Swift v. Registrars of Voters of Quincy

• Decision Date: 22 December 1932
• Citation: 183 N.E. 730,281 Mass. 271
• Parties: SWIFT v. REGISTRARS OF VOTERS OF QUINCY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 271

183 N.E. 730

SWIFT

v.REGISTRARS OF VOTERS OF QUINCY.

Supreme Judicial Court of Massachusetts, Norfolk.

Dec. 22, 1932.

Case Reserved and Report from Supreme Judicial Court, Norfolk County.

Petition by John E. Swift for writ of mandamus to be directed to the Registrars of Voters of Quincy. On reservation and report.

Petition dismissed.

F. L. Simpson, and H. T. Talty, both of Boston, for petitioner.

J. Hannigan, of Boston, for respondents and intermediary respondents.

RUGG, C. J.

This petition for a writ of mandamus raises questions touching the recount of ballots cast in the city of Quincy for Lieutenant Governor at the state election held on November 8, 1932.

1. One allegation in the petition is that a substantial number of ballots ‘were not cancelled as required by law.’ The facts pertinent to this allegation are that when the ballot presented for deposit by the voter is inserted in the aperture on the top of the ballot box and the handle on the outside of the box is turned, rubber rollers within the box grasp the ballot and draw it into the box. The rubber rollers are so constructed that one of them is intended to stamp upon the back of each ballot the name of the city, the ward number and precinct number in which the ballot is cast. The roller designed to do this stamping is inked from a pad incorporated into the mechanism in the top of the ballot box. The pad is also a roller which moves on a shaft and is so placed and designed that it is in constant contact with another roller upon whose surface are the stamping letters and figures. The rollers and inking device are in the same separate locked portion of the ballot box. There is no arrangement for the mechanical or automatic replenishment of ink on the inking roller and no replenishment is possible without opening the mechanical portion of the ballot box. During the voting period the amount of ink on the pad can be determined only by opening the upper part of the ballot box and inspecting the pad. The key for such opening is in the sole possession of the police officer on duty at each precinct. The only means of ascertaining whether the cancelling device is in fact stamping the ballots as deposited in the box is by examination of the ballots after they have passed into the box or by examining the cancelling device after opening the mechanical portion of the ballot box. Each ballot box contains on its face a numbering device designed to record the number of ballots passing into the box as deposited by the voters, which operates by means of a counting mechanism set in motion only when a ballot is actually passing into the box. Prior to the election due examination as required by law was made of all ballot boxes used in Quincy, and they were found to be in good condition and the inking devices properly inked. No record was made that it was impossible to use any of these ballot boxes as required by G. L. (Ter. Ed.) c. 54, § 66, and so far as could be observed during the voting period no ballot box became impossible of use. These ballot boxes were used exclusively during this election. After the closing of the polls and after counting the ballots cemoved from the ballot boxes, the election officers caused such ballots to be placed in envelopes, some of which were not sealed; some of the ballots were in envelopes placed in ‘fiberloid containers' which were then sealed and others were placed in unsealed packages or containers. In other instances, where the ‘fiberloid containers' were inadequate to hold the filled envelopes, the election officers caused such ballots in unsealed envelopes to be securely tied into bundles. All these ‘fiberloid containers' and tied bundles were duly delivered to the city clerk of Quincy who immediately caused them to be placed in a steel vault in the city hall and there securely locked, and no person had access thereto except the city clerk and his assistants. The election officers in the several precincts after the close of the polls returned unused ballots, the number of which is unknown, to the city clerk in unsealed packages. These packages were placed by the city clerk in the cellar of the city hall in Quincy in space or room which is not locked. So far as appears said packages have remained in said cellar from the time they were placed there until the present time. At the time of the recount the city clerk turned over to the registrars of voters for counting the ballots contained in the envelopes in his possession and received by him from the election officers. The number of uncancelled ballots is not disclosed on the record but it appears to have been an appreciable number of the ballots that were duly cast and received into the ballot box. Such uncancelled ballots were counted according to their marking by the precinct officers, and it is the intention of the respondents to count them according to their marking on the recount.

The election law, G. L. (Ter. Ed.) c. 54, contains ample safe-guards as to the count of those who receive ballots and of those who deposit ballots. It is provided by section 67 that one voting list shall be delivered to the ballot clerks and another to the officers in charge of the ballot box. When a ballot is delivered to a voter, his name shall be checked on the first list and when he deposits his ballot it shall be checked on the second list. Each voter on receiving his ballot, section 76, and again on depositing it in the ballot box, section 83, is required to give his name and, if requested, his address to an election officer, who shall distinctly announce such name. The ballot box is required to have mechanical devices for registering the number of ballots cast. Section 33. As soon as the polls are closed, the clerk is required to record the number shown by the register on the ballot box. The election officers are required to count audibly the number of names checked on each voting list and announce the same. Then the presiding officer shall open the ballot box, the ballots are counted audibly, one by one, and the whole number is publicly announced. Section 105. All these acts precede the counting of the votes cast for the several candidates. The voting lists, records and ballots must be carefully preserved. Section 107. Thus there are four separate and independent methods of ascertaining the number of votes cast. Provision is made for equal representation of both the major political parties in the appointment of election officers and their participation in vital steps in the conduct of the election and the counting of ballots. Sections 13, 14, 67, 105. Nothing in this record suggests any disparity between the number of ballots in the ballot box and the number of names of voters checked on the lists and the number registered by the ballot box. There is no basis for a suggestion that the uncancelled ballots were not actually deposited in the ballot box by duly qualified voters in compliance with all the requirements of the election laws. Manifestly each of these ballots passed through the cancelling device and was subject to its operation.

The question to be decided is whether as matter of law these uncancelled ballots thus cast must be rejected and not counted. The answer to this question depends upon the construction to be given to G. L. (Ter. Ed.) c. 54, § 106, the words of which so far as here material are: ‘If the use of a state ballot box is required, no ballot shall be counted unless it has been deposited in and cancelled by such ballot box, or has been otherwise deposited in accordance with section sixty-six. Only official ballots shall be counted in any election for which they are provided. If a voter marks more names than there are persons to be elected to an office, or if his choice cannot be determined, his ballot shall not be counted for such office.’ Section 66 is not relevant to the case at bar.

It is provided by G. L. (Ter. Ed.) c. 54, § 33, that ‘Ballot boxes shall * * * contain mechanical devices for receiving, registering and cancelling every ballot deposited therein.’ There are minute provisions as to the approval of ballot boxes and their purchase, care, custody, repair and inspection by public officers. Sections 26, 28, 29, 31, 32, 33, 37, 38. They must be inspected at the opening of the polls and before the beginning of the balloting by the election officers and publicly shown, as assurance that they are empty, and then immediately be locked or fastened and not thereafter removed from public view until after the polls are closed. It is further provided by section 66 that thereafter ‘The ballot box shall not be opened * * * until the polls are closed * * * but in order to make room for ballots, the presiding officer may, in the presence of all the election officers * * * open the box and pack and press down the ballots therein.’ Further provision is made if it becomes impossible to use the ballot box. Thus it appears that there is no statutory provision to enable or permit the election officers to ascertain during the progress of the voting whether the internal mechanism of the ballot box is working. The cancellating device might fail to cancel the ballots and the most careful voter and the most alert election officers have no knowledge of the fact. They are deprived by the statute of any possibility of knowing of such defect in the operation of the ballot box, if it occurs. The words of said section 106 as to counting uncancelled ballots in these circumstances must be interpreted in the light of the main design of the election laws and the interpretation given to other more or less similar legislative mandates.

Whether an election statute couched in positive words of command is to be construed as intended to invalidate ballots actually cast under all the sanctions of the law must be determined from a broad view of the end and aim of elections and election law rather than from resort to strict logomachy and syntax. It was said by Chief...