Lorch v. Lohmeyer, 668

• Decision Date: 30 April 1969
• Docket Number: No. 668,668
• Parties: Basil H. LORCH, Jr., Appellant, v. C. William LOHMEYER, Appellee. S 81.
• Court: Indiana Supreme Court

Page 61

247 N.E.2d 61

252 Ind. 182

Basil H. LORCH, Jr., Appellant, v. C. William LOHMEYER, Appellee.

No. 668 S 81.

Supreme Court of Indiana.

April 30, 1969.

Rehearing Denied June 4, 1969.

Telford B. Orbison, Richard L. Mattox, New Albany, for appellant.

William B. Janes, New Albany, James Manahan, Indianapolis, for appellee.

GIVAN, Judge.

This is an appeal from a judgment in an election contest wherein the appellee filed his complaint to contest the election and a petition for recount. The questioned election was a city election held on the 7th day of November, 1967, in New Albany, Floyd County, Indiana. The appellee, one C. William Lohmeyer, and the appellant, one Basil H. Lorch, Jr., both of New Albany, Indiana, were the only candidates for the office of city judge in said election.

In the original election the appellant was declared the winner. The Recount Commission declared the appellant to be the winner by a margin of 7739 votes to 7736 for the appellee. Appeal was then had to the Circuit Court of Floyd County, The Honorable Paul J. Tegart presiding. The Court declared the appellee to be the winner by a margin of 7750 votes to 7747 votes for the appellant. The appellant has perfected his appeal in this cause assigning as error that the Floyd Circuit Court erred in its determination of the legality of certain absentee ballots. Each of the questioned ballots are set out as exhibits in the Transcript in this cause, and this Court has carefully examined all of said ballots and the markings thereon.

In making our examination and determination we have applied the following statutory rules as set out in the Election Laws issued under the authority of the State Election Board for the town elections to be held in 1967, which were applicable for the counting of absentee ballots in the 1967 election:

'What Ballots Should Be Counted.

'The law requires a voter, in casting his vote by ballot, to place a cross (X) in blue pencil (a) inside the circle bearing the party emblem, in order to vote a straight ticket, or (b) inside the square opposite the name of any candidate for whom the voter desires to vote. If from the face of the ballot it appears that the voter has made an honest effort to comply with the law, his ballot should be counted according to his intention. In determining the voter's intention, the board must exercise common sense discretion. The board must not adhere to such a severe construction of the law as will deprive an honest and innocent voter of his vote. (Secs. 171, 203, 260, 301) 29--4411, 29--4910, 29--5021, 29--5218, Sec. 171 amended by Acts 1957, Ch. 168, Sec. 2; Sec. 301 amended by Acts 1947, Ch. 156, Sec. 1.

'A cross (X) mark is any straight line crossing any other line at any angle but no ballot shall be declared void or partially blank because a cross (X) mark thereon is irregular in form. (Secs. 171, 301) 29--4411, 29--5218, Sec. 171 amended by Acts 1957, Ch. 168, Sec. 2; Sec. 301 amended by Acts 1947, Ch. 156, Sec. 2(1).

'Thus a ballot must be counted as indicated below. If:

'1. Cross (X) mark is made by voter in a voting square opposite a condidate' name, it shall be counted as a vote for such candidate.

'2. The name of a candidate is written by the voter upon the ballot in the proper space provided for and is not printed under the title of such office or position, it shall be counted for the person.

'3. The voter makes a cross (X) mark in the circle above the column, known as the party column, the voter having made no other mark or writing on the ballot, it shall be counted as a vote for each candidate named in such column.

'4. Where a voter makes a cross (X) mark in the large circle above a party column and also marks in the square to the left of the name of any candidate in another column where there is no candidate in the column where he has marked in the large circle for such office, such ballot may be counted for all the candidates in the column named under the large circle where he has voted and also such candidates in another column where he has marked in the small square to the left.

'5. A pencil mark touches a circle or square, it shall be considered on such circle or square and be counted accordingly.

'(Secs. 171, 301) 29--4411, 29--5218, Sec. 171 amended by Acts 1957, Ch. 168, Sec. 2; Sec. 301 amended by Acts 1947, Ch. 156, Sec. 1.

'What Ballots Should Be Partially Counted.

'Ballots should be partially counted if:

'1. An erasure is made in a voting square, the vote shall not be counted for the office in connection with which it is made but shall be otherwise counted for the candidates for whom votes were cast.

'2. A mark other than a cross (X) mark is made in a voting square, the vote shall not be counted for the office in connection with which it is made but shall be otherwise counted for the candidates for which votes were cast.

'3. The voter marks more names than there are persons to be elected or nominated for office, the vote shall not be counted for such office but shall be counted for the other candidates for whom votes were marked.

'4. For any reason it is impossible to determine the voters' choice of a candidate or candidates for an office, his vote shall not be counted for such office or position but shall be otherwise counted for the names marked.

'5. Any ballot or part of ballot from which it is impossible to determine the elector's choice of candidates shall not be counted as to the candidate or candidates affected thereby, but shall otherwise be counted for the names marked.

'(Secs. 171, 284, 301) 29--4411, 29--5201, 29--5218, Sec. 171 amended by Acts 1957, Ch. 168, Sec. 2; Sec. 301 amended by Acts 1947, Ch. 156, Sec. 1.

'What Ballots Should Not Be Counted.

'A ballot is entirely void and should not be counted for any office if:

'1. The voter does any act extrinsic to the ballot, such as enclosing any paper or other article in the folded ballot.

'2. The voter defaces or tears the ballot.

'3. The voter makes an erasure thereon outside of the voting square.

'4. The voter makes any mark thereon outside of the voting square other than writing in a name for the purpose of voting.

'5. Any mark other than a cross (X) mark in the circle or square which touches no circle or square, shall be treated as a distinguishing mark and the ballot shall be void and not counted.

'6. Any ballot shall bear any clear distinguishing mark or mutilation, it shall be void and shall not be counted.

'7. Any ballot is not endorsed with the initials of the clerks or assistant clerks, it shall be void and shall not be counted.

'8. If a voter marks in a large circle and marks elsewhere on the ballot, unless in a square to the left of the name of a candidate in another column where there is no candidate in the column under the large circle in which he has voted, the ballot shall be void and shall not be counted.

'(Secs. 171, 284, 301) 29--4411, 29--5201, 29--5218, Sec. 171 amended by Acts 1957, Ch. 168, Sec. 2, Sec. 301 amended by Acts 1947, Ch. 156, Sec. 1.'

As previously stated by this Court, it is the policy to give a liberal construction of a statutory provision on recounting votes. Dowden v. Benham (1955), 234 Ind. 103, 109, 123 N.E.2d 872.

From an examination of the ballots and an application of the Election Laws of Indiana, we find that the Trial Court was in error in not counting the following ballots, and that said ballots should be counted for the following reasons:

Contestor's Exhibit No. 4 bears a single x mark in the emblem circle and bears no other distinguishing marks. It is true that the x placed in the emblem circle is somewhat irregular and appears to have been made on a rough surface or by a person who was unsteady of hand. However, this vote should be counted because it clearly evidenced the voter's intention, and the exercise of common sense dictates that to refuse to count such a vote would be to deprive an honest and innocent voter of his vote. We do not feel that the rules regarding distinguishing marks should be so strictly applied. Judge Emmert in the case of Dowden v. Benham, supra, quoted at length from the case of Conley v. Hile (1934), 207 Ind. 488, 499, 193 N.E. 95, 102, which quotation reads as follows:

"While the statutes seek to keep the voter's ballot secret, so as to prevent corruption in elections, its primary purpose is to provide a means for the selection of officers by the free and untrammeled choice of honest, qualified voters; and, while a ballot which is intentionally mutilated, or on which the marking does not occur in the space provided by statute, or which is marked with characters other than those provided by statute, cannot be counted regardless of the apparent honesty and good intention of the voter, ballots will be counted which indicate an effort to comply with the statutory requirement as to the manner of marking, notwithstanding variation from the mark made by the average individual caused by unskillfullness, physical infirmity, bad eyesight, or light, or conditions not conducive to accuracy; and where markings are in the proper place, and there is an effort to make the statutory cross-mark, irregularities in the marking will be attributed to those causes unless the ballot upon its face fairly imports an intentional dishonest purpose."

We completely ascrible to this philosophy and feel that it is essential to the preservation of the sacred American right to exercise the franchise.

Contestor's Exhibit No. 6 falls in the same category as above set out. An examination shows that the voter made an x in the party emblem circle with no other distinguishing marks on the ballot. It is true that this x is not artfully made, and the voter obviously retraced his x. However, there is nothing unusual or distinguishing concerning this Exhibit and it should be counted under the above authority.

Contestor's Exhibit No. 9 is a split or scratched vote ballot, neither party emblem circle bearing any marks...