Duffy v. Mortenson, No. 18197

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

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

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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

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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...