Larson v. Locken, 12175

• Decision Date: 08 February 1978
• Docket Number: No. 12175,12175
• Citation: 262 N.W.2d 752
• Parties: Keith LARSON, Clarence Erickson, Ernest Allbee and Harlow Holler, Plaintiffs and Respondents, v. Virgil LOCKEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 752

262 N.W.2d 752

Keith LARSON, Clarence Erickson, Ernest Allbee and Harlow Holler, Plaintiffs and Respondents, v. Virgil LOCKEN, Defendant and Appellant.

No. 12175.

Supreme Court of South Dakota.

Argued Nov. 28, 1977.

Decided Feb. 8, 1978.

Duane Thurow of Thurow, Thurow & Cutler, Aberdeen, for plaintiffs and respondents.

Jerald M. McNeary, Aberdeen, for defendant and appellant.

MORGAN, Justice.

This is an appeal from a final judgment ordering that the ballots cast in the election of October 26, 1976 for Director of Area IV of the West Brown Irrigation District be disallowed and declared null and void and that a new election be held for the Director's position between Virgil Locken and Keith Larson. We affirm that decision.

The canvass of the votes resulted in fifty-four (54) votes for Locken the incumbent and fifty-one (51) votes for Larson. Larson, alleging that the appellant Locken, his supporters and election officials committed various election irregularities and violations of voting statutes, contested the election and brought suit under SDCL 12-22. Trial was had to the court and based on its findings of fact and conclusions of law the trial court ordered a new election. The execution of this judgment was stayed on March 25, 1977, pending this appeal.

This case was brought before this court as an election contest under SDCL 12-22. ¹ As set forth in SDCL 12-22-1, the purpose of an election contest is to challenge the determination of any election. The basic question in an election contest is whether the election, despite irregularities in its conduct, resulted in a free and fair expression of the will of the voters on the merits. ² Therefore, based on the record before us, this court can only make the determination whether this election was a free and fair expression of the will of the voters and cannot in the alternative decide whether to disallow some invalid votes, but maintain the election.

The acts and conduct complained of by Larson and found to be fact by the trial court were related exclusively to absentee voting and consisted of the following circumstances:

A. On October 25, 1976, the night before the election, while the candidate Virgil Locken was present in an adjoining room at the James Hundstad residence, at least one voter, Irene Swenson, cast an absentee ballot for the office of director of West Brown Irrigation District. The trial court found a violation of SDCL 12-19-7.1, but no bad faith or fraud on the part of the defendant Locken concerning his presence at the Hundstad residence.

B. The defendant, on the day of the election, delivered three absentee ballots that had been notarized by Frank Dixon, to the polling place in Bath, South Dakota. This was coupled with the fact that several other absentee ballots were delivered to election officials by individuals other than the absentee voter or the officer referred to in SDCL 12-19-7.

C. It was the general practice not to give receipts to voters who delivered their absentee ballots to the home of James Hundstad, the secretary of West Brown Irrigation Board, which was contrary to SDCL 12-19-9.

D. The evidence also shows that blank absentee ballots were given out by Hundstad without first receiving written applications for said ballots, including four such ballots which were given to the appellant. Receipts were not given to the appellant and no list was kept of those persons picking up blank absentee ballots.

E. It was also shown that various ballots and return envelopes were not properly notarized though each envelope contained a properly signed and notarized affidavit. Also, there were several written applications that did not identify their respective voting precinct, their places of permanent residence, nor the reason for being unable to attend the polling place on election day, which is contrary to SDCL 12-19-2.

F. When counting the absentee ballots, the election officials removed the security envelope containing the absentee ballot from the outer absentee voter envelope, and then all of the security envelopes were stamped with the official stamp of the election board and placed into the ballot box. However, the absentee ballots, when removed from their envelopes by election officials, were not stamped with the official stamp as were the ballots cast on election day.

The purposes of absentee voting statutes are to allow those voters who are unable to attend the polling place on election day for specified reasons the opportunity to exercise their fundamental right of voting; to prevent fraud; and to achieve a reasonably prompt determination of the result of the election. ³ It is not the policy of the law to disfranchise voters, because of election officials' mistakes, negligence, or misconduct, who have complied with the mandatory provision of the law. ⁴ However, this court also has stated in Brown v. Dakota Public Service Co., 68 S.D. 169, 177, 299 N.W. 569 (1941) that voters who vote under the provisions of the absentee voter statutes exercise a privilege not enjoyed by the electors who go to the polls and vote on election day. Consequently, because of this privilege they are required to strictly comply with the requirements of the statute in order to prevent fraud and preserve the purity and integrity of the elections.

In dealing with previous cases involving violations of absentee voting statutes, this court has categorized these statutes into two separate classes: directory or mandatory. ⁵ The difference between directory and mandatory as stated in Sommerfeld v. Board of Canvassers, 269 Wis. 299, 69 N.W.2d 235 (1955) is primarily in the consequences of nonobservance that an act done in violation of a mandatory provision is void, while an act done in violation of a directory provision, while improper, may nevertheless be valid and constitute a mere irregularity not vitiating the election.

In Brown this court stated the rule to be applied in construing election laws:

That so far as the acts and duties of the elector are concerned, he must substantially comply with the requirements of the election statutes if he is to cast a valid ballot; on the other hand, he should not be disfranchised by the mere negligence or omissions of election officials; and that the election statutes so far as the acts and duties of such officials are concerned, should be held to be directory unless otherwise expressly declared by statute, or it is made to appear that such acts and conduct affected the merits of the election and prevented an honest and free expression of the will of the voters.

Thus, the main issue which must be decided in this case is whether the trial court erred in its determination that there had been substantial violations of the South Dakota absentee voting statutes which, viewed cumulatively, did not allow for a free and fair expression of the will of the voters. The respondent alleged and the trial court found that there had been violations of the absentee voting statutes and other election irregularities and therefore a fair election was not held and a new election was ordered. Appellant however argues that if there were violations, these violations were so technical that they did not affect the outcome of the election and in light of SDCL 12-19-34 ⁶ the election should not be invalidated.

As a general rule, the statutory directions to the voter with respect to the time and manner of making applications for an absentee ballot, the manner of marking the same, the taking of the prescribed affidavit, and the return of the ballot, together with the affidavit, are regarded as mandatory and strict compliance therewith is required. ⁷ These provisions deal with the statutory requirements that a voter must follow in order to be eligible to cast an absentee ballot. The voter has absolute control over these activities and it is incumbent upon him to make sure that this procedure is followed to insure a valid vote.

In an election contest this court must determine whether there is sufficient evidence to support the trial court's findings of fact and conclusions of law and can only reverse the trial court's judgment if it is clearly erroneous. ⁸ Since the trial court was not clearly erroneous in its decision, we must affirm.

Based on the record and the findings of the trial court, we find that the trial court did not err in calling for a new election since the many irregularities and violations of statute did cast substantial doubt upon the validity of the outcome of the election. The record shows blatant violations of the mandatory provisions of the absentee voting statutes.

The fact that many absentee ballots were disbursed by the secretary of the district, before any application for such ballots had been received, including four to a candidate, appellant Locken, of which only three were returned, is a violation of the mandatory provisions of SDCL 12-19-2. In the Brown case this court held that this violation by itself was enough to declare the election void. Other jurisdictions have also held that a failure to properly apply for an absentee ballot will void the ballot or require a new election. ⁹

It is also conceded that many of the applications for absentee ballots were filled out incompletely, incorrectly, and contrary to SDCL 12-19-2 in that they failed to identify the applicants' respective voting precinct, their places of permanent residence, or their reason for being unable to attend the polling place on election day. These requirements are also considered mandatory and failure to comply with such statutory procedure invalidates the absentee ballots. ¹⁰

Coupled with the above violations, several absentee ballots were delivered by persons other than the absentee voter himself, or the officer administering the oath, contrary to SDCL 12-19-9. In fact, the appellant candidate, himself, delivered three ballots to the polling place in Bath, South Dakota. This also is a direct violation of a mandatory...