Duffy v. Mortenson

• Decision Date: 08 March 1993
• Docket Number: No. 18197,18197
• Citation: 497 N.W.2d 437
• Parties: Bernard E. DUFFY, Plaintiff and Appellee, v. Curtis D. MORTENSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 437

497 N.W.2d 437

Bernard E. DUFFY, Plaintiff and Appellee, v. Curtis D. MORTENSON, Defendant and Appellant.

No. 18197.

Supreme Court of South Dakota.

Argued Jan. 17, 1993.

Decided March 8, 1993.

Patrick Duffy, Daniel F. Duffy, Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiff and appellee.

Curtis D. Mortenson, pro se.

SABERS, Justice.

At the general election of November 3, 1992, there was a contest for Stanley County State's Attorney. Bernard E. Duffy (Duffy), a Democrat, and Curtis D. Mortenson (Mortenson), a Republican, were the candidates for that office. An electronic tabulation of the votes resulted in Mortenson receiving 703 votes and Duffy receiving 702 votes. ¹ At the request of Duffy, a recount board was appointed under SDCL ch. 12-21 to recount the votes. The recount board met on November 23, 1992 and determined that Mortenson and Duffy each received 705 votes. Duffy disputed two ballots which the recount board had determined to be votes for Mortenson. The recount board certified these two ballots as disputed ballots ² under SDCL 12-21-33.

Duffy filed a Petition for Writ of Certiorari which the circuit court granted. After viewing the two disputed ballots under a 40 power stereoscope, the court found that all four corners of the chad above position number 88 ³ on Exhibit 2 had been broken and the chad was partially dislodged, hanging under the ballot. The court counted this vote for Mortenson.

The chad above position number 88 on Exhibit 4, however, had not been dislodged from the ballot. While two corners of the chad had been broken, two remained intact and fewer than three sides of the chad were broken. In concluding that it was impossible to determine whether the voter intended to vote for position number 88 or merely placed the stylus on the chad, hesitated, and then moved on to another contest on the ballot, the court stated:

[w]here two of the four corners of the chad remain intact and two of the four corners are broken, and only one side of the rectangular hole is broken, it is equally possible that the broken corners are the result of hesitation or inadvertence or that the broken corners are the result of the voter's wish to vote for the candidate.

The court issued a Memorandum Decision ⁴ concluding that the ballot marked as Exhibit 2 should be counted for Mortenson, and the ballot marked as Exhibit 4, which is the subject of this appeal, should not be counted for Mortenson.

As a result of the trial court's holding, Duffy received 705 votes and Mortenson received 704 votes. Mortenson appeals, raising the following issue:

Whether it is impossible to determine a voter's intent under South Dakota law when a chad on a punch card ballot is physically disturbed or altered with broken perforations and an indentation.

Scope of Review

This court's scope of review in examining ballots is found in SDCL 12-21-57 which provides in part that "the court may review completely all of the proceedings ... relative to such recount ... and correct any errors made in the determination of questions as to validity of ballots, and in computation of returns, and any errors which may be manifest from such certifications." Accordingly, our scope of review is de novo. Thorsness v. Daschle, 285 N.W.2d 590, 592 (S.D.1979).

Decision

In construing the disputed ballot (Exhibit 4) to determine the effect of this altered chad, this court is governed by South Dakota statutory and administrative rules of construction, as well as stare decisis. Stellner v. Woods, 355 N.W.2d 1, 3 (S.D.1984). "It has long been the rule in this state that it is the duty of courts and election judges to 'determine and carry out the intent of the elector when satisfied that the elector has endeavored to express such intent in the manner prescribed by law or by directions found upon the ballot[.]' " Stellner, 355 N.W.2d at 2 (quoting Ward v. Fletcher, 36 S.D. 98, 103, 153 N.W. 962, 964 (1915)). To assist this court in determining and carrying out the intent of the voter, SDCL 12-20-7 provides:

Any ballot or part of a ballot from which it is impossible to determine the voter's choice shall be void and shall not be counted. When the marks complying with Secs. 12-18-16 to 12-18-21, inclusive, on a ballot are sufficiently plain to gather therefrom a part of the voter's intention and there are no marks placed on the ballot contrary to Sec. 12-18-22 it shall be the duty of the judges of election to count such part.

(Emphasis added.)

According to the plain language of this statute, a vote shall be counted if the voter's intent is sufficiently plain and only if it is impossible to determine the voter's choice, shall any ballot or part thereof be void and not counted. This standard is reiterated in the administrative rules adopted by the State Board of Elections. We have previously held that these rules are binding and have the force of law. Stellner, 355 N.W.2d at 3 (citations omitted); Thorsness, 285 N.W.2d at 591. ARSD 5:02:16:20 provides:

If in accordance with this chapter it is impossible to determine the voter's intent on any ballot or part of a ballot, that portion of the ballot shall be void and shall not be counted as to those races for which the voter's intent cannot be determined. (Emphasis added.)

Additionally, ARSD 5:02:16:16 provides:

It shall be the duty of the [election] judges to use their best efforts to determine the voter's intent in marking the ballot. This section shall be construed liberally by the judges to assure that each person's vote is counted.

The statutes and rules are clear. It is not the policy of the State of South Dakota to disenfranchise its citizens of their constitutional right to vote. Rather, the policy of the state is to count each person's vote in an effort to determine the true and actual intent of the voters. See also SDCL 12-21-1. ⁵ In tabulating votes and interpreting the manner in which the crosses (X) were made, this court has stated that "[t]he rule in this regard should be liberal so as not to disenfranchise a voter because his hand was unsteady or his vision impaired.... That a voter displays a restrained enthusiasm in marking his ballot ... should not render his effort in vain." Warne v. Noonan, 76 S.D. 426, 428, 80 N.W.2d 74, 75 (1956). Only if it is impossible to determine the voter's intent is a part of a ballot void and not counted. ⁶ We presume every marking found where a vote should be to be an intended vote unless the contrary is clear. Ward v. Fletcher, 36 S.D. 98, 103, 153 N.W. 962, 964 (1915). "Courts and election judges ... should presume every marking found where the X should be to be a marking intended as a X unless the contrary is clear." Id.

There is clearly an alteration on Mortenson's chad # 88. ⁷ Two of the four corners of this chad have been broken and one side is separated. The area between the perforations is visibly separated and the chad is indented. Additionally, when this ballot is held up to the light, light clearly passes through the separated side of the partially punched chad. Therefore, we presume that this alteration was intended as a vote for Mortenson. The contrary is not clear because Duffy's chad # 86 was not altered in the slightest.

Under these facts, it is not impossible to determine this voter's intent. In fact, it is not only possible, but likely this voter intended to vote for Mortenson. Therefore, we hold that this vote counts for Mortenson.

We reverse that portion of the judgment concluding that Exhibit 4 is not counted for Mortenson. Because this causes the election to result in a tie, we remand to the circuit court with directions that further proceedings be conducted pursuant to SDCL 12-21-43. ⁸ Stellner, 355...