Flawed use of law works to invalidate ballots
A couple of weeks ago there was an “Incident at Malta,” which would make a great name for a novel, something akin to “Appointment in Samarra.”
Unfortunately, the story behind it is true, and it’s about our local Malta, not an island nation in the Mediterranean Sea.
I write with regard to the outrageous decision of Judge Robert Chauvin (keep that surname in mind) to void the unequivocal intent of two voters to cast their absentee ballots for Cynthia Young in the recent election for Malta town supervisor.
If the two ballots are reinstated by higher court judges, Ms. Young will become supervisor by one vote; if neither is, incumbent Paul Sausville will be elected to another term by one vote; and if only one ballot is reinstated, the election will be declared a tie, which, though easily resolved in favor of Mr. Sausville, will leave a bitter taste for miles around for decades.
What the law says
Judge Chauvin apparently based his decision on Section 6210.13 of New York state election law, whose first part reads:
“(1) A ballot that is marked or signed by the voter in such a way that it can be identified from other ballots must be voided and none of its votes counted. Examples of such markings include, but are not limited to: voter signature, initials, voter name and address, voter identification number, messages or text, or unusual markings not related to indication of the vote choice for a contest. If there are distinctly identifiable markings on one page of a multiple-page ballot, the entire ballot must be voided.”
In this context, “distinctly identifiable markings” means markings that would enable anyone entitled to examine the ballot to know the identity of the person who cast it. Certainly the “voter name and address” would do that. Whether all of the other items in the above list would also do so is something I will return to in due course. Now here is the second part of Section 6210.13:
“(2) A vote for any candidate or ballot measure shall not be rejected solely because the voter failed to follow instructions for marking the ballot. If, for any reason, it is impossible to determine the choice of the voter for any candidate or ballot question, the vote for that candidate or ballot question shall be considered void.”
That the two voters clearly voted for Ms. Young is not in question. So we proceed to the third part:
“(3) 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. Such marks may include, but are not limited to, properly filled in voting position targets, cross mark, a check mark, circles, completed open arrow, or any other clear indication of the voter’s choice. A mark crossed out by the voter, an erasure, or words such as ‘no’ next to a candidate’s name or a voting position target area for a ballot question shall not be considered to be a valid vote but will, instead, be deemed an indication that the voter did not choose to cast a vote for that candidate or measure and the vote for that candidate or proposition shall be considered void.”
Now, a photo in The Saratogian of one of the two disputed ballots shows that the voter who cast it, instead of leaving both the “yes” and “no” squares for a particular proposition blank, chose to emphasize the desire to abstain on that issue by placing a horizontal line through the two squares and adding the notation “no vote.”
Both the added words and the line were clearly placed in “a voting position target area for a ballot question,” and part (3) above merely says that the vote for that proposition shall be void, the outcome that the voter wanted. And since the voter marked his or her intent precisely as sanctioned by (3) and it was not an “identifiable marking” as prohibited by (2), there is no other basis for voiding the whole ballot and withholding a vote for Ms. Young.
If, and I believe “when,” the Third Judicial Department of the Appellate Division in Albany reinstates that ballot, and if they do only that, a tie-vote would ensue that would result in a vacancy in the office of town supervisor as of Jan. 1, and that would immediately be filled by the four other members of the Malta Town Board, all of the same political party as Mr. Sausville.
So, attention must now turn to the stickier wicket, the second allegedly problematic absentee ballot. On this ballot, shown on the online Ballston Journal of Nov. 21, the voter scratched out the YES square on a proposition and, to the left of the allowed NO VOTE, wrote what Judge Chauvin apparently declared were “initials,” one of the forbidden categories of notations according to part (3).
If they are, they are the initials of a person with a strange name, one with an initial capital letter for his or her first name but a small letter to start the surname. I printed out the photo of the ballot and, even with a good magnifying glass, could not ascertain whether the notation read Am, Pm, Dm, Rn, or any other sensible combination of letters (if, indeed, they are letters at all).
Then, overnight after making my first draft of this screed, I awoke, possibly from a dream I didn’t remember, and realized that ‘Am’ is being used as an abbreviation for “Amendment.” With the notation “Am No Vote,” the voter is trying to say “I choose to abstain on Am(endment) Number Four, and on only that proposal, not on any other issue or contest on my ballot.”
Section 6210.13 is clearly defective. “Initials,” even combination of two or three capital letters, would not allow identification of the voter without access to the envelopes in which absentee ballots were received, and these have long since been locked away for safe keeping.
It would be a travesty for the court to deny victory to Ms. Young because some unknown voter scribbled something on the part of an absentee ballot unrelated to the area reserved for the election of people rather than for propositions, something that Judge Chauvin chose to call “initials.”
Law needs changing
Regardless of the outcome, election law should be amended to give absentee voters the same chance to have their vote counted as voters who are able to come to the polls.
When, on Election Day, a voter inserts a faulty ballot into our new style OCR machines, the ballot is expelled and the voter can ask for a replacement and try again. Absentee ballots should be identical to those used at the polls, which is not necessarily the case now, and run through a machine for the validity check.
Just as IBM’s Watson computer beat humans at Jeopardy, the OCR machines are smarter than humans for such a task, and, when the candidate in jeopardy happens to be a woman, would be less likely to have its decision called Chauvin-istic.
Edwin D. Reilly Jr. lives in Niskayuna and is a regular contributor to the Sunday Opinion section.