Brandenburg v. Hurst

• Decision Date: 20 January 1942
• Citation: 289 Ky. 155
• Parties: Brandenburg v. Hurst.
• Court: United States State Supreme Court — District of Kentucky

Page 155

289 Ky. 155

Brandenburg v. Hurst.

Court of Appeals of Kentucky.

January 20, 1942.

1. Elections. — The statutory provision for signature of ballots by one of the judges before delivery thereof to voters is "mandatory," and the full name or the initials and surname of one of the judges of the election must be signed (Ky. Stats., sec. 1460).

2. Elections. — Election judge may delegate to another officer of the election the signing of judge's name on ballots before delivery to voters, such signing to be in the judge's presence, where statute does not expressly require the judge to personally sign the ballots (Ky. Stats., sec. 1460).

3. Elections. — Where election judge stated he authorized clerk of election to sign judge's name on some of the ballots, proof that such signing by clerk was in judge's presence was not necessary in order to validate the ballots, since judge of election is required by law to be present at all times during conduct of election and it is presumed he did his duty and was present when his name was signed (Ky. Stats., sec. 1460).

4. Elections. — Ballots signed by clerk of election, whom election judge had authorized to sign judge's name thereon, were valid (Ky. Stats., sec. 1460).

5. Elections. — Where the office of State Senator was at the top of ballot and there was no Republican candidate for such office in county, ballots, which were stamped in the square opposite such blank line at the top of list of Republican candidates, without writing in the name of any candidate for Senator and without voting for any other office, did not constitute a vote for any candidate.

6. Elections. — Where an erasure is apparently made to correct an error and the intention of the voter is manifest, the vote should be counted, unless the attempted erasure was apparently intended as a distinguishing mark or is of such a nature as easily to identify the voter.

7. Elections. — Ballots which bore a rubbed out imprint under the device of one political party and a clear stencil cross-mark under the device of the other party should have been counted for the party under whose device appeared the clear imprint.

Appeal from Lee Circuit Court.

Leebern Allen for appellant.

Hunter Shumate for appellee.

Before John L. Vest, Special Judge.

OPINION OF THE COURT BY STANLEY, COMMISSIONER.

Reversing.

This is a contest of the election of sheriff of Lee County. On the face of the returns Robert Brandenburg Democrat, received 1508 votes and Zach T. Hurst, Republican, received 1503. Hurst filed the contest upon the ground that a number of illegal votes had been cast for his opponent. He asked a recount of the ballots by the court. The contestee filed a counter-contest upon the same ground, and in addition charged the violation of the Corrupt Practice Act by his opponent. Upon a recount the circuit court found that Brandenburg was entitled to 1400 votes and Hurst 1426, thus giving a majority of 26 for the Republican candidate. The trial of the other issues was continued, apparently until after the disposition of this appeal.

One of the judges of the election in Beattyville Precinct No. 1 testified:

"I was Judge of the election in Beattyville, Precinct No. 1, and afflicted somewhat with rheumatism. I signed part of the ballots on the back on the line followed by the word `Judge' but not all. I do not know how many I signed, nor how many the Clerk signed. I told him to sign them for me."

It was established that the name of the judge had been signed by the clerk on 216 ballots. The question is therefore presented whether these ballots were invalidated by the failure of a judge of the election to sign his name in person on them. Section 1460 of the Statutes provides, "before the ballot is delivered to the voter to be voted one of the judges shall sign his name on such blank line and no ballot not so signed by one of the judges shall be counted by the canvassing board whose duty it is to certify the results of the election." The trial court construed the applicable opinions of this court not to be harmonious. He was of opinion that a strict construction of the law which requires that the judge of the election shall himself write his own signature would result in greater security against fraud by substituting another ballot — which is the manifest purpose of the provision — should prevail over a liberal construction even though it results in the disfranchisement of many citizens and possibly hampers the speed and ease in which elections should be held. Therefore, the court ruled that the ballots were invalid. This reduced Brandenburg's vote by 110 and Hurst's by 82. We consider this ruling.

Our interpretation of the quoted provision of Section 1460 of the Statutes is that it is mandatory and the full name or the initials and surname of one of the judges of the election must be signed; that the mere initials or the given name without the surname or the surname without the initials or given name is not sufficient. Johnson v. Caddell, 250 Ky. 640, 63 S.W. (2d) 810; Campbell v. Little, 251 Ky. 812, 66 S.W. (2d) 67; Wurts v. Newsome, 253 Ky. 38, 68 S.W. (2d) 448; Hogg v. Caudill, 254 Ky. 409, 71 S.W. (2d) 1020; Petry v. Hatcher, 260 Ky. 426, 86 S.W. (2d) 142. Those decisions may be said to involve the element of quantity of the signature or what shall be done. It is true that in some of the opinions [250 Ky. 640, 63 S.W. (2d) 813] it is written that the statute requires the "writing of his name" by the election officer. The statement is subject to the construction that he must himself write or sign his own name; but the expression as used in the first of those opinions (Johnson v. Caddell, supra) is followed by the parenthetical clause "rather than only his initials." This indicates that the mind...