State Ex Rel. Ray Lambert v. Bd. Of Canvassers Of Nicholas County, (No. 6438)

• Citation: 106 W.Va. 544
• Decision Date: 12 December 1928
• Docket Number: (No. 6438)
• Court: Supreme Court of West Virginia
• Parties: State ex rel. Ray Lambert v. Board of Canvassers of Nicholas County et al.

106 W.Va. 544

State ex rel. Ray Lambert

v.Board of Canvassers of Nicholas County et al.

(No. 6438)

Supreme Court of Appeals of West Virginia.

Submitted December 11, 1928.

Decided December 12, 1928.

January 15, 1929.

1. Elections Voter's Failure to Strictly Observe Statutory

Methods of Marking Ballots Does Not Necessarily Render Ballot Invalid if Intention is Ascertainable (Code, c. 3, § 34).

Points 1 and 2, syllabus, Frazier v. Board, 79 W. Va. 425; point 2, syllabus, Hatfield V. Board, 98 W. Va. 41; and, point 5, syllabus, Johnson v. Board, 102 W. Va. 703, applied, (p. 546.)

2. Same Placing X Before Name of First Presidential Elector

Does Not Constitute Vote for Each Party Candidate.

Placing an X before the name of the first presidential elector does not constitute a vote for each party candidate, but only for said elector. (p. 546.)

3. Same One Attacking Validity of Absent Voters' Ballots in

Respect to Filing Affidavits Has Burden of Showing Noncompliance With Statute.

Where absent voters' ballots do not bear the signature of the poll clerks, but are properly authenticated and identified by the seal and signature of the clerk of the circuit court, the party seeking to attack the validity of such in respect to the filing of the affidavits required by statute, bears the burden of showing that the statute was not complied with. (p. 549.)

Original mandamus by the State, on the relation of Ray Lambert, against Otto Smith and others, constituting the Board of Canvassers of Nicholas County.

Writ granted.

Emmett Horan, A. F. McCue and M. F. Matheny, for relator.

Jno. T. SimmSj E. II. Morton, O. C. Lewis and A. N. Breckenridge, for respondents.

Woods, Judge:

On a canvass of the returns of the election held in Nicholas county on November 6, 1928, for the office of sheriff, W. E. Morton, democrat, received 3, 795 votes and Ray Lambert, republican, 3, 776. Lambert, together with the republican candidates for prosecuting attorney, commissioner of the county court and member of board of education in one district, demanded a recount. A total of 210 ballots were questioned by the several candidates during the progress of the recount. These ballots, pursuant to an agreement entered into between the candidates at the beginning of the recount for the four foregoing offices, were laid aside, and taken up and considered last. The recount closed on November 27th, Morton and Lambert having a total 3, 794 each. The board, however, did not declare the result on that day, but adjourned over to December 3rd, at which time the 210 ballots in dispute were again recounted and Morton declared elected by a majority of twelve votes, and a certificate of election issued to him. Indorsements were made on the backs of the respective ballots on December 3rd, showing how each had been counted on that day, together with additional notations as to how they had been counted on November 27th.

The present proceeding was instituted to compel the board of canvassers to re-convene and to properly count certain ballots as required by law, to declare relator to have a majority of all the votes case for the office of sheriff of said county, and to issue to him a certificate of election to said office. Relator attacks 50 of the 210 ballots aforesaid, claiming that the board, over his objection, improperly counted certain of them for Morton, and rejected and refused to count certain others for him. According to his contention if the same had been counted as required by law, he (Lambert) would have a majority of all the votes cast for said office of sheriff. Respondent Morton's answer and return to the alternative writ defends the board's action in regard to the count complained of by relator and brings 52 additional ballots from the 210 into question. Of the remaining 108 of the 210 ballots aforesaid there is no question between the parties to the present pro- ceeding. Out of that number Lambert received 45 and Morton 45. Relator on the day of the hearing in this Court stated that for a basis of arriving at the result of the election that the Court should assume that Morton had 3, 745 and Lambert 3, 733 votes, exclusive of said 210 ballots which were presented in open court. And this was agreed to by counsel for respondent in open court.

In section 34, chapter 3, Code, certain methods of marking a ballot are prescribed, by the use of which a voter may declare his intention. However, these methods are not exclusive, and a failure to strictly observe them will not necessarily render a ballot invalid, if the voter's intention can be determined by an inspection of his ballot when cast. Johnson v. Board of Canvassers, 102 W. Va. 703; Hatfield v. Board of Canvassers, 98 W. Va. 41; Shore v. Board of Canvassers, 64 W. Va. 705. Under the statute, if a voter desires to vote a straight ticket, he may do so by placing a cross in the circle under one of the party emblems, by defacing the tickets other than the one desired to be voted by him, or by placing an X before the names of every candidate on a particular ticket. And, if he desires to vote a mixed ticket, or, in other words, for candidates of different parties, the statute provides certain rules whereby he may indicate such an intention. In so voting he has the privilege of voting for one candidate for each office, regardless of the ticket upon which the candidate's name appears, or for a candidate for one office, and for none other, if he cares to vote for but one.

Among the contested ballots are nineteen which have but one mark an X in the square to the left of either the first republican or first democratic presidential elector. Six such were counted as straight republican tickets and counted for relator, and thirteen as straight democratic tickets and counted for respondent Morton. Morton contends that it was the clear intention of the voters of this group to vote a straight ticket. Can we say that placing an X in front of the name of the first presidential elector, or before all of the presidential electors on either one of the foregoing tickets carries an intent to vote the straight ticket? In the case of Frazier v. Board of Canvassers, supra, ballots wherein the voters had not selected a ticket as provided by statute were counted for only the first presidential elector and such other candidate or candidates (whether on the same or different tickets) as had an X before their names. One of the ways provided by statute for voting a mixed ticket, or in other words for candidates of different parties, is for the voter to omit making a cross in the circular space above the name of the party, and make a cross mark in the blank space before the name of each candidate for whom he desires to vote on whatever ticket the name may be. In the case of Houston v. Steele, 98 Ky. 596, under similar conditions, it was held that the placing of a cross-mark before the name of the first presidential elector on a party ticket did not constitute a vote for each party candidate on said ticket, but only for the candidate before whom the mark is made. There the voter had a right to select a ticket, as in this state, by placing an X anywhere in the large square at the head of the ticket which contained the party emblem and name. And the reason is given there that, since the statute provided a means by which a voter could vote a selective ballot, and a means whereby a voter could vote for the first presidential elector exclusively, if he chose to do so, that the fact that an X appeared there made it a vote for that candidate and a vote for no one else. Such must be our holding in the instant case. The ballots should not have been counted for the office of sheriff. There are 35 ballots closely akin to those just discussed, in which the voter has, in addition to a cross in the square before the name of the first presidential elector, either placed an X before one or more candidates on the same ticket, or on a different ticket, or both. A few of this group have an X placed before the names of two or more or all of the presidential electors of a particular party. The intention was to vote for those candidates X'd. This throws out nineteen ballots counted for Morton and sixteen ballots counted for Lambert.

There is another general class of ballots where an X appears before the name of the presidential and in some instances before the names of both the presidential and vice-presidential candidates. Ballot 3, Precinct 4, Wilderness District, has an X in front of the name of Herbert Hoover. No other markings on the republican ticket. An X appears in front of the names of the democratic candidate for assessor and for justice of the peace. Under our ruling in Hatfield v. Board of Canvassers, supra, on "City Hall No. 8" and "City Hall No. 11" the ballot under consideration was properly counted for Lambert, Likewise, Ballot 1, Precinct 1, Summersville District, which has an X to the left of the name of Herbert Hoover, and no other markings on the republican ticket, the name of Alfred E. Smith on the democratic ticket marked out, and vertical lines drawn through the workers, the socialist and the prohibition tickets, respectively, was properly counted for Lambert. Ballot 3, Precinct 1, Jefferson District, however, in addition to an X in front of the name of Herbert Hoover, has an X in front of the name of the republican candidate for county commissioners, and an X before the name of the democratic candidate for director Nicholas county high school. "City Hall No. 10" in Hatfield v. Board of Canvassers, supra, is controlling here. The ballot was improperly counted for Lambert. The fact that the voter has used the means prescribed by statute in voting for county commissioner shows that he intends to vote for the individuals X'd. Eight other ballots similar to the ballot just discussed were improperly counted for Lambert. Morton likewise loses six such ballots. According to the ruling in the case of Hatfield v. Board of Canvassers, supra, an X before...