Opinion
No. 31330
Decided May 19, 1948.
Elections — Ballots not soiled, defaced or mutilated, when — Section 4785-131, General Code (116 Ohio Laws, 69) — Voters erased or blacked out marks and voted for six councilmen — Voters' choices manifest — Ballots rejected for technical error.
APPEAL from the Common Pleas Court of Greene county.
At the municipal election on November 4, 1947, there were six members of the council of the village of Fairfield to be elected from among 12 candidates.
After the ballots were counted, the village election officials announced that the following six candidates were elected and received votes in the numbers stated: Daniel Hoak 427, Austin Lipp 420, Hillary Carpenter 410, Charles Ross 400, Robert Kerwin 378 and T.K. King 377. William E. Sipe was defeated by one vote.
As a result of a recount held on demand of Sipe, the board of elections announced that Kerwin and Sipe received 374 and 373 votes, respectively, and were elected, and that King received 372 votes and was defeated.
Six ballots, which had been counted originally by the village election officials, were considered invalid in the recount by the board of elections, for the reason that ballots were mutilated or defaced. Each voter of two of the rejected ballots had erased a pencil mark before the name of one candidate and placed black pencil X-marks in the square spaces before the names of six candidates. Each of four voters had blocked out or blacked out with black pencil a mark before the name of one of the candidates and voted for six other candidates by placing X-marks in the square spaces before their names.
On the six rejected ballots King received four votes, Sipe four votes and Kerwin one vote. If those ballots had not been rejected but had been counted in the recount, Sipe and King would have received 377 and 376 votes, respectively, and been elected, and Kerwin would have received 375 votes and been defeated.
King thereafter filed in the Common Pleas Court of Greene county an election contest under Section 4785-167 et seq., General Code, naming Kerwin as contestee, and that court dismissed the petition.
Thereupon King perfected an appeal to this court pursuant to Section 4785-172, General Code.
Mr. Merritt E. Schlafman, for appellant.
No appearance for appellee.
The Court of Common Pleas held that, since the rejected ballots each bore seven marks, "all the marks would have to be counted," too many persons were voted for for council, "the board of elections would not know for whom to count the votes" and the board "would have to throw out such ballots as mutilated"; and that the voter should have exchanged his ballot for another if he did not intend to vote for the candidate opposite whose name the voter made a mark.
The first paragraph of Section 4785-131, General Code (116 Ohio Laws, 69), then provided in part: "If a voter soils or defaces a ballot so that it cannot be used, he may successively obtain others, one at a time, not exceeding in all three, upon returning each ballot so soiled or defaced."
An examination of the disputed ballots discloses that none was soiled or defaced so as to have required the elector to obtain another.
That section, in paragraph numbered nine, provided further: "No ballot shall be rejected for any technical error which does not make it impossible to determine the voter's choice."
The voters' choices in the present case are manifest and their ballots were rejected for a technical error, contrary to the provisions of paragraph nine, supra. See Whitacre v. Waggoner, 133 Ohio St. 409, 413, 14 N.E.2d 22.
The judgment of the Court of Common Pleas is reversed and final judgment is entered for the appellant.
Judgment reversed.
WEYGANDT, C.J., TURNER. MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.