Deister v. Wintermute

After the general election held in the county of Che-mung on the 9th day of November, 1906, the county board of canvassers canvassed the statements or returns of the -board of inspectors of election, and 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 district 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 the 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.

I think that the evidence was excluded upon the mistaken theory

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. 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,

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 concur, except SMITH, P. J., not voting.