To the editor:

The recent petition drive to change the date of the Village of Pelham Manor’s elections to the date of the November general election and to have those elections overseen by the Westchester Board of Elections has been divisive, with some even questioning why the village appealed from the adverse decision in state Supreme Court. The parties have now filed briefs in the appellate division, and those briefs demonstrate that the village had very good reasons for its appeal.

This letter will discuss three: (1) there is no controlling precedent on the important issues raised; (2) the state court ruling follows a 2003 decision relating to village elections in Ardsley that is both questionable and distinguishable, and (3) the village’s position on certain critical issues is more consistent with the relevant statutes, which embody the popular will.

As to the first, two critical issues—the manner by which a referendum can change the date of a village election to the date of a general election, and whether such an election can be overseen by the county board of election, as opposed to the village itself—have not been decided by any state appellate court. Prior to the petition drive, there was one, non-binding ruling in state Supreme Court in Westchester; now, there are two. In a personal litigation case that resulted in an adverse judgment, if the losing party received a trial court decision they believed erroneous, and there was no binding appellate case law, would they not appeal?

On the second and third questions, a principal question is whether the referendum to change the election date can itself be held on the date of this year’s general election. The relevant statutory provision is Village Law 9-912.1, which states:  “If such petition requests the holding of a referendum at a time other than at such regular or special village election, such referendum shall be held no less than 30, nor more than 60, days after the filing of such petition” (emphasis added).  A key issue is therefore whether the referendum’s proposed Nov. 5 general election date is at “such regular . . . village election.”

The use of the word “such” presumes an antecedent, and earlier in Section 9-912.1, we find that antecedent:  “a regular or special village election as such elections are defined in the election law” (emphasis added). Unfortunately, although the Election Law defines a “special village election,” it does not define a “regular village election” or “regular election.” It does, however, define a “general village election,” namely, as “the annual or biennial election for village officers.”

A judge confronting this ambiguity would have two choices. One, take the position that the state legislature made a drafting error, and that “regular . . . village election” means “general village election,” the March village election. Under this reading, the proposed Nov. 5 date is at a “time other than” the “regular village election” date (and there is no special village election), and so the referendum should have been held between 30 and 60 days after July 1. Such a reading would make the petition deficient in seeking Nov. 5  instead. Or two, take the position that because a “regular election,” in a lay sense, is held in the village every Election Day in November, the referendum can be held on such a day.

The problem with the latter interpretation, the one adopted by the state Supreme Court, is that it reads the relevant antecedent—“a regular or special village election as such elections are defined in the election law”—out of the statute, because the Election Law does not define a “regular village election” or “regular election.” The law’s use of the term “such elections,” referring to both “a regular” and “special” village election as those terms “are defined” in the Election Law, evidences an intent to incorporate the Election Law in all cases. The trial court’s interpretation also arguably reads the word “village” out of the antecedent, as a November election includes statewide and/or national candidates.

It is perhaps because of this problem that in 1993, the New York State comptroller took a view different from that of the state court in the Pelham Manor case and further opined that “[i]t is evident from the legislative history that the term ‘regular village election’ as used in section 9-912 if intended to refer to the ‘general village election.’” Under this view, although it is true that the word “regular” is read out of the statute, such a reading does less damage to the statutory scheme because it retains the statutory references both to a type of election “defined in the Election Law” and to a “village” election.

In this case, the trial court instead relied on a 2003 case relating to an Ardsley election that is erroneous and distinguishable. The Ardsley petition was filed on Sept. 15 and sought a referendum vote on Nov. 4, Election Day that year. The Ardsley trustees instead set the referendum vote for Nov. 1, within the 60-day period from the petition date. The petitioners sued, and the trial court judge stated, without evidence, in an oral opinion, that the legislature could not have intended two November elections. He therefore adopted what he called a “reasonable, appropriate and practical” construction, holding that the term “regular village election” included Election Day in November. Whatever its practicality, since the decision cited no evidence for its view of legislative intent, it is nothing more than judicial fiat.

The 2003 decision is also distinguishable from the current case. If the Pelham Manor petitioners Erica Winter and Allison Frost had followed the statute’s requirements, there would not have been two November elections. Rather, the referendum vote would have been held at some time between July 31 and Aug. 30. The 2003 decision being both erroneous and distinguishable, there was no reason for the trial court judge in this case to follow it, and therefore there was ample reason for Pelham Manor to appeal.

The same is true on the issue of whether the referendum can be overseen by the county elections board and not the village. The referendum is, incontrovertibly, a village election. Under Section 15-124 of the Election Law, a village clerk is a village’s sole election official responsible for conducting “all” village elections. The petitioners cite another section of the Election Law, Section 15-104(1)(c), in support of their view, but it is telling that to make their interpretation work, their brief argues that the word “and” in that section must mean “or.” (That section, read properly, provides that only a village board may request the board of elections to oversee a village election.)

Finally, the petitioners cite an 1859 case for the proposition that “[w]here a phrase is susceptible of two interpretations, by one of which there would be a suspension, and by the other a continuance, of important political rights, the latter is undoubtedly to be preferred.” That case is inappropriate because there will be no interference with political rights if the petitioners must obtain signatures again and refile their petition, with the referendum being held under village procedures on a date between 30 and 60 days from the refiling date. (The petitioners had no problems gaining the necessary signatures for the Pelham Manor petition.) The referendum petitioners will not be foreclosed, as the party would have been in the 1859 case, from exercising their political rights; rather, they will simply have to do so in the manner the legislature intended.

The appellate division may not wish to revisit the reasoning of the 2003 Ardsley case, given that there has been a practice of holding similar referenda on Election Day since then. If, however, that court wishes to give the relevant statutes a proper reading, it will do so and reverse the trial court. And there is certainly no valid reason for Pelham Manor not to seek another day in court so the relevant questions can be properly considered.

Arthur Long

165 Boulevard