Sims v. Atwell

• Decision Date: 14 October 1977
• Citation: 556 S.W.2d 929
• Parties: Jack SIMS, Appellant, v. Harold ATWELL and Jimmy McCoy, George Lang, Conroy Harris and G. A. (Slim) Shelton as members of the Hart County Board of Elections, Appellees. Harold ATWELL, Cross-Appellant, v. Jack SIMS and Jimmy McCoy, George Lang, Conroy Harris and G. A. (Slim) Shelton as members of the Hart County Board of Elections, Cross-Appellees.
• Court: Kentucky Court of Appeals

Page 929

556 S.W.2d 929

Jack SIMS, Appellant, v. Harold ATWELL and Jimmy McCoy, George Lang, Conroy Harris and G. A. (Slim) Shelton as members of the Hart

County Board of Elections, Appellees.

Harold ATWELL, Cross-Appellant, v. Jack SIMS and Jimmy McCoy, George Lang, Conroy Harris and G.

A. (Slim) Shelton as members of the Hart County

Board of Elections, Cross-Appellees.

Court of Appeals of Kentucky.

Oct. 14, 1977.

Davis Williams, Munfordville, for appellant, Jack Sims.

Joseph R. Huddleston, Bowling Green, Marion Vance, Glasgow, for appellee, Harold Atwell.

George E. Lang, Munfordville, for appellees, Hart County Board of Elections.

Before COOPER, GANT and PARK, JJ.

PARK, Judge.

This is an election contest arising out of the Democratic primary for county judge-executive of Hart County conducted on May 24, 1977. As certified by the board of elections, the contestee-appellant, Jack Sims, was the apparent winner by a plurality of forty-five votes, based upon the following tabulation:

Jack Sims 1626 Harold Atwell 1581 Eursie L. Sullivan 384

The contestant-appellee, Harold Atwell, instituted an election contest proceeding in the Hart Circuit Court challenging all of the votes in Euclid precinct (A-103). As tabulated by the board of elections, the following votes were cast in Euclid precinct:

Jack Sims 84 Harold Atwell 37 Eursie L. Sullivan 14

Thus, if the votes in Euclid precinct were all eliminated, Atwell would be the winner by a plurality of two votes.

The case was tried before the circuit court by deposition as permitted by KRS 120.065. In an Order, Opinion and Judgment entered September 9, 1977, the trial judge held that all of the votes cast in Euclid precinct should be disregarded. On the basis of the vote in the remaining sixteen precincts and the absentee ballots, Atwell was declared the winner by a plurality of two votes. Each party was directed to pay his own costs. Because the case was tried by deposition, the costs were substantial. Sims appeals from that portion of the judgment declaring Atwell to be the Democratic nominee for county judge-executive. Atwell cross-appeals from that portion of the judgment relating to costs.

Throughout the proceedings, Atwell has contended that the irregularities in the conduct of the election in the Euclid precinct were of such magnitude as to justify disregarding all of the votes cast in that precinct. Atwell relies primarily upon the decision in Upton v. Knuckles, Ky., 470 S.W.2d 822 (1971). Sims has conceded that

there were illegal votes cast in the Euclid precinct, but he asserts that Atwell has failed to prove that the illegal votes were cast for Sims. Because of this failure of proof, Sims asserts that all of the illegal votes in the Euclid precinct should be charged against Atwell. He cites Watts v. Fugate, Ky., 442 S.W.2d 569 (1969). Although the paramount issue relates to violations of the secret ballot, there are numerous other irregularities which must be considered in determining whether the vote in Euclid precinct should be disregarded.

GENERAL CONDUCT OF ELECTION

Pursuant to KRS 117.045, the county board of elections appointed the following precinct election officers: Willie McCoy, Judge (Democrat); Lawrence Bacon, Judge (Republican); James Wood, Clerk (Democrat); and Mable Bratcher, Sheriff (Republican). James Wood did not serve as precinct clerk at the May primary election. Betty Horton was appointed by McCoy to act in Wood's place as the Democratic clerk of the election. As he was the only duly appointed Democratic election officer present at the Euclid precinct on the day of the election, McCoy apparently was acting under the authority of KRS 117.045(3) when he selected Betty Horton to act as the Democratic clerk.

Atwell attacks the appointment of Betty Horton on two grounds. First, Atwell relies upon the testimony of Wood that, several days before the election, he informed McCoy that he would be unable to serve as clerk. McCoy testified that Wood stated only that he might not be able to serve. According to McCoy, he asked Betty Horton to be available to serve as an election officer in the event that Wood did not come to the polls on election day. The trial judge made no findings of fact with respect to this issue. The record is clear that the county board of elections was not informed by anyone of Wood's intention not to serve so that the vacancy could be filled by the board of elections pursuant to KRS 117.045(2).

Even more important than the method of her appointment is the fact that Betty Horton was a registered Republican. However, the record also establishes that Mrs. Horton had been a registered Democrat until 1973 until she switched registration to assist a Republican candidate. At the time of the election in question, she was on the Democratic party executive committee by virtue of being Democratic chairwoman for Euclid precinct. On one prior occasion she had served as an election officer.

Betty Horton was not lawfully qualified to serve as the Democratic clerk at the primary election May 24, 1977, at the Euclid precinct. Nevertheless, the defect in her appointment should not disfranchise all of the voters in the Euclid precinct. Burchell v. Smith, Ky., 262 S.W.2d 365 (1953); Harmon v. Wilson, Ky., 254 S.W.2d 693 (1953). Atwell cites no authority for the proposition that the vote of an entire precinct will be disregarded merely because one of the persons serving as an election official was not properly qualified. In view of McCoy's authority under KRS 117.045(3) to fill a vacancy in the office of Democratic clerk, Betty Horton was, at the very least, a de facto officer. Schaffield v. Hebel, 301 Ky. 358, 192 S.W.2d 84 (1946). Consequently, the election at Euclid precinct will not be invalidated merely because of the irregularity in the appointment of Betty Horton as the Democratic clerk of election.

None of the election officers at the Euclid precinct took an oath of office. Atwell cites no statute requiring an oath for precinct election officers. KRS 116.120 formerly required an oath, but it has been repealed. 1972 Ky. Acts, Ch. 188, § 69. Assuming that an oath were required by Section 228 of the Kentucky Constitution or the general statute relating to oaths, KRS 62.010, the failure of the precinct election officers to take an oath does not invalidate the election in that precinct. Hodges v. Hodges, Ky., 314 S.W.2d 208 (1958).

The election in Euclid precinct was conducted in a small storeroom attached to a grocery in the Kessinger community. Although the evidence is conflicting, the great The record establishes that none of the precinct election officers received the instruction required by KRS 117.185(1). We deem this fact to be immaterial. The statute refers to instruction "in the use of the voting machines." There is no evidence that the precinct officers were presented with any problem in the operation of the voting machine in Euclid precinct at anytime during the election day. The record also establishes that the Hart County Fiscal Court had not authorized electioneering at polling places as provided by KRS 117.235(3). Not only was there electioneering in the vicinity of the polls at the Euclid precinct, but, as the trial judge found, the electioneering occurred up to the very doors of the voting room. However, there was no evidence that the electioneering interfered with the secrecy of the voting or that it in any way affected the outcome of the election at the Euclid precinct. The trial judge specifically found that there was no disorder or intimidation. Under these circumstances, electioneering adjacent to the polls does not justify invalidating all of the votes in the precinct. Stanley v. Goff, Ky., 324 S.W.2d 124 (1959).

weight of the evidence indicates that McCoy spent most of the day on the front porch of the store. The trial judge made no specific finding on this issue, but did find that a large number of persons were permitted to electioneer "even at the very doors of the voting room." There is also evidence that other election officers were absent for short periods of time during the day. Even if McCoy were absent from the voting room for most of the day, that fact alone would not invalidate the election. Schaffield v. Hebel, supra.

None of the general objections to the conduct of the election in Euclid precinct would sustain a judgment invalidating all votes cast in that precinct in the election, and the judgment of the trial judge was not based upon those grounds. Nevertheless, the foregoing evidence relating to McCoy's actions on election day and the appointment of Betty Horton is relevant on the question of open voting.

OPEN VOTING

The secret ballot has been a cornerstone of our representative form of government since the adoption of the present Constitution of Kentucky in 1891. Section 147 of the Kentucky Constitution provides:

. . . (A)ll elections by the people shall be by secret official ballot, furnished by public authority to the voters at the polls, and marked by each voter in private at the polls . . . The General Assembly shall pass all necessary laws to enforce this section, and shall provide that persons illiterate, blind, or in any way disabled may have their ballots marked or voted as herein required.

Pursuant to this constitutional mandate, KRS 117.255(2) provides:

No voter shall be permitted to receive any assistance in voting at the polls unless he makes and signs an oath that, by reason of inability to read English, or by reason of blindness or other physical disability he is unable to vote without assistance. Upon making and filing with the judges such oath, the voter shall retire to the voting machine, with the judges, and one (1) of the judges shall then, in the presence of the other and the voter, operate the machine as the voter directs. The disabled person applying to vote may, if he prefers, be assisted by a person of his own choice who is not an election officer. The...