State ex rel. Bonzon v. Weinstein, s. 36465
| Decision Date | 24 September 1974 |
| Docket Number | 36466,Nos. 36465,s. 36465 |
| Citation | 514 S.W.2d 357 |
| Parties | STATE ex rel. James C. BONZON, Relator, v. Honorable Noah WEINSTEIN, Judge, Circuit Court of St. Louis County at Clayton, Missouri, Respondent. STATE ex rel. F. William HUMAN, Jr., et Al., Constituting the Board of Election Commissioners of St. Louis County, Missouri, Relators, v. Honorable Noah WEINSTEIN, Judge, Circuit Court of St. Louis County at Clayton, Missouri, Respondent. . Louis District |
| Court | Missouri Court of Appeals |
Hearnes, Padberg, Raack, McSweeney & Slater, Godfrey P. Padberg, St. Louis, for relator James C. Bonzon.
Lewis, Rice, Tucker, Allen & Chubb, F. William McCalpin and Frank P. Wolff, Jr., St. Louis, for relator F. William Human, Jr., et al.
John D. Schneider, St. Louis, for respondent.
These two writs of prohibition arise out of a primary election contest brought by contestant DeCoursey against contestee-relator Bonzon, the Board of Election Commissioners of St. Louis County, also relators, and the Secretary of State of the State of Missouri. At the primary election in question, Bonzon received one more vote than DeCoursey to win the Democratic Party nomination for state representative from the 106th District. After a preliminary hearing on the contest petition, in which DeCoursey alleged misconduct and irregularities, respondent the Honorable Noah Weinstein indicated to the parties that he would declare the election invalid and order a new election to determine the Democratic nominee. Contestee Bonzon and the Board of Election Commissioners each brought prohibition in this court, seeking our writ commanding respondent to refrain from declaring the election invalid or ordering a new election.
Our preliminary writ of prohibition issued on September 4, 1974. Following briefs and argument on the case, we made the preliminary writ absolute on September 13, and noted that this opinion would follow. Because of the hardship delay in this case would work on the parties, we have not received a transcript of the proceedings below, but have taken the facts as developed by the pleadings and in suggestions and oral arguments.
The election for the 106th District party nominees was conducted in conjunction with the statewide primary elections on August 6, 1974. The results for state representative on the Democratic side, as certified by the election board, showed that contestee Bonzon received 788 votes (778 machine votes and 10 absentee ballots) and contestant DeCoursey 787 votes (781 machine votes and six absentee ballots). 1 The substance of contestant's argument in the court below was that there were two more votes shown as cast on the voting machines than there were persons recorded as having voted by election officials. Respondent cited this discrepancy as the reason for declaring the election invalid and ordering a new election.
As a preliminary matter, we note that the one unique fact behind the legal issues raised on these writs was the use of voting machines, rather than paper ballots, in this election. Respondent argues that where, as here, there is a numerical discrepancy between the number of votes cast as shown on the voting machines and the number of voters recorded as having voted by precinct election officials, the result of the election is placed in enough doubt to allow a judge to declare the election invalid. Presumably the same type of discrepancy in a paper ballot election could have been resolved by resort to statutory recount procedures, because during such a recount individual paper ballots can be examined to determine their authenticity. In an election where voting machines are used, of course, it is impossible to examine individual ballots.
To better understand respondent's argument and the discrepancies in the vote tally in this election, a brief review of the 'normal' voting procedures in primaries where voting machines are used will be helpful.
The election board employs three devices at the precinct level to protect against fraud and to ensure that only validly registered persons enter a voting booth. The first is a 'yellow' registration card for each voter in a precinct. This card is supplied to precinct election judges on election day, and corresponds to a 'white' master card permanently on file with the board. 2 When a particular voter arrives at the polls with the intention of voting, officials mark the date of the election on the yellow registration card in the space after the date entered on the voter's last trip to the polls.
The second protective device is the 'comparative signature card,' which is handed to each voter who appears at the polls with the intention of voting. 3 The voter places his signature and his precinct number on this card.
That signature card is then passed to one or two election judges--usually one from each political party--and each judge enters the voter's name in the 'poll book,' which is the third protective device. The poll book is numbered for each entry, and the judge places the number for each voter on the voter's signature card. Since both parties keep poll books, there should be two identical books, one kept by the Democratic judge and one by the Republican judge, at the close of elections.
After the voter's name is entered in the poll book, he hands the numbered signature card to the voting judge at the voting machine. The voter declares his party preference, and the judge 'locks out' the vote keys for candidates from the opposing party. The voter then enters the machine and votes.
On the voting machine itself there are two protective devices which count the number of persons who actually vote. The 'public counter' inside the machine records the number of voters who enter the machine voting booth and activate a lever which closes the curtains and allows the voter to cast a ballot. This counter is 'zeroed' before the day's voting begins. A second counter, the 'protective counter' is located outside the machine. This counter is not zeroed and keeps a cumulative total of the number of persons voting from one election to the next. At the end of a day's voting, the numbers on the public and protective counters should match. Other counters in the machine record the number of votes received by each candidate for public office. It should be noted that both the public and protective counters record only the total vote, that is, the number of persons entering the machine to vote. These counters neither distinguish between Democratic or Republican votes, nor votes cast for individual candidates for each office contested. 4
With these procedures in mind, the discrepancies put at issue by contestant De-Coursey's petition come into sharper focus. Contestant disputed the voting results for the Democratic nomination for state senator at two polling places, Concord 21--42 (a two-precinct polling place) and Concord 44. The pertinent totals on the Democratic side are as follows:
Polling Place Dated "Yellow" Comparative Names in Number on
------------- -------------- ----------- --------- ---------
Registration Signature Poll Book Machine
-------------- ----------- --------- ---------
Cards Cards Counters
-------------- ----------- ---------
Concord 21-42 541 539 539 540
Concord 44 263 258 258 259
In the 'normal' situation the totals in the columns above for each polling place would coincide exactly. But in the Concord 21--42 and Concord 44 polling places, the above discrepancies turned up and are the substance of respondent's judgment and order.
According to the briefs and oral argument before this court, several explanations for the above discrepancies were put before the court below.
In oral argument it was stated by one of the attorneys for the relator that the difference between the number of dated yellow registration cards and the number of comparative signature cards was not an unusual occurrence in an election. 5 Occasionally a person whose yellow card has been dated and who has been handed a signature card will become impatient with waiting in line to vote and will leave the polling place with the signature card in his hand. It was also stated that one voter, whose yellow card was dated and who had been handed a signature card, walked out of a polling place after being told he could not vote for both Democratic and Republican candidates.
On oral argument relators offered an explanation for the discrepancy between the total number of votes recorded by the machines and the total number of persons voting according to the poll books. Statements were also made in the oral arguments that election judges made up the poll books in polling places in question incorrectly, making entries in the book after each person voted rather than before. According to this explanation, a signature card could have been dropped or lost before being given to the judge in charge of the poll book, or a voter could have walked out of the polling place without turning in his signature card.
Following this explanation, one would expect the number of signature cards to correspond exactly with the number of entries in the poll books. The loss of a signature card could have been detected only if the election judges had compiled the poll books before the voter entered the booth and handed his card to the judge at the voting machine.
Relators further point out that in neither polling place, Concord 21--42 or Concord 44, were there more persons recorded as voting by the machine counters than persons who entered the polling place to vote as recorded by the yellow registration cards. Nor was there any evidence that the two votes in dispute were cast for contestant, or even on the Democratic ticket.
Contestant's petition before respondent was in the alternative, asking for a statutory recount or...
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