Testa v. Ravitz, 84 N.Y.2d 894 (1994)
A vacancy in a nomination is not created under Election Law § 6-148 when the Board of Elections fails to fulfill its statutory duty to canvass primary ballots and file tabulated statements of the voting results.
Summary
In a primary election for a Member of Assembly, a dispute arose when the Board of Elections failed to officially canvass the ballots and file the required tabulated statements due to a deadlock. One candidate sought a judicial determination of the winner or, alternatively, a new primary election. The New York Court of Appeals held that the Board’s failure to act did not create a vacancy in nomination under Election Law § 6-148, as a valid nomination is a prerequisite for such a vacancy. The court also affirmed that it lacked jurisdiction to conduct its own canvass before the Board fulfilled its statutory duty. The matter was remitted to the Supreme Court with instructions to remand to the Board of Elections to complete the canvassing process.
Facts
Anne-Renee Testa and John Ravitz were candidates in a primary election for the Liberal Party nomination for Member of Assembly. Testa was a write-in candidate, and Ravitz was the designated candidate. After the primary, a dispute arose regarding the vote count. The Board of Elections was unable to agree on the tabulated statements of the voting results, with a 4-4 vote and two members absent, thus failing to certify the election results.
Procedural History
Testa initiated a proceeding under Article 16 of the Election Law, seeking a judicial determination of the winner or a new primary election. The Supreme Court was informed that the Board of Elections had failed to file signed, tabulated statements. The Supreme Court determined that it lacked jurisdiction to conduct its own canvass. The Appellate Division’s order was appealed to the New York Court of Appeals.
Issue(s)
Whether a vacancy in a nomination is created within the meaning of Election Law § 6-148 when the Board of Elections fails to fulfill its statutory duty under Election Law § 9-200(1) to canvass the primary ballots and file tabulated statements setting forth the voting results.
Holding
No, because a valid nomination is a prerequisite to the creation of a vacancy under Election Law § 6-148, and the Board of Elections’ failure to act means no valid nomination has been made.
Court’s Reasoning
The Court of Appeals reasoned that under Election Law § 6-148, a valid nomination must exist before a vacancy can be created. Since the Board of Elections failed to canvass the ballots and file the required statements, no valid nomination had been made. Therefore, no vacancy existed within the meaning of Election Law § 6-148. The court cited Matter of Di Lorenzo v. Heffernan, 187 Misc 766, affd 271 App Div 802, affd 296 NY 687, to support the principle that a valid nomination is a prerequisite to a vacancy. The court emphasized that it lacked jurisdiction to conduct its own canvass before the Board of Elections fulfilled its statutory duty under Election Law § 9-200(1), citing Matter of Larsen v. Canary, 107 AD2d 809, affd for the reasons stated below 65 NY2d 634. The Court noted the Board of Election’s statutory duty to canvass the ballots cannot be abdicated. Furthermore, the failure of the Board of Elections to fulfill its statutory duty does not warrant an order directing the holding of a new primary election, since the court cannot determine if fraud or irregularity made it impossible to determine who rightfully was nominated until the Board fulfills it’s duty. The Court directed that the matter be remanded to the Board of Elections to perform its statutory duty, stating, “Pursuant to Election Law § 16-106 (4), Supreme Court should remand the matter to the Board of Elections, and direct it to perform its statutory duty to canvass the ballots and file the requisite tabulated statements.”