State v. Bernholtz

Ladd, J. [159] The ballots east at the election in the incorporated town of Breda, March 28, 1898, were not prepared and printed by any one authorized by law. The statute confers this duty on the recorder without any supervision on the part of the mayor or council. Section 1107, Code. It is only when objections are filed that the mayor and members of the council may act, and then only to pass upon the particular objections urged. Section 1103, Code. In this case no objections were filed, and the mayor and three councilmen, in assuming to correct the ballot, were mere intermeddlers. Whether the meeting of the council was lawful, or Dunck rightly appointed recorder pro tern., we need not inquire, for, as such, it had no authority whatever with reference to the preparation of the ballots, and could confer no such authority on him. His duties extended no further than the temporary purposes of that meeting, and in no way ousted the duly-elected recorder from the discharge of his duties in preparing and printing the ballots. The reason for rejecting those so prepared by the judges does not appear, unless it be their belief in the plenary powers of the council not only to ignore their own ordinances but the statutes of the state. They accepted those printed by Dunck, and these were voted by the electors. The two sets were identical, with this exception: That used had “Democratic” over the ticket headed by Jackson for mayor, while that designation was omitted from the other. As no objection to the certificate of nomination made by the caucus was filed, the propriety ot printing that is not argued. But see Schuler v. Hogan, 168 Ill. Sup. 369 (48 N. E. Rep. 195); Bowers v. Smith (Mo. Sup.), 17 S. W. Rep. 761; People v. Wood (N. Y.), 42 N. E. Rep. 536. The point made is that, as the ballots cast were not prepared by. any one authorized by law, the election was [160] invalid. With the statute as it was when State v. Smith, 94 Iowa, 616, was decided, this position would be sound. The. election law, however, was somewhat modified by the Code which went into effect October 1, 1891. Section 1122 is as follows: “No ballot properly marked by the voter shall be rejected because of any discrepancy between the printed ballot and the nomination paper or certificate of nomination,, and it shall be counted for the candidate or candidates for such offices named in the nomination paper or certificate of nomination. No ballot furnished by the proper officer shall, be rejected for any error in stamping or writing the endorsements thereon by the officials charged with such duties, nor because of any error on the part of the officer charged with such duty in delivering the wrong ballot at any precinct or polling place, but any ballot delivered by the proper official to. any voter shall, if properly marked by the voter, be counted as cast for all candidates for whom the voter had a right to. vote, and for whom he has voted.” It must be borne in mind that the election law was enacted to aid the elector in expressing his free choice, and not, by technical obstructions, to make the right of voting difficult and insecure. lie has no part in the preparation of the ballots, and the object of this section is to prevent his disfranchisement without any fault on his part because of some mistake or willful misconduct of the election officers. The distinction between errors of such officers which would have the effect to deprive voters of the-franchise, and, a disregard of the law by the electors themselves, runs through all the cases. See Lindstrom v. Board, 94 Mich. 467 (54 N. W. Rep. 280); Miller v. Pennoyer, 23 Or. 364 (31 Pac. Rep. 830); Kirk v. Rhoads, 46 Cal. 399; Cook v. Fisher, 100 Iowa, 31, and authorities cited. The very evident purpose of section 1122 was the complete protection of the voter in the exercise of the right of suffrage, if himself without fault, regardless of the errors of the-election officers. The clause’in section 1121 prohibiting any “but ballots provided in accordance with the provisions of this chapter” from being counted, evidently,. [161] relates to ballots furnished the voter. He may not use a ballot of his own choosing, but must cast such as are provided by the proper officials. This is to be given him by the judges-of election. Section 1111. When so received, he may rely upon it as genuine, and, when properly marked by him, have-it counted as cast for all candidates for whom he had the right to vote and did vote. This is not a case where the eleetorshave been deceived or misled by the mistake or fraud of the-officers. The ballots were in all essential particulars like those-prepared by the recorder. The use of the word “Democratic” on the ticket could have deceived no one. The voters-had the right, under section 1122, to have .the ballots counted', as cast, and when this was done the result was not in doubt-While the officers are without excuse in violating the plain provisions of. the statute, their misconduct cannot be permitted to overturn the expressed will of the people.— Affirmed.