ELECTION LAW

UPDATE
2024

Brian L. Quail
Kevin G. Murphy Aaron K. Suggs

Office of Counsel
 TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1
REGISTRATION AND ENROLLMENT .................................................................................... 2
Residency .................................................................................................................................. 2
Voter Residency ................................................................................................................... 2
Dual Residency..................................................................................................................... 2
Residency of Absentee Voter ............................................................................................. 3
Residency of Candidate ...................................................................................................... 4
Parties ........................................................................................................................................ 5
Rules of New Party .............................................................................................................. 6
Certificates of Nomination By New Party ......................................................................... 6
Post Primary Reorganization.............................................................................................. 6
Changing Party Enrollment ................................................................................................. 7
Political Party Enrollment and the Closed Primary ......................................................... 7
Cancelling Enrollment.......................................................................................................... 8
Affiliated Voters..................................................................................................................... 8
ELECTION DAY ........................................................................................................................... 9
Polling Places ........................................................................................................................... 9
Write-In Voting ........................................................................................................................ 10
Absentee Voter ....................................................................................................................... 10
POST ELECTION ...................................................................................................................... 12
Review of Ballot Envelopes and Ballots ............................................................................. 12
Canvass Process ............................................................................................................... 12
Ballot Envelopes and Cures ............................................................................................. 13
Improperly sealed ballots .................................................................................................. 14
Cast Ballots ......................................................................................................................... 14
Inactive Voters .................................................................................................................... 17
Affidavit Voting .................................................................................................................... 17
Abandoned / Non-machine Processable Optical Scan Ballots ................................... 19
Audit Provisions .................................................................................................................. 20
Manual Recount ................................................................................................................. 21
Review of Validity of Primary Election ................................................................................ 21
Review of Validity of General Election ................................................................................ 21
PETITIONS ................................................................................................................................. 23
Board of Elections Authority Regarding Petitions ............................................................. 23
Form and Contents of Petitions ....................................................................................... 23
Number of Signatures Needed ........................................................................................ 24
Invalidity of a Single Signature ......................................................................................... 25
No Requirement that Signatures Be Sequential ........................................................... 25
Cover Sheets ...................................................................................................................... 25
Page Numbers .................................................................................................................... 26
Preamble ............................................................................................................................. 27
Committee to Fill Vacancies ............................................................................................. 27
Candidate on Petition ............................................................................................................ 28
 Qualifications for Office ..................................................................................................... 28
Running for Judicial Office ................................................................................................ 28
Running for Two Offices.................................................................................................... 28
Over Designations.............................................................................................................. 28
Voter Registration of the Candidate ................................................................................ 29
Enrollment and Authorization of the Candidate ............................................................. 29
Candidate's Identifying Information ..................................................................................... 29
Name .................................................................................................................................... 29
Residence and Address of Candidate ............................................................................ 30
Title of Office or Position ................................................................................................... 31
Signer of Petition .................................................................................................................... 33
Date ...................................................................................................................................... 33
Name .................................................................................................................................... 34
Residence............................................................................................................................ 35
Town or City ........................................................................................................................ 36
Signed Previous Petition ................................................................................................... 37
Independent Body Name ...................................................................................................... 37
Witness Statement ................................................................................................................. 38
Residency of Witness Stated on Petition ....................................................................... 38
Party of Witness ................................................................................................................. 40
Witness Identification Information.................................................................................... 40
Completion of Witness Information ................................................................................. 41
Number of Signatures........................................................................................................ 41
Previously Witnessing or Signing Petition ...................................................................... 42
Previous Participation in a Caucus.................................................................................. 42
Signing and Dating ............................................................................................................. 42
Signatures Taken by Notary or Commissioner of Deeds ............................................ 43
Alterations................................................................................................................................ 45
Alterations to the Signers Line ......................................................................................... 45
Material Alteration .............................................................................................................. 45
Fraud .................................................................................................................................... 46
Opportunity to Ballot Petitions .............................................................................................. 47
Opportunity to Ballot as Equitable Remedy ................................................................... 48
Independent Nominations Placement on the Ballot.......................................................... 49
NOMINATIONS .......................................................................................................................... 50
Caucuses ................................................................................................................................. 50
Posting Notice of Caucus .................................................................................................. 50
Rule Limiting Nominees to Enrolled Party Members is Invalid ................................... 50
Judicial Nominating Conventions ........................................................................................ 50
Delegates to Convention ................................................................................................... 50
Delegate Residency ........................................................................................................... 51
Filing of Certificate of Nomination.................................................................................... 51
VACANCIES ............................................................................................................................... 53
Certification of Vacancies ..................................................................................................... 53
Disqualification........................................................................................................................ 53
Hatch Act Disqualification ................................................................................................. 53
 Residency Disqualification ................................................................................................ 54
Substitutions............................................................................................................................ 54
BALLOT ACCESS FILINGS .................................................................................................... 55
Challenges............................................................................................................................... 55
Objections............................................................................................................................ 55
Standing to Object.............................................................................................................. 56
Independent Petitions ........................................................................................................ 56
Objections To Party Petitions / Certificates For Public Office ..................................... 56
Objections Where Objector’s Enrollment Matters ......................................................... 56
Judicial Convention Objections ........................................................................................ 57
County Committee ............................................................................................................. 57
When Objections Must Be Received .............................................................................. 57
Postmarks............................................................................................................................ 58
Rehearing ............................................................................................................................ 59
Service of Objections on the Candidate ......................................................................... 59
Joinder in Special Proceeding.............................................................................................. 59
LOCAL REFERENDA ............................................................................................................... 60
ELECTION LAW §3-300........................................................................................................... 60
PREEMPTION OF ELECTION LAW ...................................................................................... 61
CAMPAIGN FINANCIAL DISCLOSURE ............................................................................... 62
Contribution Limit Constitutionality ...................................................................................... 62
New York State Board 2016 Opinion # 1 ........................................................................... 63
Party Money in a Primary...................................................................................................... 64
NOTABLE RECENT LEGISLATION...................................................................................... 65
2023 Laws ............................................................................................................................... 65
2022 Laws ............................................................................................................................... 67
2021 Laws ............................................................................................................................... 68
2020 Laws ............................................................................................................................... 71
2019 Laws ............................................................................................................................... 75
PROOF ISSUES......................................................................................................................... 79
Correcting Defects: Issues of Proof .................................................................................... 79
Proof Generally ....................................................................................................................... 79
ELECTION LAW VIOLATIONS............................................................................................... 80
Election Law Violations ......................................................................................................... 80
COURT ACTIONS ..................................................................................................................... 81
Judicial Review ....................................................................................................................... 81
Relief Impossible .................................................................................................................... 81
Party Chair Standing.............................................................................................................. 82
Table Summarizing Actions .................................................................................................. 83
Service of Process ................................................................................................................. 86
Affirmative Relief--A Separate Proceeding ........................................................................ 86
Notice to Attorney General of Constitutional Challenge .................................................. 87
Table Summarizing New York Court System .................................................................... 88
INTRODUCTION

The Election Law Update is a guide for election officials on topics related to election
administration. This Update is based upon reported as well as unreported cases the State
Board is a party to or made aware of.

The Update is not an exhaustive review of every election law case. It is simply a
starting point. It does not replace the need to seek the advice of counsel.

Please feel free to contact our office if you are aware of any cases that should be
listed or if you require any additional information.

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REGISTRATION AND ENROLLMENT

To vote in an election in New York State, a person must be registered to vote (NY
Const. Art II § 5; Election Law § 5-100). Registration with the County Board of Elections
entitles a person to vote in all contests for public office that occur relating to the political
jurisdictions wherein the person resides (NY Const. Art II § 6).

A voter registration form received by the board of elections by the tenth day before
an election will entitle the applicant, if otherwise eligible, to vote at such election. The
annual February 14th deadline for change of enrollment for existing voters is unchanged.
See Changing Party Enrollment below.

Residency

Residency is rarely challenged at the time a person registers to vote. Typically,

residency issues arise in the absentee and affidavit ballot canvassing process, the
petitioning process or when a candidate’s residency or duration of residency is
challenged. A voter’s residence and duration of residence determines where the person
may register to vote and sometimes whether a person can be a candidate for a public
office. When and how residency may be challenged depends on the specific context.

Voter Residency

In determining residency, the Board may consider the voter applicant's financial
independence, business pursuits, employment, income sources, residence for income tax
purposes, age, marital status, residence of parents, spouse and children, if any,
leaseholds, sites of personal and real property owned by the applicant, motor vehicle and
other personal property registration and such other factors that it may reasonably deem
necessary to determine the qualification of an applicant to vote within the Board's
jurisdiction (Election Law § 5-104 [2]). “The crucial factor in determining if an individual is
qualified to register and vote from a particular residence is whether he or she has
manifested an intent to adopt that residence as a permanent and principal home coupled
by his or her physical presence there ‘without any aura of sham’” (Matter of Thompson v
Karben, 295 AD2d 438, 439 [2d Dept 2002], citing People v O’Hara, 96 NY2d 378, 385
[2001], quoting Matter of Gallagher v Dinkins, 41 AD2d 946, 947 [2d Dept 1973]; aff’d 32
NY2d 839 [1973]).

Dual Residency

A person with two residences "may choose one to which she has legitimate,
significant and continuing attachments as her residence for purposes of the Election Law"
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(Ferguson v McNab, 60 NY2d 598, 600 [1983]; Matter of Willkie v Delaware County Board
of Elections, 55 AD3d 1088 [3d Dept 2008] [authorizes a choice of voting place for those
who own or maintain dual residences and rejecting a limited interpretation that voting
rights may only be premised upon “domicile”]).

In Matter of Shafer v Dorsey (43 AD3d 621 [3d Dept 2007], lv denied 9 NY3d 804
[2007]), in the context of a candidate challenge under Election Law § 16-102, the Court
denied the challenge on grounds of dual residency affording the candidate the right to
choose from which of his residences he would run, “with emphasis on Dorsey’s
‘expressed intent and conduct’... and finding no fraudulent or deceptive motive in Dorsey’s
choice of residence” (Shafer at 623 [quoting People v O’Hara at 384]; see also Matter of
Johnson v Simpson, 43 AD3d 478 [2d Dept 2007] lv denied 9 NY3d 804 [2007]; Maas v
Gaebel, 129 AD3d 178 [2d Dept 2015] [holding “fact that one’s position on a specific
political issue may serve as a motivating factor to register to vote in a place where he or
she has established a bona fide residence does not render such a residence a ‘sham’”]).

The Second Circuit Court of Appeals observed in Wit v Berman (306 F3d 1256 [2d
Cir. 2002]) that "New York has responded to this administrative difficulty [persons with
multiple homes] in a pragmatic way. New York courts have held that, rather than compel
persons in appellants' circumstances to establish to the satisfaction of a registrar of voters
or a court that one home or the other is their principal, permanent residence, they can
choose between them” (Wit at 263; see also People v O'Hara, 96 NY2d 378, 385 [2001]
[“[a]n individual having two residences may choose one to which she has legitimate,
significant and continuing attachments as her residence for purposes of the Election
Law'”] quoting Matter of Ferguson v McNab, 60 NY2d 598, 600 [1983]). “This pragmatic
approach lessens the burdens on registrars, who in most cases need only verify an
address, and on people like appellants, who otherwise might be turned down at both
places and have to go to court in order to be able to vote anywhere” (Wit at 1262).

Residency of Absentee Voter

The substantive law of absentee voter residency has been explored in a number
of cases, but court applications related to residency are no longer able to be brought at
the time of canvass pursuant to recent statutory changes (Election Law § 9-209; 16-106
[amended effective in 2022]; see also Matter of Johnson v Martins, 79 AD3d 913, 920 [2d
Dept 2010] quoting Matter of Mondello v Nassau County Bd. Of Elections, 6 AD3d 18,
20-21 [2d Dept 2004]; Matter of Delgado v Sunderland (97 NY2d 420, 423 [2002]; Matter
of Amedore v Peterson, 102 AD3d 995, 998 [3d Dept 2013], lv denied 20 NY3d 1006
[2013] [treatment of absentee residency challenges under prior law]).

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 In Amedure v State of New York, the Third Department, on laches grounds, denied
a challenge to the new canvassing and proceedings laws seeking to reinstate the process
under the old law in relation to objections to absentee ballots at the time of canvass (210
AD3d 1134 [3rd Dept 2022]). This matter has since been refiled and litigation remains
ongoing.

Residency of Candidate

There is no state law requirement that a candidate for a local office reside in the
district in which election is sought at the time the petition is filed (Clark v McCoy, 196
AD2d 607 [2d, Dept. 1993] lv denied, 82 N.Y.2d 653). “Election Law § 6-122 simply
prohibits a person from being designated or nominated for public office who cannot meet
the statutory or constitutional qualifications at the ‘commencement of the term of such
office’. Public Officers Law § 3 (1) adds that candidates satisfy residency requirements
as of the time they are elected” (Weidman v Starkweather, 80 N.Y.2d 955 [1992]).

Local charters or laws may impose more stringent residency requirements for local
offices (Scavo v Albany County Board of Elections, 131 AD3d 796 [3d Dept 2015] [holding
board properly exercised ministerial powers in finding county legislature candidate did not
meet one-year county charter residency requirement when his address on designating
petition was not in the district]).

Candidates for Governor or Lieutenant Governor must be a resident of the state

for the “five years next preceding the election” (N.Y. Const. Art. IV Section 2). Similarly,
candidates for the office of Member of New York State Senate or Assembly must meet
two constitutional residency requirements: Five years of residency in the state and
residency in the district for “twelve months immediately preceding his or her election.”
The residency period must be continuous, not intermittent (Bourges v LeBlanc, 98 NY2d
418 [2002]). For the election immediately following redistricting, a candidate for state
legislature is not required to have lived in the district but must have resided within the
county in which the district is contained for twelve months immediately before the election
(NY Const, Art. III, Section 7). The factors for determining voter residency apply equally
to candidate residency. A challenge to a candidate’s residency will fail unless “clear and
convincing evidence” demonstrates the challenged candidate does not meet the
constitutional residency requirement (Weiss v Teachout, 120 AD3d 701 [2d Dept 2014];
see also Jones v Blake, 120 AD3d 415 [2014]).

Courts examine several factors to determine whether a candidate meets a

residency requirement. There is no single test. But notably the Court of Appeals held
that a candidate fails the Constitutional residency requirement when he or she registers
to vote in another jurisdiction during the required residency period. In Glickman v Laffin

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(27 N.Y.3d 810 [2016]), the Court of Appeals held that a candidate’s prior voter
registration in Washington, D.C. precluded him from establishing the required continuous
five-year residency in New York. The court held that the D.C. voter registration broke the
chain of his New York electoral residency which did not recommence until he registered
again to vote in New York. However, the First Department held that Glickman is not a
bright line test. In Quart v Kaufman, the First Department held that a candidate’s prior
voter registration, and voting history, in Connecticut did not, in and of itself, preclude the
candidate from establishing the required continuous five-year residency in New York.
(183 AD3d 480 [1st Dept 2020], lv to appeal denied, 35 NY3d 905 [2020]). The Court
looked at other factors in establishing residency, including the fact that Connecticut law,
unlike the law in Washington D.C., does not require a voter to attest that Connecticut is
the voter’s sole electoral residence.

However, the Second Department has held that a candidate's prior voter
registration, and voting history, in North Carolina did, in fact, sever the candidate's
electoral residency with New York State, precluding the candidate from establishing the
required five year residency. Notaristefano v Marcantonio, 164 AD3d 721 [2d Dept 2018],
lv to appeal denied, 31 NY3d 1210 [2018].

In Dilan v Salazar, appearing on the rolls as a registered voter in another state

during the residency period was distinguished from voting or filing a registration
application in another state during the residency period (164 AD3d 713 [2d Dept 2018]).
Accordingly, a candidate on the voter rolls in Florida during the residency period who had
neither voted nor registered during the residency period was not removed from the ballot
(Id). Compare Patch v Boblin in which the First Department overturned a lower court
decision finding that the candidate “having voted in Illinois during the five-year period
preceding the upcoming election is inconsistent with his claim to have maintained New
York as his residence throughout that five year period.” (186 AD 3d 1183 [2020]).

Issues relating to sufficiency of the description of a candidate’s address on a

petition or certificate are covered in the Petition section.

Parties

The term “party” means any political organization which at the last preceding
election for governor or president of the United States polled 2% of the vote or 130,000
votes, whichever is greater, for its candidate. Election Law § 1-104 (3). The term “major
political parties” means the two parties which polled for their respective candidates for the
office of governor the highest and next highest number of votes at the last preceding
election for such office. Election Law § 1-104 [24]. The constitutionality of New York’s
party qualification laws have been upheld. See Libertarian Party of New York v New York

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State Board of Elections, 576 FSupp3d 151 [SDNY 2021] aff’d by 2nd Circuit Summary
Order dated October 19, 2022 [22-445-cv]).

Rules of New Party

Three appellate division decisions in 2015 grappled with the validity of the rules of
the Women’s Equality Party pursuant to Election Law § 6-128. The Third Department in
Grasso v Cleveland found “no statutory support for petitioner’s assertion that the new
party rules must be certified by a majority of the statewide candidates in the 2014 general
election in order to be valid” (132 AD3d 1059 [2015]). The court noted one set of rules
was certified by two statewide candidates, while the other two sets of rules were not
certified by any statewide candidate of the new party. “Absent such statewide candidate
support, they cannot be deemed rules of the WEP for the purpose of creating a ‘question
or conflict relating to the rules or the rule-making body’” (Id; see also DeLabio v Allen, 131
AD3d 1340 [4th Dept 2015]; Donovan v Cabana, 132 AD3d 919 [2d Dept 2015] [decided
on different grounds]; Dadey v. Czarny, 132 AD3d 1427 [4th Dept 2015] [decided on
similar grounds]).

Certificates of Nomination By New Party

The certificate of nomination issued by a newly formed party pursuant to Election

Law § 6-128 must include an affidavit “containing a statement by the presiding officer and
secretary of the committee that they are such officers and the statements in the certificate
are true.” In McCormack v Jablonski the Second Department found the challenged
certificate included a “notarized signature” identifying the presiding officer and secretary,
but not “a statement by either…attesting to the truth of the statements in the certificate”
(132 AD3d 921 [2015]). The court determined “[t]he omission of such a statement
constitutes a substantive departure from the mandates of the statute and not a mere error
in form.”

Post Primary Reorganization

Under prior law, the powers of a newly elected party committee transitioned on
primary day and the old committee had no authority to perform functions “in substantial
matters” absent necessity pending the reorganization of the new committee (Matter of
Broacto v Tinari, 157 AD3d 782 [2d Dept 2018]). Amendments to Election Law § 2-112
now provide that state committees shall organize between September 17 and October 1,
and county committees will meet to organize between September 17 and October 6.
Between the primary and the reorganization, “the existing…committee shall exercise all
legal authority. Upon conclusion of the organization meeting, the new … committee shall
assume all legal authority vested in the previously organized committee.”

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 While courts will intervene to resolve intraparty disputes implicating a failure to
follow the Election Law or the party’s own rules, judicial intervention is only warranted
upon a clear showing of impropriety. In dispensing with objections that vacancies on the
county committee were not filled by a weighted roll call vote, the Court noted “no rival
candidates were nominated, though an opportunity to nominate opposing candidates was
provided” (Matter of Auerbach v Suffolk County Comm of the Conservative Party, 171
AD3d 731 [2d Dept 2019]).”The use of a voice vote to select an unopposed candidate or
slate of candidates at political party meetings is not prohibited by statute [citation omitted]
and is not unusual or unprecedented, particularly in meetings, such as the one involved
here, in which the number of participating members is in the hundreds and the calling of
the roll would be protracted” (id).

Changing Party Enrollment

A new voter both registers to vote and enrolls in a party (optional) simultaneously
by submitting a voter registration application to the board of elections. Any registered
voter may thereafter submit a change of enrollment to switch political parties at any time.
Changes of enrollment take effect immediately, however, any change of enrollment
received by the board of elections after February 14th, and before or on seven days after
the June primary, does not take effect until the seventh day after the June primary.
Changes of enrollment must be received by the local county board of elections by
February 14 in order to take effect immediately. It is not sufficient for a voter to mail a
change of enrollment on February 14th, or for a voter to deliver a change of enrollment to
a different county board of elections. (Saini v Tarnoff, 70 Misc3d 344 [2020 Albany Sup
Ct]; Election Law § 5-304 [3]).

Political Party Enrollment and the Closed Primary

Generally, only voters enrolled in a political party may vote in the party's primary
election or participate in the party's caucus (Election Law §§ 8-302 [4], 6-108 [3] [towns],
6-204 [4] and 15-108 [2] [d] (villages). However, a political party may opt to allow non-
party members to vote in their primary election as specified by party rule (State Committee
of the Independence Party v Berman, 294 F Supp 2d 518 [SDNY 2003]). Where the
Independence Party of Richmond County rules were silent with respect to non-party
members voting in a party’s primary, the Court held that the Executive Committee could
adopt an ad-hoc resolution allowing the unaffiliated voters of Richmond County to vote
for Independence Party candidates for Richmond County public offices in the primary
election (Independence Party of Richmond County v Nero, 332 F Supp 2d 690 [SDNY
2004]).

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 Cancelling Enrollment

Election Law § 16-110 [2] establishes a procedure for cancelling a voter’s

enrollment when a party finds the voter is “not in sympathy with the principles of such
party.” If a political party’s procedure meets the statutory requirements and the court finds
the process was “just”, the court will order the cancellation of a voter’s enrollment as
requested by the party. A political party’s application to cancel the enrollment of voters
who declined to appear before the party’s investigation committee was summarily granted
(Rhoades v Westchester County Board of Elections, 115 AD3d 958 [2d Dept 2014]). In
Green Party of Erie County v. Erie County Board of Elections, though the challenged voter
did not appear before the party’s investigation committee, the voter provided an affidavit
and sent an attorney to the hearing (54 Misc.3d 318 [Sup Ct, Erie 2016]). The court held
the investigation committee was obliged to make evidentiary findings to justify
disenrollment (Id; contrast Mazzullo v Barnett, 207 AD3d 1140 [4th Dept 2022]). [voters’
failure to testify was considered but was not dispositive, such that the court properly
observed all of the affidavits submitted were similar in appearance and content that
amounted to “self serving declarations” insufficient to overcome “the presumption and
uncontested facts” that they were not in sympathy with the party.”]).

Once a voter is disenrolled pursuant to statutory proceedings, the voter is no longer

eligible to vote in the party’s primary elections or caucuses. The Green Party case also
examined the consequence of disenrollment on the voter’s status as a party’s candidate.
The court concluded if a candidate is disenrolled subsequent to accepting the nomination
of a party, removal from the ballot is not appropriate because Election Law § 16-110
makes no mention of such removal. (Id. [dicta]).

Affiliated Voters

Voters may choose to be unaffiliated with any party or organization if they do not
wish to enroll in a party. These voters are deemed enrolled “blank.” In addition to
enrolling in a party or being a blank voter, voters may choose to be affiliated with a political
organization. (See Green Party of New York State v New York State Board of Elections,
389 F3d 411 [2d Cir. 2004]). A voter may write in the name of the group the voter wants
to affiliate with on the “other” line on the voter registration form. The board of elections is
only required to maintain separate lists of affiliated voters who affiliate with an entity that
placed a candidate for governor on the ballot at the last party-qualifying election.

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ELECTION DAY

Polling Places

Election Law § 4-104 requires the board of elections to initially designate polling
places “in consultation with” towns, cities and villages by the statutory deadline. The
statute does not define any particular “consultation” steps. This requirement requires
notice of proposed poll site locations to the municipality and some opportunity for the
municipality to comment. Additionally, when a county board of elections determines that
a polling site is not suitable, the board has discretion to move the designated polling
location. When a poll site move takes a poll site out of its election district, notice to the
chairpersons of the political parties must be provided and they must have an opportunity
to be heard on the move. (Election Law § 4-104 (1); Sutton v Howe, 2020 NY Slip Op
50704 [Sup Ct Cortland County]).

Polling places must be accessible to persons with disabilities. In Disabled in Action

v Board of Elections in the City of New York (752 F3d 189 [2014]), the Second Circuit
Court of Appeals held that under federal law, persons with disabilities have a right to “fully
participate in BOE’s voting program”. This includes “the option to cast a private ballot on
election days.” “By designating inaccessible poll sites and failing to assure their
accessibility through temporary equipment, procedures, and policies on election days,
BOE denied plaintiffs meaningful access to its voting program” (Id). To remedy such
violations, federal courts are empowered to direct remedial actions. The District Court
granted two disability advocacy groups summary judgment against the New York City
Board of Elections under the Americans with Disabilities Act (42 USC §12131 et seq.)
and the Rehabilitation Act of 1973 (29 USC §794 et seq.) to remedy “pervasive and
persistent access barriers at poll sites” operated by the NYCBOE (United Spinal
Association v Board of Elections of the City of New York, 882 FSupp2d 615 [SDNY 2012]).
On May 13, 2013, the court’s modified order required an Americans with Disabilities Act
Coordinator at every NYCBOE poll-site; required the NYCBOE to contract with a third-
party disability access trainer and reporting of accessibility complaints to the plaintiffs in
the case within 45 days of any general or special election. NYCBOE monitors were
required to visit each polling site twice on any election day to assess accessibility.

Two identical cases were brought by the New York Attorney General against the
boards of elections in Delaware and Schoharie counties (New York v County of Delaware,
82 FSupp2d 12 [NDNY 2000]); New York v County of Schoharie, 82 FSupp2d 19 [NDNY
2000]). A third case brought against Otsego County was settled. The District Court in
granting a preliminary injunction found that (1) the county board could be sued because
of its role in selecting poll sites, and (2) compliance with federal and state building

9
requirements for accessibility must be implemented by counties to the extent “feasible.”

Poll site accessibility requirements under state law now harmonize with federal
requirements. As a matter of state law, poll sites must be accessible and “comply with
the accessibility guidelines of the Americans with Disabilities Act of 1990,” and local
boards are required to assess and certify compliance (Election Law 4-104 § [1-a]; 9
NYCRR Part 6206).

Write-In Voting

A write-in vote is a vote that is written in and cast for a person whose name does
not otherwise appear on the ballot (Election Law § 1-104 [20]). The ability to cast a write-
in vote is required when there is a contested primary election for public office or party
position (Election Law §7-106 [9]).

A voter need not write in the first and last name of a candidate in every situation.
The standard is whether the election inspectors can reasonably determine the intent of
the voter (Rosenblum v Tallman Fire Dist, 117 AD3d 1064 [2d Dept 2014]; Guilianelle v
Conway, 265 AD2d 594 [3d Dept 1999]).

In 2023 the law changed to provide that a write-in ballot shall be counted for any
person for any office whose name appears on the ballot as a nominated or designated
candidate for the office or position in question (Election Law §8-308 [2]; See Chapter 474
of the Laws of 2023.

In a primary election, no write-in vote may be counted for a candidate who is not
enrolled in the party whose nomination is being determined at the primary. A write-in
ballot cast in a party primary resulting from the filing of a valid opportunity to ballot (OTB)
petition for a candidate not enrolled in such party is void and should not be counted.
Election Law § 8-308; Kowal v. Mohr, 216 A.D.3d 1472, 188 N.Y.S.3d 845 (4th
Department 2023).

Absentee Voter

Mere proof that an absentee ballot voter is in the county on the day of the election
is not sufficient to void the ballot. A challenger must show the voter did not have a “good-
faith belief” that they would be absent from the county on Election Day (Sherwood v
Albany County Board of Elections, 265 AD2d 667 [3d Dept 1999]). Failure to complete
the information required for the absentee ballot will void the ballot (Carney v Davignon,
289 AD2d 1096 [4th Dept 2001] citing Election Law § 8-302 [3] [e] [ii]; Kolb v Casella, 270
AD2d 964 lv denied 94 NY2d 764). Residents of Puerto Rico are not entitled to absentee

10
ballots to vote for the office of President of the United States (Romeu v Cohen, 265 F3d
118 [2d Cir 2001]).

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POST ELECTION

Review of Ballot Envelopes and Ballots

Canvass Process

In 2022, the canvassing process provided for by Election Law § 9-209 changed.
The Third Department in Amedure v State of New York (210 AD3d 1134 [2022]) described
the new law as follows:

Due to a notable increase in the number of absentee ballots

requested and returned in the 2020 general election as a
result of the COVID-19 pandemic, there were significant
delays in reporting the results in many races (see Senate
Introducer's Memo in Support, Bill Jacket, L 2021, ch 763).
In response to this, the Legislature amended Election Law §
9-209 in order to change, as relevant here, the process of
canvassing absentee ballots "in order to obtain the results of
an election in a more expedited manner and to [en]sure that
every valid vote by a qualified voter is counted" (Senate
Introducer's Mem in Support, Bill Jacket, L 2021, ch 763 at
7). Prior to the amendments, Election Law § 9-209 required
that the casting and canvassing of absentee ballots take
place "no more than [14] days after a general or special
election" (Election Law former § 9-209[1][a]). Under the
amended statute, absentee ballots received by the Board of
Elections prior to Election Day are reviewed by a set of poll
clerks within four days of receipt of the ballot and ballots
received on or after Election Day are reviewed within one day
of receipt (see Election Law § 9-209.

“The amendments also provided a new, more streamlined

process of canvassing absentee ballots (see Election Law §
9-209 et seq.). Under this process, after an initial inspection
of the ballot envelope is undertaken—to determine whether
there is a name on the ballot envelope and, if so, whether the
name is that of a registered voter, and that the ballot was
timely received and properly sealed (see Election Law § 9-
209[2][a])— the ballot is thereafter presumed valid unless
both poll clerks object to its validity (see Election Law § 9-
209[2][g]; [3][e]).If presumed valid at that point, the ballots

12
 shall be prepared for counting, meaning that "the ballot
envelope shall be opened, the ballot or ballots withdrawn,
unfolded, stacked face down and deposited in a secure ballot
box or envelope" (Election Law § 9-209[2][d]). Pursuant to
Election Law § 9-209(6)(b), beginning on the day before the
first day of early voting, all valid ballots shall be placed in the
counting machine and scanned.”

The Amedure matter was dismissed, but the matter’s dismissal rested on laches
(timeliness) as opposed to the underlying merits. The matter has since been refiled and
litigation remains ongoing.

The election law did not allow candidates to bring a post election action to strike
absentee ballots of voters alleged not to be residents, as “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).” Hughes
v. Delaware Cnty . Bd. of Elections, 217 A.D.3d 1250, 191 N.Y.S.3d 825 (3rd Dep’t 2023).

Ballot Envelopes and Cures

Ballot envelopes to which a cure applies must be sent a cure notice even if curable
defect comes to light at time of canvass (Tenney v Oswego County Board of Elections,
2020 NY Slip Op. 34388). Cure affirmations must be filed timely, and the records of the
board must document that timeliness. “Where the timeliness of a ballot or cure affirmation
cannot be determined on its face or from other records of the Board, then it is invalid.”
Chapter 474 of the laws of 2023 now require a cure affirmation to be “received by” the
Board of Elections within certain timeframes in order for such cure to be valid.

“[Because individuals’ signatures often vary over time and for a variety of reasons,
[objection to signature] will only be sustained if the signatures are ‘substantially different’
from those in the Boards’ records.” (Id). Ballots may not be counted where the signature
on the envelope is “substantially different” from the signature on the voter’s registration
card, or the voter failed to sufficiently fill out the affidavit ballot envelope (Kolb v Casella,
270 AD2d 964 [4th Dept 2000], citing Hosley v Valder, 160 AD2d 1094 [3d Dept 1990];
Matter of Kelley v Lynaugh, 112 AD3d 862 [2d Dept 2013]).

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 Improperly sealed ballots

“When a Candidate is objecting to the sealing of an envelope (tape, sticker or

unstuck glue) there must be evidence presented that those ballots were not properly
sealed when submitted by the voters on election day. Absent such proof, those
challenges will be rejected…see also Ruffo, 61 AD2d at 848 [affirming special term's
finding of fact that ballots were torn or folded by officials, not voters]). Moreover, an
individual cannot be found to have not substantially complied with the law during a
pandemic because she rightly feared removing her protective facemask in a public polling
place and avoided licking an envelope handed to her by a stranger.” (id). In 2023 the law
related to the sealing of ballot envelopes changed. Under current law, ballot envelopes
are not invalid and do not require a cure if the ballot envelope is sealed using tape, paste
or any other binding agent or device and there is no indication of tampering. See Chapter
472 of the Laws of 2023.

Cast Ballots

Ballots where voters intentionally marked outside the voting square have been
found invalid (Kolb v Casella, 270 AD2d 964 [4th Dept 2000]; Boudreau v Catanise, 737
N.Y.S. 2d 469 [4th Dept 2002], citing, Election Law § 9-112 [1], Pavlic v Haley, 20 AD2d
592, aff’d 13 NY2d 1111).

When there are written words intentionally placed on the ballot by the voter, it has
been held the entire ballot is void (Johnson v Martins, 79 AD3d 913, 921-922 [2d Dept
2010]; Matter of Scanlon v Savago, 160 AD2d 1162, 1163 [3d Dept 1990]).

A court’s analysis of markings on ballots is very fact-specific and contextual.

Recently the Second and Third Departments of the Appellate Division 1 reached different
conclusions regarding words written on the ballot by a voter to clarify the voter’s
selections. The following three cases summarize much of the law on ballot markings and
demonstrate two very different approaches leading to different conclusions.

In Young v Fruci (112 AD3d 1138 [3d Dept 2013]) the Court held:

Pursuant to Election Law § 9-112 (1), “[t]he whole ballot is void

if the voter . . . (d) makes any mark thereon other than a cross
X mark or a check V mark in a voting square, or filling in the

1Because of the significant differences in the recent appellate division holdings it is important to note: The
Young case is the controlling law in the counties of the Third Department, and the case law in the Fourth
Department (i.e. Kolb v Casella) mirrors Young. The Tallman and Kelley case apply in the Second
Department. A chart of which counties are included in which Department is on page 58.

14
 voting square, or (e) writes, other than in the space provided,
a name for the purpose of voting.” While “‘inadvertent marks
on a ballot do not render a ballot void in whole or in part[,]’
extraneous marks that could serve to distinguish the ballot or
identify the voter” render the entire ballot invalid (Matter of
Brilliant v Gamache, 25 AD3d 605, 606-607 [2006], lv denied
6 NY3d 783 [2006], quoting Matter of Mondello v Nassau
County Bd. of Elections, 6 AD3d 18, 24 [2004]). Thus, where
the challenged marks on a ballot constitute written words,
deliberately placed on the ballot by the voter, the entire ballot
is rendered void because those markings “could distinguish
the ballot from others cast and consequently mark the ballot
for identification” (Matter of Mondello v Nassau County Bd. of
Elections, 6 AD3d at 25; see Matter of Johnson v Martins, 79
AD3d 913, 921-922 [2010], aff’d 15 NY3d 584 [2010]; Matter
of Scanlon v Savago, 160 AD2d 1162, 1162-1163 [1990]).
Here, on the absentee ballot marked exhibit No. 1, in the box
for “Proposal Number Four,” the apparent “Yes” vote was
crossed out and the words “No vote” were written below the
box, along with letters that appear to be initials. Similarly, on
the absentee ballot marked exhibit No. 2, in the box for
“Proposal Number Five,” there is a horizontal line drawn
through both the “Yes” and “No” boxes with the words “NO
VOTE” handwritten next to the boxes. Thus, as Supreme
Court correctly determined, the “written words deliberately
placed on the ballot by the voter[s] render the entire ballot[s]
invalid” [emphasis added].

In Rosenblum v Tallman Fire Dist, (117 AD3d 1064 [2d Dept 2014]) the Court,
citing to 9 NYCRR Subtitle V, Part 6210.13, in the context of a fire district election, focused
on voter intent:

Although the voter used a mark next to each candidate’s

names, he or she clearly indicated his or her choice, including
by writing the words “no” next to petitioner’s name and “yes”
next to [other candidate’s name]…Since the voter clearly
indicated his or her selection, the fact that his or her use of
multiple marks did not strictly comport with the ballot
instructions did not render the ballot invalid.

15
 Tallman cites Matter of Kelley v Lynaugh (112 AD3d 862 [2013]) decided a year
earlier in which the Second Department outlined its analysis of ballot markings, generally:

“A vote for any candidate or ballot measure shall not be

rejected solely because the voter failed to follow instructions
for marking the ballot. . . . A mark is considered valid when it
is clear that it represents the voter's choice and is the
technique consistently used by the voter to indicate his or her
selections” (9 NYCRR 6210.13 [a] [2], [3]; see Matter of
Stewart v Chautauqua County Bd. of Elections, 14 NY3d 139,
149 [2010]; Matter of Mondello v Nassau County Bd. of
Elections, 6 AD3d 18, 23-24 [2004])...Supreme Court did not
err in determining that the inconsistent and extraneous
markings on the absentee ballot designated as exhibit 8
rendered it impossible to determine the voter's intent (see 9
NYCRR 6210.13 [a] [2], [3]; Matter of Stewart v Chautauqua
County Bd. of Elections, 14 NY3d at 149; cf. Matter of
Mondello v Nassau County Bd. of Elections, 6 AD3d at 24).
… Based on these same principles, the court properly
determined that the absentee ballots designated as exhibits
12, 13, 14, and 22 were valid because the markings used by
each voter clearly and consistently indicated his or her choice
on the ballot…However, the Supreme Court erred in
determining that the absentee ballots designated as exhibits
19, 20, 21, and 23, and the affidavit ballot designated as
exhibit 24, were invalid. Although the markings on these
ballots did not strictly comport with the instructions for marking
the ballot, they clearly represented each voter's choice (see
Matter of Stewart v Chautauqua County Bd. of Elections, 14
NY3d at 149).

As to extraneous marks, the Tenney court offered the following summary of the law:

“[U]nintentional, accidental or inadvertent marks, spills or

stains anywhere on a ballot do not render that ballot void,
either in whole or in part…Irregular voting marks, such as
bubbles with checks or slashes within them, do not render a
ballot void, either in whole or in part…[w]here there is an
erasure mark in a box for a candidate in a particular race on a
ballot, the votes in that race will be void, but the votes in all
other races on the ballot are valid…Similarly where the name

16
 of a candidate is crossed-out in one race, the votes in that
race will be void, but the votes in all other races on the ballot
will be valid…Where there are two votes for two different
candidates in the same race—an overvote—the votes in that
race are void, but the votes in all other races are valid. Where
there are two votes for the same candidate on two different
party lines in one race—a double-vote—the ballot is not void,
in whole or in part; however only the top vote may be counted.
Likewise, where there are two votes for the same candidate,
one on a party line and one as a write-in, the ballot is not void,
in whole or in part; however, only the party line vote may be
counted. Finally, any markings on a ballot other than voting
marks or the name of a write-in candidate that were
intentionally made in order to distinguish that ballot and made
it identifiable after it was canvassed, such as words or initials,
render the entire ballot void.”

(Tenney v Oswego County Board of Elections, 2020 NY Slip Op. 34388).

As to writings or other extrinsic materials included within the returned ballot, if

extrinsic materials are folded into the ballot within the inner envelope, the ballot is to be
voided. If the writing or materials are contained in the outer ballot envelope but not folded
in the ballots, the materials do not invalidate the ballot. Multiple ballots in the envelope,
void the ballots (unless they are “parts” of the same ballot, presumably). However,
writings or materials in the envelope that were provide by the board of elections (i.e.
instructions returned by the voter) will not void the ballot. (Id).

Inactive Voters

In Common Cause/New York v New York State Board of Elections, the Court
issued an order requiring that a list of inactive voters be provided to poll workers at each
election district (17-CV-6770 (AJN), 2020 WL 122589 [SDNY Jan. 10, 2020]). As such,
a list of inactive voters in the election district must be at the poll site. The Court upheld
the requirement that inactive voters must vote either by a court order or via an affidavit
ballot.

Affidavit Voting

Affidavit ballots must be provided to voters who assert they live in the election
district and who claim to be entitled to vote (Election Law Section 8-302 (3) (e) and 52
U.S.C. § 21082).

17
 Affidavit ballots cast by voters at the wrong election district but within any poll site
in the voter’s correct county and Assembly District are valid for any office or position the
affidavit voter was eligible to vote. Conversely, affidavit ballots cast at the wrong poll site
that is not within the voter’s county and Assembly district cannot be counted (Panio v
Sunderland, 4 NY3d 123 [2005]). The “correct” poll site is determined based on the voter’s
address stated on the affidavit envelope. A previously registered voter may transfer their
address by affidavit ballot, and if otherwise valid, the ballot is counted entirely or in accord
with the “poll site/county/Assembly District” rule (Election Law § 9-209 (7) (b).

“In 2019, the Legislature added Election Law§ 9-209(2)(a)(v), which directs the
Boards of Elections to cast and canvass absentee, affidavit and other paper ballots
whenever a voter has "substantially complied" with the provisions of the Election Law.
Substantial compliance, as the Legislature directed in a 2020 amendment to Election
Law§ 9-209(2)(a)(v), excuses voter errors in filling out their affidavit ballot envelope, so
long as the Board is able to "determine the voter's eligibility based on the statement of
the affiant or records of the board" (Election Law § 9-209[2][a][vi]). This means that where
an affidavit ballot envelope contains a signed oath and sufficient information to identify
the voter's name and current address (to ensure the voter was in the correct polling
place), the voter has substantially complied with the law and her ballot must be cast and
canvassed (Election Law§§ 8-302[3][e][ii], 9-209[2][a][vi])”. (Tenney v Oswego County
Board of Elections, 2020 NY Slip Op. 34388).

“[A]affidavit ballots are a critical component of New York State’s electoral process,
serving to safeguard every citizen’s right to vote and a necessary check on systemic
administrative mistakes. Indeed, this constitutionally mandated voting option must be
meaningfully presented to all purportedly inactive voters on election day, along with the
option to seek a court order.” (Tenney v Oswego County Board of Elections, 2020 NY
Slip Op. 34388).

An affidavit ballot from a voter that timely filed a voter registration form that was
delivered to a board of elections but was not processed due to board of elections inaction,
should be counted. “[U]nder the plain and unambiguous language of the Election Law §
5-210(9), a "voter's registration and enrollment shall be complete upon receipt of the
application by the appropriate county board of elections" (see also Election Law§ 5-
210[5][c] [requiring all voter registration application forms to contain a notice advising the
applicant that her "registration and enrollment is not complete until the form is received
by the appropriate county board of elections"]). In other words, as a matter of law, a
qualified individual is "registered" to vote under the Election Law as soon as her
completed voter registration application is timely received by the proper Board of
Elections.” (Id).

18
 In contrast, affidavit ballots cast by purged voters are ballots from persons who are
not registered to vote and should not be counted. “Regardless of the reason for an
individual's purge, however - and even if a voter was erroneously purged - this Court has
no authority to restore her to registered status in a proceeding brought by a candidate
under Election Law§ 16-106 (Mondello v Nassau County Bd. of Elections, 6 AD3d 18 [2d
Dept 2004]; Johnson v Martins, 30 Misc 3d 844, 847 [Sup Ct Nassau Cty 2010]). An
individual's registration status can only be changed by a Court in a special proceeding
brought by the individual herself pursuant to Election Law§ 16-108. Although this rule may
at times be unfair (see e.g. Common Cause New York v Bd. of Elections in the City of
New York, 16-cv-6122), this Court has no jurisdiction to reregister purged voters in this
proceeding (Gross, 3 NY2d at 260). Accordingly, the 85 individuals in New York's 22nd
Congressional District who were identified in the NYSVoter database as "purged" are not
eligible to vote, and their ballots will not be cast or counted.” (Tenney v Oswego County
Board of Elections, 2021 NY Slip Op. 21018).

Abandoned / Non-machine Processable Optical Scan Ballots

In Stewart v Chautauqua County Board of Elections (14 NY3d 139 [2010]) the
Court of Appeals distinguished abandoned ballots (which are not to be counted) and
ballots that voters intended to have counted but were un-readable by the scanner (which
are to be counted):

We agree with the Appellate Division that the Board of Elections properly
hand-counted the two unscanned optical scan ballots. The applicable
regulation, which “appl[ies] in determining whether a ballot has been
properly voted and whether a vote should be counted,” provides: “If a voter
leaves the voting machine or system without casting their ballot, a bipartisan
team of election inspectors shall cause the ballot to be cast as the voter left
it, without examining the ballot” (9 NYCRR 6210.13 [A][11][a]). If the voter
leaves a ballot “in a privacy booth” without casting the ballot, the ballot is
spoiled (9 NYCRR 6210.13 [A][11][b]). But, if a ballot is “non-machine
processable as submitted by the voter, [it] shall be manually counted by a
bipartisan team of election inspectors and such vote totals shall be added
to the canvass” (9 NYCRR 6210.13 [A][8]).

(Stewart at 148)

In reaching its decision, the Court specifically cited and applied several provisions
of State Board regulation 9 NYCRR § 6210.13.

19
 Audit Provisions

As a matter of law, following an election county boards of elections must conduct

an audit of 3% of all voting machines, including any central count ballot scanners, utilized
(NYCRR § 6210.18[c][1-3]).

Following the general election of 2010, Nassau County was required to audit 32
machines, 7 of them from the Seventh Senate District. Three types of errors were found:
(1) less ballots in the ballot box than reflected on the machine tape; (2) more ballots found
in the ballot box than reflected on the machine tape, and (3) an undervote on the machine
that was not detected by the visual audit.

The Democratic Commissioner found these findings to be unresolved

discrepancies calling for an escalation of the audit, while the Republican Commissioner
found reasons why these findings could have occurred and did not agree to an escalation
or full manual count. A court case ensued. In Johnson v Martins (30 Misc3d 844 [Sup Ct,
Nassau County 2010]) the Court heard arguments on the discrepancies and held “the
term ‘reconcilable’ means that there is a clear and logical explanation/reason why the
‘discrepancy’ occurred” (Id. at 852). Based upon this statutory interpretation, the Court
found that the discrepancies were resolvable and there was “insufficient basis to order a
manual audit of the voter verifiable records” (Id. at 855).

On appeal to the Appellate Division, appellants contended they met the statutory
showing necessary to permit the trial court to order an additional manual audit, and further
contended the trial court improperly considered factors promulgated by the state board of
elections, thus erroneously deciding not to direct a further manual audit. The Appellate
Division found the trial court “did not err, when in the exercise of its discretion, it utilized
factors enumerated by regulation which were material to its determination including
‘whether, when projected to a full audit, the discrepancies detected….might alter the
outcome of the contest’” and upheld the Supreme Court’s conclusion that an additional
manual audit was not warranted (Johnson v Martins, 79 AD3d 913, 918 [2d Dept 2010],
quoting 9 NYCRR 6210.18 [h] [7]).

From the Appellate Division, the case went to the Court of Appeals (15 NY3d 584),
which ruled:

In order for a denial of a manual audit under either subdivision

of Election Law §16-113 to be deemed an abuse of discretion
as a matter of law, the record must demonstrate the existence
of a material discrepancy likely to impact upon the result of

20
 the election, or flagrant irregularities in the election process.
The regulations recognize that some level of discrepancy is
inevitable. That mere fact begs the question as to the degree
of the discrepancy requiring a manual audit. The statute
allows Supreme Court to direct a manual audit where the
evidence shows a discrepancy indicating “a substantial
possibility” that the result of the election could change (see
Election Law § 16–113[2]). There is no such legal error where,
as here, the discrepancy rate is significantly below the margin
of victory, such that there is no substantial likelihood that the
result of the election would be altered by the conduct of a full
manual audit. Moreover, there is no evidence that the
discrepancies arose from any flagrant irregularity in the
election process. Therefore, on this record, this Court is
without the power to disturb the discretionary determination
below.

The County Boards of Elections have the authority to escalate the 3% audit on
their own initiative under Election Law § 9-211(3), if both Commissioners agree.

Manual Recount

A board of elections, or a bipartisan committee appointed by the board, shall

conduct a full manual recount of all ballots for a particular contest: (i) where the margin of
victory is twenty votes or less; or (ii) where the margin of victory is 0.5% or less; or (iii) in
a contest where one million or more ballots have been cast and the margin of victory is
less than 5,000 votes (Election Law § 9-208 (4) (a), effective January 1, 2021).

Review of Validity of Primary Election

The party seeking to challenge the validity of a primary election must establish the
“existence of irregularities ‘which are sufficiently large in number to establish the
probability’ that the result of the election was affected” (Thompson v Board of Election of
the County of Rockland, 287 AD2d 667 [2d Dept 2001]).

Review of Validity of General Election

The State Supreme Court is without jurisdiction to order a new election on a

challenge to the General Election results. Only the Attorney General can challenge the
results of a general election through a quo warranto action commenced pursuant to
Executive Law § 63-b (Delgado v Sunderland, 97 NY2d 420 [2002]). A federal

21
constitutional challenge to the validity of a General Election must be predicated on a
showing of an intentional act of the government that caused the election results to not
reflect the will of the voters. Unfortunate but unintended irregularities, even if outcome
changing, are insufficient basis for federal jurisdiction (Shannon v Jacobowitz, 394 F3d
90 [2d Cir 2005] [malfunctioning voting machine]).

The Supreme Court also lacks jurisdiction to conduct a canvass or determine a

winner before the Board of Elections has conducted its canvass (Testa v Ravitz, 84 NY2d
893 [1994]). However, where petitioners objected to the county board’s invalidation of
absentee ballots, the Court of Appeals held that the Supreme Court does have jurisdiction
and authority after the board’s canvass to direct a recanvass or correction of error (Alessio
v Carey, 10 NY3d 751 [2008]).

22
PETITIONS

This section highlights issues related to designating and independent petitions. It

is divided into sections covering the basic form of the petition, candidate related issues,
petition signer issues, subscribing witness issues and placement on the ballot. There are
also sections covering opportunity to ballot petitions and alterations.

Board of Elections Authority Regarding Petitions

Generally, the substantive authority of the board of elections over petition

challenges is limited to defects apparent on the face of the document and/or by reference
to the document under review and the board’s own records.

The Board of Elections, pursuant to Election Law § 6-154 [1] even without the filing
of objections “was free to hold that the designating petition, which lacked the necessary
number of signatures to support any of petitioners’ candidacies, was facially defective
and invalid in its entirety” (Matter of Sloan v Kellner, 120 AD3d 895 [3d Dept 2014]); Scavo
v Albany County Board of Elections, 131 AD3d 796 [3d Dept 2015] [holding board of
elections could rule on objection based on county charter residency requirement when
petition filed by candidate clearly indicated he did not obtain timely residency within the
district]).

In contrast, in a case challenging a petition designating judicial delegates and

alternates, the Third Department held that the board of elections “invalidated the petitions
out of a misguided interest in what the candidates might do at the [judicial] convention if
elected, a matter that plainly does ‘not appear [] upon the face of the petition[s]’ and is
beyond the Board’s power to review” (Matter of Conti v Clyne, 120 AD3d 884 [3d Dept
2014]).

The Board of Elections has procedural authority to adopt rules requiring an

objector to serve general objections upon each candidate whose petitions are the subject
of the objections (Matter of Zalocha v Donovan, 120 AD3d 994 [4th Dept 2014] [relying on
Election Law § 6-1549(2); 9 NYCRR 6204.1; Matter of Grancio v Coveney, 60 NY2d 608,
610]).

Form and Contents of Petitions

Petitions shall be in substantially the form set forth by the Election Law (Election
Law §§ 6-132 [1], 6-140). The test of compliance is whether the petition form contains the
required information. A slight rearrangement as to how the information is presented or an
insignificant deviation in the wording is not a fatal defect (Matter of Irvin v Sachs, 129

23
AD2d 827 [2d Dept 1987]).

Pre-printing the name of petition signers’ town on the signature line of a

designating petition form does not render the petition invalid (Collins v New York State
Board of Elections, 120 AD3d 882 [3d Dept 2014]).

Number of Signatures Needed

Election Law § 6-136 (designating petitions) and Election Law § 6-142

(independent nominating petitions) provide signature requirements for petitions.

The calculation of the number of signatures required for a particular office is

determined from the enrollment lists released immediately preceding the signature
gathering period, notwithstanding any subsequent reduction in the established number of
enrolled voters (Horwitz v Egan, 264 AD2d 454 [2d Dept 1999]).

The ballot access requirement of signatures from five percent of the relevant voter
group ordinarily does not violate constitutional rights (McMillan v New York City Board of
Elections, 234 F3d 1262 (2d Cir 2000), citing Prestia v O’Connor, 178 F3d 86, 87 [2d Cir
1999]).

The Fourth Department concluded in Vescera v Stewart (120 AD3d 990 [2014])
that citywide signature requirements apply to the office of “Member at Large of Common
Council” as opposed to the “all the voters of…a councilmanic district” signature
requirement.

Vescera also held the statutory provision preventing a smaller political subdivision
from having a larger signature requirement than a larger political subdivision of which the
smaller is a portion “has no application to public offices in political subdivisions for which
a specific provision exists elsewhere in the statute.” The court held:

Election Law § 6-136 (2) (j) provides that the number of

signatures required “[f]or any office to be filled by all the voters
of any political subdivision, except as herein otherwise
provided, contained within another political subdivision, [need]
not . . . exceed the number of signatures required for the larger
subdivision.” Petitioners therefore contend that their
designating petitions require only 500 signatures because the
City of Utica is wholly within a single assembly district (see
Election Law § 6-136 [2] [i]). We agree with the court,
however, that the phrase “except as herein otherwise

24
 provided” modifies “any political subdivision,” such that
section 6-136 (2) (j) has no application to public offices in
political subdivisions for which a specific provision exists
elsewhere in the statute (see generally Matter of Buffalo
Columbus Hosp. v Axelrod, 165 AD2d 605, 608 [1991]).
Because section 6-136 (2) I applies to citywide public offices
in the City of Utica, section 6-136 (2) (j) does not apply. The
applicable signature requirement is therefore the lesser of
1,000 or five percent of the number of enrolled Democrats in
the City of Utica. Here, the five percent figure, i.e., 708, is the
lesser number, and the court properly determined that the
designating petitions are invalid on the ground that they do not
contain at least 708 valid signatures.

(Vescera at 991)

Invalidity of a Single Signature

The invalidity of a single signature, or a number of signatures, in the absence of

fraud does not render the entire page invalid (Matter of Kent v Bass, 83 AD3d 898 [2d
Dept 1981], aff’d 54 NY2d 776 [1981]; DiSanzo v Addabo, 76 AD3d 665 [2d Dept, 2010]).

No Requirement that Signatures Be Sequential

There is no requirement that signatures on a designating or independent

nominating petition be in sequential date order (see Election Law § 6-134;Matter of Kent
v Bass, 83 AD2d 898 [2d Dept 1981]; Molloy v Scaringe, 153 AD2d 78 [3d Dept. 1989]).

Cover Sheets

If a petition required a cover sheet under Election Law § 6-134 and 9 NYCRR §
6215.1 and none was filed, the failure to have filed a cover sheet during the filing period
is not curable under 9 NYCRR § 6215.7 (Matter of Armwood v McCloy, 109 AD3d 558
[2d Dept 2013], lv denied 21 NY3d 861 [2013]). The Court of Appeals has held that filing
a cover sheet is a strict requirement under the Election Law, and that failure to do so is
a fatal defect. (Seawright v Bd. Of Elections in City of New York, 35 NY 3d 227 [2020].

If a cover sheet is filed with the petition, and if there is substantial compliance and
no evidence of confusion to either the voters or the board of elections, there is no basis
to invalidate petitions for failure to comply with petition cover sheet requirements (Siems
v Lite, 307 AD2d 1016 [2d Dept 2003]; see also Magelaner v Park, 32 AD3d 487 [2d
Dept 2006). Cover sheet requirements are set forth in Election Law § 6-134, which
delegates to the State Board of Elections the duty of promulgating regulations on cover

25
sheets. The State Board has promulgated those regulations at 9 NYCRR § 6215. A
board of elections must review the petitions within two business days to determine
compliance with the cover sheet requirements (Id. At § 6215.7[a]). A candidate must be
notified (id. At § 6215.7[b]) and given the opportunity to cure any defects in a cover sheet
within three business days (Id. At § 6215.7[d]; Pearse v New York City Board of
Elections, 10 AD3d 461 [1st Dept 2004]).

In Saunders v Egriu, a candidate filed a three-volume designating petition; one

volume was related to being designated as a candidate for the Libertarian Party, and the
other two volumes were related to being designated as a candidate for the Democratic
Party. (Saunders v Egriu, 183 AD3d 1292 [4th Dept 2020], lv to appeal denied, 35 NY
905 [2020]). The candidate attempted to amend his cover sheets during the cure period
but after the filing period in an attempt to split up the designating petition volumes,
making one volume a separate designating petition for the Libertarian Party, and the
other two volumes a separate designating petition for the Democratic Party. The Court
found that the candidate could not amend the cover sheets after the filing period to create
separate petitions. The court reasoned that the cover sheets may confuse potential
objectors who may rely on the first cover sheet, which stated the designating petition
was just for the Libertarian Party designation.

Even if never cured, minor cover sheet problems are often considered
unsubstantial and not fatal. For example, an error in the spelling of a candidate’s name
on a cover sheet even when not timely cured was deemed not fatal to the petition absent
evidence of fraud or deception. (Terranova v Board of Elections in City of New York, NY
Slip Op 50509 [Supt Ct May 4, 2020]).

Page Numbers

The pages of a petition shall be numbered (Election Law § 6-134 [2]). While the
failure to number the sheets of a petition will invalidate the petition (Braxton v Mahoney,
63 NY2d 691 [1984]), this defect is curable (Matter of Zulauf v Martin, 131 AD3d 656 [2d
Dept 2015]; Election Law § 6-134 [2]; 9 NYCRR § 6215.7 [d]).

Prior to 2015, there was a split in the appellate divisions. The Second Department
held in 1997 that no cure was permitted for a failure to number pages, and the
longstanding rule of strict compliance with the page numbering requirement was upheld
(Jaffe v Visconti, 242 AD2d 345 [2d Dept 1997], lv denied 90 NY2d 805 [1997]). In
contrast, the Third and Fourth Departments took the opposite view. “The three-day cure
provision for designating petitions is available for technical violations of the regulations,
including the omission of page numbers” (May v Daly, 254 AD2d 688 [4th Dept 1998], lv
denied 92 NY2d 806 [1998]). The Third Department citing the May decision of the Fourth
Department allowed the three-day cure provision of the election law to apply even when
the page numbers were omitted (Bonnett v Miner, 275 AD2d 585 [3d Dept 2000]). In
Zulauf, the Second Department recast its holding in Jaffe and now aligns to the Third and

26
Fourth Department holdings (Zulauf at 656 [holding “[t]he addition of the three-day cure
provision as part of the Ballot Access Law of 1996…has enabled candidates to correct
technical errors, including the omission of page numbers” within the applicable period]).

Preamble

Date of election on petition must be stated accurately and correctly (Sternberg v

Hill, 269 AD2d 730 [3d Dept 2000]; Purtell v Kuczek, 129 Misc2d 166 [Sup Ct Montgomery
County 1985] aff’d 112 AD2d 1092; O’Connor v Salerno, 105 AD2d 487 [3d Dept 1984];
Petroffski v Carinci, 2021 NY Slip Op 31401 [Sup Ct Madison April 19, 2021]).

Committee to Fill Vacancies

The failure to list a committee to fill vacancies shall not be a fatal defect (Election
Law § 6-134 [8]). However, if a vacancy occurs which may be filled by a committee on
vacancies and no committee is listed, the petition fails and the vacancy cannot be filled
(Election Law § 6-134 [8)]; Tinari v Berger, 196 AD2d 798 [2d Dept 1993], lv denied 82
NY2d 656 [1993]).

Petition listing different committees to fill vacancies will not invalidate the petition
when no vacancy has occurred (Pascazi v New York State Board of Elections, 207 AD2d
650 [3d Dept 1994], lv denied 84 NY2d 802 [1994]). However, if a vacancy occurs, there
is no committee to act. A petition which names a committee on vacancies is not invalid
because of the disqualification of one of the members of the committee on vacancies
(Brennan v Power, 307 NY 818 [1954]). But if it only has one eligible member, it is the
functional equivalent of no committee (Markel v Smolinski, 89 AD2d 1052 [4th Dept1982],
aff’d 57 NY2d 743 [1982]; see also Hensley v Efman, 192 Misc2d 782 [Sup Ct Nassau
County 2002] [death of one of the three members of vacancy committee, prior to the filing
of the petition invalidated the actions of the remaining members of the committee in filling
a vacancy in a nomination]).

A candidate may be a member of the committee on vacancies (Brandshaft v

Coveney, 96 AD2d 914 [2d Dept 1983]).

Committee on vacancies may fill a vacancy created by the post- primary

declination of an independent candidate by filing documents as soon as practicable as
provided in Election Law § 6-158 [13]; Cipolla v Golisano, 84 NY2d 450 [1994]).

27
Candidate on Petition

Qualifications for Office

Boards must assume that the candidate meets constitutional and statutory
qualification requirements. Application of Lindgren, 232 NY 59 (1921). Nomination of a
candidate who is constitutionally and statutorily ineligible to serve is a nullity (Brayman v
Stevens, 54 Misc2d 974 [Sup Ct Dutchess County 1967] aff’d 28 AD2d 1095; Election
Law § 6-122). A candidate for City Council who does not meet the one year residency
requirement in the new district, even in a redistricting year, is ineligible for the office and
his/her petition may be invalidated by the county board (Matter of Adamczyk v Mohr, 87
AD3d 833 [4th Dept 2011]; see also Matter of Walsh v Katz, 17 NY3d 336 [2011]; Matter
of Revera v Erie County Bd. Of Elections, 164 AD2d 976 [4th Dept 1990], lv denied 76
NY2d 705 [1990]; Reid v Richards, 89 AD2d 939 [1st Dept 1982]). Because the law of
residency for voters and candidates is substantially the same, see section on Residency
herein.

Running for Judicial Office

County Boards facing inquiries re: qualifications for judicial office and restrictions
unique to judicial campaigns would be wise to refer such issues to the Office of Court
Administration’s Judicial Campaign Ethics Center: http://ww2.nycourts.gov/ip/jcec.

Running for Two Offices

“It is well settled that one may not run for two public offices where one would be
precluded from holding both offices at the same time.” (Lawrence v Spelman, 264 AD2d
455 [2d Dept 1999] citing Burns v Wiltse, 303 NY 319 [1951]. This prohibition does not
preclude a candidate for judicial delegate from supporting the Supreme Court nomination
of a person presently running for another judicial office (Conti v Clyne, 120 AD3d 884 [3d
Dept 2014]). Also, a candidate running for one office who then owing to a later vacancy
is nominated for another office does not violate the rule against seeking incompatible
offices. (Philips v Suffolk County Bd of Elections, 21 AD 3d 509 [2nd Dept 2005]; Matter
of Scaringe v Green, 2021 NY Slip Op 21114 [Sup Ct Albany April 21, 2021]).

Over Designations

If the petition contains a greater number of candidates than there are offices to be
elected the entire petition is invalid (Election Law § 6-134 [3]). Such an over-designated
petition cannot be saved by having the extra candidates decline (Elgin v Smith, 10 AD3d 483
[4th Dept 2004]).

28
 Voter Registration of the Candidate

There is no requirement that a person must be registered to vote to be a candidate

for public office (Public Officers Law § 3).

Enrollment and Authorization of the Candidate

If the candidate for office is not enrolled in the political party whose nomination the
candidate seeks, such candidate must be authorized by such party to be the party’s
candidate—unless the candidate is running for judicial office, is nominated by caucus or
a party in its first year (Election Law § 6-120 [4]; Dorfman v Meisser, 56 Misc2d 890 [Sup
Ct Nassau County 1968], aff’d 30 AD2d 684, aff’d 22 NY2d 770). Failure to file the
required certificate of authorization and acceptance of a non-party member invalidates
the underlying designating petition (Maurer v Monescalchi, 264 AD2d 542 [3d Dept
1999]). There was no violation of a candidate’s constitutional rights when a party does
not file an authorization (Rider v Mohr, 2001 WL 1117157 [WDNY 2001] [unreported]).
Once a certificate of authorization is issued, there is no legal mechanism for a committee,
or chairperson, to withdraw the certificate of authorization. (Lupenko v. Epstein, Sup Ct,
Albany County, April 27, 2020, Hartman, D, Index No. 3452-20).

The certificate of authorization can be submitted such that the signature of the
secretary and presiding officer appear on two separate documents filed on two separate
dates (Farrell v Reid, 131 AD3d 628 [2d Dept 2015]).

Unlike petitions, authorizations and acceptances are not invalidated because they
fail to state the date of the election to which they relate because the statutory provisions
governing authorizations and acceptances do “not specifically prescribe that the date of
the primary election be specified in the certificate…” (Kowal v Bargnesi, 2021 NY Slip
Op 3014 [4th Dept May 11, 2021]).

Candidate's Identifying Information

Candidate must be identifiable from information provided. The law requires

candidate’s name, the specific office being sought, including district number if any, place
of residence, and post office address if not identical (Election Law §§ 6-132 (designating);
6-140 (independent); see also Ferris v Sadowski, 45 NY2d 815 [1978]).

Name

The name that a candidate uses on his or her petition is the name that will appear

29
on the ballot (Election Law § 7-102). A candidate may be put on the petition and ballot
under a name he or she has adopted in good faith and by which he or she is recognized
in the community (In re Steel, 186 Misc 98 (Sup Ct New York County 1946), aff’d 270 AD
806 [1946]). The use of a nickname such as “Tom” for Thomas, “Jack” for John may be
used on petition (Gumbs v Board of Elections, 143 AD2d 235 [2d Dept 1988]), lv denied
72 NY2d 805; see also Innamorato v Friscia, 2007 NY Misc Lexis 457 [Sup Ct Richmond
County] [“Manny” for Emanuel]); Eisenberg v Strasser, 100 NY2d 590 [2003] [“Tony
Eisenberg” for Anatoly Eyzenberg]). A candidate registered to vote as “Meherunnisa”
was permitted to use the name “Mary” on her petition having established “that she held
herself out both professionally and personally as ‘Mary’ and that no intent existed to
mislead signatories.” (Jobaida v Board of Elections in City of New York, Slip Op 50514
[NY Sup Ct May 4, 2020]). Atqiya Ahmed petitioned as “Mourmita” Ahmed, and the court
held the petition valid. (Ahmed v Board of Elections in the City of New York, 2020 NY
Slip Op 50515 [NY Sup Ct May 4, 2020].

When a candidate uses a form of their name that differs from their registration
name, they are advised to inform the board of elections by letter to avoid any difficulty
determining the candidate’s registration identify which determines acceptance (Election
Law 6-146) and authorization (Election Law 6-120) requirements.

While the law affords flexibility as to the candidate’s name, the law is rigid that a
“name” for ballot purposes does not include titles or descriptors. “In connection with the
designation of a candidate on official ballots, the word "name" as used in the Election Law
should be afforded its plain, ordinary and usual sense” (Lewis v New York State Bd. of
Elections, 254 AD2d 568 [3d Dept 1998] [citations omitted]). Characterizations and
designations before or after a candidate's name on an official ballot are generally
impermissible. (Id.) Misspelling of name of candidate is not fatal absent intent to mislead
(Harfmann v Sach, 138 AD2d 551 [2d Dept 1988]), lv denied 72 NY2d 810 [1988]). The
failure to include the appellation “Jr.” is no basis to invalidate the designating petition
where there is no showing of any confusion upon the voters as to the candidate’s identity
(Reagon v LeJune, 307 AD2d 1015 [2d Dept 2003]).

Residence and Address of Candidate

Each sheet of petition must properly state the place of residence (Winn v
Washington County Board of Elections, 196 AD2d 674 [3d Dept 1993], lv denied, 82 NY2d
654 [1993]). The address information must be sufficient to identify the candidate without
misleading or confusing the signatories to the petition (Eisenberg v Strasser, 307 AD2d
1053 [2d Dept 2003]). Candidate must reside at address shown on petition (Finneran v
Hayduk, 64 AD2d 937 [2d Dept 1978], aff’d. 45 NY2d 797 [1978]; Bastone v Cocco, 270
AD2d 950 [3d Dept 1996], lv denied 88 NY2d 971; Brigandi v Barasch, 144 AD2d 177 [3d

30
Dept 1988], lv denied 72 NY2d 810; see also Walkes v Farrakhan, 286 AD2d 464 [2d
Dept 2001]). While courts are forgiving of incorrect addresses where candidates move
proximate to petitioning (Matter of Ferris v Sadowski, 45 NY2d 815 [1978]), evidence
adduced at trial that a candidate moved from the address listed on his designating petition
months prior to the petition’s circulation resulted in petition’s invalidation (Matter of
Marchionda v Casella, 153 AD3d 1133 [4th Dept 2017]). The Appellate Division upheld
candidate’s residence stated on petition when the candidate was actively renovating the
property at the address on the petition and had signed a temporary lease elsewhere also
located in the district (Matter of McNiel v Martin, 172 AD3d 1940 [4th Dept 2019]). The
First Department has held that when a designating petition omits a candidate’s city, state,
and/or zip code, it is not fatal defect as it substantially complied with the Election Law.
(Merber v. Board of Elections, 172 A.D.3d 624 [1st Dep't 2019]). Notwithstanding the
Merber decision, candidates should ensure that their address on the petition is complete
and accurate.

Title of Office or Position

“It is settled that the name of the public office or party position sought must be
clearly set forth on the designating petition” (Bliss v Nobles, 297 AD2d 457, 457-458 [3d
Dept 2002] citing Election Law § 6-132 [1]; Dunlea v New York State Board of Elections,
275 AD2d 589, 590 [3d Dept 2000]; Parker v Savago, 143 AD2d 439, 441 [3d Dept 1988]).
“The name of the office set forth in a candidate’s designating petition may be described
in a variety of ways provided that the description thereof is specific enough . . .to preclude
any reasonable probability of confusing or deceiving the signers, voters or board of
elections” (Lozano v Scaringe, 253 AD2d 569 [3d Dept 1998]), lv denied 92 NY2d 806
[citations omitted]; see also Shaffer v Norris, 275 AD2d 881 [4th Dept 2000] and). Title of
office need not be exact but must be identifiable (Jacobson v Schermerhorn, 104 AD2d
534 [3d Dept 1984]); Denn v Mahoney, 64 AD2d 1007 [4th Dept 1978]). The petition as
a whole may be read to determine the town of the office sought (Cerreto v Sunderland,
307 AD2d 1004 [2d Dept 2003]). A description of an office has two components, the title
and the geographic territory covered by the office (Dunlea v New York State Board of
Elections, 275 AD2d 589 [3d Dept 2000]; see also Ighile v The Board of Elections in the
City of New York, 66 AD3d 899 [2d Dept 2009]). A description that only describes a
geographic region is generally insufficient (see Matter of Hayes v New York State Bd. of
Elections, 32 AD3d 660 [2006] [describing office as “127th Assembly District”]; Matter of
Bliss v Nobles, 297 AD2d 457, 458 [2002] [describing office as “Assembly District 115”];
Matter of Denn v Mahoney, 64 AD2d 1007, 1008 [1978] [describing office as “147
Assembly District”]). However, the description “New York State Assembly—122nd
District” was ruled to be sufficiently informative for a candidate seeking the office of
Assemblymember in the 122nd district as the term “New York State Assembly” adequately
describes the office, and 122nd district describes the region (Hicks v Walsh, 76 AD3d 773

31
[3d Dept 2010]; see also Williams v Fisher, 183 AD3d 675 [2d Dept 2020] [holding that
the description “New York State Assembly, District 92” adequately describes the office of
New York State Assemblymember of the 92nd district]).

In Knpic v Burr, a Court held that an office description was sufficient when a
designating petition for a judicial delegate accurately reflected the office and geographic
location, but stated the wrong year (stating in the office description that the convention
was in 2016 instead of 2020), finding that the incorrect year in the office description would
be unlikely to cause confusion to the signers. (Index Np. 89223/2020 (Cattaraugus
Supreme Court, 2020)(petition invalidated on other grounds)).

Because the Town Law includes both town supervisor and member of the town
council in its definition of the “town board” (Town Law § 60 [1]), the Second Department
held the description of a public office as “Town Board, Town of East Hampton” was
insufficient as a matter of law because a signer would not know whether the candidate
was seeking position of member of town council or supervisor (Bragman v Larsen, 153
AD3d 813 [2d Dept 2017).

Despite courts being forgiving in this area, departing from the statutory language
on the petition presents peril—as the respondents learned in Matter of Roberta James v.
Westchester BOE, 53 Misc.3d 423 [Sup Ct, Westchester 2016]). In James a petition for
party committee did not include the phrase “or for election to a party position of such
party” in the preamble. Instead of using the heading “Public Office or Party Position”, the
petition erroneously stated only “Public Office.” The court invalidated the petition for party
office because it did not specify it was a petition for party office. The James court noted
the form failure gave rise to even more confusion because the petition also identified the
position sought as “District Leader” instead of “member of the county committee”, the
latter being the party office title provided in the rules of the party. Id.

When districts overlap, the petition must clearly identify which office is being
sought. “Because both a Member of the Assembly and a delegate to the judicial
convention are selected from the 127th Assembly District (Election Law § 6-124), simply
denoting the geographic territory without reference to the title of the public office or
position sought is not "'sufficiently informative . . . so as to preclude any reasonable
probability of confusing or deceiving the signers, voters or board of elections” (Hayes v
New York State Board of Elections, 32 AD3d 660 [3d Dept 2006] citing Matter of Dipple
v Devine, 218 AD2d 918, 918-919, [3d Dept 1995], lv denied 86 NY2d 704 [1995]; see
also Sears v Kimmel, 76 AD3d 1113 [3d Dept 2010]; Notholt v Nassau County Board of
Elections, 131 AD3d 641 [2d Dept 2015] [for member of county committee listing only
Assembly District and Election District number insufficient when more than one town in
the Assembly District had the same Election District numbers). However, when the

32
description of a petition for a Member of the Assembly was “Member of New York State
145th Assembly District”, the word “member” adequately described the position being
sought (Zacher v Ceretto, Sup Ct, Albany County, August 4, 2016, O’Connor, K, Index
No. 4355/16). Owing to no possibility of confusion, description of office as “15th District
Nassau County Legislature,” instead of the correct nomenclature “Legislator,” was found
sufficient (Matter of Fochtman v Coll, 153 AD3d 1214 [2d Dept 2017]).

For a party position divided by gender (i.e. Member of State Committee – Female
/ Male), the gender specification for the position must be expressly stated. The gender
of the particular position cannot be inferred from the name of the candidate (Mintz v Board
of Elections in City of New York, 32 NY3d 1054 [2018]).

Signer of Petition

The Election Law requires date, name of signer, residence, and town or city for
each signer (Election Law §§ 6-130, 6-132 [designating]); 6-138, 6-140 [independent];
see also, Berger v Acito, 64 AD2d 949 [3d Dept 1978], lv denied 45 NY2d 707 [1978]).
All required information must be provided in ink (In re. Bialis, 92 NYS2d 450 [County Ct,
Oneida County 1949] [otherwise fatal defect for that signature]). “Strict compliance with
Election Law § 6-130 is mandated, as its requirements constitute ‘a matter of substance
and not of form’ [internal citation omitted]” (Canary v New York State Board of Elections,
131 AD3d 792 [3d Dept 2015]).

Date

The signature on a petition must bear the date it was made (De Barardinis v
Sunderland, 277 AD2d 187 [2d Dept 2000]). The date is a matter of prescribed content,
strict compliance is required (Vassos v New York City Board of Elections, 286 AD2d 463
[2d Dept 2001]). Signatures dated after date of witness statement cannot be counted
(Velez v Nienes, 164 AD2d 931 [2d Dept 1990] [dated before witness valid]); McNulty v
NcNab, 96 AD2d 921 [2d Dept 1983] [dated after witness invalid]; Election Law §§ 6-130,
6-138(2); Nunley v Cohen, 258 AD 746 [2d Dept 1939]).

When the petition signature dates include the month and day, but not the year, the
signatures are invalid as they do not strictly conform to statute. (Avella v. Johnson, 142
AD3d 1111 [2d Dept 2016].) However, signatures that only have the month and day, but
not year, may be valid if the petition “sets forth at the top of each page the full date of the
primary election and it also includes at the bottom of each page the full date that the
subscribing witness or the notary public signed and authenticated the signatures.” (Id. at
1112; Matter of Struble v Chiavaroli, (71 AD2d 1047 [1979], aff’d 48 NY2d 613 [1979]).

33
 Name

A voter must place his or her signature on the petition. A printed name may
appear above or below the signature. Not including a printed name in addition to the
signature is not a fatal defect (Election Law § 6-134 [13]).

The form of the signature may be printed letters as opposed to cursive script.
(Controneo v Monroe County Board of Elections, 166 Misc2d 63 [Sup Ct Monroe County
1995]). However, a “signature” upon a petition that is printed will likely be invalid if the
signature exemplar on file with the board of election is not also in “printed” characters.

In LaMarca v. Quirk (110 AD3d 808 [2d Dept 2013]), the court held “printed”
signatures on a petition that did not match the registration signature were not valid absent
evidence from the signatories or from any of the subscribing witnesses attesting that the
individuals who signed the registration forms were the same individuals whose signatures
appeared on the petition. In Benson v. Eachus (Sup Ct, Albany County, August 12, 2016,
Weinstein, D., Index No. 4308/16), the court reasoned printed signatures that do not
match the registration signatures are invalid even if the signatory testified that she signed
the petition because Election Law § 6-134(5) requires that “(t)he use of titles, initials or
customary abbreviations of given names by the signers of, or witnesses to, designating
petitions or the use of customary abbreviations of addresses of such signers or witnesses,
shall not invalidate such signatures or witness statement provided that the identity of the
signer or witness as a registered voter can be established by reference to the signature
on the petition and that of a person whose name appears in the registration poll ledgers.”
(Id.).

A wife cannot sign as “Mrs. John Jones”. She must use her name. She can sign
as “Mrs. Mary Jones” (Lydan v Sullivan, 269 AD 942 [2d Dept 1945]).

Signatures which only include the first name are invalid where they do not match
the signatures in the poll ledgers (Fusco v Miele, 275 AD2d 426 [2d Dept 2000]).

A power of attorney cannot sign a petition for a voter, as the statute requires the
witness to attest that the signatory appeared before the witness and signed the petition
(see e.g. Fatata v Philips, 140 AD3d 1295 [3d Dept 2016]; see also Matter of Van Der
Water v Czarny, 153 AD3d 1555 [4th Dept 2017] [noting only invalid signature should be
stricken, not entire petition page, absent “hidden infirmity” designed to confuse or hinder
ascertainment of “identity, status and address” of a signatory].

34
 Residence

A residence address shall be set forth in a petition “by indicating each signer's
respective street address.” (Matter of Hayon v. Greenfield, 109 A.D.3d 920 [2d Dept
2013]). An apartment number is not a required component of a residence address in a
petition, (Hennessy v Bd. of Elections of County of Oneida, 175 AD3d 1777 [4th Dept
2019]; see also Matter of Tully v Ketover, 10 AD3d 436 [2d Dept 2004]).

Residence of the signer should be the signer’s residence at the time the signer
signs the petition (Dye v Callahan, 42 AD2d 916 [3d Dept 1973]). An address is
acceptable if it matches the address listed in the board’s registration list. Some latitude
should be given if the address does not match but it appears that it is one and the same
(Regan v Toole, 63 NY2d 681 [1984]). It is not fatal if address does not contain the hamlet
since the town is given (Grancio v Coveney, 60 NY2d 608 [1983]). Customary
abbreviations of addresses are acceptable (Election Law § 6-134 (15). There is an
opportunity to show post office address is correct (Election Law § 6-134 [12]). Where no
such proof is provided that the postal address and the residence address are one and the
same, the signatures are invalid (Ligammari v Norris, 275 AD2d 884 [4th Dept 2000]).

The residence address of the signatures on the designating petition is adequate

and does not warrant invalidation of the designating petition where "there has been
substantial compliance with the statutorily prescribed format" (Toporek v Beckwith, 32
AD3d 684 [4th Dept 2006], quoting Matter of Belak v Rossi, 96 AD2d 1011, 1012, lv
denied 60 NY2d 552). The Toporek Court went on further to say that “the Election Reform
Act of 1992, amending section 6-134 [2] of the Election Law . . . provides for liberal
construction of the residence address requirement" (Toporek at 685 citing Matter of
Regan v Starkweather, 186 AD2d 980, 981). Indeed, "where the information sought is
apparent on the face of the form and the defect cannot possibly confuse, hinder or delay
any attempt to ascertain or to determine the identity, status and address of the witnesses,
the defect is not such as to mandate invalidation of all signatures on each of the several
pages” (Toporek at 685, citing Matter of Weiss v Mahoney, 49 AD2d 796, 797).

When the stated address of the voter does not match the address on file with the
board of election, courts uphold the validity of the signature if the voter is registered to
vote in the county and the stated address is correct and in the correct jurisdiction for
signing the petition (Matter of Robeletto v Burch, 242 AD2d 397 [3d Dept 1997]; Bray v
Marsolais, 21 AD3d 1143 [3d Dept 2011]; Sheldon v Bjork, 142 A.D.3d 763 [4th Dept
2016]; Robleto v Gowda, 183 AD3d 673 [2d Dept 2020]). If the address on the petition
does not match the records of the board of elections, the burden may shift to the
proponent of the petition to show the address is valid through testimony or perhaps
affidavits (see e.g. Fall v Luthmann, 109 AD3d 540 [2d Dept 2013]).

35
 While the witness to a petition can fill in and subsequently correct the signer’s
address listed on a petition before filing, an inaccurate address on a petition is a fatal
defect that cannot be cured by testimony at a hearing (Canary v New York State Board
of Elections, 131 AD3d 792 [3d Dept 2015] [witness inserted incorrect street number];
Election Law § 6-134 [6]).

Town or City

Signers to petition must provide town or city, as required by statute (Stoppenbach

v Sweeney, 98 NY 2d 431 [2002], citing Matter of Frome v Board of Elections of Nassau
County, 57 NY2d 741, 742-743 [1982]; Matter of Tischler v Hikind, 98 AD3d 926 [2d Dept
2012]; Stark v Kelleher, 32 AD3d 663 [3d Dept 2006]; Matter of Ptak v Erie County Board
of Elections, 307 AD2d 1072 [4th Dept 2003]; but cf Matter of Giordano v Westchester
Board of Elections, 153 AD3d 821 [2d Dept 2017]). Name of village or hamlet is not
acceptable (Zobel v New York State Board of Elections, 254 AD2d 520 [3d Dept 1998];
Ptak v Erie County Board of Elections, 307AD2d 1072 [4th Dept 2003]). Signers do not
need to specify whether the municipality is a “town” or a “city” (Hinkley v Egan, 181 Misc2d
921 (Sup Ct Dutchess County 1995). Strict compliance with the town or city requirement
serves the purpose of facilitating the discovery of fraud and allows for rapid and efficient
verification of signatures within the short time frame the election law allows (Zobel v New
York State Bd. of Elections, 254 AD2d 520 [3d Dept1998]). If petition does not have a
separate column for a town but the column for the address has the name of the town, for
example, the address column is entitled “Town of Guilderland residence”, it is valid
because it contains all the required information (Sheehan v Aylward, 54 NY2d 934
[1981]).

There is no requirement that a signer list the hamlet or particular geographic area
within the town or city in which he or she resides (Gonzalez v Lavine, 32 AD3d 483 [2d
Dept 2006], citing Matter of Grancio v Coveney, 60 NY2d 608, 610-611; Matter of
Cheevers v Gates, 230 AD2d 948, 949. The Appellate Division held that the Supreme
Court improperly determined that five signatures were invalid because the signers either
omitted or incorrectly listed the hamlet within the town in which they reside. “Since the
signers provided all the information required by Election Law § 6-130, including their
correct street addresses and the towns in which they reside, their signatures were valid”
(Gonzalez at 483).

Town information can be preprinted on form of petition (Collins v New York State
Board of Elections, 120 AD3d 882 [3d Dept 2014]).

An erroneous or vague reference to a town cannot be corrected by testimony at a

36
hearing. “Supreme court properly concluded that...signature is invalid, despite the fact
that the correct town was established at the hearing” (Canary v New York State Board of
Elections, 131 AD3d 792 [3d Dept 2015] [signer of petition listed merely “village” as his
town]).

Signed Previous Petition

Signatures of persons who signed a previous designating, nominating or

opportunity to ballot petition for the same office are not valid (Election Law § 6-134 [3];
McNulty v McNab, 96 AD2d 921 [2d Dept 1983]; Angelo v Marino, 309 AD2d 743 [2d
Dept 2003]; DiCicco v Chemung County Board of Elections, 93 NY 2d 1008 [1999]).

If the prior signature at issue is on an invalid petition, the validity of the subsequent
signature depends on the type of petition at issue.

In Keenan v Chemung County Board of Elections, the Third Department held a

person’s “signing of two designating petitions for a single office rendered the later
signature on [a] designating petition not countable, regardless of the subsequent
invalidation of the first petition” (43 AD3d 623 [2007]). However, “[a] voter who previously
signed a designating petition which was subsequently invalidated is not barred from
signing an opportunity-to-ballot petition” (Jones v Cayuga County Board of Elections, 123
AD 2d 517 [4th Dept 1986]citing, Matter of Lobaito v. Molinaro, 45 A.D.2d 940; Matter of
Lawrence v. Board of Elections of Nassau County, 31 Misc.2d 330; cf. Matter of Simon v.
Power, 50 Misc.2d 761, rev’d. on other grounds 26 A.D.2d 531, rev’d. on other grounds
17 N.Y.2d 924; Matter of Gilmore v. Kugler, 21 A.D.2d 293; Matter of Stack v Harrington,
172 AD3d 1880 [3d Dept 2019] [upholding prior signature on opportunity to ballot petition
where such signature was after the invalidation of the designating petition]).

For independent nominating petitions, a voter’s prior signature on an invalid

petition does not preclude the voter later validly signing an independent nominating
petition (see Election Law § 6-138 [1] [providing rule for independent nominating petitions
that a signature “shall not be counted if the name of a person who has signed…appears
upon another valid and effective petition designating or nominating the same or a different
candidate for the same office” (Election Law § 6-138 [1]).

Independent Body Name

Election Law § 6-138 states that in naming a party use of words “American,”
“United States,”…”New York State”…or any abbreviation thereof is not permitted. In
Hanna v Arcuri the court dealt with the situation wherein a petition stating the name of the
party as “New York Moderates” was filed with the state board of elections. The state

37
board recognized the validity of the petition itself but notified the candidate that the party
name was going to be reflected as “Moderates” on the ballot. Petitioner claimed the state
board acted erroneously and that the entire petition should be declared invalid. The court
held that “no fraud was shown that would have required the invalidation of the petition
and the Board acted properly in changing the name.” In contrast, DiResto v Cornell (59
AD3d 643 [2d Dept 2009]) held “there is no authorization for a board of elections to grant
a candidate the opportunity to select a new name when, as here, the original name
selected for an independent body includes the name or part of a name of an existing
party” (See also Carey v Chiavaroli, 97 AD2d 981 [4th Dept 1983]).

Witness Statement

Residency of Witness Stated on Petition

A witness to a designating petition or an independent nominating petition must

generally be a registered voter residing in New York State or a notary public (Election
Law §§ 6-132 [designating petitions]; 6-140 [independent petitions]). A witness may be
a voter in active or inactive status (Matter of Bichotte v Adolphe, 120 AD3d 674 [2d Dept
2014]). The previous requirement in the Election Law that a subscribing witness must be
a resident of the political subdivision for which the petition is circulated was been ruled
unconstitutional (Lerman v Board of Elections in the City of New York, 232 F3d 135, 145
[2d Cir 2000] cert denied, 535 U.S. 915 [2000]; see also LaBrake v Dukes, 96 NY2d 913
[2001] [designating petitions]; Chou v New York State Board of Elections, 332 F Supp 2d
510 [EDNY 2004]; McGuire v Gamache, 5 NY3d 444 [2005] [independent nominating
petitions]).

In 2022 a preliminary injunction with statewide application ordered that

independent nominating petitions may be witnessed by out-of-state residents and non-
registered persons. Such witness must use an alternative form of the witness statement
published on the State Board’s website (“Requirements For Non-Resident or Non-
Registered Independent Nominating Petition Witnesses;” Schmidt v Kosinski, 1:22-cv-
02210 [EDNY 2022]).

The address of witness stated on a petition must be the current address of such
voter. The address on the “residence address” line must include the street name and
house number. The address required on the “residence address” line need not include
the municipality or postal zip code (Washburn v Kelsey, 45 Misc3d 1216 [Sup.Ct.
Dutchess Co. 2015]). Such address need not be the same as the record on file with the
board of elections in as much as change of address within the jurisdiction of a board of
elections does not change person’s status as a “duly qualified voter” (Bichotte v Adolphe,
120 AD3d 674 [2d Dept 2014]; Matter of Lee v Orange County Board of Elections, 164

38
AD3d 717 [2d Dept 2018]; Sheldon v Bjork, 142 AD3d 763 [4th Dept 2016]).

Sometimes a witness’s current address is not clear. A candidate completed the

witness statement on her petition stating her residence address as an apartment for which
she held a lease and into which she had moved furniture and personal items but into
which she had not been able to move because a certificate of occupancy delay pushed
back the beginning of the lease term. The court found the candidate did not make a
materially false statement on her petition (Vescera v Karp, 131 AD3d 1338 [4th Dept
2015]). The court noted the candidate had registered to vote from the would-be address,
changed her driver’s license address to the apartment address and even had her mail
forwarded there. The Fourth Department held “[a]lthough respondent had not yet moved
to the address at the time she witnessed the signatures, the record establishes that the
address was intended to be ‘that place where [she] maintains a fixed, permanent and
principal home’ (Election Law § 1-104[22]). ‘The determination of an individual’s
residence is dependent upon an individual’s expressed intent and conduct” (Vescera at
1339, quoting People v. O’Hara, 96 NY2d 378,384 [2001]).

A subscribing witness displaced from her residence who intended to return there
“once construction was completed” was held to have retained the voting residence. The
Court noted that the witness had not established a fixed residence elsewhere. (Matter of
Walfish v Brezler, 172 AD3d 1384 [2d Dept 2019])

In the Third and Fourth Department, unless the voter registration cancellation
procedures of the Election Law are followed prior to petition circulation, the signatures
collected by a subscribing witness who is registered to vote cannot be challenged on the
basis of the subscribing witnesses’ not residing at the address given. The decision of
the Board of Elections to register a person at a particular address constitutes
“presumptive evidence of [his] residence for voting purposes” (Election Law § 5-104 [2];
Matter of Hosley v Curry, 85 NY2d 447, 452 [1995]). “The Board's decision [to register]
may not be collaterally attacked in a proceeding to invalidate a designating petition.”
(Carney v Ward, 120 AD3d 995, 996 [4th Dept 2014]). In VanSavage v Jones the Third
Department reached the same conclusion. Signatures gathered by a witness are valid
even though the witness’s registration was subsequently cancelled on the grounds that
he did not live at the address and was a felon (VanSavage v Jones, 120 AD3d 887 [3d
Dept 2014]).

“Where an alleged impropriety ‘does not involve the substantive requirements of

witness eligibility[,]’ [i.e. that respondent is a duly qualified voter of the state and an
enrolled voter of the same political party as the voters qualifies to sign the petition] and
‘there is no implication of fraud, resort to strict construction should be avoided if it were to
lead to injustice in the electoral process or the public perception of it’ [internal citations

39
omitted]. We therefore conclude, contrary to petitioner’s contention, that strict
construction of Election Law § 6-132 [2] is not necessary with respect to respondent’s
specification of the address on the witness statement” (Vescera at 1339).

Party of Witness

The subscribing witness to a designating petition must be an enrolled member of

the party (Election Law § 6-132 [2]). The party enrollment of subscribing witness is a
substantive requirement (Hoshhauser v Grinblat, 307 AD2d 1007 [2d Dept 2003], citing
Staber v Fidler, 65 NY2d 529 [1985]) and the requirement has been held to be
constitutional in Maslow v Board of Elections (658 F3d 291 [2d Cir 2011]). A designating
petition’s witness statement must identify the enrollment of the witness. If it does not, the
sheet is invalid (Matter of Craig v Borrero, 172 AD3d 1944 [4th Dept 2019]).

Witness Identification Information

A witness need only provide town or city below signature and need not include
this information online in witness statement for witness address (Barrett v Brodsky, 196
AD2d 603 [2d Dept 1983], lv denied 82 NY2d 653 [1983]). A witness may have two
different addresses within the same petition provided that both were accurate when the
page was witnessed (McManus v Relin, 286 AD2d 855 [4th Dept 2001]).

Where a candidate who was a witness to a petition failed to complete the witness
identification information below the witness signature line (town or city and county) the
court found that since the petition already contained sufficient information at the top of the
sheet to identify the witness, “omission of redundant witness information was an
inconsequential violation of the statute” (Hurst v Board of Elections of Broome County,
265 AD2d 590 [3d Dept 1999], citing Matter of Pulver v Allen, 242 AD2d 398 [3d Dept
1997], lv denied 90 NY2d 805; see also Curley v Zacek, 22 AD3d 954 [3d Dept 2005]).

The Appellate Division has reiterated that where the witness/candidate failed to
provide their town or city of residence, “such an error is not a fatal defect, particularly
where the complete residence address of the subscribing witness appears elsewhere on
the same page of the petition (Arcuri v Hojnacki, 32 AD3d 658 [3d Dept 2006]).

It is important to note the difference in the “town or city” requirement for signers
of a petition compared to witnesses. The failure of a subscribing witness statement to
contain the town or city in the witness identification section is not always a fatal defect as
discussed above, but the failure to list the correct town or city on a signature line of a
petition is typically fatal to the signature (Matter of Stoppenbach v Sweeney (98 NY2d
431 [2002]).

40
 Completion of Witness Information

The failure of a subscribing witness to fill in all information on a witness statement

invalidates all signatures on that petition page (Sheldon v Sperber, 45 NY2d 788 [1978]),
but see Hoare v Davis, 207 AD2d 309 [1st Dept 1994] [court allowed incorrect address of
witness if no showing of deceit or fraud]; Pulver v Allen, 242 AD2d 398 [3d Dept 1997], lv
denied 90 NY2d 805 [1997]). The information may be filled in by someone else, but it
should be completed before the subscribing witness signs the witness statement or in the
presence of the witness (Election Law § 6-134 [9]). Information below the witness
signature may be filled in by someone other than the witness, before or after the witness
signs (Election Law §§ 6-132 [2] and 6-140 [1] [b]; see also Pulver v Allen, 242 AD2d 398
[3d Dept 1997], lv denied 90 NY2d 805 [1997]).

Number of Signatures

The law requires identification data including number of signatures on sheet

(Bernhardt v Sachs, 57 AD2d 598 [2d Dept 1977]). “Where [] there is no allegation of
fraud and there was substantial compliance with the provisions of the Election Law, the
inadvertent mistakes in the signature totals ’should not be the basis for the elimination of
the right to vie for public office’” (Matter of Rancourt v. Kennedy, 87 AD3d 654, 656-657
[2d Dept 2011], quoting Matter of Staber v Fidler, 110 AD2d 38, 39 [2d Dept 1985], aff’d
65 NY2d 529 [1985]; Election Law § 6–134 [10]; see also Matter of Ruggiero v Molinari,
112 AD2d 1071 [2d Dept 1985], aff’d 65 NY2d 968; Matter of Fox v Westchester County
Bd. of Elections, 112 AD2d 1063, 1064 [2d Dept 1985], aff’d 65 NY2d 971; Matter of Bland
v Board of Elections of City of N.Y., 112 AD2d 1053 [2d Dept 1985], aff’d 65 NY2d 962;
Matter of Brown v Sachs, 57 AD2d 583 [2d Dept 1977]; cf. Matter of Fromson v Lefever,
112 AD2d 1064, 1066 [2d Dept 1985], aff’d sub nom Matter of Barrett v Scaringe, 65
NY2d 946 [1985]).

If the number of signatures stated in witness statement is understated, count only

the number stated (Election Law § 6-134 [11]). When the number of signatures stated in
the witness statement is overstated “[a]bsent any allegation of fraud, the overstatement
of the signature totals on pages…was not such a gross irregularity as to warrant
invalidation” (VanSavage v Jones, 120 AD3d 887 [3d Dept 2014]).

In Rancourt v Kennedy (87 AD3d at 655-656), all of the petition sheets contained
a misstatement of the number of signatures as the preprinted sheets contained no line 6,
notwithstanding that each sheet contained an overstatement the Court upheld the validity
of the petition (See also Rancourt v Magilll, 87 AD3d 656 [2d Dept 2011]).

41
 If the number of signatures stated in witness statement is missing, the entire sheet
should be invalidated (Esse v Chiavaroli, 71 AD2d 1046 [4th Dept 1979]; Kepert v Tullo
88 AD3d 826 [2d Dept 2014]). This otherwise fatal error may be correctable during the
petition filing period. In Etkin v Thalmann (287 AD2d 775 [3d Dept 2001]) several pages
of a petition were filed without any number of signatures stated in the witness statement.
Before the end of the petition filing period, a statement from the subscribing witness was
filed along with a copy of the defective petition pages with the missing information filled
in on the copies. The Court held substantial compliance occurred during the time to file
petitions.

Previously Witnessing or Signing Petition

Serving as a witness to a petition does not preclude a witness from witnessing any
other petitions, even others for the same office – assuming the witness is otherwise
eligible. However, the rule is quite different when a witness has signed a petition for a
candidate. A person becomes ineligible to witness a petition “for another candidate for
the same office” once he or she signs a petition for a candidate (Election Law §§ 6-132
[2]; 6-140). This rule was clarified by amendments to the Election Law enacted in 2017
(Laws of 2017 c 106). The same person can also witness an independent nominating
petition for the same candidate for the same office.

Previous Participation in a Caucus

For town elections (Election Law §6-138 [1]), unlike village elections (Election Law
§ 6-208), there is no bar to a person participating in a caucus and also signing an
Independent Nominating Petition. In fact, the County Board of Elections would not have
a list of those who participated in the town caucus.

Signing and Dating

Witness statements must be signed and dated (Pabian v McNab, 9 Misc2d 995
(Sup Ct Suffolk County 1957), aff’d 4 AD2d 834 [2d Dept 1957], aff’d 3 NY2d 888 [1957];
Higby v Mahoney, 48 NY2d 15 [1979]). The omission of the date on subscribing witness
statement is fatal (McKay v Cochran, 264 AD2d 699 [2d Dept 1999], Klemann v Acito, 64
AD2d 952 [3d Dept 1978], aff’d 45 NY2d 796 [1978]). The execution of the Statement of
Witness on a date after the signatures were gathered is permissible so long as the petition
is otherwise properly witnessed and timely filed. (Matter of Velez v Nieves, 164 AD2d
931 [2d Dept 1990]; see also Parascando v Monheit, 183 AD3d 671 [2d Dept 2020]). An
inaccurate date in the witness statement can be fatal. In Stevens v. Collins (120 AD3d
696 [2nd Dept 2014]), the witness statement was dated “6-16-14” but the signatures on
the page were all dated in July. That discrepancy was fatal to the signatures even though

42
the notary witness testified that he simply placed the wrong date in the witness statement.
The notary’s testimony was not curative “inasmuch as the time to file petitions…as well
as the time to amend or correct such petitions, had expired by the time the hearing was
held” (Stevens, 120 AD3d at 697; see also Quinn v Erie County Board of Elections, 120
AD3d 992 [2d Dept 2014] [holding subscribing witness statement dated earlier than date
on signature lines invalidated signatures, but “petitioners could have filed…affidavit
attesting to his purported mistake on or before the last day provided by law for filing a
designating petition…”]).

Signature sheets that bore signature of both duly qualified voter witness and notary
witness were invalid. Smith v. Joseph, 79 Misc. 3d 732, 736, 192 N.Y.S.3d 433 [N.Y. Sup.
Ct. 2023].

Signatures Taken by Notary or Commissioner of Deeds

When a notary public signs a designating petition, his or her signature and
statements enjoy a "strong presumption of regularity” (Matter of Bonner v Negron, 87
AD3d 737 [2d Dept 2011]). However, as discussed below, this presumption can be
rebutted.

A candidate who is a notary or commissioner of deeds is not prohibited from

circulating his or her own petition in that capacity (Matter of Braunfotel v Feiden, 172
AD3d 1451 [2d Dept 2019]; Rittersporn v Sadowski, 48 NY2d 618 [1979]; Harte v Kaplan,
87 AD3d [3d Dept 2011];

If a signature is taken by a notary or commissioner of deeds, the witness must

include the witness’s title or the sheet is invalid (Fuentes v Lopez, 264 AD2d 490 [2d Dept
1999]; Hunter v Compagni, 74 AD2d 1000 [4th Dept 1980]). However, the failure to
include the title “notary” or “commissioner of deeds” was held a “mere technical defect”
when the notary provided the notary’s identification number and the expiration date of
that office. (Matter of Marchionda v Casella, 453 AD3d 1133 [4th Dept 2017]).

Failure to use the notary stamp does not render the sheet invalid (McKay v
Cochran, 264 AD2d 699 [2d Dept 1999]; Executive Law §142-9 [defects which do not
invalidate a notary]).

It is critical to note, however, If a signer is not duly sworn by the notary or

commissioner of deeds, the signature of the person not sworn is invalid (Napier v Salerno,
74 AD2d 960 [3d Dept 1980]; Boyle v New York City Board of Elections, 185 AD2d 953
[2d Dept 1992]; Leahy v O’Rourke, 307 AD2d 1008 [2d Dept 2003], Lebron v Clyne,
65AD3d 801 [3d Dept 2009]; Fuchs v Itkowitz, 120 AD3d 682 [2d Dept 2014]; MacKenzie

43
v Ghartey, 131 AD3d 638 [2d Dept 2015]). Substantial compliance is required with
respect to the oath requirement (Mertz v Bradshaw, 131 AD3d 794 [3d Dept 2015]). The
Second Department offered guidance on how a notary or commissioner of deeds should
obtain signatures in Finn v Sherwood:

Jobson (the notary) testified that he introduced himself to each signatory,

explained to them what they were signing, and administered to and took an
oath from each signatory. Jobson thereby substantially complied with
Election Law § 6–132 [3] (see Matter of Kutner v Nassau County Bd. of
Elections, 65 AD3d 643, 644–645; Matter of Liebler v Friedman, 54 AD3d
697). What the signers are swearing to, in a designating petition is the
information at the beginning of the petition wherein the signer states that
he/she is a duly enrolled voter of the party and entitled to vote at the primary
and that their place of residence is truly stated opposite their signature on
the petition and they do thereby designate the following named person or
persons as candidate.

(87 AD3d 1044 [2d Dept 2011]).

The omission of the date on which the authenticating notary statement was made
renders the page invalid (Weiss v Mahoney, 49 AD2d 796 [4th Dept 1975]; Sortino v
Chiavaroli, 59 AD2d 644 [4th Dept 1977], aff’d 42 NY2d 982 [1975]; Boniello v Niagara
County Board of Elections, 131 AD3d 806 [4th Dept 2015]). However, a witness statement
completed by a notary on the reverse side of a petition, while not the preferred form, does
not warrant invalidation (Bay v Santoianni, 264 AD2d 488 [2d Dept 1999]). Further, the
fact that notary's signature was stapled to signature sheets instead of “appended [to] the
bottom” of each sheet as required by Election Law § 6-132 (2), did not require invalidation
of signatures and opportunity to ballot petitions. Matter of DiNonno v Castioni, 43 AD3d
476 [2d Dept 2007]; Sheldon v Bjork, 142 A.D.3d 763 [4th Dept 2016].

The signatures collected by a notary public who refused at trial to answer questions
concerning the administration of an oath to signatories and could not recall if he
committed forgery, were invalidated (McCoy v Jenkins, 242 AD2d 349 [2d Dept 1997]).

Signatures taken by a commissioner of deeds knowingly acting outside the

boundaries of their commission are invalid (Shuboney v Monroe County Board of
Elections, 297 AD2d 462 [4th Dept 2002]).

Notary public and commissioner of deeds are not qualified to witness village
designating or nominating petitions when the village election is conducted by the village
clerk (Election Law § 15-108).

44
 In 2023 new regulations promulgated by the Secretary of State require notaries to
create and retain records of the notarial actions they undertake. Notaries who do not
comply with the regulatory requirements may place their commission in jeopardy or other
penalties, but compliance or noncompliance with the record keeping requirements do not
affect the validity of any notarial act (19 NYCRR 182.9).

Alterations

Alterations to the Signers Line

Uninitialed alterations or corrections may be made to information on the signer’s

line of a petition, except the signature and date (Election Law § 6-134 [6]). Alterations to
the signature or date must be initialed (Andrews v Albany County Board of Elections, 164
AD2d 960 [3d Dept 1990]); King v Sunderland, 175 AD2d 896 [2d Dept 1991]). Alterations
to the signers’ date is permitted where the subscribing witness signed her initials next to
the date corrections; such corrections are inconsequential and did not invalidate the
signatures (Strenberg v Hill, 269 AD2d 730, 731 [3d Dept 2000]).

Material Alteration

If unexplained material alteration is made to witness statement, the entire page

should be invalid (Jonas v Velez, 65 NY2d 954 [1985)]; Magee v Camp 253 AD2d 573
[3d Dept 1998]; Berger v Acito, 64 AD2d 949 [3d Dept 1978], lv denied 45 NY2d 707;
Nobles v Grant, 57 AD2d 600 [2d Dept 1977], aff’d 41 NY2d 1048; but see Pulver v Allen,
242 AD2d 398 [3d Dept 1997]; McGuire v Gamache, 22 AD3d 614 [2d Dept 2005]).

The alteration must be material. An unexplained alteration to a candidate’s

address changing “Reed Street” to “Reed Avenue” did not invalidate the petition sheet
(Pericak v Hooper, 207 AD2d 1003 [4th Dept 1994]). An overwriting which did not change
what was originally written is not an alteration (Schroeder v Smith, 21 AD3d 511 [2d Dept
2005]).

An affidavit may be submitted at time of filing to explain alterations, but it may not
be used to cure omissions or make corrections (Hunter v Compagni, 74 AD2d 1000 [4th
Dept 1980]; Oberrman v Romannkowski, 65 AD3d 992 [2d Dept 2009]; but see Etkin v
Thalmann, 287 AD2d 775 [3d Dept 2001] [permitting resubmission during petitioning
period to cure omission of number of signatures]).

If incorrect information is crossed out and correct information put in the witness
statement, but is not initialed or explained, the entire sheet is invalid (Quinlin v Pierce,
254 AD2d 690 [4th Dept 1998]; Shoemaker v Longo, 186 AD2d 979 [4th Dept 1992], lv

45
denied, 80 NY2d 755; but see Pulver v Allen, 242 AD2d 398 [3d Dept 1997], lv denied 90
NY2d 805 [1997]).

Fraud

Issues of fraud are generally reserved for court proceedings. Every fraudulent
signature will be invalidated. Moreover, fraud that permeates a petition or fraud
perpetrated by a candidate will invalidate the entire petition even if the number of
signatures tainted are mathematically insufficient to invalidate the petition. “A designating
petition will be invalidated if the challenger shows, by clear and convincing evidence, ‘that
the entire petition is permeated with fraud or that the candidate participated in, or can be
charged with knowledge of, fraudulent activity’” (Matter of VanSavage v Jones, 120 AD3d
887 [3d Dept 2014]; see also Matter of Steinert v Daly, 118 AD3d 808 [2d Dept 2014]).
“[C]andidates are held to a higher standard than noncandidates under the Election Law”
(Matter of Burman v Subedi, 172 AD3d 1882 [3d Dept 2019]; see also Buttenschon v
Salatino, 464 AD3d 1588 [4th Dept 2018]). A trial Court’s assessment of a candidate’s
credibility regarding fraud or knowledge of fraud is entitled to deference (see Steinert;
VanSavage supra).

Generally, petition fraud cases turn on the specific facts and testimony of the case.
Two cases decided on the same day in the Third Department in 2015 demonstrate the
bounds of judicial forgiveness and strictness.

In Vincent v Sira, the candidate testified she did not administer an oath to 307
petition signers despite the assertion she signed in the witness statement (131 AD3d 787
[3d Dept 2015]). She also testified that she altered the title of the office on several sheets
of the petition after they were signed – an act the court identified as a violation of Election
Law § 17-122 [8]. Nonetheless, the court was forgiving, finding these facts did not
establish clear and convincing proof of fraud and should only result in invalidation of all
the tainted signatures. The court noted as an enrolled Republican the candidate could
have completed the party witness statement for the 307 signatories with respect to whom
she did not administer an oath. The court also noted the alteration of the title of the office
while a clear violation of law “effected no material change, and…there was no evidence
undermining the accuracy and veracity of the underlying voter signatures.”

The same panel of Third Department judges on the same day came to a different
conclusion on a question of candidate fraud (Mattice v Hammond, 131 AD3d 790 [3d Dept
2015]). In Mattice, a candidate for the party position of judicial delegate needed eight
valid signatures to qualify for the ballot. He filed thirty-eight. The candidate witnessed all
the signatures, and in three instances the candidate allowed the spouse to sign for the
voter. At trial the candidate admitted the error and plead innocent ignorance. The lower

46
court found the candidate had no nefarious motive and upheld the petition. In reversing
the Third Department emphasized the candidate knew that “three of the signatures were
not signed by the individuals to whom they were attributed” (Id. at 791). This constituted
candidate participation in fraud sufficient to invalidate the petition, and the candidate’s
lack of “nefarious motive” was irrelevant.

The Sira and Mattice decisions are not easy to reconcile in as much as the
candidate in Sira also knew the statements in the witness statement were false. Arguably,
the difference is that in Sira the falsehoods did not implicate the “accuracy and veracity
of the underlying voter signatures”. In Mattice, the fact of a voter signing the petition was
falsely stated.

Notably, the Court of Appeals recently held, in a 4-3 decision, that there are times
where, as a matter of law, a petition must be found to be permeated with fraud, and thus
invalid. In Matter of Ferreyra v. Arroyo, “512 out of 944 signatures submitted in the
[designating] petition (were) backdated to dates preceding the candidate's receipt of the
blank petition pages, and … 14 of the 28 subscribing witnesses swore that those
signatures were placed on the designating petition before the blank petition pages were
obtained from the printer (183 AD3d 473 [1st Dept 2020]). The lower courts held that the
petitions were valid as the evidence showed the signatures themselves were not forged
or otherwise improperly secured. The Court of Appeals reversed, holding that the
magnitude of the fraud or irregularity of the signatures is enough to establish that the
petition was permeated with fraud (Ferreyra v Arroyo, 35 NY3d 127 [2020]).

In Matter of Overbaugh v Benoit, the Court did not invalidate a petition on which
the candidate’s spouse had fraudulently procured a signature, noting there was no
evidence the candidate participated in the procurement or submission of any fraudulent
signature (172 AD3d 1874 [3d Dept 2019]; compare Matter of Haygood v Hardwick, 110
AD3d 931 [2d Dept 2013]).

In Kalaj v LoFranco, the Court found that a petitioner failed to show that an
independent nominating petition was permeated by fraud where the petitioner contended
that 1 out of approximately 195 signatures is invalid on the grounds of fraud. (2020 NY
Slip Op 50364(U) [Orange County Sup Ct Mar. 9, 2020].

Opportunity to Ballot Petitions

Opportunity to ballot (OTB) petitions are filed to create a primary election when
there otherwise would not have been one (Election Law § 6-164). The opportunity to ballot
does not put a candidate's name on the ballot, but rather allows voters the ability to write
in a candidate's name provided the candidate is enrolled in the party (Election Law § 6-

47
164). A technically deficient designating petition is not a prerequisite for an OTB petition
(Coopersmith v Hershberger, 264 AD2d 453 [2d Dept 1999]). An OTB petition may be
filed even when a valid designating petition has been filed (Mullane v Bauer, 286 AD2d
460 [2d Dept 2001]). Signature on an OTB petition is invalid if voter previously signed
another petition for the same office (Rabadi v Galen, 307 AD2d 1014 [2d Dept 2003]).

Failure to list a committee to receive notices on an OTB petition is a fatal defect

(Werner v Castiglione, 286 AD2d 553 [3d Dept 2001]; Lent v Katz, 307 AD2d 1009 [2d
Dept 2003]), Matter of Cassar v Larsen, 109 AD3d 560 [2d Dept 2013]).

An important note: Chapter 456 of Laws of 2019, requires that each Opportunity
to Ballot petition submitted to a board of elections now be accompanied by a certificate
of acceptance completed by those appointed as the committee to receive notices.

Opportunity to Ballot as Equitable Remedy

When a petition or substitution of a candidate is invalid for technical reasons, a

court, not the board of elections, can order an opportunity to ballot primary to allow the
party to select a nominee (Matter of Hunting v Power, 20 NY2d 680 [1967]) The remedy
is only proper “where the defects which require invalidation of a designating petition are
technical in nature and do not call into serious question the existence of adequate support
among eligible voters” (Harden v Board of Election in City of NY, 74 NY2d 796 [1989]).
“Absent any indication that fraud was involved or that the voters who signed the invalid
pages were not entitled to sign the petition, Supreme Court properly directed an
opportunity to ballot” (Hall v Dussault, 109 AD 3d 679 [3d Dept 2013] [failure to administer
oath by witness and use of wrong witness statement were errors invalidating petition but
proper premise for opportunity to ballot remedy]; cf Stevens v Collins, 120 AD3d 696 [2d
Dept 2014] [holding incorrect date in notary statement is a substantive defect which
cannot support opportunity to ballot remedy]). The remedy is proper where certificate of
substitution is incorrectly executed when the petition to which it relates was sufficient
(Griffin v Torres, 131 AD3d 631 [2d Dept 2015]). Listing incorrect town or incorrect
address for signer of petition are “substantive and not technical in nature” and do not
support opportunity to ballot remedy (Canary v New York State Board of Elections, 131
Ad3d 792 [3d Dept 2015]). Appellate Division has granted the opportunity to ballot
remedy even when it is requested for the first time on appeal (Landry v Mansion, 65 Ad3d
803 [3d Dept 2009].

The equitable remedy of an opportunity to ballot is not available when an

opportunity ballot petition is defective due to technical errors (Stevens v Collins, 120 AD3d
696 [2d Dept 2014]).

48
Independent Nominations Placement on the Ballot

Election Law § 7-104 has been the subject of considerable litigation. In 2014, the
Third Department affirmed a lower court ruling rejecting a challenge to the constitutionality
of the statute. Two federal district court judges and one New York State Supreme Court
judge declined to issue preliminary injunctions premised on the theory that this provision
of the Election Law is unconstitutional.

“In short, controlling Court of Appeals precedent mandates a conclusion that Election Law
§ 7-104 (4) (c) is not unconstitutional as applied to petitioners and Supreme Court properly
dismissed the petition” (Cahill v Kellner, 121 AD3d 1160 [3d Dept 2014]). In 2019, a
similar action was brought in the Fourth Department, with the same result. (Upstate Jobs
Party v Czarny, 175 AD3d 1780 [4th Dept 2019]).

In 2010, a United States District Court Judge in the Southern District of New York
ruled that the State Board’s refusal to allow a candidate for US Senate running as the
candidate of two independent bodies a separate line for each such nomination, where the
refusal to allow multiple line for the candidate would create a hole in one of the
independent body lines, violated his First and Fourteenth Amendment rights, albeit in a
ruling which came after the election (Credico v New York State Bd. of Elections, 751
FSupp2d 417 [EDNY 2010]). In 2013, a United States District Court Judge in the Eastern
District of New York when presented with the same issue declined to follow Credico and
upheld the Nassau County Board of Elections’ refusal to grant additional lines in violation
of Election Law § 7-104 where the candidate had either been nominated by more than
one party or by more than one independent body (Gonsalves v New York State Bd. of
Elections, 974 FSupp2d 191 [EDNY 2013]).

49
NOMINATIONS

Caucuses

Posting Notice of Caucus

In a village election case, the court in reviewing the posting requirements for the
notice of a party caucus stated that, “the requirement for posting and filing of notice is
obviously designed to ensure that the public, and more importantly to party nominations,
the enrolled voters of the party, are adequately informed of the intention of the
representatives of one of its political parties to fill a position on the ballot of an election
affecting the voters of that municipality” (Korniczky v Sunderland, 175 Misc 2d 912 [Sup
Ct Westchester County 1998]). The court went on to say that, “the court views the notice
requirements as mandatory in nature and concludes that failure to strictly comply with
such requirements voids the nomination” (Id; see also, Scanlon v Turco, 264 AD2d 863
[3d Dept 1999]). Failure to post or file the notice of caucus with the town clerk or the
county board of elections renders the caucus and, consequently, the purported
nominations invalid (Gage v Hammond, 309 AD2d 1061 [3d Dept 2003]; Chevere v
Sunderland, 303 AD2d 428 [2d Dept 2003]).

Rule Limiting Nominees to Enrolled Party Members is Invalid

A town committee cannot adopt a caucus rule which mandates that only enrolled
members of the party be nominated at caucus as such a rule would violate Election Law
§ 6-120 [4] (Burkwit v Olson, 87 AD3d 1264 [4th Dept 2011]).

Judicial Nominating Conventions

Delegates to Convention

Section 6-124 of Election Law requires that the number of judicial delegates from
each Assembly District to a party nominating convention be substantially in accordance
with the ratio of votes cast for the party’s candidate for governor in the last election. In
Diamond v DeJoseph, (121 AD3d 1283 [3d Dept 2014]), the court held the Conservative
Party nominating convention at issue was in substantial compliance given the practical
difficulties achieving perfect representation. The Court noted most districts were properly
represented in proportion to their voting strength. In Stack v Fisher (121 AD3d 1280 [3d
Dept 2014]), the Conservative judicial nominating Convention was also found duly
proportional under Election Law § 6-124 even though three Assembly Districts
representing 10% of voters did not send delegates and there were other deviations
between the voting power of Assembly districts at the convention and the preceding vote
50
for governor in those districts. The Stack Court analyzed voting power at the convention
and concluded “smaller districts were undoubtedly overrepresented at the convention, as
40% of elected delegates represented only 24% of the Conservative Party votes cast…”
(Id.). However, the Court noted, the two largest districts represented 40% of the
delegates and had 40% of the votes (Id.)

The Court distinguished Snell v Young, (88 AD3d 1149 [3d Dept 2014]), observing
in that case the Court invalidated the convention on a finding that “almost 60% of the
voters were represented by 30% of elected delegates.” “Substantial compliance is the
touchstone of the statute and, under the circumstances present here, we find that goal to
have been met.”In contrast, in Dooher v Williams, Judge DelConte found that when only
a minority of assembly districts (7 of 18) and voters were properly represented in
proportion to their voting strength, “substantial compliance” with Election Law § 6-124
was not possible.. “While no appellate court has prescribed a bright-line rule or
established a specific threshold to determine how many assembly districts comprising a
total minimum percentage of voters are necessary to meet the proportional representation
requirement, substantial compliance requires, at the very least, that the proportional
represented assembly districts cumulatively comprise more than a majority of the total
number of voters in the judicial district.”(69 Misc 3d 662 [Sup Ct Onondaga 2020] affd
187 AD 3d 1692 [4th Dept 2020]).

Delegate Residency

Supreme Court in Alleghany County held delegates must reside in the Assembly
District they will represent at the judicial nominating convention. The Fourth Department
reversed the lower Court without reaching the merits of this holding: “[A]ssuming,
arguendo, that a candidate for the position of delegate to a judicial district convention
must reside within the geographic boundaries of the assembly district that he or she seeks
to represent…such requirement would not become operative until ‘time of
commencement of term’ of the position…In this case, that date is…the date of the primary
election” Matter of Locke v Walsh, 120 AD3d 997 [4th Dept 2014]). Notably the lower
court declined to follow the Second Department holding in Corbin v Goldstein (64 AD2d
935 [2d Dept 1978] [holding judicial nominating delegate need only reside in the judicial
district]).

Filing of Certificate of Nomination

A certificate of party nomination made a judicial district convention must be filed

no later than the day after the last day to hold such convention, and the minutes of the
convention shall be filed with 72 hours of the adjournment of the convention. Failure to
timely file such documents is a fatal defect. (Fuentes v. Catalano, 165 A.D.3d 1010 [2d
Dep't 2018]). A court may validate minutes that are filed untimely upon “a showing of

51
both a compelling explanation for the deviation from the statutory requirements and of a
prompt attempt to rectify the error in the failure to file certified minutes of a judicial
[nominating] convention, invocation of judicial discretion may be appropriate” (Vacca v
Kosinski Harvey, 176 AD3d 1305, 1305 [3d Dept 2019]). In the Vacca matter, the Third
Department found there was a compelling explanation for why the minutes were untimely
filed when: the judicial nominating convention was directly followed by a convention of the
Committee to select a new county elections commissioner; the Committee consulted the
filing deadlines set forth in the 2019 SBOE political calendar for judicial district
conventions and mistakenly relied on the date for filing the certificate of nomination, which
was August 15, 2019; and by the time the Committee was notified of the deficiencies in
its filings, it had already submitted the actual convention minutes to the State Board.

52
VACANCIES

A vacancy in a nomination or a designation may only occur upon a declination by

the candidate, the death of the candidate, the disqualification of the candidate from
holding the office, or a tie vote at a primary election (Election Law § 6-148 [1]).

Certification of Vacancies

An independent petition was invalidated because signatures collected before the

vacancy in the congressional office was certified by the State Board of Elections were not
valid and could not be counted (Vitaliano v D’Emic, 243 AD2d 662 [2d Dept 1997], lv
denied 90 NY2d 812 [1997]). The court indicated that the signatures could only have been
collected after the State Board of Elections certified the existence of the vacancy. If the
certification of vacancy is not filed timely, the candidate's remedy is to commence a
proceeding to compel filing of the certificate (Vitaliano at 663). The court did not address
the statutory language for such petitions which clearly states that the time to begin
collecting signatures begins to run from the date of the vacancy (Election Law § 6-158
[10]).

In the Matter of Montal, the Second Department held that a certificate of

nomination was invalid because the town did not file a certificate with the County Board
of Elections indicating there was a vacancy in the office. (220 A.D.3d 824, 827, 198
N.Y.S.3d 161, 165, lv denied 40 N.Y.3d 905, 221 N.E.3d 38 [2023]). In this case a Town
Justice resigned and subsequently the town abolished that Justice’s office. The town did
not file a certificate of vacancy with the County Board but a nomination was filed for the
abolished position. “Here, however, ‘no such certificate [of vacancy] was filed and [the
respondents] took no steps to compel its filing at a time when other candidates could have
filed certificates of nomination with respect to the vacancy [internal citation omitted].
Insofar as the…respondents sought an office that the Town had not certified to [be
vacant]…[respondent’s] certificate of nomination [was] invalid[.]” (id).

Disqualification

Hatch Act Disqualification

The Hatch Act is a federal law that prohibits federal government employees and
certain others from seeking elective office in a partisan election. The Third Department
held when a candidate receives a Hatch Act violation notice subjecting the candidate to
loss of employment if the candidacy is continued, the candidate is thereby disqualified
permitting the filing of a declination that creates a vacancy. (Parete v Hunt, 287 AD2d
777 [3d Dept 2001]). The Second Department rule is to the contrary (In Matter of Li v

53
Meehan, 52 AD3d 544 [2d Dept 2008]). The Hatch Act was amended in 2012 to lessen
the restrictions on political activities of Federal and some state and local employees but
should be consulted directly if implicated. Information on the Hatch Act is provided at
http://www.osc.gov. Requests for Hatch Act advisory opinions may be made by e-mail to:
hatchact@osc.gov or the employee’s agency’s Hatch Act compliance officer.

Residency Disqualification

Candidate who, on Election Day, would lack the necessary residency for the public
office sought, can be disqualified with another candidate being substituted by the political
party which nominated him/her, even after the deadline to decline has passed (Krysan v
New York State Board of Elections, 55 AD3d 1217 [3d Dept 2008]).

Substitutions

A candidate may be substituted when a designated candidate has properly

declined the designation (Election Law § 6-148). But a substitution cannot fix an invalid
petition. (Ferrandino v Sammut, 185 AD3d 992 [2nd Dept 2020] [noting [t]he legislature
has not made failure to comply with a residency requirement a defect necessarily fatal to
a designating petition; it has made the attempted designation of an election commissioner
as a candidate for public office a nullity]).

“In the absence of a valid designating petition, a declination does not create a
vacancy within the meaning of the Election Law” (Hunter v New York State Board of
Elections, 32 AD3d 662 [3d Dept 2006]; see also Matter of Leemhuis v State of New York,
Bd. of Elections, 186 AD2d 863 [1992], aff’d on op below 155 Misc2d 531[1992]; Matter
of Nowik v Jablonski, 133 AD2d 874, 875 [1987]; Matter of Gdanski v Rockland County
Bd. of Elections, 97 AD2d 744, 744-745 [1983]); Matter of Turdik v Bernstein 87 AD3d
748).

Certificates of authorization, when required by law, are required of both the

declining and the substituted candidate. If a candidate who declines was required to file
an authorization pursuant to Election Law § 6-120 but failed to timely do so, the original
petition is invalid, and no substitution is possible (Id). Assuming the proper authorization
of the declining candidate was filed as it must be, the substituted candidate must still, in
addition, file their own authorization if one is required by Election Law § 6-120.

54
BALLOT ACCESS FILINGS
Failure to timely file required ballot access documents is fatal to the document’s
validity. This includes petitions, certificates of designation or nomination, acceptances,
declinations, substitutions and objections. (see Election Law § 1-106 [2]; Seawright v
Board of Elections, 35 NY3d 227 [2020]).

Ballot access documents can be filed in person at the correct board of elections
between 9am and 5pm during the filing period.

New York City Rule: In New York City, the board of election is open until midnight
on the last day to file to receive filings. For filings with the New York City Board of
Elections, filings mut be received by the last day to file.

Outside of the City of New York, ballot access documents may be filed by mail or
certain express delivery services (see NYSBOE website for exclusive list) and the time of
mailing is credited as the time of filing under certain circumstances. Documents filed by
mail/delivery service with boards of elections outside of New York City must meet two
requirements: (1) The envelope containing the documents must be “postmarked” by
midnight of the last day to file, and (2) the document must be received at the correct board
of elections no later than “two business days after” the last day to file the document in
person. If a document is filed by mail with the New York City Board of Elections, the rule
is simple – it must be received by the filing deadline.

Westchester County Board of Elections on the last filing days when designating or
nominating petitions are due, is open until midnight. Notably the Westchester County
Board of Elections is not required to be open until midnight on the last day to file other
ballot access documents (i.e. acceptances, etc.). Also, unlike New York City filers, those
who file in Westchester by mail follow the rule applicable to all other board of elections,
allowing the filing to be timely if postmarked by the last day and received within two days
thereafter.

Challenges

This section addresses issues raised in challenging petitions through the objection
process and by court action.

Objections

The board of elections is a purely ministerial board and “they had no power to deal
with objections involving matters not appearing upon the face of the papers” (Application
of McGovern, 291 NY 104 [1943], citing Matter of Frankel v Cheshire, 212 AD 664, 671
[2d Dept 1925]). Objections which allege fraud or forgery should not be ruled on by the
board, but can only be ruled on by a court of competent jurisdiction (Bednarsh v Cohen,
267 AD 133 [1st Dept 1943], lv denied 267 AD 760, lv denied 292 NY 578 [1943]).

55
Standing to Object

Independent Petitions

Any qualified voter in the relevant political subdivision can challenge an

independent nominating petition as a citizen objector (Doran v Scranton, 49 AD2d 976
[3d Dept 1975]). The objections must be signed by the objector (Banker v Apfeldorf, 93
AD2d 848 [2d Dept 1983]).

Objections To Party Petitions / Certificates For Public Office

An objector must be a registered voter in the relevant political subdivision in order

to file objections to a party certificate or petition related to a public office (Matter of
Augostini v Bernstein, 172 AD3d 1946 [4th Dept 2019] [dismissing subsequent court
proceeding brought by objector who was not a valid objector by virtue of not living in the
jurisdiction of the office on petition objected to]).

The objector does not need to be enrolled in the political party stated on the petition
or certificate for public office. (Election Law § 6-154 [2]; Matter of Van Sleet, 16 NY2d 848
[1965]; see also Bonelli v Bahren, 196 AD2d 866 [2d Dept 1993] [objector to a certificate
of authorization has standing as a registered voter eligible to vote for the public office];
Queens County Republican Committee v New York State Board of Elections, F Supp2d
341 [EDNY 2002] [upholding constitutionality of non-party members to object to petition
for public office]).

Objections Where Objector’s Enrollment Matters

The objector to a petition for party position (i.e. petition for Member of County
Committee or Member of State Committee) must, in addition to being a voter in the
relevant political subdivision, be enrolled in the relevant political party (Election Law § 6-
154 [2]; Bennett v Justin, 51 NY2d 722 [1980]). If the objector objects to the method of
nomination (caucus or primary), the objector must be an enrolled member of the party to
bring suit (Stempel v Albany County Board of Elections, 60 NY2d 801 [1983]; Pirozzolo
v. Lia, 142 AD3d 569 [2d Dept 2016]).

A non-member of a political party lacks standing to challenge that party’s

compliance with its own rules (Matter of Nicolai v Kelleher, 45 AD3d 960 [3d Dept 2007];
see also Matter of Fehrman v New York State Board of Elections,10 NY3d 759 [2008]
[where the non-member not only lacked standing to challenge the party rules, but further
lost his standing to challenge as an aggrieved candidate pursuant to Election Law § 16-

56
102 when he abandoned his assertion that he was the party’s candidate and instead
argued that the party had not validly nominated any candidate]). In Occhipinti v
Westchester County Board of Elections (49 AD3d 674 [2d Dept 2008]), the non-party
petitioner, who was a political party chairman, did have standing to commence a
proceeding challenging the alleged failure to comply with the requirements governing
nomination by party caucus in Election Law § 15-108 [2] [a]. In Manning v. Senecal, (219
A.D.3d 1605, 1607, 196 N.Y.S.3d 218, 220–21, leave to appeal denied, 40 N.Y.3d 904,
218 N.E.3d 717 [2023]), a “nonparty member-objector[], [did] have standing to challenge
the legality of whether [a county committee] was properly constituted and, therefore,
authorized to act on behalf of the political party.”

Judicial Convention Objections

In a proceeding challenging the validity of certificates of nomination for supreme

court candidates, the petitioner could not maintain standing as an aggrieved candidate
pursuant to Election Law §16-102 since he was not a member of the party and did not
allege that, but for the purported irregularities in the manner by which the nominating
convention was conducted, he would have received the nomination (Nicolai v McKay, 45
AD3d 965 [3d Dept 2007]).

County Committee

An objector to a petition for county committee must be enrolled to vote in the

election district of the committee position to which they are objecting (Lucariello v Niebel,
72 NY2d 927 [1988]; see also Galow v Dutchess County Board of Elections, 242 AD2d
344 [2d Dept 1997]; Cantatore v Sunderland, 196 AD2d 606 [2d Dept 1993]; Luthman v
Gulino, 131 AD3d 636 [2d Dept. 2015]). Even a candidate for county committee who
does not live in the election district he is seeking to represent is not a proper objector at
the board of elections to an opponent’s petition (Id).

When Objections Must Be Received

General objections must be filed with board of elections within three days of the
filing of the petition and the specifications of objections must be filed within six days of the
filing of the general objections (Election Law § 6-154 [2]).

The three days begin to run from the date that the petition is received by the board
(Miele v Reda, 243 AD2d 566 [2d Dept 1997], lv denied 90 NY2d 811 [1997]; Benson v
Scaringe, 84 AD2d 603 [3d Dept 1981], lv denied 54 NY2d 609 [1981]). The six days for
specifications run from the date that the general objections are received at the board, if

57
they are personally brought into the board, or from the date of the postmark of the general
objections if they are mailed (Bush v Salerno, 51 NY2d 95 [1980]). The courts may not
extend the time to file specifications of objections (Breitenstein v Turco, 254 AD2d 566
[3d Dept 1998]).

The time limits for filing of objections to certificates of nomination, authorization,

acceptance, declination, substitution, etc. would also be measured from the date of
receipt of the certificate (Pierce v Breen, 86 NY2d 455 [1995] [court allowed objections to
a certificate of nomination to be filed within three days of last day to file the certificate
when the certificate was filed before the first day the certificate was permitted to be filed]).

Objections were deemed valid where they were filed before 9:00 a.m. when the
board was open and accepted the documents (Fedak v Judge, 71 AD3d 892 [2d Dept
2010]).

Postmarks

If filing objections by mail they must be properly postmarked. The absence of a

postmark on the envelope is a fatal defect (Raimone v Sanchez, 253 AD2d 506 [2d Dept
1998]), lv denied 92 NY2d 806 [1998]; Election Law § 1-106 [1]). “[T]he postmark date is
the date that controls for purposes of determining if papers sent by mail have been timely
filed” (Gallo v Turco, 131 AD3d 785 [3d Dept 2015]). In addition to a timely postmark,
any document filed by mail must arrive at the board of elections no later than two days
after the last day to file the document in person. However, in Hardwick v Ward (109 AD3d
1223 [4th Dept. 2013]) the Appellate Division affirmed a lower court ruling that allowed
the late filing of a certificate of authorization which was postmarked the day after it was
delivered to the Post Office due to a clerical error on the part of the Post Office.

“[A] postage meter stamp is not the equivalent of a postmark” (Gallo v Turco, 131
AD3d 785 [3d Dept 2015]).

Pursuant to Election Law § 1-106 documents may be filed by use of express

delivery services designated pursuant to 7502 of the Internal Revenue Code. Documents
sent through such delivery services are deemed the equivalent of a mailing by the United
States Postal Service, and any date recorded or marked indicating when the item was
received by the delivery service is the equivalent of a postmark. Only the following delivery
services and products qualify: DHL Express 9:00, DHL Express 10:30, DHL Express
12:00, DHL Express Worldwide, DHL Express Envelope, DHL Import Express 10:30, DHL
Import Express 12:00, DHL Import Express Worldwide, FedEx First Overnight, FedEx
Priority Overnight, FedEx Standard Overnight, FedEx 2 Day, FedEx International Next
Flight Out, FedEx International Priority, FedEx International First, FedEx International
Economy, UPS Next Day Air Early AM, UPS Next Day Air, UPS Next Day Air Saver, UPS

58
2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, UPS Worldwide
Express.

Rehearing

Once the board has made a determination on the petition objections, it may not
generally reopen a hearing even if it receives new evidence after the hearing is closed
(Schneeberg v New York State Board of Elections, 78 AD2d 559 [3d Dept 1980], rev’d on
other grounds, 51 NY2d 814 [1980]).

Service of Objections on the Candidate

Legislative amendments to Election Law § 6-154 now require objectors to serve

specifications of objection on candidates as a mandatory requirement for any objections
to be considered. Such service must be effectuated on the candidate by “overnight mail”
not certified or registered mail (Election Law § 6-154; 9 NYCRR 6204 Emergency
Regulation, effective March 31, 2023). Failure to adhere to a rule of the board of elections
which requires service of the objections upon the candidate “. . . deprived the board of
jurisdiction to properly consider the objections and thereafter to rule to invalidate the
petition” (Young v Thalmann, 286 AD2d 550 [3d Dept 2001]).

Objectors are directed to carefully review the newly enacted statute and revised
rules of the New York State Board of Elections:

2024 New York State Election Law & Rules

Joinder in Special Proceeding

In Atwood v. Pridgen, 37 N.Y.S.3d 164 [4th Dept 2016], objectors properly joined
multiple candidates in special Election Law proceeding to invalidate the designating
petitions of candidates for office of political party committee member in primary election.
There existed the same series of transactions or occurrences, and there were common
questions of law or fact, as candidates all sought to run for the same office and objectors
sought to invalidate their designating petitions based on fraud, error, and
misrepresentation in the collection of signatures on designating petitions.

59
LOCAL REFERENDA

Under Election Law §§ 4-108 and 16-104, a ballot proposal or abstract may be
challenged on the basis that it is “misleading, ambiguous, illegal or inconsistent with
existing law” (Gruskoff v County of Suffolk, 132 AD3d 923 [2d Dept 2015]). The Appellate
Division, Fourth Department, had occasion to rule on the actions of a county board in
refusing to place a local referendum on the ballot, underscoring that the board of elections’
authority to reject a ballot proposal is ministerial, and minor procedural or technical
defects in the statutory procedures to place a referendum question on the ballot are not
to be overstressed. (Gaughan v Mohr, 77 AD3d 1475 [4th Dept 2010]). The Gaughan
Court used the following language in overruling the determination of the county board:

Respondents contend that they properly rejected the referendum question

from the ballot because it violated County Law §§ 100 and 102. We reject
that contention. The revised form of the referendum question transmitted to
the Erie County Board of Elections on September 27, 2010 complied with
the procedural requirements set forth in County Law § 102 [1]. “This [C]ourt
will not ... discourage the efforts of public officials by declaring some minor
step omitted in the statutory procedure fatal[ ] or by overstressing the
importance of some technical defect” (Crell v O'Rourke, 88 AD2d 83, 86 [4th
Dept 2010], aff’d 57 NY2d 702 [2010]).

We thus conclude that respondents abused their ministerial authority in

rejecting the referendum question from the ballot (see generally Matter of
Lenihan v Blackwell, 209 AD2d 1048, 1049, lv denied 84 NY2d 808; Crell,
88 AD2d at 85-86).

ELECTION LAW §3-300

The Court of Appeals, in County of Erie v, CSEA Local 815 (19 NY3d 1070 [2012])
reaffirmed the principle, established in County of Chautauqua v Chautauqua County
Employees’ Unit 6300 et al (181 AD2d 1052 [4th Dept 1992]) and Matter of Board of
Elections of the County of Westchester v O’Rourke (210 AD2d 402[2d Dept 1994]) that
Election Law §3-300 requires that the county boards of elections have autonomy with the
amount appropriated by the legislature with respect to salaries of employees and
exclusive control of their personnel and the performance of their duties. The county may
not bind the board by a collective bargaining agreement which infringes upon the
prerogative of the commissioners under Election Law § 3-300 (but see Preemption of
Election Law).

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PREEMPTION OF ELECTION LAW

Applying a standard pre-emption analysis, the First Department held Article 14 of

the Election Law does not preempt local contribution limits and source limits that are
stricter than those contained in article 14 (McDonald v New York City Campaign Finance
Bd., 117 AD3d 540 [1st Dept 2014]).

The Election Law includes a statutory preemption provision. Election Law § 1-102
provides “[w]here a specific provision of law exists in any other law which is inconsistent
with the provisions of [the Election Law], such provision shall apply….” In Castine v Zurlo,
Supreme Court addressed whether a local law adopted by a county can preempt the
Election Law pursuant to Election Law § 1-102 (46 Misc. 3d 995 [Clinton County Sup Ct
2014]). Upon extensive review of the legislative history, the Court held the legislature
intended only to permit other state laws to preempt the Election Law (cf Castine v Zurlo,
938 F Supp 2d 302, 313 [NDNY 2013] [reaching a different conclusion] overruled in part
by 756 F3d 171, 178 [2d Cir. 2014] [describing application of Election Law §1-102 here
as a “novel, complex matter involving the interplay between state and local law” and
suggesting the District Court decline to exercise supplemental jurisdiction on the
question—advice the District Court followed]).

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CAMPAIGN FINANCIAL DISCLOSURE

Contribution Limit Constitutionality

United States Supreme Court

Citizen United v Federal Election Com’n, (558 US 310 [2010]).

(RE: Federal Limit on Corporate Expenditures)

“Government may regulate corporate political speech through identification and

disclosure requirements, but it may not suppress that speech altogether” (Id. at 319). The
government may not, under the First Amendment, suppress political speech on the basis
of the speaker's corporate identity. The federal statute barring corporate and union
independent expenditures for express advocacy or electioneering communications
violated the First Amendment. The disclaimer and disclosure provisions of Bipartisan
Campaign Reform Act of 2002 (BCRA) did not violate the First Amendment.

McCutcheon v Federal Election Com’n, (134 S Ct 1434 [2014]).

(RE: Federal Individual Aggregate Contribution Limit)

The federal statutory aggregate limits on how much money a donor may contribute
in total to all political candidates or committees violates the First Amendment.
“[T]he First Amendment safeguards an individual's right to participate in the public debate
through political expression and political association,” and “[w]hen an individual
contributes money to a candidate, he exercises both of those rights” (Id. at 1448).
According to the Supreme Court, in order to be valid, any regulation of campaign
contributions must target “‘quid pro quo’ corruption or its appearance,” that is, the “direct
exchange of an official act for money,” or “dollars for political favors” (Id. at 1441). The
court held aggregate limits do not further this purpose.

United States Court of Appeals for the Second Circuit

Vermont Right to Life Committee, Inc. v Sorrell, (753 F3d 1189 [2nd Cir 2014]).
(RE: Vermont Contribution Limit on Coordinating Entities)

Vermont Right to Life (VRTL) created and is the umbrella organization for VRTL-
Political Committee and VRTL- Fund for Independent Political Expenditures. VRTL-
Political Committee makes direct contributions to candidates and is not an independent-
expenditure-only group. There is no operational or structural barrier between the two
entities that share staff, resources and a fluidity of funds. VRTL- Fund for Independent
Political Expenditures is enmeshed completely with and not distinguishable from VRTL-
62
Political Committee.

The Second Circuit held the Vermont statute setting $2,000 limit on contributions
to political committees from single source in any two-year general election cycle is not
unconstitutionally vague and does not violate First Amendment. VRTL- Political
Committee gives contributions to and coordinates with candidate campaigns, is not an
independent-expenditure-only group and is subject to the limit. VRTL-Fund for
Independent Political Expenditures is indistinguishable from VRTL-Political Committee
and is therefore subject to the limit.

United Stated District Courts in New York

NY Progress and Protection PAC v Walsh, (17 F Supp 3d 319 [SDNY 2014]).
(RE: New York Individual Aggregate Contribution Limit)

The individual aggregate contribution limit of $150,000, as provided for in Election

Law § 14-114(8), is unconstitutional as applied to contributions to independent
expenditure committees because it violates the First Amendment.

Hispanic Leadership Fund, Inc. v Walsh, (42 F.Supp3d 365 [NDNY 2014]).
(RE: New York Limit on Corporate Contributions and Independent Expenditures)

Plaintiff Hispanic Leadership Fund, Inc (HLF), is a 501(c)(4) tax exempt social
welfare organization and Plaintiff Freedom New York (FNY) is registered with the New
York State Board of Elections as an independent expenditure committee. The Court held
Election Law § 14-116 (2), which imposes a $5,000 limit on HLF, Inc.’s contribution to
Freedom New York is unconstitutional because it violates the First Amendment. Election
Law § 14-114 (8), which imposes an individual aggregate contribution limit of $150,000
on contributions made by individuals to FNY, was held unconstitutional because it violates
the First Amendment.

New York State Board 2016 Opinion # 1

The State Board of Elections issued formal guidance and a formal opinion
concluding: (1) “[T]he $150,000 aggregate contribution limit found in EL § 14-114 (8) is
not enforceable,” and (2) “[T]he $5,000 Corporate Limit, as relates to contributions from
a corporation to an independent expenditure committee, is not enforceable” (NYBOE
2016 Opinion # 1)

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Party Money in a Primary

The former Election Law § 2-126 prohibited a political party from spending money
in a primary election; either its own (intra) or another party’s (inter). This provision was
declared unconstitutional, and the legislature repealed it in 2017 (see, infra, Notable
Legislation).

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NOTABLE RECENT LEGISLATION

2023 Laws

Chapter 77
Amends Chapter 744 of the Laws of 2022 to allow board notice to candidates by electronic
correspondence with the consent of the candidate and objector.

Chapter 89
Amends Chapter 644 of the Laws of 2022 to expand the types of downloadable digital file
formats for maps.

Chapter 105
Conforming technical changes to ensure applicability of contribution limits to local offices.

Chapter 113
Conforming legislation related to Chapter 765 of the Laws of 2022 related to voter
registration and transmittal time frames.

Chapter 120
Changes the 2023 dates to file a designating petition and provides an updated time frame
for petition signature collection.

Chapter 127
Establishes State Assembly districts for 2024 and subsequent elections.

Chapter 169
Amends the effective date of the John R. Lewis Voting Rights Act.

Chapter 423
Technical amendment to accurately reflect proper cross reference relating to the
operational failure of a voting machine.

Chapter 472
Relates to ballots submitted in envelopes that are sealed with tape, paste or any other
binding agent or device and have no indication of tampering.

Chapter 473
Relates to providing notice of voting rights to persons released from local jails.

Chapter 474
Relates to the presidential primary, to provide for the election of delegates to a national
party convention or a national party conference in 2024 and schedules the presidential
primary election for April 2, 2024. Requires cure affirmations to be “received by” the board
of elections within certain timeframes instead of “filed with”. Provides that any write-in
vote for a candidate, whether or not such candidate's name is on the ballot for that contest,

65
shall be counted for such candidate in certain circumstances. Allows ballot envelopes
without a postmark to be a curable defect in certain circumstances. Relates to the ability
and proceeding to contest certain certificates to fill a vacancy in a designation. Provides
that absentee ballots may not be canvassed at the poll site on election day. Provides that
no board of elections shall commence a full manual recount of a particular contest until
such board has completed and announced the results of the recanvass.

Chapter 475
Provides the venue for any legal challenge to the constitutionality of a provision of the
election law.

Chapter 476
Requires electors to vote for the presidential and vice-presidential candidate who were
nominated by the political party that nominated the elector.

Chapter 477
Relates to training curriculum for poll workers and requires the state board of elections to
develop and provide a train the trainers program.

Chapter 478
Requires local boards of education, BOCES, charter schools and non-public schools to
adopt certain policies to promote student voter registration and pre-registration.

Chapter 479
Provides for the registration of voters on the first day of early voting and provides for the
canvassing of votes cast by such voters.

Chapter 480
Establishes a deadline in certain circumstances for changing the location of a polling
place for early voting.

Chapter 481
Establishes the "New York Early Mail Voter Act.”

Chapter 648
Requires proposed amendments to the constitution or other questions that are to be
submitted for a statewide vote to be submitted to the people for their approval in plain
language.

Chapter 741
Requires certain local elections to be held in even-numbered years.

Chapter 749
Increases the number of judges in certain courts.

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2022 Laws

Chapter 2
Permitted use of absentee voting by reason of risk of contracting or spreading a disease
that may cause illness to the voter or other members of the public.

Chapter 12
Changes to Chapter 727 related to online absentee ballot tracking.

Chapters 13, 14, 15 and 16

Congressional and state legislative redistricting and amendments thereto.

Chapter 17
Changed deadline for party calls in 2022.

Chapter 55 (Part 0, Section 1)

Provides for poll sites on college campuses in certain circumstances.

Chapter 55 (Part HH Section 1)

Provides postage paid envelopes for absentee applications and ballots.

Chapter 56
Updates statutory references related to “department of veterans’ services” and “addiction
services and supports.”

Chapter 117
Amends certain provisions of Chapter 763 of 2021 related to canvassing process.

Chapter 132
Amends certain provisions of Chapter 746 of Laws of 2021.

Chapter 164
Makes certain changes to Chapter 320 of Laws of 2021.

Chapter 175
Permits mailing mail check cards between the third Tuesday in April and the second
Friday in May.

Chapter 178
Allows declination due to criminal proceedings brought against a candidate.

Chapter 226
Enacts the John R. Lewis Voting Rights Act of New York.

Chapter 228
Relates to validity of ballot where the intent of the voter is clear.

67
Chapter 231
Relates to party position petitions for gendered party positions in relation to persons who
do not identify as a binary gender.

Chapter 365
Creates various new elected judicial positions.

Chapter 508
Prohibits private funding of referenda elections.

Chapter 513
Replaces “councilman” or “council men” with the words “council member” or “council
members.”

Chapter 525
Makes changes to election law to ensure that absentee voting is permitted for party
positions of member of county committee.

Chapter 575
Relates to confidentiality of voter registration records for victims of sexual violence.

Chapter 644
Requires boards of elections to publish election district maps on their websites and
provide shapefiles.

Chapter 661
Requires counting affidavit ballots to the extent possible for voter who appear at the
incorrect poll site but at a poll site within the voter’s correct county and Assembly District.

Chapter 671
Adds the words “Independence” and “Independent” to the list of words that cannot be
used in a party or independent body name.

Chapter 744
Implements a uniform ballot access objection process and notice requirements.

Chapter 765
Amends voter registration deadlines.

2021 Laws

Chapter 22
Reduces the number of signatures for designating petitions; provides dates for the signing
and filing of designating petitions in 2021.

68
Chapter 37
Relates to the automatic voter registration process; amends certain voter registration
processes and the agencies to be included as designated agencies.

Chapter 38
Permits county committees to amend their rules to permit committee members whose
terms are expiring in 2021 to remain in their office for an additional one-year term.

Chapter 60
Relates to absentee ballots for school district elections during a declared disaster
emergency; a voter can apply for an absentee ballot when they are unable to appear
personally at the polling place of the school district in which they are a qualified voter
because there is a risk of contracting or spreading a disease that may cause illness to the
voter or to other members of the public.

Chapter 69
Removes the option to file an opportunity to ballot petition in the June 2021 primary
election.

Chapter 74
Requires the county seat in Washington county to have at least one polling place
designated for early voting.

Chapter 81
Relates to the number of signatures of enrolled voters needed on a designating petition
for any town office and the number of signatures required on a designating petition for a
village election.

Chapter 90
Relates to the number of signatures for independent nominating petitions; Decreases the
number of signatures for independent nominating petitions of candidates for public office;
now 2.5%

Chapter 103
Relates to voting and registration for voting by formerly incarcerated individuals convicted
of a felony and to repeal certain provisions of the election law relating thereto

Chapter 110
Authorizes a change of location of early voting polling places for certain special, primary
and run-off primary elections when no voters of the municipality with the highest
population within the county are eligible to vote.

Chapter 188
Relates to the number of supreme court justices in certain districts.

69
Chapter 241
Requires the board of elections for the voting district in which an old polling place is
located to post at the entrance of the old polling location a notice informing voters that the
polling place has been moved and providing the street address of the new location.

Chapter 249
Relates to electronic applications for absentee ballots.

Chapter 250
Relates to the mailing and receipt of absentee ballots.

Chapter 260
Increases the number of registrants an election district may contain with the approval of
the county board of elections; increases number on county committee.

Chapter 273
Relates to absentee voting application deadlines; all applications requesting an absentee
ballot by mail must be received by the board of elections no later than the fifteenth day
before the election for a ballot is first requested; applications delivered in person shall be
received no later than the day before such election.

Chapter 276
Relates to candidate declination; Provides that a person designated as a candidate for
two or more party nominations for an office to be filled at the time of a general election
who is not nominated at a primary election by one or more such parties may decline the
nomination of one or more parties not later than ten days after the primary election.

Chapter 279
Relates to absentee voting by residents of nursing homes and other long-term care
facilities; provides that inspectors of the board of elections shall not physically deliver
ballots to residents of such facilities.

Chapter 310
Provides for online and in-person instruction and examination of election inspectors, poll
clerks and election coordinators.

Chapter 320
Relates to the dates by which the governor may make proclamation of a special election
to fill certain offices; provides that a special election shall not be held to fill a vacancy in
any other office subject to a proclamation by the governor unless the vacancy occurs
before the first day of April of the last year of the term of office.

Chapter 322
The bill replaces the word “inmate” with “incarcerated individuals.”

70
Chapter 480
Provides a write-in ballot cast in a party primary resulting from the filing of a valid
opportunity to ballot petition for a candidate not enrolled in such party shall be void and
not counted; makes related provisions.

Chapter 490
Relates to the definition of the term "name" for purposes of designating or nominating a
candidate for public office or party position

Chapter 521
Relates to the confidentiality of registration records for victims of domestic violence;
requires victims of domestic violence wishing to make their registration records
confidential to deliver a signed written statement swearing or affirming that they are
victims of domestic violence and due to the threat of physical or emotional harm they wish
to keep their registration record confidential.

Chapter 727
Provides an online absentee ballot tracking system to allow a voter who has submitted
an application for an absentee ballot to track the status of an absentee application and
an absentee ballot on the state board or local board website.

Chapter 746
Establishes an electronic absentee ballot application transmittal system through which
voters may apply for and submit an absentee ballot online.

Chapter 763
Relates to the canvassing of absentee, military and special ballots and ballots cast in
affidavit envelopes; repealer

Chapter 781
Enacts the "Make Voting Easy Act"; requires the board of elections to designate a number
of early voting polling places based on the number of registered voters in each county;
relates to the hours polls are open for early voting.

2020 Laws

Chapter 21
Provides for the mailing of annual voter registrant checks no more than 90 days before a
primary election, and no less than 85 days before a primary election, so such mailings
will not occur during the early voting period for such primary.

71
Chapter 24
Reduces the signature threshold for designating petitions for the 2020 election; makes
changes to the filing deadlines; and removes the filing of an Opportunity to Ballot petition
for the June 23rd Primary Election.

Chapter 33
Provides for chapter amendments to Chapter 456 of Laws of 2019, which requires that
each Opportunity to Ballot petition submitted to a board of elections be accompanied by
a certificate of acceptance completed by those appointed as the committee to receive
notices. The chapter amendments replace the term "nomination" with "appointment" and
"nominated" with "appointed" as the correct terms of art as it relates to committees to
receive notices for opportunity to ballot petitions.

Chapter 34
Provides for chapter amendments to Chapter 465 of Laws of 2019, which eliminates
duplicate financial disclosure reports for candidates and authorized political committees
who file with New York City Campaign Finance Board. The chapter amendments clarify
that if a local campaign finance board violates any one or more requirements outlined in
the Election Law, then the capacity for campaign filers to satisfy filing requirements locally
is revoked.

Chapter 55
Part JJ provides for a manual recount where the margin of victory is twenty votes or less,
where the margin of victory is 0.5% or less; or in a contest where one million or more
ballots have been cast and the margin of victory is less than 5,000 votes.

Part XX, Subpart M provides for chapter amendments to Chapter 587 of the Laws of 2019,
which require SUNY and CUNY to provide voter registration forms and absentee ballots
to students, and for these locations to assist in completion of these documents

Part XX, Subpart N provides for chapter amendments to Chapter 717 of the Laws of 2019,
relating to the requirement that a BOE shall cast and canvass a voter’s affidavit ballot if it
substantially complies with law. The chapter amendments define substantial compliance
as when the board can determine the voter's eligibility based on the statement of the
affiant or records of the board.

Part AAA amends the time off to vote law. The amended time off to vote law provides
that if a voter may receive up to two hours of paid time off to vote if the voter does not
have four consecutive hours to vote, either from the opening of the polls to the beginning
of your work shift, or between the end of your working shift and the closing of the polls.

72
Chapter 56
Part TT provides that: “if a candidate for office of the president of the United
States…publicly announces that they are no longer seeking the nomination for the office
of president of the United States, or if the candidate announces that they are terminating
or suspending their campaign, or if the candidate sends a letter to the state board of
elections indicating they no longer wish to appear on the ballot, the state board of
elections may determine…that the candidate is no longer eligible and omit said candidate
from the ballot; provided, however, that for any candidate of a major political party, such
determination shall be solely made by the commissioners of the state board of elections
who have been appointed on the recommendation of such political party or the legislative
leaders of such political party, and no other commissioner of the state board of elections
shall participate”

Chapter 58
Part ZZZ codifies the New York State public financing program; establishes the New York
state campaign finance fund; establishes the NYS campaign finance fund check-off;
amends the definition of a party to political organizations that, in last preceding election
for governor received, at least two percent of the total votes cast for its candidate for
governor, or one hundred thirty thousand votes, whichever is greater, and at least two
percent of the total votes cast for its candidate for president, or one hundred thirty
thousand votes, whichever is greater, in a year when a president is elected; and changed
the threshold for statewide independent nominating petitions to forty-five thousand
signatures from registered voters, or one percent of the total number of votes, excluding
blank and void ballots, cast for the office of governor at the last gubernatorial election,
whichever is less, of whom at least [one] five hundred, or one percent of enrolled voters,
whichever is less, shall reside in each of one-half of the congressional districts of the
State.

Chapter 87
Provides for chapter amendments to Chapter 454 of Laws of 2019, which requires that
political communications disclose the identity of the political committee that made the
expenditure for the communication. The chapter amendments clarify that the exceptions
for campaign or ballot provision committees do not apply to reporting requirements for
independent expenditure committees.

Chapter 91
Permits electronic application for absentee ballots and removes requirement that such
application be signed by the voter and provides that this provision expires on December
31, 2020.

73
Chapter 138
Permits absentee ballot applications to be sent to county boards of elections for
processing earlier than 30 days. Expires on December 31, 2020.

Chapter 139
Amends section 8-400 of the Election Law. Defines the term "illness" for the purposes of
absentee voting to include instances where a voter is unable to appear personally at the
polling place of the election district in which they are a qualified voter because there is a
risk of contracting or spreading a disease causing illness to the voter or to other members
of the public. Expires January 1, 2022.

Chapter 140
Amends section 8-412 of the Election Law. All absentee ballots that do not bear or display
a dated postmark shall be presumed to have been timely mailed or delivered if such ballot
bears a time stamp of the receiving board of elections indicating receipt by such board on
the day after the election.

Chapter 141
Amends section 9-209 of the Election Law. Requires boards of elections to notify
absentee voters when their absentee ballots contained certain deficiencies; establishes
a procedure for absentee voters to respond to notice of deficiency from the board of
elections; and provides the voter an opportunity to submit an affirmation to cure the
deficiency.

Chapter 200
Amends 4-117 of the Election Law. Requires boards of elections to print in bold type the
date and time of all upcoming primary and general elections on address verification
notices sent out prior to elections.

Chapter 232
Amends section 8-104 of the Election Law. Prohibits the making of any change, alteration
or modification to any entrance to or exit from a polling place unless such change,
alteration or modification is necessary to maintain public safety due to the occurrence of
an emergency, and requires the posting of signage in relation to such change, alteration
or modification.

Chapter 344
Amends section 8-600 of the Election Law. Requires municipalities with the highest
population in each county to have at least one polling place designated for early voting.

74
Chapter 350
Implements a system of automatic voter registration, ("AVR") within certain designated
state agency applications. The bill specifically designates the Department of Motor
Vehicles (DMV) Department of Health (DOH), the Office of Temporary and Disability
Assistance (OTDA); Department of Labor (DOL); Office of Vocational and Educational
Services for Individuals with Disabilities; County and City Departments of Social Services,
and the New York City Housing Authority (NYCHA), as agencies participating in AVR.
Takes effect January 1, 2023.

2019 Laws

Chapter 2
Allows pre-registration of 16 and 17-year-olds.

Chapter 3
Provides for statewide transfer of voter registrations.

Chapter 4
Applies $5,000 aggregate annual contribution limits to Limited Liability Companies (LLC)
contributions and provides other disclosure requirements.

Chapter 5
Provides for a June Primary Election and related changes.

Chapter 6
Provides for nine days of early voting before each primary, general and special election
conducted by boards of elections, excepting village elections.

Chapter 46
Changes the deadline for new Parties to file certificates of nomination in their first year of
existence to September 1.

Chapter 136
Authorizes the use of campaign funds for childcare expenses where they are incurred in
the campaign or in the execution of the duties of public office or party position.

Chapter 150
Permits victims of domestic violence to cast a special ballot by mail.

75
Chapter 257
Changes the current two weeks prior to election deadline to send special ballots to
election workers to anytime up to close of polls on election day.

Chapter 290
Sets out ballot access process for the Presidential Primary and elect delegates to national
conventions.

Chapter 316
Allows changes of party enrollment to take effect immediately, except that changes of
enrollment received in the period between February 14 and seven days after the primary
would be effective on the seventh day after the June Primary.

Chapter 409
Requires that an arrow be added to the ballot to indicate the ballot is two sided when
there is a ballot proposal.

Chapter 410
Requires the posting of candidate and ballot information on State Board and County
Boards of Elections websites.

Chapter 411
Updates the instructions used on ballots and standardizes them across state; eliminates
the NYC only provision in Election Law 7-116(6).

Chapter 412
Requires county boards to publish local office contribution limits on their county website.

Chapter 413
Requires boards of elections to notify all eligible voters of any special elections being held
in their jurisdiction.

Chapter 416
Requires all committees and candidates, including committees and candidates for local
office, to file campaign finance reports electronically with SBOE.

Chapter 417
Allows local board of elections to design an alternative poll site staffing plan to conduct
an election.

Chapter 418
Provides that any political committee or candidate on the ballot may have for each election
district three watchers at any one time, not more than one of whom may be within the
guard rail at any one time.

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Chapter 437
Makes the procedures for election night reporting uniform.

Chapter 438
Authorizes consolidation of certain voting districts with less than 10 eligible voters with
another district. Removes the cap on combined district, which is currently 500 total
eligible voters.

Chapter 439
Westchester County – last day to file petitions of designation or petitions of nomination,
the BOE shall remain open between the hours of 9:00 am and midnight to receive said
petitions.

Chapter 440
Clarifies committee named by an Opportunity to Ballot petition has capacity to seek
judicial relief in the same manner as a candidate named by a petition.

Chapter 441
Amends effective date for Uniform voting hours for primary elections making it effective
for the April 28, 2020 Presidential Primary.

Chapter 454
Requires that political communications disclose the identity of the political committee that
made the expenditure for the communication.

Chapter 456
Requires that each Opportunity to Ballot petition submitted to a board of elections be
accompanied by a certificate of acceptance completed by those appointed as the
‘committee to receive notices.

Chapter 465
Eliminates duplicate financial disclosure reports for candidates and authorized political
committees who file with New York City Campaign Finance Board.

Chapter 533
Provides that a court may receive sworn testimony from a signer of a designating petition
as to the authenticity of his or her own signature.

Chapter 536
Provides for the inclusion, at a voter's option, of an e-mail address in the voter registration
application and record for notices to be sent thus and by U.S.P.S.

77
Chapter 561
Provides for the election of members of the board of education of the Buffalo city school
district in November rather than in May.

Chapter 587
Requires SUNY and CUNY to provide voter registration forms and absentee ballots to
students, and for these locations to assist in completion of these documents.

Chapter 615
Requires party position for ward, town, city or county to appear on absentee ballots.

Chapter 619
Prohibits the change of name of any independent body name.

Chapter 717
Provides that a local board of elections shall cast and canvass voter’s affidavit ballot if it
substantially complies with law.

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PROOF ISSUES

Correcting Defects: Issues of Proof

When the witness statement on a designating petition contains unexplained and

uninitialed alterations, the Third Department held that the signatures on the page need
not be invalidated “where an explanation is provided by affidavit or testimony” (Matter of
VanSavage v Jones, 120 AD3d 887 [3d Dept 2014]). However, the testimony offered
must be reliable. When a designating petition contained “numerous instances of
unexplained and uninitialed alterations to the dates on numerous signature lines, many
of which were contained on petition sheets for which the [candidate] himself was the
subscribing witness” and the candidate testified at the hearing in Supreme Court, the
Second Department “decline[d] to disturb the Supreme Court’s finding that his testimony
was “unreliable, not tenable, and not worthy of belief’” (Matter of Merrill v Fritz, 120 AD3d
689 [2d Dept 2014]).
Permitting an explanation for a change after the petitioning period is different than
permitting a change. An opportunity to ballot petition with an incorrect and invalid witness
date could not be cured by the notary’s testimony offered after the petitioning period.
(Matter of Stevens v Collins, 120 AD3d 696 [2d Dept 2014]). Similarly, a subscribing
witness statement dated before the date of the signatures was held not to be cured by an
explanatory affidavit the witness failed to file before the end of the petitioning period
(Matter of Quinn v Erie County Bd. of Elections, 120 AD3d 992 [4th Dept 2014]).

Proof Generally

Parties can chart their own procedural course and when parties stipulate to allow
certain claims and admit certain evidence, there is no merit to a subsequent claim that
such claim or evidence should not be considered by Supreme Court (Matter of
Rosenblum v Tallman Fire Dist., 117 AD3d 1064 [2d Dept 2014]).

79
ELECTION LAW VIOLATIONS

Election Law Violations

A conviction pursuant to Election Law § 17-122 (7) requires the subscribing

witness to have “knowledge that the statement subscribed and sworn to by him or her
was known by him or her to be false” (People v Fonvil, 116 AD3d 984 [2d Dept 2014]).
An alleged bribery payment made to secure a certificate of authorization can be
the foundation of a bribery scheme charge (People v Smith, 985 F Supp 2d 547 [SDNY
2014]).
The Election Law § 17-102 [10] provision making it a misdemeanor for an election
worker to knowingly permit electioneering in a polling place is not unconstitutionally vague
(People v Maldonado, 63 Misc3d 716 [Dist Ct Nassau 2019]).

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COURT ACTIONS

Judicial Review

Election matters are generally brought in the Supreme Court of the county
involved. For our purposes, the Supreme Court is the lowest level court in the system. It
is also the court with the broadest or widest jurisdiction and authority. Supreme Court is
generally in session on a daily basis. Most election matters are started by filing and
serving an Order-to-Show-Cause which requires the parties to appear before a judge on
a specific day. Usually, any hearing the judge is inclined to hold will happen on that date.
Decisions are often delivered orally from the bench the same day, or, if written, within a
day or two, depending upon the judge’s schedule.

If the losing party is so inclined, they can appeal the decision to the appropriate
appellate division. The appellate divisions have specific blocks of time when they hear
appeals and will sometimes set aside specific days during that block of time for hearing
elections cases. In the lower court, one judge hears the matter and makes the decision.
At the appellate division, there is a five-judge panel which hears the matter and renders
a written opinion as expeditiously as possible.

The last level of appeal within the state system is to the Court of Appeals, which is
the court of last resort. The number of days set aside for elections matters by this court
is very limited. There is a very formal procedure whereby parties ask permission to bring
an appeal.

Relief Impossible

A court may determine that a party entitled to relief under the law will not receive
such relief if it is a true impossibility for the relief to be provided. Always, such a
determination of “impossibility” turns on the specific facts of a particular case (Pidot v
Macedo, 141 AD3d 680 [2d Dept 2016]). The following cases demonstrate the application
of this principle.

In an appeal regarding a designating petition for a candidate to appear on the

September 2014 primary ballot, the Second Department held, on October 8, 2014, that
“it would be impossible, if this Court were to entertain the merits, to render meaningful
relief in accordance with the Election Law (Matter of Semple v Laine, 121 AD3d 798 [2d
Dept 2014]).

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 A challenge to the configuration of the Suffolk County ballot was brought, and given
the particularized facts and circumstances presented to the court, the court noted it would
be “impossible to render[] petitioner any meaningful relief given that Election Day now is
just eleven days away” (Hensley v Matthews, 2014 NY Slip Op 32742(U) [Sup Ct Suffolk
County 2014]).

In Pidot, the Second Department held that adding petitioner to the primary ballot
when the primary was four days from the date of Supreme Court’s final order was
impossible (141 AD3d at 681). The court also denied the petitioner’s application for a
new primary election because such relief was not sought in the petition. The Appellate
Division also noted that though Supreme Court validated Pidot’s designating petition, a
valid petition is not always dispositive of “whether an election is held or not” (Id. quoting
Messina v. Albany Co. Bd. of Elections, 66 AD3d 1111 [3d Dept 2009]).

Party Chair Standing

A town chairperson lacks standing to commence a proceeding pursuant to Election

Law § 16-102 (1) to invalidate a petition (Axelrod v Reda, 120 AD3d 671 [2d Dept 2014]).
However, a chairperson may challenge a petition, notwithstanding Election Law § 16-102
(1), when the party rules provide that a candidate could only be nominated by caucus, not
a primary. Anderson v. Scannapieco, 54 Misc3d 242 [Sup Ct Nassau 2016].

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Table Summarizing Actions

Election/ Who Can Bring Time to Proper Court Election

Proceeding Commence Law
Section
Primary/Invalidate aggrieved candidate; Within 14 days of Supreme Court §§16-100;
designating or objector; party last day to file 16-102(1)(2)
OTB Petitions chairperson in a petition
contested primary

Primary/Validate candidate; committee Within the later of Supreme Court §§16-100;

designating or to receive notices on 14 days of last day 16-102(1)(2)
OTB Petitions OTB to file or 3 days of
invalidation

Primary Results aggrieved candidate; Within 10 days of Supreme Court §§16-100;

chairman of party primary 16-102(1)(2)
committee

General/Caucus aggrieved candidate; Within 10 days of Supreme Court §§16-100;

proceedings or enrolled objector for filing of certificate of or County Court 16-102(1)(2)
certificate of proceedings nomination
nomination challenge; objector for
challenge to certificate

General/invalidate aggrieved candidate; Within 14 days of Supreme Court §§16-100;

nominating objector last day to file or County Court 16-102(1)(2)
petition

General/validate aggrieved candidate Within the later of Supreme Court §§16-100;

nominating 14 days of last day or County Court 16-102(1)(2)
petition to file or 3 days of
invalidation

General/Judicial aggrieved candidate; Within 10 days of Supreme Court §§16-100;

Convention enrolled objector if holding of 16-102(1)(2)
proceedings or challenge to convention
certificate of proceedings; party
nomination chairperson; objector
if challenge to
certificate

Special objector; aggrieved Within 10 days of Supreme Court §§16-100;

Election/Certificat candidate filing of certificate or County Court 16-102(1)(2)
e of Nomination
by Party
Committee

Special aggrieved candidate; Within 7 days of last Supreme Court §§16-100;

Election/Invalidate objector day to file or County Court 16-102(1)(2)
nominating
petition

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Election/ Who Can Bring Time to Proper Court Election
Proceeding Commence Law
Section
Special Election/ aggrieved candidate Within the later of 7 Supreme Court §§16-100;
Validate days of last day to or County Court 16-102(1)(2)
nominating file or 3 days of
petition invalidation

Village aggrieved candidate; Within 7 days of last Supreme Court §§15-138;

Elections/invalidat objector; party day to file or County Court 16-100;
e designating or chairperson in a 16-102(1)(2)
independent contested primary
nominating
petition

Village aggrieved candidate Within the later of 7 Supreme Court §§15-138;

Election/validate days of last day to or County Court 16-100;
designating or file or 3 days of 16-102(1)(2)
independent invalidation
nominating
petition

Village Elections: candidate; chairman Within 10 days of Supreme Court §§16-100;

Casting/Canvassi of party committee; the election or County Court 16-106(1)(5)
ng or refusal to voter whose ballot
cast/canvass was not
ballots cast/canvassed

All other candidate; chairman Within 20 days of Supreme Court §16-

Elections: of party committee; the election 106(1)(5)
Casting/Canvassi voter whose ballot
ng or refusal to was not
cast/canvass cast/canvassed
ballots

General/Challeng attorney general; Within 20 days of Supreme Court §§16-100;

e return of chairman of party election or alleged 16-106(3)(5)
canvass on state committee erroneous
statewide statement or
proposition determination

Right of individual registered voter in No limitation in the Supreme Court §16-108(1)

to be registered subject county; the Election Law; within or County Court
state board of 4 months of the
elections determination of the
challenge to the
registration pursuant
to §5-218 and §5-
220 under CPLR
§217

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Election/ Who Can Bring Time to Proper Court Election
Proceeding Commence Law
Section
Challenge board’s aggrieved voter No limitation in the Supreme Court §16-108(1)
denial to register Election Law except or County Court
individual the aggrieved voter
must petition the
BOE within 2 weeks
of the last day to
register or within 5
days of the voter’s
receipt of the notice
of rejection
whereupon the BOE
shall make of final
determination within
1 week pursuant to
Election Law §5-224
and the voter may
judicially challenge
within 4 months of
the final denial
under CPLR §217

Challenge board’s aggrieved voter No limitation in the Supreme Court §16-108(4)

denial to issue Election Law; the or County Court
absentee ballot or prime issue is
application for mootness as the
same proceeding must be
brought and
concluded in time
for the absentee
ballot to be properly
cast.

Challenge denial aggrieved voter No limitation in the Supreme Court §16-

of right to vote Election Law; the or County Court 108(3)(6)
prime issue is in First &
mootness as the Second
proceeding must be Departments,
brought and supreme court
concluded in time justices must be
for the voter to assigned to sit
actually vote. See at local BOEs or
election Law §16- other locations
108(3) for Election for this purpose;
Day applications to it is
vote on the discretionary in
machine. the rest of the
state.

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Service of Process
In an Election Law proceeding the petitioner has an obligation to file the initiating
papers and serve them on the named respondents, including the board of elections,
before the end of the limitations period. (Stora v. New York State Bd. of Elections, 208
A.D.3d 1213, 1214, 174 N.Y.S.3d 137, 139, appeal dismissed, 38 N.Y.3d 1180, 195
N.E.3d 532 [2022], cert. denied, 143 S. Ct. 587, 214 L. Ed. 2d 348 [2023]; McCrory v.
Westchester Cnty. Bd. of Elections, 216 A.D.3d 857, 188 N.Y.S.3d 658 [2023])The
method of service described in the Order to Show Cause is jurisdictional and must be
strictly complied with (Streng v Westchester County Board of Elections, 131 AD3d 652
[2d Dept 2015]; Fonvil v Audain, 131 AD3d 630 [2d Dept 2015] [citing Election Law
Section § 6-116 requiring proceeding to be brought ”upon such notice to
such…persons…as the court or justice shall direct”]). The Court of Appeals held in
Angletti v Morreale, that where an Order to Show Cause provides for service by “nail and
mail”, the mailing prong of service is satisfied by putting the papers in the mail stream on
the last day of the limitations period (25 NY3d 794 [2015]). “[T]here is no sound reason
to adopt a rule that would effectively shorten the very brief period of limitations applicable
to election cases—ranging from 3 to 14 days…where the proceeding has already been
timely commenced by filing, respondent has notice thereof by the nailing method of
service, and imminent delivery of the mailing made within the limitations period can be
expected” (Id. at 798).

Affirmative Relief--A Separate Proceeding

Currently, there is a split in the Appellate Divisions as to whether a separate

validating proceeding is necessary where the respondent wishes to challenge in court
determinations of the board invalidating any portion of a designating or nominating
petition. In Aguirre v Hernandez, the petitioners brought a proceeding challenging an
opponent’s designating petition (131 AD3d 716 [2015]). After the matter was
commenced, the board of elections declared the subject designating petition invalid. After
the limitations period to bring a validating proceeding had passed, the candidate removed
from the ballot then served his answer containing a crossclaim for reinstatement to the
ballot. The petitioner withdrew the underlying proceeding and argued the cross claim was
improper. The court agreed, noting permission was not obtained to bring the cross claim
and holding that the cross claim was “in actuality, an improper and untimely attempt to
commence a proceeding to validate [the] designating petition” (Id. at 717 see also
MacKenzie v Ghartey, 131 AD3d 638 [2d Dept 2015]; Nagubandi v Polentz, 131 AD3d
639 [2d Dept 2015]).

However, in Sheldon v Bjork (142 A.D.3d 763 [4th Dept 2016]), the Appellate
Division concluded that the trial Court properly entertained the respondent's challenge to
a Board of Elections’ determination invalidating certain signatures, even though a
separate action was not commenced, reasoning that the affidavit in opposition to the
petition “was adequate to alert the petitioner [ ] that the signatures previously declared
invalid would be contested” (Id.citing Halloway v Blakely, 77 AD2d 932, 932 [2d Dept
1980]).

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Notice to Attorney General of Constitutional Challenge

Failure to provide notice to attorney general of constitutional challenge as required

by Executive Law § 71 and CPLR 1012 [b] [1] is grounds for dismissal of constitutional
claims but not basis for dismissal of other election law claims raised in the pleadings
(Luthman v Gulino, 131 AD3d 636 [2d Dept 2015]).

Venue for Constitutional Challenge to the Election Law

In 2023, the law was changed to provide for the venue for any legal action or
proceeding to challenge the constitutionality of a provision of the election law. In any such
action or proceeding and any related statutory claims, venue must be in the courts of a
judicial department where one plaintiffs is located: (a) first department: New York County;
(b) second department: Westchester County; (c) third department: Albany County; or (d)
fourth department: Erie County.

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Table Summarizing New York Court System

NYS COURT OF APPEALS

Highest level state court, also called court of last resort.

APPELLATE DIVISION
The statewide appellate court is the Appellate Division, which is divided into four departments. Each
department is made up of several judicial districts. The departments, and the districts and
corresponding counties are listed in the following table.

First Department Second Department

1st JD 2nd JD:

New York [Manhattan] Kings [Brooklyn]

12th JD 9th JD:

Bronx Dutchess Putnam
Orange Westchester
Rockland

10th JD:
Nassau Suffolk

11th JD:
Queens

13th JD:
Richmond [Staten Island]

Third Department Fourth Department

3rd JD: 5th JD:

Albany Rensselaer Ulster Herkimer Lewis Onondaga
Columbia Schoharie Jefferson Oneida Oswego
Greene Sullivan
7th JD:
th
4 JD: Cayuga Ontario Wayne
Clinton Hamilton Schenectady Livingston Seneca Yates
Essex Montgomery Warren Monroe Steuben
Franklin St. Lawrence Washington
Fulton Saratoga 8th JD:
Allegany Erie Orleans
6th JD: Cattaraugus Genesee Wyoming
Broome Delaware Tioga Chautauqua Niagara
Chemung Madison Tompkins
Chenango Otsego
Cortland Schuyler

SUPREME COURT
Located in each county, this is a court with general, or wide jurisdiction or authority

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