Thoms v. Andersen

• Decision Date: 05 December 1975
• Docket Number: No. 11622,11622
• Citation: 235 N.W.2d 898,89 S.D. 567
• Parties: Donna THOMS, Plaintiff and Appellant. v. Gwen ANDERSEN, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 898

235 N.W.2d 898

89 S.D. 567

Donna THOMS, Plaintiff and Appellant. v. Gwen ANDERSEN, Defendant and Respondent.

No. 11622.

Supreme Court of South Dakota.

Dec. 5, 1975.

Rehearing Denied Jan. 8, 1976.

Steve Jorgensen, Rollyn H. Samp, Sioux Falls, for plaintiff and appellant.

David V. Vrooman, Sioux Falls, for defendant and respondent.

WINANS, Justice.

The priceless right to select those officials who will both govern and serve us at the local, state and national levels has been a treasured element of our form of government for nearly two hundred years. Our ancestors and our contemporaries have too often paid a heavy toll in order to win and to preserve this democratic ideal. Current civil rights struggles and the woman's suffrage movement of an earlier part of this century as well as the recent extension of the vote to eighteen-year-olds are all significant chapters in a long and sometimes painful narrative of the history of the vote in the United States. We are deeply concerned when we hear of a growing apathy on the part of many in the exercise of the vote at both general and special elections. We are dismayed when conscientious electors disenfranchise themselves by spoiling their own ballots, albeit inadvertently. We are far more disturbed, however, when those who are sworn to abide by our laws and whose duty it is to safeguard the ballots of the electorate until they are no longer needed are careless and negligent in their obligations to a point where the people's will might seriously be thwarted and an elective office might be awarded to one not selected for it by the voters. Such appears to be the case before us today.

In the November 5, 1974, general election the results of the race for county auditor in Minnehaha County were close enough to warrant a petition for a recount by the apparent loser, Donna Thoms, the Republican candidate. In due course, as provided for in SDCL 12--21, a three person recount board was appointed. On November 22nd the Board attempted to examine and count the absentee ballots for Precinct 3--4 but when the ballot box for this precinct was produced and opened no ballots were found inside. Upon this disconcerting discovery the Board's chairman set out in search of the missing ballots and with the aid of the county auditor who had not been a candidate for reelection the ballots were at last located, rolled in an official wrapper, stamped with an official stamp and sealed with the seals provided. They had been tossed under a counter in the county auditor's office together with the official election stamps and the unused election materials. In court proceedings held subsequently it was determined that when the precinct election superintendent found that the roll of ballots was too large for the ballot box provided for their return she had delivered them to the auditor apart from the ballot box when she made the rest of her returns early on the morning of November 6. He took them from her along with the election materials she returned and tossed them all under the counter. There they were found more than two weeks later by the Recount Board chairman. Upon locating them he brought them, still wrapped and sealed, to the recount room where all three Board members then agreed not to include them in the recount. Incredible though it seems, several days later an almost identical incident occurred with regard to the absentee ballots from Precinct 10--2. Those missing ballots also were discovered in the same area of the auditor's office as were the ballots from Precinct 3--4. Again the Board felt that they should not be included in the recount. Eventually, both sets of disputed ballots were removed from the recount room and ultimately placed in a locked box in the auditor's vault, the key to the box being left in an unsecured desk.

Upon learning of the Recount Board's refusal to count and include the questioned absentee ballots from the two precincts in their total, candidate Thoms petitioned the circuit court for a writ of certiorari to review the Board's execution of its mandate. Judge Christensen at first gave an oral order to the Board to count the ballots but revoked it before the Board had taken any action. A hearing was held in December and January and the Court found that the decision of the Recount Board not to count the disputed ballots was correct and that the Board's decision declaring Gwen Andersen the winner over Donna Thoms by a vote of 18,705 to 18,688 should be affirmed.

From the foregoing of the circuit court Plaintiff Thoms appeals. In reviewing the action of the circuit court we find that it acted properly in affirming the Recount Board's decision not to count the disputed ballots. However, since it was entirely possible to avoid disenfranchising more than 200 electors by using the official canvass in place of the ballots themselves in the recount, we reverse the confirmation of the election and remand to the circuit court for further proceedings not inconsistent with this opinion.

The circuit court found not one 'scintilla of evidence of bad faith, fraud or misdoing of a criminal nature involved here' and it seems clear from the testimony before it and us that this is so. It is entirely probable that both sets of ballots were left intact from the early morning hours of November 6th when delivered to the courthouse and dropped beneath the auditor's counter, through the two-to-three weeks they lay there inexplicably unnoticed, through their sojourn in the recount room, through their stay in the semi-safe vault and finally through their travels to the circuit court and to us. We have said that this probability does exist but this is not sufficient to warrant the inclusion of the ballots in the vote count. The rule of many jurisdictions we hold also to be the rule in South Dakota. In Mentzer v. Davis, 1899, 109 Iowa 528, 80 N.W. 557, the Iowa Supreme Court said "that the onus is on him who would discredit the official count, before resorting to the ballots as the best evidence of who has been elected, to show that these have been preserved with that care which precludes the suspicion of having been tampered with and the opportunity of a alteration or change.' Of course, this does not mean that they must be proven genuine beyond all suspicion, however groundless, nor that there was no possibility that they might have been tampered with. * * * What is meant is that they shall not be so exposed to the reach of unauthorized persons as to afford a reasonable possibility of their having been changed or tampered with.' In McMahon v. Crockett, 1899, 12 S.D. 11, 80 N.W. 136, we held that '* * * the burden is upon the contestant to show with a reasonable degree of certainty that the ballots have neither been tampered with not placed within reach of unauthorized persons, before they are admissible in evidence to disprove the official returns, or impugn the action of a board of canvassers.' While other language in this same opinion might seem to give force to the position that it is only necessary to demonstrate a 'reasonable probability' that the ballots have not been exposed to unauthorized persons in order to sustain their integrity, we in fact believe that since the proponent or contestant must show that the ballots have been properly guarded by authorized personnel what is actually demanded is in effect a showing that no reasonable Possibility existed of the ballots having in any fashion been altered. This is in each instance a question of fact. We cannot find that the lower court was clearly erroneous in finding the ballots in question no longer suitable for a recount in view of the incredible manner in which they had been mishandled. We would have been surprised had the finding been otherwise.

When the circuit court affirmed the recount board's vote not to include the missing ballots it also confirmed the election of Gwen Andersen, the Democratic candidate, as county auditor based upon that recount absent the disputed ballots from the two precincts in question. In so doing more than two hundred electors had their properly cast votes disregarded through no fault of their own. In weighing the equities the circuit court rightly decided in favor of the integrity of the ballot box, but at the expense of the voters' franchise. This was not necessary and we think that in so doing the court below erred. It is entirely...