May 22, 1967
Judgment of the Supreme Court, Nassau County, entered April 13, 1967, reversed, on the law and facts, without costs, and petition (1) granted to the extent that it is herewith (a) determined that the Board of Inspectors of the Village of Kensington acted erroneously as a matter of law and fact in ruling that certain ballots cast at the election for Police Justice of the Village of Kensington held on March 21, 1967 were void as to petitioner and in overruling his objections thereto; and (b) directed that the said Board of Inspectors of Election certify that petitioner was elected to the office of Police Justice of the Village of Kensington and (2) otherwise denied. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. In our opinion, under the circumstances at bar, the design of the ballots, to wit: a blank parallelogram (a political emblem) adjacent to the square on each line bearing the name of a candidate of the Village Government party, rendered the ballots susceptible to construction by the average voter as an invitation to note his voting mark in either the parallelogram or the square. Accordingly, in our opinion, the voters' cross marks noted in the parallelogram adjacent to the square, on petitioner's line, on each of the 89 ballots in question, although technically incorrect, manifested an intent on the part of the voters to cast these votes for petitioner. They should, therefore, have been counted as 89 valid votes for him. These votes, together with the concededly valid votes cast for petitioner, were sufficient to elect him. The right of the voter to be safeguarded against disenfranchisement and to have his intent implemented wherever reasonably possible, in our opinion, transcends technical errors, particularly when induced as under the circumstances at bar (cf. People ex rel. Simons v. Knickerbocker, 225 App. Div. 212, affd. 250 N.Y. 594). Beldock, P.J., Rabin and Benjamin, JJ., concur; Christ, J. concurs in result, with the following memorandum, in which Munder, J. concurs: There were 23 votes counted for respondent Epstein and properly marked for him, but these were on ballots where there was an improper marking for the trustee Landsberg. The marks for Landsberg were not in the voting square and, under the applicable statute (Election Law, § 212), I am of the opinion that such a mark makes the whole ballot void. The statute, so far as pertinent, reads: "§ 212. Rules for counting votes. Rule 1. The whole ballot is void if the voter * * * (d) makes any mark thereon other than a cross X mark or a check mark in a voting square or circle, or other than the writing in of a name for the purpose of voting; except that an erasure or mark other than a cross X mark or a check mark made in a voting square shall not make the ballot void, but shall render it blank as to the office, party position or question in connection with which it is made." It appears to me that the literal reading of this provision indicates that whenever a mark is made outside of the voting square the whole ballot is voided. However, if an erroneous marking is made within a voting square, then only the vote for that office is voided. In this case, since the markings were outside of the voting square, the entire ballot cannot be counted. Under such circumstances, the 23 votes cast for Epstein for Police Justice must be disregarded. If the votes for appellant under the office of Police Justice, marked outside the election square, are disregarded along with the 23 votes hereinbefore referred to as counted for Epstein, appellant will nevertheless have a majority vote and should be declared elected. This follows the statute and accords, in result, with what unquestionably was the intention and desire of the voters of the village.