Election Law – New York Appellate Digest

THE PETITIONS FOR A PERMISSIVE REFERENDUM ON THE BONDS TO BE ISSUED FOR THE CONSTRUCTION OF CERTAIN TOWN BUILDINGS WERE NOT REJECTED WITHIN THE MEANING OF THE CONTROLLING STATUTES; THEREFORE THE TOWN WAS REQUIRED TO SET UP THE PERMISSIVE REFERENDUM FOR NOVEMBER 2023 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the Town Clerk did follow the statutory procedure for rejecting the petitions for a permissive referendum on bonds to be issued to fund the construction of certain Town road-maintenance buildings. Therefore the town was obligated to set up the permissive referendum:

We need not … decide whether the Town Clerk acted beyond the scope of her authority in rejecting the referendum petitions prior to their filing because, contrary to respondents’ contentions, the subject referendum petitions were received and accepted for filing by the Town Clerk on October 11, 2022 … . The record contains a receipt of filing stating that the Town Clerk “received from [petitioner] three petitions” which were identified by name in the receipt. The receipt issued by the Town Clerk also bears both a signature and a date stamp indicating that the petitions were received for filing … . The receipt issued and signed by the Town Clerk did not constitute a legal rejection of the petition within the contemplation of Town Law § 91 and, as a matter of fact, was not so intended by her to be a rejection since she stated in her own affidavit that she subsequently reviewed the filed petitions with both the Association of Towns of the State of New York and the town attorney and consulted with them regarding the petitions’ handling. Matter of Long v Town of Caroga, 2023 NY Slip Op 04352, Third Dept 8-17-23

Practice Point: Here the statutory requirements for the rejection of petitions for a permissive referendum on bonds to be issued for the construction of town buildings were not met. To the contrary, the Town Clerk accepted the petitions, and the town must set up the permissive referendum for November 2023.

August 17, 2023

THE NEW YORK STATE CONSTITUTION REQUIRES THAT THE INDEPENDENT REDISTRICTING COMMISSION SUBMIT A SECOND VOTING-DISTRICT REDISTRICTING PLAN AFTER THE REJECTION OF THE FIRST (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Garry, over a two-justice dissent, determined that the Independent Redistricting Commission (IRC) was required by statute to submit a second voting-district redistricting plan after the rejection of the first. The opinion provides a detailed analysis of the constitutional, legislative and administrative measures taken to reform the manner in which voting-district maps are drawn:

The IRC had an indisputable duty under the NY Constitution to submit a second set of maps upon the rejection of its first set (see NY Const, art III, § 4 [b]). The language of NY Constitution, article III, § 4 makes clear that this duty is mandatory, not discretionary. It is undisputed that the IRC failed to perform this duty. Matter of Hoffmann v New York State Ind. Redistricting Commission, 2023 NY Slip Op 03828, Third Dept 7-13-23

Practice Point: The constitutional, statutory and regulatory requirements for the approval of a voting-district redistricting plan are explained in depth.

July 13, 2023

Civil Procedure, Election Law

THE VOTERS WHOSE ABSENTEE BALLOTS WERE CHALLENGED ON RESIDENCY GROUNDS ARE NECESSARY PARTIES WHO WERE NOT INCLUDED IN THIS PROCEEDING; THE ELECTION LAW PROCEDURES FOR CHALLENGING THE ABSENTEE BALLOTS WERE NOT FOLLOWED; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the voters whose absentee ballots were unsuccessfully challenged on the ground the voters did not meet the village-residency-requirements were necessary parties in this proceeding and the matter had to be remitted to add them and consider whether their absentee ballots are valid:

Viewing Election Law § 5-220 (2) together with Election Law § 9-209, there is no statutory authority, under the circumstances here, permitting a challenge by petitioners to the absentee ballots submitted by the challenged voters. In view of the statutory scheme, the only opportunity for an objection to be lodged during the post-election review of an absentee ballot is after such ballot has been deemed invalid following a review under Election Law § 9-209 (8) (e), which presupposes an initial review under Election Law § 9-209 (2). … [T]he improper registration of a voter is not one of the explicit grounds used to deem an absentee ballot invalid upon the initial review. Even assuming it was a ground, there is still no indication in the record that any review under Election Law § 9-209 (2) has occurred or, more importantly, that any determination under Election Law § 9-209 (8) (e) has been made here by the canvassing authority as to the invalidity of any absentee ballots and that such determination has been objected to — i.e., the statutory predicate for judicial review (see Election Law § 9-209 [8] [e]). There is likewise no explicit authority within Election Law § 9-209 permitting a court to either conduct that review or make that determination in the first instance. Matter of Hughes v Delaware County Bd. of Elections, 2023 NY Slip Op 03431, Third Dept 6-26-23

Practice Point: When absentee ballots are challenged, the voters who submitted the ballots are necessary parties.

Practice Point: Any challenge to absentee ballots must be made in accordance with the procedures described in the Election Law, not the case here.

June 29, 2023

Civil Procedure, Election Law, Municipal Law

THE LOCAL LAW WHICH DISQUALIFIES CANDIDATES WHO HAVE CERTAIN FELONY CONVICTIONS SHOULD NOT HAVE BEEN INTERPRETED TO APPLY ONLY TO CONVICTIONS AFTER THE ENACTMENT OF THE LOCAL LAW (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Local Law which disqualified candidates who have certain felony convictions from running for city council and other officers should not have been interpreted to apply only to convictions after the enactment of the Local Law. Given the importance of the law, the proceeding should not have been converted to a summary judgment motion and decided on an expedited schedule because of the impending primary election:

Under the circumstances presented, where plaintiffs, without good reason, waited until shortly before the upcoming June 27, 2023 Democratic primary election to bring this action seeking a determination as to the constitutional and procedural validity of Local Law 15, enacted in February 2021, and to bring this motion seeking injunctive relief barring its enforcement, on an expedited basis that would not permit meaningful review of the important issues and that necessarily would result in electoral disruption, the court should not have converted, with limited notice to the City, the motion to one for summary judgment and resolved the merits of plaintiffs’ claims on an expedited schedule. * * *

We also find that the court, in prematurely resolving the merits of plaintiffs’ challenges, erred to the extent it construed, against the statutory reading proffered by both parties in the motion court, Local Law 15 as not disqualifying candidates based on the specified felony convictions where the convictions predated the law’s enactment in February 2021. A reading of the statutory language that the law applies to any person who “has been convicted” makes clear, on its face, that the law applies to both pre- and post-enactment convictions and, as the City shows, the legislative comments entirely support that reading, as do the subsequent practices of the Board of Elections. Martinez v City of New York, 2023 NY Slip Op 03073, First Dept 6-8-23

Practice Point: The matter should not have been converted to a summary judgment motion and determined on an expedited schedule because of the impending election. The Local Law which disqualifies candidates with certain felony convictions from running for local offices should not have been interpreted to apply only to convictions after the enactment of the local law.

June 8, 2023

Election Law, Municipal Law

A LOCAL LAW WHICH CURTAILED THE POWER OF AN ELECTED OFFICER TO ACT WAS DEEMED INVALID BECAUSE IT WAS NOT SUBJECT TO A PUBLIC REFERENDUM (SECOND DEPT).

The Second Department, over an extensive dissent, determined a Local Law which curtailed to power of an elected officer to act was invalid because it was not subject to a public referendum. The decision and the dissent are too detailed to fairly summarize here:

Chapter 263 is substantively invalid on its face because the supermajority requirement continually curtails the power of a local officer to act … . This goes to the wisdom and merit of the local law. “Unless specifically provided by statute or charter provisions, one [local] legislature may not bind the hands of its successors in areas relating to governmental matters” … . “A local law . . . which . . . has the effect of curtailing the power of such elective officers . . . becomes operative only after approval by the majority of the qualified” voters … , since it “curtail[s] each legislator’s relative ability to cast the deciding vote” … . To rule otherwise in the instant case would bind the hands of the Town Board and the public indefinitely, merely because years in the past, no one saw fit to challenge a law which would only have practical effect years in the future…. . * * *

The power of the Town Board cannot be limited indefinitely merely because there was a procedure which would have allowed for the passage of such a provision, and although that procedure was not followed, the four-month statute of limitations for challenging procedural defects had passed. This was not a mere procedural defect. Rather, the Town Board imposed a continuing illegal infringement on the rights of future members of the Town Board, and a continuing infringement upon the rights of the voters. Hoehmann v Town of Clarkstown, 2023 NY Slip Op 02606, Second Dept 5-15-23

Affirmed by the Court of Appeals: Hoehmann v Town of Clarkstown, 2023 NY Slip Op 02750, CtApp 5-19-23

Practice Point: Here, a local law which curtailed the power of elective officers was invalid because it was not subject to a public referendum.

May 15, 2023

Civil Procedure, Election Law, Fraud

AN ORDER TO EFFECT SERVICE OF PROCESS IN A MANNER WHICH CANNOT BE COMPLIED WITH PRECLUDES PERSONAL JURISDICTION; PETITIONER DID NOT PRESENT SUFFICIENT EVIDENCE OF ELECTION FRAUD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) the order to show cause specified a method of service which could not be complied with; therefore personal jurisdiction over Williams was not obtained: (2) election fraud on Williams part was not demonstrated:

Since the method of service provided in the order to show cause was jurisdictional in nature, and the affidavit of service is deficient on its face for identifying an address for mailing purportedly obtained from a document that did not exist, the court should have granted that branch of Williams’s motion which was, in effect, to dismiss the amended petition for lack of personal jurisdiction. …

“A candidate’s designating petition or independent nominating petition ‘will be invalidated on the ground of fraud if there is a showing that the entire petition is permeated with fraud'” … . “Absent permeation with fraud, a designating [or independent nominating] petition may be invalidated where the candidate has participated in or is chargeable with knowledge of the fraud” … . Here, Stark [petitioner] failed to meet her burden of demonstrating by clear and convincing evidence that the designating petition was permeated with fraud or that Williams participated in or was chargeable with knowledge of any fraud … . Matter of Stark v Williams, 2023 NY Slip Op 02583, Second Dept 5-11-23

Practice Point: If an order to show cause directs service of process to be made in a manner which cannot be complied with, personal jurisdiction is precluded even if the affidavit of service purports to have complied with the order.

May 11, 2023

Election Law, Fraud

UGELL SHOULD NOT HAVE BEEN DISQUALIFIED AS A CANDIDATE FOR TOWN SUPERVISOR; THE FACT THAT UGELL IS A TOWN JUSTICE IS NOT DISQUALIFYING; ELECTION FRAUD MUST BE PROVEN BY CLEAR AND CONVINCING EVIDENCE, LACKING HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Ugell, a town justice, should not have been disqualified as a candidate for town supervisor. The fact that Ugell is a town justice was not disqualifying. There was no clear and convincing evidence of election fraud:

The petitioners presented no basis to disqualify Ugell under Election Law § 6-122. The fact that Ugell is subject to the Rules Governing Judicial Conduct (22 NYCRR) part 100 as a Town Justice does not disqualify him from running for the office of Town Supervisor … .

“The proper evidentiary standard for proving fraud in an Election Law proceeding is clear and convincing evidence” … . “[A]s a general rule, a petition for an opportunity to ballot will be invalidated on the ground of fraud only if there is a showing that the entire petition is permeated with fraud” … . “The inclusion of a candidate’s name on a designating petition, without his or her consent, may constitute fraud”… . Here, in light of the conflicting and, in part, incredible testimony, the Supreme Court erred in determining that the petitioners established, by clear and convincing evidence, fraud so as to warrant invalidating the designating petition … . Moreover, the petitioners failed to establish, by clear and convincing evidence, “actual deception of the voters or members of the party involved” … . Matter of King v Ugell, 2023 NY Slip Op 02601, Second Dept 5-11-23

Practice Point: The fact that Ugell was a town justice did not disqualify him from running for town supervisor. Election fraud must be proven by clear and convincing evidence, lacking here.

May 11, 2023

Constitutional Law, Election Law

THE STATUTE ALLOWING ONLY MEMBERS OF THE RELEVANT PARTY TO SUBMIT WRITE-IN BALLOTS IN A PRIMARY ELECTION IS CONSTITUTIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional:

The statute, which became effective on October 8, 2021, amended three sections of the Election Law to limit the universe of permissible write-in primary votes to enrolled members of the relevant party. Election Law § 6-164 was amended to specify that the opportunity to ballot process could be carried out on behalf of only candidates enrolled in the relevant party (see L 2021, ch 480, § 1). Section 6-166 (2) was amended to change the language required on the opportunity to ballot petition correspondingly (see L 2021, ch 480,§ 2). Finally, section 8-308 was amended to state: “A write-in ballot cast in a party primary for a candidate not enrolled in such party shall be void and not counted” (Election Law § 8-308 [4]; see L 2021, ch 480, § 3). * * *

… [T]he intended effect of the statute is to limit the universe of permissible write-in candidates in a party primary election to individuals who are members of that party. Political parties have protected associational rights, which include the right to identify their own members and to select candidates who best represent their ideals and preferences … and the “right to exclude non-members from their candidate nomination process” … . We conclude that the restrictions imposed by the statute were intended to protect those rights, and that petitioners have no associational right to involve non-members in the nomination process of their parties … . Matter of Kowal v Mohr, 2023 NY Slip Op 02480, Fourth Dept 5-9-23

Practice Point: The statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional.

May 9, 2023

Election Law

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.

December 14, 2022

Civil Procedure, Election Law

PETITIONERS’ CHALLENGE TO THE NEW PROVISIONS OF THE ELECTION LAW ADDRESSING THE NEW PROCESS OF CANVASSING ABSENTEE BALLOTS WAS PRECLUDED BY THE DOCTRINE OF LACHES (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the challenge to the new process of canvassing absentee ballots was precluded by the doctrine of laches:

Petitioners commenced this proceeding/action challenging the constitutionality of the new process of canvassing absentee ballots in Election Law § 9-209 nine months after it was enacted, after the process was in effect for two primary elections and several special elections, and at the time that canvassing of absentee ballots using the new process began in the 2022 general election. The amendment to Election Law § 8-400 was enacted in 2020 and has been in effect for multiple general, primary and special elections but petitioners did not challenge the statute until nine months after the sunset clause was extended and after the mailing of absentee ballots had already begun. … In short, petitioners delayed too long in bringing this proceeding/action. To the extent that petitioners contend that they did not bring the challenges until they were ripe, the action constitutes facial challenges to the statutes, implicating their text, not their applications, and, therefore, the action was ripe at the time of the enactment of the statutes … . Matter of Amedure v State of N.Y., 2022 NY Slip Op 06096, Third Dept 11-1-22

Practice Point: The petitioners didn’t bring this challenge to new provisions in the Election Law addressing the canvassing of absentee ballots until nine months after enactment and after the new process had been used several elections. The petition was precluded by the doctrine of laches.

November 1, 2022