Hanson v. Emanuel

• Decision Date: 02 May 1941
• Docket Number: No. 32897.,32897.
• Citation: 210 Minn. 271,297 N.W. 749
• Parties: HANSON v. EMANUEL.
• Court: Minnesota Supreme Court

297 N.W. 749

210 Minn. 271

HANSON v. EMANUEL.

No. 32897.

Supreme Court of Minnesota.

May 2, 1941.

Appeal from District Court, Itasca County; Alfred L. Thwing, Judge.

Election contest by Tom Hanson against Domenic Emanuel. From an order denying a new trial after findings in favor of the contestant, the contestee appeals.

Order reversed, and judgment ordered in favor of contestee.

See, also, 297 N.W. 176.

James V. Abate and I. R. Galob, both of Hibbing, for appellant.

J. C. Henley, of Hibbing, for respondent.

PETERSON, Justice.

This is a contest of an election of trustee of the village of Keewatin. The election was held on December 3, 1940, to fill the offices of clerk and trustee. On the printed ballots were the names of two candidates for clerk and two for trustee with blank spaces for writing in names for each office. Contestant and contestee were candidates for trustee. In addition to the candidates whose names were on the printed ballot, one John Jovanovich, for whom 98 ballots were cast, was a sticker candidate for clerk.

The village canvassing board found that contestee received 483 votes and contestant 478 votes and declared the contestee elected. The inspectors appointed by the district court to make a recount found that contestee received 483 and contestant 481 votes.

The district court disallowed certain votes cast for both candidates and found that contestant received 474½ votes and contestee 467½ votes and ordered judgment that the contestant was duly elected. Contestee contends that 13 votes for him were erroneously rejected. Contestant claims that one vote for him was erroneously rejected and that 12 votes for contestee were erroneously counted. The facts with respect to the disputed votes will be stated in connection with the consideration of them.

1. There is no express statutory provision that a ballot containing a distinguishing mark is to be rejected. The reason for rejecting a ballot upon which the voter has placed a distinguishing mark is that such a mark identifies the ballot and affords means for the corruption and intimidation of the voter in violation of the letter and spirit of the Australian ballot law, which provides for secrecy of the ballot as a safeguard against such evils. Pennington v. Hare, 60 Minn. 146, 62 N.W. 116. In some states there are statutes declaring all ballots illegal and void which bear distinguishing marks. Sego v. Stoddard, 136 Ind. 297, 36 N.E. 204, 22 L.R.A. 468.

Our statute seeks to give effect to the intention of the voter. By prescribing rules for the counting of certain ballots in which there is irregularity it implicitly provides that mere irregularity shall not vitiate the entire ballot. 3 Mason Minn. St.1940 Supp. § 601-6(10)k (formerly 1 Mason Minn.St.1927, § 454) provides that all ballots shall be counted for the persons for whom they were intended, so far as such intent can be ascertained from the ballots themselves, and that, among others, the following rules shall be observed in determining such intent:

Subd. 2. The name of a person written in the proper place by a voter shall be counted for such person although no cross mark is made.

Subd. 3. When a cross mark is made out of its proper place but on or near a name, the vote shall be counted as intended.

Subd. 5. Abbreviations and misspelling of the names of candidates shall be disregarded if it can be ascertained from the ballot for whom it was intended.

Subd. 6. The ballot shall be counted for a part of the candidates where the voter's choice for a part only is ascertainable.

Subd. 8. The intention of the voter shall be given effect in the case of erasures and attempted erasures.

Decisions can be found in other jurisdictions holding all the foregoing irregularities to be distinguishing marks and grounds for rejecting the entire ballot.

The construction of the statute governing elections has been adopted which gives effect to the intention of the voters and prevents the violation of secrecy of the ballot. In Bloedel v. Cromwell, 104 Minn. 487, 116 N.W. 947, 948, we said: "Mere irregularities in the marking of ballots, such as neither create uncertainty as to the voter's choice nor serve as distinguishing signs, violative of secrecy, are not cause for rejecting ballots. * * * It is otherwise where the marks used are inappropriate to express the voter's intention, or are so distinct and individual in character as to furnish means of identifying the ballot as that of the particular voter." (Italics supplied.)

Absent, as here, a statute enumerating certain marks as illegal and distinguishing regardless of intent, a distinguishing mark on a ballot which requires rejection of the entire ballot is one that is placed there deliberately by the voter with intention to identify the ballot after the vote is cast and not as the result of an honest effort on the part of the voter to indicate his choice of candidates. The test is whether or not a plausible reason for the mark may be suggested consistent with honesty and good faith of the voter. Jennings v. Brown, 114 Cal. 307, 46 P. 77, 34 L.R.A. 45; Hodgson v. Knoblauch, 268 Ill. 315, 109 N.E. 338, Ann.Cas.1917E, 653; Winn v. Blackman, 229 Ill. 198, 82 N.E. 215, 120 Am.St.Rep. 237; Parker v. Orr, 158 Ill. 609, 41 N.E. 1002, 30 L.R.A. 227; Parker v. Hughes, 64 Kan. 216, 67 P. 637, 56 L.R.A. 275, 91 Am.St.Rep. 216; Lankford v. Gebhart, 130 Mo. 621, 32 S.W. 1127, 51 Am.St.Rep. 585; White v. Slama, 89 Neb. 65, 130 N.W. 978, Ann.Cas.1912C, 518; McMahon v. Polk, 10 S.D. 296, 73 N.W. 77, 47 L.R.A. 830.

All marks and irregularities are not to be taken as identification of a ballot and grounds for rejecting it. The Illinois court in considering the question under a statute similar to ours in Hodgson v. Knoblauch, 268 Ill. 315, 109 N.E. 338, 339, Ann.Cas.1917E, 653, said:

"Any one of an infinite variety of marks may be determined upon for the purpose of identification and may constitute a distinguishing mark, and, on the other hand, marks may be so connected with an apparently honest effort of the voter to indicate his choice of candidates that it is evident they were not made for the purpose of identifying the ballot and should not be regarded as distinguishing marks. The body of electors includes not only the well-informed, capable, and careful voter, but also the ignorant, incapable, and careless voter, and if a mark is reasonably connected with an effort of the voter to cast his ballot and can be reasonably explained, consistently with an honest purpose on his part, it is not a distinguishing mark and the ballot should not be rejected."

First we shall consider in paragraphs (a) to (f) the ballots which were cast for contestee and which he claims were erroneously rejected as bearing distinguishing marks. Then we shall consider in paragraphs (g) to (p) the ballots which contestant questions and which he claims supports the decision. See Pye v. Hanzel, 200 Minn. 135, 273 N.W. 611; Prenevost v. Delorme, 129 Minn. 359, 152 N.W. 758.

(a) The first group consists of five ballots, Exhibits G-1, 3, 4, 11, 40, on which stickers for the office of clerk were misplaced either just above or just below the names of the candidates printed thereon. The stickers were prepared before the election for use for voting. The name of John Jovanovich for clerk with a cross mark before it in a square was plainly printed on them. The stickers were a little wider than the space provided for their use or writing in the names of candidates. No vote was marked for either of the candidates whose names appeared on the printed ballots. The stickers were apparently used for the sole purpose of voting for Jovanovich as the sticker candidate for clerk. There is no basis for any inference that they were to be used for any other purpose, much less that they were to be used to identify the ballots.

A sticker is not per se an identification mark. Quinn v. Markoe, 37 Minn. 439, 35 N.W. 263. Its use is authorized by law. Snortum v. Homme, 106 Minn. 464, 119 N.W. 59. The question before us is not whether the sticker votes should be counted for Jovanovich as the sticker clearly indicates was the voter's intention, but whether the misplacing of the sticker on the ballot constitutes a mark of identification. The stickers were all alike. One no more than another was a distinctive mark. The misplacement was no more a mark of identification in one case than in another. The evidence all points toward irregularity, not wrongdoing.

In Murray v. Waite, 113 Me. 485, 94 A. 943, 945, Ann.Cas.1918A, 1128, the court held that while certain misplaced stickers were not to be counted as votes, they did not constitute distinguishing marks; but that where the intention of the voter was clear, as where a double sticker "that is two stickers bearing the same name, and separated except at the left hand end," were placed nearly over the name of the same candidate for alderman, the ballot was to be counted.

The only permissible conclusion is that the misplacement of the stickers was an irregularity and not an identification mark. Hence, the court erred in holding that the five ballots on which there were sticker votes should not be counted for contestee.

(b) The cross outside the square opposite a candidate's name on Exhibit G-37 is not a distinguishing mark. The presence of the cross is explainable as an attempted vote for the candidate, since no other mark was made for any candidate for the same office. Hodgson v. Knoblauch, 268 Ill. 315, 109 N.E. 338, Ann.Cas. 1917E, 653; 18 Am.Jur., Elections, § 198, p. 315, note 9.

In Thompson v. Redington, 92 Ohio St. 101, 110 N.E. 652, Ann.Cas.1918A, 1161, the placing of a cross mark to the left of a blank space on a ballot, which was really not a vote for any candidate, was held, absent proof aliunde, not to be a distinguishing mark which prevents the counting of the ballot for a candidate for another office before whose name a cross mark was properly placed....