clerks have delivered their returns to the. chairman of the board, and not before, by counting the ballots found in the ballot boxes without unfolding them, except so far as to ascertain that each ballot is single, and by comparing the number of ballots found in each box with the number shown by the poll books and the ballot clerks' return to have been deposited therein.

If the ballots found in any box shall be more than the number of ballots so shown to have been deposited therein, such ballots shall all be replaced, without being unfolded, in the box from which they were taken, and shall be thoroughly mingled therein, and one of the inspectors designated by the board shall, without seeing the same and with his back to the box, publicly draw out as many ballots as shall be equal to such excess and, without unfolding them, forthwith inclose them in an envelope which he shall then and there seal and indorse excess ballots from the box for ballots for (presidential electors, or general officers, et cetera, as the case may be)," signing his name thereto, and such envelope with the excess ballots therein shall be placed in the box for defective or spoiled ballots.

If two or more ballots shall be found in the ballot box so folded together as to present the appearance of a single ballot, and if the whole number of ballots in such ballot box exceeds the whole number of ballots shown by the poll books and ballot clerks' return to have been deposited therein, and not otherwise, they, or enough of them to reduce the ballots to the proper number, selection to be made without examination of any voting mark thereon, shall similarly be inclosed, sealed, indorsed and placed with the spoiled ballots. If, however, there lawfully be more than one ballot box for the reception of hallots voted at the polling place, no ballot found in the wrong ballot box shall for that reason be rejected, but shall be placed in its proper box by the inspectors upon the count of the ballots before the canvass, and counted in the same manner as if found in the proper ballot box, if such ballot shall not, together with the ballots found in the proper ballot box, make a total of more ballots than are shown by the poll books and ballot clerks' returns to have been deposited in the proper box.

No ballot that has not the official indorsement shall be counted, except such as are voted in accordance with the provisions of this chapter relating to unofficial ballots.

Derivation: Election Law, § 110, pt. of subd. 1, as amended by L. 1898, ch. 335, § 7.

Amended by L. 1913, ch. 821, in effect Dec. 17, 1913.

The indorsement upon the official ballot is an essential part of the machinery of elections, by means of which the secrecy of voting is to be secured and enforced. Where ballots were cast containing an incorrect indorsement they were rejected lawfully. People ex rel. Nichols v. Board of Canvassers, (1892) 129 N. Y. 401.

(It should be noted, however, that the ballots referred to in the above case were prepared under what was known as the Ballot Reform Law, which provided that each political party should have a separate ballot for its own use, and, therefore, if the indorsement upon the back of one set of ballots was different from the indorsement upon the others, the ballot would reveal, when voted, how, or for whom, the elector cast his ballot. In the present law where there is but one ballot for all parties, is the indorsement necessarily of so great importance?)

A proper and legal indorsement is one of the essential features of an e fficial ballot, and a ballot not legally endorsed cannot be received or counted. People ex rel. Sherman v. Person, (1892) 64 Hun 327, 45 N. Y. St. Rep. 528, 19 N. Y. Supp. 297, aff'd 135 N. Y. 613.

§ 368. Method of canvassing.

1. Method of canvassing ballots generally. Except as hereinafter specially provided, the method of canvassing ballots shall be as follows:

The chairman of the board of inspectors shall personally unfold each ballot of the kind then to be canvassed in such a manner that its face shall be down and all marks thereon shall be wholly concealed, and he shall place all the ballots, so unfolded and with their faces down, in one pile. He shall then take up each ballot in order, turn it face up, and announce in a loud and distinct voice, the vote registered on the first section or that the ballot is void or that the section is blank, as the case may be. He shall then turn the ballot face down and place it in a new pile. When he has announced the votes on the first sections of all the ballots of the kind then to be canvassed, and the poll clerk's tallies made as hereinafter provided are proved to be correct, the official return provided for in article thirteen shall be filled out and signed. Then, and not before, the chairman shall proceed to canvass in like manner the votes upon the sections remaining to be canvassed, completing the canvass of each ballot as he proceeds, and thus he shall proceed until all the ballots have been canvassed.

As each vote is announced each poll clerk shall immediately tally it in black ink, with a downward stroke from right to left upon the official tally sheet provided for the purpose, also carefully tallying one for each blank or void vote. Each poll clerk as he tallies a vote shall clearly announce the name of the candidate for whom he tallies it, or that he tallies the vote blank or void as the case may be, or in case of a question submitted that he tallies the vote "Yes" or "No" as the case may be, and until such announcement by each poll clerk the chairman shall not announce another vote. When a candidate's name is not printed on the official tally sheet or return provided, it shall be written in full thereon in ink in its due order, that is, in the order in which it appears on the ballot. The tally marks shall be made in due numerical order in the tally spaces provided.

When all the sections relating to the same office or question shall have been canvassed, the number of ballots shall be compared with the tally there. If the result as shown on the tally sheets does not agree with the results as shown by the number of ballots, an error has been committed and a recanvass must be made. Upon the recanvass, the tally must be kept in red ink from left to right across the previous tally marks. When all the errors have been corrected and the tally sheets have been found to be correct, the poll clerks shall indicate the last tally opposite each name by forthwith canceling at least the next ten unused tally spaces, if there are so many, and if there are not so many, then as many as possible, by drawing through them in red ink one or more horizontal straight lines. The tally sheets having been thus prepared, verified, and closed, the inspectors and poll clerks shall sign the certificate at the foot of each sheet in the places indicated thereon.

2. Canvassing ballots when more than one candidate is to be elected to the same office. When more than one candidate is to be elected to the same office, the foregoing method of canvass shall be modified to meet the necessi ties of the case, as follows:

The chairman shall read the names of the candidates voted for in the order in which they appear in the section, and each poll clerk shall make an accurate tally of each vote as announced upon the official tally sheet provided for the purpose. The chairman shall also announce the void ballots, if any, and

the number of blanks, if any, upon the section, and each poll clerk shall make. as many tallies for each void ballot as there are candidates thereon to be elected to the office in question, and one tally for each blank.

3. Canvassing presidential ballots. The straight ballots, that is, all valid ballots on which all the candidates in any party group are voted for, shall be placed in piles, like with like, and the split ballots, that is, all valid ballots marked in one or more of the individual voting squares or with names written thereon, shall be placed in one pile, and all void ballots and wholly blank ballots shall be likewise placed in separate piles. Each of the piles shall then be counted and the result clearly announced, and the number of straight votes for each candidate shall be entered in gross opposite his name on a tally sheet by each poll clerk, and the number of split, void and wholly blank ballots shall be similarly entered in their appropriate places. The chairman shall then take the split ballots and they shall be canvassed, announced and tallied in the manner above provided for canvassing ballots when more than one candidate is to be elected to the same office.

Derivation: Election Law, § 110, subd. 2, as amended by L. 1898, ch. 335, 87; L. 1901, ch. 654, § 5.

Amended by L. 1911, chs. 296 and 649; L. 1913, ch. 821, and L. 1914, ch. 244, in effect Apr. 8, 1914.

Cross-References.

in notes thereunder.

- See Election Law, §§ 358 and 369, and cases cited

The purpose of the Election Law was to secure secrecy to the voter, and to that end it is imperative that he should strictly pursue the method prescribed by the act for his designation of the person for whom he intends to vote. People ex rel. Wells v. Collin, (1897) 19 App. Div. 457, 46 N. Y. Supp. 701, aff'd 154 N. Y. 750.

The very purpose of voting is that the ballot may show the voter's choice, and when he names more than the limited number of candidates to be voted for, it is impossible to determine which of the number he prefers. People v. Ames, (1860) 19 How. Pr. 551; People v. Loomis, (1832) 8 Wend. 396; People v. Seaman, (1848) 5 Den. 409.

Irregularity and ambiguity in ballot. If it is possible to determine the intention of the elector his ballot is to be counted as he intended. In re "Jerome Ballots," 48 Misc. 441, 96 N. Y. Supp. 122.

These rules have no reference to false or imperfect markings, but have reference only to ballots upon which the markings comply with the statutory requirements, but as to which there is confusion as to the particular candidates for which the voters intended to vote. Matter of Houligan, (1907) 55 Misc. 7, 106 N. Y. Supp. 205.

Ballots whose marks for voting do not substantially comply with the Election Law are void and must be rejected by the inspectors, and no question of the voters intention is involved. Matter of Houligan, (1907) 55 Misc. 5,

106 N. Y. Supp. 205.

Void ballots — ballots not conforming to the provisions of a statute intended for the purpose of securing secrecy, and which reveal the contents or render them capable of subsequent identification, are void by force of prohibition in the statute against revealing and counting them. Commonwealth v. Woelper, 3 S. & R. 29; West v. Ross, 55 Mo. 350; Oglesby v. Sigman, 56 Misc. 502; State v. McKinnon, 8 Oreg. 493; Reynolds v. Snow, 67 Cal. 497; Talcott v. Philbrick, 59 Conn. 472; Fields r. Osborne, 21 Atl. Rep. 1070; In re Vote Marks, id. 962; Ledbetter v. Hall, 62 Mo. 422; Perkins v. Carraway. 59 Miss. 222; Steele v. Calhoun, 61 Miss. 556.

Irregularity and ambiguity of ballot. Review by court of marks on ballot as showing intent to evade or violate the law. Matter of Hearst, (1905) 48 Misc. 453, 96 N. Y. Supp 119, mod'f'd 110 App. Div. 346, 96 N. Y. Supp 341, which was reversed 183 N. Y. 274.

A ballot marked in the circle at the head of one ticket and also in the circle at the head of the ticket bearing Mr. Jerome's name alone as district attorney nominee, held not a blank ballot as to district attorney, but should be counted for Mr. Jerome. Such marks held not intended as distinguishing marks. In re Jerome Ballots," (1905) 48 Misc. 441, 96 N. Y. Supp. 122.

66

Erasures, cancellations, etc., invalidate ballots. Marks apparently made by voter in attempting to correct his errors, such as after making the cross mark in the circle or in the voting space endeavoring to erase them with a rubber or some sharp instrument or in other cases by striking the pencil through the marks so as to erase them, render the ballot invalid and no vote therein can be lawfully counted. People ex rel. Feeney v. Bd. Canvassers, (1898) 156 N. Y. 39, 23 App. Div. 201, 48 N. Y. Supp. 866, motion for rehearing denied 156 N. Y. 686.

--

Mutilated ballot. Where two ballots were. discovered to be mutilated by having torn from the bottom thereof stubs containing the names of certain of the candidates, and the stubs so torn off were found deposited among the stubs in the box for detached stubs, the court, assuming that the mutilation was due to the inadvertent act of the inspectors, held that the mutilated ballots should be counted. Thacher v. Lent, (1902) 71 App. Div. 483, 75 N. Y. Supp. 732.

A ballot furnished by the State is not a marked ballot within the law, because of any irregularity in making it up or printing it. People ex rel. Hirsh v. Wood, (1895) 148 N. Y. 142, 14 Misc. 377.

Marks in voting place made as if by some sharp instrument, other than a pencil, render ballot void and should not be counted. People ex rel. Feeney v. Bd. Canvassers, (1898) 156 N. Y. 39, moď'f'g 23 App. Div. 201, 48 N. Y. Supp. 866, motion for rehearing denied 156 N. Y. 686.

Cross marks in voting space before words "no nomination" are marks other than to be used by elector for voting and render ballot containing such marks void. People ex rel. Feeney v. Bd. Canvassers, (1898) 156 N. Y. 39, mod'f'g 23 App. Div. 201, 48 N. Y. Supp. 866, motion for rehearing denied 156 N. Y. 686.

Writing the name of candidate for office already printed in the blank column for the same office vitiates the ballot under the plain language of the statute. People ex rel. Feeney v. Bd. Canvassers, (1898) 156 N. Y. 39, mod'f'g 23 App. Div. 201, 48 N. Y. Supp. 866, motion for rehearing denied 156 N. Y. 686.

Where a cross with no name after it is put in the blank column intended for persons not formally nominated, it cannot be accredited to the person whose name is in the next column on the left. People ex rel. Boutel . Morgan, (1897) 20 App. Div. 48, 46 N. Y. Supp. 898.

Cross marks in circle. An elector made a cross mark in each circle at the head of the Democratic, Republican and Socialist-Labor party, and also made a cross mark in the voting spaces before the names of candidates on both the Democratic and Republican tickets, but not on the Socialist-Labor ticket; it was held that the cross mark in the circle at the head of the Socialist-Labor ticket made the ballot void. Matter of Holmes, (1899) 30 Misc. 127, 61 N. Y. Supp. 775.

Where there are Democratic, Republican and Socialist-Labor tickets at a town election, and the latter party has no candidate for supervisor, a ballot containing cross marks in the circle at the head of both the Democratic and Socialist-Labor ticket, and a similar mark in the voting spaces before the name of the Democratic candidate for supervisor, must be counted for him. Matter of Holmes, (1899) 30 Misc. 127, 61 N. Y. Supp. 775.

An imperfect circle resembling the letter O is not a legal cross mark and renders the ballot void as containing a mark other than the voting mark. People ex rel. Obert v. Bourke, (1900) 30 Misc. 461, 63 N. Y. Supp. 906.

Where the Socialist-Labor party has made no nomination for a particular office and the Republican party has nominated, a ballot, containing cross marks in the circles at the head of both tickets, must be counted for the Republican candidate. People ex rel. Obert v. Bourke, (1900) 30 Misc. 461, 63 N. Y. Supp. 906.

Ballots containing cross marks in two or more of the voting spaces at the heads of the columns should be counted for a candidate named for the same office on all tickets so cross marked. People ex rel. Feeny v. Board of Canvassers, (1898) 156 N. Y. 39, mod'f'g 23 App. Div. 201, 48 N. Y. Supp. 866,

motion for rehearing denied 156 N. Y. 686; Matter of Fallon (1909), 135 App. Div. 194, 119 N. Y. Supp. 1061, mod'f'd 197 N. Y. 336.

Where a voter has placed a cross mark in the eireles of two tickets which have candidates for State and county offices, but only one has candidates for city offices, the ballot should be counted for the eity ticket. Matter of Houligan (1907), 55 Misc. 5, 106 N. Y. Supp. 205.

A ballot having crosses in the circle at the head of two party columns but having also a cross in front of the name of a candidate in one of those columns, should be counted as a vote for said candidate. People ex rel. Moran v. Sniffin (1908), 123 App. Div. 730, 108 N. Y. Supp. 243.

A ballot marked at the head of two party columns should not be rejected as marked for identification because there are also crosses in front of the names of two Republican candidates and also a cross in front of the name of one Democrat, who was a candidate for the same office. People ex rel. Moran v. Sniffin (1908), 123 App. Div. 730, 108 N. Y. Supp. 243.

A ballot marked with a cross in the circle at the head of a party column and having the cross in front of the name of a candidate in another party column should be counted for the latter candidate. People ex rel. Moran v. Sniffin (1908), 123 App. Div. 730, 108 N. Y. Supp. 243.

Where the voter has placed a cross mark in the circles of five different tickets which have a full set of candidates for State and county officers, and two of such tickets have a full set of candidates for city offices, the ballot should be rejected. Matter of Houligan (1907), 55 Misc. 5, 106 N. Y. Supp. 205.

A ballot containing in a circle at the head of one column a number of criss cross pencil marks, consisting of three perpendicular lines and three or four horizontal lines crossing the perpendicular lines, is void under the provisions of this section providing that "a void ballot is a ballot upon which there shall be found any mark other than a single (X) mark made for the purpose of voting," etc. Thacher v. Lent (1902), 71 App. Div. 483, 75 N. Y. Supp. 732.

An imperfect cross mark in the circle at the head of the party column will not vitiate the vote. People ex rel. Boutel v. Morgan (1897), 20 App. Div. 48, 46 N. Y. Supp. 898.

In construing sections 358 and 368, such a construction of the word "single" and of the provision "one straight line crossing another straight line" should be adopted, that a tremulous line drawn by an infirm elector, or an irregular or curved line drawn by an elector with poor eyesight or with muscles untrained to the use of a pencil, or any single line but once crossing another single line in such a way as to substantially comply with the statute, should not be held void. Matter of Fallon (1910), 197 N. Y. 336, mod'f'g 135 App. Div. 195, 119 N. Y. Supp. 1061.

A ballot which bears pencil marks other than erosses placed in the voting spaces is void and should not be counted. Matter of Fallon (1909), 135 App. Div. 195, 119 N. Y. Supp. 1061.

A cross placed outside the circle of voting spaces on a ballot renders it void. Matter of Fallon (1909), 135 App. Div. 195, 119 N. Y. Supp. 1061.