#### The People of the State of New York ex rel. John H. Deister, Appellants, *v.*Thomas J. Wintermute, Respondent.

Third Department,

November 27, 1907.

Election Law—evidence waiver of secrecy of ballot — facts showing defect in voting machine but not impeaching return of canvassers.

While it is the policy of the State to protect the secrecy of the ballot so that the voter may freely exercise his choice without being subject to intimidation or control by others, yet the protection being for his benefit he may waive it and testify in court as to his vote.

*350As the statute permitting the use of voting machines requires that an elector desiring to vote for a-candidate must register his choice by making a change in a counter capable of being read by the inspectors, evidence that a certain number of electors exceeding in number the votes canvassed for a candidate pulled down the lever over the Democratic column containing his name does not impeach the return of the board of canvassers, for they are not called upon to determine whether the voting machine worked correctly or to correct any error, if one were made.

But such evidence is admissible, to show that by reason of the failure of the machines to carry out and express the intent of the voters owing to defects, there was not a fair and complete expression of the popular will at the election:

. Appeal by the plaintiff, The People of the State of blew York, and the relator, John H. Deister, from a judgment of the Supreme Court in favor of the defendant, entered in the office, of the clerk of the county of Chemung on the 4th day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day. of May, 1907, denying the appellant’s motion for a new trial made upon the minutes.

*Michael Manaher, John J. Crowley*and *William 8. Jackson, Attorney-General,*for the ajipellants.

*James Macon, for*the respondent.'

Sewell, J.:

After the general election held in the county,of ■ Chemung on the 6tli day of November, 1906, the county board of canvassers canvassed the statements or returns of the board of inspectors of election, and 1 determined . that the defendant, Thomas J. Winter-mute, the Republican candidate for the office of county treasurer, had received 4,720 votes and that the relator, John H. Deister, the Democratic candidate for that office, had received 4,718 votes.

The relator challenged the determination of the county board of canvassers, and this action was brought to determine whether the relator or the defendant was, by the greatest number of votes, elected treasurer of the county of Chemung.

It was an undisputed' fact in the case that the original statements of canvass, made and signed, by the inspectors of election, contained a true statement of the number of votes cast for the office of county treasurer, except the statements or returns from the first dis*351trict of .the fourth ward, the first district of the fifth ward, and the second district of the eleventh ward of the city of Elmira, where United States standard voting machines were used.

The relator conceded that the returns from the disputed districts contained a true statement of the vote therein,-as shown by the voting machines, but claimed that the machines were not in complete working order and were in such a defective condition that they did not correctly register the votes for the office of county treasurer.

There was no question of fact presented as to the number of persons who. entered the voting machines for the purpose of voting, or as to the number of votes actually registered by the counters of the machines. It was conceded that 273 electors entered the machine used in the first district of the fourth ward, and that only 199 votes were, registered for the office of county treasurer, of which 27 were for thfe relator; that 314 voters entered the machine used in the first district of the. fifth ward, and 226 were registered, of which 81 were for the relator; that 221 attempted to vote in the second district of the eleventh ward, 168 votes were registered, of which 80 were for the relator.

The relator attempted to meet the burden of proof cast upon him by the returns of the inspectors and the certificate of election by offering to show by 95 duly qualified electors of the first election district of the fourth ward, by 146 electors of the first election district of .the fifth ward and by 120 electors of the second district of the eleventh ward, that at the election in question they pulled down the lever over column B, which was conceded to be the Democratic column and contained the name of the relator, and did not push back any of the pointers of that column or make any effort to split the ticket. The defendant stipulated that these offers should have the same effect as though the witnesses were actually produced and were on the stand to testify, but objected to the evidence on the ground that it was incompetent, improper and immaterial, in violation of the secrecy of the ballot and contrary to the public policy of the State. The objection was sustained and an exception taken'.

This ruling presents the only question to be considered upon this appeal.

*352I think that the evidence was excluded upon the mistaken theory. that a voter may not be asked how; or for whom he voted. It is the policy of the State to protect the secrecy of the ballot so that the voter may freely exercise his choice without being subjected to intimidation, or any other manner of control by others, but according to the weight of authority this protection can be claimed only' by him. He may waive it and testify in court for whom he voted. *(People*v. Pease, 27 N. Y. 45 ; *People ex rel. Judson*v. *Thacher,*55 id. 525 ; 15 Cyc. 424.)

There can be no doubt that the evidence would have been relevant and proper if it had tended to show that the electors voted when they, pulled down the lever of the voting machine.

It will be seen that the effect of the evidence would not have been to impeach the returns of the vote for the office of county treasurer in the disputed districts. It was undisputed that a-vote is not registered by a voting, machine for any person whose name appears in a party column, as a nominated candidate for office when the lever over it is pulled down; that this only indicates the choice of the voter, and that to give expression to the intention, or to manifest the choice effectively, it is necessary to turn the registering dials, voting wheel or counter connected with the name of each candidate a fixed distance, which is done when the machine is in complete working order by throwing back the operating or curtain lever as the voter is about to leave the booth.

In permitting the use of voting machines the statute has, in effect, provided that any elector who desires to vote for a candidate must register his choice by making a change in a counter, capable of being read by the inspectors, and which, by the understanding of all, expresses a vote .for the candidate whose name is connected with the counter. It has made the question whether or not an elector has voted to depend upon a movement of change of the counter numbers. This is apparent from the character of the duty imposed upon the inspectors in canvassing the vote. They are only required to read, record and return “the result as shown by the counter' numbers.”* They are"'not called upon to determine whether, the *353voting'machine did or did not work correctly, or to correct any error if one were made.

The change or movement of the counter is the only means provided for expressing, carrying out or determining the choice of the voter, and as the very purpose of voting is to have it counted, it cannot he doubted that if a voter has not indicated his choice so that it can be determined, without intrinsic evidence of his intention, he has not voted, and it is a matter of no consequence whether the failure to express a preference is due to the condition of a ballot, the voluntary act of the voter, of to the defects in the mechanism or the operation of a voting machine.

It follows, therefore, that the evidence offered would not have tended to show that more votes were cast for the relator than were canvassed and returned.

It was, however, pertinent and proper to prove that by reason of the failure of the machines to carry out and express the intent of the voters, the relator was deprived of more than enough votes to change the- result of the election. Upon a trial of quo warranto to determine the title to an office depending upon a general election the question is, not only who received the greatest number of votes, but whether the defendant was legally and duly elected and entitled to discharge the duties of. the office held by him, and this involves a determination of the legality' of the election. *(People ex rel. Bush*v. Thornton, 25 Hun, 456 ; *People*v. *Pease, supra ; People ex rel. Judson*v. Thacher, *supra.)*

The evidence was clearly admissible upon the question whether there was not a fair and complete expression of popular will in the disputed districts.

I am, therefore, of the opinion that the judgment' and order appealed from be reversed and a new trial granted, with costs to abide event.

All concurred, except Smith, P. J., not voting.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.

*

 See Election Law (Laws of 1896, chap. 909), §§ 178, 180, added by Laws of 1899, chap. 466, and amd. by Laws of 1901, chap. 530; Id. §§ 111, 112. Section 178 has been since amended by chapter 654 of the Laws of 1907.— [Rep.