Chapter 5 Nugent, on the other hand, illustrates the principle that specific ballots that are determined to be illegal are subtracted from the candidates’ totals and the candidate with the most votes is the victor. Nugent also stands for the proposition that criminal behavior should be punished but will not void an election unless it changed the election result or made the result impossible to determine. Some prefer to view this basic proposition by using the terms “ascertained” and “unascertained” invalid ballots. Ascertained invalid ballots are those a court can identify as void ballots and can determine for whom the ballot was cast. Unascertained invalid ballots are those a court can identify as void ballots but cannot determine for whom the ballot was cast. In the cases discussed above, ascertained invalid ballots would be ones that were subtracted from candidates’ totals to determine the winner, i.e., the will of the electorate was determined by taking the ascertained invalid ballots out of the candidates’ vote totals. Unascertained invalid ballots could cause an election result to be thrown out because the will of the electorate could not be determined, i.e., a new election was required because there were enough unascertained invalid ballots to affect the results of the election. The concept of unascertained ballots can be useful, too, in understanding the effect of fraud on an election; if there are enough unascertained tainted ballots in an election, it becomes impossible to determine the will of the electorate. The principles that apply to determining the outcome of election disputes also apply to disputes about candidates’ nominating petitions, as we saw in Chapter 4. • Daniel Sadofsky’s candidate nominating petition to run for the Westchester county council contained names of phony voters, included names of voters who had not signed the petition and was attested to by subscribing witnesses who had not asked signers for identification (as they said they had). Mr. Sadofsky also lied as a subscribing witness: he asked people to sign other people’s names, and he handed in petition pages on which he knew there were phony signatures. The court removed his name from the ballot because of his fraudulent acts and in- validated the petition because “fraud and irregularity so permeated the designating petition as a whole.” Flower v. D’Apice, 104 A.D.2d 578 (N.Y. 1984), aff’d. 468 N.E.2d 1119 (1984). • In Williams v. District of Columbia Board of Elections and Ethics, 804 A.2d 316 (D.C. 2002), the nomination petition of Washington, D.C., Mayor Anthony Williams was rejected, and he was ruled not to have qualified to be on the ballot for the Democratic Party primary election, because there were falsified names on his nominating petitions. Mayor Williams was forced to run in the primary election as a write-in candidate. (He won the primary and subsequently was elected to another term in office.) The rule is that fraudulent signatures will be subtracted from the total number of signatures on nominating petitions to determine whether the candidate has satisfied state signature requirements. However, petitions that are permeated with fraud are invalid, and the candidate will not be allowed to qualify to run in the election. 107