Kuhn v. Beede
| Decision Date | 31 December 1976 |
| Docket Number | No. 9298,9298 |
| Citation | 249 N.W.2d 230 |
| Parties | Norma KUHN, Petitioner v. William BEEDE, Judge of the Ward County District Court, et al., Respondents. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
For the reasons stated in the opinion, the relief requested in the petition for review and the petition for relief on the part of the intervenors is denied; and the provisions of § 16--13--01, N.D.C.C., are constitutional, mandatory, and applicable to absent voters' ballots cast in precincts using voting machines.
Jonathan C. Eaton, Jr. and Nevin Van de Streek, Eaton and Van de Streek, Minot, for petitioner Kuhn; argued by Nevin Van de Streek, Minot.
Mitchell Mahoney and Thomas A. Wentz, Pringle & Herigstad, P.C., Minot, for respondent Wentz; argued by Mitchell Mahoney and Thomas A. Wentz, Minot.
Orlin W. Backes, McGee, Hankla, Backes & Wheeler, Minot, for intervenors; argued by Orlin W. Backes, Minot.
Atty. Gen., Allen I. Olson, Bismarck, for respondent, Secretary of State Ben Meier.
PAULSON, Judge (on reassignment).
This is a petition for review of the Ward County District Court's decision which rejected certain absent voters' ballots cast in a state legislative contest. Such decision was made by the district judge in the course of conducting a ballot recount for the office of State Representative from the 41st Legislative District on November 26, 1976, pursuant to § 16--01--10(3), N.D.C.C.
The parties concede that this court has personal jurisdiction of the parties.
This court has jurisdiction to hear the subject matter, pursuant to § 16--01--10(3), N.D.C.C., wherein it is provided that
'Correcting errors on ballots--Requiring performance of duty or desistance from wrongful performance.--Whenever it shall be made to appear by an affidavit to the supreme court, or to the district court of the proper county that:
'3. Any wrongful act has been or is about to be done by any judge or clerk of election, county auditor, canvassing board, member thereof, or other person charged with any duty concerning the election . . .
a judge of such court shall order the officer or person charged with such error, wrong, or neglect to correct the error, desist from the wrongful act, perform the duty, or show cause at a time and place to be fixed by the court why he should not do so. . . .'
Such specific grant of jurisdiction is in addition to the Supreme Court's original jurisdiction granted by § 86 of the North Dakota Constitution, as amended at the primary election on September 7, 1976. See 32 N.D.L.Rev. 199, 204 (1956), and cases cited therein.
This matter arises out of the same factual situation as in State ex rel. Olson v. Thompson N.D., 1976, 248 N.W.2d 347 wherein we stated:
'This matter arose following the November 2, 1976, general election. The county auditor of Ward County forwarded to the Secretary of State the certified abstract of votes required by law, including that of State Representative from the 41st District as follows:
Walsh ..... 2,402
Forsberg .. 1,928
Wentz ..... 2,283
Kuhn ...... 2,291
Subsequent to the receipt of such certification, the Secretary of State was served with a copy of a Demand for Recount by Janet Wentz, pursuant to § 16--13--47.1, N.D.C.C., as amended. . . .
'Within fifteen days after the Demand for Recount was filed by Wentz, the Secretary of State received the results of the recount conducted pursuant to § 16--13--47.1, N.D.C.C., as amended, certified by the Honorable William M. Beede, District Judge of Ward County, which indicated the following:
Kuhn ...... 2,205
Wentz ..... 2,206
Walsh ..... 2,311
Forsberg .. 1,850
In the present proceeding, this court is asked to review the decision of the district court which declared void and did not count 202 absent voters' ballots which were not endorsed with the official stamp and initialed pursuant to §§ 16--12--04, 16--18--17, and 16--13--01, N.D.C.C. We are further requested to determine, in the event this court approves the decision of the district court, whether or not the constitutional rights of the 202 absentee voters were violated by the district court's action in voiding their absent voters' ballots.
Section 16--12--04, N.D.C.C. provides:
Such stamping and initialing requirement is made applicable to absent voters' ballots under § 16--18--17, N.D.C.C., which, after instructing the inspector of elections or the judges of elections to open the outer envelope and compare the signatures, then provides, in pertinent part:
(Emphasis added.)
The effect of a failure to stamp and initial a ballot is specified in § 16--13--01(1), N.D.C.C., which provides, in pertinent part:
'Ballots void and not counted--Part of ballot may be counted.--In the canvass of the votes at any election, a ballot shall be void and shall not be counted if:
(Emphasis added.)
The district court construed such statutory provisions to be mandatory, ruling that all ballots not so stamped and initialed are void and are not to be counted. Such ruling by the district court resulted in the voiding of 202 absent voters' ballots and is the subject of this review. It is noted that absent voters' ballots cast in five of the seven precincts comprising the 41st Legislative District were properly stamped and initialed. All of the absent voters' ballots voided were cast in precincts which used voting machines for those electors who voted in person.
The petitioner contends that North Dakota statutes do not require stamping and initialing of absent voters' ballots which are cast on voting machines. Petitioner contends that such requirement is applicable only to absent voters' ballots cast in precincts using ballot box voting, but is not applicable to absent voters' ballots cast in precincts using voting machines. Petitioner cites § 16--18--20, N.D.C.C., as authority for her contention, indicating that § 16--18--20 is the only statute which specifically refers to the casting of absent voters' ballots in
precincts using voting machines. Section 16--18--20, N.D.C.C., provides:
Petitioner further contends, because § 16--18--20, N.D.C.C., contains no reference to the endorsement of absent voters' ballots, it is presumed that the legislature did not intend that the endorsement requirement be applicable to absent voters' ballots cast in precincts using voting machines. We disagree.
If this court were to accept petitioner's contention that the procedural requirements set forth in § 16--18--17, N.D.C.C., but not included in § 16--18--20, N.D.C.C., are not applicable to absent voters' ballots cast in precincts using voting machines, it would follow that most of the procedural safeguards the legislature employs to assure the integrity of the election process in the casting and counting of absent voters' ballots in precincts using voting machines would be circumvented. Section 16--18--20, N.D.C.C., does not provide for a comparison of an absent voter's signature on the outer envelope of such ballot with the absent voter's signature on his application for an absent voter's ballot; it does not require a determination that the absent voter be a duly qualified elector of such precinct; it does not require a determination that the absent voter has not voted at such election; it does not require an examination of the absent voter's ballot; it does not require the election officials to enter in the records of such election the fact that such elector has voted; it does not provide a procedure for preserving absent voters' ballots which are found to be defective; and it does not require that the absent voters' ballots be endorsed.
We find that the legislature, in enacting § 16--18--20, N.D.C.C., intended only to establish a procedure whereby absent voters' ballots could be effectively counted in those precincts using voting machines, and that the legislature did not intend to eliminate the procedural safeguards already provided to protect the integrity of the election process in the casting and counting of absent voters' ballots. Such interpretation gives...
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