McCavitt v. Registrars of Voters of Brockton

• Decision Date: 21 April 1982
• Citation: 434 N.E.2d 620,385 Mass. 833
• Parties: Lawrence V. McCAVITT v. REGISTRARS OF VOTERS OF BROCKTON et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 620

434 N.E.2d 620

385 Mass. 833

Lawrence V. McCAVITT v. REGISTRARS OF VOTERS OF BROCKTON et al. ¹

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 5, 1982.

Decided April 21, 1982.

William F. Galvin, Brighton, and David J. Fine, Cambridge (Jeanne Baker and Leslie J. Rosen, Cambridge, with them) for Paul V. Studenski.

Stephen H. Oleskey, Boston (Richard A. Johnston, Boston, and Paul F. Saba, Brockton, with him), for Lawrence V. McCavitt.

David E. Sullivan, Secretary of the Commonwealth, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and ABRAMS, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

This case involves a dispute over the results of the November 3, 1981, mayoral election in the city of Brockton. On April 5, 1982, we entered the following order. "At issue is the outcome of the November 3, 1981, mayoral election in the city of Brockton. Paul V. Studenski and Lawrence V. McCavitt, the candidates, each claim victory, and each has been declared the victor during different prior proceedings. After the polls closed, Studenski was declared the victor by twenty-three votes. Each candidate asked for a hand recount. See G.L. c. 54, §§ 135 and 135B. At the recount, McCavitt also asserted that '(c)ertain absentee ballots were improperly counted for Paul V. Studenski in that the applications were improper, and there were improper affidavits and returns.' McCavitt, however, did not challenge any specific absentee ballot at the recount. After the hand count was completed, the Board of Registrars of Voters (board) and the city clerk announced that Studenski had won the election by twelve votes.

"On December 9, 1981, McCavitt filed an action in the Superior Court challenging the board's determination that Studenski had won the election. McCavitt asked the judge to declare McCavitt the winner or to declare 'that there has been a failure to elect a Mayor and order a new election ....' After a trial in late December, 1981, a judge declared McCavitt the winner by one vote on December 30, 1981. On January 19, 1982, the judge entered an amended final judgment declaring McCavitt the winner by four votes. Studenski appeals. McCavitt filed a cross-appeal. The board and the city clerk also claimed an appeal. On February 17, 1982, we granted the parties' joint application for direct appellate review.

"To determine the outcome of this election, we must decide whether the same standards that apply to the counting of paper ballots govern a hand recount of punch card ballots. Next, we must decide whether an absentee ballot is invalid if the voter fails to comply strictly with the law governing absentee voting. See G.L. c. 54, § 92. Finally, we must decide whether the government may compel an absentee voter, who has cast his ballot in good faith, but whose ballot is defective because of a failure to comply strictly with the absentee voting law, to disclose the candidate for whom he or she voted.

"We think that the judge correctly ruled that a hand recount of punch cards is governed by the same standards which govern a recount of paper ballots. We also believe that in the absence of evidence of fraud or intentional wrongdoing, an absentee ballot must be counted unless the voter substantially fails to comply with the absentee voting law. Finally, we conclude that in the absence of evidence of fraud or intentional wrongdoing, a voter who has cast an absentee ballot in good faith may not be asked to reveal for whom he or she voted. Such a requirement burdens the fundamental right to vote and strikes at the heart of the American tradition of the secret ballot. If the outcome of an election depends on good faith absentee voters whose facially valid ballots must be rejected because of procedural mistakes, we believe that a new election is preferable to compelling those voters to disclose the candidate for whom they voted.

"Applying these principles to the case at bar, we conclude that the judge correctly determined that after the hand count of the punch cards, Studenski had a five vote lead. Further, one facially invalid absentee ballot rejected by the judge, because the notary's signature was illegible, should have been counted for Studenski. Finally, seven of the eleven facially valid absentee ballots challenged ² by McCavitt at trial should not have been counted. Cast by good faith voters, these seven defective ballots determine the election. We, therefore, reverse the judgment and order a new election." This opinion is in explanation of that order.

1. Hand Recount of Punch Card Ballots. The city of Brockton uses an electronic voting system. To indicate their selection, voters place punch cards in a special device. While a card is in the device, a metal stylus punches a hole in the space or "chad" beside the name of the candidate whom the voter has chosen. Later, a reading machine counts the votes each candidate received by passing light through the holes the stylus has punched. As light passes through a hole, the machine records each vote.

Sometimes a voter does not completely detach the "chad" from the ballot. If the voter punches the card when it is outside the device, imperfectly applies the stylus to the card while it is in the device, or punches the card with a pen or pencil instead of the stylus, partial perforations, pinholes or depressions may result. If light cannot pass through these indentations, the reading machine treats the ballot as a blank.

On election night, the reading machine counted the votes cast for mayor. According to this count, Studenski received 10,135 votes and McCavitt received 10,112 votes. Thus, Studenski was declared the winner by twenty-three votes. McCavitt and Studenski petitioned for a hand recount. At the recount, the board determined that over 300 ballots that the machine read as blank had been intended as votes for one of the two candidates. The board concluded that Studenski received 10,291 votes, and that McCavitt received 10,279 votes. The board therefore announced that Studenski had defeated McCavitt by twelve votes.

At trial, the court reviewed over 400 challenged regular and absentee ballots de novo to determine the intent of the voters. Applying the same standard used to count paper ballots, the judge found that Studenski received 10,290 votes, and that McCavitt received 10,285 votes. ³

On appeal, Studenski claims that the judge did not apply the correct standard for determining the intent of the voters. Instead of using the paper ballot standard, Studenski asserts that the judge should have used the light standard. Under this standard, the judge would have limited his review of the challenged punch cards to a determination of whether unimpeded light can pass through the ballot. If light flows through the card, the judge would record the indentation on the ballot as a vote. If light cannot pass through the card, the judge would treat the ballot as a blank. Studenski claims that when punch card ballots are used, the light standard is the only method for ascertaining the intent of the voters with reasonable certainty. We do not agree.

We resolve "voting disputes, where at all possible, in favor of the voter." Santana v. Registrars of Voters of Worcester, --- Mass. ---, ---, Mass.Adv.Sh. (1981) 2061, 2065, 425 N.E.2d 745. " 'The object of election laws is to secure the rights of duly qualified electors and not to defeat them.' This must be borne in mind in the construction of such statutes, and the presumption is that they are enacted to prevent fraud and to secure freedom of choice, and not by technical obstructions to make the right of voting insecure." Blackmer v. Hildreth, 181 Mass. 29, 31, 63 N.E. 14 (1902), quoting from People v. Wood, 148 N.Y. 142, 147, 42 N.E. 536 (1895).

We agree with the judge that the standard governing hand recounts of paper ballots is appropriate in this case. "The cardinal rule for guidance of election officers and courts in cases of this nature is that if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot, in light of the generally known conditions attendant upon the election, effect must be given to that intent and the vote counted in accordance therewith, provided the voter has substantially complied with the requisites of the election law; if that intent cannot thus be fairly and satisfactorily ascertained, the ballot cannot rightly be counted." O'Brien v. Election Comm'rs of Boston, 257 Mass. 332, 338, 153 N.E. 553 (1926). The use of the paper ballot standard is the most practical method of ascertaining voter intent. ⁴ Therefore, the judge correctly considered the "character and location of the mark and the conditions attendant upon the election." Kane v. Registrars of Voters of Fall River, 328 Mass. 511, 518, 105 N.E.2d 212 (1952). In addition, the judge correctly inspected each ballot for patterns that reveal the voters' intent. See Morris v. Registrars of Voters of E. Bridgewater, 362 Mass. 48, 50-51, 283 N.E.2d 854 (1972); Munn v. Dabrowski, 335 Mass. 41, 44-45, 138 N.E.2d 570 (1956); Gilligan v. Registrars of Voters of Wilmington, 323 Mass. 346, 348, 82 N.E.2d 3 (1948). By focusing on a variety of factors, the judge was able to ascertain the intent of some voters whose ballots would have been treated as blanks under the light standard.

Further, use of the paper ballot standard is consistent with the statutes. Under G.L. c. 54, §§ 135, 135B, a candidate desiring a recount has a choice between a hand or a machine recount. This choice would be rendered meaningless if those counting punch card ballots by hand had to use the light standard, the same standard used by the machine. We cannot assume that the Legislature intended to enact a barren and ineffective statute. See Baystate Medical Center v. Blue Cross of Mass., Inc., --- Mass. ---, ---, Mass.Adv.Sh. (1981) 317, 323, 416 N.E.2d 1352; Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189,...