Mansfield v. Scully

• Decision Date: 28 December 1942
• Citation: 29 A.2d 444,129 Conn. 494
• Parties: MANSFIELD v. SCULLY.
• Court: Connecticut Supreme Court

29 A.2d 444

129 Conn. 494

MANSFIELD

v. SCULLY.

Supreme Court of Errors of Connecticut.

Dec. 28, 1942.

Appeal from Superior Court, Fairfield County; Frank P. McEvoy, Judge.

Petition by King W. Mansfield against Albert T. Scully to determine validity of certificates of instruction signed by certain absentee voters in an election. A judgment was entered determining the issues in favor of the plaintiff and that the plaintiff was elected first selectman of the town of Westport, and the defendant appeals.

Error and case remanded with direction.

Before MALTBIE, C. J., and BROWN, JENNINGS, DICKENSON and WYNNE, JJ.

Alvin W. Peck, of Bridgeport (David Goldstein, of Bridgeport, on the brief), for appellant-defendant.

Warren F. Cressy, Jr., of Stamford (Warren F. Cressy, of Stamford, on the brief), for appellee-plaintiff.

MALTBIE, Chief Justice.

The plaintiff and defendant were the respective candidates of the Republican and Democratic parties for the office of first selectman in the town of Westport. At the election in October, 1942, the defendant was declared elected as the result of the count of votes, which gave him 1555 votes as against 1538 for the plaintiff. Of these votes, thirty-two were cast for absentee electors under the provisions of § 168c of the 1935 Cumulative Supplement to the General Statutes, as amended by § 108f of the Supplement of 1941, the material portions of both of which are quoted in the footnote.¹ The plaintiff brought a petition to contest the election to the Superior Court. It held that the thirty-two absentee votes were illegally cast and, as their rejection reduced the vote of the defendant to 1823, it declared the plaintiff to have been elected first selectman. On this appeal by the defendant, the question is whether the trial court was correct in holding that the thirty-two absentee votes were improperly allowed to be cast for him.

According to the finding, Willard R. Williams was chairman of the town committee of the Democratic party in the town of Westport. Before the day of the election he talked with various voters, who expressed their belief that they would be absent from Westport on that day. Thirty-two of these voters, a great many of them Democratic party workers, candidates and former office holders, instructed him to procure from the town clerk forms of affidavit and voting instructions for absentee voting, that they might execute them. Pursuant to these instructions, Williams procured thirty-two applications and forwarded them to the voters, who executed them, appointing him as their messenger for the purpose of procuring blank forms of affidavit and voting instructions. These were delivered to Williams. He caused the blank spaces in the forms to be typewritten in, with light blue type, including the instructions as to how the votes were to be cast, leaving only the signatures to be filled in by the voter and the affiavit by the authority administering the oath. On thirty of the certificates of instruction, Williams made a small pencil check mark opposite the line provided for the signature of the voter. The instructions all were that the voter desired to vote the straight Democratic ticket. Twenty-eight of the instruction blanks were mailed or delivered by Williams to the absentee voters, who signed and swore to the certificates before proper authority. The remaining four were executed by the voters in the presence of Williams, who administered the oath. The certificates of instruction were placed in sealed envelopes by the absentee voters and mailed to the town clerk in that condition. On the day of the election, they were delivered to the moderator. One of the electors appointed by him to cast absentee votes protested against their being cast when the envelopes were opened, on the ground that the fact that the certificates of instruction were made out in blue type made it obvious that they were not filled out personally by the absentee voters. The moderator ruled, however, that the votes should be cast, although he did not indorse his decision upon any of the certificates of instruction. The thirty-two votes were then cast on the voting machines in use in the town.

The trial court ruled that the votes should not have been cast because the instruction blanks were filled out, not by the voter personally, but by Williams before they were executed; that the pencil check marks opposite the place where the voter was to sign constituted such a mark or device as is prohibited by the provisions of § 606 of the General Statutes, although this in itself would not have rendered the votes invalid; but that the use of the blue type was such a mark or device as would invalidate the votes.

Underlying a consideration of these rulings is the question whether the "form of affidavit and voting instructions" is to be regarded as a ballot. The forms furnished by the secretary of the state have on their backs the words "Official Ballot for Absentee Voter" and within, before the expression of desire by the voter as to how his vote is to be cast, the words "Absentee Ballot"; but of course these labels cannot change the nature of the document from that intended by the statute. The act itself seems carefully to avoid any reference to the instructions as ballots, and, in fact, distinguishes between the instructions and the ballot. It provides that the portion of the form in which the voter states how he wishes to vote shall be in this language: "I desire to vote," etc., which is not the way in which a present vote would naturally be expressed; the electors who open the envelope are sworn not to disclose to anyone how the voter instructed his vote to be cast or how it was cast; and the act provides that, after the electors appointed for this purpose have opened the envelope containing the instructions, and the name of the voter has been checked, they "shall then mark and cast the ballot, or cast the vote on the voting machine in the proper polling place, so as to carry out the expressed desire of the voter." The act clearly treats the paper as being no more than it purports to be, "instructions" by the voter as to the persons for whom he desires his vote to be cast, not by him, because he is absent, but for him by the electors appointed by the moderator. No doubt, as the plaintiff stated, a ballot may be broadly defined as the means by which a voter expresses his choice. State ex rel. Hill v. Sinclair, 103 Kan. 480, 484, 175 P. 41. The absentee voter gives effective expression of his choice only when the electors appointed for that purpose cast the ballot which goes into the ballot box or operate the voting machine in conformity with his desire.

Many provisions of our election laws might be referred to which are wholly inapplicable to the instruction blanks for absentee voters, and these provisions indicate that the instruction blanks are not comprehended within the word "ballot" as there used. Perhaps the distinction between these instructions and a ballot under the election laws nowhere more clearly appears than in § 606, upon which the trial court quite largely based its decision that the votes should not be cast. This section is entitled "Improper marking or folding of ballots" and contains this provision: "If any ballot shall contain any mark or device other than as hereinbefore provided, so that the same may be identified in such a manner as to indicate who might have cast the same, or shall be folded otherwise than as delivered to the voter by the ballot clerk, the ballot shall not be counted, but shall be kept by the moderator and returned to the town clerk in the ballot box in a separate package from the ballots counted at such election." The purpose of the statute appears from its terms; it is designed to prevent a voter from giving information to some interested person as to the way in which he voted, a result which might easily come about and be put to political use if the ballot could be marked, by reason of the fact that all ballots are subjected to the scrutiny of the counters, whose appointments are of a political nature, and very likely of others, because the counting is to be done "in public meeting." General Statutes, § 615. But in the case of the instructions given by an absentee voter, he is required to sign them and make oath to them before a designated official, to whom he must identify himself. There is no better means of identifying the person who executes the document; and no additional mark or device could add anything to the signing and acknowledgment as a means of identifying the voter. The act accomplishes the purpose of secrecy by a different method; each elector appointed to open the envelopes and cast the votes must be sworn "that he will not disclose to any one unless required to testify thereto in some competent court, how any such absentee voter instructed his vote to be cast, or how it was cast." Incidentally, § 606 provides that ballots rejected as marked shall be put into the ballot...