106 N.Y.S. 205 | N.Y. Sup. Ct. | 1907
This is a judicial investigation of alleged, void ballots cast at the annual election held in the city of Ogdensburg on the 6th day of November, 1906. The inspectors of election of district No. 1, in the third ward, returned eighteen ballots uncounted as void; and the inspectors of district No. 2, in the same ward, returned twenty-one ballots uncounted as void. The relator alleges that he and George E. Van Kennen were candidates for the office of alderman in that ward and these ballots should have been counted for one or the other.
The first question which arises relates to the citizens’ ticket for school commissioners. That ticket was placed upon the ballot pursuant to the provisions of chapter 495, Laws of 1906, which legislated out of office the board of school commissioners and provided for the election of new commissioners in November, upon the same ballot as other city officers. It was thus rightfully upon the ballot and constituted a part of the same; but its place in the same column with the socialistic labor ticket is in violation of section 81 of the Election Law, which requires the printing of each ticket in a separate column. This was an error of the clerk
The relator contends that false markings, upon or in respect to the citizens’ ticket for school commissioner, should not render the remainder of the ballot invalid. I find no authority in the statute for such a discrimination. That ticket, being by the special act upon the same ballot and voted at the same election with the State and city tickets, must be regarded as subject to the same rules and regulations; and, therefore, any false markings as to it must have the same effect and work the same result as false markings in respect to any other part of the ballot. The argument that the presence of this ticket upon the ballot and its improper placement led certain voters into the errors which they committed, is specious, but begs, the entire question. I find "no rule under subdivision 2, section 110, invoked by the relator, on this subject. Hone of those rules has reference to false or imperfect markings. They have reference only to ballots upon which the markings comply with the statutory requirements, but as to which there is confusion as to the particular candidates for whom the voters intended to vote. As will be set forth hereafter, the element of intent does not enter into or determine questions touching ballots which are void by reason of false markings.
The inspectors returned the thirty-nine ballots as void. Hone were counted as “ marked for identification.” The respondents contend that one rule applies to ballots that are void and another to ballots “ marked for identification.” It is necessary to decide this question before proceeding to an examination of the ballots in question.
The Election Law (§ 111) recognizes two classes of objectionable ballots and requires different action by the inspectors as to each.
The first class may be designated as protested ballots and consists of ballots marked in such a manner as to indicate
The second class of objectionable ballots are designated void. They must not be counted by the inspectors for any candidate. The decision as to the validity of such a ballot must be made by the inspectors while making the canvass and calls for a summary determination upon a mere inspection of the ballot itself. If its markings do not substantially comply with the rules and requirements of the Election Law, it must be adjudged void and returned indorsed by the inspectors as void.
In making this determination, the inspectors may not indulge in speculations as to the intent of the voter. The statute provides clear and explicit rules regulating where and how the ballot shall be marked. The question of the voter’s intent is not involved. The only question is whether he has or has not in fact conformed to the requirements of the
The relator contends that the inspectors in passing upon this question should consider a ballot valid unless it bears a “ distinguishing mark ” and indicates a manifest intention on the part of the voter to violate the law; and he relies on the decision in Matter of Hearst, 48 Misc. Rep. .454, as authority for his contention. I have examined that case with considerable care and conclude that the views there expressed have reference only to protested ballots of the class first heroin mentioned. Perhaps as to such ballots the inspectors of the court on review may indulge in speculation as to whether markings are not due to dim light, unsteady tables, tremulous hands, poor eyesight, or the habit of some men to strike upward before striking downward, or the tendency of lead pencils to split at the point and make.two marks instead of one. I express no opinion on that subject. But as to ballots of the other class, that is, void ballots, such views are not in harmony with the repeated declarations of the court of last resort, of which the language of Judge O’Brien in People ex rel. Feeny, supra, will serve as a sample: “ That statute declares that when a ballot discloses certain marks or physical appearance it shall not be counted, and we have the ballots before us with certain marks and appearances upon them, and whether they come within the condemnation of the statute is a pure question of law.
With these views of the statute in mind, I will proceed to pass upon the validity of the several ballots before me.
Ballots Nos. 1, 2, 3, 4, 5, 14, 17, 18, and D, I, K, N, and S are void being in violation of section 105 of the Election Law which provides: “It shall not be lawful to make any mark upon the official ballot other than the X mark, made for the purpose of voting with a pencil having black lead, and that only in the circles or in the voting spaces Rule 7 of that section provides that, “ one straight line "crossing another straight line at any angle within a circle or within the voting spaces shall be deemed a valid voting mark.” Each of the above ballots violates the above provisions in some particular, other than by continuing one or more of the lines
In respect to ballots Nos. 9, 11, 13, 15, and A, G, H, L, and U, each voter attempted to vote a split ticket; but the cross marks for individual candidates are not within the voting spaces. They are, therefore, void. People ex rel. Wells v. Collin, supra.
Ballots Nos. 6, 8, and E, C, and Q must also be held void, as each voter, except in ballot No. 6, has erased the name of a candidate printed upon the ballot in violation of section 105 of the Election Law, which forbids the erasure of any printed device, figure, letter or word upon a ballot. In the case of ballot No. 6, it is impossible to decipher what purports to be a written name in the space in the blank column for alderman for long term. Evidently the voter attempted to write the name of a candidate whose name was net upon the ticket and his failure to make the writing legible does not seem to come within any of the rules provided in the Election Law. Therefore, passing that objection, we find an additional mark somewhat like the letter “ S ” in one of the voting spaces in the blank column. The voter seems to have attempted to erase the mark, but it is clearly in
We now come to ballots Nos. 7, 10, 12, and B, F, J, O, P, and T. These all seem to be regular, except that each voter has attempted to vote a split ticket as to school commissioner. There was only one set of candidates printed upon the ballot. In order to vote for any other, it was necessary for the voter to write the name of such other in the proper place in the blank column. Instead of writing the names of the persons for whom they desired to so vote in the blank column, they have written such names in the column headed “ Independence League.” This the voters have done, although at the top of the blank column is printed a notice as follows: “ The elector may write in the column below under the title of the office the name of any person whose name is not printed upon the ballot for whom he desires to vote.” Although the placing of the citzens’ ticket in the same column with and under that of the socialistic labor ticket was an irregularity upon the part of the clerk and may have been the cause of misleading the voters in the instances under consideration, their acts in placing the names in the wrong column were due to carelessness and performed in the face of specific instructions to the contrary. The statute is clear as to where the names of candidates so voted for must be placed. Rule 4, section 105, reads as follows: “ If the elector desires to vote for any person whose name does not appear on the ballot, he can so vote by writing the name with a pencil having black lead in the proper place in the blank column.” It was held in People ex rel. Feeny v. Board of Canvassers, supra, that the writing of a name of a candidate already printed upon the blank space is a clear violation of the language of the statute and renders the ballot void. If such an error is fatal, I see no ground for holding that the error now under consideration is not also fatal.
As to ballot M, the statute seems not to have contemplated such an instance. The voter made no mark on the face of the ballot, but made four cross marks on its back.
By ballot R, the voter has placed the cross mark in the circle of five different tickets. Each ticket has a full set of candidates for State and county offices and two tickets for city offices. I think the inspectors were correct in discarding this as a blank ballot under Rule 7, subdivision 2, section 110, of the Election Law.
Touching ballot No. 16, the voter has placed the cross mark in the circle of two tickets. Both tickets have candidates for State and county offices, but only one has candidates for city offices. I think under Rule 6, subdivision 2, section 110 of the Election Law, this ballot should have been counted for the city ticket.
The order which shall be made herein pursuant to the abové opinion may be settled, on application of either party, upon three days’ notice to the other, at which time the question of costs will be passed upon.
Ordered accordingly.