Howard v. Rowland

• Decision Date: 29 September 1953
• Citation: 261 S.W.2d 280
• Parties: HOWARD v. ROWLAND et al.
• Court: United States State Supreme Court — District of Kentucky

Page 280

261 S.W.2d 280

HOWARD v. ROWLAND et al.

Court of Appeals of Kentucky.

Sept. 29, 1953.

J. S. Greene, Jr., Harlan, for appellant.

J. B. Johnson, Harlan, for appellees.

CULLEN, Commissioner.

Following the August 1953 primary election, S. H. Rowland, Jr., was certified to be the winner of the Republican nomination for the office of county judge of Harlan County, by a margin of nine votes over his opponent, Orville M. Howard. Howard instituted a recount proceeding, as a result of which Rowland was declared still to be the victor, but by a margin of only one vote. Howard has appealed from the judgment in the recount case.

It is necessary first to dispose of the contention of Rowland that a recount was not authorized because the petition did not allege that the integrity of the ballots had been preserved, and because there was not adequate proof of the integrity of the ballots.

As concerns the necessity to allege integrity of the ballots, we do not find any such requirement in the statute or in our decisions. The statute, KRS 122.060, requires proof of integrity, but the only requirement in the way of pleading is a simple petition requesting a recount. Both parties know, from the statute, that the integrity must be proved, so an allegation of integrity would serve no useful purpose. The decision in Ferguson v. Gregory, 216 Ky. 382, 287 S.W. 952, supports our conclusion that pleading the integrity of the ballots is not necessary.

As concerns the adequacy of the proof of integrity of the ballots, there was ample proof that the boxes were carefully guarded, day and night, from the time the election commissioners completed their work of counting the ballots until the boxes were delivered to the circuit court for the purpose of the recount. The proof shows that there was no opportunity for the boxes to be tampered with, and there was nothing about the ballots themselves to indicate any tampering. The only suggestion of lack of integrity arises from the fact that when the ballot boxes were delivered to the circuit court for the purpose of the recount, some of the boxes did not have all three of the lid locks securely locked, and on two or three of the boxes the vent lock was not fastened. The county clerk's deputies who removed the boxes to the county clerk's office after the election commissioners had completed the original count testified that at that time all of the boxes were securely locked, and therefore the argument is made that some of the boxes must have been tampered with notwithstanding the positive evidence of lack of opportunity for tampering. The county clerk's deputies did not testify that they carefully checked each lock on each box when they picked them up to take them to the county clerk's office, and we think a reasonable interpretation of their testimony is that the boxes all appeared to be securely locked. In any event, we think the evidence was sufficient to support the chancellor's finding that the integrity of the ballots was properly preserved.

Another contention of Rowland, which if decided in his favor would dispose of the case, was that the ballots from five precincts should not have been counted because in those precincts the election officers did not sign the stub books so as to enable a determination to be made from the election papers as to who actually were the election officers in those precincts. The argument is that under our decision in Hogg v. Howard, Ky., 242 S.W.2d 626, a ballot may not be counted, in a simple recount proceeding, unless it appears from an examination of the stub book or other election papers that the person whose name is signed on the back of the ballot as a purported judge of the election actually served as a judge of the election. The argument misconstrues the holding in the Hogg case, which was that the validity of a judge's signature on the back of a ballot cannot be questioned, in a recount proceeding, by parol evidence or by evidence extrinsic of the stub book or other 'election papers.' Applying that holding to the question here, if there is nothing in the stub book or other election papers to show that the person whose name is on the back of the ballot did not serve as a judge of the election, the ballot must be accepted as valid in a recount proceeding. Whether public election records in the office of the county clerk, such as the record of appointments of election officers, are 'election papers' within the meaning of the Hogg case, it is unnecessary for us now to decide, because no effort was made here to attack the signatures on the back of the ballots by resort to such records. There is no statutory requirement that the officers of election sign the stub book, and nothing in the Hogg case would require that voters be disfranchised by reason of the lack of such signing.

We now take up the contentions of Howard, which have to do with the decisions of the trial judge on various individual ballots. We will refer to the ballots by their exhibit numbers.

Howard's first contention concerns certain ballots on which there was some question as to the voter's intent to indicate a choice in the county judge's race. Ballot No. 21, which was not counted, had an ink blot in the square opposite Howard's name, and pencil crosses in one square in each of the other races. It appears to us that the voter attempted to use the stencil in the judge's race (which was first on the ballot), and upon finding that the stencil made a blot from too much ink, he resorted to a pencil to complete marking the ballot. We think this ballot should have been counted for Howard, and Rowland so agrees in his brief.

Ballots Nos. 3, 89 and 135, which Howard contends should not have been counted for Rowland, were somewhat similar to No. 21 in that they had an ink blur in the square in the county judge's race, with reasonably clear stencil marks in the other races. We think they properly were counted for Rowland.

Howard's second contention concerns two ballots on which there is a question involving the judge's signature on the back. He argues that Ballot No. 11 should not have been counted for Rowland, because the person whose name is signed on the back of the ballot as a judge of the election is not one of the persons listed in the stub book as an officer of election, but is a person shown in the stub book as a voter to whom a ballot was issued. Rowland concedes that this ballot should not have been counted.

Ballot No. 134, which was counted for Rowland, bears the name 'Lily Bunch' on the back. Most of the other ballots from the same precinct bear the name 'Lily Moses' on the back, and the stub book indicates that Lily Moses was an election officer in that precinct. Under Hogg v. Howard, Ky., 242 S.W.2d 626, this ballot should not have been counted for Rowland, and he so concedes in his brief.

Howard's remaining contentions have to do with ballots which were questioned on the ground that they bore distinguishing marks, in violation of KRS 118.320, by means of which the identity of the voter might be determined. Howard maintains that 10 ballots voted for him were erroneously rejected by the lower court because of alleged distinguishing marks, and that 25 ballots voted for Rowland should have been rejected because of distinguishing marks.

Before undertaking a discussion of the individual ballots, we think it may be useful to review some of our decisions dealing with the question of distinguishing marks. In Campbell v. Little, 251 Ky. 812, 66 S.W.2d 67, the basic rule was laid down that a mark 'reasonably calculated' to enable identification of the voter will invalidate the ballot, regardless of the voter's intent in making the mark or permitting it to be made. In Wright v. Crase,...