In these proceedings, which have reference to the correctness of orders of the Supreme Court in directing, by a writ of mandamus, that the board of canvassers of Onondaga county correct their returns or statements, and that they exclude, in their computation of votes, those cast for Rufus T. Peck for senator, and for Patrick J. Ryan for assemblyman, in certain election districts, I propose to state, as briefly as possible, the reasons which influence my vote in affirmance of the orders below.
The question is whether certain ballots cast in the several election districts in question, which did not bear the official indorsement required by section 17 of chapter 262 of the Laws of 1890, as amended by section 6 of chapter 296 of the Laws *Page 428 of 1891, commonly referred to as the Ballot Reform Law, could be legally counted and canvassed for the candidates whose names appeared thereon. The respect in which the indorsement of the ballots failed to comply with the statute was in bearing the designation of a polling place other than that where the ballots were given out and used. In every instance where this occurred, it was solely upon the ballots prepared for Republican votes. It is argued, however, and it may be conceded that the occurrence was the result of some mistake in the county clerk's office, in the arrangement or distribution of the various sets of ballots for the different polling places. These ballots, as counted by the board of canvassers, contributed to the result of a majority of votes for Republican candidates. The question, whether such ballots, so indorsed, should be counted, is one to be answered upon the law which at present regulates the preparation, casting, counting and canvassing of ballots at elections. The statutes which contain that law bear as their title these words: "An act to promote the independence of voters at public elections; enforce the secrecy of the ballots, and provide for the printing and distribution of ballots at public expense." The adoption of this law by the legislature was only after debates, prolonged over years. Its extraordinary plan, its objects and its features were subjected to the closest scrutiny and to much adverse criticism. The discussions reached beyond the legislative halls and it was only after the aims and methods of the proposed law had been debated with as much earnestness as thoroughness, and had been critically analyzed and variously changed, that it finally passed into our statute books. The plan embodied in the law was to have a uniform ballot. That essential feature was secured by provisions requiring all ballots to be prepared by a public officer, and to be exactly alike in every possible respect, externally in the official indorsement and differing internally only in the names of the candidates for office, upon the ballots prepared for the different political parties. It is perfectly evident that, by strict compliance with these provisions of the law, the contents of a ballot cast by a voter are absolutely *Page 429 secret to all but himself, and thus the object of the statute is readily effected. The statute in its 29th section, provides that "No inspector of election shall deposit in a ballot-box, or permit any other person to deposit in a ballot-box, on election day, any ballot which is not properly indorsed and numbered, except in the cases provided for in section 21 of this act, etc."
The words of section 31 of the Ballot Reform Law are explicit enough to remove the possibility of misapprehension upon the subject of what shall be counted. It reads: "The votes for the several candidates shall be canvassed in the order in which they appear upon the several ballots. No ballot that has not theprinted official indorsement shall be counted, except such as are voted in accordance with the provisions of section 21 of this act." The reference here is to unofficial ballots, which may be printed or written, where the official ballots have been lost, destroyed, are not ready, or have been exhausted; or whenever a candidate for office shall have died, or withdrawn, or shall be ineligible; in which cases such an unofficial ballot may be used.
When later, in section 31, it is provided that "said ballots shall be counted in estimating the result," etc., but may be contested in a mandamus proceeding, in the section provided for, the ballots referred to unmistakably mean, as the context plainly shows, those which have been marked in any way for identification and, therefore, have been written upon by the inspectors of election for the purpose of raising the question of their legality. This later provision, which I have mentioned, was added in the amendment of the law in 1891, and was aimed at marked ballots. The original law prohibiting the counting of ballots not bearing the proper official indorsement was not altered or affected.
The official indorsement, so strictly required to exist, is prescribed in section 17 of the act, and by its terms each ballot's indorsement must be printed with a certain type, and shall read "official ballot for," and after the word "for" shall follow the description of the polling place for which the ballot is *Page 430 prepared, the date of the election, and a fac simile of the signature of the county clerk. The ballot shall contain no caption nor other indorsement.
The argument that, for the lack of ballots properly indorsed as required by the law, those not properly indorsed may be voted as unofficial ballots, as provided in cases mentioned in section 21, and which I have mentioned, is not, to my mind, at all satisfactory, and I consider it an answer to say that these ballots which were used and which were the subject of consideration below, purported to be official ballots and bore an official indorsement, and that the conditions for the use of unofficial ballots did not exist. So scrupulously has this law endeavored to preserve absolute secrecy as to the ballot deposited, that it provides for the nullification of a ballot which is so marked as to be capable of identification in any way. The reading of sections 25, 34 and 35 exhibits the safeguards established about the depositing of the voter's ballot. All of the provisions of this law, when considered in connection with the purpose, as declared in its title, are indicative of the legislative intent that the independence and freedom of the voter are promoted and are best guarded through the casting of a ballot, absolutely indistinguishable in any of its features from all other ballots. Now, it is perfectly plain and it is not disputed that, by the variance in the numbering of the polling place in the official indorsement, these ballots in question were distinguishable from those ballots which were prepared for, given out and cast by the supporters of other political parties; and every ballot deposited marked, or could be identified as, a Republican vote. The argument that the official indorsement was correct, because prepared for the election district indicated by its number, and that a misdelivery to a different district does not affect the correctness of the indorsement required by statute, I consider quite unsound. A right construction of the language of the statute calls for a ballot bearing an official indorsement which designates the polling place at which the ballot is to be used, and where that is not so, both the object and the provisions of the statute may be violated and the law *Page 431 rendered ineffectual for the accomplishment of its avowed purpose.
So is the argument unsound, which denies the right to compel the board of county canvassers to correct its statements of the result by estimating it without including that number of illegal ballots, which is indicted by and upon the sample ballot attached. If there is a discrepancy between the body of the paper containing the statement and the writing upon the sample ballot, as to the number of votes cast, then the figures in the body of the statement control, and that is the result of our decision in the Noyes case (126 N.Y. 392). But here the sample ballot exhibits the kind of ballots which the statement certifies to have been deposited to a certain number. Thus we have a case where ballots were furnished at polling places which were not, as to those intended for Republican votes, indorsed uniformly with other ballots. To count such, in estimating the results of the election, in my judgment, is against the letter and the spirit of the Ballot Reform Law. It was an error, for the correction of which, through the intervention of the Supreme Court, by mandamus proceedings, provision has adequately been made (Laws of 1880, chap. 460). The Ballot Reform Law was modelled after what was known generally as the Australian Ballot Law, and its enactment was a long step forwards in the promotion of the purity of popular elections. The difficulty in this case, if the result of a mistake, as we assume it to have been, was enabled to occur by the requirement of our law, that there shall be as many separate kinds of ballots as there are different political parties represented. Had there been but one ballot required, this occurrence would not have been possible. It may be, and I assume it to be, a hardship that the result should operate to render null so many votes, and to alter what may have been an honest expression of the popular will; but it would be an evil, in comparison with which the hardship complained of is as nothing, if a law, which the people of this state through their legislature so deliberately framed and have solemnly adopted, should be so construed as to render fraudulent evasion *Page 432 possible. In my judgment, unless this law is upheld and given the effect intended for it, and adequately secured by all of its provisions, then technical construction, or the ingenuity of minds, can impair its efficacy. This is not a case for the court to strain after explanation, in order to remedy an apparent hardship; when to do so simply results in emasculating a provision of the law, the existence of which is calculated to exclude all attempts at fraudulent or corrupt practices at the polls. It will not do to break down any of the provisions of this law framed against a possible corrupt vote, lest in so doing the way be left open for a more radical destruction. The people are supremely interested in protecting the citizen voter against the prostitution of his character in the casting of a venal ballot.
The system, devised by the legislature to enforce the secrecy of the ballot, seems a total failure, unless we give effect to the provisions enacted to sustain it. Genuine ballot reform, as the people have chosen to have it, in this and many other states, means the purity of the ballot, and that seems best attained by the plan of a uniform or secret ballot. If we destroy any of the safeguards erected and intended to be maintained about the voter, for his protection against improper influences and intimidation, we at once do an act in encouragement of the very evil sought to be prevented. If the law provides for a uniform ballot, to originate from an official source, and a plan to render the vote of him who casts it absolutely indistinguishable, and, therefore, absolutely secret, may be construed one way, in the case of a mistake, as here, then is it always open to such construction; for the proof of a fraudulent intent in the preparation and distribution of ballots to be used at a polling place is, very obviously, difficult, if ever possible. Nor ought the burden of that proof, in my opinion, to be thrown upon the candidate whom it has served to defeat. He has the right, as have the people generally, to rely upon a strict compliance with the terms of the election law and to an election held according to its requirements. If the law is not to be nullified in an indirect manner, then its material directions *Page 433 must be heeded and the consequences it attaches to a disregard of its provisions must be allowed. The decisions of the courts in Missouri, Rhode Island and Connecticut, which are referred to, and which I need not quote from here, are all in accord with these views, and to the effect that it is not competent to inquire into the intent, or the consequences of a violation of, the legislative requirement as to the ballot to be cast at an election. I am for maintaining the integrity of this law and for construing it as it is written.
The orders appealed from should be affirmed.