Thompson v. Boling

• Decision Date: 29 September 1931
• Citation: 240 Ky. 340
• Parties: Thompson v. Boling et al.
• Court: United States State Supreme Court — District of Kentucky

240 Ky. 340

Thompson v. Boling et al.

Court of Appeals of Kentucky.

Decided September 29, 1931.

1. Elections. — Generally, when voter has clearly made honest but imperfect effort to comply with statute regulating manner of voting, ballot should be counted if his intention can be effectuated (Ky. Stats., sec. 1471).

Ky. Stats., sec. 1471, requires rejection of any ballot from which it is impossible to determine voter's choice, but forbids

its rejection for any technical error which does not make it impossible to determine choice of voter.

2. Elections. — That some possibility defeating voter's evident purpose can be conjectured is insufficient to justify rejecting imperfect ballot (Ky. Stats., sec. 1471).

3. Elections. — Ballots containing cross-mark in square at end of blank line held votes for candidate whose name was printed immediately above blank line (Ky. Stats., sec. 1471).

It appeared that there were only two competing candidates for particular office involved, whose names were printed on ballot one above the other with a square printed at end of each line, below which there appeared a third square at end of a blank line, and that several ballots contained no mark in either square opposite name of candidates, but did contain appropriate mark in square at end of blank line. It was therefore reasonable to presume that the voter intended to vote for some one, and when he did not register his choice with precision it was a just inference, in the absence of anything further to show his intent, that he intended to vote for the name nearest his mark.

4. Elections. — Ballot is valid if voter places his mark anywhere in space occupied by chosen candidate's name, unless name is obliterated thereby (Ky. Stats., sec. 1471).

Appeal from Meade Circuit Court.

W.D. ASHCRAFT and W.R. GENTRY for appellant.

JAMES & JAMES for appellees.

OPINION OF THE COURT BY JUDGE WILLIS.

Reversing.

Joseph A. Thompson and W.M. Boling were competing candidates in the August, 1931, Primary Election for the Democratic nomination for the office of Representative from Meade County in the General Assembly of Kentucky.

The canvassing board found that Boling had received a majority of the votes, as counted by them, and thereupon Thompson instituted this proceeding, authorized by the act of 1930, for a recount of the ballots before issuance of the certificate of nomination. Chapter 50, Acts of 1930, p. 53. The circuit court recounted the ballots and reached the same result recorded by the board of canvassers, although counting for each party some ballots rejected by the board. Thompson has prosecuted an appeal. The case turns on a single question, and that is whether 17 ballots rejected by the circuit court and the canvassers should be counted for Thompson.

The official ballot for the Primary Election in Meade county was in this form:

NOTE: BALLOT IS ELECTRONICALLY NON-TRANSFERABLE.

Eight of the ballots in question contained a single stencil cross-mark in the small square after the blank space immediately below the name of Thompson. One of the ballots contained two stencil cross-marks, one in the square after the space below Thompson's name, and the other in the square after the space below the name of J.C. Duffy.

Five of the ballots were voted correctly for candidates for railroad commissioner and judge of the Court of Appeals, but each was marked in the square after the space below Thompson's name. Two of the ballots were voted correctly for a judge of the Court of Appeals, but were marked in the square after the space below Thompson's name. One ballot was properly voted for a railroad commissioner, but a stencil mark appeared just above and entirely outside the square opposite the name of Ben D. Ringo, and another stencil mark was placed in the square after the blank space below the name of Thompson.

The statute of this state requires the rejection of any ballot from which it is impossible to determine the voter's choice. But it forbids the disfranchisement of any voter because of any technical error in formulating his ballot which does not render it impossible to determine his choice. Ky. Stats., sec. 1471. It is a general rule that when it is clear that the voter has made an honest effort to conform to the directions of the statute as to the manner of voting, although with imperfect results, the ballot should be counted if the intention of the voter can be effectuated.

In this state the undeviating practice has been to search out the purpose of the voter, and if he has manifested his intention by his ballot, it will be given effect.

It is not enough that some possibility defeating the evident purpose of the voter can be conjectured. The rule requires only reasonable probability, and that which was probably intended cannot be said to be impossible of ascertainment. Houston v. Steele, 98 Ky. 596, 34 S.W. 6, 17 Ky. Law Rep. 1149; Little v. Hall, 114 Ky. 231, 70 S.W. 642, 24 Ky. Law Rep. 1060.

In Snowden v. Flanery, 159 Ky. 568, 167 S.W. 893, ballots marked in the square at the end of a blank space below the name of the candidates for sheriff were counted for the names nearest above the stencil marks. A similar ruling was made in Bates v. Crumbaugh, 114 Ky. 447, 71 S.W. 75, 24 Ky. Law Rep. 1205. The circuit judge in an able opinion sought to distinguish these cases upon the ground that the contests there were between party candidates whose names appeared in separate columns. He said:

"It was not the naked fact of a ballot voted in the blank line under a candidate's name, and where nothing more appears. But from the position of the mark with reference to the small square, from the physical evidence offered by the ballot itself, the names of opposing candidates appearing alone in separate columns, and the manner of stamping in connection with the general make-up of the ballot, the court was controlled by the clear...