Livingston v. Heydon
Decision Date | 11 September 1972 |
Citation | 104 Cal.Rptr. 83,27 Cal.App.3d 672 |
Court | California Court of Appeals Court of Appeals |
Parties | George L. LIVINGSTON, Plaintiff and Appellant, v. Harlan HEYDON, Clerk of the City of Richmond, et al., Defendants and Respondents. Civ. 30613. |
Pano Stephens, Robert H. A. Ashford, San Francisco, for plaintiff and appellant.
James P. O'Drain, City Atty., Samuel V. McGrath, Asst. City Atty., Richmond for defendants and respondents Harlan Heydon and The City of Richmond.
John R. Pierce, Richmond, for defendant and respondent Richard N. Nelson.
This appeal concerns a superior court judgment declaring that cross ( ) marks following the name of a candidate for councilman on a municipal election ballot, but not appearing in whole or in part in the 'voting square' following such name, shall not be counted as votes.
The subject ballot was printed in the following form.
Some of the ballots were marked, as shown superimposed on the printed ballot form above, with a cross ( ) in the space immediately following the candidates' names but wholly outside and to the left of the appropriate voting square. On a recount such markings were not allowed as votes for the obviously intended candidates. Had they been so allowed appellant Livingston would have been elected. Since they were not allowed he and candidate Nelson each received the same number of votes for third place, neither being elected. The superior court judgment approved the recount proceedings and this appeal resulted.
It is conceded that the election at issue was conducted under the state's general laws governing elections within a municipality. The Charter of the City of Richmond so requires. (See Duncan v. Burke, 234 Cal.App.2d 171, 44 Cal.Rptr. 85; Ahlhausen v. Mills, 101 Cal.App. 754, 282 P. 394.)
Unless otherwise indicated all statutory reference in this opinion will be to the state's Elections Code.
Appellant Livingston contends here, as he did in the superior court, (1) that the law requires the questioned ballot markings to be counted as votes for the obviously intended candidate, and (2) if the law does not so require, then the candidate, and those who in such manner intended to vote for him, are denied their constitutional right of equal protection of the law.
I. The Legislature has demonstrated a consistent purpose that in general municipal elections, candidates are to be voted for by placing a cross ( ) mark, either wholly or in part, within the 'voting square' opposite his name on the ballot.
Section 10216 prescribing the ballot form states:
'The name of the candidate . . . shall be printed in a space three-eighths of an inch in depth, . . . with a blank space on the right thereof three-eighths of an inch square, which blank space (called the voting square) shall be used by the voter to designate, by stamping a cross ( ) therein and after the name of the candidate, his choice of candidates.' (Emphasis added.)
Section 22871 provides that on 'the top of the face of the ballot' shall be printed:
'INSTRUCTIONS TO VOTERS
'To vote for a candidate of your selection, stamp a cross ( ) In the voting square next to the right of the name of that candidate. . . .' (Emphasis added.)
Section 14412 states: 'The voter, in voting, shall stamp a cross ( ) In the voting square after the name of every candidate for whom he intends to vote, and this shall be counted as a vote for each person after whose name the voter has stamped the cross. . . .' (Emphasis added.)
Some statutory relaxation is granted from the rule that the cross ( ) mark shall be stamped In the voting square. Section 18600, relating to 'WRITE IN' VOTES, PROVIDES THAT: 'ANY NAME Written upon a ballot shall be counted, . . . for that name for the office under which it is written, if it is written in the blank space therefor, whether or not a cross ( ) is stamped or made with pen or pencil In the voting square after the name so written.' (Emphasis added.) And section 17070 states that 'a cross ( ) made partly within and partly without A voting square or space, (does) not make the ballot void.' (Emphasis added.) We find no corresponding statutory relaxation authorizing use of a cross ( ) mark following a candidate's name but not, at least partially, within the voting square.
Finally, section 17070 provides:
'At all elections, any ballot which is not marked as provided by law Shall be void. . . .'
The language of the statute is clear. The questioned ballots, or at least the portions in dispute, not being marked 'as provided by law' are void.
It is a prime rule of construction that the legislative intent underlying a statute must be ascertained from its language; if the language is clear there can be no room for interpretation, and effect must be given to the plain meaning of the language. (Caminetti v. Pacific Mutual Life Ins. Co., 22 Cal.2d 344, 353--354, 139 P.2d 908; Skivers v. State of California, 13 Cal.App.3d 652, 655, 91 Cal.Rptr. 707.)
While we, of course, are not to be concerned with considerations of legislative policy or wisdom (see Estate of Horman, 5 Cal.3d 62, 77, 95 Cal.Rptr. 433, 485 P.2d 785), nevertheless, the statutory 'voting square' requirement seems to be reasonable, and the product of sound policy. It obviously adds to the accuracy and efficiency of the vote counting process. A cross ( ) mark elsewhere near the preferred candidate's name could well be overlooked, particularly if the space was well filled with printing.
A similar conclusion on similar statutory language was reached by the Supreme Court in Sweetser v. Pacheco (1916) 172 Cal. 137, 155 p. 639. That case dealt with Political Code section 1205 (since repealed), the closely identical predecessor statute to Elections Code section 14412. Referring to a questioned ballot, the court said (pp. 140--141, 155 P. p. 641):
Appellant places heavy reliance upon the earlier case of Tebbe v. Smith (1895) 108 Cal. 101, 41 P. 454, cited in Sweetser v. Pacheco. But Tebbe v. Smith concerned Political Code section 1205 as it read prior to 1903, requiring the voter to mark a cross 'after the name of the person or persons for whom he intends to vote . . .' (P. 109, 41 P. p. 456.) Then, although there was no statutory requirement therefor, printed ballots were nevertheless furnished with voting squares after the candidate's name. The court approved ballots marked after the name of the candidate but not in the voting square. But the court said (pp. 108--109, 41 P. p. 456): ( )
Discussing Tebbe v. Smith the court in Sweetser v. Pacheco, supra, 172 Cal. 137 at page 143, 155 P. 639 at page 642, stated: (Latter emphasis added.)
From such a change in the law requiring the cross ( ) to be placed in the 'voting square,' a strong inference arises that the Legislature intended a meaning contrary to that here urged by appellant. (See Sacramento Typographical Union No. 46 v. State of California, 18 Cal.App.3d 634, 638, 96 Cal.Rptr. 194; Farmers Ins. Exch. v. Geyer, 247 Cal.App.2d 625, 634, 55 Cal.Rptr. 861.)
Tebbe v. Smith, lends no aid to appellant's cause.
Appellant also urges that section 14413 supports his contention. That statute provides:
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