Mosier v. Gilmore

OAKS, Justice: In this appeal, we must decide who was elected sheriff of Garfield County on November 4, 1980. The outcome turns on the significance of 24 ballots that were marked for both candidates. All statutory references are to Utah Code Annotated, 1953, as amended. Candidate Gilmore defeated incumbent Mosier in the Republican primary, and his name was the only one printed on the November ballot for the office of sheriff (for the remaining two years of the four-year term). (There was no candidate representing any other party.) Mosier ran a write-in campaign, which included the circulation of stickers bearing the words, “For Sheriff, 2 yr. term DONALD L. MOSIER” and a box with an “X” marked in it. The stickers had a peal-off backing and were designed to be affixed to ballots as authorized in § 20-7-20. After a re-count of the November election ballots, Gilmore was declared the winner by a vote of 958 to 934. Mosier thereupon filed this suit in the district court, challenging the election judges’ rejection of the 36 ballots that he claimed should have been counted in his favor. Ruling that 28 of these ballots should have been counted for Mosier, the district court tallied the votes 962 to 958 for Mosier, and declared him the duly elected sheriff of Garfield County. Gilmore filed this appeal. Because our action with respect to 24 of these ballots is dispositive of this appeal and of the outcome of the election regardless of the merit of Gilmore’s or Mosier’s contentions on the other contested ballots, this [57] opinion will be limited to the single issue presented by these 24 ballots. Twenty-four ballots contained both an “X” in the box opposite Gilmore’s name and a write-in for Mosier, signified either by affixing the sticker or by actually writing Mosier’s name on the ballot. (Mosier’s stickers appear on 18 of these ballots; Mosier’s name is written on 6 ballots, 4 of which also contain an “X” opposite his written name and 2 of which have no mark opposite his name.) The election judges refused to count these ballots as votes for either candidate, thus giving the election to Gilmore. The district court counted these ballots for Mosier, giving him the election. If these 24 votes had not been counted, Gilmore would have been elected by a margin of 958 to 938. Each party to this appeal argues that his position is dictated by statute. Gilmore relies on the following sentence from § 20-7-21: If the voter marks in squares opposite the names of more than one candidate for a single office the vote shall be counted for no candidate for such office. Mosier relies on the following sentence from Section 6 of an Act “Providing for the Use of Electronic Voting Systems in Elections,” passed in 1971 (Utah Laws, 1971, ch. 40) and codified in § 20-20-6(5) under the chapter heading “Electronic Voting Systems”: 1 If the voter has cast more votes for an office than he is entitled to vote for that office as a result of the write-in vote, the write-in vote shall be counted as being the obvious intent of the voter. Neither of these statutory directions governs the outcome of this case. The sentence from § 20-20-6(5) is clearly inapplicable since its terms apply only to electronic voting systems, and these were manual ballots. The sentence from § 20-7-21 is of doubtful applicability to most of these 24 ballots since its terms apply only to a voter who “marks in squares opposite the names of more than one candidate for a single office” (emphasis added), whereas these ballots were marked both in the square opposite the name of one candidate and with a write-in name for an opposing candidate (affixed in most cases by a sticker). Both parties seek to extend the policies of these statutes beyond their express terms, but that effort is mutually self-defeating since the two policies seem to dictate contradictory results on the facts of this case. More to the point is § 20-7 — 25, which specifies in its first clause: If a voter marks more names than there are persons to be elected to an office, . . . his ballot shall not be counted for such office; ... [Emphasis added.] If the words “marks more names” apply to the insertion of the name of a write-in candidate (whether by script or by sticker, § 20-7-20), as well as to the “mark,” “cross,” or “cross-mark” referred to later in this statute, then § 20-7-25 requires the rejection of the 24 ballots containing two “marks” for one office. This interpretation seems most consistent with the way the Legislature has used the word “mark” and various of its derivations throughout chapter 7 of Title 20 (Ballots and Voting).2 The quoted language from § 20-7 — 25 therefore provides one basis for our holding.3 [58] In the alternative, this same outcome is dictated by the general rule that governs the validity of contested ballots in the absence of specific legislative direction on the effect of a particular alleged defect. The governing rule of voter intent specified in § 20-7-21 was enacted in 1933, in an apparent reaction to this Court’s highly technical decision in Evans v. Reiser, 78 Utah 253, 2 P.2d 615 (1931), which counted only 24 of 571 challenged ballots. The new language reads as follows: No ballot marked by the voter shall be rejected because of marks on the ballot other than prescribed in this section, [with a single exception not pertinent here]. The intent of the voter shall be given full consideration and mechanical and technical defects in voting and failure on the part of the voter to follow strictly the rules for balloting as laid down in section 20-7-19 and 20-7-20 of the Utah Code Annotated 1953, shall not invalidate a ballot. [Emphasis added.] The more lenient attitude toward deviations in the marking of ballots is evident in the succeeding case of Frantz v. Hansen, 104 Utah 412, 140 P.2d 631 (1943). Here, the Court observed that the law was amended in 1933 “so that more liberal interpretation may be given a ballot in order to preserve the full intent of the voter as evidenced thereon.” (Emphasis added.) 104 Utah at 415, 140 P.2d 631. The critical importance of seeking and giving effect to the “intent of the voter” is apparent in the rulings on individual ballots in that opinion, in which only one of the fourteen challenged ballots was rejected. It is evident from Frantz v. Hansen that, subject to legislative direction to the contrary, a ballot may be counted if the voter has given a sufficient indication of his or her intent, even though by means different from those prescribed by statute. At the same time, the voter’s intent can only be honored if it is susceptible of determination without speculation. Section 20-7-25 specifies that “if for any reason it is impossible to determine the choice of any voter for any office to be filled, his ballot shall not be counted for such office; ...” This was the principle elaborated in the two-Justice concurring opinion of Chief Justice Wolfe in Frantz v. Hansen, supra, which points out that § 20-7-21’s direction to give effect to the intent of the voter does not permit election judges or courts “to venture a guess as to the intent.” Instead: There must be sufficient indication from the ballot as to what the voter really intended. The indications must be such as lead the mind naturally and without guess to infer the voter’s intent. 104 Utah at 421, 140 P.2d 631. If the markings for a particular office on the ballot are reasonably susceptible of more than one interpretation of the voter’s intent, the ballot would not be a sufficient indication of the voter’s intent. When that intent is “impossible to determine,” the ballot “shall not be counted for such office.” § 20-7-25.4 In light of the provisions of §§ 20-7-21 and 20-7—25 quoted above, those who judge the validity of a challenged ballot should seek to give effect to “the full intent of the voter as evidenced thereon,” Frantz v. Hansen, supra, 104 Utah at 415, 140 P.2d 631. But if the ballot contains no indication sufficient to “lead the mind naturally and [59] without guess to infer the voter’s intent,” id. at 421, 140 P.2d 631, or if for any reason it is “impossible to determine” the voter’s choice, § 20-7-25, then the ballot should not be counted. In applying the rule of voter intent as evidenced on these 24 ballots, we do not exercise the same deference toward the findings and conclusions of the trial judge as is appropriate in a case where the resolution of the controversy is dependent upon evidence heard in the trial court. In contrast, the resolution of this appeal turns solely on the meaning and effect of documents — the ballots — as to which the trial court has no advantaged position over this Court. Lake v. Hermes Associates, Utah, 552 P.2d 126, 128 (1976); LeBaron v. Crismon, 100 Ariz. 206, 412 P.2d 705, 706 (1966); In re Estate of Baker, 59 Cal.2d 680, 31 Cal.Rptr. 33, 381 P.2d 913, 914 (1963); In re Estate of Larson, 71 Wash.2d 349, 428 P.2d 558, 561 (1967). As Gilmore argues, the contradictory markings on each of these individual ballots could reasonably be attributable to a number of motives inconsistent with an intent to cast a vote that would be counted for Mosier: The voter may have voted for both candidates because he liked both. He may have voted for both because he disliked both and desired to cause confusion and controversy. (That was surely the outcome in this case.) The voter may have voted for Mosier by write-in, changed his mind, and marked his ballot for Gilmore but neglected to scratch out the write-in. Or, the voter may have been confused by the publicity incident to the write-in campaign, believed he was supposed to make the ballot complete by attaching Mosier’s write-in sticker, done so, and then voted for Gilmore. On the basis of these and other possibilities, we are unable to conclude that these 24 ballots that contain both the addition of Mosier’s name and an “X” for Gilmore “lead the mind naturally and without guess to infer the voter’s intent.” In fact, it is difficult to imagine a circumstance more squarely ambiguous than this. Considered solely from the standpoint of either candidate, each of these ballots contained an acceptable vote in his favor. But each ballot also contained an equally acceptable vote for the opposing candidate. Consequently, it is impossible to determine the voter’s choice for the office of sheriff on these ballots, and they should not have been counted. The judgment of the district court is reversed and the cause is remanded with directions to enter judgment confirming the election of Gilmore. Costs as directed in § 20-15-13. HALL, C. J., and J. ALLAN CROCKETT, Retired Justice, concur. Footnotes [1] The term “electronic voting system” is defined as “a system in which a voting device is used in conjunction with paper ballots or ballot cards, such that votes may be recorded and then subsequently counted and tabulated by automatic tabulating equipment.” § 20-20-1(7). [2] Section 20-7-21 (ballots “properly marked by the voter” to be counted notwithstanding printing errors); § 20-7-22 (voter to fold ballot “without displaying the marks thereon”; each voter to “mark and deposit his ballot without undue delay”); § 20-7-24 (voter “unable to prepare ballot without assistance” to be assisted “in the marking thereof’; voter who “cannot read his ballot or mark it correctly” to be assisted “in preparing and marking his ballot”); § 20-7-26 (excess ballots to be “marked ‘excess ballots’ ”). [3] In contrast to Justice Stewart’s dissenting opinion, we cannot regard § 20-7-20 as dispos-itive. That section merely authorizes write-in votes. The Legislature’s evident purpose in including the language emphasized in the dissent was to ensure that an uncontradicted write-in vote be counted “whether a cross58 mark is made or is not made opposite such person.” The effect of contradictory votes— one by a write-in and one by marking the name of a candidate printed on the ballot—is not treated by § 20-7-20, any more than it is by § 20-7-21, which provides that ballots marked for a candidate whose name is printed on the ballot “shall be counted for the candidates designated by the marks in the squares, ...” Maw v. Lee, 108 Utah 99, 157 P.2d 585 (1945), cited by the dissent, supports this result by its holding that contradictory votes for different candidates for the same office cannot be counted. However, this holding was based on a narrow principle of statutory construction inapplicable to the facts of this case. [4] In contrast to Justice Howe’s dissenting opinion, the issue is not which of two possible or “reasonable” inferences is the “more likely.” If there are two possible inferences within the realm of reasonableness, judges should not choose between them, and the ballot should not be counted for that office.