BLACKBURN v. HALL et al.
42585
Court of Appeals of Georgia
January 25, 1967
Rehearing Denied February 17, 1967
115 Ga. App. 235
EBERHARDT, Judge.
Lewis R. Slaton, Solicitor General, J. Roger Thompson, J. Walter LeCraw, Amber W. Anderson, for appellee.
42585. BLACKBURN v. HALL et al.
Charles D. Read, John C. Hunter, A. Mims Wilkinson, Glenville Haldi, for appellant.
Hamilton Lokey, Eugene T. Branch, Earle B. May, Jr., for appellees.
EBERHARDT, Judge. This is an appeal of the overruling of a general demurrer to a petition brought under the Election Code by twelve electors residing in the 4th Congressional District contesting on behalf of James A. Mackay, the candidate of the Democratic Party, the result of the general election held November 8, 1966, in which Benjamin B. Blackburn, III, the Republican candidate, was the apparent winner, and seeking a recount of all votes cast by the votomatic process in Fulton and DeKalb Counties, particularly (a) the ballots deleted by the computer as not having been cast for either candidate in the election, (b) the defective ballots which the computer could not process and which were duplicated by election officials for counting, and (c) the “over-vote,” wherein there was a voting of a straight party ticket (Democrat or Republican) and a vote for the opposing candidate in the Congressional race.
The question raised by appellees’ motion to dismiss is whether the appeal is premature, in the light of §§ 34-1708 and 34-1709 of the Georgia Election Code (
But appellant contends that the above provisions of the Election Code have been superseded by the Appellate Practice Act of 1965 (
It is contended however that the 1965 Act is inapplicable to an election contest for the reason that the same is “not an action at law or a suit in equity” but rather a “special statutory proceeding.” Harris v. Sheffield, 128 Ga. 299 (57 SE 305). We agree that an election contest is “a special statutory proceeding“; however, this court has held in another case involving “a special statutory proceeding” (workmen‘s compensation) that the special appellate procedure and practice found in
It is further contended that the 1965 Act is limited to civil and criminal cases and that an election contest is neither. The specific answer to this can be found in the very section of the Election Code relied on by the appellees. It provides that appeals shall be taken “as in other civil cases.”
We think the ultimate statement on this question is found in Undercofler v. Grantham Transfer Co., 222 Ga. 654, 657 (151
Did the trial court have jurisdiction of the subject matter? If it did not, the general demurrer should have been sustained for that reason.
Article I, Section 5 of the Constitution of the United States provides: “Each House shall be the judge of the Election, Returns and Qualifications of its own members. . .” This may suggest a preemption of the subject matter by the Congress and a resulting lack of jurisdiction in the courts.1 How-
The Supreme Court of Minnesota employed similar reasoning in Odegard v. Olson, 264 Minn. 439 (119 NW2d 717), pointing out that there had been no statutory provision for contesting the count of ballots when a contrary result was reached in Youngdale v. Eastvold, 232 Minn. 134 (44 NW2d 459), Williams v. Maas, 198 Minn. 516 (270 NW 586), and State ex rel. 25 Voters v. Selvig, 170 Minn. 406 (212 NW 604). And see Ransley‘s Contested Election, 268 Pa. 303 (111 A 876), where jurisdiction was held lacking because of the absence of any statutory authorization of the contest.
Since a contest of this nature is specifically authorized by the Georgia Election Code of 1964,
We share the sentiment expressed by the Supreme Court of Oklahoma concerning the proposition that the Congress might refuse to seat a contestant although a recount should disclose that he had received the greater number of votes. Said the court: “Although Congress may have such power, we do not
This brings us to a consideration of whether, for other reasons, there was error in the overruling of the general demurrer to the petition. As has been indicated, the count or tabulation of the votes is urged to be erroneous in three areas or respects. In the consideration of these we should have in mind, in addition to the applicable provisions of the Election Code, a general principle that there is a distinction between the errors of officers conducting elections and errors of the voters themselves; in the former case, since the voter has no power over the officer, the officer‘s blunder will not disfranchise the voter—unless it is mandatory under the law, whereas the voter may by his own neglect disfranchise himself.
Each of the parties urges as the most important of the considerations raised the matter of the “over-votes.” It is alleged that there are numerous instances where the voter punched the ballot in the indicated space opposite the name of the candidate for Congress on the ticket of the opposing party, both parties having candidates for that office.
Let us first look to applicable provisions of the Election Code. The only provision by which the voter is instructed as to how he should prepare and cast his vote in an election is found in
Provision for the counting of ballots is made in
“(b) At elections, any ballot marked by any other mark than a cross (X) or check (✓) mark in the spaces provided for that purpose shall be void and not counted: Provided, however, that no vote recorded thereon shall be declared void because a cross (X) or check (✓) mark thereon is irregular in form. A cross (X) or check (✓) mark in the square opposite the name of a political party or body in the party or body column shall be counted as a vote for every candidate of that party or body so marked. Any erasure, multilation or defective marking of the straight party or body column at general elections shall render the entire ballot void, unless the elector has properly indicated his choice for candidates in any other column, in which case the vote or votes for such candidates only shall be counted. Any ballot indicating a write-in vote for any person whose name is not printed on the ballot shall be counted as a vote for such person, if written in the proper space or spaces provided for that purpose, whether or not a cross (X) or check (✓) mark is placed before the name of such person.” (Emphasis supplied.)
It is true that these sections refer to voting by paper ballot,
There are provisions in the Code as to how the votomatic or vote recorder shall be set up for use in voting, going to the mechanical process of preparing it for use in casting the ballot—but which do not provide as to how the ballot shall be marked, or what ballots shall be counted except the inferential provision against the counting of over-votes.
Section 34-1220 (b) provides, relative to the use of vote recorders (votomatics) that: “It shall permit each elector, at other than primaries, to vote a straight party or body ticket in one operation, and, . . . in one operation, to vote for all of the candidates of one party or body for every office to be voted for, except those offices as to which he votes for individual candidates.”
Section 34-1220 (e) as amended provides that: “When [the vote recorder or votomatic process is] used in conjunction with a tabulating machine, it shall preclude the counting of votes for any candidate or upon any question, for whom or upon which an elector is not entitled to vote, and shall preclude the counting of votes for more persons for any office than he is entitled to vote for, and shall preclude the counting of votes for any candidate for the same office or upon any question more than once.”
The Election Code was amended in 1965 (
What does the clause, “and shall preclude the counting of votes for more persons for any office than he is entitled to vote for” mean? And what was the purpose of the General Assembly in the adoption of this amendment to the Election Code? We are of the opinion that it is stated in the caption of the amending statute and in the statute itself—“to preclude an elector from over-voting,” and to preclude the counting of “over-votes.”
Then what is an “over-vote?” Authorities are not in harmony on this problem. “According to one view, the general intention to vote a straight ticket by placing a cross in the circle at the end of a party ticket is controlled by making cross marks opposite the names of candidates on another ticket, at least where the names of the candidates in the party column opposing those candidates individually voted for are erased, and such a ballot should be counted only for the candidate or candidates on the ticket marked with a cross at the top whose opponent or opponents have not been voted for by placing cross marks opposite their names.”
“However, the rule is inapplicable when the party has no candidate for the office to be filled, and where the party column, in the circle at the head of which the voter makes a cross mark, contains the name of only one candidate for an office, whereas two are to be elected, he may properly mark a cross opposite the name of a candidate on another ticket, as he is entitled to vote for two candidates.”
Every judge on this court participated in the election here involved, some as candidates—all as voters, some voting by paper ballots, some by votomatic, and we may take judicial notice that the State Election Board, whose duty it was to administer the Code and to instruct the officials holding elections over this State as to the manner in which voting should be done and what votes were to be counted and tabulated under the provisions of the Election Code, publicized by all available means what it regarded as the proper manner of splitting tickets, including publicity at the polling places, viz., that if a voter intended to vote a split ticket he should not put a cross in the circle or indicated space at the head of a party ticket, or punch the space on a votomatic ticket, but should proceed to
An “over-vote,” then, occurs when the voter appropriately marks the indicated space at the head of a party column on a ballot, indicating an intention to vote for all of that party‘s candidates, and also places marks opposite the names of an opposing candidate or candidates, indicating an intent to vote also for them, or when he marks a straight party ticket and additionally writes in the name of a candidate for one of the offices for which there is a candidate by that party. Where an over-vote has occurred, as to that office, or those offices, the ballot is invalid, but it is valid as to others. And of course, as to the offices for which the party has no candidate, he may vote a straight party ticket and for individuals who are candidates of another party, or who are “write-ins,” without over-voting.
The 1965 amendment to the Election Code was intended to invalidate over-votes and prevent their counting and tabulation, because that kind of ballot is ambiguous. The true intent of the voter cannot be known. Assuming that there was no intention to vote for both candidates, he may have intended to vote only a straight party ticket, and then on reflection have decided to do otherwise, or he may have started out to vote for the individual candidate of a particular party and then, on reflection, have decided to vote the straight ticket of the opposing party, or he may have intended to vote for all nominees of the designated party save the one for the office where he indicated a vote for an opposing candidate. But it is speculative for us to say what his intention was. Unless the ballot clearly demonstrates the voter‘s intention those who are charged with the counting and tabulation of ballots should not be called upon to surmise as to what the intent may have been—for they may well come to the wrong conclusion. It is the
Of course this is not to say that if the legislature had clearly spelled out in the law that an over-vote cast in the manner of those here is lawful and shall be counted for the candidate of the opposing party (or for a write-in, if that is the indication) a voter would be presumed to have voted with that provision in mind and his intent would be clear. But our statute does not so spell it out, and, as we see it, does not authorize the casting of an over-vote; rather it prohibits and forbids the counting of them.
Any contention that the invalidating of over-votes should result in the call of another election is without merit. The Code does not contemplate or provide for the calling of another election because ballots which the voter has improperly marked and cast are invalidated. If it did, the process of holding an election would never end, for an election has been rarely held when some of the ballots were not so invalidated. Invalidation is necessary so that the result may be determined upon the counting of ballots lawfully prepared and cast. No fraud is charged.
There is no decision from the appellate courts of this state dealing with the problem now confronting us, and we have found none from the courts of other states dealing with the splitting of tickets under the votomatic system of voting. The cases cited in Judge Deen‘s dissent are inapposite. All of them deal with balloting by paper ballots, but they are distinguishable for other reasons. In Pires v. Bracken, 412 Ill. 416 (107 NE2d 706) it was pointed out that “the Democratic column did not contain a nominee for every office to be filled. Three circuit judges were to be elected, and there was only one Democratic candidate. By marking the circle at the head of the Democratic column, the voter cast a vote for only one of the offices of circuit judge. Two remained to be voted on, and none of the ballots in question contained marks at more than two of the
State ex rel. Hammond v. Hatfield, 137 W. Va. 407 (71 SE2d 807) dealt with ballots in a city election with irregular markings of various kinds. With many citations of the law of West Virginia by article, chapter and section, but without giving it even in substance save in one or two instances, the court proceeded to hold some of the ballots valid and some void, concluding that “After all is said and done, the intention of the voter, when ascertainable, is the prime consideration on the question whether the ballot should be counted or discarded, and, if counted, for what candidate or candidates.” With that statement we are in accord, but do not think the intention is ascertainable in the case of an over-vote. In State ex rel. Bumgardner v. Mills, 132 W. Va. 580 (53 SE2d 416), another West Virginia case, it is pointed out in the case of the over-vote the voter had scratched out the name of the party candidate in the column of the party ticket which he had voted, and had, for that office, voted for an opposing individual candidate.
State ex rel. Robeson v. Clark, 28 Wash.2d 276 (182 P2d 68) deals with a statute providing that “If [the elector] desires to vote for all the candidates of any political party he may mark a cross ‘X’ after the name, against the political designation of such party, and shall then be deemed to have voted for all the persons named as candidates of such party. If he desires to vote for any particular candidate of any other political party he may do so by placing after the name of such candidate a
In Denny v. Pratt, 105 Conn. 256 (135 A 40) a statute provided that: “[W]here an elector has made a cross-mark ‘X’ in the circle at the head of any party column, and also made a cross-mark ‘X’ in a voting space at the left of the name of any candidate in any other column on the ballot, such ballot shall be counted for the candidate opposite whose name such cross-mark ‘X’ shall have been placed, and for all the candidates in the party column at the head of which a cross-mark ‘X’ has been placed, except any candidate for an office for which the name of the candidate has been marked in another column. . . .” As we see it, our statute provides just the contrary.
Consequently, if this were the only issue raised by the petition the general demurrer would be good and it would have been error to overrule it.
But there are other issues raised which cannot be resolved on demurrer, viz., whether the ballots rejected by the computer as not having been cast for either candidate were, for some reason—perhaps mechanical—improperly rejected, and whether the defective ballots were properly duplicated for counting in accordance with provisions of the Code. These are factual issues, and because they are made the overruling of the demurrer was proper.
Judgment affirmed. Bell, P. J., Frankum, P. J., Jordan, Hall and Pannell, JJ., concur. Quillian, J., concurs in the judgment. Felton, C. J., and Deen, J., dissent.
QUILLIAN, Judge, concurring specially. Though I am unable to concur in all of the legal conclusions expressed in the majority opinion, I concur in the judgment.
FELTON, Chief Judge, dissenting. I dissent from Division 2a of the majority opinion for the reason that neither the trial court nor this court has jurisdiction of the merits of this case. This court has the limited jurisdiction in this case to adjudicate that the trial court and this court have no jurisdiction of the
The argument that Congress or the Senate might act arbitrarily or even dishonestly is irrelevant, totally and completely. See also, Laxalt v. Cannon, 80 Nev. 588, supra. See especially Rainey v. Taylor, 166 Ga. 476 (143 SE 383). . . I do not agree with the ruling in that case but I am bound by it. My opinion is that courts have jurisdiction of the qualifications of a member of the General Assembly when it appears that the qualifi-
DEEN, Judge, dissenting. I differ with the majority opinion for two reasons:
The appeal in this case is from the overruling of a general demurrer to a petition seeking to contest the result of a political election. Under the Election Code (
The Appellate Practice Act (
The majority in determining the question of jurisdiction indirectly concludes that the election contest procedure authorized by the Georgia Election Code of 1964,
The crux of this entire case depends upon the answer to the following question: with regard to the requirements applicable to voting machines and vote-recorders (votomatics) found in Subparagraph (b) of
It is my view that the statute is crystal clear in providing that an elector voting under vote-recorder and voting machine requirements may split his vote by punching the straight ticket of one party, and then punch opposite the name of one or more candidates of the opposing party as to the offices for which he wanted to vote for opposing candidates, there is no provision contained in
It is true that these latter six foreign cases cited provide for split-ticket voting by paper ballot. With regard to the votomatic area, Georgia has apparently adopted the Pennsylvania rule clearly providing for split-ticket voting. The Georgia General Assembly has not yet adopted the Pennsylvania rule as to split-ticket voting when voting by paper ballots. I heartily concur with Judge Eberhardt‘s expression that “it is in the interest of both the candidate and the voter to have a rule of uniformity so that voters moving from a paper ballot area into a votomatic area, or vice versa, or a voter from a votomatic area who casts an absentee ballot, will not be confronted with the confusing and illogical change.” However, where the legislature has spelled out a separate rule applicable to casting of ballots by vote recorder or votomatic as opposed to casting votes by paper ballot, then the question of providing a rule of uniformity addresses itself to the Georgia legislature and not to this court.
The majority opinion outlines in detail the instructions found in
Great emphasis is placed on the publicity in the newspapers, over the radio and television as to the manner in which an elector may vote a split ticket. Assuming arguendo that the publicized instructions are applicable to split-ticket paper ballot voting, assuming further that almost fifty percent of the total state electors are in urban areas that use voting machines, vote-recorders (votomatics), and assuming that one of our parties consistently has over 100 candidates running for as many offices, and that another growing political party in this state will have 50 to 100 candidates in a few years opposing the first party candidates, the majority opinion is saying to the urban area electors using voting machines and vote-recorders, that if you desire to vote for all candidates of your party except one, you should not and cannot put a cross in the circle or indicated space at the head of a party ticket, or punch the space on the votomatic ticket, but should proceed to split the ticket by marking proper marks or punches in indicated spaces opposite the name of every candidate for whom you wished to vote or for whom you wished to write in a vote. This would create a chasm of chaos, confusion and long voting lines of waiting and delay would exist if all split-ticket urban voting were performed in this manner. An elector has the right to vote in this manner, and he further has the right to cast a speedy ballot by voting one time for all party candidates while simultaneously in one operation casting individual votes for candidates of a particular office.
For this court to classify and hold that a “split-vote” is an “over-vote” and therefore could not be counted, in the light of Subparagraph (b), supra, would constitute, in my opinion, judicial usurpation of a legislative prerogative.
If the italicized clause is deleted from (c) supra, or is declared meaningless, then (c) has exactly the same meaning as (a). Either this language must be presumed to have no meaning, or it means that it is permissible for the voter in one operation to vote for all candidates of one party, and then, by voting individually, to split his ticket without the ballot being counted as an over-vote. Thus, where the voter “in one operation” votes for a long list of candidates of a single party, and then, as to some of these “he votes for individual candidates,” the legislature has in effect given a statutory intent to the voter to have the individual candidate take precedence over the party candidate on his ballot.
The trial court did not err in overruling the general demurrer to the petition as to the issue discussed above and as to the issues outlined in Division 2 (c) of the majority opinion. Judgment of the lower court should be affirmed.
I am authorized to state that Chief Judge Felton concurs in Divisions 1 and 2 (b) of this dissent.