Shore v. Board of Canvassers

POFFENBARGER, PRESIDENT: John J. Shore, a candidate, in the November election, for Justice of "the Peace in Wood county, having been awarded a mandamus nisi, commanding the board of canvassers of said county to count certain ballots for him and reject certain ballots, counted by them for that one of his competitors, who, according to the supposedly erroneous declaration of the result, had received more votes than he, or show cause why a peremptory writ should not be awarded, compelling them to do so, and they having made a return thereto, showing, in their opinion, sufficient cause; the question is whether a sufficient number of the ballots were wrongly counted to make up the plurality of fourteen votes found in favor of said Shore’s competitor, W. P. Rathbone. The number of ballots counted against the plaintiff, over his objection, is large, and all the objections were based on the markings of the ballots by the voters. These markings were varied, but many of the ballots were marked exactly alike, and others similarly, so that they are susceptible of grouping and classification. In many instances the intention of the voter was made so apparent by the marks put on his ballot that we deem it unnecessarj^ to discuss them. Indeed, on the examination of every ballot, the counting or rejection of which is challenged, we have' found only a few failures to give effect to the clearly expressed intention of the voter, not enough to change the result. However, we deem a few of the questions raised worthy of discussion. There were six ticket^ on the ballot sheet, the democratic, [707] socialist, independence league, prohibition, independent and republican, named from left to right. On each of the first two, there were two candidates for, justice of the peace, none on the next two, one on the fifth and two on the last. The leading candidates were on the democratic and republican tickets. On the former were H. G. Butcher and John J. Shore and on the latter R. H. Thomas and W. P. Rath-bone; Butcher’s name being opposite that of Thomas and Shore’s opposite that of Rathbone. Some voters, after having selected the republican ticket, by placing a cross in the circle under the emblem, placed a cross before the name •of Butcher on the democratic ticket, and others, selecting the republican ticket, opposite the name of Ruttencutter on the independent ticket, put a cross before the names of Butcher on the democratic ticket and Thomas on the republican ticket. In all such instances, the ballot was counted for Butcher, or Ruttencutter, as the case happened to be, and Rathbone, the board regarding the marking of a name ■opposite that of Thomas as signifying intention not to vote for him and to vote for the person whose name -was marked. The objection is to the counting of the ballot for Rathbone, the contention being that there is nothing to indicate which ■of the men Avhose names are not specially marked the voter intended to vote for, there being several of them. In other instances, the democratic ticket was selected, and a name marked on one of the other ballots, raising the same question .as to whether it should be counted for Shore, or Butcher, as the case happened to be. We rule that they were properly counted. By selecting the republican or democratic ticket, in the manner prescribed by the statute, placing a cross in the circle, the voter signified intention, for the time being, to vote for every per■son whose name was ©n it. That was the effect of making a maiic in the circle. The statute so declares.. Having-done that, he could alter the effect of that mark, by placing a cross mark in the square before the name of a candidate on the opposite ticket. The statute declared the effect to be a manifestation of intent to vote for the man whose name is so marked and not to vote for his competitor, whose name is directly opposite. To say this statutory rule is to be varied or ignored when it happens that [708] there are two or more candidates on each ticket for the same office, on the theory of lack of any marking to show which of the two or three it was the intention of the voter to displace by the man chosen on the opposite ticket, seems to us not to be based on any substantial reason. It is a question of intention, not one of arbitrary rule. We are not to assume that the voter intended to vote for only one justice, there being two to elect, or one member of the house of delegates, there being two, three, four or five to elect. On the contrarjq we must presume he intended to vote for as many as he lawfully could. We must also assume that, in preparing his ballot, he was influenced by his knowledge of the'legal rules or directions for preparation of ballots, that he knew he had selected a, straight ticket by his first step and that, in all ordinary cases, the marking of a name on another ticket operated a rejection, or elimination from the selected ticket, of the name thereon opposite the one so marked. This makes clearly manifest the improbability that the intricate distinction between cases in which but one officer of a kind is voted for and those in which two or more are voted for ever occurred to the average man while preparing his ballot. He followed the plain letter of the statute. Are we to assume that he did not intend to do so, because, as a, lawyer, he perceived room for a legal question as to whether his act was within the spirit of the statute? Hardly. Comparatively few of .the voters belong to the legal profession. Several questions are presented as to the sufficiency of markings to show selection of a ticket on the ballot sheet. In one instance, there is only a straight mark in the circle, in another the word “Straight” is written in it, and in another a cross is placed under or near the emblem outside, of the circle. These were all good ballots, and properly counted. In some cases, the voter placed cross marks in all the circles but one, or crossed out the headings' of all tickets but one, or defaced all but one by lines drawn from top to bottom or partially through them; and, in one case, the voter covered all the tickets but one with a large “X.” These were sufficient indications of intent to select the ticket unmarked. [709] In some instances, no selection of an entire ticket was made. The voter marked the names of the candidates he desired to vote for wherever he happened to find them on the ballot sheet, and, for some of the offices to be filled, he marked no candidate’s name. These ballots were properly counted only for candidates whose names were marked. There are instances' in which, after selecting a ballot, the voter placed cross marks before the names of two candidates for justice standing opposite each other, one on the selected ticket and the other on a different ticket. These were properly counted for the candidates whose names were marked, the intention being clearly indicated by the secondary marking of particular candidates; The selection of the ticket disclosed general intent, while the marking of candidates evinces specific or particular intent. A ballot improperly rejected has a cross mark in the circle on every ticket except the democratic. Here the plainly expressed intent was to make a selection by defacing all the tickets but one, on the principle of selection adopted before the statute was amended by the Act of 1908. Another ballot improperly rejected has cross marks in the circles under the democratic and republican emblems and crosses before the names of nearly all the names of democratic candidates, including those of Butcher and Shore. Where the names of democratic candidates are not marked the names of their opponents are. We ignore the general markings in the circles and regard only those made for particular candidates, it appearing that the voter, by individual or particular markings, indicated his choice as to every office in question. Ballot No. 29 is designated as having been counted for Butcher and Rathbone, but we are inclined to the opinion that this is a mistake in designation, since the board properly counted many • others marked the same way for Thomas and Shore. There is a cross in the circle on the democratic ticket and crosses before the names of Thomas and others on the republican ticket, but none before that of Rathbone. It should have been counted for Thomas and Shore. Ballot No. 273 was improperly counted for Rathbone. There is a cross in the [710] circle on the republican ticket, one before Butcher’s name ancl one before the name of Ruttencutter on the independent ticket, directly opposite and between the names of Butcher and Thomas. It should have been counted for Butcher and Ruttencutter whose names are specially marked. These are all the errors discovered, and they wholly fail to overcome the adverse plurality of fourteen. The amendment of section 34 of chapter 3 of the Code, made by chapter 21 of the Acts' of 1908, works a radical, and perhaps wholesome, change in the rules applicable to the interpretation of ballots. It allows great liberality of construction in seeking and giving effect to the intention of the voter. It says: “No ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.” Besides it expressly gives direction for preparing ballots in three different ways. Nowhere does it say a ballot not prepared in conformity with the directions shall be rejected. These great changes make the decisions, in which said section was construed before it was amended, almost wholly inapplicable to it as it now reads. For the reasons here stated, the return of the board of canvassers is held sufficient and the writ prayed for refused. Writ Refused.