Mahoney v. Board of Sup'rs of Elections of Queen Anne's County

• Decision Date: 01 October 1954
• Docket Number: 58,Nos. 57,s. 57
• Citation: 205 Md. 325,108 A.2d 143
• Parties: George P. MAHONEY v. BOARD OF SUPERVISORS OF ELECTIONS OF QUEEN ANNE'S COUNTY and Harry Clifton Byrd, Intervenor. George P. MAHONEY v. BOARD OF SUPERVISORS OF ELECTIONS OF TALBOT COUNTY and Harry Clifton Byrd, Intervenor. ,
• Court: Maryland Court of Appeals

Page 325

205 Md. 325

108 A.2d 143

George P. MAHONEY v. BOARD OF SUPERVISORS OF ELECTIONS OF QUEEN ANNE'S COUNTY and Harry Clifton Byrd, Intervenor.

George P. MAHONEY v. BOARD OF SUPERVISORS OF ELECTIONS OF TALBOT COUNTY and Harry

Clifton Byrd, Intervenor.

Nos. 57, 58, Oct. Term, 1954.

Court of Appeals of Maryland.

Oct. 7, 1954.

Clarke Murphy, Jr., Francis B. Burch and Hyman A. Pressman, Baltimore (William W. Mahoney, Baltimore, and J. Thomas Clark, Centreville, on the brief), for appellant in both cases.

William C. Walsh, Baltimore, and Ralph W. Powers, Hyattsville (Vachel A. Downes, Jr., Centreville, Walter W. Claggett, Easton, and James Elmer Thompson, Jr., Centreville, on the brief), for appellees in both cases.

Before BRUNE, C. J., and DELAPLAINE, COLLINS and HAMMOND, JJ.

DELAPLAINE, Judge.

At the primary election held in Maryland on June 28, 1954, Harry Chifton Byrd and George P. Mahoney were the candidates for the Democratic nomination for Governor of Maryland. The official convass gave Byrd 80 votes and Mahoney 72 votes for nomination by the Democratic State Convention.

The Maryland Election Law provides that every candidate for the nomination for a State office, that is to say, an office filled by the vote of all the registered voters of the State of Maryland, shall be nominated by State Convention, the delegates to which shall be elected by the direct vote of the registered voters belonging to the political party of which the candidate is a member; and the candidate receiving the highest vote in any county or legislative district shall receive the vote of the delegates from such county or legislative district in the State Convention. Code 1951, art. 33, § 64.

As the canvass after the 1954 primary election showed a majority of only 53 for Byrd in Queen Anne's County, and a majority of only 60 for Byrd in Talbot County, Mahoney petitioned the Board of Supervisors of Elections in each of those counties for a recount of the votes for the nomination for Governor. Each recount showed a different number of votes from that shown by the canvass, but each recount gave the majority to Byrd.

On July 26 Mahoney filed in the Circuit Court for Queen Anne's County a petition for mandamus against the Queen Anne's County Board. He alleged in that petition that, according to the canvass, Byrd received 2,035 votes, and he received 1,982. He alleged that on July 3 he petitioned the Board to recount the ballots cast in all election precincts of Queen Anne's County, and on July 22 the Board completed the recount. He alleged that among the ballots counted by the Board were ballots counted unlawfully because they contained marks other than the cross-marks in the squares opposite the names of the candidates. He alleged that the Board admitted the existence of those marks, but arbitrarily refused to reject the ballots. The Board counted 1,835 votes for Byrd, and 1,813 for Mahoney. He further alleged that if all the challenged ballots were rejected, instead of being counted, he would have the majority of votes cast for the nomination for Governor. He prayed for a writ to compel the Board to reject all ballots on which the alleged marks appeared.

On July 27 Mahoney filed in the Circuit Court for Talbot County a petition for mandamus against the Talbot County Board. He alleged that, according to the canvass, Byrd received 1,944 votes and he received 1,884. He alleged that on July 8 he petitioned the Board for a recount, and the Board completed it on July 22. He alleged that some of the ballots counted by the Board were counted unlawfully because they contained invalidating marks. He further alleged that the Board arbitrarily refused to reject the ballots complained of. The Board counted 1,826 votes for Byrd and 1,769 for Mahoney.

On these appeals no ballots were presented to the Court. Attached to each petition, however, was a schedule containing reproductions of sketches of the different types of marks complained of. The type which produced the largest number of objections was a dot near a cross-mark in the square opposite the name of a candidate. Objections were made to 205 such dots before the Queen Anne's County Board, and to 86 such dots before the Talbot County Board. Objections were also made to other dots, check-marks, erasures, initials, and other marks.

Each Board filed a demurrer to the petition. Byrd, who intervened in each case, also demurred. Judge Horney, who heard the cases together, took the view that a Board of Election Supervisors, in making a recount, must determine whether each challenged ballot contains any mark other than cross-marks in the squares opposite the names of the candidates; and that since the Supervisors are required to exercise discretion in doing this work, the courts have no authority to review their decisions except when they act unlawfully, fraudulently or arbitrarily. On July 30 the judge sustained the demurrers and dismissed the petitions. Mahoney thereupon appealed from the judgments to the Court of Appeals.

The Maryland Code prescribes the procedure to be followed in suits for mandamus. The statute provides that upon the filing of a petition for mandamus, the court or judge to whom the same is addressed shall lay a rule requiring the defendant therein to show cause why a writ of mandamus should not issue as prayed and the defendant, by the day named in such order, shall file an answer to such petition, fully setting forth all the defenses upon which he intends to rely in resisting the application, which shall be verified by his affidavit. Laws 1858, ch. 285, Code 1951, art. 60, §§ 2, 3.

Although the statute prescribing the procedure in mandamus proceedings does not state that the defendant may file a demurrer to a petition for mandamus, the defendant is not deprived of the right to demur, but he may bring for hearing on demurrer a case in which it appears on the face of the petition that the petitioner is not entitled to the relief prayed. Brack v. Bar Ass'n of Baltimore City, 185 Md. 468, 473, 45 A.2d 102.

In 1890 the Legislature of Maryland passed the Act directing that thereafter all ballots to be used and cast in any elections to be held in this State, other than primary elections, should be printed and distributed at public expense. That Act followed many parliamentary battles which were waged in different countries over the process of polling. For some years reforms had been sought to secure freedom of the voter from outside influence and to secure honesty in the counting of votes. One of the principal reforms for securing the protection of voters was the secret ballot, which was adopted for the first time in 1856 in South Australia. The Australian system spread to Europe and America to meet the growing public demand for the protection of voters. Thus the Australian ballots, as the secret paper ballots have been called, have been used in Maryland since 1890. Laws 1890, ch. 538.

In 1896 the Legislature, in a complete revision of Article 33 of the Code, entitled 'Elections,' strengthened the law to give further protection to voters. This Act directed that the voter shall prepare his ballot by marking a cross-mark with an indelible pencil after the name of every person for whom he intends to vote in the blank space provided therefor, and shall fold his ballot without displaying the marks thereon, and in the same way it was folded when received by him, and shall keep it so folded until he has voted, so that nothing may be seen thereon except the signature or initials of the judge from whom he received it and the name and number written on the coupon thereof. Laws 1896, ch. 202, § 61, Code 1951, art. 33, § 79.

The Act of 1896 authorized the election judges to reject any ballots which are deceitfully folded together, and any ballots which do not have endorsed thereon the name or initials of the judge who held the ballots. Laws 1896, ch. 202, § 66, Code 1951, art. 33, § 85.

It was not until the extra session in March, 1901, that the Legislature inserted the provision, which is now in controversy, that 'if there shall be any mark on the ballot other than the cross-mark in a square opposite the name of a candidate,' such ballot shall not be counted. Laws 1901, ch. 2, § 66, Code 1951, art. 33, § 85.

These statutory provisions calling for the rejection of ballots are designed to enable every voter to indicate his choice in such a manner that no one could possibly see for whom he has voted, and thereby to guard against bribery and intimidation. In Duvall v. Miller, 94 Md. 697, 714, 715, 51 A. 570, this Court observed that the Legislature, in prescribing the method by which the voter shall prepare his ballot, evidence an intention that the voter must strictly observe the essential requirements of the law.

The test for determining the validity of a ballot is that when an irregularity in the marking of a cross-mark apparently occurred accidentally and in pursuance of the voter's purpose to make a cross-mark as prescribed by the statute, the votes on the ballot should be counted; but when the irregularity was apparently placed on the ballot intentionally and constituted a means of identifying the ballot, the ballot should be rejected.

Thus in Coulehan v. White, 95 Md. 703, 53 A. 786, the following rulings were made: (1) where some of the lines of the cross-mark are double lines, the ballot is valid, as the voter may have been merely trying to make the cross-mark more...