198 Misc. 518 | N.Y. Sup. Ct. | 1950
This is an application by Charles Smith for an order correcting errors in the canvass of ballots for office of members of the Democratic county committee in the 11th District, town of Babylon, Suffolk County, New York.
On the return day of the order to show cause the parties involved in the recount appeared, the ballot box was opened and the ballots examined. The parties agreed with the court that thirty-four of the ballots cast were unquestionably correct, ten were void for various reasons, two remained on which the parties could not agree. Of the thirty-four ballots to be counted as agreed upon, Smith received seventeen and his opponent Osgood seventeen.
The Election Law requires that a ballot be marked with a cross. (Election Law, § 212; Buies for Counting Votes, rule 1.) “ The whole ballot is void if the voter (a) does any act extrinsic to the ballot such as enclosing any paper or other article in the folded ballot or (b) defaces or tears the ballot or (c) makes any erasure thereon or (d) makes any'mark thereon other than a cross X mark in a voting square or circle, or other than the writing in of a name for the purpose of voting; except that an erasure or a mark other than a cross X mark made in a voting square shall not make the ballot void, but shall render it blank as to the office, party position or question in connection with which it is made. A cross X mark is any straight line crossing any other straight line at any angle, but no ballot shall be declared void or partially blank because a cross X mark thereon is irregular in form. In applying any provision of this section to a primary election, the term ‘ voting square ’ shall include the voting space at the left of the name of a candidate on the primary ballot.” (Bule 1.)
Before the enactment of this section a cross was defined as “ one straight line crossing another straight line.” (L. 1909, ch. 22, § 358, rule 7.) The earlier decisions placed a strict construction on this rule. Later decisions became liberal.
Distinguishing marks that identify the voter vitiates the entire ballot. (People ex rel. Colne v. Smith, supra; Matter of Devine v. Osmann, supra.)
There can be little doubt that the voter in this case intended to cast his ballot for Osgood and that the marks placed on the ballot by him are in no way “ distinguishing marks ”. It therefore follows that this last ballot considered is also valid, making the count eighteen votes for Smith and eighteen for Osgood.