In re Van Cott

This is an application under section 135 of the election law of the state, as amended by section 23, c. 379, of the Laws of 1897, for an inspection of the void and protested ballots filed in the office of the clerk of the county of New York in sealed packages by the inspectors of election, pursuant to the provisions of that statute. The petitioner was a candidate at the general election held on November 6, 1900, for the office of congressman for the Eighth congressional district of the state of New York. The official canvass of the votes cast in that congressional district shows Thomas J. Creamer, the successful candidate, to have received 173

“The sealed packages of void and protested ballots shall be retained^ inviolate in the office in which they are filed subject to the order and examination of a court of competent jurisdiction, and may be destroyed at the end of six months from the time of the completion of such canvass, unless otherwise ordered by a court of competent jurisdiction.”

There has been no judicial interpretation of the statute. I am therefore called upon to decide the meaning of this provision without the aid or assistance of any decided case. The past history of the legislative enactments on this subject may perhaps throw some light on the intention of the legislature respecting the present statute. The election law of 1842 (Laws 1842, • c. 130, tit. 4, § 42) provided that all defective ballots should be annexed to the statement of the canvass by the inspectors of election. It did not provide that defective ballots should be separately sealed. Such remained the law for many years. There was nothing that was intended to be kept secret in 'the ballots. In fact, the whole history of legislation on this subject indicates a desire to avoid secrecy in all matters pertaining to a count of the votes. The subsequent change in the law directing the sealing and Sling in separately sealed packages of the defective ballots was, in my opinión, not directed towards securing any additional secrecy, but rather to a matter of convenience to the inspectors of election in making up their returns, and to the boards of canvassers in the canvass of the votes, because of the large number of such ballots and the cumbersomeness of the returns, and, possibly, because of greater safety in their care for future use. I conclude, therefore, that the provision of the statute for an inspection and examination of the ballots contained in sealed packages should receive a liberal interpretation, so as not to' bar the defeated candidate from the right to see ballots which have been thrown out by inspectors, in which he may have a vital interest. It is argued in opposition to this application that such an examination should not be ordered except where some proceeding is pending in a tribunal competent to determine the question as to whether or not the ballots were properly rejected. I find no justification in the statute for such a limitation of the right to an examination. It will be observed that the statute provides for an examination of the ballots by order of “a court of competent jurisdiction,” and also for the preservation of the sealed packages of ballots for a longer period than six months upon an order of “a court of competent jurisdiction.” It would be unreasonable to contend that the court is without power to direct the preservation of the ballots upon the application of a defeated candidate or other interested party. The right of the court to make such an order is conceded by the corporation counsel, who opposes this application. Yet the language used in that part of the statute relating to the preservation of ballots is substantially similar to that for the examination of the ballots. Again, it is urged in opposition to this application that the

Application granted.