Cox v. Howard
| Decision Date | 20 October 1953 |
| Parties | COX v. HOWARD et al. |
| Court | United States State Supreme Court — District of Kentucky |
Louis Cox, Allen Prewitt, Frankfort, for appellant.
William A. Young, Frankfort, for appellees.
In the primary election held August 1, 1953, J. R. Cox and Vernon T. Howard were the only candidates for the Democratic nomination for the office of county tax commissioner of Woodford County. Cox won by 17 votes and on August 7 Howard filed a 'petition for declaration of rights and recount of primary election ballots' naming Cox and the members of the county board of election commissioners defendants. After answers were filed and proof heard before the court, the judge concluded 'petitioner's request or prayer for declaratory relief is not well-taken and that same should be dismissed,' but found Howard had won by 11 votes, and Cox appeals.
The petition avers that in precinct No. 5 a total of 148 ballots were cast, none of which were signed on the back by the election officers of that precinct before they were cast; that Cox received 88 and Howard 60 of these ballots; that on August 3, after all ballots in the election had been counted, it was discovered these 148 ballots had not been signed as provided by KRS 118.280, and the county board of election commissioners had the election officers of this precinct reassemble in the courtroom where the count was held and sign these ballots. The petition further asked a recount of all votes cast in the primary and that the 148 ballots be excluded and Howard be declared the nominee. On August 7 the court entered an order fixing bond and directing all ballot boxes and papers used in connection with the election be delivered to the circuit court clerk and that the recount start August 14.
The answer of Cox pleaded: 1. The court lacks jurisdiction in a suit for declaration of rights to recount the ballots; 2. the petition failed to state a claim against Cox upon which relief may be granted; 3. a general denial of the averments of paragraphs 4 to 9, inclusive, of the petition relating to the signing and counting of the ballots in the fifth precinct.
The answer of the election commissioners denied the legal conclusions of the petition that these ballots were not signed as required by KRS 119.220 and 118.280, and then averred that the ballots in the fifth precinct by an oversight were not signed on the day of the primary but on August 3 at the direction of the election commissioners.
In his findings of fact the judge stated that from the appearance of the ballot boxes when opened and from the testimony of Lelia Nave, the clerk who had them in charge, he determined that the boxes had not been tampered with and their integrity had been sufficiently preserved; that the recount made by the court tallied with the count made by the election commissioners except 22 ballots counted by them were rejected by the court, and two ballots rejected by the commissioners were counted by the court. He then threw out the 148 ballots in No. 5 because they were not signed as required by KRS 118.280 and held Howard nominated by 14 votes. He further held as a matter of law 'petitioner's request or prayer for declaratory relief is not well-taken and that the same should be dismissed.'
The proof shows only 16 boxes were counted on the night of the primary; that the box in precinct No. 17 was not finished and the circuit court clerk, acting as county clerk since the latter was a candidate, put the ballots from precinct No. 17 and the two uncounted boxes in her vault and locked it. The sixteen boxes which had been counted were left unguarded in the circuit courtroom until the count was resumed the following Monday. It was not shown this countroom was locked over Sunday and the proof tends to show it was not locked and the public had, or could easily obtain, access to it. According to Mr. Colvin Rouse, a day or two after the count was completed he went into the circuit courtroom and the ballot boxes were still there. He further testified that some of the boxes 'have become out of shape and beat up out of use,' and the lids of some of them were so sprung that on a previous occasion he saw a passerby insert some papers in a ballot box just to show it could be done.
On this appeal Cox insists the signing of the ballots in precinct No. 5 on August 3 by the election...
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