119 N.Y.S. 1061 | N.Y. App. Div. | 1909
The' petitioner was a candidate for the office of justice of the Municipal Court for the eighth municipal district of the city of Mew York at the last general election. The certified original statements of the result of the canvass' in some of the election districts showed that a certain number of the ballots counted were protested as marked for identification, and this proceeding was instituted pursuant to the provisions of section 381 of the Election Law (Consol. Laws, chap. 1Y; Laws of 1909, chap. 22) for a Writ of mandamus requiring a recount of the votes on .such ballots and also of the ballots rejected by the inspectors as Void. That section of the Election Law authorizes the proceeding, and it is therein expressly provided that if the court shall determine that- any ballot protested as marked, for identification “ was marked for the purpose of identification,” it shall order the ballot and the votes thereon to be excluded upon a recount, and that if the court shall determine that the votes upon any ballot rejected by the inspectors- as -void “ shall be counted,” it shall order such ballot and the votes thereon to be counted. On the return of the application, the respondent Dwyer, who .was a candidate for the same office, and who, on the face of the returns, as we are informed by counsel, had an apparent plurality of thirty-six votes over the petitioner, intervened. .Counsel for the respective parties have only-.
It is not practicable to describe in an opinion the various marks on the ballots which it is claimed renders them void. The ballots have all been examined and tested in the light of the statutory provisions with respect thereto as authoritatively construed by the courts. If the statute be construed strictly, very few of these ballots would be valid. In some instances the questions presented are
In some instances, where there was a cross mark in .more than one circle, one of the tickets was blank with respect to this office,' and in one instance there was a cross in three circles and the same candidate was on each ticlcét. There was no difficulty in those instances in determining the intention of the voter, under the rules therefor prescribed by the Legislature. The fact that he manifested his intention .three times to vote for the same candidate did not invalidate his efforts.. Inasmuch as there was “ no other candidate or candidates ” on either ticket for this office, there is no legal objection to counting the ballot for a candidate who happens to be on all of the tickets so marked. In other instances evidently the inspectors rejected ballots on account of there being a cross mark in more than one circle at the head of the ticket. Such marking, by virtue of the same rule, is permitted, and does not render the ballot void. In most instances, however, the question arises over the pencil marks made by the voter in the circle' or voting space. In some instances, instead of forming a single cross by two lines crossing’ at any angle as prescribed by the statute, the voter has made several lines, and in some instances has connected the ends of’ these lines, and on others has evidently run the. pencil back and forth moistened forming wide, solid lines, and in other instances the pencil has evidently been run back and forth and lifted from the paper leaving many points, presenting the appearance of the end of a line,
“ The voter should observe the following rules in marking his ballot: * * *
“ Fule 7. One straight line crossing another straight line at any angle within a party circle, or within the voting spaces, shall be deemed a valid voting mark.” ’
Void ballots are defined by rule Ho. 9 of section 368 of the Election Law as follows: “ A void ballot is a ballot upon which there shall be found any mark other than a single cross X mark made for the purpose of voting, which voting mark must be made with a pencil having black lead, only in the circles or in the voting spaces to the left of the names of candidates; or one upon which anything is' written other than the name or names of persons not printed upon the ballot," for whom the. voter desires to vote, which must be written in the blank column under the proper title of the office with a pencil having black lead; or one which is defaced or torn by the voter; or upon which there shall be found any1 erasure of any
Section 370 of the Election Law provides that when a ballot is not void and an inspector of election or other election officer or watcher shall, during the canvass of the vote, declare his belief that the . ballot has been written upon or marked for the purpose of identification, the- inspectors shall write on the back of the ballot the words “ protested as marked for identification”, and shall specify the mark or marking upon the ballot to which objection' is made and shall subscribe their signatures thereto. Section 371 of the Election Law makes it a felony for- any person to make a mark on or tear or deface a ballot taken from.the ballot box, with the intent of causing the ballot to be rejected as void. Section 373 of the Election Law directs that the inspectors shall indorse upon each ballot declared void by them the specific reason for its rejection and that such ballots and those protested, as marked, for identification shall be secured in a separate sealed package indorsed as therein prescribed and filed with the original statement of the canvass.
These statutory provisions, construed -literally, would indicate that the Legislature deemed that it had so clearly defined a void ballot that there could be no mistake made by the inspectors in deciding the question as to whether a ballot was valid or void, and that a ballot might be marked for identification Without such marking making it a void ballot, and in such instances only was it intended to provide that a ballot which the inspectors deemed valid should' be protested. It does not appear to have been provided that ballots which the majority of the board of inspectors deemed valid, but which one of the inspectors or a watcher deems void, may be protested and set apart with the void ballots for a judicial review as provided in the Election Law and, therefore, the only review of a decision of the inspectors that a ballot is valid unless it.be protested as marked for identification is in ordinary cases by quo warranto. A casual reading of rule Mo. 9 of section 368 of the Election Law would seem to indicate that a ballot could not be marked for identification without rendering it void, but it is possible that the
We are unanimously of the opinion that in determining whether these pencil marks in the voting circle render the ballot void, the statute should not be construed strictly. The Legislature, in prescribing in section 358 a rule to be observed by the voters, and in section 368 what should be deemed a void ballot, did not intend, we think, to disfranchise a voter who could not draw a straight line. An inspection of the ballots indicates that the lines in some instances are wavering or irregular, as if made by a hand unfamiliar with the use of a pencil, or cold or trembling, or of an infirm person or one whose eyesight may not have been good, and in other instances it is apparent that the pencil was run back ,and forth over a line with a view to making it distinct, and in some
We are unanimously of opinion that the ballots marked Exhibits Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,' 15, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 34, 39, 43, 62, 74, 78, 80, 82, 84, 85, 88,-89, 91, 97, 99, 104, 106, 107, 108, 109, 110, 111, ±13, 120, 121, 123, 126, 128, 129, 130, 134, 135, 136, 137, 140, 141, 144, 147,' 149,153,157,159,161,162,163,164 and 165 are valid and should be counted, and that ballots Exhibits Hos. 1, 21,35, 37, 46,47,48, 50, 52, 53, 54, 55, 56, 57, 59, 60, 61, 64, 70, 71, 72, 73, 75, 79, 81, 87,'¿2, 93, 95, IOS, 112, 132, 143, 148, 154, 155, 156, 167, 1.69 and 170 are void and should not be counted, and that ballots Exhibits Hos.
The court also decides that ballots marked Exhibits Nos. 16, 33, 36, 38, 45,49, 51, 58, -67, 90, 96, 98,105,115,119, 122, 124, 125, 131, 138, 139, 151, 152, 160, 166 and 168 are valid and should be counted, the writer dissenting, and that ballot No. 86 is valid and should be counted, Claeke, J., and the writer dissenting, and that ballots marked Exhibits Nos. 32, 40, 41, 42, 44, 63, 65, 66, 68, 76, 77, 94, 116, 117, 118, 127, 133, 142, 145, 146, 150 and 158 are void and should not be counted, Houghton,'J., dissenting.
The decision and order are, therefore, modified in accordance with these views, and as modified affirmed.
Let the order be settled on notice, as requested by counsel.
Ingbaham, Claeke, Houghton and Scott, JJ., concurred,.
Order modified as directed in opinion and as modified affirmed without costs. Settle order on notice. ■