Jeffery, Application of
| Decision Date | 12 April 1960 |
| Parties | Application of Gordon P. JEFFERY for an order pursuant to Section 330 of the Election Law. |
| Court | New York County Court |
Gordon P. Jeffery, Clinton, in support of application.
Merritt Vaughan, Utica, for Howard M. Chappell.
Frederick G. Turner, Clinton, for the Trustees of the Village of Clinton and the Board of Election Inspectors of said village.
The Hon. Gordon P. Jeffery was the candidate of the Citizen's Party for re-election to the office of Police Justice in the Village election of March 15th, 1960. As such candidate, his name appeared on the ballot as the only candidate for such office. Printed on the same ballot were the names of two candidates of the Citizen's Party and two candidates of the Community Party for the office of Trustee, of which two were to be chosen.
The report of the Election Inspectors purports to show that upon the canvass of the ballots, the petitioner Gordon Jeffery received 46 votes for the office of Police Justice and that there were 52 votes written on the ballot for Howard W. Chappell. The report was objected to by petitioner and there is not evidence that the report was signed by the inspectors of election.
This application was brought on before Hon. Donald P. Gorman in the Supreme Court, Oneida County by an order to show cause. On the return date, all parties stipulated that the matter be transferred to the Oneida County Judge pursuant to Section 53-a of the Village Law to hear, try and determine all questions of law and fact which might arise thereunder.
A hearing was duly held by the undersigned on March 28, 1960 at which time the ballots in said election were re-canvassed. Examination thereof disclosed that a total of 104 ballots were cast in said election.
The return of the Inspectors showed the following disposition
For Gordon Jeffery ...... 41
For Howard Chappell ..... 48
For Herbert Chappell ..... 1
Void ballots ............. 9
Blank ballots ............ 5
----
104
On the hearing it was stipulated that 28 ballots were validly cast for Gordon Jeffery; 8 ballots were validly counted for Howard W. Chappell and that 4 ballots were blank for the office of Police Justice. The ballots were marked collectively Exhibit A.
Exhibit B consisted of 13 ballots cast for Jeffery which were conceded to be validly cast although some of these ballots were void or blank for the office of Trustee.
Exhibit C consisted of 16 ballots which the Court ruled to be validly counted for Chappell. Petitioner objects on the ground that the name of Howard W. Chappell extends beneath the write-in enclosure.
The fact that the name written in extended beyond the lines of the ballot's write-in enclosure does not vitiate the ballot on any theory that the carry-over was a mark intended to distinguish the ballot or to identify the voter. Chonin v. Millspaugh, 1958, 13 Misc.2d 841, 180 N.Y.S.2d 674.
Exhibit D consisted of 12 ballots which the Court ruled to be valid ballots for Howard W. Chappel, although the name was printed instead of written in script.
Petitioner contends that the Rules for counting votes (Section 212 of the Election Law, Rule 3) provides that a write-in vote may not be printed by the voter but written.
Rule 3 reads as follows:
'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 space provided therefor and is not printed under the title of such office or position.'
The General Construction Law, § 56 defines 'written' as follows:
'The terms writing and written include every legible representation of letters upon a material substance, except when applied to the signature of an instrument.'
The effect of Rule 3 is not to void a printed name but to void a ballot where a voter attempts to write in the name of a candidate whose name already appears printed thereon. People ex rel. Feeny v. Board of Canvassers, 1898, 156 N.Y. 36, 50 N.E. 425; Matter of Greene, 272 App.Div. 1017, 74 N.Y.S.2d 398, affirmed 297 N.Y. 651, 75 N.E.2d 630; Matter of Spenncke [Breen] NYLJ Oct. 6, 1953, p. 662 Nassau Sup. Court--Christ, J.
Exhibit E consists of 3 ballots in which the name of Howard Chappell was inserted (two written and one printed) and in addition, the name of Gordon Jeffery was stricken out by drawing a line through his name. These 3 ballots were held by the Court to be void on the authority of Devine v. Osmann, 164 Misc. 665, 1 N.Y.S.2d 24, modified 252 App.Div. 787, 299 N.Y.S. 209, as modified affirmed 275 N.Y. 639, 11 N.E.2d 795.
Exhibit F consisted of a ballot on which appeared printed the name 'Herbert Chappel'. The election inspectors ruled that this ballot was cast for 'Herbert Chappel' and not for 'Howard Chappell'. The Court affirms this ruling on the authority of Matter of Sweeney, 158 App.Div. 496, 143 N.Y.S. 727 (); Matter of Mischler, 203 Misc. 15, 112 N.Y.S.2d 809 ().
Exhibit H consists of a ballot on which appears printed the name of 'Howard Chappell'. This ballot is objected to because there appears to be a faint mark which looks like an 'x' and a faint red line (both in the voting space for the office of Trustee), neither of which is in the voting space of the Police Justice.
The Court holds that a mark or erasure, outside the voting square, but in connection with the candidates of a single office renders the ballot blank as to that one office, but does not make the entire ballot void. Matter of Flanagan, 246 App.Div. 177, 285 N.Y.S. 267. Accordingly, this is a valid ballot for Chappell.
Exhibit I consists of a ballot upon which appears the name 'Howard Chappell' with the name 'Howard' written over after it had apparently been written 'H. L. Chappell' or 'Harold Chappell'. This is, in my opinion, a valid ballot for Chappell since it is apparent that the voter corrected the signature before casting his vote for the purpose of making sure that his vote would be counted.
Where a voter makes an error in the manner of voting but corrects it, and in so doing clearly manifests his intention to vote for a certain candidate, the vote is valid. By comparison, see Smith v. Fiorito, 198 Misc. 518, 102 N.Y.S.2d 669 and Devine v. Osmann, 164 Misc. 665, 1 N.Y.S.2d 24, affirmed 275 N.Y. 639, 11 N.E.2d 795, (check mark corrected to an x mark).
Exhibit J consists of a ballot on which appears the name 'H. Chappelle'. This should be counted for Howard Chappell since this is the clear intent of the voter. See Haskell v. Hannah, 188 Misc. 589, 68 N.Y.S.2d 644 (L. Haskell counted for Clarence L. Haskell).
Bennett v. Board of Elections 10 Misc.2d 804, 169 N.Y.S.2d 222 (C. Bennet counted for Clair Bennett).
Exhibit K in the opinion of the Court cannot be counted for Howard Chappell for the reason that only the name 'Chappell' appears thereon. There is no identification of what Chappell is intended. Matter of Garvin, 168 App.Div. 218, 153 N.Y.S. 549; Matter of Slater, 180 Misc. 798, 41 N.Y.S.2d 11; Matter of City of New Rochelle (Fasso) NYLJ Sept. 21, 1951 p. 586, Westchester County Sup. Court.
Matter of Bennett, 10 Misc.2d 804, 169 N.Y.S.2d 222 is distinguishable on the facts because Bennett was there the incumbent official. Chonin v. Millspaugh, 13 Misc.2d 841, 180 N.Y.S.2d 674 is likewise distinguishable because the write-in candidate was an active candidate and had been designated by another political party.
Exhibit L in the opinion of the Court cannot be counted because of two reasons. The name is written 'Mr. Chappell' which is an insufficient identification and for the further reason that an additional straight line appears to the left of the name which might reasonably be termed a mark of identification of the ballot.
Exhibits M, N, O and P are valid votes for Howard Chappell although written or printed as follows:
M--'Howard Chaple'
N--'Howard W. Chapple'
O--'Howard Chapell'
P--'Howard Chapple' See Matter of Bennett, 10 Misc.2d 804, 169 N.Y.S.2d 222 (Bennet, Benett, Bentt).
Exhibits Q. R and S are valid votes for Howard Chappell although the final '1' of Chappell is missing. Exhibit Q is not void because the...
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