State ex rel. Booth v. Board of Ballot Com'rs of Mingo County, 13238

Decision Date01 May 1973
Docket NumberNo. 13238,13238
PartiesSTATE ex rel. Donald Q. BOOTH and the Democratic Executive Committee of Mingo County, West Virginia v. The BOARD OF BALLOT COMMISSIONERS OF MINGO COUNTY et al.
CourtWest Virginia Supreme Court
Syllabus by the Court

1. A citizen, taxpayer and voter has such interest as entitles him to maintain a Mandamus to compel the board of ballot commissioners to discharge its duties lawfully in respect to the preparation of ballots lots for a general election. Likewise, a political party executive committee, being the statutorily presumed representative of the citizens and voters who are members of that political party, has an interest or standing to compel the ballot commissioners to discharge their duties lawfully in respect to the preparation of ballots for a general election.

2. Standing or interest, however, is not equivalent to Clear legal right which is an affirmative burden placed on any relator in Mandamus, whether the right he seeks to vindicate is in election matters under Chapter 3 of the Code, 1931, as amended, or a right generally cognizable under the Constitution and statutes of the State.

3. In that Mandamus was never intended to determine a right, but only to enforce a right, evidence cannot be taken and proof cannot be made in this Court or in a circuit court of this State which would permit, in the first instance, the trial of an election contest by the use of the writ of Mandamus.

4. Mandamus may not be employed to prove a charge of election fraud occasioned through alleged after-hours voting. Such charges are matters of factual determination, reviewable by writ of error or appeal or controllable in their method of determination by Mandamus.

5. Though Mandamus can compel a lower tribunal or a county court, sitting as an election contest court, to decide a case properly and legally, the writ cannot be employed to direct such tribunal, having jurisdiction in the first instance, how to decide the case.

6. Neither a political party executive committee nor its 'colorable' candidate has a clear legal right to require a decision by this Court in Mandamus of factual matters involving a charge of election fraud; proof of election fraud or like charges involving factual determination, must be adduced before and determinated by an election contest court as mandated by the Constitution, Article VIII, § 24 and Article IV, § 11 and Chapter 3 of the West Virginia Code or through Quo warranto or a proceeding in the nature thereof.

7. There is no legal duty, ministerial or discretionary, devolved upon the board of ballot commissioners by Chapter 3 of the West Virginia Code to hold an election contest or to make an independent inquiry into the results of the primary election and determine who, other than those certified to it by the board of canvassers, shall be candidates in the general election and entitled to have their names as such placed upon the ballot.

8. A board of ballot commissioners will not be required by Mandamus to place the name of a person on a general election ballot as nominated to fill an assumed vacancy in a county office where such vacancy does not exist as a matter of law or has not been ascertained by competent authority prior to the time the Mandamus proceeding was commenced.

9. The right to Mandamus, though a remedy broad in scope and expanded and enlarged in jurisdiction, must exist when the proceeding is instituted.

10. When a candidate for county office in a primary election has received a regular certificate of nomination issued by the board of canvassers at the conclusion of a recount, a writ of Mandamus will not issue at the behest of a mere claimant to that office based upon a charge of fraud in the conduct of the election, that being a factual matter to be determined in the proper tribunal.

11. A certificate of election is conclusive to the result of the election until set aside or vacated in some manner authorized by law on direct attack and is not subject to collateral attack by Mandamus.

12. To the extent State ex rel. Zickefoose v. West, 145 W.Va. 498, 116 S.E.2d 398 (1960); Adams v. Londeree, 139 W.Va. 748, 83 S.E.2d 127 (1954); State ex rel. Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302 (1918), insofar as they hold that election Mandamus may be employed to vindicate all rights claimed by one aggrieved as a result of the conduct of an election or the procedures used therein, such decisions are expressly disapproved and overruled.

13. To the extent State ex rel. Dodrell v. Payne, 87 W.Va. 306, 104 S.E. 733 (1920), holds that a political party executive committee, pursuant to Code, 1931, 3--5--19, as amended, can make an extrajudicial determination, on its own motion, of a vacancy in office under circumstances excluding death of a regularly certified candidate, or other disqualifications subsisting under the law, such case is expressly disapproved and hereby overruled.

William L. Jacobs, Parkersburg, for relators.

Zane Grey Staker, Kermit, for respondents.

HADEN, Judge.

This is an original proceeding in Mandamus by Donald Q. Booth and the Democratic Executive Committee of Mingo County, to compel the respondents, the Board of Ballot Commissioners of Mingo County and Robert J. Webb, County Clerk of Mingo County and as ex-officio member of said board, to omit the name of Donald Evans from the November 7, 1972 general election ballot for the office of Assessor of Mingo County, and to place in substitution therefor the name of Donald Q. Booth, relator, as the nominee of the Democratic Executive Committee of said county on the general election ballot as the rightful moninee of the Democratic party for that office.

On October 10, 1972, this Court by order, denied the relators the relief requested in their Mandamus, and we now set forth the reasons for said denial.

There were four candidates for the office of assessor in the Democratic primary of May 9, 1972. The results of the election upon first tabulation were recorded and certified by the County Court sitting as the Board of Canvassers for Mingo County and reflected that Donald Evans received 3,051 votes and that Howard B. Chambers received 3,017 votes. The relator Booth, one of the two remaining candidates, ran third. Consistent with statutory procedure and based upon these returns and tabulations, a certificate of nomination was issued to Donald Evans on May 9, 1972, as the Democratic nominee for the office of Assessor of Mingo County. Howard B. Chambers, having received the second highest number of votes and deeming himself aggrieved, made proper and timely demand for a recount under the provisions of West Virginia Code, Chapter 3, Article 5, Sections 17 and 18 (1931), as amended, (hereinafter cited as Code, 1931, 3--5--17 and 18, as amended). These sections provide a procedure for ballot recount for candidates who believe themselves adversely affected by the preliminary findings of the Board of Canvassers. Of the three losing candidates, all of whom could demand a recount under the provisions above-cited, only Chambers did.

It was Chambers' contention that poll officers in at least two precincts had allowed the casting of votes after seven-thirty o'clock in the evening, the statutory termination time for polling, and that the Board should therefore exclude and disallow all votes cast in those precincts.

Chambers' specific contention, which relators subsequently assumed for purposes of this writ, was that in precincts numbers 75 and 76, at least 75 total votes were illegally cast after 7:30 p.m. In addition, he contended that the illegal votes were commingled with the legal votes. Further, according to Chambers, there being no feasible method of separating the legal from the illegal where voting machines are used for balloting, the entire Democratic vote of both precincts should have been rejected. Relators also argue proof would establish should only one of the two precincts be found improper, the remaining uncontested votes would have been sufficient to declare Chambers as the Democratic nominee.

On May 16, 1972, the Board of Canvassers did reconvene and began the recount demanded by Chambers. On June 12, 1972 and during the progress of the recount, Howard B. Chambers departed this life. The Board of Canvassers subsequently concluded the recount June 21, 1972. The results of the previous tabulation were affirmed and the Board of Canvassers reissued a certificate of nomination to Donald Evans.

Relators assert that the Democratic Executive Committee of Mingo County, hereinafter referred to as the Committee, did not concur in the findings of the Board of Canvassers with regard to the assessor's race, and that they concluded, to the contrary, that Donald Evans did not have sufficient legal votes necessary for the nomination. It was their further conclusion that Chambers was the legal nominee. Inasmuch as Chambers was then deceased and by their conclusion, the office of assessor being vacant, the Committee, on August 24, 1972, nominated the relator, Booth, as the Democratic nominee for that office. All such action by the Committee was predicated under the provisions of Code, 1931, 3--5--19, as amended, relating to the filling of vacancies in offices to be voted upon in the general election. Under the provisions of that statutory section, if any vacancy should occur in the party nomination for office by reason of death of the nominee or other causes, such nomination may be filled and the name of the candidate certified by the executive committee of the political party for the political subdivision in which the vacancy occurs if completed within sixty-five days after the primary election. Under the color of this statute, and relying upon their independent determination that Chambers was the legally elected nominee, the Committee chose and certified Booth as their nominee to the ...

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