People v. Board of Elections

—In a proceeding pursuant to Election Law article 16, inter alia, to modify certain canvassing procedures for the primary election, the Board of Elections of the City of New York appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Queens County (Fisher, J.), dated September 10, 2001, as granted those branches of the petition which were to modify the procedures for (1) canvassing affidavit ballots that were cast by voters who appeared at the wrong polling place, (2) determining whether a voter was eligible to cast an absentee ballot, and (3) judicial review of ballots that have been challenged by a candidate or his or her representative. Ordered that the order and judgment is reversed insofar as appealed from, without costs or disbursements, and those branches of the petition which were to modify the procedures for (1) canvassing affidavit ballots that were cast by voters who appeared at the wrong polling place, (2) determining whether a voter was eligible to cast an absentee ballot, and (3) judicial review of ballots that have been challenged by a candidate or his or her representative are denied. The Supreme Court had no authority to modify the statutory procedures set forth in Election Law § 9-209 (2) (d) for the judicial review of ballots challenged by a candidate or his or her representative (see, Testa v Ravitz, 84 NY2d 893; Matter of Larsen v Canary, 107 AD2d 809, affd 65 NY2d 634). Nor did it have the authority to vary the statutory procedure set forth in Election Law § 8-302 (3) (e) (ii) and the regulations promulgated 784 by the Board of Elections governing the canvassing of affidavit ballots. Although the Board of Elections has agreed to attach the voters’ applications to the absentee ballots, it objects to the Supreme Court’s usurpation of its prerogative to choose to do so. Since the Board of Elections had the initial authority to adopt this procedure, the Supreme Court exceeded its authority in this regard as well. Bracken, P. J., Ritter, Florio and Crane, JJ., concur.