Opinion
November 3, 1952. Rehearing Denied December 12, 1952.
Appeal from the Circuit Court for Liberty County, Hugh M. Taylor, J.
Atkinson Atkinson, Tallahassee, for appellant.
J. Lewis Hall, Tallahassee, for appellees.
In the second primary election held in Liberty County May 27, 1952, S.G. Revels received 734 votes and Jesse Wilson received 703 votes for the office of sheriff. Wilson filed his amended complaint June 6th, praying that he be declared the regular nominee for sheriff, the predicate for his prayer being: (1) that in Precinct 2 (Bristol), stub number 1 of the official primary ballots was not signed by the electors as required by Section 101.22, Florida Statutes 1951 F.S.A. (2) that the records in the office of the Supervisor of Registration show that when the vote was canvassed approximately 51 more ballots were found in the ballot box of Precinct 2 than there were persons qualified and voting in said precinct, for which it is contended that all ballots cast in said precinct should be declared null and void.
In their answer to the complaint, appellees admitted: (1) that not a single voter in Precinct 2 signed stub number 1 attached to their ballot, but that the names of the voters were written on the stub by members of the Election Board; (2) the answer further alleges that appellee, Bessie Reece, Supervisor of Registration, deposited approximately 51 absentee ballots in the ballot box of Precinct 2, thus accounting for the 51 extra ballots found in the ballot box when the vote was canvassed.
It is admitted that when the polls were opened in Precinct 2, the voters were not required to sign stub number 1 of the official ballot but that one of the inspectors called attention to this after approximately one-half the electors had voted. The Election Board then decided that it was too late to do otherwise, so continued the error till the polls closed, one of the Election Board signing the stub for each elector. It is also admitted that 51 absentee ballots were cast in Precinct 2, and that one absentee ballot was picked up from the floor of the office of the Supervisor of Registration the day following the election. After the canvassing Board completed canvass of the returns, the Supervisor of Registration deposited 50 ballots in the ballot box of Precinct 2. It is admitted that if the regular ballots cast in Precinct 2 be eliminated, Wilson would have 413 votes and Revels 407, but if the absentee ballots cast in Precinct 2 be eliminated, Wilson would have 694 votes and Revels 694. It is quite obvious that Precinct 2 cast the controlling vote, that all irregularities occurred in that precinct and that Wilson would have been nominated except for the votes cast in said precinct.
The chancellor held that the irregularities thus pointed out did not invalidate the ballots and dismissed the complaint. We are confronted with an appeal from the final decree. The point for determination is whether or not the final decree is free from error.
The controlling statutes are Sections 101.67 and 101.68, F.S.A. These statutes prescribe the duties of the Canvassing Board and the Supervisor of Registration with reference to canvassing and handling the ballots. Appellant bases his hope for reversal on the fact that the provisions of said statutes were not complied with, and being so, the absentee ballots should be held to be null and void. It is further contended that the regular ballots cast in Precinct 2 were null and void because stub number 1 thereof was signed by a member of the Election Board instead of the electors.
The record shows: (1) that all contested absentee ballots were regularly cast by qualified electors and that they were legally preserved up to the time they were deposited in the ballot box of Precinct 2 by the Supervisor of Registration in the presence of the inspectors and clerk; (2) the contested absentee ballots differed from those that were cast on the day of the election, only in that the number of the precinct in the former was written in pen or pencil, while in the latter, the number of the precinct was printed; (3) because of these differences in identification, the absentee ballots were easily distinguished by the Circuit Judge when he opened the ballot boxes. The difference in marking enabled the Canvassing Board to canvass all the ballots and make due return of the total vote cast.
There is no charge of fraud or intended wrong in handling the ballots. The ground of appellant's contention is, that the absentee ballots were void because of irregularities pointed out in handling them, and that the regular ballots were void because the electors failed to sign stub number 1. The chancellor found, and the record discloses, that Liberty is a small county, that at least one of the electors knew personally each elector whose vote is challenged; that the names of the electors were written on the stub by members of the election Board after the elector was identified, and that the registration of all electors was checked before the ballot was delivered. No elector asked to sign stub number 1 and both the electors and the Canvassing Board acted without fraud, deception or purpose to conduct other than a fair election.
It is not suggested or contended that the result of the election would have been different if the law had been tracked to the letter, nor is it suggested that the integrity of the election was affected by the way the ballots were handled. It is contended that to permit such practice to go unchallenged, opens the door for fraud and corruption of the ballot. This court is not unmindful of the truth of this contention, and, if there were any suggestion whatever of fraud or that the irregularities were purposely done to foul the election or corrupt the ballot, it would not be permitted to stand.
This court has repeatedly held that mere irregularities in handling absentee or other ballots did not invalidate the ballots on the election. State ex rel. Titus v. Peacock, 125 Fla. 452, 170 So. 127; Id., 125 Fla. 810, 170 So. 309; Jolley v. Whatley, Fla., 60 So.2d 762. There is no showing that the contested ballots were ever in possession of any one except those in whom the law vests their custody, and the Circuit Court found that they could be easily and accurately distinguished and canvassed. If the irregularities complained of had been in a large county where the election Board did not know the electorate personally and it was necessary that the requirements of the statute be followed strictly in order that the ballot be kept secure, a different result might be reached, but in this case the findings of the court and the record discloses that appellant suffered no wrong from the irregularities complained of. Not only that, it shows that the will of the people was effected.
We are therefore driven to the conclusion that the judgment appealed from must be and is hereby affirmed.
Affirmed.
SEBRING, C.J., ROBERTS, J., and WHITE, Associate Justice, concur.