In re Creedon , 239 A.D. 592 ( 1933 )

Crosby, J.

A proceeding was commenced under section 333 of the Election Law to procure the examination of voting machines used in the last general election in the city of Utica, and the preservation of ballots in view of a prospective contest. In three machines it was discovered that there was an improper “ hook-up ” in respect to the candidates for assessor. There were six candidates for this office, two to be elected. There were two Socialists who need not be considered here as the contest does not affect them. There were two Republican candidates —' Creedon and Thomas — and two Democratic candidates — Walsh and Matt. Each of the Democratic candidates had the indorsement of the Law Preservation party. Without any fraud being intended, the official charged with the duty of setting up the voting machines so adjusted three of them that a vote for Thomas also counted for Walsh, and vice versa. As a result, a voter attempting to vote, say for Matt, and either Walsh or Thomas, was registered on the machine as voting for all three — Matt, Walsh and Thomas. The result was a total vote for assessors in excess of the number which could possibly be warranted by the number of electors actually voting.

Another proceeding was started, pursuant to subdivision 4 of section 330 of the Election Law to procure such order “ as justice may require,” in respect of “ void ballots shown upon the statement of the canvass,” based upon the information gained in the first proceeding. Section 267 of the Election Law makes applicable all provisions of the Election Law as far as practicable to elections conducted by the use of voting machines. We construe the word “ ballots ” as used in subdivision 4 of section 330 of the Election Law, to include a vote cast by the use of a voting machine.

The statements of canvass on their face in each case show an excess in the recorded votes for assessor over the number which could properly be accounted for by the number of electors who voted.

The order appealed from provides; in substance, that the board of canvassers shall count all the ballots shown by the machines to have been cast for all the candidates for assessor, excepting only those shown by the machines to have been in favor of Thomas and Walsh, and that no votes whatever should be counted for them. This is a manifest injustice to Thomas and Walsh, but it is impossible to tell how many votes should be credited to them respectively.

If paper ballots were involved, the matter would be easy enough. In such case all the ballots for assessor, no matter for which of the six candidates they had been cast, would be rejected from the canvass. (Election Law, § 219, rule 6.) We think the same thing should be done here. It can, of course, be urged that in the case of paper ballots where three of a group of candidates are voted for and only two are to be elected, it is impossible to determine any part of the intention of the voter, while in case Of a voting machine adjusted as were those here involved, it can be said with certainty that a vote registered by the machine to the candidate Matt, for instance, was actually intended by the voter as a vote for Matt. The manifest injustice, however, of depriving the candidates as to whom the machine was maladjusted of their entire vote upon the machine while giving all other candidates the benefit of all their registered votes, leads us to hold that the rule laid down by rule 6 of section 219 should apply to a voting machine case. Walsh and Thomas were as innocent of the mistake as any of the other candidates. A result which is both just and logical is hard to reach in such a case as this. It seems to us that there is at least less likelihood of injustice in the method here applied than would be done by depriving only Thomas and Walsh of the ballots cast for them.

The order should be reversed on the law, without costs, and a final order granted, directing the boards of inspectors of election to correct their statements of canvass and returns by eliminating therefrom all votes cast for candidates for the office of assessor on the defectively adjusted machines.

Sears, P. J., and Lewis, J., concur; Taylor'and Thompson, JJ., dissent in an opinion by Taylor, J., and vote for eliminating only the votes registered for the candidates Thomas and Walsh on the three defectively adjusted machines.