State v. Bd. Of Supervisors
| Decision Date | 25 June 1909 |
| Docket Number | 11292 |
| Citation | 89 N.E. 33,80 Ohio St. 471 |
| Parties | The State, Ex Rel. Karlinger, v. The Board Of Deputy State Supervisors Of Elections. |
| Court | Ohio Supreme Court |
Use of voting machines - Under Sections 2966-54 to 2966-67, Revised Statutes - Void, because repugnant to constitution.
The act of April 25, 1898 (93 O. L., 277), and the amendments thereto, being Sections 2966-54 to 2966-67, inclusive Revised Statutes, to provide for the use of voting machines at elections, are void, because repugnant to the second section of the fifth article of the constitution which ordains that "all elections shall be by ballot."
The plaintiff in error, as an elector and taxpayer of the county of Cuyahoga, city of Cleveland, brought suit in the court of common pleas to enjoin the alleged unlawful expenditure of public money, and the interference with the free and lawful exercise of the elective franchise by payment out of the public treasury for voting machines, about 76 in number already purchased by the defendants, and by the purchase of additional machines and the requiring of their use at elections to be held in said county. He alleged that said purchases and requirements made and to be made by authority assumed to have been conferred by the act of April 25, 1898 (93 O. L., 277) and several acts amendatory thereof, being Sections 2966-54 to 2966-67, inclusive, Revised Statutes, and without other authority, and that all of said legislative acts are void because in contravention of the following provisions of the constitution:
Article II, Section 26, being a law of a general nature and not being of uniform operation throughout the state.
Article II, Section 26, in that said acts become effective upon the approval of authorities other than the general assembly to-wit, the electors of different communities voting in favor of such machines; and upon further approval of the executive officers named as voting commissioners in said act.
Article V, Section 1, in that said law impedes, subverts and restricts the constitutional right of suffrage.
Article V, Section 2, in that said voting machines do not permit the elector to vote by ballot.
Article IV, Section 1, in that said law attempts to confer upon the governor, attorney general and secretary of state, a power judicial in character.
The petition contains the following allegations in support of the conclusions stated:
Relator further says that on the 25th day of April, 1898, the date of said original act, the provision made by the congress of the United States respecting the election of the members of the house of representatives of said congress was in full force and operation in the state of Ohio; that Section 27 of the act of... required that votes at all elections of such members should be by printed or written ballot; that by the laws of the state of Ohio on the said 25th day of April, 1898, and thereafter the date of state, county and other elections was coincident with the date of such congressional elections, the same voting booths, election officers, ballot boxes and election machinery being provided by said state law for both congressional and state elections; that said act of April 25th, 1898, was in conflict with said provisions of congress and was an attempt to alter, restrict, and impede the method of voting for representatives and congress and was in contravention of Article I, Section 4, of the Constitution of the United States, and of Section 27 of said act of.... in that it does not permit a voter to cast a written or printed ballot for candidates for congress.
Relator further says that Section 9 of said act of April 25th, 1898, provides that no voter shall remain within the voting machine booth longer than one minute and directs the judges of elections to remove such voter if he refuses to leave said booth after the lapse of said period of one minute. Relator says that in operation said provision is an unreasonable restriction upon the exercise of the elective franchise; that said voting machines are of complicated mechanism, consisting of large number of mechanical devices and parts, presenting to the voter a plane surface measuring 80 inches in width and 40 inches in height with numerous cogs, buttons, dials and levers necessary to be actuated by the voter in order to make an intelligent selection of candidates; that it is impossible for a voter of ordinary intelligence and comprehension, without previous instruction in the mechanism and workings of such machines and the position of the names of the candidates upon the several ballots to vote within the period of one minute as required by said act.
Relator further says that said machine does not permit a vote by ballot; that the list of the names of the candidates is posted upon the face of the machine with a metallic pointer assigned to each name; that at the left of said machine is placed a lever for use in voting straight tickets; that the voter is required after having indicated his choice of candidates by means of individual pointers or the adjustment of said lever at the left of said machine to actuate a larger lever suspended above said machine for the purpose of registering his vote; that the movement of said lever does not cast a ballot of any kind, but results solely in the turning of dials and cogs in the interior of the machine, the operation whereof is concealed from the voter and from all other persons; that at no time during the operation of voting by means of such machines does the elector perforate, mark or otherwise employ any paper or other form of ballot nor is the same used or employed in, upon or by said voting machine, except that the list of candidates herein described is maintained upon the face or front of such machines without change from the opening to the closing of the polls; that no voter knows or can know whether or not the movement of said pointer, cogs, and levers has in fact registered his vote.
Relator further says that such voting machines do not permit the enjoyment by each elector of his full right and privileges in the exercise of the elective franchise under the constitution and laws of the state of Ohio; that by an act of the general assembly of the state adopted March 22, 1906, being Section 3970-10, Revised Statutes, ballots containing the names of the candidates for membership upon the board of education of any school district were required to contain the names of all such candidates without party designation, and that such names should appear upon said ballots by rotation in the manner prescribed in said act: said act further provided that such ballots should be combined in tablets with no two of the same order of names together. Relator further says that such machines are not so constructed as to permit of the serial distribution and rotation of ballots required by said act; that said machine permits only of a printed form of ballot attached to the front of said machine and which remains unchanged in its place, all of the voters at a given booth being obliged to vote like ballots in contravention of said act.
In their answer the defendants admitted the purchases, and contemplated purchases, of voting machines alleged in the petition, but alleged full compliance with the requirements of the legislative acts referred to. After final judgment in the court of common pleas, the cause was appealed to the circuit court where judgment was rendered in favor of the defendants upon the following statement of facts to which the parties agreed:
For the purpose of this case the respective parties, plaintiff and defendant, agree to the following facts:
1. That the relator is an elector of the city of Cleveland and the county of Cuyahoga and state of Ohio, and is a taxpayer of said city and county, and that relator as such taxpayer made due demand in writing upon the prosecutor and legal counsel of said county that this case be instituted, and that said demand was refused.
2. That it is the present intention and purpose of the board of deputy state supervisors and inspectors of elections to purchase at the expense of said county, voting machines of a kind that will comply with the requirements of the Ohio law relating to voting machines as found in Revised Statutes 2966-54 to 67, inclusive; and that has been examined and approved by the Ohio state board of voting machine commissioners as provided in Sections 1 and 2 of the act of April 25, 1898 (93 O. L., 277, 278), and of which examination and approval a report or certificate made by said board has been filed in the office of the secretary of state, of the state of Ohio.
3. That the voting machines which the board now has on hand and which it contemplates purchasing, and which are hereinafter generally described will comply with the requirements of said voting machine law, and that the question at issue is, Do such voting machines, complying with the requirements of said statute and used in conformity therewith, afford a constitutional method of voting by ballot as contemplated by the constitution of the state of Ohio?
4. That paragraphs 2 and 3 above, however, shall not be construed as stipulating that such machines are so constructed as to comply with the act of March 22, 1906 (98 O. L., 116), requiring the rotation of names of candidates for membership upon a board of education of any school district, it being agreed that such machines do not allow such rotation on any given machine.
5. That the following is a correct description of one of said voting machines above referred to and that the others are of the same kind:
The said voting machine consists of a key-board, or what is alleged to be mechanical Australian ballot, and a counting machine which tabulates the totals of the votes on counters as fast as the...
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