# Gross v. Albany County Board of Elections > New York Court of Appeals · October 14, 2004 · 3 N.Y.3d 251 URL: https://www.frixlaw.com/law-library/cases/9705970 ## Case - **Full name:** In the Matter of Richard A. Gross Et Al., Respondents, v. Albany County Board of Elections, Respondent, and William M. Hoblock Et Al., Appellants. (And Another Related Proceeding.) - **Court:** New York Court of Appeals - **Decided:** October 14, 2004 - **Citations:** 3 N.Y.3d 251; 785 N.Y.S.2d 729; 819 N.E.2d 197; 2004 N.Y. LEXIS 2412 - **Precedential status:** Published - **Opinion:** Dissent by Rosenblatt - **Judges:** Rosenblatt - **Cited by:** 35 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9705970 ## Opinion text Rosenblatt, J. (dissenting). The two most important interests of the Election Law are closely balanced in this case: on the one hand, the need for rigorous application of rules that govern elections; on the other, letting the voter’s vote count. I appreciate the majority’s dedication to enforcing rules designed to prevent irregularities. Experience has shown that too many elections have been touched, if not infused, by fraud, and that we need rules to keep the process honest. To be sure, some rules require the most stringent enforcement if the system is to function. Others, however, can and should tolerate some flexibility. This is particularly so when, as here, the strict application of the rule does not further the Election Law’s objectives. We have, at times, construed the Election Law’s rules to disenfranchise voters. When we did, it was because we felt that on balance a more permissive interpretation would threaten the process or future elections. Thus, while I do not see the majority’s opinion as grudging or as evincing a hidebound, technical character, the scales here tip in favor of the voter. The voters did exactly as they were told—not by amateurs or partisan functionaries, but by the very governmental body whose job it is to interpret and apply the Election Law in all of its complexity. If the majority is correct, the voters, to have their votes counted, would have had to send their absentee ballots back to the Election Board and tell the Board that it misread both the Election Law and a federal court order. I can think of no voter endowed with the sophistication and audacity required to issue such a rebuke. This case is unusual, if not unique, in that the voters are being denied their vote for having followed the protocol established by the experts lawfully charged with running the election. In this respect, the situation of the voters here should contrast with that of candidates who commit technical violations of the Election Law. In a significant number of cases, we have invalidated designating petitions when candidates failed to satisfy the requirements of the statute. When a candidate falls short of the mark and is expelled on technical grounds, it is no occasion for rejoicing. After all, the voters are being denied a choice. But candidates know, or should know, the perils of the Election Law. If they do not comply with its terms, we might say they bear the fault. We can take no such comfort here. These voters were *262 entirely innocent and had no reason to imagine that their votes were vulnerable. The purpose of the Election Law’s rules is to foster order and defeat fraud. If the Board of Elections were constituted by a single member, one might suspect that, for political gain, that partisan official coüld be tempted to ignore or misapply the federal court order. The Board, however, is bipartisan. There is not a hint of fraud here. More importantly, in a two-party contest, there is virtually no possibility of any fraud when Commissioners—who are political rivals—both agree in good faith as to how absentee balloting should be administered. Finally, today’s decision conflicts with both Election Law § 16-106 (1) and our venerable precedent, People ex rel. Hirsh v Wood ( 148 NY 142 [1895]). L To deter fraud, Election Law § 8-400 (5) provides that statements made in an application for an absentee ballot “shall be accepted for all purposes as the equivalent of an affidavit” and that “a material false statement shall subject the person signing it to the same penalties as if he had been duly sworn.” Likewise, Election Law § 7-122 (8) requires absentee voters to subscribe to an oath on the ballot, affirming that they are unable to appear at the polling place on election day. As the Court observes, however, the election at issue does not implicate the statute’s concern with fraud or intentional misconduct. In affirming Supreme Court’s decision to invalidate the ballots, the Appellate Division expressly found that the “voters were without fault.” ( 10 AD3d 476, 479 [2004].) No one doubts this. By all indications, when they applied for absentee ballots in the fall of 2003, the absentee voters truthfully stated that they would be unavoidably absent from Albany County. Moreover, there is no evidence to suggest that, by following the format established by the Board for the special general election, the voters were acting fraudulently. On the contrary, the record reveals that a substantial majority (15 of 27) of the contested ballots were postmarked from outside Albany County. That the remaining 12 ballots originated from within the County is, at best, inconclusive evidence of an irregularity. An otherwise proper absentee ballot may be cast and canvassed, even if the voter is present in the county of residence on election day (see Matter of Sherwood v Albany County Bd. of Elec *263 tions, 265 AD2d 667 [3d Dept 1999]). Furthermore, because their ballots were postmarked 11 to 15 days before the election, these 12 voters may well have been unavoidably absent from Albany County on election day. To be sure, the voters here departed from the standard absentee ballot application procedures, but only because the Board told them that was the way to do it. Pursuant to the District Court’s order, the Board mailed absentee ballots for the special primary election to all voters who had qualified for such ballots in the original general election. When, a month later, the voters received absentee ballots for the special general election, they had no reason to imagine that their ballots would be challenged. IL A faithful reading of the Election Law indicates that we should not disenfranchise these voters for the Board’s good faith mistake. In pertinent part, Election Law § 16-106 (1) provides: “If the court determines that the person who cast such ballot was entitled to vote at such election, it shall order such ballot to be cast and canvassed if the court finds that ministerial error by the board of elections or any of its employees caused such ballot envelope not to be valid on its face.” The distinction between “ministerial” and “discretionary” acts may be muddied by the particularities of a given case, but in the abstract, the terms describe discrete polarities of official conduct. As Chief Judge Pound explained in Matter of Wicksel v Cohen ( 262 NY 446, 449 [1933]), “[t]he distinction between ministerial and judicial acts is that where the law prescribes the rule to be followed so as to leave nothing to the exercise of judgment or discretion, the act is a ministerial act.” By contrast, “where the act involves the exercise of judgment or discretion in determining whether the duty exists, the act is judicial” (id.). Under this framework, the Board’s error was quintessentially ministerial. The distribution of absentee ballots is not an activity that requires the exercise of discretion. Election Law § 8-402 unambiguously requires boards of elections to determine whether absentee ballot applicants meet the eligibility criteria set forth by Election Law § 8-400. Election Law § 8-406 further requires boards of elections to mail absentee ballots to all applicants who satisfy the section 8-400 criteria. Here, the record *264 reveals that the Commissioners thought that the federal court order obligated them to mail absentee ballots for the special general election to every voter who had applied for such a ballot in the fall of 2003. 1 The Board’s bipartisan departure from the statutorily prescribed protocol for the issuance of absentee ballots was not so much a willful exercise of independent discretion as a mistaken attempt by the Commissioners to follow the federal court order, as they understood it. ¡IL Even if the Board’s error were not strictly ministerial, this Court’s decisional law requires counting the contested ballots. In People ex rel. Hirsh v Wood ( 148 NY 142 [1895]), we considered the validity of ballots with a “latent defect” (id. at 146). Specifically, a county clerk charged with printing the ballots had inserted into them, without authority, the names of candidates who had not been nominated by their party. Writing for the Court, Chief Judge Andrews stated: “We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even the willful misconduct of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult” (id. at 146-147 [emphasis added]). 2 The majority has attempted—unsuccessfully in my view—to *265 distinguish Hirsh from the case before us. It is incontestable, however, that if, under Hirsh, votes must be counted when there is outright fraud by election officials, surely they should be counted when a bipartisan board of elections makes an honest mistake. As this Court observed in Matter of Staber v Fidler ( 65 NY2d 529 , 534 [1985]), a lax construction of the Election Law may invite mischief by candidates or “manipulations of the entire election process,” but too strict a construction “beyond that necessary for the effectuation of those policies can also lead to injustice.” Accordingly, I respectfully dissent. Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo and Read concur in per curiam opinion; Judge Rosenblatt dissents in a separate opinion in which Judge R.S. Smith concurs. Order affirmed, without costs. . Deputy Commissioner Karen Shea testified that the Board issued absentee ballots for the special general election to everyone who had applied for such ballots in September and October of 2003 because “that’s what we thought when we read the order from the judge. That’s how we interpreted it. . . .” Asked how the Commissioners came to this conclusion, she responded, “I think we went over it in a meeting, that all four of us sat down and we looked it [the District Court order] over, and that’s what we thought—you know.” John Graziano, a Commissioner, testified that the “decision was [made] in a meeting with the two deputies and the two commissioners in trying to interpret what the judge was asking us to do, and that’s what we decided to do. Then we followed up and did it.” . See also Griffin v Burns, 570 F2d 1065 (1st Cir 1978) (holding that when a board of elections had no authority to issue absentee ballots for a special primary election, but when the issuance of such ballots followed a *265 long-standing practice, it was unconstitutional to invalidate the absentee ballots cast by voters). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705970. Public record. Not legal advice.