Voorhees v. Arnold
| Decision Date | 07 April 1899 |
| Citation | 108 Iowa 77,78 N.W. 795 |
| Parties | VOORHEES v. ARNOLD. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Jones county; H. M. Remley, Judge.
At the general election in 1897, contestant was the Democratic, and incumbent the Republican, candidate for the office of sheriff of Jones county. The board of county canvassers, on the face of the returns, declared the incumbent, Arnold, elected, the returns showing a majority in his favor of seven. Voorhees contested the election, and the court of contest found Arnold elected by a majority of three. On appeal to the district court, the case was tried without a jury, and again decided in favor of Arnold by a majority of four; and from a judgment in his favor Voorhees appealed, Arnold also appealing from certain rulings against him. Affirmed.C. J. Cash, B. H. Miller, Geo. H. Bennett, and Jamison & Smyth, for contestant.
Ellison, Ercanbrack & Lawrence and B. E. Rhinehart, for incumbent.
1. The legal propositions are exclusively as to the validity of ballots counted or rejected. The alleged defects are as to markings, and we have certified to us upwards of 240 ballots, because of the inaccuracy of those presented in the abstracts. As it is a law action, the case comes to us on assignments of error, and counsel in its preparation, as well as this court in its consideration, have experienced a difficulty in the adoption of a system by which the multitude of questions may be considered without the labor of doing so in detail. For this purpose counsel have resorted to a system of classification by which ballots somewhat, or quite, similar as to the markings have been classed together, thus bringing together for consideration numerous assignments. As would be expected, counsel have not been able to agree in the particulars of classification, nor have we been able to use any system suggested by counsel or devised by us. The rulings of the district court were as to particular ballots, and we have found it necessary, in our examination of the case, to look to each ballot, and determine the question involved by its acceptance or rejection, independently of every other ballot. That we cannot, in an opinion, express conclusions on all these questions is apparent, nor is it necessary. We think it is proper, at the outset, to settle some general rules of law, as to ballot markings, that will, of themselves, be decisive of many of the questions presented; for many of them present no disputed questions of fact for ascertainment, while others do present such questions.
Most of the questions go to the validity of the ballot as a whole, rather than as to its validity as a vote for the office of sheriff; that is, the questions are, mainly, if the ballot is not so marked that the mark may be used for the purpose of identifying the ballot, so that, under the law, it must be rejected. Ballots must be marked by a cross placed in the circle at the head of a ticket, or in squares opposite the names of candidates, and in no other way. Code, §§ 1119, 1120. In the latter section it is provided: “Any ballot marked by the voter in any other manner that as authorized in this chapter, and so that such mark may be used for the purpose of identifying of such ballot, shall be rejected.” The purpose of this provision is to preserve secrecy of the ballot. Since the case of Whittam v. Zahorik, 91 Iowa, 23, 59 N. W. 57, was determined, the law has been somewhat changed, but, as to identifying marks, it is now substantially as we construed it to be then. We there held, because of a criminal provision against identifying marks, that the law, by implication, prohibited any person, including the voter, from so marking a ballot, and that such ballots could not be counted. The present law, in terms, requires that ballots marked so that the marks may be used for the purpose of identification shall be rejected. In that case, after a specification of particular marks fatal to a ballot because they could readily be used as identifying marks, we used this language: The language quoted is equally applicable to the present law, and the inference is clear that, in some cases, identifying marks are so apparent, or conclusively identifying, that the court may say, as a matter of law, that they may be used for that purpose, and hence the ballot should be rejected. The unauthorized marks, to be identifying, must be deliberately made, as we said in the Whittam Case, and not be merely accidental, or the result of inexperience in the use of pen or pencil, or a mere effort to correct what may be thought to be an improper marking. If a cross is placed outside the circle or square, instead of being placed substantially in it, as the law requires, or if the word “Yes” is written in the circle, instead of placing a cross there, it may be said, as a matter of law, to be deliberately done, and might be used for identification, and defeats the ballot. These are but two of many instances that could be mentioned. In this case, the markings in the circle, at the head of the ticket, are of great variety; some of them bearing evidence of being a deliberate departure from the requirement of making a cross, which must be two lines crossing each other. In nearly every instance there is a cross, and then added marks, and in some cases there are so many as to present a practically indescribable figure or character. In some of these extreme cases it is manifest that all was done in an effort to properly mark the ballot, even though every added mark was farther from the correct one. In some of these there is more than a cross in the circle, but for this reason the ballot is not to be rejected, unless the departure is deliberate and may be used to identify the ballot. On some of the ballots, in this case, where there is a wide departure from the legal requirement, we may safely say the unnecessary marks could not be...
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