Opinion
December, 1915.
George C. Morehouse, Warnick J. Kernan and Daniel E. Meegan, for James D. Smith.
H.J. Cookinham, Jr., for board of canvassers of Oneida county.
Edward A. Gifford, deputy attorney-general, for attorney-general.
Richard R. Martin, L.N. Southworth, Seward A. Miller and A.G. Senior, for John G. Thomas.
Louis M. Martin, in person.
While most of the alleged discrepancies have no direct bearing upon the controversy between the Democratic and Republican candidates for the office of mayor, the board of county canvassers take the position that they are sworn officers of the law and that they have the right and it is their sworn duty to obtain corrections in the returns submitted to them, whatever office or proposition may be involved, to the end that they may perform their statutory duty. In that respect I do not think their attitude can be successfully assailed.
The precise question involved is the extent of the power of the board of county canvassers under section 416 of the Election Law.
The heading and first sentence of that section need careful consideration and are as follows: "Provision for recanvass of vote. Whenever it shall appear that there is a discrepancy in the returns of any election district, the county board of canvassers shall summon the inspectors of election thereof and said inspectors shall, in the presence of said board of canvassers, or a bi-partisan committee thereof, make a record of the number on the seal and the number of the protective counter, if one is provided, open the counter compartment of said machine, and without unlocking said machine against voting, shall recanvass the vote cast thereon."
What does "discrepancy" mean?
What office was it designed to fill in this legislation?
The word "discrepancy" is derived from a well known Latin verb ( discrepare) signifying to differ in sound, to sound differently or discordantly, applicable originally to sounds in the physical world. In process of time the word acquired a broader meaning and came to be applied to things generally that differed, did not agree, were not in harmony. Thence came the noun "discrepancy," synonyms of which are discord, discordance, dissonance, dissidence, unconformity, disagreement, difference. A discrepancy might exist between two existing things or two existing numbers that ought to agree, or between an existing thing which fails to conform to a given standard and the standard. The statute requires the certificate made by the district inspectors to conform to a given standard. Where an alleged return does not conform to what the statute requires, there is a discrepancy between it and the statutory requirement. In such a case there is a discrepancy in the return, a lack of conformity, unconformity.
This word discrepancy crept into the legislation creating section 416 of the Election Law, as it now exists, through an amendment to chapter 909 of the Laws of 1896 contained in chapter 491 of the Laws of 1908 in which act section 179b was added to section 179 of the act of 1896. That was a new provision applicable to voting machines alone and is now retained in its exact wording as originally adopted. It seems to me reasonably clear that the design of the legislature in adopting the amendment of 1908 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. If this is not true, why was the amendment of 1908 adopted? Every defect in returns whose correction is provided for in districts where voting is by ballot (Election Law, § 432) involves a discrepancy. Why should it be necessary to summon the district election officers before the county board of canvassers twice, once under section 432 and again under section 416? The original of section 432 was section 15 of article 1 of title 5 of chapter 130 of the Laws of 1842. Voting machines were not thought of in 1842. In all the changes and revisions of the Election Law down to 1892 that provision remained unchanged. Slight changes were made in this provision by section 132 of chapter 680 of the Laws of 1892 and in section 132 of chapter 909 of the Laws of 1896. This provision became section 432 of chapter 22 of the Laws of 1909 (the present Election Law) which was slightly amended by chapter 821 of the Laws of 1913.
It was argued on behalf of the applicant for the injunction that if there was any difference between the figures shown in the returns and tally sheets the returns must govern, and People ex rel. Noyes v. Board of Canvassers, 126 N.Y. 392, was cited as authority for the proposition. That was not a voting machine case but a ballot case and there the Court of Appeals decided that there was a distinction between the certified statement of the canvass of the district election officers and the attached statement and ballots for different candidates, and held that the certified statement, often referred to as the return, was the conclusive evidence of the canvass, and the attached statement and ballots were simply exhibits. That case was decided in June, 1891, and at the following session the legislature in express terms provided that the ballot so attached with such statements should be deemed a part of the certified statement of the canvass by the inspectors or district canvassers. Laws of 1892, chap. 680, § 115. Thereby the authority of the Noyes case was swept away. In the present Election Law the tally sheet is to be treated as part of the return. § 373. In Matter of Stewart, 155 N.Y. 545, the importance of the tally sheet is pointed out. There the court said that in case of a discrepancy the tally sheet should control under the Election Law of 1896. Under the present law I think the tally sheet and the return are both originals, because, although the tally sheet must be completed first, the safeguards for its accuracy are not greater than the safeguards for the accuracy of the return.
I have not the time to describe the operation of the voting machines used in Utica at the last general election, but I am satisfied that properly used they are reasonably accurate. They involve the mechanism of the cash register and the adding machine. They are wonderfully safeguarded against fraud and mistake. The suggestion is made that, because the voting machines since the moment the election district officers completed their canvasses have not been under the surveillance of a squad of policemen, they have been tampered with. Whether these machines were closely watched, or not watched at all, they were reasonably guarded by the seals, locks and other devices. It is true that an expert manipulator of one of these machines, who in his person constituted a skillful burglar, might change a vote on one of these machines, but it seems to me that such an operation is too remote seriously to be considered. It overlooks the seals and the locks and the fact that eight or more persons are present at the canvass when the counter compartment of the machine is opened where everything is done in the presence of those eight persons, every portion of the counter compartment visible and easily seen, figures called off, figures put down, and every transaction as open as daylight. Suppose that after that canvass it should turn out that upon a recanvass a hundred votes had been taken from one candidate and given to the other, a person seeking to profit from that condition of things would be confronted by those eight men, some of whom might have frail memories, some of whom might be dishonest, but there would exist the figures that they had made. Rumors of tampering with voting machines are easily spread and are generally the product of the heated imagination of interested parties.
For years ballots were destroyed immediately after the district canvass was completed; indeed this was substantially so from 1822 to 1896. From 1822 to 1842 both the ballots and the poll books were destroyed. The act of 1842 required the poll lists or poll books to be preserved. It was not till 1896 that the law required the unprotested voted ballots to be preserved. The trend of modern legislation and of modern judicial opinion, however, is in favor of some inquiry beyond the bare returns of district election officers. Election Law, §§ 374, 414, 416 and 433 and People ex rel. McLaughlin v. Ammenwerth, 197 N.Y. 340. At the same time such inquiry should not go so far as to create public embarrassment by failure speedily to have made known the result of an election. Theoretically one candidate will fill an office as well as another and the public business should not be embarrassed by extended delays in the canvassing of election returns.
Whatever may be the result of the work of the board of county canvassers, that result might be swept away in an action in the nature of quo warranto brought by the unsuccessful candidate against the candidate who succeeds for the time being by the action of the board of canvassers.
I think the county board of canvassers is a ministerial body and has no judicial power. At the same time I think it is right in seeking to get much of the information which has been denied to it by the injunction herein. Indeed, the propriety of the injunction is so much in doubt, I have concluded to dissolve it. But in doing this, I shall indicate my views as to what the county board of canvassers may do in the premises. I think both the district canvassers and the county canvassers are absolutely bound by what the counter compartments of the voting machines show. If a discrepancy, as I have defined it, can be cleared up without unlocking a machine, the machine should not be unlocked. If after an inspection of the public counter a discrepancy still exists, then the counter compartment may be unlocked without unlocking the machine against voting. If the discrepancy still exists after getting all the light the counter compartment discloses, then the county canvassers under the direction of the statute may unlock the voting and counting mechanism of the machine and the same may be tested.
This opinion has been very hastily prepared because the public exigency seems to demand immediate action.
An order may be entered dissolving the injunction, but without costs.
Ordered accordingly.