Opinion
No Number in Original
December 1, 1948, Decided
Questions Submitted by the Governor and Council of Maine To the Justices of the Supreme Judicial Court of Maine November 17, 1948, with the Answers of the Justices Thereon.
State of Maine
Executive Department
Augusta, Maine
November 17, 1948
To the Honorable Justices of the Supreme Judicial Court:
In accordance with the provisions of Sec. 50, Chap. 5, of the Revised Statutes of 1944, the Governor and Council, after the biennial election held on September 13 of 1948, opened, compared and tabulated the votes returned at said election. The Secretary of State thereupon caused to be printed copies of the tabulation of the votes of such election as provided by said section. Within twenty (20) days after the printed tabulation was made available to the public, Leon B. Berry of Waterville filed a written application with the Secretary of State alleging that the return or record of the votes cast in the said City of Waterville at the said State election, and at which election he was the Democratic candidate for the House of Representatives from the City of Waterville, does not correctly state the vote as actually cast in said city and specifying the grounds hereinafter more specifically set out as errors which have occurred in the counting of ballots for the office for which he was a candidate.
The errors assigned by the applicant involve the absentee ballots only. The only persons involved are the applicant and A. Perley Castonguay, Republican candidate for the House of Representatives. The applicant contends that none of the absentee ballots cast either for himself or Castonguay should be counted because the city clerk, the election officials, and, in many instances, the voters did not comply with the statutes relating to absent voting.
The facts are not in dispute. In all, 181 absent voting ballots were cast. Only 169 are here involved. Our inspection showed that of these Castonguay received 113 and Berry 56. Of the remaining ballots cast in said election Castonguay received 2,546 and Berry 2,592.
The parties have agreed upon the following facts as to the absent voting ballots counted by the election officials:
I. (13 ballots.) Thirteen ballots were contained in the ballot envelopes on which the affidavit is printed and this was signed by the voter only and the oath and certificate thereon were not signed by any person or official authorized to administer an oath. The space for the signature of the official in both the affidavit and the certificate was blank.
II. (29 ballots.) On the envelopes accompanying 29 ballots, the date of the jurat was September 13, the day of election. These envelopes were enclosed in mailing envelopes which were substantially intact and do not appear to have been mailed, as the said envelopes addressed to the City Clerk had no postmarks, nor did they have canceled postage stamps.
III. (54 ballots.) With relation to these ballots, the application for the ballot was certified by the board of registration and enrollment on a date subsequent to that of the date of the jurat of the affidavit on the ballot envelope. Of these, 47 appear to have been certified on the 13th of September, the day of election, and the balance of 7 were certified prior to that date, but subsequent to the date when the oath was taken of the voter's affidavit.
IV. (14 ballots.) These ballots, after the closing of the polls, were removed from the envelopes containing them and deposited in the ballot box, but the written applications did not accompany them, nor were they attached to the envelope containing the ballot at the time they were delivered to the polls. At a subsequent time, when the question was raised with regard to the applications for these ballots, the applications were found in the safe of the city clerk, duly certified by the board of registration and enrollment.
The questions hereafter set forth involve only 110 ballots above referred to. The balance of 59 are not in question so far as any irregularity is concerned.
All absentee ballots used at the election were printed in accordance with Subsec. 1 of Sec. 2 of Chap. 6 of the Revised Statutes of 1944, and contain the endorsement in print that they are official absent voting or physical incapacity voting ballots.
Having heard the evidence and examined the proofs, the Governor and Council entertain grave doubts as to the disposition of these ballots; and, as the election of either of these candidates is involved in counting or excluding these ballots, we desire to be advised as to the manner of counting or disposing of these ballots.
There is no claim by any of the parties that any of the officials acted fraudulently. All persons involved were absolved from any fraudulent conduct. Both laxity and custom and usage in the handling of absent voting ballots have produced the problems which now confront the Governor and Council.
With respect, therefore, to these ballots, important questions of law having arisen, and believing the occasion to be a solemn one within the meaning of the Constitution, the Governor and Council respectfully request the Honorable Justices of the Supreme Judicial Court to advise them thereon. The questions are hereby propounded in the same order in which the facts are set out, with the corresponding numbers, except as to the last two questions.
Questions
1. Can an absent voting ballot be counted by the Governor and Council, where it appears from the affidavit on the ballot envelope printed and prepared in conformity with Subsec. 4 of Sec. 2 of Chap. 6 of the Revised Statutes of 1944 that it was signed by the voter only and does not purport to show that it was sworn to by the elector, as it is not signed by any official authorized to administer an oath nor is the certificate thereon signed by any person giving his residence and official title?
2. Can the Governor and Council count absent voting ballots not mailed but delivered by the voter or someone in his behalf to the City Clerk in hand less than twenty-four (24) hours before the opening of the polls, or on the day of election while the polls are open, in view of the provisions of Sec. 8 of said chapter which in substance provides that all ballots cast under said law shall be mailed on or prior to the day of election or if delivered shall be delivered to the City Clerk at least twenty-four (24) hours before the opening of the polls?
3. Can the Governor and Council count absent voting ballots, or are they to be excluded, where the date of the oath on the affidavit on the ballot envelope antedated the date of the certificate by the board of registration and enrollment of voters as provided in Secs. 5 and 6 of said chapter?
4. When a City Clerk fails to attach to the envelope containing the returned absent voting ballot the corresponding application as provided in Sec. 9 of said chapter, before the said envelopes are by him delivered to the polling place, and the ballots are placed in the ballot box and counted, and it subsequently appears that such applications were in fact in existence and were regular in form and were in possession of the City Clerk, may those ballots be counted by the Governor and Council, or are they to be excluded?
5. If all absent voting ballots in question or any part thereof are not to be counted, they being indistinguishable from the absent voting ballots which are not in question, would the Governor and Council be obliged to exclude all the absent voting ballots cast in said election for said representatives?
6. If the Justices should determine that only a part thereof may not be counted, what procedure should the Governor and Council adopt in ascertaining the will of the voters the validity of whose ballots either has been upheld or is unquestioned and whose names are ascertainable from the voting envelopes?
There are submitted herewith forms of applications for absent voting ballot, the ballot envelope on which is printed the affidavit of the voter, and the jurat and certificate of the official administering the oath, and the mailing envelope to the City Clerk, prepared by the Secretary of State in accordance with the statutes and distributed amongst the city and town clerks.
Respectfully submitted, Horace Hildreth
Governor of Maine Harold N. Hanold Robert B. Dow John F. Blanchard Hervey R. Emery Harold W. Worthen Lee C. Good
Members of the Executive Council
To His Excellency, Governor Horace Hildreth, and the Honorable Executive Council:
The undersigned Justices of the Supreme Judicial Court having considered the questions propounded by you under date of November 17, 1948, respectfully advise that the authority and power of the Governor and Council in respect to the election of a Representative to the Legislature are defined and limited by Article IV, Part I, Sec. 5, as amended by Article XLVII, and Article IV, Part III, Sec. 3 of the Constitution of this State. Under the Constitution the House of Representatives of the Legislature is the sole judge of the elections and qualifications of its own members. R.S., 1944, Chap. 5, Sec. 50 recognizes the controlling force of these constitutional provisions by limiting its application, in determining the election of a Representative to the Legislature, to the examination and correction of returns. Neither the Constitution nor any statute confers right, power or authority on the Governor and Council to decide whether any ballots cast in an election of a Representative to the Legislature shall be counted or rejected. We, therefore, deem further answer unnecessary.
Very respectfully,
GUY STURGIS Chief Justice
SIDNEY ST. F. THAXTER HAROLD H. MURCHIE NATHANIEL TOMPKINS RAYMOND FELLOWS EDWARD F. MERRILL Justices.