187 N.W. 157 | N.D. | 1922
Lead Opinion
Election contest. This is an appeal from a judgment rendered in favor of the contestant. It involves the office of county commissioner of Burke county in the Third commissioner district. The contest was instituted at the same time as the Drinkwater-Nelson contest for the office of Sheriff, decided concurrently herewith, post (187 N. W. 152), and they were tried together. The facts with reference to the election and institution of the contest are sufficiently stated in the opinion in that case, and need not be restated here. The evidence taken is applicable to both contests, except that some of it relates to precincts not within the commissioner district, and some relates to precincts involved only in this contest.
On the face of the returns Dewing received 536 votes and Grubb 518 votes for the office of county commissioner. Upon a recount in this proceeding it appeared that the plaintiff had received 518 votes and the defendant 529; but it was found by the court that 2 votes had been
In so far as the assignments of error upon this appeal involve the questions presented and decided in the Drinkwater-Nelson contest, that opinion is adopted as applicable hereto, and in so far as assignments are presented that are not controlled by the decision in that case they will be separately considered. The votes excluded and subtracted from Dewing on the grounds of alienage are those of Mary Skalicky and Muriel Byknonen. These were not legal votes, and they must be disposed of as in the Drinkwater-Nelson contest. This case turns upon the propriety of excluding a number of votes in Colville precinct on the ground of the failure to observe the secrecy of the ballot through assistance rendered to voters by one election judge, where no disability was declared or shown.
As to the circumstances in which assistance was rendered, Bennie Breeding, a clerk at the election, testified that on one occasion both judges of election went into the booth with a woman, and that one of the judges, Ole Sletvig, went into the booth with approximately half of the women that voted in the precinct that day; that he did not think that the women had first declared that they could not read nor mark their ballots, except the old lady who was assisted by both judges; that he did not hear any of them declare that they were unable to mark their ballots; that the provisions of the law with reference to assistance to voters were read in the morning on the opening of the polls; and that the ladies who had assistance asked Mr. Sletvig to go to the booth with them. Sam O. Enget, a judge in the same precinct, testified that there was.just one lady who voted with the assistance of both judges and that she had stated to the board that she could not read; that none of the other ladies declared or told the judges that they could not read, of that they were physically unable to mark their ballots; that Sletvig, the other judge, assisted about half of the wbmen voters; that these women asked Sletvig to go into the booth with them that he (Enget) had remarked ■during the morning that this should not be done; that Sletvig continued ■10 go to the booth with the ladies that called for him; that there was no
Section 129 of the state Constitution provides that all elections by the-people shall be by secret ballot, subject to such regulations as shall be provided by law. The necessity for secrecy in connection with the operation of the Australian ballot system is so generally recognized that the reasons for it need not be discussed. Suffice it to say that it serves the double purpose of protecting the voter in the independent exercise of his franchise, and it gives one of the best assurances against sundry fraudulent practices that designing corruptionists have invented. To the end that secrecy may be observed, the Legislature, in carrying out the constitutional policy, has provided that not more than one person shall be permitted to occupy an election booth at the same time. Section 986, Compiled Laws of 1913. That the booth shall be protected by a guard rail, and that not more than one elector for each booth shall be permitted within the railing at one time. Section 990, Compiled Laws of 1913. That no person shall show his ballot, after it is marked, to any person in such a way as to reveal the contents thereof, or to any person for whom he has marked his vote, and that no elector shall place any mark upon his-ballot by which it may afterwards be identified as the one voted by him. Section 1042, Compiled Law's 1913. It is the manifest aim of all these.provisions to guarantee absolute secrecy. They not only prevent others from ascertaining by observation how the elector votes while he is engaged in the process, but they prohibit the exhibition of the ballot by the voter himself to any person. The only instance of a departure from this that the law recognizes is where a voter declares to the judges of the election, or when it appears to the judges that he cannot read, or that by blindness or other physical disability he is unable to mark his ballot,
Where mandatory requirements are not observed, it will necessarily result in individual cases that the will of the electors may not be effectively carried out, and this, even though there be no fraud or no great blame attaching to any person. However unfortunate this may be in a particular case, it is unimportant compared to the safeguarding of the ballot against insidious attacks to which it would be subject if mandatory requirements could be safely ignored. Such consequences are unavoidable in the enforcement of mandatory statutes; but the apparent harshness of the result is not as great here as in some other situations that occasionally arise. For instance, the mere failure of the election officer to place his initials on the back of the official ballot renders the vote absolutely void by express statutory declaration. Section 1006, Compiled Laws of 1913; Miller v. Schallern, 8 N. D. 395, 79 N. W. 865. This is an omission that the voter is in no wise responsible for; yet, in the interest of fair elections in the long 'run, ballots not so marked must be disregarded. It is for similar reasons that votes must be disregarded where the voters who presumably do not belong to the excepted class and an officer of the election have disregarded wholesome requirements intended to preserve the purity of the ballot.
It follows from what has been said that the judgment is right, and it is affirmed.
Concurrence in Part
(concurring in part and dissenting in part). For the reasons sated in my opinion in the case of Drinkwater v. Nelson, post., 187 N, W. 152, I am fully convinced that the judgment in this case should be reversed, and the contest proceedings dismissed.
The discussion which is set forth in my opinion of Drinkwater v. Nelson is a sufficient discussion of the questions of law and fact which have arisen in this case.