Sommerfeld v. Board of Canvassers of City of St. Francis

• Decision Date: 16 April 1954
• Citation: 69 N.W.2d 235,269 Wis. 299
• Parties: Robert P. SOMMERFELD, Appellant, v. BOARD OF CANVASSERS OF THE CITY OF ST. FRANCIS, Wisconsin, et al., Respondents. In re Re-Count Proceedings Held
• Court: Wisconsin Supreme Court

Page 235

69 N.W.2d 235

269 Wis. 299

Robert P. SOMMERFELD, Appellant,

v.

BOARD OF CANVASSERS OF THE CITY OF ST. FRANCIS, Wisconsin,

et al., Respondents.

In re Re-Count Proceedings Held April 16, 1954, etc.

Supreme Court of Wisconsin.

March 8, 1955.

Gerald J. Rice, Milwaukee, for appellant.

Bender, Trump, McIntyre, Trimborn & Godfrey, Milwaukee, Kneeland A. Godfrey, Milwaukee, of counsel, for respondents.

BROADFOOT, Justice.

Only one question is presented for determination. That involves the legality of the 18 absentee ballots under the facts in this case. The stipulation of facts with reference thereto was as follows:

'That the eighteen (18) absentee ballots cast for Paul H. Rainer in Ward 3 were part of twenty-one (21) absentee ballots issued to a group of absentee voters residing at 3221 So. Lake Drive in the City of St. Francis.

That said twenty-one (21) absentee ballots were properly issued under Section 11.54, Wisconsin Statutes, pursuant to written postcard requests from said voters, made under Section 11.56, Wisconsin Statutes, all on U. S. postcards, typed in a uniform manner and with identical language. That all such absentee ballots were properly marked by said absentee voters as provided by Section 11.59 who executed the affidavits and the envelopes containing such ballots and stamped them for mailing back to the City Clerk of St. Francis; but that said voters did not return said absentee ballots in the envelopes by mail, or deliver the same in person, as provided by sec. 11.59, Wisconsin Statutes, but caused the same to be returned to the Clerk of the City of St. Francis by a third person, who returned the sealed envelopes to the said Clerk.'

Sections 11.54 through 11.70, Stats., deal with absentee voting. Few cases have been decided in Wisconsin under those sections. At one time section 11.62 required inspectors to endorse absentee ballots before depositing them. Later that section was amended to provide that the ballots should be endorsed by the ballot clerks before they were deposited. Failure to comply with these provisions has been held in two cases not to invalidate the ballot cast by an absentee voter. State ex rel. Symmonds v. Barnett, 182 Wis. 114, 195 N.W. 707, and In re Burke, 229 Wis. 545, 282 N.W. 598. Thus strict compliance, so far as the election officials were concerned, was not required.

Most states have provided for so-called absentee voting. In some states absentee voting is held to be a privilege granted to the elector and not an absolute right, and in those states the laws regulating absentee voting generally receive a strict construction. In other states such laws are given a liberal construction. Because of a difference in the statutes of the various states little help can be received from the decisions in other jurisdictions.

Our statutes are not only divided into chapters but they are divided into titles. Title II, denominated 'Elections,' embraces chapters 5 through 12 of the statutes. Section 5.011 provides that Title II shall be construed so as to give effect to the will of the electors, if that can be ascertained, notwithstanding informality or failure to comply with some of its provisions. Originally absentee voting was confined to persons in the military service. It has now been extended to apply to those who, because of sickness, physical disability, or religious reasons, cannot appear at the polling place in their precincts and to those who expect to be absent from their places of residence on the day of an election.

The sentence directly in question uses the word 'shall' with reference to mailing, and the word 'may' with reference to delivery in person. Provisions for absentee voting have been adopted because of changed conditions. Modern transportation has greatly affected our social and economic lives and many persons find it necessary or convenient to be away on election day. The number of absentee ballots is increasing rather than decreasing. Where possible our statute should be interpreted to enable these people to vote.

As an example of strict construction, Sommerfeld's attorney calls attention to the case of McMaster v. Wilkinson, 145 Neb. 39, 15 N.W.2d 348, 353, 155 A.L.R. 667, but in that case it was stated:

'It is the policy of the law to prevent as far as possible the disfranchisement of electors who have cast their ballots in good faith, and while the technical requirements set forth in the absentee voting law are mandatory, yet in meeting these requirements laws are construed so that a substantial compliance therewith is all that is required.'

Apparently even in those states which have adopted a rule of strict construction they state that a substantial compliance therewith is all that is required.

With reference to the construction of election statutes as mandatory or directory the rule is stated as follows in 29 C.J.S., Elections, § 214, p. 310:

'The difference between...