SUPREME COURT - STATE OF NEW YORK DUTCHESS COUNTY Hon, JAMES Y. BRANDS Present: SUPREME COURT: DUTCHESS COUNTY In the Matter of the Application of Joseph Mondello, Chairman of the New York State Committee of the Republican Party, and Patricia Killian, Chairman of the Dutchess County Conservative Committee, Petitioners, -against- The New York Stato Board of Elections, Gregory Peterson, Douglas Kellner, Evelya Aquilla, James Walsh, Commi ners, and The Dutchess County Board of Elections, David Gamache and Fran Knapp, Commissioners, and The Columbia County Board of Elections, Donald Kline and Virginia Martin, Commissioners, and ‘Tho Rensselaer County Boaid uf Bleviions, Larry Bugbee and Edward McDonough, Commissioners, and The Fssex County Board of Elections, Lew Sanders and David Mace, Commissioners, and The Greene County Board of Elections, Thomas Burke and Frank DeBenidictus, Commissioners, and The Saratoga County Board of Elections, William Fruci and Diane Wade, Commissioners, and The Warren County Board of Elections, Mary Beth Casey and William Monfort, Commissioners, and The Washington County Board of Elections, Jeffrey Curtis and Donna English, Commissioners, and The Delaware County Board of Elections, Janice Brudick and William Campbell, Commissioners, and The Otsego County Board of Elections, Henry Nicols and Sheila Ross, Commissioners, and James Tedisco and Scott Murphy, Candidates for Member of the U.S. House of Representatives for the 20 Congressional District, Respondents. Justice. DECISION AND ORDER Index No: 2254/09There are three applications before this court for determination in this ongoing contested Congressional Election. ‘The first asks for re-argument of this court's decision that petitioner is entitled to a list of those applying tor absentee ballots but not a copy of each individual application. ‘The second asks for reconsideration of the directive that contested ballots be opened, canvassed and a copy reinserted with the objection noted thereon. (Matter: of O’Keefe v. Gentile, | Mise3d 151). The last seeks a determination as to whether those who maintain a second residence outside the 20" Congressional District are entitled to claim residency within the district for the purpose of voting in the March 31, 2009 special election, By decision and order dated April 15, 2009, this court denied a request seeking a copy of the underlying applications where individuals had applied for an absentee ballot, holding that the Election Law of the State of New Yurk, Section 8-402 (7) permits information as to the names of all applicants, however, it does not grant permission to review the actual applications themselves, citing Jacobs v, Biamonte, 38 AD3d 777. Counsel for petitioner avers, however, that Jacobs, supra, is inapplicable in this instance as it dealt with a request for the underlying information Diigf to the election whereas in the matter before this court, the election has already taken place and the information is sought as part of the process in evaluating absentee ballots overall. Ia this regard, Mr, Walsh, attomey for Candidate Tedisco, joins in the application. In response thereto, Candidate Murphy through his counsel, opines that the decision of this court was correct and the holding in Jacobs, supra, is applicable to the instant proceedings notwithstanding whether the request is made prior to or after an election takes place. In bringing the instant motion for re-argument, petitioner sets forth factors which were not made available to the court at the time ofits decision of April 15, 2009 and more particular as it relates to the differentiation in application of Election Law Section 8-402 (7) language prior to election and lection Law Section 16-106 language post election. Additionally, counsel and/or their representatives have, in most instances, already received copies of the applications which would render the directive moot. Last, it would appear that by having the applications available, it will lead to a more efficient and expeditious process by which to arrive at a final tally. ‘When an application for an absentee ballot is received, the Board of Elections is authorized to determine under any proper inquiry it deems relevant whether the applicant is qualified to vote (Election Law 5-102) and to receive an absentee ballot. (Blection Law 8-402). That authority for inquiry includes amongst other powers, the right of investigation by the State ‘of New York, Boards of Election, law enforcement and administration of oaths, issuance of subpoena and the like, Thereafter, if in the board’s determination the applicant is not entitled to an absentee ballot, that person shall be immediately notified together with the reason for rejection. [Election Law 8-402 (5)]. Itis apparent therefore that the application process is not defined by the scenario of a request being made by a potential absentee voter which is then sgzanted automatically as a ministerial action with no right of inquizy. The process by which an application is accepted or denied continues to be recognized as an affirmative Board of Elections action taken after proper review and inquiry. (Gross v. Board of Elections, 3 NY3d 251, at 256). Thereafter, once a ballot is retumed to the board, itis subject to challenge pursuant to Board of 2Elections 8-506 and in the event of a timely objection, the board may either canvass the ballot, refuse to canvass the ballot or if there is a disagreement within the board, set it aside for a three Gay period at which time it would be opened and the vote counted unless otherwise directed by court order. [Election Law 9-209 (2) (d)]. ‘The Boards of Election shall keep a list of all applications for absentee ballots and that those applications are open to inspection by those individuals identificd by Election Law 8-402 (7). The question posed to this court is whether the right of review is expanded to include the application itself by operation of Section 16-106 of the Election Law which addresses the Proceedings relating to casting and canvassing of ballots. It would appear that this question has not previously been posed to the courts of this state for determination. The aforesaid Section 16-106 of the Election Law sets forth the proceedings to cast and canvass or a refusal to cast challenged ballots, identifying therein the variety of ballots and goes on to say that “..and the original applications for a military, special federal, federal write in, emergency or abscutee voter's ballot may be contested in a proceeding instituted in the Supreme or County Court by any candidate or the chairman of any party committee...”, It is axiomatic that when reading statutes or their components, all parts are to be read together in an effort to reach a harmonious result and a fair interpretation. (New York Statutes, #97) (Honeoye Central School District, Town of Livonia v, Berle, 72 AD2d 25). In this regard, the court does not find that the approach set forth in Article 8 is in contradiction with Article 16. If the legislature had intended to restrict review of the actual applications as in Section 8- 402 (7) of the Election Law, it could easily have provided authority for same, in Section 16-106 of the Election Law. Instead, it took the affirmative step of specifically permitting original applications to be contested following an election. Common sense dictates that in order to intelligently form a decision as to whether an objection should be made, the application’s contents must of necessity be perused. In the second application before this court addressing those ballots which have been objected to, this court finds no reason to disturb its previous ruling whieh is consistent with ‘Matter of O’Keefe v, Gentile, 1 Misc3d 151. The question of residency of those entitled to vote in the 20% Congressional District is not 80 easily determined, While it may seem relatively simple when defined in the Election Law 1- 104 (22) as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located always intends to return,” its practical application has remained elusive and been the subject of much litigation over the years. Section 5-104 (2) of the Election Law seeks to codify the residency factor by setting forth a list of items to take into eonsideration which is not inclusive in general. It does, however, direct that a decision by the board is presumptive evidence of the individual's residence for voting purposes subject to challenge, There is no single factor that is determinative in this regard and our courts have recently said that “... the crucial determination whether a particular residence complies with the