Monroe v. Graves County Bd. of Election Com'rs

• Decision Date: 21 September 1956
• Citation: 293 S.W.2d 725
• Parties: V. G. MONROE, Appellant, v. GRAVES COUNTY BOARD OF ELECTION COMMISSIONERS, etc., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 725

293 S.W.2d 725

V. G. MONROE, Appellant, v. GRAVES COUNTY BOARD OF ELECTION COMMISSIONERS, etc., Appellees.

Court of Appeals of Kentucky.

Sept. 21, 1956.

Robbins & Cross, Mayfield, for appellant.

Martin, Neely & Reed, Mayfield, for appellees.

CLAY, Commissioner.

This suit involves a petition for a recount of ballots cast in a magistrate's race in the 7th Magisterial District of Graves County. The trial court denied the recount on the ground that the integrity of the ballots had not been satisfactorily shown as required by KRS 122.060.

This story has two parts. The first part covers a period of about two weeks when the 57 boxes containing the ballots of all Graves County's precincts, including the seven precincts in dispute here, were successively in the custody of the Election Commission, the County Court Clerk, and the Circuit Court Clerk. The second part covers a very short period when the boxes were being transferred from the Circuit Clerk's office to a bank vault for further safekeeping pending a possible appeal in this case.

The major portion of the evidence relates to the steps taken during the first two weeks after the election to maintain the integrity of the ballots.

The following facts were brought out. The ballot boxes had four locks on them; three were on one side, and a fourth (called the vent-flap lock) was on the opposite side. The three election commissioners each had one key that would fit one of the locks on each box. The keys to the vent-flap locks were in the possession of the County Court Clerk. The election commissioners, although not willing to state absolutely, said that to the best of their knowledge all locks were in place and secured when the boxes left their custody. However, after the boxes were in the custody of the County Court Clerk, a lock on one box was discovered not to be secured.

During this two week period the boxes were under constant watch except for short periods of time and during two nights when they were locked in the County Court Clerk's office. It was brought out that at least six people had keys to the office.

After hearing this evidence the trial court determined that the integrity of the ballots had not been maintained and denied a recount. However, before judgment had been entered in the case, other evidence of tampering was discovered and this was put into the record.

When the seven ballot boxes were being transferred from the Circuit Court Clerk's office to the bank, it was discovered that all three locks were open on one box, that one lock was open on each of three other boxes and that the vent-flap lock on still another was open. This additional evidence served to strengthen the resolve of the trial court to deny a recount.

On this appeal, the appellant vigorously contends that the trial court erred in refusing a recount. At the least, it is argued, the court should have opened the boxes and inspected the contents for possible tampering before passing on the question of whether the integrity of the ballots had been maintained.

KRS 122.060 authorizes a recount where the integrity of the ballots is 'satisfactorily' shown. The sole question here is whether the showing made by the appellant here is a 'satisfactory' one.

The general rule concerning the degree of proof and the burden of proof in cases of this nature is set out in Combs v. McKenzie, 289 Ky. 360, 158 S.W.2d 938, 940:

'While the burden is on the contestant to establish the integrity of the ballots, the requirement in that respect must be reasonable, and it is incumbent upon him only to prove circumstances from which a logical inference can be deduced that the ballot boxes and their contents have not been disturbed.'

The appellant contends that he has met his burden and he cites cases applying the rule set out above to prove his point. Roby v. Croan, 177 Ky. 9, 197 S.W. 456, is cited to show that a recount may be had where neither guards nor a securely locked room have been employed to insure the integrity of ballots. Wilhoit v. Liles, 300 Ky. 564 189 S.W.2d 851, is cited to show that this Court has recognized that locks sometimes 'act capriciously', and that the fact that a lock is found unlocked does not necessarily preclude a recount.

The original evidence introduced in the case may be properly said to have raised only a suspicion that the boxes had been...