#### Matter of the Petition of the People ex rel. Ward E. Pierce, Relator, *v.*Burns E. Parkhurst et al., Composing the Election Board of the Town of Richland, and Lewis J. Macy, Defendants.

(Supreme Court, Oswego Special Term,

August, 1898.)

1. Election Law — Marks and erasures on ballots.

Ballots having, in addition to the cross-mark, marks in the voting space, apparently made for identification, those having erasures, in whole or in part, made by rubber or pencil, and a ballot having ait inner circle within the voting circle and containing a cross-mark partially erased, are void under the Election Law (Laws of 1896, chap. 909, § 105).

2. Accidental trifling marks.

. ■ Trifling marks upon a ballot made by the voter by accident do not vitiate it..

3. Cross-marks. (

If lines cross each other in the slightest degree they constitute the statutory .cross-mark. A cross-mark with a third mark crossing it is a sufficient mark..

4. A straight line opposite name of rival candidate.

A straight Republican ballot, having a proper cross-mark in the party circle, is nqt invalidated by a diagonal straight line in the voting space . opposite the name of a Democratic candidate.

5. A vote for two candidates for an office, not in question.

A ballot having a cross-mark in both voting spaces opposite the names of rival candidates for the same office, but one not in question, is not wholly invalid but cannot be counted for that office.

6. Excess of cross-marks.

A ballot, having two cross-marks in the voting space opposite the name of one candidate, is valid.

7. Place of cross-mark — Mark incomplete.

A ballot, having its cross-marks partly within and partly without the voting space and so made that the lines, if continued, would cross each other but for the fact that one of them loses its identity by running into the broad outside ink border of the ballot, is valid.

8. Form of cross-mark. •

A mark made on the. lines of an A, crossed by a line nearly horizontal, and situate, partly at least, within the voting- space is a sufficient cross-mark.

9. Cross-mark in wrong voting space.

A ballot, having a cross-mark wholly without the voting space and wholly within the space occupied by the name of a Democratic 'candidate, cannot -be counted for a Republican candidate.

*443Motioh by plaintiff for an order directing that a writ of peremptory mandamus be issued commanding the defendants composing the election board, to reconvene and recount the ballots for the office of supervisor at the town meeting of the town of Richland, held on the 1st day of -March, 1898.

Irving G. Hubbs and S. C. Huntington, for relator.

N. B. Smith, for defendant Macy.

B. E. Parkhurst, for election board.

Wright, J.

The defendant Lewis J. Macy was declared by the defendants, the election board, to have been duly elected supervisor.

The relator was a candidate for said office and urges that certain •errors were committed by the election board in counting the ballots, and that a legal count thereof would result in the election of himself, the relator. I will consider the issues respecting the ballots in dispute in the numerical and alphabetical order in which they are severally numbered or marked. ,

Ballot Ho. 3.

The relator, Mr. Pierce, contends that this ballot,' which the board rejected as void, should have been counted for him. It has, in addition to a cross-mark in the voting space opposite the name of the relator, a diagonal black pencil-mark in the space occupied by his name, on the right side thereof. Section. 105 of the Election Law provides: “ * * * It shall not be lawful to- make any mark upon an official ballot other than the cross (X) mark used for the purpose of voting, with a pencil having black lead, and that only in the circles, or voting spaces to the *left*of the names of the candidates. * * * Any ballot upon which there shall be found any mark other than the cross (X) mark used for the purpose of voting, or a name or names written otherwise than as heretofore provided, * * * shall be wholly void and no vote thereon shall be counted.”

The diagonal mark at the right of the name of the relator on this ballot was made in clear violation of the statute. It bears the impress of deliberation. It was made apparently for the purpose of identification. There is no other reasonable explanation for its existence. This ballot was, therefore, properly rejected. '

*444Ballot PTo. 5.

The defendant Macy claims that this ballot which was rejected as void should have been counted for him.

In the voting circle above the Republican column of candidates, it has an inner circle, and within that inner circle there was evidently made a cross-mark which the voter partially erased with a rubber or a sharp instrument. This inner circle and the erasure rendered the ballot void.

Section 105 of the Election Law provides:. “It shall not be. lawful * * * to erase any name or mark written thereon (on the ballot) by such elector.”

This ballot was, therefore, properly rejected.

Ballot PTo. 9.

The defendant Macy also claims that this ballot, which the board rejected as void, should have been counted for him.

. A cross-mark had evidently been made in the voting space op- * posite the name of George Haggerty, the Democratic candidate for collector, and a cross-mark had also evidently been made at the left of the name of Charles H. Burch, a Democratic candidate for constable, m the space occupied by the name, and both of said cross-marks were erased by a rubber. These obliterations rendered the ballot void, and the board properly rejected it.

Ballot PTo. 12.

The defendant Macy claims that this ballot, which was rejected by the board as void, should have been counted for him.

The cross-mark in the voting space opposite thé name of George ■W. Ashman, one of the Republican candidates for constable, has. been obliterated by heavy, broad and somewhat oval pencil-marks.

This ballot was properly rejected;

Ballot PTo. 16.

The relator contends that this ballot, which the board rejected as void, should have been counted for him.

It has a cross-mark in the voting space opposite the name of the Republican candidate' for collector, and also a cross-mark in .the voting space opposite the name of the Democratic candidate for the sáme office, but the latter cross-mark is erased or crossed off by having two ..pencil lines drawn nearly parallel and horizontally across it.

*445It is evident that these parallel horizontal lines drawn across the voting cross-mark were no part of the original cross-mark, but were made with'the deliberate intention of cancelling or erasing it, with the view of voting for the opposite candidate. Ro clearer evidence of a deliberate cancellation or erasure on a ballot of a “ mark written thereon by such elector ” is needed, and it comes squarely within the condemnation of the statute.

“Ballots which show erasures, cancellations and obliterations apparently made by the voter in attempting to correct his own errors are invalid.” ‘

People ex rel. Feeny v. Board of Canvassers, 156 N. Y. 36; 50 N. E. Repr. 425. Judge O’Brien said in that case (p. 51): “ These marks were apparently made by the voter in attempting to correct his own errors. After making the X mark in the circle or in the voting space, he would endeavor to erase it with a rubber or some sharp instrument or in some cases by striking the pencil through the mark SO' as to’ erase it.” Farther on in the opinion, the judge says: “ If the elector makes an. error in manking his ballot he may return it and procure another. * * * but he cannot correct the error by erasing or defacing the marks and thus confusing and distinguishing Ms ballot.”

Ballot Ro. 16 was, therefore, properly rejected by the board.

Ballot “A.”

The relator contends that this ballot was erroneously counted for Macy on the ground that the cross-mark witMn the voting circle at the head of the Republican list of candidates was not made with a black lead pencil. The objection is unfounded. It was evidently made with a black lead pencil having a dull point. TMs appears beyond question upon examination under the microscope.

TMs ballot was, therefore, properly counted.

Ballot “ B.”

The relator urges that this ballot was erroneously counted for Macy, on the ground ,that the lines in the voting spaces opposite the names of the candidates F. Mason CalMns and Frank W. WMte do not cross each other and, therefore, are not cross-marks. Though at first glance the lines opposite the name of WMte appear not to cross each other, yet, on a close observation, it does appear that the lines do actually cross. TMs appears very plainly *446tinder the.microscope.; If the lines cross each other, in the slightest degree, they form a cross-mark. The same remarks *(including the microscopic*observations) are applicable to the cross-mark opposite the name of Oalkihs. Though the horizontal line crossing the diagonal line is extremely faint, yet, on.close inspection with the naked eye, it is discernible. The voter made the cross-mark in the circle at the head of the Eepublican ticket, and then made cross-marks opposite the name of each Eepublican candidate. He made the latter marks evidently in a hurry and lightly, and some, were made not very distinctly; but *the required Unes are there.*

*■*This ballot was, therefore, properly counted.

; Ballot “ 0.”

This ballot is objected to by the relator on the ground that, in the Eepublican party voting circle, a very short line, not much larger thap a dot, appears close to the- end of one of the lines, forming a cross-mark. This little dot-like mark, evidently made accidentally while making the cross-mark, is too trivial to render the ballot void. "

The Eeeny case above mentioned is an authority for holding that trifling marks, evidently made by accident, do not have the effect of violating the ballot. ■

Ballot *“*D.”

The defendant Macy claims that this ballot was. improperly counted for Pierce.

The cross-mark in the Democratic party circle has a short third line running parallel with one of the projecting ends of one of the cross lines.

Also in the voting space opposite the name of Hannibal Woodard, a candidate for justice of the peace, the cross-mark is not complete, being made of one straight line joined by a second line at right angles.

The first objection is of a trivial character; and, as to the second objection, the Eeeny case is an authority for holding that such a mark does not invalidate the ballot (see_ ballot Ho. 104 of the Eeeny case).

The board, therefore, properly counted this ballot.

Ballot *“*E.”

■ The defendant Macy objects to this ballot as having been .improperly counted for Pierce.

*447It has, in the Democratic party circle, a cross-mark with a third line crossing it, thus making the cross-mark composed of three lines instead of two.

This extra line, being evidently made as part of the cross-mark, does not invalidate the ballot, and the board properly counted it.

Ballot “H.”

The defendant Macy claims that this ballot was improperly counted for Pierce, on the ground that the marks in the voting spaces opposite the names of Theodore Spencer and Jerome Perry are not proper cross-marks. ¡Neither of these objections are well founded.

The board, therefore, properly counted this ballot.

Ballot “I.”

The defendant Macy claims this ballot was improperly counted for Pierce.

In the voting space opposite the name of Galvin B. Burch a cross-mark had been made which has been nearly obliterated by an erasure evidently made with rubber and which gives to the whole voting space a black appearance.

This renders the ballot void and the board improperly counted it. It must, therefore, be rejected.

. Ballot “K.”

The' defendant Macy claims that this ballot was improperly counted for Pierce. In the voting circle at the head of the Republican ticket, there appears, in addition to the cross-mark, a small black mark lightly made. It is of too trivial a character to be regarded as a violation of the statute. The board properly counted it.

Ballots *“*L ” and “ X.”

The relator objects to these ballots on the ground that a puncture is found at the end of one of the cross-mark lines, in two voting spaces, which puncture in *“*L ” is opposite the name of Wm. H. Averi.il, and in “ X ” is opposite the name of Frank H. White. These punctures are very small, being evidently made accidentally by the point of a sharp lead pencil while making the cross-marks. They are too trivial to invalidate the ballots, and the board properly counted them.

*448Ballot “M.”

This ballot is objected to by the -relator. It is a straight Be-publican ballot, with a proper cross-mark in the party circle. A straight diagonal line, however, appears in the voting space opposite the name of John T. Mahaffy, the Democratic candidate for commissioner of highways, and this is the ground of the relator’s objection to its validity. ■ '

Similar marks on ballots in the Feeny case (Exhibit 52 and Exhibit 149) were held by the Appellate Division not to invalidate them. These exhibits appeal1 in a schedule, which; as conceded by. the attorneys herein, was used before the Court of Appeals, and represents- the marks on the disputed ballots, together with the decision on the validity of each ballot as made in that case by the Appellate Division of the second department.

*No*mention of any particular ballot, however is made in the *opinion,of*the. Appellate Division, 23 App. Div. 201.

Though Exhibit 52 was held bad by the Oourt of Appeals, it was ' on a different ground,' viz., that of erasure.

Ballot Ño.' 145 in the Feeny case had in one of the voting spaces a straight line in addition to the cróss-mark, and separate from it. It was held that the straight line did not vitiate the ballot; (See the above-mentioned schedule and decision of. said Appellate Division.) -

The voter of ballot *“*M ” evidently made the first line of a cross-mark and then forgot to complete it.

In Whittam v. Zahorik, 91 Iowa, 23, the court says: -“It will not do to say that all ballots which bear marks not authorized by law should be rejected. All voters are not alike skillful in marking. Some are not accustomed to- using a pen or pencil- and may place some slight mark on the ballot inadvertently, or a cross first made may ’be clumsily retraced. It is evident that in such cases, and in others where the unauthorized mark is not of a character to be used readily for the purpose of identification, the ballots should be counted, but where the unauthorized marks are made deliberately, and may be used as a means of identifying it, the ballots should be rejected.” ■ •

The accidental failure to complete a partly-made cross-mark in the voting space, which was apparently made *“*for the purpose of-voting,” or.any trivial marks made in the voting space or party circle in addition to the two lines necessary to form a cross-mark,*449if those additional trivial marks are evidently made by ¡accident or inadvertence, or lack of skill in the use of a pencil, do not vitiate a ballot.

The ballot was, therefore, properly counted for Mr. Macy.

Ballot “ IST.”.

This ballot is objected to by the relator on the ground that a cross-mark appears in the voting' spaces opposite the names of William Lamb and Charles H. Burch, who are opposing candidates for constable. ‘

' Judge Gray, of the Court of Appeals, said in the Eeeny case as follows, applicable to this ballot:

“ I do not think that the effect of the elector’s! action was to destroy the whole ballot, but that, under paragraph 1, subdivision 2, of section 110 of the Election Law, the vote for the office particularly affected by these voting marks for opposing candidates could not be counted.”

This ballot was^ therefore, properly counted. -

Ballot “ 0.”

This ballot was objected to by the relator on a ground similar to that made above as to ballot *“*M.” It must be held valid for the reason assigned to that ballot, and it was, therefore, properly counted.

Ballot “P.”

This ballot is objected to by the relator on the ground that two cross-marks appear in the voting space opposite the name of E. Mason Calkins, a candidate for inspector of election. Such cross-marks appear, but the objection is not well founded.' See Eeeny case, *supra,*wherein ballots similarly marked were held valid.

Ballot “ Q.”

This ballot was improperly counted for Pierce. In one of the • spaces for the writing of the name of a candidate for justice of the peace, in the blank column, appears a diagonal black line. This renders the ballot void. It was evidently made with deliberation and for the purpose of identification. There is no other reasonable explanation for the existence of this mark. This ballot must be rejected.

*450Ballot “ R.”

This ballot is objected to by the relator on the ground that the marks in the voting spaces opposite the names of Prank White and William H. Averill are-not cross-marks.

The first objection is clearly unfounded, for a close observation shows-that the lines cross each other. The second objection is also unfounded, since two lines are made on angles which, if the lines were visible as prolonged, would form a visible cross, but one of them runs into the broad outside ink border of the ballot before meeting the other line, and thus loses its identity in the printed border. The appearance of the lines and angles warrants the con-, elusion that a cross-mark is made partly within and partly outside of the voting space.

The board, therefore, properly counted this ballot.

Ballot *“*S.” B

The defendant Macy claims that this ballot was improperly counted for Pierce, on the ground that, in the voting space opposite the name of the candidate Pierce, there is no cross-mark.

This objection is unfounded. It is apparent to the naked eye that the lines actually cross, and the microscope places the matter beyond question.

The board, therefore, properly counted this ballot.

Ballot “ T

This ballot is objected to by the relator on the ground that the mark in the voting space opposite the name of Benjamin D. Salisbury is not á proper cross-mark. The objection is not well founded. A close observation with the naked eye shows that the lines cross and form a proper cross-mark. . The microscope brings this fact out very clearly.

This ballot was, therefore, properly counted.

Ballot “ UP

The defendant Macy claims that this ballot was erroneously counted for Pierce. A straight black line appears at the left of the name of the relator, Ward E. Pierce, within the space occupied by his name. The line has been partially erased, cutting it in two.

This line and its erasure render the ballot void under the Eeeny case, and the board, therefore, counted it improperly. It must be rejected. ' .

*451Ballot *“ V.”*

The relator claims that this ballot which was counted for Mr. Macy should have been rejected as void. It is a straight Republican ticket except that the elector voted for Michael S. Kelly, one of thé Democratic candidates for constable. The cross-mark opposite his name is made by two diagonal lines which join at the top, forming an acute angle like that of the large letter A, and are crossed by a line nearly horizontal. One of the diagonal lines is wholly within the space occupied by the name,, and .the other lines are partly within the voting space and partly in the ¡space occupied by the name, and they cross exactly on the printed line separating the said two spaces. If this character of a cross had been wholly within the voting space, it would have been valid without question. The fact that it is partly within the voting space and partly outside of it does not make it invalid. See Feeny" case, *supra,*and Taylor v. Bleakley, 28 L. R. A. 638.

The court, in the last case cited, says: “ In my opinion, it (the cross-mark) must be substantially where the statute says it shall be. It will not be valid to put it at the * * * right of the candidate’s name, nor above it, nor belo-w it, nor across its face. Tet I .do not think it must be all within the square, but *some portion of it must be.*If it is all outside of the square, although only by a small distance, it cannot be counted.” Observation shows that a large portion of the cross-marks upon ballots are made partly within and partly outside the voting space. Great injustice would result if the latitude given in the above decision were denied the voter.

“ As to the form of the mark required by law,” the court, in its opinion in the last case cited, says: “ Allowance must be made for the want of practice with a pen and pencil and the carelessness or haste of the voter, or for poor sight due to age, and to the trembling hand of enfeebled nerves.”

This ballot was, therefore, properly counted.

Ballot “ W.”

This ballot was objected to by the relator. It is a straight Republican ticket except that the elector voted for Charles H. Burch, a Democratic candidate for constable. The lines forming the cross-mark are partly within the voting space and partly within the space occupied by the name of the candidate, the precise point where the lines cross being a trifle within the latter space.

*452This hallo* falls within the reasoning of the last case cited and must be held valid.

A like mark was held valid by the Appellate' Division in the Feeny case, 23 App. Div. 201; 48 N. Y. Supp. 866. . Although it, was held invalid by the Court of* Appeals, it was on other grounds*

The board, therefore, properly counted this ballot.

Ballots Designated “ AA,” “ BB,” “ EE,” ” C.”

These ballots were conceded by counsel for the relator on the argument to have' been erroneously counted for him, for the reason that in “ AA,” *“*BB,” “ EE;”' the cross-mark appears in the space occupied by the name of Ward E. Pierce; and “• G.” has an erasure of a cross-mark in the voting space opposite the name of John Y, Mahaffy. These ballots are illegal and are rejected.

Ballot . “ CC.”

The relator claims that this ballot was erroneously counted for Macy, because the voting cross-mark was made wholly outside of the voting space and wholly within the space occupied by the name of George Haggerty, the Democratic candidate for collector; and the same objection applies to the voting mark in the ¡space occupied by the name of Charles H.-Burch, a Democratic candidate for constable.

This ballot must be rejected.-

Ballot “ DD.”

The relator claims that this ballot was erroneously counted for * Macy on the ground that a cross-mark appears in the spaces occupied by the names of Charles H. Burch and William' H. Hinman. The objections are valid, and this ballot must be rejected.

.. The above remarks dispose of all the objections which Were raised tb ballots, on .the argument, or by the briefs of counsel. All objections to the other ballots which are before me are, therefore, considered as waived. '

The foregoing findings and conclusions lead to a reduction of seven votes from the count, as made- by the board, of canvassers for the relator, and a reduction of two.votes from that count for the defendant Macy. On the original count Macy was declared elected. A recount would have only the effect of increasing his majority, and would be of no. benefit to the relator. ' ■

*453There were cast at this town election .859 ballots, of which 39 were void. Upon the same ratio/there would have been cast at the last state election over 52,000 void ballots.

The primary object of an election law is faithfully and correctly to register the expression and will of the voters. This Election Law fails of that object to an unfortunate and remarkable degree. That the result of an election and the title to office should depend upon infinitesimal microscopic examinations and troublesome technicalities is an absurdity, which I hope the common sense of the voters of this state will not long endure. Radical amendments to the Election Law should be made by the next legislature, abolishing the objectionable technicalities which are apparent from the consideration of this case, and which, as experience has shown, are largely preventative of the proper expression and registration of the will and intention of the voter.

The application for a peremptory writ of mandamus for a recount is denied, and these proceedings are dismissed, with costs to the defendants against the relator.

Ordered accordingly.