Devine v. Wonderlich

• Decision Date: 28 June 1978
• Docket Number: No. 60823,60823
• Citation: 268 N.W.2d 620
• Parties: Francis P. DEVINE, Appellant, v. Raymond James WONDERLICH, Appellee.
• Court: Iowa Supreme Court

Page 620

268 N.W.2d 620

Francis P. DEVINE, Appellant, v. Raymond James WONDERLICH, Appellee.

No. 60823.

Supreme Court of Iowa.

June 28, 1978.

James P. Rielly, of Spayde & Rielly, Oskaloosa, for appellant.

Ralph R. Brown, of McDonald, Keller & Brown, Dallas Center, for appellee.

Considered en banc. ^*

McCORMICK, Justice.

We must here decide who won a Keokuk County board of supervisors seat in the November 1976 election. A canvass after the election showed plaintiff Francis P. Devine, a write-in candidate, defeated defendant Raymond James Wonderlich, the incumbent. Wonderlich initiated a contest and the contest court, after invalidating certain ballots, declared Wonderlich the winner. Devine appealed to the district court which, although disagreeing with the contest court as to the validity of a number of ballots, also concluded Wonderlich won the election. Upon our de novo review, we reverse and remand.

Several general principles guide our review. Contest procedures for county offices are established in Code chapter 62. The contest is tried as a civil action. §§ 62.2, 62.13, The Code. Appeal lies from the contest court to district court which hears the appeal in equity and determines anew all questions in the case. § 62.20, The Code. Hence our review is also de novo. Stamos v. Gray, 221 Iowa 145, 147, 264 N.W. 919, 920 (1936); Murphy v. Lentz, 131 Iowa 328, 330, 109 N.W. 530, 531 (1906).

Because an election contest involves the right of qualified voters to have their ballots counted for the candidate of their choice, the right of franchise is at stake. The right to vote is a fundamental political right. It is essential to representative government. Wesberry v. Sanders, 376 U.S. 1, 17-18, 84 S.Ct. 526, 535, 11 L.Ed.2d 481, 492 (1964) ("No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live."). Any alleged infringement of the right to vote must be carefully and meticulously scrutinized. Reynolds v. Sims, 377 U.S. 533, 561-562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, 527 (1964).

Statutory regulation of voting and election procedure is permissible so long as the statutes are calculated to facilitate and secure, rather than subvert or impede, the right to vote. Among legitimate statutory objects are shielding the elector from the influence of coercion and corruption, protecting the integrity of the ballot, and insuring the orderly conduct of elections. Whitcomb v. Affeldt, 319 F.Supp. 69, 76 (N.D.Ind.1970), aff'd, 405 U.S. 1034, 92 S.Ct. 1304, 31 L.Ed.2d 576 (1972). However, because the right to vote is so highly prized, these statutes must be construed liberally in favor of giving effect to the voter's choice, and every vote cast enjoys a presumption of validity. Paulson v. Forest City Community School District, 238 N.W.2d 344, 348 (Iowa 1976).

As a general rule, if a voter affixes any mark to his ballot which fairly indicates his intention to vote for a particular candidate, the vote should be counted for the candidate unless a mandatory provision of the election law is violated. 26 Am.Jur.2d Elections § 258 at 84.

Before addressing the specific issues in this case, it may be helpful to outline the factual background from which they arise.

Francis P. Devine was a Democratic candidate for Keokuk county supervisor in the November 1974 general election. He campaigned extensively, advertised his candidacy, and was listed on the ballot in that election. He was defeated by 50 votes.

In the primary election of June 1976 no Democratic candidate was on the ballot in the supervisor race for the 1977 term. However, Devine received a number of write-in votes in the primary and decided to seek the office. In late June the Democratic county central committee certified his candidacy to the county auditor. In September his candidacy was challenged because he had not been selected by a reconvened county convention pursuant to § 43.78(1)(d), The Code.

The county auditor was uncertain about whether Devine's name should be printed on the paper ballot. On October 4, 1976, he notified Devine his name would be on the Devine's problem received considerable publicity, and he campaigned and advertised extensively as a write-in candidate. After the election, the official canvass of votes showed he received 2655 votes and Wonderlich 2653. However, this result was upset by the contest court, and Devine also was declared the loser in district court. This appeal followed.

ballot, but two days later he informed him he had changed his mind. Devine commenced an injunctive action to have his name put on the ballot. The auditor had stickers printed, showing Devine's name and the office he sought, which he intended to attach to the ballot if Devine's lawsuit was successful. However, Devine lost his case, and the auditor gave the stickers to the secretary of a county taxpayers' association who distributed more than 3000 of them to other persons in the county.

The district court concluded Wonderlich won by a vote of 2638 to 2503. At issue here is the validity of 282 ballots, 272 of which Devine claims and ten of which Wonderlich claims.

The contested ballots fall into four main categories. First is a group of 108 sticker ballots. Second is a group of 77 ballots on most of which the surname "Devine" only or the name "F. Devine" was written in. Third is a group of 46 ballots in which numerous name variations exist. Fourth is a group of 51 ballots, including the ten claimed by Wonderlich, which involve other irregularities.

The district court counted 79 of the contested ballots for Devine, but Wonderlich contends it erred in doing so. Devine asserts the court should have counted all 272 of the votes he claims.

I. The sticker ballots. Although the use of pasters or stickers for voting on paper ballots is not expressly provided for by statute in Iowa, authority for their use exists under § 49.99, The Code, which provides:

The voter may also insert in writing in the proper place the name of any person for whom he desires to vote and place a cross or check in the square opposite thereto. The writing of such name shall constitute a valid vote for the person whose name has been written on the ballot without regard to whether the voter has made a cross or check opposite thereto. The making of a cross or check in a square opposite a blank without writing a name therein, shall not affect the validity of the remainder of the ballot.

The words "in writing" include "any mode of representing words or letters in general use." § 4.1(17), The Code. See Barr v. Cardell, 173 Iowa 18, 155 N.W. 312 (1915); Ray v. Hogan, 221 Mass. 223, 108 N.E. 1051 (1915), Murray v. Floyd, 216 Minn. 69, 11 N.W.2d 780 (1943).

The stickers used on the contested sticker ballots in this case were in the following form:

FOR MEMBER

BOARD OF SUPERVISORS

Term Commencing 1977

[ ] FRANCIS P. DEVINE

The sticker accurately states the office and term for which Devine was running, and the words used to do so are a precise duplicate of words printed on the ballot just above the space for writing in a candidate's name in all but the Republican and petition-candidate columns on the printed ballot.

Wonderlich alleged the 108 ¹ ballots containing these sticker votes could not be counted for Devine because the stickers have words other than Devine's name printed on them, and he alternatively alleged 52 of them could not be counted because they were not affixed in the proper place on the ballot. The district court rejected his first allegation but sustained his second. We must now determine if the court erred.

Two statutory provisions bear on this issue. First is the proscription of § 49.98 against marking a ballot in any manner for the purpose of identifying it. Second is the requirement of § 49.99 that a write-in vote be inserted "in the proper place" on the ballot.

The extra words on the stickers would invalidate the ballots if they constituted identifying marks within the meaning of § 49.98. This concept is explained in Fullarton v. McCaffrey, 177 Iowa 64, 70-72, 158 N.W. 506, 508 (1916), as follows:

The distinguishing mark prohibited by law is one which will enable a person to single out and separate the ballot from others cast at the election. It is something done to the ballot by the elector designedly and for the purpose of indicating who cast it, thereby evading the law insuring the secrecy of the ballot. In order to reject it the court should be able to say, from the appearance of the ballot itself, that the voter likely changed it from its condition when handed to him by the judges of election, otherwise than as authorized, for the purpose of enabling another to distinguish it from others. * * *

What is an identifying mark is not defined in our statute, and whether any mark on a ballot other than the cross authorized to be placed thereon was intended as a means of identifying such ballot must be determined from the consideration of its adaptability for that purpose, its relation to other marks thereon, whether it may have resulted from accident, inadvertence or carelessness or evidenced design and the similarity of the ballot with others cast and the like. In other words, the court, in deciding the issue * * * may, and should, consider all the evidence and circumstances bearing thereon precisely as in passing on any other issue.

Electors are not presumed to have acted corruptly and identifications only which may fairly be said to be reasonably suited for such purpose, and likely to have been so intended, will justify the rejection of the ballot.

See also Headington v. North Winneshiek Comm. School Dist., 254 Iowa 430, 117 N.W.2d 831 (1962); Beck v. Cousins, 252 Iowa 194, 106 N.W.2d 584 (1960).

The statute barring identifying marks originated from a desire to guard against the possibility of a vote seller indicating to a vote buyer in advance how his ballot could...