Kiehne v. Atwood

• Decision Date: 05 December 1979
• Docket Number: No. 12478,12478
• Parties: Kalvin Zeno KIEHNE, Plaintiff-Appellee, v. Robert A. ATWOOD, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 123

604 P.2d 123

93 N.M. 657

Kalvin Zeno KIEHNE, Plaintiff-Appellee, v. Robert A. ATWOOD, Defendant-Appellant.

No. 12478.

Supreme Court of New Mexico.

Dec. 5, 1979.

David L. Norvell, Albuquerque, for defendant-appellant.

Martin, Martin & Lutz, William L. Lutz, Las Cruces, for plaintiff-appellee.

OPINION

EASLEY, Justice.

Kalvin Zeno Kiehne, plaintiff-appellee, sued Robert A. Atwood, defendant-appellant, to invalidate the latter's election as Catron County Clerk. The trial court held Atwood's election invalid and declared Kiehne the winner. Atwood appeals. We affirm in part and reverse in part.

Since Atwood's winning margin was two votes, we could dispose of this cause by affirming the invalidation of any three of the votes. Normally this Court exercises judicial restraint by addressing only those issues the answers to which will conclude the dispute between the parties. However, numerous important questions of broad public interest involving election procedures are raised in this case. We decide each of these in order to more firmly establish the procedures for future elections. The issues are:

1. whether, at an election contest trial, a voter who has cast an illegal vote has a privilege to refuse to reveal for whom he voted;

2. whether there is substantial evidence to sustain the finding of the trial court that six of the voters were not residents of Catron County, thus voiding their ballots;

3. whether an absentee ballot is void when a voter claims in his application that he would be absent from the county because of his "duties, occupation, business or vacation," but had no intent or reason at the time of application to be gone from the county;

4. whether, if the voter finds himself in the county on election day after having cast an absentee ballot on the basis that he would be absent, his vote is to be considered as illegal;

5. whether absentee votes may be cast at the County Clerk's office at times other than regular office hours;

6. whether it is mandatory that the voter swear to and sign the affidavits on the application and the absentee ballot in the actual presence of the County Clerk before the Clerk can notarize the documents;

7. whether it is illegal for any person, other than the voter or the mailman, to deliver the completed ballot to the Clerk's office; and

8. whether, in the absence of any statutory provision regarding assistance to an absentee voter in marking his ballot, it voids the vote if the County Clerk, whose husband's name is on the ballot as a candidate for office, assists the voter.

In the November 7, 1978 general election, Atwood, the Democrat, received 684 votes, two more than Kiehne, the Republican, who received 682. Kiehne contested the election in the district court claiming that numerous illegal votes had been cast for Atwood. The matter was tried to the judge, who agreed with Kiehne and ruled that he has the legal right to the office. The specific findings and conclusions as to each point will be discussed in conjunction with that point in the order set forth above.

1. Ballot Secrecy.

At trial Atwood objected to voters stating for whom they voted in the Clerk's race on the grounds that it violated the principle of secrecy of the ballot. He asserted that only in a case of fraud could a voter be forced to disclose this fact. Thirty-seven voters testified, some of whom objected to identifying the person for whom they voted while others made no objection. The trial court ordered the objectors to disclose the information.

Kiehne claims that a person who votes illegally cannot invoke a privilege against revealing for whom he voted and contends that such privilege, in any event, would belong to the voter and subject only to his assertion, rather than being available to Atwood.

Article VII, Section 1, of the Constitution of New Mexico calls for enactment of laws to secure the secrecy and purity of elections. A multitude of statutes in the election code reinforce this significant mandate.

The sanctity of a New Mexican's ballot is undoubtedly one of his most cherished and jealously-guarded rights. It is one of the fundamental civil liberties that form the bulwark against the erosion of a democratic government. Compromising the secrecy of the ballot is not to be tolerated except in cases of paramount public importance. In election contests two major public interests are often balanced against each other: the secrecy of the ballot versus the purity of elections. The choice between the two is not to be lightly made. The purity of elections is the public interest which sometimes outweighs the individual's right to have his ballot kept secret.

In Carabajal v. Lucero, 22 N.M. 30, 158 P. 1088 (1916), this Court considered whether voters may be compelled to testify about choices between candidates in an election and stated:

(t)o permit the returns of an election, honestly and fairly conducted, to be overturned by the testimony of the voters is to destroy the safeguards thrown around the secrecy of the ballot, designed to procure an honest and free expression of the voter's choice without intimidation or coercion by any one.

Id. at 42, 158 P. at 1092-1093. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it. Hyde v. Bryan, 24 N.M. 457, 462, 174 P. 419, 421 (1918).

However, this Court has faced this precise question and unequivocally decided that an illegal voter has no privilege against testifying as to the persons for whom he voted. Montoya v. Ortiz, 24 N.M. 616, 175 P. 335 (1918). As in the present case, the election contest there was over the choice of a county clerk. Ortiz, the Democratic candidate, was first thought to be the winner over Montoya, the Republican candidate. Montoya claimed that several persons had voted illegally. He called them to the stand and asked for whom they voted. The trial court did not consider this testimony, theorizing that it was not competent for an illegal voter to reveal these facts in court.

This Court, on appeal, ruled that the trial court had been led astray by Carabajal, Supra, and that the case was not controlling for the reason that no question was raised in Carabajal regarding Illegal votes. The same reliance on Carabajal by Atwood is misplaced. This Court in Montoya stated:

(b)ut in the case of illegal voters It is universally recognized that the right to examine the voters in such a case is in affirmance and vindication of the essential principle of the elective system, that the will of the majority of the qualified voters shall determine the right to an elective office, and that the testimony of the voter, after it has been shown that he voted illegally, is competent, and should be received by the court or jury for what it is worth. (Citation omitted.) The law protecting the secrecy of the ballot is intended to apply only to lawful voters, and does not ordinarily apply to or protect illegal voters, who can be required to testify as to how they voted at an election. * * * Were the courts to close their doors to the reception of evidence as to how an illegal voter has voted, it would tend to promote fraud and encourage corruption. (Citation omitted.) * * * It is held that neither the contestant nor the contestee is called upon to contend for the rights of a witness who does not demand protection, and, if the witness is compelled to testify, it does not follow that his testimony, which is competent without objection on his part, should not go to the court or jury for what it may be worth. (Citation omitted, emphasis added.)

Id. at 622-623, 175 P. at 337-338.

This principle is also enunciated in Rule 507, N.M.R. Evid. 507, N.M.S.A.1978, which states:

(e)very person has a privilege to refuse to disclose the tenor of his vote at a political election conducted by secret ballot Unless the vote was cast illegally. (Emphasis added.)

The case law of other states is overwhelming in holding that, although legal voters may not be compelled to disclose how they voted, illegal voters do not enjoy this same privilege. Singletary v. Kelley, 242 Cal.App.2d 611, 51 Cal.Rptr. 682 (1966); Sims v. Atwell, 556 S.W.2d 929 (Ky.App.1977); McRobbie v. Registrars of Voters of Ipswich, 322 Mass. 530, 78 N.E.2d 498 (1948); Belcher v. Mayor of City of Ann Arbor, 79 Mich.App. 387, 261 N.W.2d 56 (Ct.App.1977); Wehrung v. Ideal School District No. 10, 78 N.W.2d 68 (N.D.1956); Oliphint v. Christy, 157 Tex. 1, 299 S.W.2d 933 (1957); Annot., 90 A.L.R. 1362 (1934). Atwood has failed to produce any persuasive authority to the contrary.

In Oliphint, Supra, the court reasoned that fraud could not be detected in an election conducted by voting machines if the illegal voter had the right to refuse to testify, and that the person voting could not be considered a "voter" since his illegal vote is a nullity. Wehrung, Supra, holds that the privilege of secrecy is entirely a personal one, and the voter himself may waive this privilege. Kaufmann v. La Crosse City Board of Canvassers, 8 Wis.2d 182, 98 N.W.2d 422 (1959). We agree with these decisions.

However, there are peripheral legal principles that place some constraints on the procedures for purging illegal votes. Montoya, supra, recognized that the authorities maintain that an illegal voter cannot be required to testify if he claims his constitutional privilege against self-incrimination. Sims, Supra. This is obviously good law, since voting when not qualified subjects the voter to criminal sanctions. § 1-20-22, N.M.S.A.1978. Of course, the burden is upon the party attacking a person's vote to prove that it is illegal. The presumption that a vote is legal must be overcome. Berry v. Hull, 6 N.M. 643, 30 P. 936 (1892).

Inherent in Atwood's arguments on appeal is the assumption that He had the right to invoke the secrecy privilege on behalf of the voters. This is patently erroneous. Maintaining the secrecy of one's ballot is a...