O'Brien v. Bd. of Election Com'rs of Boston

• Citation: 257 Mass. 332,153 N.E. 553
• Parties: O'BRIEN v. BOARD OF ELECTION COM'RS OF CITY OF BOSTON.
• Decision Date: 22 October 1926
• Court: United States State Supreme Judicial Court of Massachusetts

257 Mass. 332

153 N.E. 553

O'BRIEN

v.BOARD OF ELECTION COM'RS OF CITY OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

Oct. 22, 1926.

Case Reserved from Supreme Judical Court, Suffolk County.

Petitions for mandamus by Thomas C. O'Brien against the Board of Election Commissioners of the City of Boston and against the Board of Registrars of Voters of the City of Chelsea, and by Charles G. Keene against the Board of Election Commissioners of the City of Boston and against the Board of Registrars of Voters of the City of Revere. On reservation by a single justice. Peremptory writs of mandamus to issue in accordance with opinion.G. Albert, of Boston, for Thomas C. O'Brien.

S. Silverman, Asst. Corporation Counsel, of Boston, for Board of Election Com'rs of Boston.

E. Adlow, of Boston, for Charles G. Keene.

J. A. Di Pesa, of Boston, for Board of Election Com'rs of City of revere.

RUGG, C. J.

These are petitions for writs of mandamus brought against the board of election commissioners of the city of Boston, the board of registrars of voters of the city of Chelsea, and the board of registrars of voters of the city of Revere. At the hearing in this court the questions raised by the petition of Charles G. Keene v. Board of Election Commissioners of the City of Boston were waived, and, therefore, that petition need not be considered. The remaining three petitions present for determination questions touching the counting of ballots cast at the state primary with respect to the Republican nomination for the office of district attorney for Suffolk county. For convenience, Thomas C. O'Brien will be referred to as the petitioner, and Charles G. Keene as the intervener. The cases were referred to an auditor, who made findings of fact, and later, on his report, were heard before a single justice. The disputed ballots were offered and received in evidence without objection. The evidence of the intervener, reported by the auditor for a limited purpose, was received by the single justice for every competent purpose with additional evidence which all counsel agreed would have been given by the intervener if he had been further examined. All the evidence including the auditor's report was considered by the single justice who followed the classification of votes adopted by the auditor, having found it to be a reasonable and comprehensive method for examination of the disputed ballots. He found the facts with respect to the description of the ballots, the markings thereon, the pasters, and the enumeration of ballots to be the same as found by the auditor. The single justice found the facts and conclusions of fact to be as stated in the auditor's report, and reserved the petitions, on the facts thus found and the pleadings, for the determination of this court.

The relevant facts thus found are, that the name of the petitioner and of one William J. Patron appeared upon the official ballots as candidates for the office of district attorney;and beneath their names was a blank space with a square to the right thereof wherein could be written the name of any other candidate desired by the voter. The name of the intervener did not appear upon the official ballot, but he was a candidate for nomination for the office of district attorney and resorted to the use of pasters to secure votes. Upon these pasters, which were identical in size, form and substance, appeared the correct name and address of the intervener with a blank square to the right thereof without other printing or designation. The electorate fully understood what it was necessary to do in order to signify their choice of a candidate whose name appeared on the ballot, because on substantially all the disputed ballots, except as to votes for candidates for district attorney, a cross was invariably and uniformly used in the appropriate place, and that those who cast these ballots clearly and plainly expressed their choice for all candidates for various offices appearing upon the ballot other than the office of district attorney. Only one paster was found on any one ballot, but pasters were applied at various places upon the disputed ballots. There was not a single designation of office to be voted for where a paster had not been placed. Some were attached between the various groups for the different offices, others in the corner, on the top, on the bottom, on the margin, and on the back of the ballot. Some were put on horizontally, others diagonally, vertically, upside down, and, in one instance, a portion only of the paster was used. On many of the disputed ballots there was no cross or mark at the end of the paster or on the ballot at either end of the paster. As to all such ballots, the auditor found that failure of the voter to locate the paster in the space designated for candidates for district attorney, whether containing a cross or not, and failure to make a cross or mark where the paster was located in the space designated for district attorney, rendered it impossible for him to draw an inference of affirmative intent on the part of the voter to vote for the intervener, and also that, so far as it was a question of fact, such ballots did not manifest the intent of the voter and that they ought not to be counted in favor of the intervener.

Further findings are, that the application of the paster under the designation of some office other than that of district attorney, or between the spaces for such designations, tended to indicate that the voter did not intend by the use of the paster to vote for the office in question, and that the reason why the voter, if intending to vote for the intervener, did not use the blank space reserved under the designation of the office, district attorney, rested upon mere conjecture, and also that the reason why the voter, having generally made crosses in the appropriate places in voting for all other candidates, did not pursue the same course when employing a paster, could not be determined. Summarily stated, the findings are that the intent of the voter could not be ascertained as to pasters attached to other parts of the ballot, and as to pasters attached under the designation of the office district attorney without any mark, and that the appearance of such ballots did not afford any satisfactory foundation for the determining intent of the voter.

Another group of ballots had a paster, accompanied or unaccompanied by a cross, located outside the space designated for candidates for district attorney or had a paster unaccompanied by a cross within the district attorney space, where a cross had been made in the square opposite the name of the petitioner. The finding as to these ballots is, that the voter had done everything necessary or proper for him to do to express his choice for the petitioner and that the use of the paster, as described, did not show a purpose to vote for two candidates, but indicated more probably that after applying the paster by mistake the voter changed his mind. Such ballots were found to express an intent to vote for the petitioner.

After making these general findings, the different classes of ballots were dealt with in detail by the auditor and the single justice. Class A consists of ballots with pasters unaccompanied by a cross and located upon the ballot in some place other than under the designation district attorney, there being no cross in the district attorney space. These ballots were found not to express any ascertainable intent on the part of the voter and to be blank votes as to the office of district attorney. Class B consists of ballots with pasters under the designation district attorney without a cross upon the paster or elsewhere under that designation. These ballots were found not to disclose the intent of the voter and hence to be blank votes as to district attorney. Class C consists of ballots with pasters, accompanied by a cross, and located elsewhere upon the ballot than under the designation district attorney, some being under the designation of another office and some outside the designation for any office, there being no cross for any candidate under the designation district attorney. These also were found not clearly to express the intent of the voter and to be blank votes as to district attorney. Class D consists of ballots where the name or a portion of the name without a street address was written under the designation district attorney, and there was a cross or mark accompanying such writing. As to these the finding was that where the correct name of the intervener was used or a name sounding substantially similar or the abbreviation of his Christian name or the correct initial...