Summary
In Otworth, some voters, several times in number of the plurality of the winner, were given and cast more than one ballot.
Summary of this case from Martin v. PorterOpinion
No. 32366
Decided May 2, 1951.
Elections — Irregularities fatal to validity — Certain electors each received and voted two identical ballots — Such illegal ballots not identifiable — Court to set aside and declare void such election, when.
1. Where irregularities in an election are so great and so flagrant in character as to render it impossible to separate the illegal from the legal votes and raise a doubt as to how the election would have resulted had such irregularities not occurred, they must be deemed fatal to the validity of the election and warrant the rejection of the entire vote of the election district.
2. Where, in an election contest, it appears that certain electors, in number several times greater than the plurality of votes awarded by the election authorities to the winning candidate over his opponent, were each delivered two identical ballots; that each such elector voted both ballots so delivered to him thus causing such ballots to be illegally cast; and that such illegal ballots were not subject to identification and rejection; such irregular and illegal voting is of such magnitude as to require the court to declare such election void and to set it aside.
APPEAL from the Court of Common Pleas of Scioto County.
This is an appeal from a judgment of the Common Pleas Court of Scioto County, in an action to contest the election of township trustees in Green township of that county, that Henry A. Otworth, the contester, was elected to the office of township trustee over Wilbur C. Staker, the contestee.
The territorial area of Green township was divided for election purposes into two precincts designated as precinct A and precinct B. At the November 1949 election, two township trustees were to be elected in that township. One Leonard Sloas received the largest number of votes for trustee and was declared elected, and a certificate of election was issued to him by the board of elections. The validity of his election is not here in controversy.
The board of elections declared that Staker was elected trustee by a plurality of four votes over Otworth. On demand of Otworth, a recount was had and as a result Staker was declared elected over Otworth by a plurality of two votes. Thereupon, Otworth instituted this action in the Common Pleas Court. Before the trial of the case, the board of elections, by mistake and inadvertence, destroyed the ballots cast for township trustee in precinct A, and only the ballots cast in precinct B were available for evidential purposes.
The trial court found that at the election in question 508 electors were eligible to vote and voted in precinct B, but that 520 ballots were actually cast in that precinct. The evidence tended to show that the discrepancy came about because two township-trustee ballots folded together were by error of the election judges delivered to each of the first 11 electors voting in that precinct; and that the error was not discovered until the first 10 of such electors had marked, folded together again and voted both of the two trustee ballots so delivered to each of them. Of these 10 electors, each voting two ballots, were the contester and the contestee. The error was not discovered until the eleventh elector, a blind man, voting in the precinct called one of the judges of election to assist him in marking his ballot when it was found that he likewise had received two ballots instead of one.
The evidence showed and the court found that there were three absent-voter ballots cast in precinct A. These ballots were rejected by the precinct judges of elections and, upon recount, by the county board of elections. After the recount, these absent-voter ballots were destroyed along with the other ballots cast in that precinct. At the trial the voters of these three ballots were called as witnesses and each testified that he voted for Otworth. One of these absent-voter ballots was cast by Mayme Skidmore, a sister of Otworth. The evidence tended to show that she had not resided in Green township since the year 1939 and for 10 years preceding the election had resided in Middletown and Dayton. She testified that she was temporarily absent from Green township. The court ordered this ballot to be counted for Otworth.
Although the 10 electors, who were issued duplicate ballots and who delivered them in turn to the election judges, testified at the trial for whom they had voted, only one of them positively admitted that he voted both ballots. However, that each of such voters voted both ballots may be inferred by the total number of votes cast and tabulated as voting for trustee at the election. The trial court made no determination with respect to the 12 excess ballots cast in precinct B and made no finding for whom they had been cast in the voting for township trustees.
The trial court, finding that the three absent-voter ballots were validly cast for Otworth, held that the three votes added to his total as found on the recount in effect erased the one-vote margin for Staker and gave Otworth a plurality of two votes. The court held that Otworth and not Staker was elected township trustee and ordered that an election certificate be issued to him by the county board of elections.
A motion for new trial was overruled and an appeal to this court was taken by Staker, a motion for leave to appeal having been allowed.
Mr. Emory F. Smith and Mr. Ernest G. Littleton, for appellee.
Mr. J. Alden Staker, Mr. J. Julian Snyder and Messrs. Kimble, Kimble Schapiro, for appellant.
Staker complains that the Common Pleas Court erred in allowing oral evidence to be introduced relative to the votes cast by the three absent voters; in making a finding of fact that the three absent-voter ballots were legally cast for Otworth; in finding that Otworth was duly elected to the office of township trustee; in not rendering final judgment for Staker; and in failing to render a judgment setting aside the election as to the second township trustee because of gross irregularity and illegal acts nullifying the election.
Owing to the view which this court takes of the matter, it will be necessary to consider only one of these alleged errors. The duplicate ballots cast by the first 10 electors voting in precinct B were clearly illegal and, if identifiable, should not have been counted. Under Section 4785-144, General Code, where "two or more ballots are found folded together among the ballots removed from a ballot box, they shall be deemed to be fraudulent." Since these illegal or fraudulent votes were largely in excess of the plurality of votes given to either candidate by the county board of elections or by the Common Pleas Court in this action, it was impossible for either the board or the court to determine which candidate was in fact elected. Under such circumstances the duty of the court is clear. It should declare the election void. Section 4785-171, General Code.
In 15 Ohio Jurisprudence, 400, Section 72, it is stated:
"It may be stated, as a general rule, that honest mistakes or mere omissions on the part of election officers, or irregularities in directory matters, even though gross, if not fraudulent, will not render an election, or particular votes cast therein, invalid, unless they affect the result of the election, or render it uncertain." (Italics supplied.)
In 18 American Jurisprudence, 330, Section 224, the general rule is stated as follows:
"If, however, the irregularities are so widespread and general and of so flagrant a character as to raise a doubt as to how the election would have resulted had they not occurred, they are deemed to be fatal and will warrant the rejection of the entire vote of the election district, unless it is possible to separate the illegal from the legal votes." See Johnson v. Little, 176 Ky. 505, 196 S.W. 156, Ann. Cas., 1918A, 70; Harrison v. Stroud, 129 Ky. 193, 110 S.W. 828, 16 Ann. Cas., 1050; Glenn v. Gnau, 251 Ky. 3, 64 S.W.2d 168, 90 A.L.R., 1355; Poor v. Town of Duncombe, 231 Iowa 907, 2 N.W.2d 294.
Here, both the contester and contestee participated in the irregularity and they are both estopped to claim an election, where such irregularity has made it impossible to ascertain the true result as would otherwise be expressed by those casting legal ballots. (See Pendleton v. Pace (Texas), 9 S.W.2d 437; State, ex rel. LaFollette, v. Kohler, 200 Wis. 518, 228 N.W. 895, 69 A.L.R., 348.
It is the opinion of this court that where, in an election contest, it appears that certain electors, in number several times greater than the plurality of votes awarded by the election authorities to the winning candidate over his opponent, were each delivered two identical ballots; that each such elector voted both ballots so delivered to him thus causing such ballots to be illegally cast; and that such illegal ballots were not subject to identification and rejection; such irregular and illegal voting is of such magnitude as to require the court to declare such election void and to set it aside.
The judgment of the Common Pleas Court is reversed and the certificate of election to the office of township trustee of Green township, Scioto county, heretofore issued to Otworth is hereby cancelled.
Judgment reversed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MIDDLETON, TAFT and MATTHIAS, JJ., concur.