Swift v. Board of Registrars of Voters of Quincy & Another
| Decision Date | 22 December 1932 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JOHN E. SWIFT v. BOARD OF REGISTRARS OF VOTERS OF QUINCY& another. |
December 15, 1932.
Present: RUGG, C.
J., CROSBY, PIERCE FIELD, & LUMMUS, JJ.
Elections Cancelling mechanism, Absentee voting. Statute, Construction. Words, "Shall."
The provisions of G.L. (Ter. Ed.) c. 54, Section 106, do not require that ballots which were duly cast at an election should not be counted merely because, due to imperfect working of the cancelling device in a ballot box which in good faith had been inspected as required by the statutory provisions preceding the election, when no defect was discovered, such ballots were not cancelled by the machine.
The mere fact, that after the observance of all the formalities required of election officers by G.L. (Ter. Ed.) c. 54, Section 95 respecting certain absentee ballots, the envelopes in which they were received were not returned to the city clerk by the election officers and therefore were not returned to the board of registrars of voters for the purpose of a recount where there was nothing to indicate fraud or tampering with the ballots and records, did not invalidate the votes nor afford any ground for nullifying the count.
In mandamus proceedings in this court raising questions touching a recount of ballots cast in a city at a State election, findings by a single justice after an examination of facsimile reproductions of certain ballots to ascertain whether they should be counted for one candidate or for another, cannot be reviewed or revised upon a reservation and report by him to the full court.
PETITION for a writ of mandamus, filed in the Supreme Judicial Court for the county of Norfolk on November 23, 1932, and afterwards amended, described in the opinion.
Gaspar G. Bacon subsequently was permitted to intervene as a respondent. The petition was heard by Donahue, J. He made certain findings of fact, described in the opinion, and reserved and reported the case for determination by the full court.
F.L. Simpson, (H.T. Talty with him,) for the petitioner.
J. Hannigan, for the respondents and the intervening respondent.
This petition for a writ of mandamus raises questions touching the recount of ballots cast in the city of Quincy for Lieutenant Governor at the State election held on November 8, 1932.
1. One allegation in the petition is that a substantial number of ballots "were not cancelled as required by law." The facts pertinent to this allegation are that when the ballot presented for deposit by the voter is inserted in the aperture on the top of the ballot box and the handle on the outside of the box is turned, rubber rollers within the box grasp the ballot and draw it into the box. The rubber rollers are so constructed that one of them is intended to stamp upon the back of each ballot the name of the city, the ward number and precinct number in which the ballot is cast. The roller designed to do this stamping is inked from a pad incorporated into the mechanism in the top of the ballot box. The pad is also a roller which moves on a shaft and is so placed and designed that it is in constant contact with another roller upon whose surface are the stamping letters and figures. The rollers and inking device are in the same separate locked portion of the ballot box. There is no arrangement for the mechanical or automatic replenishment of ink on the inking roller and no replenishment is possible without opening the mechanical portion of the ballot box. During the voting period the amount of ink on the pad can be determined only by opening the upper part of the ballot box and inspecting the pad. The key for such opening is in the sole possession of the police officer on duty at each precinct. The only means of ascertaining whether the cancelling device is in fact stamping the ballots as deposited in the box is by examination of the ballots after they have passed into the box or by examining the cancelling device after opening the mechanical portion of the ballot box. Each ballot box contains on its face a numbering device designed to record the number of ballots passing into the box as deposited by the voters, which operates by means of a counting mechanism set in motion only when a ballot is actually passing into the box. Prior to the election due examination as required by law was made of all ballot boxes used in Quincy, and they were found to be in good condition and the inking devices properly inked. No record was made that it was impossible to use any of these ballot boxes as required by G.L. (Ter. Ed.) c. 54, Section 66, and so far as could be observed during the voting period no ballot box became impossible of use. These ballot boxes were used exclusively during this election. After the closing of the polls and after counting the ballots removed from the ballot boxes, the election officers caused such ballots to be placed in envelopes, some of which were not sealed; some of the ballots were in envelopes placed in "fiberoid containers" which were then sealed and others were placed in unsealed packages or containers. In other instances, where the "fiberoid containers" were inadequate to hold the filled envelopes, the election officers caused such ballots in unsealed envelopes to be securely tied into bundles. All these "fiberoid containers" and tied bundles were duly delivered to the city clerk of Quincy who immediately caused them to be placed in a steel vault in the city hall and there securely locked, and no person had access thereto except the city clerk and his assistants. The election officers in the several precincts after the close of the polls returned unused ballots, the number of which is unknown, to the city clerk in unsealed packages. These packages were placed by the city clerk in the cellar of the city hall in Quincy in space or room which is not locked. So far as appears said packages have remained in said cellar from the time they were placed there until the present time. At the time of the recount the city clerk turned over to the registrars of voters for counting the ballots contained in the envelopes in his possession and received by him from the election officers. The number of uncancelled ballots is not disclosed on the record but it appears to have been an appreciable number of the ballots that were duly cast and received into the ballot box. Such uncancelled ballots were counted according to their marking by the precinct officers, and it is the intention of the respondents to count them according to their marking on the recount.
The election law, G.L. (Ter. Ed.) c. 54, contains ample safeguards as to the count of those who receive ballots and of those who deposit ballots. It is provided by Section 67 that one voting list shall be delivered to the ballot clerks and another to the officers in charge of the ballot box. When a ballot is delivered to a voter, his name shall be checked on the first list and when he deposits his ballot it shall be checked on the second list. Each voter on receiving his ballot, Section 76, and again on depositing it in the ballot box, Section 83, is required to give his name and, if requested, his address to an election officer, who shall distinctly announce such name. The ballot box is required to have mechanical devices for registering the number of ballots cast. Section 33. As soon as the polls are closed, the clerk is required to record the number shown by the register on the ballot box. The election officers are required to count audibly the number of names checked on each voting list and announce the same. Then the presiding officer shall open the ballot box. the ballots are counted audibly, one by one, and the whole number is publicly announced. Section 105. All these acts precede the counting of the votes cast for the several candidates. The voting lists, records and ballots must be carefully preserved. Section 107. Thus there are four separate and independent methods of ascertaining the number of votes cast. Provision is made for equal representation of both the major political parties in the appointment of election officers and their participation in vital steps in the conduct of the election and the counting of ballots. Sections 13, 14, 67, 105. Nothing in this record suggests any disparity between the number of ballots in the ballot box and the number of names of voters checked on the lists and the number registered by the ballot box. There is no basis for a suggestion that the uncancelled ballots were not actually deposited in the ballot box by duly qualified voters in compliance with all the requirements of the election laws. Manifestly each of these ballots passed through the cancelling device and was subject to its operation.
The question to be decided is whether as matter of law these uncancelled ballots thus cast must be rejected and not counted. The answer to this question depends upon the construction to be given to G.L. (Ter. Ed.) c. 54, Section 106, the words of which so far as here material are: Section 66 is not relevant to the case at bar.
It is provided by G.L. (Ter. Ed.) c. 54, Section 33, that "Ballot boxes shall . . . contain mechanical devices for receiving registering and cancelling every ballot deposited therein." There are minute provisions as to...
To continue reading
Request your trial