A vote that should not have been cast in an election is a vote that should not be counted. The majority, in affirming the decision of Special Term, in effect approved the counting of such votes. It is primarily for that reason that I register my dissent and vote to set aside the election and to direct that a new primary election be held.
It is my position that the votes cast by those voters who had not signed the registration cards were votes east in violation of the constitutionally mandated section 413 of the Election Law and thus should not have been counted.
In this Democratic party primary election, where over 9,000 votes were cast, the Board of Elections declared respondent Koch to be the winner by a margin of only 41 votes. After declaring 35 votes to be invalid, Special Term found no reason to disturb the result of the election—and of . course, with that finding, could not do so, even assuming that the invalid votes had all been cast for respondent, Koch.
*27It is. my view that in addition to the 35 votes found to be invalid by Special Term, 27 votes cast by those who failed to sign the registration cards should also have been declared invalid. I might add that the vote cast by a voter who was not enrolled in any party and another by a voter who concededly was a member of the Liberal party, should likewise have been declared invalid. That results in a total of at least 64 invalid votes rather than only 35 — a result which puts in doubt the propriety of declaring Koch the victor.
In the circumstances, therefore, I conclude that the election was ‘1 characterized by such * * * irregularities as to render impossible a determination as to who rightfully was * * * elected” (Election Law, § 330, subd. 2) and it should be set aside and a new election ordered.
With respect to the votes that were cast by those who had failed to sign the register, the pertinent constitutional and statutory provisions are as follows:
New York State Constitution (art. II, § 7):
“ [Manner of voting; identification of voters.]
“ All elections by the citizens * * * shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved. The legislature shall provide for identification of voters through their signatures in all cases where personal registration is required and shall also provide for the signatures, at the time of voting, of all persons voting in person by ballot or voting machine, whether or not they have registered in person, save only in cases of illiteracy or physical disability. ’ ’
Election Law (§ 413):
“ Signature identification of voters. 1. A person who presents himself to vote and is allowed to vote, shall be required before voting, * * * to sign his name on the back of his registration poll record on the last line of the space reserved for his signature at the time of election * * The two inspectors in charge shall satisfy themselves by a comparison of this signature with his registration signature * * * that he is the person registered. If they are so satisfied they sba.11 enter the other information required * * * and shall permit the applicant to vote.”
While apparently recognizing the impropriety of permitting persons to vote without such persons having signed the registration cards, this court, nonetheless, followed the decision of the Appellate Division, Second Department, in Matter of Moritt *28v. Cohen (255 App. Div. 804). That case held that such omissions were mere irregularities and not fatal to the votes cast where the respective voters were in fact otherwise qualified.1 I do not agree.
One of the prime concerns in the conduct of elections is the prevention and detection of fraud. To minimize the possibility of such fraud, strict rules have been provided by statute which set forth guidelines for the conduct of elections.2 In my opinion many of these requirements — and particularly the requirement of signature identification—have a dual purpose. Of course, they are designed to detect fraud. But it is also their further function to discourage attempts at, and render difficult the perpetration of such fraud. To fully effectuate this second purpose strict compliance with the statutory requirements governing the conduct of elections is an absolute necessity.
However, the Moritt decision holds that the failure to sign the register when voting is merely a correctible irregularity. I strongly disagree with such a conclusion. When and how could such an irregularity be corrected? Apparently only in court in the event the election is contested. Votes were not intended to be counted and results of an election ascertained in court. It is contemplated that such function be performed in the appropriate polling place. Particularly is it undesirable to have the outcome of elections depend upon testimony of witnesses whose credibility has to be evaluated. The object of the requirement for signature at the time of voting is to obviate the necessity of such a course.
It appears to me that the situation here presented is not unlike that where an unregistered voter is permitted to vote. Would we say that the failure to register was a mere irregularity and permit the vote to stand if the voter subsequently testifies that he was indeed qualified to vote by reason of age, residence, citizenship, etc.? I think it is clear that we would not. Would we reinstate a designating petition where the subscribing witness had failed to sign the required statement at the bottom of such petition if it were subsequently proven at a hearing that the witness had in fact obtained the signatures and was otherwise qualified to do so? I think not.
*29My conclusion is that the failure to sign the registration cards invalidated the votes cast by those who failed to sign. Such omission was not a mere irregularity which could be corrected through a court contest. The failure to sign was fatal.
In any event, assuming that I could agree with the majority in the Moritt case as of the time that decision was made, subsequent developments would require that I now reach a contrary result. Similarly, I believe that the divided Moritt court (two of the Justices were in dissent) would be required to do likewise.
At the time of the Moritt decision in 1938 the requirement that a voter sign his name prior to voting stemmed from the then sections 202 and 207 of the Election Law. Those sections had been adopted without any constitutional mandate. Thereafter, at the 1938 Constitutional Convention, section 7 of artice II of the Constitution was amended so as to direct the Legislature to enact legislation providing for the “ identification of voters through their signatures ”. Although it would seem — as has been held by the Attorney-General (1939 Atty. Gen. 226)—that such constitutional provision is self-executing, the Legislature did enact such legislation pursuant to such mandate (presently Election Law, § 413). While it is true that the preconstitutional convention statute and the post-constitutional convention statute are essentially similar in substance with respect to the question of signature identification, I do not believe that their impact is likewise similar. It would appear to me that a constitutionally mandated statute must perforce be given more weight than a statute passed merely within the confines of the Legislature’s discretion.
The second element which has changed since the Moritt decision is the fact that we now have permanent personal registration. Under this method of registration there is much greater opportunity, for one so inclined, to perpetrate fraud in connection with the voting process. Thus, more than ever, it is now essential that there be compliance with the signature requirement of section 413 of the Election Law.
It is argued—and so stated in the Moritt memorandum opinion—that it would be unfair to penalize a voter for the omission of the election official. The simple answer to that is that the sanction is not directed against the voter. It is directed against the vote. It is no different than if we disregard a signature on a nominating petition where the person taking such signature fails to properly subscribe the petition as a witness. The Election Law contains many provisions which result in the invalidation of votes despite the absence of fault on the part of the voter. Indeed, in order to have regular and orderly elec*30tions, free of fraud, it may well be that we must adopt the position that all voters are deemed to be aware of what is required of them in order to properly and validly cast their votes. In any event, the voters who failed to sign the registration cards in this election will not be penalized if it be set aside since they will have another opportunity to have their votes registered — this time in accordance with the law.
The decision of the majority in effect permits of what I consider to be a most undesirable result. It would permit elections to be decided not by what occurs within the confines of the voting booth but rather by what occurs on a witness chair in a courtroom and upon findings as imprecise as the credibility of witnesses. Permitting elections to be decided upon such a basis is hardly conducive to encouraging the confidence of the public in the elective process.
Having concluded that there was at least a total of 64 invalid votes cast in the primary election, I find such amount to be sufficient to require that a new election be held. Subdivision 2 of section 330 of the Election Law was intended to provide for the cancellation of “ unlawful proceedings which have resulted or may have resulted in the declaration of a false result ” (Matter of Coughlin, 137 App. Div. 283, 285, affd. 198 N. Y. 613; Matter of McGuinness v. DeSapio, 9 A D 2d 65). To enable the court to take such action it is not necessary that it be demonstrated that the result was in fact affected by the invalid votes. It is sufficient to show “ that the result could have been affected thereby” (Matter of McGuinness v. DeSapio, supra, p. 71). Where it is impossible to determine “who rightfully was * * * elected ”, a new election is required (Election Law, § 330, subd. 2). I conclude that in the circumstances of this case, the casting of 64 invalid votes “ could ” have affected the result and we cannot determine who ‘ ‘ rightfully was * * * elected ’ ’. In reaching such conclusion I am not unmindful of the limitation imposed by Matter of Badillo v. Santangelo (15 A D 2d 341) upon the power of the court to set aside an election. I find the instant case to be substantially different factually from the Badillo ease where the facts were such as allowed for the determination that there was only a “ mere mathematical possibility that the results could have been changed ” and that the “probabilities all combine to repel any such conclusion” (p. 342). With respect to the instant case, however, it must be said that it is quite possible — as distinguished from a “mere mathematical possibility” — that the result may have been affected by the invalid votes cast. (See Matter of Branagan v. *31Todd, 19 A D 2d 337, affd. 13 N Y 2d 888.) 3 Any other conclusion would have to be based upon mere speculation. We may not depend upon mere speculation to refuse to set aside such an election where it is clear that the result was improperly reached.
It is of no consequence that actual fraud is not claimed or found here. Neither was there fraud claimed, nor found, in the Branagan case where the election was set aside because the irregularities in that election were sufficient to the point that it was “ impossible to determine who rightfully was nominated ” (p. 339). Where, as here, the result of an election is not free from uncertainty and doubt, by reason of the counting of a crucial number of invalid votes, the election must be set aside whether or not there be fraud involved. The candidates, and indeed the public, are entitled to an election result which reflects the will of the electorate. Particularly should care be taken where the result is extremely close.
Adding to the 35 votes invalidated by Special Term the invalid 27 votes cast without signatures and the 2 votes improperly counted, makes a total of 64 votes that should have been disregarded. In this close election, with such a total of invalid votes, it is “ impossible to determine who rightfully was * * * elected ’ ’.
Inasmuch as I find that 64 votes were invalidly cast, and since I am of the opinion that such votes are sufficient of themselves to require that the election be set aside, I need not consider the other alleged irregularities asserted by the appellant.
In the light of the above I vote to reverse the order of Special Term appealed from and would set aside the election and direct that a new election be held.
Breitel, McNally and Eager, JJ., concur with Botein, P. J.; Rabin, J., dissents and votes to reverse, in opinion.
Order, entered on October 31, 1963, affirmed, with $20 costs and disbursements to respondent Edward I. Koch.
. The Court of Appeals affirmed the order of the Appellate Division (279 N. Y. 617). However, the affirmance rested upon other grounds and the issue with which we are here concerned was eoncededly not passed upon.
. It should be noted that such strict guidelines are also applicable to pre-election procedures such as the form of designating petitions (Election Law, § 135), acceptance or declination of designations or nominations (Election Law, § 139) and registration procedures (Election Law, § 150 et seq.).
. While I do not believe that eases of this type should be determined merely by mathematical computation, it is interesting to note that a new election was ordered in Matter of Branagan where 40 of the 47 invalid votes — 85% — would have had to have been cast for Branagan’s opponent in order to have changed the final result — a greater percentage than would be required to change the result in this case.