Fullarton v. McCaffrey

• Decision Date: 29 June 1916
• Docket Number: 31108
• Parties: W. R. FULLARTON, Appellant, v. J. J. MCCAFFREY, Appellee
• Court: Iowa Supreme Court

158 N.W. 506

177 Iowa 64

W. R. FULLARTON, Appellant, v. J. J. MCCAFFREY, Appellee

No. 31108

Supreme Court of Iowa, Des Moines

June 29, 1916

Appeal from Dubuque District Court.--ROBERT BONSON, Judge.

CONTESTANT was an independent candidate for the office of coroner of Dubuque County at the general election of 1914, and the incumbent, the regularly nominated candidate on the democratic ticket. The latter was declared elected, by the board of supervisors, whereupon a contest was instituted and the incumbent declared elected, by the court of contest. Contestant appealed to the district court, which, on hearing found the incumbent to have been elected. Contestant appeals.

Reversed.

Hurd Lenehan & Kiesel, for appellant.

Nelson & Duffy, for appellee.

LADD J. EVANS, C. J., GAYNOR and SALINGER, JJ., concur.

OPINION

LADD, J.

I.

The parties hereto were rival candidates for the office of coroner of Dubuque County. Four candidates contested for the democratic nomination at the primary, but no one received 35 per cent. of the vote cast. McCaffrey was nominated at the county convention and Fullarton became an independent candidate, having his name put on the ballot by petition. In the 34 precincts, 3,999 ballots were marked for McCaffrey and 3,848, for Fullarton. None of these are in dispute. Besides these, there were 203 ballots. Of these, the contestant offered 188 in evidence. To each of these, incumbent objected, for that "it contained marks of identification, erasures, is defaced and shows marks in squares opposite more than one name for coroner." Five ballots were offered in evidence by the incumbent, to which various objections were interposed, and ten ballots were not offered by either party. By stipulation, the original ballots in dispute have been certified to this court for inspection. Two questions are involved: (1) Whether crosses appeared in more than one square before a candidate for coroner, and (2) whether any of the ballots bore identifying marks. Before passing on these objections to the several ballots, the statutes bearing thereon may as well be referred to.

Under the Australian ballot system, the elector is provided with a ballot by one of the judges of election, and he can make use of no other, and this he prepares "by placing a cross in the square opposite the name of each candidate for whom he desires to vote." Section 1119, Code Supp., 1913.

"When only one candidate . . . is to be elected, if the voter marks in squares opposite the names of more than one candidate therefor, such vote shall not be counted for such office. . . . If for any reason it is impossible to determine the voter's choice for any office to be filled, his ballot shall not be counted for such office. Any ballot marked by the voter in any other manner than as authorized in this chapter, and so that such mark may be used for the purpose of identifying such ballot, shall be rejected." Sec. 1120, Code Supp., 1913.

"Any voter who shall spoil his ballot may, on returning the same to the judges, receive another in place thereof, but no voter shall receive more than three ballots, including the one first delivered to him." Sec. 1121, Code Supp., 1913.

The attorney general is required by Section 1111 of the Code to prepare a card of instructions, and copies of this are caused to be printed and posted in the several voting precincts of the state. These, it seems needless to say, do not supersede the statutes, but are intended to guide the voter, and especially to enable him to avoid any mistake in expressing his choice, and prevent him from loading his ballot with identifying marks. Thus in the "Card of Instructions" issued, voters were warned that "any erasure or identification marks, or otherwise spoiling or defacing a ballot, will render it invalid," and directed what to do in such event. Of course this is not correct in all cases, but the voter is not ordinarily well enough informed to say what will be deemed an identifying mark, and the only safe course for him to pursue is to surrender such a ballot and avoid any chance of having his vote rejected. But whether any of these, as they appear on the ballot, constitutes an identifying mark is not to be determined from the card of instructions, and the card had no place in the evidence. The ballots necessarily are the only evidence of what was intended by anything placed thereon by the voter, and it is often difficult to determine whether any particular mark was designed or might be used for identification as the ballot of the person casting it. As said in Whittam v. Zahorik, 91 Iowa 23, 59 N.W. 57:

"It will not do to say that all ballots which bear marks not authorized by law should be rejected. All voters are not alike skillful in marking. Some are not accustomed to using a pen or pencil, and may place some slight mark on the ballot inadvertently, or a cross first made may be clumsily retraced. It is evident that in such cases, and in others where the unauthorized mark is not of a character to be used readily for the purpose of identification, the ballots should be counted, but where the unauthorized marks are made deliberately, and may be used as a means of identifying the ballot, it should be rejected."

In Voorhees v. Arnold, 108 Iowa 77, 78 N.W. 795, Granger, J., speaking for the court, said:

"The unauthorized marks, to be identifying, must be deliberately made, as we said in the Whittam case, and not be merely accidental, or the result of inexperience in the use of pen or pencil, or a mere effort to correct what may be thought to be an improper marking. . . . On some of the ballots in this case, where there is a wide departure from the legal requirements, we may safely say that the unnecessary marks could not be used for identification, because the maker could never describe them to another so far as to permit of their use for that purpose. In other cases, it is doubtful whether they could be so used or not. In such cases, the question is one of fact for the jury, because there might reasonably exist differences of opinion as to the fact. In such cases, the ballot should be put in evidence, and the jury permitted, under instructions, to determine whether there has been a deliberate departure in the marking, and in a way that it might be used to identify the ballot."

In Kelso v. Wright, 110 Iowa 560, 81 N.W. 805, it was observed that:

"What constitutes an identification mark upon a ballot is generally a question of fact for the trial court, and its finding, or the finding of the jury, if the case is submitted to a jury, is conclusive on appeal."

See also Morrison v. Pepperman, 112 Iowa 471, 84 N.W. 522; Spurrier v. McLennan, 115 Iowa 461, 88 N.W. 1062.

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 probably 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. The law does not contemplate that the elector will see his ballot after it is cast. The design of the Australian ballot law is not only to free the voter from intimidation, by making his way of voting known only to himself, but to close the door securely, as nearly as human ingenuity can, against making merchandise of his vote. As said in Sego v. Stoddard, 136 Ind. 297 (22 L. R. A. 468, 36 N.E. 204):

"The idea was not, as appellant's counsel seem to think, to so provide as to render it impossible for the purchased or bribed voter to afterwards identify the ticket he voted by looking at and inspecting it, because the other provisions of the act provide for a destruction of the ballots after they are counted, and before anybody except the officers can see them; but it was to guard against the possibility of the vote seller's indicating to the buyer in advance how his ballot would be distinguished from the other ballots in the box, so that the buyer or his agent, who may be one of the election officers, could tell, when the bribed voter's ballot was reached in the count, that such bribed voter had carried out his contract. It was believed that, if it could be rendered impossible for the buyer or his agent to identify the ballot voted by the purchased voter from a mere indication beforehand how it should be marked, the desired end would be reached; because it was believed that, as a general thing, a vote buyer would not risk his money on a vote seller without some assurance other than the mere word of the bribed voter."

See also Winn v. Blackman, 229...