*1 BOEVERS, Petitioner, BOARD OF CANADIAN The ELECTION Oklahoma,
COUNTY, Consist- Owen, Chairman, Peyton
ing of Wilbur Arnold, Secretary, Churn,
W. and Don Kremeier, Respondents.
No.
Nov. Graves, City, Oklahoma D.
William petitioner. *2 Howard, ceeding, assign to have a nonresi- Fogg this court Fogg, Fogg, M. &
Richard Reno, respondent Wayne El for Kremeier. judge to rehear the contest. We ac- dent request. out-of-county An ceded to the Reno, James, Atty., Dist. El for Bill Asst. presided judge charge took of the case and respondent County Election Bd. Canadian proceedings. the over contest A, OPAL Justice. assign- in the There was manifest error by Boevers, ment of the contest the local district petitioner [contestant] judge relief associate. Rule prerogative seeks writ for corrective to resident Courts, results in a from the announced election Rules on Administration of 20 O.S. primary which he was a candi- App. provides election in in subdi- Supp.1980,Ch. Republican Party’s date for the nomination judge (d) disqualified that no “. . . vision county to the office of commissioner from participate in the selection of another shall County. District After a re- Canadian judicial assignment to that case.” officer requested, the certified results count he had There was also clear error in the associate votes, gave while contestant subject judge’s he was not district view that Kremeier, the nominee received [contestee] to recusal without cause. The challenged 228 votes. Contestant the cor- O.S.Supp.1980 8-1211 mandate by petition alleging rectness of the results county in judge the resident in the irregularities sufficient in number to entitle petition disqualify which the contest is filed him to a certificate of nomination. challenged “by either himself when he is O.S.Supp.1980 party”. The terms of 26 (1) presented May to us a issues are: unmistakably 8-119 and 8-1202 antici- §§ party disqualify to an election contest that, pate judge sought be should another (2) judge judges resident or without cause? recusal, upon judge's the local district Are the announced results of an election provide the needed Supreme Court shall impervious any challenge recount to on a replacement. pure and unmixed of law? and county Did the election board err as mat- We therefore hold that when the declaring ter of law in void two ballots cast assigned judicial judge regularly to service for contestant? We answer the first and county petition in the where a contest is last in the affirmative and the by party disqualify is asked either to filed negative. second in the cause, himself without he must do so. It recount, After an unsuccessful contestant upon shall then be incumbent counsel in the disqualify reg- to judges both of the request judge case to the chief in the coun ularly serving the district court in the coun- ty assign that the Justice a nonresi Chief ty where the election hear- was held from judge to hear the dent contest. ing petition. judge his contest The district judge immediately stepped assigned by The nonresident down. He then “as- preside the signed” to the Chief Justice to at the contest case the local associate dis- judge expressed powerless opinion trict who refused to recuse himself. the that he was Following change an adverse decision before that to effect a in the announced results judge, sought, pro- 8-1143 the instant because the of § the pertinent provisions 1. The terms of 8-120 are: “If § 8-121 are: “It shall be man- datory, disqualify petition pro- whenever a is is filed in the manner herein party, judge vided, judge county filed either for the district the district of the or such disqualify judge may assigned by Supreme himself.” as Court shall hear and determine said issue ...” [Emphasis pertinent provisions “If § 8-119 are: such vided, is filed in the manner herein indicated, statutory contrary all 3.Unless judge county the district in which in the text in the citations follow occurred, judge fraud or such other O.S.Supp.1980. footnotes are to 26 Court, assigned by Supreme shall hear and determine said issue ...” “ * * * county super- election board shall judge assigned categorically recount decision the county election board’s declined to “final in all cases”. In must be treated as dispute resolve the over the two votes. judge was incorrect. The this view the “irregularity” While is indeed difficult to merely indicates that there is quoted phrase garb,4 dress in an all-inclusive definitional by appeal from the board’s deci- remedy no 8-120,5 language 8-118 broad preclude law a later sion. The does together, apparent construed makes it remedy invoked the con- review if the *3 legislature what the doubtless intended is is authorized testant is one that that a 8-120 contestant be free to raise § statutes, 8- applicable from, of, any departure or violation can the reference in 119 and 8-120. Nor prescribed course of the law—other than finality 8-114 to the of the board’s deci- § which, corrected, when would estab- regarded sion as a bar to our own re-ex- fraud — any question of of law which amination lish either lawfully “that contestant is statutorily sanctioned election arises from entitled to be certified” the winner or power of this court stems not contest. The impossible “that it is to determine with legislation law. from but from fundamental certainty mathematical which candidate” is 7 4 In the exercise of Art. Okl.Const. § the victor. authority as our that constitutional —known parts the two ballots in essential “general superintendent control” over all in reproduction contest are shown immedi- agencies courts and administrative —this ately below. re-examine the cor- empowered court is any ruling on an issue of rectness of board
law which affect the ultimate outcome of an election. Stover (1975); Election Okl., 392 P.2d Sparks Board, Okl., 711, v. 712 530 v. Alfalfa Election P.2d 1020, County Board, 1021 CANADIANCOUNTY COMMISSIONER PrimaryElection, (Vole (or DISTRICT Ons) September [1] 1,1981 What to be decided here are remains WAYNPCSgfrWgR. contestee “pure and unmixed” of law tendered, resolved, in the contest but BOEVERS HENRY hearing assigned judge. At is ^ before sue is the correctness of the election board’s OFFICIAL REPUBLICAN BALLOT two of the ballots cast for decision void and could not be in contestant were PrimaryElection,September 1,1981 in the announced results. In the cluded CANADIANCOUNTY mistaken belief that the larity” votes contestant below not constitute an did meaning rectify by § miscount of 8-120, “irregu and contestee COMMISSIONER (Vote WAYNE (or One) DISTRICT KREMEIER [1] 8-114 hence commanded him to ac § BOEVERS HENRY contestant^ action, finality cord absolute to the board’s any irregularities counting alleging ...” vise such and its decision shall be other ” * * * [Emphasis [Emphasis in all final cases. § 132, Hatfield, 158 e.g. See Hatfield alleging irregularities “When a Wilkins, (1916); P. Okl., 944 Duncan v. 103 filed, allege petition must than fraud is 802 Nation irregularities and of such number of sufficient Okl., 117, Savely, 34 127 nature as to: Wichita, City Babb v. 172 Kan. P.2d lawfully enti- the contestant 1. Prove that ... tled to be certified impossible it is to determine 2. Prove that pertinent 8-118 are: “In certainty candidate is with mathematical the event a candidate contests the correctness ”, ... entitled to be certified of the announced results of an election IRWIN, J., rejected BARNES, J., in C. upper contest was V. C. because it LAVENDER, was believed to have a “distin- HARGRAVE, DOOLIN and guishing JJ., mark”. The terms of concur. provide do that such a ballot “shall not be SIMMS, JJ., HODGES and dissent.
counted for office or thereon”. The statutory provisions which invalidate HODGES, Justice, dissenting. “distinguishing ballots mark” I would allow the count of the have a long legislative history. They are ballot, ballot but would disallow the lower also declaratory of the common law.6 The resulting governed in a tie vote to term is one of art. It does not include O.S.Supp.1977 8-105. every form of excess penned material ballot, on the my lower the ballot but not needed to show the vot- opinion, completely distort the intention of er’s intention. Under the the voter. scribed rubric fall only those marks —not *4 used in an attempt to indicate a voter’s I am authorized to state that Justice choice—which show the face of the bal- concurs in SIMMS the views herein ex- lot, aliunde, or from evidence a deliberate pressed. having placed intent of been there to set apart the ballot from others.7 The
ballot in contest here does not evince design.
such unlawful The lines drawn
across contestee’s compatible name are all designated
with the intent of the voter to
favor candidacy. contestant’s They are
plainly consistent with the choice indicated by the Contrary proof vote cast. is absent. EL PASO NATURAL GAS The lower ballot in contest here does no COMPANY, Appellant,
more than evince the voter’s in- tention to favor contestant’s candidacy. It
is manifestly valid. The CORPORATION COMMISSION OF the include, among “valid OKLAHOMA, STATE OF and Leede markings”, square “a circle or which has Exploration Company, Appellees. ink, been blackened even if the entire No. 53236. square circle or is not filled and even if the portion may blackened beyond extend boundaries of the square.” circle or Dec. 1981. used are Rehearing Denied March permissible limits of the statuto-
ry language 7-127(3). in §
Neither ballot in contest here bears im-
proper marks and both clearly designate the
voter’s intention to favor contestant. granted
Writ commanding respondent-
board to declare contestant to be his party’s
nominee.
Erwin, Okl., 612,
making
protect
McClelland v.
such ballots void is to
the se-
Hunt,
crecy
Moss v.
discourage bribery,
of elections and to
Reinhardt,
corruption. Gentry
Ill.