Weinberger v. Jackson
| Decision Date | 22 May 1967 |
| Citation | 280 N.Y.S.2d 235,28 A.D.2d 559 |
| Parties | In the Matter of Theodore G. WEINBERGER, Appellant, v. Edith JACKSON et al., constituting the Board of Inspectors of Election of theVillage of Kensington et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before BELDOCK, P.J., and RABIN, BENJAMIN, CHRIST and MUNDER, JJ.
MEMORANDUM BY THE COURT.
Judgment of the Supreme Court, Nassau County, entered April 13, 1967, reversed, on the law and facts, without costs, and petition (1) granted to the extent that it is herewith (a) determined that the Board of Inspectors of the Village of Kensington acted erroneously as a matter of law and fact in ruling that certain ballots cast at the election for Police Justice of the Village of Kensington held on March 21, 1967 were void as to petitioner and in overruling his objections thereto; and (b) directed that the said Board of Inspectors of Election certify that petitioner was elected to the office of Police Justice of the Village of Kensington and (2) otherwise denied. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein.
In our opinion, under the circumstances at bar, the design of the ballots, to wit: a blank parallelogram (a political emblem) adjacent to the square on each line bearing the name of a candidate of the Village Government party, rendered the ballots susceptible to construction by the average voter as an invitation to note his voting mark in either the parallelogram or the square. Accordingly, in our opinion, the voters' cross marks noted in the parallelogram adjacent to the square, on petitioner's line, on each of the 89 ballots in question, although technically incorrect, manifested an intent on the part of the voters to cast these votes for petitioner. They should, therefore, have been counted as 89 valid votes for him. These votes, together with the concededly valid votes cast for petitioner were sufficient to elect him. The right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible, in our opinion, transcends technical errors, particularly when induced as under the circumstances at bar (cf. People ex rel. Simons v. Knickerbocker, 225 App.Div. 212, 232 N.Y.S. 399, affd. 250 N.Y. 594, 166 N.E. 337).
CHRIST, J., concurs in result, with the following memorandum, in which MUNDER, J., concurs:
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Forman v. Haight
...wherever possible ... transcends technical errors ‘such as this’." Segal Post Hearing Memorandum at 7, quoting Weinberger v. Jackson , 28 A.D.2d 559, 280 N.Y.S.2d 235, aff'd 19 N.Y.2d 995, 281 N.Y.S.2d 834, 228 N.E.2d 816 [2004]. She urges that "this is not a new or novel claim." Courts hav......
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Smith v. Sullivan
...as to safeguard a voter's right to have his or her intent implemented and his or her vote counted. See Matter of Weinberger v. Jackson, 28 A.D.2d 559, 559, 280 N.Y.S.2d 235 [2nd Dept.1967],affd.19 N.Y.2d 995, 281 N.Y.S.2d 834, 228 N.E.2d 816 [1967]. Thus have courts found certain omissions ......
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Egan, Application of
...transcends technical errors." [See, Matter of Ballien v. Alpert, 42 A.D.2d 302, 303, 346 N.Y.S.2d 886, citing Matter of Weinberger v. Jackson, 28 A.D.2d 559, 280 N.Y.S.2d 235, aff'd, 19 N.Y.2d 995, 281 N.Y.S.2d 834, 228 N.E.2d The opening words of the New York State Constitution provide tha......
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Matter of Boudreau v. Catanise
...history of Election Law § 9-112 (1) and the modern-day philosophy of protecting the express intentions of the voter (see, Matter of Weinberger v Jackson, 28 A.D.2d 559, affd 19 N.Y.2d 995), I believe that legislative action would be desirable to prevent a recurrence of the unjust result man......
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Fire District Elections (Including Absentee Ballots)
...against disenfranchisement and to have their intent implemented wherever reasonably possible. Matter of Weinberger v. Jackson , 28 A.D.2d 559, 280 N.Y.S.2d 235. The use of surnames alone on write-in ballots has been held to be sufficient as long as the intent of the voters can be reasonably......
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Fire District Elections (Including Absentee Ballots)
...against disenfranchisement and to have their intent implemented wherever reasonably possible. Matter of Weinberger v. Jackson , 28 A.D.2d 559, 280 N.Y.S.2d 235. The use of surnames alone on write-in ballots has been held to be suficient as long as the intent of the voters can be reasonably ......
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Fire District Elections (Including Absentee Ballots)
...against disenfranchisement and to have their intent implemented wherever reasonably possible. Matter of Weinberger v. Jackson , 28 A.D.2d 559, 280 N.Y.S.2d 235. The use of surnames alone on write-in ballots has been held to be suficient as long as the intent of the voters can be reasonably ......
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Fire District Elections (Including Absentee Ballots)
...against disenfranchisement and to have their intent implemented wherever reasonably possible. Matter of Weinberger v. Jackson , 28 A.D.2d 559, 280 N.Y.S.2d 235. The use of surnames alone on write-in ballots has been held to be sufficient as long as the intent of the voters can be reasonably......