such as when they claim to have moved, the place from which they moved must match the Boards information, they must fully execute the affidavit in that they must select one of the reasons for the use of the affidavit ballot and must provide all the material information such as an accurate address, a date of birth and other information demanded by the face of the document from the voter that serve to identify and corroborate the identity of the voter. Similarly, they cannot leave out that information because an incomplete affidavit ballots fails to qualify under law to be voted. In each of the instances as to affidavit ballots and absentee ballot applications, these matters are first within the voters control and secondly are the material elements which do allow for verification and corroboration that they are in fact who they claim to be and reside where they claim to reside. These matters are material and function as predicates to the right to vote.

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See Election Law 8-400 and 17-132 (6) Although little litigation has occurred surrounding absentee ballot applications, where a person appears at the Board of Election and signs the name of another voter to obtain a ballot, even where the ballot envelope is signed by the voter, there is nothing that stops the applicant from voting the ballot and procuring the signature of the voter. In fact the process of someone forging the voters signature on the absentee ballot application allows the inference that the ballot is not truly that of the signatory. 6 See Election Law 17-132 (1)

JURISDICTION OF THE COURT IN ELECTION LAW CASES UNDER ARTICLE 16 The role of the Court in the determination in the matter is that of confined jurisdiction. The court, however, has no equity powers in election cases. Schieffelin v. Komfort, 212 N.Y. 520 (1914) . In Schieffelin, the Court of Appeals stated: "It is the settled law in this state that equity has no jurisdiction over contests of office even if the election is claimed to be void. Parties aggrieved are required to assert their rights in proceedings provided by statute or in actions at law."212 NY at 525. The Court of Appeals reaffirmed this limitation most recently in Matter of Delgado v Sunderland, 97 NY2d 420, 423 (2002), quoting Schieffelin v Komfort, 212 NY 520, 535 (1914). ABSENTEE BALLOTS The right to an absentee ballot is established by Article II Section 2 of the New York State Constitution, and the relevant procedures are codified in Election Law 8-400 et seq. The Election Law describes in detail the appropriate procedure for the issuance of an absentee ballot. As the Court of Appeals held in Gross, supra, "[a]bsentee 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." Election Law 8400. The law of absentee ballots has been both strictly construed and liberally construed. As a consequence, in recent years the Legislature has enacted statutes to liberalize the process governing the issuance of absentee ballots so that the voter needs to provide less information in order to qualify for the receipt of such ballot. The voter must now only provide a legal basis for why an absentee ballot is needed, the duration of the absence and that such person is qualified to vote and registered to vote in that election. Election Law 8-400 (1). The voter also has to identify which election they claim absence for, i.e. a primary, general or special election. The voter must complete the application. Election Law 8-400 (2). 7

The Court of Appeals has mandated that such minimal requirements are to be strictly construed. Thus, a voter need only submit a statement under the penalties of perjury stating a reason for the issuance of the absentee ballot that is to be reviewed by the Board of Elections before issuance of the ballot. With the minimal amount of information required on the face of the application, it still must justify the issuance of the ballot. When a local board of elections receives an application for an absentee ballot, the board is statutorily obligated to make an inquiry, that it deems proper, as to whether the applicant is qualified to vote and to receive an absentee ballot. Election Law 8-402. If it is satisfied in its inquiry then the absentee ballot is forwarded to the voter. The statute requires some inquiry, which at minimum, includes ascertaining whether the application is properly executed and complete. Where the applications are incomplete the Boards sometimes mail the ballot with instructions to complete the application and return it. See Stewart v. Chautauqua County Bd. of Elections, 14 N.Y.3d 139, 151 (2010). The voter must complete the application. Election Law 8-400 (2). Stewart states that the return of the now-complete absentee ballot application with the ballot and the subsequent examination of the returned application allowed examination of the qualifications of each voter to cast the enclosed absentee ballot. Only then did the Board have a basis to determine that the voter was entitled to an absentee ballot. See, Stewart, 14 N.Y.3d at 151. In Gross v. Albany County Board of Elections, 3 N.Y.3d at 258, the Court of Appeals re-stated the need for compliance with the framework specified in the absentee ballot provisions. Certain failures in the process are attributable to technical, inconsequential or ministerial error because the element is not central to the substantive process by which voters are determined to be qualified to cast absentee ballots. Voters who were never made to articulate why they were not able to vote at the polls are not qualified to receive such ballots. Stewart, 14 N.Y.3d at 151, quoting Gross 3 N.Y.3d at 259. ABSENTEE BALLOT APPLICATION 8

The objections by Petitioner to absentee ballots break down into a number of catagories of objections. The first is that the potential voter failed to complete the affidavit by omitting altogether the reason for seeking an absentee ballot. The law in its most recent iteration now requires only that a voter state why such voter needs an absentee ballot but it is clear that the law requires some explanation given that the "explanation" requires no more than a check in a box or the supplying of an address of the voter. The statute, Election Law 8-302(3)(e) (ii) is explicit, in that it imposes the minimum possible burden upon the person seeking to vote by absentee ballot given the Constitutional mandates of Article II, Section 2. The Court of Appeals in Stewart v. Chautauqua County Bd. of Elections, 14 N.Y.3d at 151 held that where there is an omission in the process of seeking an absentee ballot there is not substantial compliance with statutory directives." Citing Gross, 3 N.Y.3d at 259. Where the voter seeking the ballot omits required information in the application, I.e. any reason for issuance of an absentee ballot, or the failure to swear under oath to a residence within the county, then the defect is a "substantive deficiency implicating voter qualification." Gross, Id. at 259 n.3. Counting such ballots would invite continued mischief by the Boards in the issuance of absentee ballots. Gross, Id. The issue for the Court to first confront is whether or not it may rule upon the providing of an absentee ballot to a voter who for any number of reasons does not qualify to receive such ballot on the face of the application. In Gross, the Court reviewed the applications for absentee ballots to ensure that the person applying for such a ballot, an exception to the general rule of the in person requirement for voting is a qualified voter. Where the voter provides an incomplete and insufficient reason for obtaining a ballot, the Court may so find. Gross, supra. As a threshold issue, Petitioner made a significant number of objections to the issuance of absentee ballots on the basis of an application that was inadequate, failed to state a basis or indicated an out of county address. 9

Respondents occasionally claimed that such objections are barred by law on the basis that the objection should have been lodged at the time of the issuance or application of the absentee ballot. It appears that issue was resolved as within the jurisdiction of the Court by Gross, supra. Reference to Election Law 8-402 (7) for the proposition that the list of absentee voters was available and objections should have been lodged prior to Election Day are not borne out by the statute or the case law. First, the access to the list as opposed to the applications is given only to the county chair and candidates are not by statute given access to the applications so as to lodge objections prior to the time that the absentee ballot is sought to be cast and canvassed. Jacobs v. Biamonte, 15 Misc 3d 223 (Sup Ct Nassau Cty. 2007) affd 38 AD 3d 777 (2d Dept 2007). Where the face of the application indicates that the voter is not qualified, the Board of Elections is without jurisdiction to determine the sufficiency of the special circumstances that authorize the issuance of the ballot to a purported absentee. The Board may conduct its own investigation Election Law 8-402 (2). It is a limited investigation. See Sheils v. Flynn, 164 Misc 302 affd 252 AD 238 affd 275 NY 446 (1937). The Board personnel, when faced with a sworn statement, cannot then take an unsworn statement of another person, not the voter and amend alter or otherwise change the application or But when the Board conducts an investigation it may not then alter the face of the sworn statement of the voter or take hearsay information from the voters mother as it has done in some circumstances. In other cases the Board employee merely changed the address on the sworn document to match Board records. These facts defeat the presumption that the Board has satisfied itself that the applicant was legally qualified to vote at this particular election by inquiry and investigation extrinsic to the application. Sheils, Id.

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The uniform rule of law is that absentee ballots that are incomplete may not be cast or canvassed. Ballots cast were nonetheless invalid as a result of the failure on the part of the individual voters to accurately complete them. Additionally, voters were not misled into omitting the required information by Board personnel. Panio, 4 N.Y.3d at 128. Where Board of Elections personnel make the "ministerial error which causes such ballot envelope[s] not to be valid on [their] face," then the ballot should be counted if it is without any other legal defect. Panio, 4 NY3d at 128-129 (2005). See, also, In Re Frank K. Skartados, 81 A.D.3d 757 (2d Dept. 2011). The objections Petitioner has made include those to incomplete applications. A voters failure to indicate a permissible reason, any permissible reason, for unavailability under Election Law 8-400 to justify the ballot will void the ballot. Gross v. Albany County Board of Elections, 10 A.D.3d 476 (3d Dept. 2004) aff'd. 3 N.Y.3d at 251. Without the requisite information, the Board of Elections has no basis to issue an absentee ballot to the voter. Thus, where the applicant fails to indicate any reason by a check mark on the application as to the reason for why they cannot present themselves in person to vote on Election Day, then the applicant has not established a basis for the ballot being issued. The Board of Elections, in that event, has issued a ballot to a person who is on the face of their application not qualified to vote. Since such a ballot is not properly issued it thus should be null and void when it appears. Because the execution of the application is wholly under the control of the voter, this does not implicate the Board of Elections, nor any ministerial error on the part of its employees. Qualification for Absentee Ballot: Residence Outside the County Any voter who provides sworn statement on her absentee ballot application stating that his or her residence is outside the County, as one did regarding her address in Binghamton, is likewise invalid and a nullity. Election Law 8-302 (3)(e)(ii) requires that the voter provide on the application for an absentee ballot the address in such election district from which he or she 11

registered. Ballot without Evidence of Time of Receipt This Department has held that the Election law does not permit the canvassing of absentee ballots received by boards of election after the close of the polls on election day. Ryan v. Scarnge, 85 AD 2d 797(3d Dept. 1981). In the case at bar, a number of absentee ballots bear date stamps of the Boards of Election demonstrating that they were received by the Boards after the date of the election and thus are untimely on their face. Election Law 8-412 (2) requires the Boards of Election receiving such ballots should be cast and canvassed as provided for in Election Law 9-209. Many of the ballot envelopes objected to, bear the date of November 7, 2012 or beyond. It is the Boards practice to stamp the envelope so as to demonstrate the acceptance and to evidence its existence and receipt at a particular time. The ballot envelopes objected to fail to bear any indication to validate its receipt and to establish whether they were timely received by the respective Boards. Based on the deviation from law, it can be presumed to be untimely. Many of the ballot envelopes time stamps in the subject Boards are in the latter part of the day at approximately three to four PM, suggesting of course that these items appear in the mail of the morning of the seventh of November and were date stamped upon being received and then opened. There is no stamp or marking to indicate when and under what circumstances the Board received the envelope. Commissioners in various counties claim that they reviewed the postmark on such items when they were received, and then determined that the ballots were postmarked in a timely manner and then destroyed the envelope which would have been the evidence for the Court to consider on the issue. Instead these Boards now insist that the ballots are timely despite their own date stamp and tell us to trust them. No objective evidence exists of any such review of any individual ballot. Indeed there appears to be no list or log of mailing envelopes that would record which ballots were the product of the review. Indeed, 12

the Boards state that they only saved the ones that were questionable but again there is no log and no recordation. Case law relies on the resuscitation of otherwise invalid ballots by reference to the postmark on the mailing envelope that constitutes the actual evidence of the alleged timely receipt of such ballots. Case law relies on the resuscitation of otherwise invalid ballots by reference to the postmark on the mailing envelope that constitutes the actual evidence of the alleged timely receipt of such ballots. But without such a postmark the ballot is not capable of being cast and canvassed. Where there is no cancellation mark found on an envelope, and the envelope is not time and date stamped by the Board, the ballot cannot be cast or canvassed. Johnson v. Martins, 79 A.D. 3d 913, (2d Dept. 2010 ), affd. 15 N.Y.3d 584 (2010); see, also, Hoyt v. Dewitt, 849 N.Y.S.2d 747 (Sup. Ct., Tompkins Co. 2007). See also In Re Gross, 10 AD 3d 478, 479 (3d Dept. 204) affd 3 N.Y.3d 251. See also Nicolaysen v. DApice, 100 AD 2d 501 (2d Dept. 1984). The statute makes the cancellation mark to be part of the official ballot documentation. Election Law 8-412 (1) states: "The board of elections shall cause all absentee ballots . . . contained in envelopes showing a cancellation mark of the United States postal service . . . with a date which is ascertained to be not later than the day before election and received by such board of elections not later than seven days following the day of election to be cast and counted." Since the date of the postmark cannot be ascertained, and the receipt of the ballot six days after the election did not establish that it had been timely mailed, the ballot may not be cast and canvassed. It has been held that where the date of a postmark on an absentee ballot cannot be ascertained without extrinsic evidence, such ballot should be invalidated. Matter of Kroening, 187 AD2d 1045 (187 AD 2d 1045 (4th Dept. 1992); Matter of Bennett v. Board of Elections, 10 Misc 2d 804, 810 (Sup Ct Onondoga Cty 1957) affd 6 AD 2d 989 (4th Dept 1957), lv denied 5 NY 2d 708 (1957). Carney v. D'Avignon, 282 A.D.2d 1026 (4th Dept 2001); Election Law 8412(1). 13

In another context of timeliness, this Department has held that a "presumption exists that the actual filing date is the date the [document is] stamped filed However, extraordinary circumstances may exist establishing that the actual filing of these documents occurred on an earlier date than that reflected on the stamp and, if clear and unequivocal evidence exists establishing that fact, it will serve to rebut the presumption" Resch v Briggs, 51 AD3d 1194, 1196 (3d Dept 2008). Crainsville v. Spring, 53 A.D.3d 998, 1000 (3d Dept 2008). The receipt of a ballot, which is the same as filing it with the Board of Elections, is governed by the existing law and the natural meaning of the term. Delivery to an official whose duty it is to receive papers for filing and who is required to maintain an office for their deposit is a filing. Receipt is the end product of the filing. See Matter of McBride v. Regan, 125 A.D.2d 797 (3d Dept 1986). Case law holds that a document is "filed" only when it is delivered to or received by the appropriate official. Placing the application in an envelope in the mail is not the equivalent of filing; filing is accomplished when the application is received. McBride, supra. Request for Ballot for the Wrong Election A number of absentee ballots have been objected to on the basis that the voters application requests a ballot for the Primary Election. Election Law 1-104 (9) defines a primary election as only the mandated election at which enrolled members of a party may vote for the purpose of nominating party candidates and electing party officers. When the voter has asked for only a primary election ballot and not a ballot for the general election as well, without an application pertaining to the particular election, the Board of Elections had no authority to issue the ballot. Mondello v. Nassau Board of Elections, 6 A.D.3d 18, 22 (2d Dept. 2004); see, also, Matter of Baker, 126 Misc. 49 (Sup. Ct. Oneida Co. 1925), affd. 215 A.D. 791 (4th Dept. 1925). Nor can the matter be attributed to ministerial error on the part of Board personnel. It is clear that no law permits a finding that the issuance of an absentee ballot invalid ab initio cannot be a 14

ministerial error. Voters who in the execution of their affidavit for an absentee ballot selected which election they wished to vote in, are in effect at fault as opposed to the fault of Board personnel. While one can believe that the voter actually meant to seek a ballot for a general election, the face of the sworn document as executed by the voter cannot be modified in effect by parol evidence, such that it contradicts the document in an absolute assertion by the voter that cannot be modified by an assumption. Indeed even a voter may not now disclaim the statements in a sworn statement seeking a ballot without engendering potential liability under Election Law Article 17. Ballot Envelopes Signed by Wrong Voter In Montgomery County, a husband and a wife failed to sign their own ballot. Instead they appear to have signed each others ballots invalidating both ballots. The law requires that the voter sign her own ballot envelope. In fact the oath on the rear of the absentee ballot states that it is that voters ballot. Conclusion As the Court of Appeals wrote in Stewart v. Chautauqua County Bd. of Elections, and quoted in Gross, there must be an emphasis on the need for compliance with the framework specified in the absentee ballot provisions. Therefore, the Court should uphold the objections of Petitioner to the ballots that are incomplete. AFFIDAVIT BALLOTS The affidavit ballot process, where the voter presents him or herself at the polling place and asserts that they have the right to vote and obtains an affidavit ballot is governed by Election Law 8-302 (3)(e). The statute provides that a person who presents themselves at a polling place, claiming to live in the election district but no registration poll record can be found in the poll book or on any registration list produced by and for the Board can either vote by seeking and 15

obtaining a court order pursuant to Election Law 8-302 (3)(e)(i) or by subscribing an affidavit stating that he is duly registered to vote, the address in the election district from which he is registered and that he is and remains a duly qualified voter. The law provides that affidavit ballots that are incomplete may not be cast or canvassed. Ballots are invalidated as a result of the failure of the individual voters to accurately complete them. Some other elements are required in certain cases, such as when such person claims to have moved within the county since last registered. In that case, the previous address from which he had been registered must be supplied as well as his current address. Election Law 8302 (3)(e)(ii). The uniform rule of law is that affidavit ballots that are incomplete may not be cast or canvassed. An incomplete affidavit ballot, which is incomplete because the voter failed to provide the statutorily required information could not be counted. See, Kolb v. Casella, 270 A.D.2d 964 (4th Dept. 2000) (failure to sign the ballot); McClure v. DApice, 116 AD 2d 721, 723 (2d Dept. 1986)(voter did not properly complete the address portion of affidavit renders the ballot invalid). It is the responsibility of the voter seeking to vote by affidavit-- for whom there is no registration or no evidence to justify an assertion of registration and thus eligibility to vote--to provide the information in order that they may exercise the franchise. Ballots were invalid as a result of the failure on the part of the individual voters to accurately complete them. Additionally voters were not misled into omitting the required information by Board personnel. Where Board of Elections personnel make the "ministerial error which causes such ballot envelope[s] not to be valid on [their] face," then the ballot should be counted if it is without any other legal defect. Panio, 4 N.Y.3d at 128-129 (2005). See, also, In Re Frank K. Skartados, 81 A.D.3d 757 (2d Dept. 2011). Incomplete affidavits may not be voted when it is the voter who fails to provide the requisite information so 16

as to validate the ballot. For example, in Matter of McClure v. D'Apice, 116 A.D.2d 721 (2d Dept. 1986) the Court examined the validity of the ballot of potential voter, Lunde, a properly registered voter, whose registration was not at the polling place. Lunde voted by affidavit ballot pursuant to Election Law 8-302 (3) (f) (ii). He did not, however, properly complete the address portion of the affidavit, as required under that statute. Because voter Lunde did not comply with the clear mandate of the statute, his vote was held to not be counted. Where the voter does not complete the address portion properly either by omission or the wrong information, the voter has not complied with the mandate of the statute and by failing to provide material information or providing information that is material but incorrect, then the vote cannot be counted. None of the omissions can legitimately be ascribed to ministerial error since the execution of the affidavit is by the voter in the absence of elections personnel.

INSPECTOR APPLICATION AND ILLEGAL EARLY VOTING New York State is not one of the states that permit early voting. The assumption of the law is at minimum, every voter, who is able, will appear at their polling place to exercise their right of franchise. Those who fail to appear do not exercise their right to vote, no matter what their desire may be. The State Constitution makes a limited exception, carried into statute for those voters who are temporarily out of the county , disabled or ill or otherwise engaged but wish to exercise the franchise. The law however does not see this as carte blache to early vote as a matter of convenience. It requires a true statement of a legitimate reason under the Constitution and the law to permit the act of early voting to occur. 17

Election Law 11-302 entitled Special ballots for board of election employees states that a board of elections employee or an inspector of elections, or election worker at a polling place other than the one at which he or she is registered to vote, may deliver to the inspectors of election of the election district in which he or she is registered, or to the board of elections, at any time during the period in which an application for an absentee ballot may be so delivered pursuant to the provisions of this chapter, a written statement that he or she will be unable to appear at the polling place for such election district on the day of an election because his or her duties as an employee of such board or as an inspector, poll clerk or election coordinator require him or her to be elsewhere. Quite a number of people took advantage of this provision of law and executed the application especially for elections personnel and inspectors. The face of the application tells the person seeking the ballot when they can receive and vote the ballot. It is a specific directive to the voter, and not ministerial on the part of the Board. Many of the Boards claim that they gave the ballots to the voters and gave classes in which they told them to fill out the ballot, in particular Ulster County. Such cast ballots may be delivered to an office of such board of elections or to any board of inspectors not later than the close of the polls on election day. Such ballots shall be retained at the board of elections and cast and canvassed pursuant to the provisions of section 9-209 of this chapter. The Commissioners in Ulster County, when the objection was made, claimed that they caused the ballots to be early voted. Thus the Commissioners such as in Ulster admitted that they taught the inspectors to violate the election law. The position is an attempt to resurrect the ballots as the result of ministerial error on the part of the Board. Such a dodge, using Panio v. Sunderland, supra, should not be countenanced. First, elections officials who obtain such a ballot should be required minimally to know the law and follow it. So the timing of the vote set by statute should be charged to such voters by virtue of their training 18

and their role as judges of the elections at the polls on Election Day. The person who seeks a ballot, even if provided and trained by the Board to in effect violate the Election Law, is also at minimum chargeable with the knowledge of what they sign and what the sworn statement tells them to do. The application for an absentee ballot under Election Law 11-302 states on its face the following legend, after the check mark for the voter and the statute: My duties as a Board of Elections Employee, election inspector, poll clerk, election coordinator, or voting machine custodian/technician require me to be elsewhere. (Ballot to be cast in person not earlier than two (2) weeks before the election and not later than the close of polls on election day). Therefore, the voter is instructed on the face of the application that they cannot vote early and sets the dates for which they can vote and when such a vote is too early. The election workers who followed the instructions purportedly given by the Commissioners were instructed on the face of their application what the law actually provides and were obligated to follow it. Here the Board did not err by failing to provide the inspectors and election workers with the proper application as in Panio. In this instance they provided the workers with the proper paperwork and provided them with the law on when they can vote. The elections personnel who early voted did it in the face of the affidavit they had just signed for their own convenience. Such elements of convenience are not to trump the strict legal requirements of the Election Law especially where the Legislature specifically set the deadlines and parameters which are not flexible but rigid in the Election Law. Earlier than two weeks before election day in this years cycle is October 23. Such ballots voted by filing and submission to the Board prior to this date, based upon their date stamp are voted too early. New York State with the limited exception of specific statutory commands bars early voting. By voting early the voters ballot may not be counted since its voting and filing for voting is a breach of the law. SIGNATURES It is required that the voter in order to validate the ballot so that it 19

can be cast and canvassed must affix his or her signature to the requisite ballot envelope whether it be an affidavit envelope or absentee envelope. Election Law 8-304. The signature is evidence that the person who signed the ballot envelope has executed and subscribed to the oath that qualifies the voter. See People v. LoPinto, 27 AD 2d 63, 66 (3d Dept. 1966). See also Cotrone v. Board of Elections, 166 Misc 2d 63 (Sup Ct Monroe Cty 1990). The requirement is fulfilled by ensuring that the signature on the envelope matches the registration signature before the ballot can be cast or canvassed. Election Law 8-304. Where the inscription is not substantially similar, it cannot be voted. Proof of fraudulent intent is not required. Further extrinsic evidence is not permitted to resuscitate the ballot. The term signature is defined by the General Construction Law 46, which provides that signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing. The General Construction Law should be read into every statute subsequently enacted unless the wording of such later statute plainly expresses a contrary intent. See O'Keeffe v Dugan, 185 App. Div. 53 (2d Dept. 1918), affd 225 N.Y. 667 (1919). In Johnson v. Martins, 79 A.D.3d 913,921 (2d Dept. 2010) aff'd. 15 N.Y.3d 584 (2010) the Court faced with the signature issue noted that "the signature on the ballot envelope does not correspond to the signature on the registration poll record" (Election Law 8-506 [1]), and held that such absentee ballots should not have been cast and canvassed. The Court may compare only the signature on the registration card with that on the outside of the ballot envelope. See, Matter of Hosley v. Valder, 160 A.D.2d 1094 at 1096 (3d Dept 1990). In Hosley, the Court examined the issue as to determination of the validity of signatures on absentee ballot envelopes. Where the signature on the voter registration card is substantially different than the signature on the absentee ballot envelope, those signatures do not match. Election Law 8-304 requires that the voters signature match his registration signature before he is permitted to 20

vote. The Board and the Court are bound by the evidence adduced and speculations as to age or physical disability in the absence of evidence of such for example from the absentee ballot application, cannot be relied upon.7 Election Law 8-304 requires that a voter's signature match his registration signature before he is permitted to vote. Further, voters are required to sign absentee ballots on the outside of the ballot envelope, ensuring a comparison can be made without requiring the canvass of the ballot (Election Law 7-122). Legibility The issue with regard to signature and similarity also guides the issue of whether the signature is legible. In some cases the signature objected to by Respondent Tkaczyk are partially illegible but significant numbers of letters may be perceived as to admit the ballot as a signed ballot. These names, as written, could properly be found to meet the legibility test utilized in Matter of Pauly v. Mahoney, 49 A.D.2d 1016 (4th Dept. 1975), cited with approval in Hosley, 160 A.D.2d at 1096. In Montgomery County for example, Petitioner objected to a ballot of an obviously elderly voter whose application and ballot envelope did not match the registration of the person it was claimed to be. So radically different was the signature, the registration clearly reflecting the afflictions of age and yet the absentee application and ballot appearing to be a rejuvenated person such that the process of voting absentee alone was the Fountain of Youth. Miscellaneous There are a number of objections not captured in the categories set

Respondent Tkaczyk, for example objected to the absentee ballot of an individual on the basis that the signature was a stamped signature as opposed to a signed signature. While the ballot, and the law, allow a person to use a mark instead of a full signature, this individual had the stamp witnessed and the application for the absentee ballot stated that he was blind. The law does not require a person to reveal the nature of their disability, see Disability Advocates v. Board of Elections in the City of New York, -- F Supp 2d -- , 2012 WL 1142888 (NDNY 2012).


out above.8 Objections were made in Ulster County to the issuance of absentee ballots to individuals not constitutionally qualified to receive a ballot. There is an inherent conflict between New York State Constitution Article II Section 2 and the statutory enactment regarding obtaining an absentee ballot. The statute allows ballots to be given to caregivers of ill persons on the reliance that that exception to in person voting is part of the constitutional scheme. Article II Section 2 states The legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who, on the occurrence of any election, may be absent from the county of their residence or, if residents of the city of New York, from the city, and qualified voters who, on the occurrence of any election, may be unable to appear personally at the polling place because of illness or physical disability, may vote and for the return and canvass of their votes. The section of the constitution speaks to an inability to appear because of illness or physical disability and only in reference to voters. It is a terrible strain to read into the section of the Constitution an exception for caregivers that is not in the document. While the Constitution allows for the enactment fo a general law, it does not permit the legislature to add new categories or read into the Constitution new exceptions. But Article II Section 2 provides specifically and can only be read to relate to the voters illness or disability which keeps them from the polls, and their ability to obtain an exception to the requirement of in person voting. There is no basis to conclude from the face of the Constitution that the illness of another allows for the obtaining of an absentee ballot for the person who is healthy but gives care. In fact, under the theory that the caregiver gets an absentee ballot, every health care professional should therefore be eligible for an absentee ballot, which of course permits the rule of constitutional law to be devoured by the statutory exception.

For example, respondent objected to a ballot that was signed by the voter with a line across the signature. Respondents claim that such indicated the intent of the voter to cross out his own name and not vote as opposed to the more conventional explanation that the signature with a ballot in the envelope clearly evidences an intent to vote. Such objections should not be sustained.


FACES OF THE BALLOTS This Department has determined that the importance of order and precision in the voting process requires strict interpretation of the law, including objections to the face of the ballot. See, Williams v. Rensselaer Board of Elections, 98 AD 2d 938 (3d Dept. 1983) affd 61 NY 2d 730 (1983). The mandate is the application of objective criteria to the faces of the ballot objections. Id. Traditionally, ballots that contained writing which could distinguish the ballot from others cast, and mark that ballot for identification, would be excluded. Matter of Scanlon v Savago, 160 AD2d 1162 (2d Dept 1990). See also Brilliant v. Gamache, 25 AD 3d 605 (2d Dept. 2006). The law recognizes that not every mark by a voter voids a ballot. Inadvertent and extraneous marks should not void the entire ballot but do so only for the race in which the mark appears. Matter of Mondello v Nassau County Bd. of Elections, 6 AD3d 18, 24 (2d Dept 2004). Resolution by the Court of whether the challenged ballots were improperly marked involves a determination of whether certain marks thereon are "inadvertent" as opposed to "distinguishing" or "identifying" Election Law, 9-112; Matter of Pavlic v Haley, 13 N.Y.2d 1111 Election Law 9-112 (1) provides, in part, that the ballot is void if it is defaced by the voter, includes any paper or article in the ballot, makes an erasure on the ballot, or in Election Law 9-112 (1)(d), if the voter 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, or punching a hole in the voting square of a ballot intended to be counted by machine or (e) writes, other than in the space provided, a name for the purpose of voting.

The statute states as well that the ballot with an erasure

or a 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. Neither the statute nor the regulations of the State Board of Elections at 9 NYCRR 6210.13 address the issue

Respondents objected to a write in of the name not on the ballot, what appears to be Frank Pastore, claiming that the voter signed the ballot in the open space on the bottom. No voter with the name written in script on the ballot had delivered a ballot in that district and thus it was clearly a write in and thus valid. Respondents pressed their objection to the face of the Amedore vote.


of when the erasure or mark is not in the Senate race boxes but is unique enough to identify the ballot so as to permit a voter to pluck it out of the pile of ballots as unique. Extraneous marks on ballots that could serve to distinguish the ballot or identify the voter, as opposed to inadvertent marks, will render a ballot blank as to the relevant office if the mark is confined to the voting square pertaining to that office, or render a ballot invalid as a whole if the mark appears outside of the voting square. Election Law 9-112 (1); Matter of Mondello v Nassau County Bd. of Elections, supra at 25; Matter of Boudreau v Catanise, 291 AD2d 838, 839 (4th Dept 2002); Matter of Carney v Davignon, supra; Matter of Nicolaysen v D'Apice, supra; see generally Matter of Gross v Albany County Bd. of Elections, 3 NY3d 251, 255-258 [2004]). In such circumstances the ballot should be void, for all offices as it is by virtue of the voters action to go further on the continuum of inadvertent mark to identifying marks. No ballot shall be declared void or partially blank because a mark thereon is irregular in form. The law is well settled that inadvertent marks on a ballot do not render the ballot void in whole or in part" Matter of Mondello v Nassau County Bd. of Elections, 6 AD3d at 24. However, extraneous marks on ballots that could serve to distinguish the ballot or identify the voter, as opposed to inadvertent marks, will render a ballot blank as to the relevant office if the mark is confined to the voting square pertaining to that office, or render a ballot invalid as a whole if the mark appears outside of the voting square. Election Law 9-112 (1); Mondello. 6 AD 3d at 25. Election Law 9-112 (6) provides for possible validity of marks on the ballot. A cross X mark or a check V mark made by the voter is a vote for the candidate. But both the statute and the regulations of the Board do not permit a voter to use both methods because such a method of an oval overlaid with an X creates a distinctive mark on the ballot. The State Board of Elections has adopted regulations governing the casting and canvassing of paper ballots. 9 NYCRR 6210.13. The regulations also provide that a ballot shall not be void for the voter 24

not following instructions unless it is impossible to determine the voters choice. Where there are clear indications of voter intent and the indications are consistently used to indicate the voters choices then the ballot may not be void. The State Board of Elections regulations provide that examples of such markings that void the entire ballot include but are not limited to: voter signature, initials, voter name and address, voter identification number, messages or text, or unusual markings not related to indication of the vote choice for a contest. The regulation also provides in 9 NYCRR 6210.13 a(3)(i), that a mark crossed out by the voter, an erasure, or words such as no next to a candidate's name or a voting position target area for a ballot question shall not be considered to be a valid vote but will, instead, be deemed an indication that the voter did not choose to cast a vote for that candidate or measure and the vote for that candidate or proposition shall be considered void. Thus, Petitioners objection to a ballot in which there are cross out of the democratic candidates for all offices except of the two lower local offices, then the ballot should not be counted for the offices marked with a filled in oval with X across the oval. However there is a ballot in this matter in which there are cross out of the democratic candidates for all offices except of the two lower local offices, then the ballot should not be counted for the offices marked with a filled in oval with X across the oval. In the case of voters who make a mistake on the ballot and correct it, such ballots should be reviewed by the Court. In one case Respondents insisted that the crossed out mark on the ballot in this race was the voter entering his initials on to the ballot and thus voiding it. Where a voter attempts to correct his ballot so as to match his choice and acts to permit determination that he made the correction as opposed to another person tampering with the ballot, the ballot should not be seen as bearing a distinguishing mark. In a number of cases there are ballot faces that appear to be irregular such that they should not count for the Respondent. It is clear that anything that 25

identifies the voter is a mark that voids the ballot. There are three categories. First, does the marking identify the ballot and thus the voter? Second, is the marking in compliance with the instructions that require certain marks? The third and last category is extraneous marks as opposed to deliberate marks. Identifiable Ballot Markings which are inadvertent do not spoil the ballot. Johnson v. Martins, 79 AD 3d 913 affd 15 NY 3d 584 (2010). This relates in the main to stray marks. Where the marks are not trifling or just smudges and erasures then the ballot could be void. Ballots with marks that are not identifiable as to the voter may be void for the office directly affected or for the entirety of the ballot due to the nature of the marks. Respondents have argued that the mark can only be either actual words, which is an inaccurate statement of the law or can only be marks made in the box or bloc for voting for the office of State Senator which is not in fact always the case. An erasure may void only the race in which that erasure was made. See Ruffo v. Margolis, 61 AD 2d 846 (3d Dept 1978). Where it appears that the erasure is intended to be an identifying mark on the ballot then the entire ballot is void. See e.g. OShaunessy v Monroe County Board of Elections, 15 AD 2d 183 (4th Dept. 1961). When a voter executes the ballot in red ink or in multi-colored (black and blue) ink, the voter has not merely failed to follow the instructions on the ballot. Instead the voter has acted to identify the ballot and the ballot cannot be counted. Matter of Lorenzen v. McAffee, 76 Misc.2d 776 (Sup. Ct. Fulton Co. 1973). The secrecy of the ballot is compromised by the use of red ink in derogation of the command clearly written on the face of the ballot to use either blue or black ink. The instruction amply warns the voter of the requirements to use either black or blue ink. Such instruction precludes the use of red ink or even in another case the use of both colors. The voter acts contrary to warning and instruction. Nor is this the result of ambiguity that could justify a claim of ministerial error. Thus where a voter executes the ballot in red ink or in multi 26

colored (black and blue) ink, the voter has acted to identify the ballot. It is fundamental that no ballot should be marked in such a fashion as to make it possible for the identity of the voter to be known. Color is as much a ballot identifier of any words. See, People ex rel. Nichols v. Board of County Canvassers of Onondaga Co., 129 N.Y. 395 (1891); People ex rel. Colne v. Smith, 188 A.D. 834 (1st Dept. 1919). It is claimed that identifiable marks void only the race so marked. But where the marks are in an entire column such as one such ballot marking every candidate for president on every line, that ballot is then identifiable from all others. In that case, the mark is sufficiently unique that the same evil sought to be prevented is available regarding such ballot as a whole and it should be void. Marks within the voting circle where the voter both fills in the oval and also makes a cross over the same ovals are likewise an identifying mark. Although the State Board of Elections may see such markings as within what they consider to be acceptable, the nature of the mark, with the intent to not follow the specific instructions that allow either marking but not both, should serve to disqualify the ballot and it must not be counted. The objections made by Petitioner regarding the face of the ballots should be sustained.

CONCLUSION Petitioners objections made at each of the Boards of Election should be sustained in all 27

respects and such ballots should not be cast or canvassed. Dated: New York, N.Y. November 30, 2012 Respectfully submitted, DAVID L. LEWIS Attorney for Petitioner George Amedore 225 Broadway, Suite 3300 New York, N. Y. 10070 (212)-285-2290


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