Bennett v. Board of Election of Onondaga County
| Decision Date | 20 December 1957 |
| Citation | 10 Misc.2d 804,169 N.Y.S.2d 222 |
| Parties | Clair BENNETT, Petitioner, v. BOARD OF ELECTION OF THE COUNTY OF ONONDAGA, Respondents. |
| Court | New York Supreme Court |
Benjamin J. Bucko, Marcellus, for petitioner. Victor Levine, Syracuse, of counsel.
John Bachman, Syracuse, for respondent Board of Election.
P. Sidney Hand, Syracuse, for respondent Tallcott.
This is a proceeding pursuant to the provisions of Section 330 et seq. of the Election Law for the examination of the voting machines and review of the canvass of votes for write-in candidates on the paper rolls pertaining to the election for the office of Supervisor of the Town of Spafford. The petitioner was a write-in candidate for that office.
The first column of the voting machines was designated for the office of District Attorney, the second for Supervisor and the third for Town Clerk. In Row A the name of the Republican candidate for Supervisor, George C. Tallcott, appeared in the second column adjacent to a separate key which had to be used in order to vote for him. In Row B the name of the Democratic candidate for Supervisor, Leonard Burns, appeared in the second column adjacent to a separate key which had to be used in order to vote for him.
In accordance with the provisions of the Election Law, a row of single receptacles or slots, covering a paper roll, was located above Row A with numbers under each slot corresponding to the column in which appeared the names of the nominated candidates. This row was to be used for write-in votes. The petitioner, Clair Bennett, was not a nominated candidate and his name did not appear on the machine. Therefore in order to vote for him for the office of Supervisor it was necessary for the electors to write his name in slot number '2'. This is clearly shown on a photograph of a portion of the voting machine circulated by the committee for Clair Bennett for Supervisor with instructions that to vote for Bennett for Supervisor the voter had to 'Push up slot two write in or print Clair Bennett'.
The canvass by the Inspectors of Election and by the Board of Election shows that George C. Tallcott received a total of 169 votes in the two election districts comprising the Town of Spafford.
The canvass by the Inspectors shows that Clair Bennett received 168 votes by counting one absentee ballot and 167 write-in votes. The write-in votes for Bennett which appeared on the paper rolls were the following:
For Supervisor 167
For District Attorney 2
For Town Clerk 3 (Second District)
In addition, 3 ballots were designated by the Inspectors as illegible.
Upon the recanvass of the paper rolls by the Board of Election Mr. Bennett received 167 votes as follows:
In District One the Board also designated 1 ballot written in slot 2 as illegible.
In District Two the Board also designated 1 ballot written in slot 2 as illegible.
Although the canvass and recanvass show three votes in the second district for petitioner for the office of Town Clerk it is conceded that these cannot be counted for him for Supervisor because the electors wrote his name in slot 2 as well as slot 3. These three votes in slot 2 were properly counted for him. Matter of Fergeson, 126 Misc. 286, 213 N.Y.S. 656.
The final determination of the Board of Election was that the two illegible votes, the two write-in votes for District Attorney and the one write-in vote for Town Clerk could not be counted for petitioner for the office of Supervisor with the result that petitioner received a total of 168 votes represented by one absentee ballot and 167 write-in votes. The canvass does not contain any statement that the ballots not counted were protested, wholly blank or void.
Petitioner questions the determination of the Election Board and contends that the 2 votes declared by the Board to be illegible are in truth and fact valid votes to be counted for him and desires to offer oral testimony of the electors to show that they wrote in the name of petitioner and intended it to be a vote for him for the office of supervisor.
He also contends that the voting machine was so constructed as to confuse and mislead the electors who intended to vote for him and desires to offer oral testimony of the electors to show that the 2 votes written in the slot for District Attorney and the 1 vote written in the slot for Town Clerk were also in fact intended to be votes for him for the office of Supervisor and should be so counted for that office.
Respondent Tallcott, on the other hand, takes the position that neither the illegible votes nor the votes written in the slots for District Attorney and Town Clerk may be counted for petitioner for the office of Supervisor and that the Court does not have the power and authority to take oral testimony to ascertain the intention of the electors who cast these votes. He also contends that petitioner is not entitled to the 3 votes counted for him in which only the name 'Bennett' appeared with no given name or initial, because there is a resident and elector of the Town of Spafford by the name of Bessie Bennett (petitioner's wife), citing Matter of Slater, 180 Misc. 798, 41 N.Y.S.2d 11, and Matter of Garvin, 168 App.Div. 218, 153 N.Y.S. 549.
First, as to the 3 votes in which only the surname 'Bennett' was written: It appears that petitioner has held the office of Supervisor for 12 years, that he is the incumbent and the only write-in candidate for any office and that he has actively campaigned for the office of Supervisor. In these circumstances, which were not present in the above cases, this Court is of the opinion that these 3 votes were properly counted for petitioner.
Second, as to the votes written in the slots for District Attorney and Town Clerk: Section 259 of the Election Law is entitled 'Voting for person other than a nominated candidate' and provides in part
The last sentence of the section states that:
'An irregular ballot must be cast in its appropriate place on the machine, or it shall be void and not counted.'
Section 212 sets forth the rules for counting votes and Rule 3 thereof provides:
'A vote shall be counted for a person, for an office or party position, if his name is written by the voter upon the ballot in the proper place provided therefor and is not printed under the title of such office or position.'
The courts in interpreting this section have held that the write-in of a candidate's name cannot be counted when the name is not written in the blank space provided therefor, and to write it elsewhere is a failure to express the voter's intent in the manner provided by statute. See Haskell v. Hannah, 188 Misc. 589, 68 N.Y.S.2d 644; People ex rel. Brown v. Board of Supervisors of Suffolk County, 170 App.Div. 364, 156 N.Y.S. 205, affirmed 216 N.Y. 732, 110 N.E. 776; Matter of Winchester, 123 Misc. 191, 204 N.Y.S. 529.
Petitioner strongly urges that People ex rel. Simons v. Knickerbocker, 225 App.Div. 212, 232 N.Y.S. 399, affirmed 250 N.Y. 594, 166 N.E. 337, is good authority for taking oral testimony of electors to show that although they wrote petitioner's name in the slot for District Attorney or Town Clerk they were confused and in fact intended to vote for petitioner for Supervisor. In that case it was sought to remove the respondent from office because some of the electors had not cast their write-in ballots in the manner provided by statute. The Court held that the votes were properly counted after finding that the voters had been misled and invited to make the mistake because the election officials had failed to prepare the form of the ballot as required by the statute. Here, however, the election officials did prepare the voting machine as required by statute and the mistake, if any, was that of the elector and not the election officials. The Court has inspected the voting machine and finds that it was not confusing so as to mislead the electors, that the failure to make a vote count for Supervisor was the fault of the elector (Matter of Houligan, 55...
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