People Ex Rel. Deister v. . Wintermute

Cullen, Ch. J. The action was brought to determine the title of the defendant to the office of county treasurer of Chemung county. At the general election held in 1906, the *102 relator and the defendant were candidates for that office, the term of the then incumbent of which expired on the 31st day of December ensuing. The defendant was the incumbent. The official canvassers awarded the office to the defendant by a plurality of two votes. The relator claimed the canvass was erroneous and that in truth he had received a plurality. On the trial of the action the following facts appeared: In the county of Chemung there were forty-five election districts, twenty-eight of which were in the city of Elmira. In that city were used at the general election of 1906 the U. S. Standard voting machines. Paper ballots were used in all the other districts outside of the city of Elmira with the exception of four. The controversy in the case has been caused by the failure of the machines to properly register the votes of the electors. The failure of the machines to operate correctly arose from the following circumstances: In the machines the candidates of the various parties are put in columns, one after the other, for the resjiective offices to be filled at the election. Candidates for the same office, of different parties, are placed in their respective party columns, but opposite each other on the same horizontal line. Opportunity is given to vote a “ split” ticket by the use of a lever or knobs, and a device is employed which prevents the voter from voting for more than one candidate for the same office. Where, however, there are two or more vacancies in the same office to be filled the elector may wish to vote for candidates who are on the same horizontal line. To enable him to do so and also to prevent him from voting twice for the same candidate, instead of once for each of two candidates, another piece of mechanism is employed which is called an “ indorsement bar.” These bars are not part of the ordinary mechanism of the machine, but are used only in cases where there are two or more vacancies in the same office to be filled. There were two vacancies in the office of judge of the Supreme Court in the judicial district which includes the county of Chemung. In three of the Elmira districts the inspectors or other election officials, through ignorance, failed to properly adjust or fasten the indorse *103 ment bars, the result of which was to affect the accurate working of the machine, not only with reference to the votes for the two offices named but throughout the whole ticket, so that it does not seem to have properly recorded or registered the votes of the candidates for any office. The failure was one of omission rather than of commission; that is to say, the machine did not record votes that were not cast, but it failed to record votes that were cast, and from a test of the operation of the machine made at the trial the failure to properly adjust the indorsement bars seems to have affected the Democratic column, in which the relators name was, much more seriously than the Republican column, in which was tlife name of the defendant. This defect in the operation of the machine was fully explained at the trial, but the details it is unnecessary to relate. In the first district of the fourth ward the vote for the relator, as shown by the machine, was twenty-seven. On the trial the relator proved, by the testimony of fifty-one electors of that district, that they had voted for him at the election of 1906. Further testimony was given as to the failure of the machines to properly record the votes in two other districts. Testimony was also given on behalf of the defendant. At the conclusion of the evidence the relator asked that the question of who received the greater number of votes, he or the defendant, should be submitted to the jury for determination as a question of fact. The defendant asked that a verdict be directed in his favor that he was duly elected to the office. The trial court denied each request ' and held that on account of the failure of the voting machines to work there was no valid election for the office of county treasurer, but that the defendant was entitled to hold the office by virtue of his prior incumbency until his successor should be duly elected, and directed the jury to find a verdict to that effect. From the judgment entered on that verdict both parties appealed to the Appellate Division, where the judgment below was affirmed. That an official canvass is only prima facie evidence of title to office and not conclusive may be said to be almost ele *104 mentary law in this state (People ex rel. Van Voast v. Van Slyck, 4 Cow. 297; People ex rel. Yates v. Ferguson, 8 Cow. 102; People ex rel. Benton v. Vail, 20 Wend. 12; People ex rel. Eastman v. Seaman, 5 Denio, 409 ; People v. Cook, 8 N. Y. 67; People ex rel. Smith v. Pease, 27 N. Y. 45; People ex rel. Stapleton v. Bell, 119 N. Y. 175, p. 187), but in what manner and to what extent such canvass can be impeached presents the question argued before us. The first question, and that most elaborately argued by the learned counsel for the defendant, is as to the admissibility of the testimony of the electors to show how they voted at an election. He contends that to allow such testimony is to violate the secrecy of the ballot, and insists that the question is still an open one in this state. The claim that the question is an open one is clearly untenable It has long since been settled in this state by authority. The first Constitution of the state (1777) directed the legislature as soon as might be possible after the termination of the Revolutionary war to pass an act for holding all elections by ballot. (§ 6.) The Constitution of 1821 required all elections to be by ballot except for town officers. (Art. II, sec. 4.) The provision of that Constitution was re-enacted in the Constitution of 1846 (Art. II, § 5), and again in that of 1895, in which last, however, there is added. “ or by such other method as may be prescribed by law, provided that secrecy in voting be preserved.” That the object of this addition in the last Constitution was not to create any greater safeguards for the secrecy of the ballot than had hitherto prevailed, but solely to enable the substitution of voting machines, if found practicable, is too clear for discussion. Therefore, the older decisions of our courts have lost none of their authority by reason of any change in the Constitution. People ex rel. Yates v. Ferguson (8 Cow. 102) was quo warranto to try title to the office of cleric of Montgomery county. The relator’s name was Henry F. Yates, and he was at times called Frey Yates. The canvassers refused the relator votes cast for H. F. or Frey Yates. On the trial of the action the circuit judge excluded the testimony of voters to the *105 effect that in voting for H. F. Tates or for Frey Tates they intended to vote for the relator. A verdict was rendered for the defendant, on which -judgment was entered. That judgment was reversed by the Supreme Court, which held that the witnesses should have been allowed to testify. In that case no point seems to have been raised that the testimony would violate the secrecy of the ballot. Again in People v. Cook (8 N. Y. 68) testimony was admitted to prove that by votes for Benjamin C. Welch, Jr., or Benjamin Welch, the electors intended to vote for Benjamin Welch, Jr. Again the point that such evidence violated the secrecy of the ballot does not seem to have been raised. But in People ex rel. Smith v. Pease (27 N. Y. 45), despite a vigorous opinion by Chief Judge Denio, which forcibly urged everything that could be said in support of that objection, the objection wras overruled and the testimony held competent. It was sought to re-argue the question in People ex rel. Judson v. Thacher (55 N. Y. 525), but the court adhered to the doctrine of the Pease case, Judge Andrews saying: “ The right to examine voters in an action in the nature of a quo warranto is in affirmance and vindication of the essential principle of the elective system, that the will of the majority of the qualified electors shall determine the right to an elective office.” (P. 535.) It is true in the Thacher case this declaration was obiter, for the disposition of the case proceeded on another ground. Since the Thacher case, thirty-five years ago, the doctrine of the Pease case has never been questioned. It has been accepted as the settled law of the state, not only in quo warranto proceedings, but in criminal prosecutions against election officers, and such officers have been convicted and punished on the strength of such testimony. Flor can the Pease case be distinguished from the case at bar. True, in that case it was sought to show that persons who had voted for a certain candidate were not qualified electors, while here it is sought to show that the vote of the elector was not counted. But the purpose for which the testimony was offered has no ■ bearing on the question of its admissibility, *106 since the only ground for excluding it is that it infringes on the secrecy of the ballot, an objection equally applicable to every purpose for which the testimony might be offered. We must, therefore, decline to treat the question as still open. We are now brought to the consideration of the effect of this testimony if credited. If the voting had been by ballot there is no doubt that under the authorities cited the jury could have found that the relator was entitled to the votes of those witnesses, and if they were sufficient in number, to the office for which he was a candidate. It is contended, however, that a different rule is applicable to voting by a machine, and so the learned Appellate Division held on a previous appeal in this action (122 App. Div. 349, 352), where that court said : “ 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 or 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 voting 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 be 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, or to the defects- in the mechanism or the operation of a voting machine.” The learned-court, there *107 fore, concluded that the evidence would not establish that the relator had received the votes of these witnesses; but, nevertheless, it held it was competent as showing that the electors were deprived of the right to vote in sufficient number to render the election illegal or ineffective. In this reasoning we do not concur. The pith of it is that by the substitution of machines for paper ballots the act of voting and that of registering or canvassing the vote cast has been so blended as to constitute a single indivisible thing, and that if a vote is not registered it is in law not cast. Until the use of voting machines it never was questioned that the acts of voting and of canvassing the vote were entirely separate. When the voter deposited his ballot legally prepared in the box, the exercise of his right was complete. As shown by the cases cited, the question was what candidate had received the greater number of votes so cast by the electors, the canvass or return of the vote being only prima facie evidence. That canvass might be false, or ballots might have been lost or destroyed during the canvass so as to make an accurate canvass impossible. Doubtless, any of these things placed serious obstacles in the way of ascertaining what vote had actually been cast, nevertheless if, in despite of these obstacles, a candidate could show by the testimony of electors that a majority had actually cast their votes in his favor, such evidence, if credited by the jury, entitled him to an award of the office. When the elector in the use of a voting machine complies with the prescribed regulations for its use so as to indicate his choice for any particular office, the vote, so far as he is concerned, is complete. The registry by the machine is simply a substitute for the canvass of written votes. That it failed to work properly cannot destroy the effect of the act of the elector in the exercise of his constitutional right. If the machine at the close of the polls, but before it could be opened, were destroyed by accident or design, this should not render the election nugatory. Doubtless it would make the ascertainment of the vote cast a work of great difficulty, but the difficulty of the inquiry would be no valid objection to *108 entering upon it. A similar argument was addressed to the court in the Pease case, where it was urged that to permit a party to show that a greater number of illegal votes had been cast for his adversary than the majority the canvass gave him would be attended with great inconvenience and might last a number of years. In response the court said: “ It is the first time I have ever heard it urged that a party who had a conceded right should not have a remedy to enforce it, because a large consumption of time would take place before his right could be established. If a party has a legal title to an office, it surely can be no legal reason for denying him the opportunity to establish it, that such process will require the examination of a large number of witnesses and consume much time in the proceeding. Rights of parties cannot be determined on such a basis.” (P. 61.) If the use of voting machines were attended or may be attended with the result attributed to it by the Appellate Division, I should very much doubt whether such use was constitutional, despite the amendment in 1895. The right of the elector to vote is conferred by the Constitution, and whenever he exercises that right in conformity with the methods prescribed by law he is entitled to see that his vote has been given full force and effect in the determination of what persons have been elected to office. True, he may be unable, either by negligence on his own part or by personal misfortune, to exercise that right, but any method of holding an election which would deprive the electors free from fault or personal misfortune of the right of casting their ballots and having effect given to the votes so cast would plainly be unconstitutional. (People ex rel. Bradley v. Shaw, 133 N. Y. 493 ; People ex rel. Goring v. President, etc., of Wappingers Falls, 144 N. T. 616.) When the constitutional convention authorized the employment of methods of voting otherwise than by a ballot it never contemplated or sanctioned a method that would impair the rights which the voter had enjoyed under the previous constitutions. As aiready said, we think that the use of voting machines does not necessarily impair those rights. It may make it more *109 difficult to ascertain the true vote cast where the machine works defectively than in cases where the paper ballots are used and the ballots are preserved. It is to be borne in mind, however, that until a few years ago the paper ballots were always destroyed immediately after the canvass, and it would not seem more difficult to establish the vote of an election district cast by a machine than when the ballots were destroyed immediately after the canvass. We are of opinion, therefore, that if the testimony of these witnesses was credited by the jury their acts at the ¡lolling place were not mere attempts to vote, but complete votes for the candidates of their choice. The case of People ex rel. Nichols v. Board of County Canvassers of Onondaga (129 N. Y. 395) is plainly distinguishable from the one before us. There the official ballots furnished at certain election districts were improperly indorsed. It was held by a divided court that the votes should not have been counted. But, as pointed out by Judge O’Brien in the prevailing opinion, the mistake of the public officers in indorsing the ballots did not defeat the right of the elector to vote because, under the statute, he could still prepare and ténder a proper ballot. Had the statute not reserved this right to the elector the case would have been very different, for though the legislature’s power to regulate the method of voting is plenary, the method must be such as will enable an elector being without fault or personal misfortune to exercise his constitutional right. So it has been held that the fact that an imposter has been suffered to vote under an elector’s name cannot deprive the elector of the right to vote when he presents himself at the polls. (People ex rel. Borgia v. Doe, 109 App. Div. 670.) At the trial the practical operation of a voting machine showed on several tests that it worked more to the detriment of the relator than to that of the defendant for some reason which the experts explained. The evidence of the defective working of the machine was competent because the machine contradicted the statements of witnesses for the relator that *110 they had voted for him. Of course, the testimony of these witnesses was not conclusive, and if the machine proved on examination to be working properly and accurately, the jury might very possibly and probably would have discredited the witnesses as against the record shown by the voting machine. When the machine was shown to work improperly its record as a contradiction of the' witnesses was very much diminished. But these tests or experiments before the jury were not competent for the purpose of showing any average of loss by the relator over that suffered by the defendant and to predicate thereon that the relator must have received so many more votes than the machine credited him with. This would be pure conjecture in which the jury should not be permitted to indulge. There is no pretense that the machine recorded votes not cast, but it failed to record votes cast. Therefore, the record as returned by the machine should be taken as the starting point of the inquiry, and such record can be varied only by competent, legal proof that voters did vote for either candidate to a number in excess of those registered by the machine. The learned counsel for the defendant also contends that the use of the voting machine is unconstitutional in that it does not secure secrecy in voting and, therefore, the returns from those districts where machines were used should be thrown out and the election awarded on the canvass of the other districts. This would give the defendant a large majority. The evidence in the case tends to establish that when an elector votes a “ split ” ticket persons very close to the machine may at times hear a noise or “ click ” caused by the movements of the lever which is necessarily employed when the elector goes out of the straight party column. There is no pretense that any indication is given as to what candidate the elector has voted for, but simply that he has not voted a straight party ticket. The circumstan ees by which even this information can be gathered seem exceptional. Assuming, however, that the objections to the "use of the machine, as violating the constitutional requirement, are substantial, *111 that question should bo determined in a direct proceeding by mandamus or otherwise to compel the rejection of the machines and the use of the paper ballot, in which the subject can be fully investigated and the question fairly determined. It would be an extreme case that would justify the courts in disfranchising a large body of electors by holding that their votes cast in the method prescribed by statute were null and void. It follows that the case should have been submitted to the jury and that the judgment below should be reversed and new trial granted, costs to abide the event.