Informal Opinion No. ( 1986 )

Ian G. MacDonald, Esq. Chief Assistant County Attorney, Dutchess

You have asked, in the event of a tie vote by a two-member county board of elections on an objection to a nominating petition, whether the county attorney's office is required to defend the board in an ensuing judicial proceeding commenced by the objecting party.

You have informed us that your county board of elections consists of two election commissioners (see, Election Law, § 3-200[2]). A registered voter may file written objections to a nominating petition with the county board of elections (id., § 6-154[2]). A tie vote on an objection continues the presumptive validity of the petition (id., §§ 6-154[1], 3-212[2]). A person who has filed such an objection may contest the nominating petition by instituting a proceeding in the Supreme Court (id., § 16-102).

You have informed us that under the Dutchess County Charter, the county attorney is required to prosecute and defend all matters or proceedings involving the county, its units and officers. Thus, in the event of a tie vote by the county board of elections on an objection to a nominating petition, the petition would be deemed valid and it would be the county attorney's duty to defend the board in an ensuing judicial proceeding.