Morris v. Board of Registrars of Voters of East Bridgewater

• Decision Date: 05 June 1972
• Citation: 362 Mass. 48,283 N.E.2d 854
• Parties: Paul M. MORRIS v. BOARD OF REGISTRARS OF VOTERS OF EAST BRIDGEWATER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 854

283 N.E.2d 854

362 Mass. 48

Paul M. MORRIS v. BOARD OF REGISTRARS OF VOTERS OF EAST BRIDGEWATER et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 10, 1972.

Decided June 5, 1972.

Edward P. Kirby, Whitman, for petitioner.

Paul F. Lehan, Brockton, for Charles M. Repeta, Jr.

Before TAURO, C.J., and CUTTER, SPIEGEL, REARDON, and HENNESSEY, JJ.

REARDON, Justice.

This petition is for a writ of mandamus and is brought against the Board of Registrars of Voters of East Bridgewater (the board) and the town clerk, as well as against Charles M. Repeta, Jr., a registered voter in that town. The petitioner is likewise a registered voter, and he and Repeta were among five candidates for the office of selectman at an election held on March 7, 1970. Upon a count of the ballots the town clerk on March 8, 1970, declared that Repeta had been elected selectman and a certificate of election was issued, whereupon he gave his oath and entered upon the selectman's duties. The petitioner requested a recount which was held on March 18, 1970, conformable to the pertinent provisions of G.L. c. 54, § 135. At the conclusion of the recount the board by written decision stated that the recount, which showed Repeta elected by a margin of two votes over the petitioner, did not change the results of the election. This petition for mandamus under G.L. c. 56, § 59, followed. It seeks an order requiring the board to certify to the town clerk the election of the petitioner.

The count on five ballots was contested by the petitioner at the recount. A judge of the Superior Court, after hearing the petition, ruled that protested ballots Nos. 1, 2 and 3 were correctly counted for Repeta, while protested ballots Nos. 4 and 5 were incorrectly counted as blanks and should have been counted for the petitioner. The judge thus ruled that each of the two candidates received 520 votes and, hence, since no candidate had received a plurality of the votes cast, no one was elected to the office of selectman. He entered an order for judgment that the writ issue commanding the board to count the protested ballots and certify the failure to elect in accordance with his ruling. Both the petitioner and Repeta have appealed the order for judgment.

The determination of the legal effect of ballots is a question of law. De Petrillo v. Registrars of Voters of Rehoboth, 342 Mass. 13, 14, 171 N.E.2d 843. CHAMBERLAIN V. BOARD OF REGISTRARS OF VOTERS OF HARWICH, MASS. , 265 N.E.2D 591.^A The basic purpose of the review of the ballot is the ascertainment of the will of the voter. 'If the ballot, considered in the light of the character and location of the mark and conditions attendant upon the election, fairly indicates the voter's intent, the vote should be counted in accordance with that intent, provided the voter has substantially complied with the requisites of the election law. The voter is not to be disfranchised because of minor irregularities. Where, however, the ballot is marked in such a way as to leave the intent of the voter in the realm of conjecture, the vote should not be counted.' Kane v. Registrars of Voters of Fall River, 328 Mass. 511, 518, 105 N.E.2d 212, 216. We proceed now to an examination of the ballots. ¹

As to the first three ballots protested, we conclude as did the judge for reasons which he assigned as follows and which we adopt.

'As to protested ballot number 1, which ballot was counted for the candidate Repeta, I rule that the respondent board correctly counted this ballot. This court did not have the benefit of the testimony of any person skilled in the art (or science) of handwriting, and had to rely on its own eyesight and judgment. From an examination of the entire ballot, it is clear that the voter understood that the marking of a cross beside the name of a candidate was the appropriate way to register his choice. The cross beside the name of the candidate Repeta is clear and unmistakable. The markings in the box beside the name of the candidate Chase do not indicate a 'final indecision' on the part of the voter as to his choice for selectman, but are quite consistent with a mistake having been made by the voter in the first instance, and an attempt then being made to rectify the mistake by 'scribbling' rather than by an erasure. Under such circumstances, and in the absence of any evidence other than the ballot itself, I rule that the intent of the voter was not left in the realm of conjecture, and that the respondents correctly counted the ballot as a vote for the candidate Repeta.

'With regard to protested ballot No. 2, this ballot was counted for the candidate Repeta. It is clear from the markings on the ballot, that a cross had been placed beside the name of the candidate Robichaud and later erased. The cross beside the name of the candidate Repeta is clear and distinct, and the vague and formless markings around that cross are of no more significance than similar markings in the box beside the name of one Carey, a candidate for Moderator, which appears at the top of the ballot. An erasure always gives rise to a suspicion of tampering. Suspicion, however, is not evidence, and insofar as ballot No. 2 is concerned, the presumption of regularity has not been overcome. I therefore rule that the respondents...