Summary
In Schmidt, we stated that the circuit court reasonably concluded that the shading, which obliterated the entire square, reflected the voter's effort to cancel his or her vote for the mayoral candidate.
Summary of this case from Roth v. Lafarge Dist. Bd. of CanvassersOpinion
November 2, 1962 —
November 27, 1962.
APPEAL from a judgment of the circuit court for Washington county: MILTON L. MEISTER, Circuit Judge. Affirmed.
For the appellant there were briefs by Marth Marth of West Bend, and oral argument by Robert Marth.
For the respondents there was a brief by Schloemer Merriam of West Bend, and oral argument by Henry O. Schloemer.
Walter Schmidt and Paul W. Henke, Sr., were the opposing candidates for the office of mayor of the city of West Bend in the spring election held on April 3, 1962. The result of the initial count of the ballots by the inspectors of the election was as follows:
Paul W. Henke, Sr., .... 1,400 votes. Waiter Schmidt ......... 1,395 votes.
On April 4, 1962, such count was approved and adopted by the city of West Bend Board of Canvassers, and Paul W. Henke, Sr., was declared the mayor-elect of the city of West Bend by a plurality of five votes.
On April 6, 1962, Waiter Schmidt, pursuant to the provisions of sec. 6.66, Stats., petitioned the city of West Bend Board of Canvassers for a recount of the votes cast in each of the seven wards of the city of West Bend.
On April 7, 1962, such recount was conducted, and after rejecting several ballots on each side, the Board of Canvassers determined that each of such candidates received the following number of votes:
Paul W. Henke, Sr., .. 1,393 votes. Waiter Schmidt ....... 1,390 votes.
The Board of Canvassers thereupon affirmed their original decision and again declared Paul W. Henke, St., to be the mayor of the city of West Bend by a plurality of three votes.
On April 10, 1962, Waiter Schmidt filed an appeal from the decision of the Board of Canvassers to the circuit court for Washington county. For the purpose of trial, counsel stipulated that the tally of votes made on the recount of April 7, 1962, by the Board of Canvassers was the correct starting tally, and that any votes found to be defective upon the trial should be subtracted by the court from such tally.
The issues on the trial of such appeal were, with one exception, confined exclusively to the legality of the casting of a number of absentee ballots under the provisions of secs. 11.54, 11.58, and 11.59 of the Wisconsin statutes. Those statutes read:
"11.54 GROUNDS FOR ABSENT VOTING. (1) Any qualified elector of this state registered, where registration is required or who swears in his vote as herein provided, who is absent or expects to be absent from the city, town, or village in which he is a qualified elector, or from this state, whether by reason of active service in the United States army, navy, marine corps, or coast guard or for any other reason, or who because of sickness or physical disability or religious reasons cannot appear at the polling place in his precinct, on the day of holding any election, may vote at any such election as provided in secs. 11.54 to 11.68. Whenever the term `absent or sick or disabled voter' appears in said sections such terms shall be deemed to include a qualified elector unable to appear at the polling place in his precinct on the day of any such election for religious reasons.
"(2) . . .
"11.58 FORM OF ENVELOPE FOR BALLOT. (1) Such clerk, or secretary under sec. 11.66 or duly authorized representative, shall inclose such ballot or ballots in an envelope unsealed to be furnished by him, which envelope shall bear upon the face thereof the name, official title, and post-office address of such clerk, and upon the other side a printed affidavit in substantially the following form:
STATE OF . . . . } } ss. County of . . . . } I, . . . . . ., do solemnly swear that I am a resident of the . . . precinct of the (town) (village) of . . . or of the . . . . ward in the city of . . . ., residing at . . . . in said city, and the county of . . . . and state of Wisconsin, and am entitled to vote in such precinct at the election to be held on . . . . . That I cannot appear at the polling place in said precinct on the day of said election because I expect to be absent from the city, town or village or because of sickness or physical disability or religious reasons. I further swear that I marked the inclosed ballot in secret, except where assistance was requested by me in such voting as provided in sec. 11.58, Wisconsin statutes. Signed . . . . . . . . Subscribed and sworn to before me this . . . . day of . . . ., A.D., . . . ., and I hereby certify that the affiant exhibited the inclosed ballot to me unmarked; that he then in my presence and in the presence of no other person, and in such manner that I could not see his vote, marked such ballot and inclosed and sealed the same in this envelope, except where assistance was requested in such voting as provided in sec. 11.58, Wisconsin statutes; that the affiant was not solicited or advised by me to vote for or against any candidate or measure. . . . . . . . . . . . . . . . . "(2) . . ."11.59 VOTING; EXECUTION OF AFFIDAVIT. Such absent or sick or disabled voter shall make and subscribe to the affidavit provided for in sec. 11.58 before the clerk to whom the ballot is returned, before any other officer authorized by law to administer oaths or before any master of a vessel plying the Great Lakes, and such voter shall thereupon in the presence of such officer and of no other person, mark such ballot or ballots, but in such manner that such officer cannot know how such ballot is marked, and such ballot or ballots shall then in the presence of such officer be folded by such voter so that each ballot will be separate and so as to conceal the marking, and be, in the presence of such officer, deposited in such envelope, except as provided in sec. 11.58. The unused ballot or ballots shall be placed in the envelope provided for unused ballots and deposited with the voted ballot in the return envelope, which shall then be sealed. Said envelope shall be mailed by such voter, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in person."
The one ballot in question which was not an absentee ballot was marked by the voter with an "X" in the ballot square after the name of Mr. Schmidt. However, this entire ballot square and the "X" mark thereon were then blacked out by the voter. No mark of any kind appears on the ballot in the vicinity of the ballot square opposite the name of Mr. Henke. The trial court found, from the markings on said ballot, and pursuant to the provisions of sec. 6.42 of the Wisconsin statutes, that it was the intent of such voter to cancel his vote for the office of the mayor, and the court, therefore, deducted one vote from the tally of Walter Schmidt.
An absentee ballot was cast by an employee of the clerk's office, Esther Bradley. She testified that she did not intend to be absent on election day and that she had used an absentee ballot for her own convenience. Her vote for Mr. Henke was counted by the court.
A group of 20 absentee ballots which were notarized by the clerk, Mr. Hemauer, were accepted by the court as valid votes.
The final result reached by the court, after rejecting several other votes for both sides, was as follows:
Paul W. Henke, Sr., .... 1,387 votes. Waiter Schmidt ......... 1,385 votes.
Further facts will be stated in the opinion.
1. The Canceled Voting Mark.
One of the ballots which was cast at the regular polling booths contained a cross mark in the square opposite the name of Walter Schmidt. Over this cross mark was a heavy penciling which obliterated the entire square. The "X" mark is barely visible in the square by reason of the heavy shading which fills the square. In the ballot squares for three other offices appearing on the same ballot, this voter marked his ballot with an unadorned "X."
It was entirely reasonable for the trial judge to determine that the voter attempted to obliterate and cancel out his vote for mayor; the trial court properly concluded that this ballot should not be counted as a vote for Walter Schmidt. In our opinion, the trial judge's conclusion in this regard must be treated as a finding of fact, and since it is not against the great weight and dear preponderance of the evidence, such finding must be sustained.
2. The Bradley Ballot.
Esther Bradley had no valid grounds for casting an absentee ballot. As an employee in the office of the city clerk, she did it for her own convenience. Sec. 11.54, Stats., sets forth the reasons for absentee voting. One ground is absence; another is sickness or physical disability; a final ground is a religious reason.
Notwithstanding the fact that she did not have a proper basis for using an absentee ballot, Esther Bradley executed the affidavit stating that she had such grounds.
We recognize that one who gives a false oath and thereby qualifies to receive an absentee ballot would successfully circumvent the provisions of sec. 11.54, Stats., if the absentee ballot were counted. On the other hand, to permit such rejection of absentee ballots on this grounds would encourage postelection inquiries into the elusive subject of a voter's state of mind. Since the statute authorizes the issuance of a ballot to a person with a specific intention ( i.e., to be absent on election day), we consider that to encourage such investigations would cause as much or more mischief than it would cure. We consider that it would be poor public policy to give a citizen who has sworn that he qualifies for a ballot the option to cause his ballot to be rejected and thereby influence the result of an election by subsequently swearing that he did not meet the statutory requirements. Accordingly, we conclude that Esther Bradley's ballot was properly east, as the trial court held.
3. The Hemauer Ballots.
The "Hemauer ballots" were so called because they were notarized by Alfred Hemauer, the city clerk. They are challenged because Mr. Hemauer was not personally present at the time the vote was east. These absentee voters came to the city hall and received an absentee ballot from one of the employees in the city clerk's office. In some instances, Mr. Hemauer was in his separate office; in some cases he was not even in the building. In none of the cases did these voters exhibit their unmarked ballots to Mr. Hemauer. They did not mark their ballots in his personal presence. They did not fold their ballots in his personal presence. The voters did not deposit their ballots in the ballot envelopes in Mr. Hemauer's personal presence. Finally, they did not swear to or sign the affidavit on the absentee envelope in his personal presence.
The provisions of secs. 11.58 and 11.59, Stats., are deemed to be directory and not mandatory. Petition of Anderson (1961), 12 Wis.2d 530, 534, 107 N.W.2d 496. See Sommerfeld v. Board of Canvassers (1955), 269 Wis. 299, 69 N.W.2d 235. Nevertheless, there must be substantial compliance with the statute, as the court held in Kaufmann v. La Crosse City Board of Canvassers (1959), 8 Wis.2d 182, 184, 98 N.W.2d 422. In that case, the absentee ballots were issued to voters who executed their ballots away from the city hall. These ballots were then returned to the city hall without any indication of an oath having been administered. This total failure to comply with the oath requirements of the statute was deemed fatal. We consider that the instant case is distinguishable from the Kaufmann Case by reason of the degree of variance from the statute. In the case at bar the absentee voters came to the city clerk's office and relied upon the procedures employed by the city elerk's staff. When the voters in the case at bar subscribed to their affidavits, they could reasonably assume that they were doing so in the presence of an officer authorized by law to take their acknowledgments. There is an aura of regularity which attends the execution of an absentee ballot in the city clerk's office which would readily lead the voter to assume that his vote is being properly cast. This does not apply to an absentee ballot which is executed in private quarters where it is more reasonable to impose upon the voter the burden of ascertaining that his affidavit is taken before one authorized to administer oaths.
While we do not believe that it can be said that Mr. Hemauer was "present" at the time these ballots were cast, we do not believe that the legislature intended that voters be disenfranchised because of the technicalities which were violated in the instant case. In the Sommerfeld Case, at page 302, we quoted the case of McMaster v. Wilkinson (1944), 145 Neb. 39, 47, 15 N.W.2d 348, 155 A.L.R. 667, as follows:
"It is the policy of the law to prevent as far as possible the disfranchisement of electors who have cast their ballots in good faith, and while the technical requirements set forth in the absentee-voting law are mandatory, yet in meeting these requirements laws are construed so that a substantial compliance therewith is all that is required."
There is no claim in the instant case of connivance or fraud; indeed, it is clear that the practice employed in connection with these ballots was that used for many years at the city hall in West Bend. While we disapprove of this practice, and admonish against its continuance, we are unwilling to conclude that there has been a want of substantial compliance. In our view, the so-called "Hemauer ballots" were properly counted, as the trial court held.
In view of the foregoing conclusions, it follows that the trial court correctly determined that Mr. Henke was elected by a plurality of two votes.
By the Court. — Judgment affirmed.