Hyperlawhypertext legal database In re Kirk 123 N.Y.S. 1061

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In re Kirk

123 N.Y.S. 1061 Court N.Y. Sup. Ct. English

Delivered by ASPINARR, J.

Contents

Majority

p. 1061
(66 Misc. Rep. 535.)
In re KIRK.
(Supreme Court, Special Term, Kings County.
March, 1910.)

Headnote

Elections (§ 12G[1] )—Enrollment of Voters—Marking Blanks.
Under Election Law (Consol. Laws, c. 17) § 20, providing for the marking of an enrollment blank with a pencil having black lead, a voter may compel the board of election to place his party affiliation on the enrollment book, though he used a fountain pen.
[Ed. Note.—For other cases, see Elections, Dec. Dig. § 126.*]
Application of William A. Kirk for writ of mandamus to John T. Dooling and others, Commissioners of the Board of Elections of the City of New York.
Writ granted.
Edward R. Collier, for petitioner.
James R. Bell (Asst. Corp. Counsel), for Board of Elections.

This motion is brought to compel the board of elections of the city of New York to convene and place the party affiliation of the said William A. Kirk upon the enrollment book of the Twentieth election district of the Tenth assembly district of the borough' of Brooklyn. It appears from the moving papers that the petitioner used a fountain pen, instead of a pencil having black lead, in marking a cross within the circle beneath the emblem of the party in which he desired to enroll, thereby failing to follow the directions of the statute in relation to this subject.

In my opinion the intent of the statute is to secure a statement of party affiliation for public use, as the statute directs the board of elections to publish for general use after election day the declaration of every citizen as to his party affiliation. In' this respect it clearly differs from the provision of the statute relating to marking ballots. There the form used is to maintain absolute secrecy as to the manner

p. 1062
in which the citizen voted, and directs the use of a pencil having black lead to maintain a uniformity of procedure, so as to prevent the marking of a ballot in any manner which might lead to its subsequent identification. It is therefore evident, and it has been so held in this court in numerous proceedings of a similar character in the past, without a written opinion, however, that the law relating to the use of a pencil having black lead on enrollment blanks is merely directory, and not mandatory; and where the board of elections is enabled by the marking to determine the intention of the citizen with reference to his party affiliation it should so record the intent of the citizen.

Motion granted.