
    Matter of the Application of Jacob L. Holtzmann for an Order Reviewing the Action of J. Gabriel Britt and Others, Constituting the Board of Elections of the City of New York, in Preparing and Using Certain Ballots in the Official Primaries of the National Progressive Party in the Tenth Congressional District in Kings County.
    (Supreme Court, Kings Special Term for Motions,
    October, 1914.)
    Election Law, § 56 — compliance with — printing official ballots and inspection of same — when motion to restrain board of elections from printing candidate’s name upon ballot denied.
    An official ballot should be printed and subject to inspection and ready for use a long enough time before election day to enable candidates and voters to see that it complies with the law.
    Where the official ballot furnished by the tenth congressional district did not comply with the statute in that after the first ten names the entire ticket was improperly and irregularly numbered, but there is no claim that any one has been deceived nor any evidence that any person voted for the one nominated as the candidate for congress of the National Progressive party, who did not intend so to do, or that any person failed to vote against him because of the misnumbering of the names, and it appears that the official ballot was not printed and delivered until the day of voting, irregularity is not so vital as to render the entire election of the entire Progressive party in said district or elsewhere void, and a motion under section 56 of the Election Law to restrain the board of elections from printing said congressional candidate’s name upon the ballots on election day on the ground that the vote east for him at the official primary election was void will be denied.
    Application for an order to review the action of the board of elections of the city of New York.
    Jacob L. Holtzmann, for petitioner.
    Frank L. Polk, corporation counsel (Charles J. Druhan, of counsel), for defendants.
   Crane, J.

The official primary election in this state was held on the 28th day of September, 1914, and in the tenth congressional district one Reuben L. Haskell was returned as having been nominated as the candidate for congress of the National Progressive party. A motion is now made under section 56 of the Election Law to restrain the board of elections from printing Haskell’s name upon the ballots on election day as a candidate for congress on the ground that the votes cast for him were void. The application is made by Jacob L. Holtzmann, state committeeman of the National Progressive party from the twenty-third assembly district and residing in the tenth congressional district. It is not made by Haskell’s opponent for the nomination. The Primary Law, section 58 of the Election Law, provides that no signs or writing whatever shall be printed upon the official primary ballot except as provided, and then enacts as follows: ‘ ‘ The names of candidates for nomination for public office * * * shall be numbered consecutively with Arabic numerals, printed in heavy faced type at the left of the name of each candidate, and at the right of the voting space aforesaid, from one upward, beginning with the name

of the first candidate for nomination for public office whose name is printed first upon the ballot in the column at the left, and continuing consecutively through the names of said candidates for public office, and then consecutively through the names of the candidates for party positions.” The official ballot furnished for the tenth congressional district did not comply with the law because of improper numbering, the numbers not running consecutively. The first ten names upon the ticket, beginning with Frederick M. Davenport for governor, and ending with Bainbridge Colby for United States senator, were numbered correctly from 1 to 10; the next office upon the ticket, the representative in congress, Reuben L. Haskell, was numbered 17 instead of 11; the next, for senator, was numbered 20 instead of 18; the one for assemblyman was numbered 23 instead of 21; the delegates-at-large for the constitutional convention were numbered beginning with 26 instead of 25, and Jacob L. Holtzmann, the nominee for state committeeman, was numbered 48 instead of 44. After the first ten names the entire ticket was improperly and irregularly numbered. If application had been made to the court before primary day these ballots would have been thrown out as unofficial and in violation of the law, but it is conceded that there was no time for any such application, as the official ballots for this district were not printed and furnished until the morning of that day. The relator states that upon inquiring at the board of elections after the filing of designations he was informed that Haskell’s name would appear as number 11, and the latter evidently understood likewise, for the sample ballot used by him for electioneering purposes had the number 11 opposite his name. The board of elections has submitted the affidavit of the printer, in which he states that so many changes were made in the names for the various offices in the various parties after the last day to file petitions, that is, within the three weeks preceding the election, that it was impossible to give the candidates consecutive numbering and have the ballot ready for use, and that the method adopted was, as he has termed it, a 1 ‘ war measure. ’ ’ The public authorities having charge of the elections, therefore, state that it is impossible to comply with all the provisions of the Primary Law if official ballots are to be used. If this be so, the law should be amended at once. There is no use for an official ballot if it is not to be correct, and there is little purpose in safeguarding the preliminary steps in the selection of candidates if the result is to be jeopardized by an improper ballot. The form of ballot as now used is quite complicated. Its pristine simplicity has vanished with the inroads of fraud and its final make-up, form or complexion, both for primary and election days, is' quite as important as the means used to get names upon it. The official ballot, therefore, should be printed and subject to inspection and ready for use a long enough time before primary or election day to enable everybody to see that it complies with the law. In this instance the official ballot was not printed and delivered until the day of voting, and then was incorrect. . It is far better to have no law than a law that is not obeyed. But does this irregularity render the votes void and annul the nominations? There is no claim that anybody has been deceived, nor is there any evidence before me that any person voted for Haskell who did not intend so to do or that any person failed to vote against him because of the misnumbering. So far as the papers presented to me show, the votes cast correctly represent the intentions of the voters. If there were anything in this irregularity which would cause the ballot to be a marked ballot, whereby the choice of the voter could he determined by others, then the secrecy, the main purpose of our election machinery, would be removed and the ballots cast would be absolutely void. Such is the case of People ex rel. Nichols v. Board of Canvassers, 129 N. Y. 395. To grant the relief asked by the relator the court would also be obliged to extend it to every other nomination upon the ticket. The ballot could not be valid and good as to the others. The whole ballot was irregular in that it did not comply with the law, and if it were void the votes for governor and every other office in this district were of no avail, that is, there would have been no election. What consequences this would have upon the nomination for other offices, including that of governor, of course is impossible to tell, and how far this improper numbering may have extended throughout the state is not known. Surely under these circumstances the court should be very loath to declare an election void and disfranchise a large number of voters or perhaps a material portion of a political party. A new election might be ordered at which proper ballots could be furnished, but this the court has no power to order under the statute unless ‘‘ the primary has been so permeated by fraud as to render it impossible to determine who was elected thereat.” Election Law, § 56. There is before me no evidence of any fraud, but rather a mistake upon the part of the election officials. Likewise, there is no evidence before me that this mistake did affect or could have affected the result of the election. Matter of Coughlin, 137 App. Div. 283; affd., 198 N. Y. 613. My conclusion, therefore, is as follows: (1) That the ballots were improperly numbered, in violation of the Primary Law, because the printer, through constant changes in nominations, could not consecutively number the candidates and have the ballots ready in time. (2) The official ballot should be prepared a sufficient time before use to permit candidates and voters to see that it complies with the law. (3) The irregularity in this instance is such that if there had been time the court would have corrected it before primary day, but it is not so vital as to render the entire election of the National Progressive party in this district or elsewhere void.

Motion denied, without costs.  