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THE DEFECT IN THE ABSENTEE BALLOTS, I.E., AN UNSEALED ENVELOPE INSIDE A SEALED ENVELOPE, WAS CURABLE PURSUANT TO THE ELECTION LAW; THEREFORE THE ABSENTEE BALLOTS SHOULD NOT HAVE BEEN DEEMED INVALID; THE VOTERS SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO CURE THE DEFECT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the 94 absentee ballots suffered from a curable defect. Therefore the absentee ballots should not have been deemed invalid. Rather, the voters should have been notified of the defect and given an opportunity to correct it. The defect concerned unsealed envelopes which were inside sealed envelopes:

Here, each of the 94 absentee ballots was received by the Board with an unsealed ballot affirmation envelope inside a completely sealed outer mailing envelope. Therefore, the defects were curable under Election Law § 9-209(3)(b)-(e) (see 9 NYCRR 6210.21[g][2]). Matter of Amato v Sullivan, 2022 NY Slip Op 07039, Second Dept 12-14-22

Practice Point: Here the absentee ballots were deemed invalid because envelopes were not sealed. However, pursuant to the Election Law, unsealed envelopes inside sealed envelopes constitute a curable defect. The voters should have been given the opportunity to cure the defect.

 

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