FETIiERsToNFiuc;II, WILEY & CLYNE, LLP

ATTORNEYS AND COUNSLLOR$ AT LAW

99 PINE STREET ALBANY, NEW YORK 12207 WEBSITE: FWC-LAW.COM

FRANKG. HOARE

fgh@fwc-Iaw.com

PHONE: FAx:

(518)436-0786 (518)427-0452

November 30, 2012

Judge Guy P. Tomlinson County of Montgomery 58 Broadway, Room 50 Fonda, New York 12068 Re: Amedore v. Peterson
Index No.: 2012-887

Dear Judge Tomlinson: The following is a partial list of categories of objections. I note that most of the objections raised by the parties herein are a combination of questions of law and fact and will require review of the ballot envelopes and ballots one by one.

Facts
On November 6, 2012, a General Election was held for the public office of Member of th State Senate, 46 Senate District, comprising all or parts of the counties of Albany, Greene, Montgomery, Schenectady and Ulster. Respondent Cecila Tkaczyk was the candidate of the Democratic, Working Families and Green Party for said office. Petitioner George Amedore was the Republican, Conservative and Independence Party candidate for said office. At the closing of the polls on election night, Respondent Tkaczyk was ahead by 139 votes. On November 7, 2012, Petitioner commenced this action in the Supreme Court of Montgomery County. Respondent submitted a verified petition on November 9, 2012. Following a canvas of the paper ballots at the various Boards of Elections, Petitioner has a 111 vote lead. During this process the validity of 877 ballot envelopes and ballots have been questioned on various grounds. According to Respondents computations the objections break down as follows:

{VDO35 125)

Albany:

Amedore 26 Tkaczyk 9 Amedore 115 Tkaczyk 99 Amedore 16 Tkaczyk 16 Amedore 42 Tkaczyk 29 Amedore 459 Tkaczyk 63

Greene:

Montgomery:

Schenectady:

Ulster;

Burden of Proof
Election results are entitled to a presumption of regularity, and a party who attempts to impeach those results carries the burden of proof. Panio v. Sunderland, 14 A.D.3d 627, 630-31 (2w Dept. 2005), affd, 4 N.Y.3d 123; see also Ruffo v. Margolis, 61 A.D.2d 846 (311 Dept. 1978). Moreover, The right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible... transcends technical errors, particularly when induced by a confusing ballot. Hoblock v. Gross, 3 N.Y.3d 251, 258 (2004) citing People ex rel. Hirsch v. Wood, 148 N.Y. 142 (1895).

Categories of Objections Objections to the Residence of Voters

New York State Election Law (hereinafter Election Law) Section 5-104 (2) states as follows: In determining a voters qualification to register and vote, the board to which such application is made shall consider, in addition to the applicants expressed intent, his conduct and all attendant surrounding circumstances relating thereto. The board taking such registration may consider the applicants financial independence, business pursuits, employment, income sources, residence for income tax purposes, age, marital status, residence of parents, spouse and children, in any, leaseholds, sites of personal and real property owned by the applicant, motor vehicle and other personal property registration, and other such factors that it may reasonably deem necessary to determine the qualification of an applicant to vote in an election district within its jurisdiction. The decision of a board to which such application is made shall be presumptive evidence of a persons residence for voting purposes. (L.1976, c. 233, 1. Amended L.1976, c. 234, 18; L.1978, c. 9, 26.)

WDO35 125)

Pursuant to the Election Law, a residence is defined as that place where a person maintains a fixed permanent and principal home and to which he or she, wherever temporally located, always intends to return. Election Law 1-104 (22); see also Matter of Stavisky v. nd 2 Koo, 54 A.D.3d 432, 434, 863 N.Y.S.2d 87 ( Dept. 2008); Matter of Stewart v. Chautauqua th 4 County Bd. Of Elections, 69 A.D.3d 1298, 1299, 894 N.Y.S.2d 249, 252 ( Dept. 2010). Under the Election Law a persons residence is dependent upon the individuals expressed intent and conduct. See People v. OHara, 96 N.Y.2d 378, 384, 729 N.Y.S 2d 369 (Court of Appeals 2001). As set forth in People v. OHara, 96 N.Y.2d 378, 384, 729 N.Y.S. 2d 369 (Court of Appeals 2001) in order for a voter to be a resident of a place, he or she must be physically present with the intent to remain for a time. New York courts have consistently recognized in this modern and mobile society, that an individual can maintain more than one bona fide residence. At 384-385; Matter of Stavisky, 54 A.D.3D at 434. An individual having two residences may choose one to which he or she has legitimate, significant and continuing attachments as his or her residence for purposes of the Election Law. OHara, 96 N.Y.2d at 385. See also Matter of Ferguson v. McNab, 560 N.Y.2D 598, 600, 454 N.E.2d 532 (1983), wherein the court held that a person having two residences may choose one which she has legitimate significant and continuing attachments as her residence for the purpose of the Election Law.
.

In a recent decision, the Third Department has made clear that any challenges to a voters qualifications premised on dual residency should be made pursuant to the procedure to challenge the issuing of the absentee ballots and not after those ballots have been cast. Fingar v. Martin, 68 A.D. 3d 1435 (3 Dept., 2009). Specifically, the Court stated, However, to the extent that petitioners do, in fact, premise any challenges on voters dual residency, we note that the law regarding a voter choosing among residences for election purposes is interpreted broadly (see Matter of Wilkie v. Delaware County Bd. of Elections, 55 A.D3d 1088, 1089-1090, 865 NYS.2d 739 (2008), and a challenge to such residency should be made pursuant to the procedure to challenge the issuing of the absentee ballots and not, as here, after those ballots have been cast. Fin,car at 237. Under New York law, when an individual has dual residency, the court must not determine which of the voters residences is the more appropriate one for voting purposes, but whether the residence held by the voter is a legitimate one. OHara, 96 N.Y.2d at 385. Thus, the crucial determination whether a particular residence complies with the requirements of the Election Law is that the individual must manifest an intent, coupled with physical residence, without any aura of sham. Id. To be clear, a sham residence would be a building that is uninhabitable or a commercial property. Generally, where there is no reason to assume that a residence has been asserted merely for the purposes of voting, where no fraud or deception has been practiced and where there is a history of the residence employed, the courts have upheld a finder of facts determination of residency. OHara, 96 N.Y.2d 378 at 385. For example, in Matter of Geller v. Lasher, 196 A.D.2d 613, 601 N.Y.S.2d 342 (2d Dept. 1993), the Appellate Division, Second Department determined that the respondents had maintained a residence within the meaning of the Election Law, where they had intermittently lived at that address since 1981, listed the address on their tax returns, pension documents, drivers licenses, and insurance policies, and were listed at that address in the telephone

(WD035 125)

directory. at 614. Likewise, in Matter of Umland v. Bd. Of Elections of City of New York, 143 A.D.2d 240, 532 N.Y.S.2d 30 (2d Dept. 1988), the Appellate Division, Second Department also determined that an individual who had purchased a home, but continued to utilize an apartment intermittently for thirteen years and spent approximately half of her time at the apartment, had properly chosen the apartment as her residence for purposes of the Election Law. Id. at 241-242. Also, the Appellate Division, Second Department held that where the respondent had continuity of conduct evidencing an intent to remain a resident of one of two residences had continuously chosen voted from one address for several years, the trier of fact had a right to find that residence chosen by the voter constituted a proper voting address. See Matter of Gallagher v. Dinkins, 41 A.D.2d 946, 343 N.Y.S2d 960 (2d Dept. 1973).
.

Finally, Election Law Section 8-402 establishes the procedure that the Board of Elections must follow for absentee ballot application review. All of the voters that have been challenged in this matter on the grounds of residency, have had their applications reviewed by hi-partisan Commissioners and were found to be qualified to vote and therefore received an absentee ballot. Furthermore, upon return to the Boards of Elections, the absentee ballots challenged herein, have been determined to be in compliance with the election law and received in a timely manner and as a result were placed in the to be counted box by the Republican and Democratic Commissioners. Accordingly, objections based on residency must be rejected as a matter of law and these ballots canvassed. 2. Objections to Marks on the Face of the Ballot. Election Law Sections 9-112 (1) and (2) speak to the validity of a ballot: The whole ballot is void if the voter (a) does any act extrinsic to the ballot such as enclosing any paper or other article in the folded ballot or (b) defaces or tears the ballot except that a ballot card which is in perforated sections shall not be voided because it has been separated into sections or (c) makes any erasure thereon or (d) makes any mark thereon other than a cross X mark or a check V mark in a voting square, or filing 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; except that 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, party position or ballot proposal in connection with which it is made. No ballot shallbe declared void or partially blank because a mark thereon is irregular in form. The term voting square shall include the voting space provided for a voter to mark his vote for a candidate or ballot proposal. 2. A cross X mark or a check J mark, made by the overt, in a voting square at the left of a candidates name, or the voters filling in such voting square, or punching a hole in the voting square of a ballot intended to be counted by machine, shall be counted as a vote for such candidate. In reviewing marks on the face of a ballot the issue is whether said mark identifies the voter or is an inadvertent or unintentional mark. 1.

(WD035 125)

It has long been held that inadvertent marks on a ballot do not render the ballot void in whole or in part. Matter of Franke v. McNab, 73 A.D.2d 679 (2d Dept 1979); Matter of Moritt v. Cohen, 255 App Div. 804 (2d Dept 1938). In regard to marks in or around the voting square, an indistinguishable scribble rather than a cross X mark or a check J mark, satisfies the requirements of the Election Law and shall not render the ballot void in whole or in part. Matter of Carola v. Saratoga County Board of Elections, 180 A.D.2d 962 (3d Dept 1992). Marks or words on a ballot that reveal the identity of the voter render that ballot void. Markings which are identifiable as written words could distinguish the ballot from other cast and consequently mark the ballot for identification. Matter of Moritt v. Cohen, supra. Where there are written words deliberately placed on the ballot by the voter, the entire ballot is void. Matter of Scanlon v. Savage 160 A.D.2d 1162 (3d Dept. 1990). In Mondello v. Nassau County Board of Elections, 6 A.D.3d 18 (2d Dept 2004) the court rejected a challenge to a ballot because the voter used a blue felt tipped pen and noted that the Election Law did not specify the type of pen which may be used. 3. Objections to the completeness of an absentee ballot application. New York State Election Law (Election Law) Section 8-400(3) provides in pertinent part that an application for an absentee ballot must contain the following: (a) Applicants full name, date of birth, and residence address, including the street and number, if any, rural delivery route, if any, mailing address if different from the residence address and his or her town or city and address to which the ballot shall be mailed. (b) A statement that the applicant is qualified and registered voter. (c) A statement, as appropriate, that on the day of such election the applicant expects in good faith to be in one of the following categories: (i) absent from the county of his or her residence, or if a resident of the city of New York absent from said city; provided, however, if the applicant expects to be absent from such county or city for a duration covering more than one election and seeks an absentee ballot for each election, he or she shall state the dates when he or she expects to begin an end such absence; or (ii) unable to appear at a polling place because of illness or physical disability or duties related to the primary care of one or more individuals who are ill or physically disabled; or (iii) an inmate in jail awaiting action by a grand jury or awaiting trail or confined in jail or prison after a conviction for an offense other than a felony and stating the place where he or she is so detained or confined. In the case at hand, Petitioner objects without specificity to absentee ballot applications characterizing them as incomplete, and would thereby disenfranchise the voters who cast by ballots received after such applications were submitted and ruled valid by a bipartisan Board of Elections. As the Court said in the Hirsh case however, [w]e can conceive of no principle which permits the disenfranchisement of innocent voters for the mistake or even willful misconduct of election officers in performing the duty cast upon them. People ex rel Hugo Hirsh, v. Martin V. Wood et al, 148 N.Y. 142, 146-147 (1895). Moreover, as the Court noted in Koib, Election Law 8 -400(9) provides that applications for absentee ballots need only

(WD035 125)

substantially compl[y] with the provisions of Election Law 8-400. Koib v. Casella, 270 th 4 A.D.2d 964, 964 ( Dept. 2000). Courts have not invalided absentee ballots based on mere harmless errors occurring in the application for such ballots.
. .

The principles at the heart of the Hirsh decision have remained good law for more than 107 years. There is a strong presumption in New York jurisprudence that voters shall not be deprived of the franchise, because the right to vote, either in person or by absentee ballot, is one of a citizens most hallowed rights. Matter of Keith St. John v. Board of Elections of Albany County, 546 N.Y.S.2d 301, 328 (1989). Where the Courts have invalidated absentee ballots , it has been due to a finding that fraud or illegality had given rise to the objection before the Court. Matter of Gross v. Albany Board of Elections, 2004 NY Slip Op 06401, *12, (3d Dept. App Div. 2004)(1OAD3d 476). The Third Department has made clear that Petitioner cannot challenge absentee ballot applications after such ballots have been cast. See Matter of Messina v. Albany County Bd. Of Elections, 66 AD3d 1111, 1115 (3d Dept. App Div, 2009) citing Gross, 10 AD3d 476, 479; Matter of Mondello v. Nassau Bd. Of Elections, 6 AD3d 18, 25-26 (2004); Matter of Koib v. Casella, 270 AD2d 964, 965 (2000); Sheils v. Flynn, 252 App Div. 238, 242-243 (1937); Matter of St. John, supra. Specifically, the Court noted, If however, it is found that any of the applications alleged here to be incomplete have fatal errors, it must be noted that Petitioner did not challenge these in a timely manner. Having failed to avail himself of the statuto ry procedure to challenge the issuance of the absentee ballots (see Election Law sec. 8-402) , [Petitioner] cannot challenge the applications after the ballots have been cast. Petitioner here does not allege fraud or illegality, but rather the failure of the Board to properly perform its statutory duty to scrutinize absentee ballot applications and reject such applications in a timely manner. As the Court found in St. John however, when a citizen in good faith files an application and thereafter receives an absentee ballot which is timely cast, such citizen is entitled to rely upon the integrity of the process and should not suffer the loss of his or her franchise because of any subsequently uncovered failure of the Board of Elections to properly scrutinize such voters initial application. St. John at 328. See Matter of Messin a, at 1115. In another case where a petitioner alleged incomplete absentee ballot applications, the Appellate Division found that failure to indicate the name of the voters physician was not a fatal error, and upheld the lower Courts decision that such ballots were valid. Gross at *2. The Appellate Division also upheld the ballot of a voter who submitted a timely application, even though the Board of Elections failed to properly scrutinize the application, finding that such a failure by the Board will not disenfranchise the voter. Gross at *2 (citing also to Sheils v. Flynn, 252 App. Div. 238 (1937) and Matter of St. John supra).

Here there is no allegation of fraud before this Court, rather, Petitioner has alleged, without specificity, failure to complete, or properly complete, the absentee ballot applica tions that have already been ruled valid and the voter qualified by a bipartisan team at the respec tive Boards of Elections. The case law is clear where, as here, Petitioners allegations amoun t to an assertion that the Board has failed to properly scrutinize a voters initial application. The ballots in question should be counted, and the voters who cast their ballots in reliance on the Board s determination of their qualification to vote should not be disenfranchised.

(WD035 1251

As Courts have recognized since Hirsh in 1895, there is a strong constitutiona l presumption that confers upon every citizen meeting the requirements specified therein the right to vote. [and that right] and its enactments are to be construed in the broadest possible spirit of securing to all citizens possessing the necessary qualification the right freely to cast their ballots.. .[andj have those ballots, when cast in compliance with the law, received and fairly counted. People ex rel. Goring v. Wappingers Falls, 144 N.Y. 616 (1895).
. .

4. This Court Should Direct The Canvass Of Ballots Duly Cast By Registered Voters Pursuant to Election Law Section 8-302(3)(e)(ii) Which Have Been Set Aside By Petitioner For Judicial Review. Background Election Law Section 8-302(3)(e)(ii) outlines the procedure that must be followed by electio n inspectors to allow voters to vote by so called affidavit ballot. Voters are entitled to cast an affidavit ballot pursuant to this section when a voter presents himself or herself and offers to cast a ballot but either: (1) He or she claims to live in the election district in which he or she seeks to vote but no registration poll record can be found for him or her in the poll ledger or his or her name does not appear on the computer generated registration list; or (2) His or her signature does not appear next to his or her name on such computer genera ted registration list; or (3) His or her registration poll record or the computer generated registration list does not show him or her to be enrolled in the party in which he or she claims to be enrolled. See N.Y.S. Elec. Law Section 8-302(3)(e).
.

Upon the occurrence of any one of these events a voter can either vote by court order pursuant to election law 8-302(3)(e)(ii) or by affidavit ballot. In the latter method a voter swears to and subscribes, an affidavit stating that he or she has duly registered to vote, the address in such election district from which he or she registered, that he or she remains a duly qualified voter in such election district, that his or her registration poll record appears to be lost or misplaced or that his or her name andlor his or her signature as omitted from the computer generated registration list or that he or she has moved within the county or city since he or she last registered, the address from which he or she was previously registered and the address at which he or she currently resides, and at a primary election, the party in which he or she is enrolled. See N.Y.S. Elect. Law section 8-302(3)(e)(ii). The statute also requires that the affidavits shall be in a form prescribed by the State Board of Elections. Id. Moreover, section 8-302(3-a) states that the inspectors, shall also give to every person whose address is in such election district for whom no poll registration poll record can be found and, in a primary election, to every voter whose registration poll record does not show him to be enrolled in the party in which he wishes to

{WD0351 25)

be enrolled a copy of a notice, in a form prescribed by the state board of elections, advising such person of his right to, and of the procedures by which he may, cast an affidavit ballot... In the instant proceeding hundreds of voters presented themselves at respective polling th locations throughout the 46 Senate District only to find out that they were not in the poll book for one reason or another. Rather than seeking a court order, these voters, expressing a desire to exercise their constitutional right to vote instead filled out affidavit ballots and completed the respective oath. Upon completion of the election these affidavits were returned to each respective Board of Election where research pertaining to the qualifications of each voter was conducted by bi partisan teams of employees to ensure each respective affidavit voter was, in fact, qualified to vote. Every affidavit ballot that was presented during the re-canvass throughout the 46 Senate th District was deemed to be valid by these bi-partisan research teams at each respective Board of Elections. It is only now, in an effort to disenfranchise these voters, that Petitioner seeks to have them thrown out based on meritless and frivolous objections. Indeed, the research performed by each board indicating why the ballot should be canvassed is present on the side of the affidavit envelope for the Court to review. 5. The Objections Enumerated By Petitioner During the County by County Canvass Of Paper Ballots Due to Inaccurate And/Or Incomplete Affidavits Are Frivolous & Said Ballots Must Be Canvassed Affidavit Ballots Objected To Due To Voters Checking the Wrong Box Or Omitting Information Should Be Canvassed Petitioner has objected to the canvassing of hundreds of affidavit ballots under the argument that the affidavit is incomplete or inaccurate. These ballots should be canvassed as the bi-partisan research from the county boards of election clearly established the respective voters right to have their votes counted. This is precisely what would have happened had this litigation not ensued. Matter of Johnson v. Margarita Lopez-Torres illustrates this point succinctly 22 A.D.3d 695 Dept. 2005). In Johnson, the New York City Board of Elections invalidated approximately 900 affidavit ballots because they were alleged to have been incomplete, because voters failed to indicate their party enrollment or prior address. Johnson at 697. The Court however, in examining the instructions on the ballot noted that these voters were misled, because the instructions asked voters to choose one box which applied to them instead of instructions on the affidavit envelope that required the voters to check each box that applied to their particular circumstances and fill out the appropriate information in that section. Id at 697.
nd 2 ( th The affidavit envelopes throughout the 46 Senate District are no different than those reviewed by the Court in Johnson. Id. Tellingly, the instructions ask a voter to choose one box in which to explain the need for an affidavit ballot. Indeed, in Ulster County the affidavit ballot envelope indicates that voters check one box not once, but twice on the form. In many cases voters chose box one which was technically accurate and were not instructed or required,

WD035 125)

pursuant to the instructions to fill out any additional information in that particular section put forth on the affidavit. The voters who were objected to for this reason did not purpos efully omit information and there is no allegation of fraud alleged by counsel for the Petitio ner. 6. Objections To Affidavit Ballots Based On Addresses Mismatching Information On File With County Boards of Elections Set Forth Under Box Two of Category One On The Affidavit Ballot Envelope Are Frivolous And Said Ballots Should Be Canvassed

Petitioner also objected to a multitude of affidavit ballots where voters filled out box two under category one on the affidavit that indicates the voter has moved but where the address set forth did not match that on record with the Board. These objections are wholly withou t merit. Just because a voters address does not match up with that from an original registr ation record does not mean said voter is attempting to commit fraud. Indeed, the Court of Appea ls has noted that, the risk of fraud inherent in absentee voting is less in affidavit voting, where the voter presents himself or herself in person before board personnel on Election Day. Panio v. Sunderland, 4 N.Y.3d 123.
. .

Tellingly, when the actual affidavit ballot envelopes are reviewed, it is clear that they require a voter to affirm that he or she has moved within the county since his or her last registration and to provide that previous address. The forms do not require the voter to put down the address from which he or she was previously registered as required by the statute . See Elect. Law 8-302(3)(e)(ii). Indeed, an additional line would be needed for a voter to fill in this additional information and as the forms state, Part A Select one: you must check one of these 4 boxes, and fill in the appropriate blanks. See, Ulster County Affidavit Ballot Envelo pe. To disenfranchise these voters now because the form is not formatted in a manner as to make the statutory requirements clear would be fundamentally unfair to the voter.

Assuming Arguendo That The Affidavit Ballots Filled Out By These Otherw ise Qualified Voters Are Incomplete or Inaccurate As Petitioner Suggests, The Reason For Such Errors Would Be Due To Ministerial Error Election law section 16-106 states that, If the court determines that the person who cast such ballot was entitled to vote at such election, it shall order such ballot to be cast and canvassed if the court finds that ministerial error by the board of elections or any of its employees caused such ballot envelope not to be valid on its face. N.Y.S. Elec. Law Section 16106. The Court of Appeals has defined ministerial error as to suggest a clerica l or other inconsequential mistake. Matter of Alessio v. Carey, 18 Misc.3d 1 102a (Supreme Court, Onondaga County, 2007) citing Panio, 14 A.D.3d at 631. Moreover, ministerial error can also be inferred by the court based on actions taken, or the lack thereof, by a county board of elections. Panio at 128. Ministerial error can also be proved at trial. Matter of Johnso n v. Martins79 A.D.3d 913, 921 (2d Dept. 2010). 7. The Affidavit Forms Provided to Voters in Schenectady, Albany, Ulster, Montgomery and Greene Counties Were Not In Accordance With State Statute , Nor Did The Board of Elections or Its Inspectors Provide Voters With the Statuto rily Required Instructions Necessary Pursuant to Election Law Section 8-302( 3-a) Thus Constituting Ministerial Error.

(WD035 125)

Election law section 8-302(3)(e)(ii) states that affidavit ballot envelopes shall be in a form prescribed by the State Board of Elections. Chapter 62 of the laws of 2010 amended the statute to require the affidavit forms prescribed by the State Board of Elections to also request information required to register to vote in the event such person was not registered to vote in the first instance. Id. The State Board pursuant to the statute amended the form and transmitted the new form to county boards of elections. Critically important on the new form is the distinction that under Part B, voters are required to check each box that applies to them, rather than simply one box as the old forms stated. This technical change in the format ting of the form addressed the concerns raised by the Second Department in Matter of Johnson. Pertaining to the confusion of the forms. The fact that these forms are not being used by county boards of elections is a direct violation of the statute, thus constituting ministerial error. The voters who were forced to rely on the old forms which are confusing and misleading, and were confused thereby , should not be disenfranchised due to this deficiency which clearly constitutes ministerial error. 8. Affidavit Ballots Objected To Because The Town or Election District Was Not Filled Out Should Be Canvassed.

The Court of Appeals has held that affidavit ballots where the town or electio n district information is not filled in by an inspector must be counted. Matter of Panio v. Sunderland, 4 N.Y.3d 123 (2005). In Panio. affidavit ballots missing this information were returned to the Westchester County Board of Elections after the election concluded. During that time it was discovered that inspectors did not fill that information out at the poii site and so Board workers instead affixed yellow post it notes on the ballots to indicate what polling site each came from. Panio at 4. Given the absence of an allegation that they were not properly cast, the Court held they should have been counted. The same is no different than in the instant procee ding. Petitioners will undoubtedly point the court to several cases that they believe support their technical objections to the affidavit ballots laid aside such as Matter of Johnsofl, supra, Matter of Skartados v. Orange County Board of Elections, 81 A.D.3d 757 (2d Dept 2011), Matter of Koib v. Casella, 270 A.D.2d 964 (4t Dept. 2000), and Matter of Carney v. Davignon, 289 A.D.2d 1096. Such reliance however is misplaced as in none of these cases do the opinions address what exactly the technical deficiencies were and why exactly such ballots were not canvassed. For example, Respondent would not dispute that an affidavit ballot not signed by a voter should not be canvassed. Was this an issue in these cases or were the objections more technical in nature? Moreover, these cases do not point out if the researc h performed on the voters objected to in these cases by the bi-partisan boards of elections indicated that these ballots should be canvassed or not. Indeed, Petitioner would have the Court rely on these cases and speculate that the technical objections raised there are identical to the facts at hand. Clearly the Court cannot rely on these cases as they do not go into detail like Matter of Johnso n, supra, into the reasoning behind why such ballots were invalid. Finally, as the Panio case points out, recent decisions by the Court of Appeals on ministerial error draw into doubt some of the reasoning why these ballots should now be counted under newer interpretations.

1WD035 125)

9.

Ballots Alleged to be Untimely

In the instant proceeding, Petitioner argues that a number of absentee ballots are untimely. Petitioners proof is not based on evidence however, but rather upon inferen ce. The ballots in question were date-stamped received by the Board of Elections after Election Day (November 6, 2012), but the envelopes containing the postmarks that would have been dispos itive proof of timeliness were discarded by the Board fir a bipartisan review was made by the Commissioners, who jointly ruled the ballots timely. In New York law, there is a strong presumption of regularity that attches to governmental actions. See, Fidler v. Storobin, Index No. 700003/12, April 23, 2012 [citing to Matter of Marcellus, 165 N.Y. 70, 77 [19001[mere absence of a record is insufficient to overcome presumption of regularity that generally attaches to government actionsj Voters should not be disenfranchised based upon speculative claims such as Petitio ners, where there is no evidence proffered to support such claim other than absence of an underl ying record. 10. Objection to the Validity of the Voters Absentee Signature Petitioner challenged a large number of ballots on the basis that the signatu re on the ballot envelope did not match the absentee ballot application or the signature on file with the board of elections. The burden of the party challenging and the standard for reviewing the challenge is as follows: A. Presumption of Validity The courts have long recognized a presumption of validity when a duly qualifi ed elector in good faith and reliance applies and casts an absentee ballot in a timely manner. Keith St. John v. Board of Elections of Albany County, 145 Misc. 2d 324, 328; see Sheils v. Flynn, 275 N.Y. 446 (Court of Appeals 1937). Once the citizen is deemed to be a duly qualified elector by a board of elections, the duly qualified elector is entitled to depend on the integrity of the process and not be disenfranchised. j4 This presumption is established as a result of the legal duty of the board of elections to determine whether a citizen is in fact a duly qualified elector. N.Y. Electio n Law 8402. B. Burden Upon Challenger 1. Fraud Where the challenger asserts signature fraud, they must establish each elemen t pursuant to the high standard of clear and convincing evidence. Bronson v. Cartonia, 10 A.D.3d. 469, 780 N.Y.S2d 835 (3d Dept. 2004); citing Matter of Kelly v. Villa, 176 A.D.2d 992, 574 N.Y.S.3d 1019 (1991). In Bronson, the Third Department criticized the challengers failure to provide not one person [whol testified that he or she did not sign the petition or that his or her signature was forged. Id. In addition, the challenger must also provide a bill of particulars that sufficiently meets the standard for fraud. Wooten v. Barron, 242 A.D.2d 351, 352, 661 N.Y.S.2d 266 (3d Dept. 1997). The Second Department in that case questioned the challen ger regarding petition signatures, for failing to provide a list of witnesses and their identit y. 4. Furthermore, the challenger is also required to join the voters as necessary parties. Fingar v. Martin, 68

(WD035 125)

A.D.3d 1435, 1436, 892 N.Y.S.2d 235, 236 (3d Dept. 2009); see Desmond v. Green, 231 A.D.2d 480, 646 N.Y.S.2d 889, 890 (2d Dept. 1996). 2. Absent Fraud In circumstances where the challenger is not alleging fraud, the burden of proof rests upon the challenger. See Dorman v. Scaringe, 222 A.D.2d 887, 635 N.Y.S.2d 725 (3d Dept. 1995) (discussing the burden of proof where the petitioner challenged the residency of voters). In the absence of fraud, the Third and Fourth Departments applied a standard where the signatures on the ballot need to be substantially different in order for the ballot to be invalid ated. Hosley v. Valder, 160 A.D.2d 1094, 1096, 556 N.Y.S.2d 251, 253 (3d Dept. 1990); Koib v. Casella, 270 A.D.2d 964, 965, 705 N.Y.S.2d 746, 748 (4th Dept. 2000). In situations where fraud is not alleged, courts have permitted challengers to submit affidavits from each voter whose signature is in question by simply stating this is my valid signature. Jaffee v. Kelly, 32 A.D.3d 485, 819 N.Y.S.2d 485 (2d Dept. 2006). 11. Objections to the Ballots of Election Inspectors There are various objections to the ballots of election inspectors in Ulster County because they cast their special ballots earlier than two weeks before the election as provided for in Election Law Section 11-302. The situation arose when the inspectors received their ballots at the inspector training class, held in early October, and were instructed by the Republican and Democratic Commissioners to cast their ballot and hand it in to the Comm issioners before leaving the training. The Commissioners then time stamped the ballot envelopes and placed them in the to be counted box to be canvassed after election day. The purpose of a Special ballot is to permit an employee of the Board of Electio ns, whose responsibilities and duties require them to be somewhere other than at the poii site at which they are registered. The statute requires a written statement that he or she will be unable to appear at the polling place for such election district on the day of the election because his or her duties as an employee of such board or as in inspector, poli clerk, or election coordi nator require him or her to be elsewhere. Election Law Section 1 1-302. Here, there is no objection based on a failure to make such statement. In Panio v. Sunderland, 4 N.Y.3d 123 (2005) the Court of Appeals held that it was only ministerial error for the Board of Elections to direct poii workers to apply for special ballots using absentee ballot applications since the applications contained the substan ce of the required statutory statement. Here, the inspectors followed the express direction of the two Commissioners that run the Ulster County Board of Elections. There is no questio n of fraud or misconduct. The Commissioners were simply ensuring that the Inspectors, who perform a vital public service, themselves did not lose the most fundamental of our rights as citizens due to performing that public service. To be sure, as the Court noted in Gross v. Albany County Board of Electio ns, 3 N.Y.3d 251(2004, the purpose of absentee voting to open the voting process to a larger electorate must be balanced against the safeguards of protecting the integrity of the ballot by preventing fraud. In Gross, the Board of Elections forwarded absentee ballots to voters based on applications for an earlier election. Though noting the absence of intentional misconduct, the Court noted that other provisions of the Election Law were disregarded, including the duty to review applications

1WD0351 25)

and the requirement that voters reaffirm under penalty of crimin al prosecution that they are unable to vote at the polls on election day and raising the issue of whether they were qualified voters. Here, the inspectors completed the necessary paperwork and were know, to the Commissioners, and as such were determined to be qualified voters, thereby safeguarding against fraud or intentional misconduct. ON this issue, and the other points raised herein, the Court should be guided by the reasoning expressed over a hundred years ago in Hirsh v. Wood, 148 N.Y. 142 (1895). We can conceive of no principle which permits the disenfr anchisement of innocent voters for the mistake or even willful misconduct of election officer s in performing the duty cast upon them. The object of elections is to ascertain the popular will and not to thwart it. The objection of election law is to secure the rights of duly qualified elector s and not to defeat them. Accordingly the ballots of the Inspectors should be canvassed.

Very truly yours, Featherstonhaugh, Clyne, LLP

FGH:jrf

(WD035 125)