Weinberger v. Jackson
| Decision Date | 01 June 1967 |
| Citation | 19 N.Y.2d 995,228 N.E.2d 816,281 N.Y.S.2d 834 |
| Parties | , 228 N.E.2d 816 Application of Theodore G. WEINBERGER, Petitioner-Respondent, v. Edith JACKSON et al., etc., Respondents, and Morton A. Epstein, Rival Candidate, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 28 A.D.2d 559, 280 N.Y.S.2d 235.
Proceeding was brought under Section 330 of the Election Law, Consol.Laws, c. 17, for a determination that the Board of Inspectors of Election of the Village of Kensington, Nassau County, acted erroneously in ruling that certain ballots cast at election held on March 21, 1967 for office of police justice of the village were void as to the petitioner.
The total number of votes cast for the office was 343, of which 115 were counted for the petitioner, and 128 were counted for rival candidate, and 100 were voided. Of the 100 voided 89 were voided because the voter marking each had placed his mark in the emblem of the petitioner's party. The emblem was a blank parallelogram located adjacent to the voting square next to the name of the petitioner. The 89 ballots were declared void under Section 212 of the Election Law providing that the whole ballot is void if the voter made any mark thereon other than a cross mark or check mark in a voting square or circle, other than the writing in of a name for the purpose of voting.
The Supreme Court, Special Term, Nassau County, Edward Robinson, Jr., J., entered a judgment dismissing the petition, and the petitioner appealed.
The Appellate Division entered an order May 22, 1967, which (1) reversed on the law and the facts, the judgment of the Special Term, (2) granted the petition to the extent of (a) determining that the Board of Inspectors of Election acted erroneously in ruling that the 89 ballots were void as to the petitioner and (b) directing the board to certify that the petitioner was elected to the office of Police Justice, and (3) otherwise denied the petition. The majority opinion of the Appellate Division stated that the design of the ballots rendered them susceptible to construction by the average voter as an invitation to note his voting mark in either the parallelogram or the voting square and that therefore the voters' marks which were noted in the parallelogram adjacent to the voting square on the petitioner's line, though technically incorrect, manifested an intent on the part of the voters to cast their votes for the petitioner and should...
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