Rice v. Power

Tilzer, J.

In view of the immediate action required in the preparation of this opinion and to expedite a final resolution of the matter, we refer to the minority opinion for the nature and background of the proceeding.

Upon recanvass it was found that a discrepancy existed between the original canvass of returns from machine No. 83867 (the second machine) in the 54th Election District of the 83d Assembly District and the recanvass by the Board of Elections. The board nevertheless failed to take the enumerated steps to account for the discrepancy and, as the Referee found, failed to establish the true cause of the discrepancy in the returns from such machine (Election Law, § 274, subd. 3). The court, consonant with and in obedience to a liberal construction of the statute vesting it with jurisdiction “ to summarily determine any question of law or fact arising as to * * * The canvass of returns” (Election Law, § 330, subd. 5), determined that the credible evidence clearly established that the machine had 16 votes for Rice at the conclusion of voting. The fact that the recanvass indicated 26 votes for Rice, the Referee speculated, might have been due to the absence of a significant protective device on this machine. We too might conjecture, removing from consideration any suspicion of fraud, that the change was due to a failure to safely transport the voting machine from the polling place. In default of proof as to the true cause of the discrepancy, nevertheless, the Referee found that the documentary proof as well as the testimony of the four Inspectors (including the two Republicans), established that the machine had tallied 16 votes for the petitioner Rice. In the circumstances the Referee correctly concluded that the ultimate figure erroneously computed upon the recanvass whereby the total of Rice’s votes of 34 on machine No. 1 and 26 on machine No. 2 was shown as “ 50,” must stand. In other words, giving to Rice 34 votes on machine No. 1 and the 16 votes which the unrefuted testimony and documentary proof established as Rice’s vote on machine No. 2, the correct total was 50.

Despite the language of section 330 that the court’s jurisdiction of any question of law or fact with reference to the canvass of returns shall be construed liberally, the minority would confine jurisdiction where a discrepancy occurs upon recanvass to a mere clerical variance or mistake and would hold the recanvass sacrosanct. Unlike Matter of Hogan v. Supreme Court (281 N. Y. 572) relied upon by the dissenters, where the proceeding was brought pursuant to subdivision 4 of section 330 of the Election Law, we are here concerned with subdivision 5 of that section. To limit the court’s jurisdiction under subdivision 5 to ascertainment of a correct transfer of figures from canvass to recanvass would be contrary to the broadened power of the Board of Elections and the concomitant power of the court to review the recanvass and make such order as justice may require (Election Law, §§ 274, 330; Matter of O’Shaughnessy v. Board of Elections, 15 A D 2d 183). And, if upon a recanvass a discrepancy might require the Board of Elections to examine the voting machine (§ 274, subd. 3), is it not incumbent upon the board where the canvass records two military paper ballots to determine why the reoanvass reveals but one? A candidate credited with two military ballots by the inspectors’ and police department’s canvasses may not be deprived of one such vote because an election official misplaced one of such ballots. A recanvass may supersede an incorrect canvass, but a ‘ ‘ discrepancy ’ ’ in the recanvass itself is not sacred and outside the pale of judicial review.

Reference has been made in the dissenting opinion to the public counter and protective counter tallies. The first of these, as the minority note, records the total number of votes cast on a particular machine. Both of these counters are activated by the voter pulling a lever on the machine. The fact that the tallies appearing on these counters did not change from the close of the voting to the reoanvass does not explain the discrepancy in the vote for the petitioner Rice between the inspectors’ canvass and the recanvass. The word “discrepancy” as part of the Election Law applicable to voting machines has been in existence for some 60 years. The design of the Legislature in enacting the predecessor of section 274 “was to furnish a method for the correction of errors in election returns in voting machine districts sufficient to cover all such errors susceptible of correction and that the word ‘ discrepancy ’ was not used in a narrow sense but in such a sense as to justify certainly as much relief in cases of errors in voting machine districts as has been afforded for nearly seventy-five years in cases of errors in districts where there has been voting by ballot.” (Matter of Smith v. Board of Canvassers, 92 Misc. 607, 612 [1915].) The defect in the returns as to machine No. 83867, whether due to mechanical or human failure, was subject to correction upon the testimony of all four Inspectors that 16 votes were recorded on this machine. Not only the Inspectors, but the candidates’ Watchers as well as a police officer were present when these 16 votes were called off from this machine. Thus at least seven persons, including Inspectors and Watchers from the petitioner’s own party, attest to the fact that the Bice vote tallied from machine No. 83867 was 16 votes. The conclusions of the Referee are amply supported by the evidence and his report was properly confirmed by the Special Term.

The judgment appealed from should be affirmed, without costs or disbursements.