Jim ABBOTT, Complainant, v. Bernie HUNHOFF, Defendant.
No. 17981.
Supreme Court of South Dakota.
Oct. 14, 1992.
491 N.W.2d 450
MILLER, Chief Justice.
This original proceeding was brought pursuant to
BACKGROUND
James Abbott (Abbott) and Bernie Hunhoff (Hunhoff) filed nominating petitions in the office of the South Dakota Secretary of State seeking the nomination as the Democratic candidate for South Dakota State Senator, Senate District 18, comprised solely of Yankton County. There was no Republican Primary. Abbott received 1,066 votes and Hunhoff received 1,074. The June 4 official canvass confirmed the results. The Recount Board, however, gave Abbott 1,066 votes and Hunhoff one less, 1,073 votes.1 The June 29 recount revealed that eighteen registered Republicans and one registered Independent were wrongly allowed to vote in the Democratic Primary.
Abbott alleged that the votes of the nineteen non-Democrats were sufficient to change the outcome of the election. He applied to this Court July 6 to commence an election contest and to fix the procedures to be followed.
Judge Gors conducted a hearing in Yankton, South Dakota, on July 25. The parties were present and represented by their counsel. The Complainant, Abbott, subpoenaed the nineteen non-Democrats who had voted. Sixteen of them were present at the hearing.2 Hunhoff‘s Answer to the verified Complaint was delivered at the hearing, in open court. Hunhoff contested this Court‘s jurisdiction to hear the proceeding alleging that the contest was not timely filed under
Judge Gors served his Referee‘s Report and his Findings of Fact on July 29. This Court considered the Referee‘s Report, together with the parties’ objections, adopted the Referee‘s Findings of Fact, and on August 24, Ordered (Henderson, J., dissenting) the election contest proceedings dismissed wherein it was noted that a written opinion would follow.
DISCUSSION
The official canvass was filed June 4, 1992. This contest was not filed within ten days of that official canvass.
Any such contest ... shall not be commenced until after the official canvass of the returns as to the office, nomination, position, or question involved; and must be commenced within ten days thereafter, except that where upon a recount there is a determination that is contrary to the result as pronounced on the official returns, such contest may be started within five days after such pronouncement of such result of such recount.
An election contest challenges the election process itself. Larson v. Locken, 262 N.W.2d 752, 753 n. 1 (S.D. 1978). The basic question in an election contest is whether the election is a free and fair expression of the will of the voters despite the irregularities. Id. at 753. “No person shall be allowed to vote a party ballot at any primary election unless he is registered as a member of that political party in the precinct in which he seeks to vote.”
The votes of the nineteen non-Democrats were apparently cast primarily due to the gross carelessness of the election officials. There were no claims, nor evidence, of fraud, tampering or intentionally illegal conduct by anyone. Nevertheless, “[a]ny person knowing himself not to be a qualified voter who votes or offers to vote at any election is guilty of a Class 2 misdemeanor.”
What then is the effect of the nineteen illegal votes on the election? It is “not the policy of the law to disenfranchise voters because of an election official‘s mistakes, negligence, or misconduct.” Election Contest as to New Effington, 462 N.W.2d 185, 190 (S.D. 1990); Larson, 262 N.W.2d at 754. This Court has previously held that the law in this state is that
unless the party attacking the legality of the votes alleges and proves fraud upon the part of the election officials such as to warrant throwing out the whole vote of the precinct, the burden is upon him to prove for whom the illegal votes were cast; and, if he fails to make such proof, the illegal votes shall be deducted from his vote, unless he satisfies the court that he could not, with the exercise of due diligence, show for whom the illegal votes were cast[.]
Briggs v. Ghrist, 28 S.D. 562, 570, 134 N.W. 321, 324 (1912). In other words, if it is possible through the exercise of due diligence to “show for whom the illegal votes were cast, ...” he must show that “but for” the illegal votes he would have prevailed. If he fails to do so, the outcome of the election will stand. The one who would contest the results of an election “assume[s] the burdens of proving, not only the fact that illegal votes were cast, but also as to which side such votes were cast[.]” Id., 28 S.D. at 566, 134 N.W. at 322.
This test was reiterated in Pawlowski v. Thompson, 64 S.D. 98, 264 N.W. 723 (1936). This Court stated therein that it was “incumbent upon plaintiff to establish his right to the office, and, failing to do that, he must fail so far as this proceeding is concerned.” Id., 64 S.D. at 99, 264 N.W. at 723. The challenger failed to make the showing that “but for” the impropriety of the voting, he would have prevailed and his contest failed. Pawlowski, 64 S.D. 98, 264 N.W. 723; Moreau v. Tonry, 339 So. 2d 3 (La. 1976), appeal dismissed, 430 U.S. 925, 97 S. Ct. 1541, 51 L. Ed. 2d 769 (1977); Wilkinson v. McGill, 192 Md. 387, 64 A.2d 266 (1949); Mehrens v. Election Canvassing Bd., 134 Neb. 151, 278 N.W. 252 (1938); State v. Johnston, 150 Tex. 174, 238 S.W.2d 957 (1951).
We now address the question of whether it is possible through the exercise of due diligence to “show for whom the illegal votes were cast[.]” Briggs, 28 S.D. at 570, 134 N.W. at 324. The constitution of the State of South Dakota reads in part that “[e]ach elector who [is] qualified to vote within a precinct shall be entitled to vote in that precinct[.]”
“Every person has a privilege to refuse to disclose the tenor of his vote at a public election conducted by secret ballot. This privilege does not apply if the court finds that the vote was cast illegally....”
As stated by the Texas Court of Civil Appeals, “[w]e do not conceive it to be the law that an elector is entitled to a ‘secret ballot’ when it is conclusively established that [the elector] is legally entitled to no ballot at all.” Christy v. Oliphint, 291 S.W.2d 406, 410 (Tex. Ct. App. 1956). This Court has previously said that an illegal (“unqualified“) voter could be questioned as to how he had voted. Vallier v. Brakke, 7 S.D. 343, 347, 64 N.W. 180, 181 (1895). Such a proposition is not unique to this state. Singletary v. Kelley, 242 Cal. App. 2d 611, 51 Cal. Rptr. 682 (1966); Hanson v. Village of Adrian, 126 Minn. 298, 148 N.W. 276 (1914); Wehrung v. Ideal Sch. Dist. No. 10, 78 N.W.2d 68 (N.D. 1956) (recognizing that illegal voters may be compelled to disclose how they voted).
Sixteen of the nineteen illegal voters were present when the hearing before the Referee was conducted. The parties agreed, on the record, that none of these illegal voters would be called to testify. At the voluntary request of the parties, the Referee released the sixteen illegal voters. There is no indication of how these nineteen illegal votes were cast, despite the availability of these witnesses. Thus, Complainant has failed to establish by competent evidence, which the exercise of due diligence could have produced, how the nineteen illegal votes were cast and that “but for” the illegal votes he would have won the election.
Proceedings dismissed.
WUEST, SABERS, and AMUNDSON, JJ., concur.
HENDERSON, J., dissents.
HENDERSON, Justice (dissenting).
1. Violates Public Policy.
The “but for” rule violates public policy and constitutional right to cast secret ballot.
In Briggs v. Ghrist, 28 S.D. 562, 134 N.W. 321 (1912), the plaintiff alleged that the ballots were misread due to excessive markings on numerous ballots. The ballot counters apparently used their best judgment in determining which marks were votes and which marks were extraneous. This Court held that:
Unless the party attacking the legality of the votes alleges and proves fraud upon the part of the election officials such as to warrant throwing out the whole vote of the precinct, the burden is upon him to prove for whom the illegal votes were cast; and, if he fails to make such proof, the illegal votes shall be deducted from his vote, unless he satisfies the court that he could not, with the exercise of due diligence, show for whom the illegal votes were cast[.]
134 N.W. at 324. Applying this “but for” test would, therefore, require the plaintiff to match the specific marked up ballot to the individual voter and then ask the vote counter how the marking was tabulated. If he fails to reconcile the balloting errors, the outcome of the election will stand.
Briggs plainly states that “very clear evidence should be furnished as to how one did vote before his vote can be deducted from the total of any candidate.” Id., 134 N.W. at 322. Thus, if you cannot match the ballot to the voter, the only other method of determining how a person votes is by holding a new election.
In the case at bar, no one knows which ballots were tainted. However, we do know the identity of the individuals who cast the illegal votes. The majority relies on Briggs, demanding that Abbott show “for whom the illegal votes were cast ...” to prove “but for” the illegal votes he would have prevailed.
The only avenue for Abbott to meet this burden is to convince the 19 illegal voters to reveal their votes. However, the Constitution of the State of South Dakota states that “The Legislature shall by law ... insure secrecy in voting ...”
On the other hand, South Dakota‘s rules of evidence,
Every person has a privilege to refuse to disclose the tenor of his vote at a public election conducted by secret ballot. This privilege does not apply if the court finds that the vote was cast illegally or determines that the disclosure should be compelled pursuant to the election laws of the state.
This statute may go beyond the bounds of the constitution; but, so far, no court has compelled these 19 people to reveal their votes. In fact, both parties agreed not to inquire. Furthermore, though their votes may have been improperly cast, there was no indication of fraud by these voters. Note the word “fraud” in Briggs, 134 N.W. at 324. This lack of mens rea could prevent the use of
Pawlowski v. Thompson, 64 S.D. 98, 264 N.W. 723 (1936), seems to hold contrary to Briggs. At the school district election, election officials determined that ten (10) voters were ineligible. The ballots were discarded and not counted. Then, a new election followed without those ineligible voters. Pawlowski lost 8 to 5. The trial court determined that the ineligible voters were entitled to vote, all ten had voted for Pawlowski, and declared Pawlowski the winner. 264 N.W. at 724. This Court reversed the lower court, holding that elections are decided by the number of legal votes cast and not ascertaining what might have been cast. Id. “Where one therefore receives a majority of the legal votes cast, the opposing candidate cannot be declared elected upon evidence that legal voters would have voted for him but were erroneously denied the right.” Id. Thus, the new election was upheld.
Abbott‘s situation is the same. He cannot be declared the winner upon evidence that the 19 voters voted against him. “[P]ublic policy forbids that, after it is known just how many votes are necessary to change the result ...” Pawlowski, 264 N.W. at 724. Under today‘s ruling, we are substituting perplexity for precedent.
Following the “but for” rule provides an incentive to cast an illegal vote. Ineligible voters could stuff a ballot box to elect a candidate. Even when the violation is known, as in this case, the losing party is then left with the burden of proving that the illegal votes were not for him. This is an impossible task because the voters have a constitutional right to not reveal their votes.
In Larson v. Locken, 262 N.W.2d 752 (S.D. 1978), the election resulted in 105 votes cast with three votes separating the candidates. An investigation revealed that 16 absentee ballots were invalid. This Court held that invalidating only the illegal ballots and determining the election on the remaining ballots “would not be a free and fair expression of the will of the voters” and affirmed the trial court‘s order for a new election. Id. at 756. Here, a new election would resolve doubt.
Both North Dakota and Rhode Island have read Larson as holding that a new election is a proper remedy as a result of an election which is encircled with doubt. State ex rel. Olson v. Bakken, 329 N.W.2d 575 (N.D. 1983); Buonanno v. DiStefano, 430 A.2d 765 (R.I. 1981). This Court should observe a decision it has previously rendered. North Dakota and Rhode Island respected our 1978 decision.
In Buonanno, after a mechanical voting booth had apparently failed to record all votes, the appellate court affirmed a new election, but limited it to the two polling places where the voting discrepancies occurred. The court applied a different “but for” test holding that one cannot determine with absolute certainty what the result of an election would have been “but for” the malfunctioning of a voting machine:
[T]he contestant should not have to prove that the result would have been in fact different but for the malfunction ... A happy balance is struck by requiring the contestant to show that the irregularities were sufficiently large in number to establish the probability that the result would be changed by a shift of or the invalidation of the questioned votes.
A situation almost identical to the one at bar occurred in Akizaki v. Fong, 51 Haw. 354, 461 P.2d 221 (1969). Nineteen (19) illegal ballots were commingled with the valid ballots and counted. Same number as here. Although the margin of victory was two (2) votes. The appellate court held that there was “simply no way to determine what the actual result of the election was, and who should therefore be the winner.” Id., 461 P.2d at 224. The court upheld holding a new election. Id.
Other jurisdictions have also held that a new election is the remedy when a cloud of doubt encircles the original results. Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967); Coalition for Education in District One v. Board of Education of the City of New York, 370 F. Supp. 42 (S.D.N.Y. 1974), aff‘d, 495 F.2d 1090 (2d Cir. 1974); Foulkes v. Hays, 85 Wash. 2d 629, 537 P.2d 777 (1975); Nelson v. Robinson, 301 So. 2d 508 (Fla. App. 1974); Matter of Ippolito v. Power, 22 N.Y.2d 594, 294 N.Y.S.2d 209, 241 N.E.2d 232 (1968).
Certainly, the process is more efficient by declaring Hunhoff the winner because Abbott could not prove how the illegal votes were cast. However, a new election in the affected precincts is the only just way to allow for a free and fair expression of the will of the voters and eliminate any cloud of doubt. Here, the South Dakota Supreme Court picks the winner. Rather, the people have that right.