The opinion
Kuczynski v Marshall
2025 NY Slip Op 30509(U)
February 14, 2025
Supreme Court, Saratoga County
Docket Number: Index No. EF2025443
Judge: James E. Walsh
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: SARATOGA COUNTY CLERK 02/14/2025 03:46 PM INDEX NO. EF2025443
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 02/14/2025
At Supreme Court of the State of New York
Held in and for the County of Sara toga,
At the Courthouse located at 30 McMaster
Street- Building #3, Ballston Spa, New York
12020 on the 7th day of February, 2025
PRESENT: Hon. James E. Walsh, J.S.C.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SARATOGA
HANK KUCZ"YNSKI; DECISION AND ORDER
Petitioner, RJI # 45-1-2025-0157
-against- INDEX #EF202544 3
CHARLES MARSHALL,
.Responden t-Candidate ,
-and-
CASSANDRA BAGRMHA N and
JOSEPH SUHRADA, Commission er
Constituting the Saratoga County Board of Elections,
Respondent s
The instant matter is brought on by Order to Show Cause under Article 16 of
the NYS Election Law, filed on January 31, 2025 and made returnable on .February
7r 2025. A second Order to Show Cause under Index #EF2025521 was initiated by
Respondent -Candidate Marshall and signed on the return date of the instant matter~
The Court will consider only the first Order to Show Cause, recognizing that the
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second matter was a procedural place holder, to ensure. that any relief requested by
Petitioner Kuczynski would also be. available to Respondent -Candidate Marshall.
Petitioner Kuczynski is objecting to the actions, or 'lack thereof, taken during
canvassing of ballots by the Saratoga County Board of Elections. The Commission ers
of the Saratoga Board of Elections ·have a disagreemen t as to whether 106 ballots
should be included in the special election canvass. The public office in dispute is for
that of Commission er of Public Works for the City of Saratoga Springs. Mr. Henry
"Hank" Kuczynski was a write~ in candidate for said office (Petitioner Exhibit 1), while
Mr. Marshall's name appeared on the ballot for the same office.
By stipulation, the parties agreed to certain facts at the outset of the hearing
in this matter. The first stipulation was that Charles ''Chuck'' Marshall received 1757
·votes by total voted on machines, and that an additional 3 votes were cast for Mr.
Marshall by way of affidavit ballots. Thus, the parties stipulated that Mr. Marshall
received a total of 1,760 votes for the public office of Commission er of Public Works.
The parties further agreed that the Board of Elections would be required to count any
valid ballot which arriyes up until February 10, 2025. Election Law § 16-116 tells
the court that election proceedings will have. a preference over all other causes in all
courts. The underlying mission of the Court is to deliver equal justice unde'r the law.
Again, by stipulation, the parties agreed that Mr. Kuczynski ·received 1,663
valid write in votes. The central issue before. the Court is the status of 106 ballots
(Board of Elections Exhibit A) which at the time of the hearing in this matter were
not included in the canvas due to objections made by Mr. MarshaU1 and the resulting
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split.decisions by the Election Commissioners. Board ofElections Exhibit.A is a 123-
page document which is comprised of copies of the actual disputed ballots, which
contain. handwritten notes to illuminate the rulings made by each of the Saratoga
County Board of Election Commissioners, both whom are Respondents inthis matter.
The Parties stipulated that the Court would takejudicial notice that Respondent
Commissi';mer Bagramian voted to validate. and canvass all .1 06 ballots, and that
Respondent Commissioner Suhrada voted to invalidate all 106 ballots at the time of
the canvas,_' based upon objections made during the canvass. 1 The Board of Elections
Exhibit A contains ·123 ·pagesr which are "Bates marked", as the parties agreed to
include slip sheets to identify the date and manner in which each ballot was cast.
Board of Elections Exhibit "A" Bates numbers 5, 8, 11; 14, 17, 20, 26, 32, 40, 49, ,52,
54, 55, 57, 59, 61 are the blank slip sheet pages. (See Petitioners Exhibit #7, which is
a 4-page summary of the Bates numbers, objections, what type of ballot and when
said ballot was casL)
Public confidence m our electoral system is· the foundation of American
democracy; and it must never be compromised. Toensure fair and orderly elections
and promote public ·confidence, the: New York State Legislature has designed and
adopted a comprehensive statutory framework consisting of 17articles governing the.
entire electoral process. Higby v. Mahoney, 48 NY2d 15, 21 [1979]. Under the Election
1 The parties also advised the Court that between 21 and 25 machine-counted ballots may have been undercounted,
but sufficient proof regarding these ballots was not presented during the hearing. Following the conclusion of
submission, Petitioner requested that the Court rule on addressing the undercounted machine, votes, while
Respondent-Candidate objected. In view of the Court's analysis of the contested ballots, further examination of this
tranche of ballots appears academic.
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Law, the power of the judiciary to intervene is intentionally limited, and can only be
~
. .
called upon by candidates to preserve procedural integrity and "ensure the strict and
uniform application of the election law." Shiro// v. NYS Board of Elections, 77 .Misc.3d .
773 1 776 [Onondaga Sup. Ct. 2022),. citing Election Law·§ 16-106[4]; Matter of Gross
v. Albany County Bd. of Elections, 3 NY3d 251, 258 [2004].
~,
"We note at the outset the well~established principle that '[b]road policy
considerations weigh in favor of requiring strict compliance with the Election Law ...
[for] a too-liberal construction ... has the potential for inviting mischief on the part of
candidates,. or their supporters or aides, or worse still, manipulations of the entire
election process''' Matter of Gross v·. Albany County Bd. o/ Elections, 3 NY3d 251,258,
(2004], quoting Matter of Staber v.. Fidler, 65 NY2d 529, 534 [1985]. See also, Alessio
v. Carey, 49 AD3d 1147 [4 th Dept. 2008].
As the question ·presented centers exclusively around ballots with write-in
votes 1 the Court .must consider Election Law §8-308 as well . as §9-112; Petitioner
Kuczynski, by way of a January 15, 2025 correspondence with the Saratoga County
Board of Elections_, informed said board of his "write-in'' campaign. (See Petitioners
Exhibit #1). Addit10nally, Petitioner Kuczynski testified that he had never run a
write-in campaign and neededto take steps to help wage a successful caII1:paign. (See
Petitioners Exhibit #2). Indeed, literature was created on behalf of Petitioner to
attempt to educate the voters in this special election as to how to cast a "write.-in"
ballot. As the legislature has considered the necessity for writing in votes, they
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established such a provision in Election Law §8~302, which allows such names to be
written upon the ballot; and the legal framework to be undertaken.
The. role of the Court is, therefore, very simple: to set forth the1aw as enacted,
and to make sure that the law is followed. Election Law § 16-106 grants the Court
the authority to oversee the casting and . canvassing of ballots. Between 2015 and
2023, theNYS Legislature has made at least one hundredforty-four (144) changes to
the NYS Election Law. SeeElection Law Update, NYS Board of Elections 2018- 2023.
These changes did not alter the controlling sections of either Election.Law §8-302 nor
§9-112. Duringher testimony~ Respondent Commissioner Bagramian argues that §9~
112 states that the ballot should not be declared void or blank should the Courfbe.
able to understand the intent of the voter.
The election law in general has been constructed to ''prevent fraud, preserve
·secrecy and to secure freedom of choice, they should ·not be construed as. to make the
right of voting insecure." See New York Election Law, page 223 by Lewis Abrahams?.
Dennis & Co., Inc. ·[1950]. Certainly no fraud has been alleged.in this matter1 but the
reasoning behind the statue is to .reinforce public confidence: in both the. electoral
system and the freedom of choice.
Respondent Commissioner Bagramian testified that discerning the 1ntent of
the voter was a newer requirement, brought about by more recent changes in the
Election Law; The Court disagrees, as the intent of the voter has been taken into
consideration for ~ell over 100 yearsa See generally, Matter of Hearst, 48 Misc. 441
[NY Sup .. Ct. 1905]; See also, section 219 of the Election Law of 1922. "If the intention
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of the voter can be fairly ascertaine d from his ballot and it appears that he acted
honestly 1the voter should not be disfranch ised or deprived of his right to vote through
mere inadverte nce, mistake or ignorance, even though the marking is not in strict
conformity with the law." Abraham s NYS Election Law1 page 224, id. Such
requireme nts pertain to the mark for voting, as unintende d extrinsic marks, unless
identifying, are not meant to invalidate a ballot. However? the vast majority of ballots
I· that have been objected to inthis case are due to the words printed on the ballot, by
the voter, outside the. voting area.
Responde nt Commiss ionerBag ramian's testimony may have been referring to
Chapter 228 of the Laws of2022 t as said chapter amended the method of absentee.
voting, addressed by Election Law §8-410f but such is not clear .. In the .instant matter,
only two absentee ballots (Board of Elections Exhibit A; Bates ·pages 1 and 2) had
objections filed and preserved for. review by this Court; As no argument has been
made with respect to Election Law §8-410, except the vague reference to voter intent,
the. Court will center its analysis regarding Election Law §8-308(3), together with the
§9-112(1) and controllin g caselaw:
Election Law §8-308(3) provides "A write-in ballot must be cast in its
appropria te place on the ballot, or it shall be .void and not counted." Emphasis added.
Election Law § 9-112 provides that: "The whole ballot is void if the voter ... makes
any erasure thereon or .... makes any mark thereon other than a cross X.mark or a
check V mark in a voting square." Emphasis added. The. Third Departme nt of the
Appellate Division has consisten tly ruled that "written words deliberate ly placed on
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the ballot by the voter, render ... the entire ballot invalid." Matter of Scanlon v.
Sauago, 160 AD2d1162 [3 rd Dept.1990]; See also, Matter of Young v. Fruci, -112 AD3d
-1138 [3rd ·Dept. 2013].
As a general rule, words_appearing upon the ballot will void the ballot. (See,
Matter of Scanlon v .. Savago, 160 AD2d 1162 [3 rd Dept. 1990]. That rule has
exceptions. One such exception has been allowed by the legislaturein Election § 8-
308, but that exception has language which limits where the name of the candidate
·' ' . ' '• . . ·. .
may appear. Particularly, the court must view Election Law §8-308(3) together with
the §9-112(1), in a light to follow the_extremely detailed Jaw as enacted by the
legislature.
A review of many of the contested ballots shows .that in one -form or another
the words "Dem, Dem., Democrat, Democrat, D., Democratic1 Democrate [sic] or just
the initial D appear in some form onthe following 63 ballots, identified as Bates page
:numbers from Board of Elections Exhibit "A" as: 2 1 3, 4, 13, 18, 19, 21, 22, 23, 24, 27,
29,30, 33, 34,35,36,41, 47,48, 50; 51,53, 58,63,64,65,66,67,68,69, 72, 73,74,
75,76,77,80,83,84,85,86,87,90,91,92,93,96,97,98,101;104,105, 108,110,112,
114, 115, 116, 117, 119, 120 and 121. Said word(s) added to the ballot appear onthe
ballot, outside the area designated ·for a "write-in" vote. They appear in different
columns of the ballot, are in some places duplicated in multiple separate places. Some
of the above-listed ballots also have other infirmities which will be outlined below.
Containing words outside the write-in space invalidate these ballots, pursuant' to
Scanlan and Young.
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Additionally~ on two ballots Board of Elections Exhibit "A", Bates pages 31 and
81, the words Commissioner of Public Works or Public Works Commissioner have
been written upon the ballot in the column under the pre-printed, word Office in
addition to the name of the candidate written into the write~in space upon the ballot.
Likewise, these ballots, containing words outside the write-in space, are invalid.
Board of Elections Exhibit A, Bates page 79 in the voting square has the name
of the Petitioner, with some type of extraneous mark which appears fo be crossed out, .
with initials next to the mark, As such, said ballot may not be canvassed, as it
contains information identifying the voter, as well as cross-outs. Nor should the Ballot
Exhibit A, Bates page 41, with Democrat written under the preprinted. word
Republican with an arrow toward the bottom of the. page., and the name. of the
Pedtioner written twice upon the ballot, one wdting inside the space designated for
the write-in vote, and the other 5 rows above it under the name of Respondent
.Marshall. A second long arrow is drawn down the ballot. This represents another
intentional marking, other than words, which would violate the ballot, according to
both Election Law §8-302 and § 9-112 1 rendering Bates page 41 as an invalid ballot .
.Bates page 25 contains the written name of Petitioner outside of the write-in box and
cannot be counted.
In additionto the word Democrat written upon Board of Elections Exhibit "A'\
. . .
.Bates page. 2, the ·voter has darkened the oval for Charles Marshall, placed the "X" in
that voter square, and also wrote in the name of Hank Kuczynski, which voids this
ballot for a second reason of voting for both candidates. Likewise, Board of Elections
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Exhibit "A'\ Bates pages 38, 43, 46 and lllcontain writing outside the write-in box,
along with cross-outs, rendering these ballots invalid.
With respect to Board of Elections Exhibit "A", Bates page 82, the name of
Petitioner is written in three times in the area provided for a ·write in vote. Placing
the name three times is concerning, as it could tend to identify the individual who
cast that ballot. Board of Elections Exhibit "A", Bates page 60, the ballot contains the
name of the Petitioner, in a space belowthe title of public office. Said name written-
illwas located outside of the designated .write-in area of the ballot and this Court is
bound to follow the statute and controlling caselaw to determine that said ballot is
void.
Regarding Board of Elections Exhibit ''A'', Bates p~ges 7, 9, 12, 15., 16, 37, 45,
56, 701: 71, 103, 106, 107, and,1221 all those ballots have Petitl.oner's name in the
designated write-in area of the ballot, but also have the same name being written :i'n
other areas of the ballot. Some list Petitioner's name in the space above the name of
Respondent Marshall, while some list his name in the area next to the write-in area.
As these ballots have words written upon the ballot in areas other than the write-in
area, such ballots are void,. pursuant to Election Law §§8-302 and 9-112 and
controlling case law.
With respect to Board of Elections Exhibit ''A", Bates page 113, the voter has
written in the name of Chuck Kuczynski, which is a blend of the Respondent
Candidate Charles Marshall's nickname, as testified to by Petitioner, and Petitioner;s
last name. As such, the intent of ihe voter is not clear and this ballot should not be
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canvassed. Similarly, Board of Elections Exhibit "A", Bates page 28 contains the
name "HankKy" 1 which this Court determines to be insufficient tobe countedas a
vote for Petitioner.
With respect to Board of Elections Exhibit "A", Bates pages 42 and 94, the
voters have circled either the entire name of the candidate or the "Write-in" words on
said ballot. As such, those markings are identifying in nature and void the ballot
pursuant to· Election Law·§ 9-112.
The Court finds that Board of Elections Exhibit "A", Bates pages 1, 10, 39, 44,
62, 78, 89, 95, 99, 100, 102, 109, 118 and J23 are all ballots where the. voter has
attempted to vote for Petitioner KuczynskLWhile many of these ballols had markings
outside. of the area designated for write-in votes, the markings and. irregularity, or
misspellingsr do not rise to the level to .invalidate the ballot; While strict adherence
to Election Law § 9-112, may tend to invalidate those ballots, the Court! finds that
the intent of the voter was clear andthe marks do not tend to be identifiable and are
, unlike the. disposition of actual words upon the ballot, as held to invalidate a ballot
.. ~ .
by the Third Department in Scanlon and Young.
With respect to Board of Elections Exhibit ''A", Bates page 6, the Court finds
that the vote. for "Karl Kuczynski", which includes Petitioner's last name; allows the
Court to determine the voter's intentto vote for Petitioner, despite the voter's mistake
of the wrong first name appearing within the write in area to vote. With respect to
Board of Elections Exhibit ''A", Bates page 88, the handwriting of the voter makes it
difficult to read, but the Petitioner's first name is clear, and the last half of the second
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name allows the Court to determine said write in vote should be canvassed on behalf
of Petitioner.
It is hereby
ORDERED that Respondents are directed to perform the ministerial task to
determine results for the January 28, 2025 Special Election for the position of
Commissioner of Public Works for the City of Saratoga Springs, utilizing the ruling
on questions of fact and law determined by this Court and certify the p~rty which has
the largest number of valid votes.
Signed at Ballston Spa, New York
this 14th day of February, 2025
Supreme Court Justice
ENTER:
02/14/2025
Papers reviewed and considered:
Verified Petition, filed on January 31, 2025
Attorney Affirmation in support in Verified Petition of Sarah J. Burger, Esq., dated
January 31, 2025
Answer in a Special Proceeding on behalf of Respondent-Candidate, filed. on February
.
5,2025
Proof adduced at hearing conducted on February 7, 2025
Letter-Brief on behalf of Respondent-Candidate Marshall of Matthew J. Clyne, Esq.,
filed on February 10, 2025
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Post-Trial Affirmation on behalf of Respondent Commissioner Bagramian of Daniel
S. Szalkiewicz, Esq., filed on February 10,, 2025, with ExhibitsJ-2
·Memorandum of Law on behalf of Petitioner.Kuczynski of Sarah J. Burger, Esq., filed
on February 10, 2025
Memorandum of Law on behalf of Respondent Commissioner Suhrada of John E.
Sweeney; Esq., hand-delivered to Court on February JO, ·2025 and filed on February
13,2025
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