Casting and Canvassing Ballots in New York

What Are the Laws on Casting and Canvassing Ballots?

Background

“To cast a ballot in New York State, an individual must be both qualified and registered to vote.” (Tenney v. Oswego Cnty. Bd. of Elections (2021) 71 Misc. 3d 400, 406 citing Election Law § 5-100 ; NY Const. Art. II, §§ 5, 6.) “Voter registrations are actively maintained through the statewide system known as NYSVoter, the ‘official’ registration database for all of New York.” (Tenney , id., citing Election Law § 5-614[1], [3][h]; 9 NYCRR 6217.1 [a], [b].)

“Through NYSVoter, the eligibility status of every voter is tracked in accordance with regulations promulgated by the State Board of Elections.” (Tenney, id., citing 9 NYCRR 6217.9 and 6217.10.) “Qualified individuals who are currently registered, and eligible, to vote on the NYSVoter system are categorized as ‘active’ (they will be listed in the local poll books) or ‘inactive’ (they will not be listed in the local poll books). (Id., citing 9 NYCRR 6217.9 [a].) “Individuals who were previously registered to vote, but removed by election officials, are identified as ‘purged.’” (Id. )

General Information for Complaints and Motions

Contesting Casting and Canvassing of Ballots

“Election Law § 16-106 vests Supreme Court with subject matter jurisdiction in a proceeding ‘instituted’ by a ‘candidate’ to ‘contest’ ‘[t]he casting or canvassing or refusal to cast ... void or canvass absentee ... ballots’ [Election Law § 16-106], provided that it is brought ‘within twenty days’ after the ‘election’ or the Board's ‘alleged erroneous ... determination.’” (In Matter of Alessio v. Carey (2008) 849 N.Y.S.2d 187, 2 citing Election Law § 16-106.)

Ministerial Errors by a Board

Election Law § 16-106(1) requires the Courts to order the casting and canvassing of all ballots rendered invalid solely because of a ministerial error by a Board of Elections or its employees.

“Ministerial errors are clerical or other minor errors apparent on the face of the ballot and the Boards’ records, such as overlooking a voter's registration records, improperly rejecting timely submissions or failing to properly timestamp ballots.” (Tenney, supra, 71 Misc. 3d at 409 citing Matter of Gross v. Albany County Bd. of Elections (2004) 3 N.Y.3d 251, 259 n.3.)

One Vote Rule

“An individual may only vote once in an election.” (Forman v. Haight (2020) 69 Misc. 3d 803, 132 N.Y.S.3d 531 citing Election Law § 17-132[3].) “Accordingly, an affidavit ballot from an individual who previously signed the poll book upon receiving a machine ballot, with no Board record that the machine ballot had been spoiled, cannot be cast, or counted.” (Tenney v. Oswego Cnty. Bd. of Elections (2021) 71 Misc. 3d 400, 411.)

Fruadulent Ballots

“Court takes every allegation of fraud very seriously. A candidate challenging a ballot on the grounds that it was fraudulently cast bears the burden of establishing, by clear and convincing evidence, that fraud was committed, including disproving any non-fraudulent explanations." (Tenney, supra, 71 Misc. 3d at 412 citing Malone v. Rockland County Bd. of Elections (2013) 973 N.Y.S.2d 235; Vacco v. Spitzer (1998) 179 Misc. 2d 584, 586.)

The Court’s Decision

“With respect to the Election Law, [courts] have cautioned that ‘where ... the Legislature erects a rigid framework of regulation, detailing ... specific particulars,’ there is no invitation for the courts to exercise flexibility in statutory interpretation.” (Kosmider v. Whitney (2019) 34 N.Y.3d 48, 55 citing Matter of Gross v. Albany County Bd. of Elections (2004) 3 N.Y.3d 251, 258, quoting Matter of Higby v. Mahoney (1979) 48 N.Y.2d 15, 20 n. 2.) “Legislative pronouncements specific to voting and the electoral process must be faithfully executed, as ‘[t]he sanctity of [that] process can best be guaranteed through uniform application of the law.’” (Kosmider v. Whitney (2019) 34 N.Y.3d 48, 55 citing Matter of Gross (2004) 3 N.Y.3d at 258.)

“[A] Court [...] does not have the authority — regardless of the seriousness of the problems in [an] election — to order the Boards of Elections to conduct a recount, or to hold a new election.” (Tenney v. Oswego Cnty. Bd. of Elections (2021) 71 Misc. 3d 421, 425-26 citing Lester v. Grunner (1953) 205 Misc. 67, 72.) “While the Legislature recognized this limitation and changed the law permitting recounts for elections held in 2021 and beyond, [...] there is nothing more that this Court can do in its limited role with respect to the 2020 election. Only the House of Representatives can order a new election or recount in this race." (Tenney v. Oswego Cnty. Bd. of Elections (2021) 71 Misc. 3d 421, 425-26 citing Election Law § 9-208[4]; Procedures for Contested Elections https://crsreports.congress.gov/product/pdf/RL/RL33780, pp.13-16.)

Documents for Casting and Canvassing Ballots in New York

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Newsmax Media, Inc. v. John Catsimatidis, Red Apple Media Inc., Wabc Radio Foundation Inc. document preview

EXHIBIT(S) - A - Complaint in Underlying Proceeding

176 pages

FILED: NEW YORK COUNTY CLERK 04/29/2024 11:39 AM INDEX NO. 153957/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/29/2024 EXHIBIT A FILED: NEW YORK COUNTY CLERK 04/29/2024 11:39 AM INDEX NO. 153957/2024 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/29/2024 EFiled: Au…

Case Name Newsmax Media, Inc. v. John Catsimatidis, Red Apple Media Inc., Wabc Radio…