133 S.E. 109 | W. Va. | 1926
The above styled cases are election contests growing out of the general election held in Logan County in 1924. At that election the contestants were the several candidates of the Republican party for the offices named and the contestees were the opposing candidates on the Democratic ticket. Certificates of election were awarded the Democratic candidates by the canvassing board of Logan County, and these contests followed such awards. The contestants allege fraud and gross irregularities in the conduct of the election, against the Democratic election officials and the representatives of the Democratic party. Evidence was taken on behalf of the *428 contestants and the contestees, on which both the county court and the circuit court of Logan County found for the contestees. The cases are here on writs of error granted the contestants.
The charges of contestants are both general and special. The general charge is that the Democratic election officials throughout Logan County conspired to suppress a free expression of the voters and thus defraud the Republican candidates. In support of this charge contestants point to instances of fraud and of violations of the election laws at many of the precincts which were under the control of Democratic officials.
Considerable allowance must be made for those upon whom falls the burden of holding elections. Such officials frequently are not only unacquainted with election laws, but are unschooled in business and unfitted educationally to perform the duties which they assume. Mistakes and irregularities inevitably result. Consequently election statutes are usually held to be directory, unless otherwise declared by the statute. Irregularities are tolerated when they have not resulted in the admission of illegal votes, prevented the free expression of the electors, or cast uncertainty on the result of the election.
Many of the instances relied on in support of the general charge of fraud are merely such irregularities as occur at every election, and may be attributed to ignorance rather than to premeditation. For example, "by agreement", each poll clerk at Landville precinct took a part of the ballots, and signed the name of the other, as well as his own name, thereto. The ballots were thereby rendered illegal, and contestants were thus deprived of a heavy Republican majority at that precinct. The Democratic clerk at Landville had served as an election official before, though not as receiving clerk, and the Republican clerk was without experience. The contestants contend that because of his former service the Democratic clerk knew that the statute required each clerk to sign his own name on the ballots and that his agreement with the Republican clerk would cause the vote from that precinct to be rejected. This inference does not necessarily follow. The Democratic clerk testified that he had not received *429 any instructions from any source to enter into this agreement. We know that similar mistakes occurred in many of the counties throughout the State at the last election. There is no direct proof of a general plan. Sporadic instances of misconduct are not alone sufficient to support a general charge of fraud.
Contestants specifically charge fraud in the conduct of the elections, and intimidation of the voters, at Shamrock, Striker and Mud Fork precincts. We will consider the precincts in the order named.
Contestees point to the finding in their favor on the evidence by both the county court and the circuit court, and invoke the rule that this court will not reverse on disputed evidence in such case, unless the finding of the inferior courts is against the weight of evidence. Recognizing the force of this argument, we will base our decision as to this precinct on the testimony of the Democratic witnesses.
T. D. E. Stollings, a Democratic Commissioner, testified that when the vacancy caused by the failure of the Republican clerk to attend was to be filled, J. H. Pridemore seemed anxious to serve in some capacity; that the officials offered to accept him as a Republican clerk but he said he was not competent to fill the place as he could not write well enough; and that he asked permission to serve as commissioner, but there was no vacancy for him in that capacity.
Julius Dingess, another Democratic Commissioner, testifying in regard to J. H. Pridemore, said, "Well, he said that — that he couldn't write well enough to serve as poll clerk, but he would work on the counting board, and some of them spoke up and said it was as easy to be — to work on the counting board as to be clerk, and he said he didn't want to work at that. — Well he went further and said let Cam be clerk and him take Cam's place on the counting board, and I don't know which one of the election officers it was, but some one spoke up and said they didn't have any right to change men from the place he was appointed for and put another man on." We might explain here that Cam did serve as clerk of the counting board.
It therefore plainly appears from the testimony of Democratic officials that Cam Pridemore, a Republican voter at that precinct, was suggested as receiving clerk to represent the Republican party, by J. H. Pridemore, the only other Republican voter present at the opening of the polls, and that this suggestion was refused. The only real difference in the effect of the testimony of the Republican and the Democratic witnesses, is as to which one of the two Pridemores was available *431 for the service of receiving clerk. The Republican witnesses say that J. H. Pridemore was the one, while the Democratic witnesses say that Cam Pridemore was the one. The Republican party was indubitably entitled to have a Republican serve in such an important position as receiving clerk, if a Republican was available for service. Every effort should have been exhausted to secure a Republican for this position. If there had been no Republican voter present and available, the appointment of another Democrat as clerk would have been permissible. But as a Republican voter was present and available, it was the imperative duty of the Commissioners to permit his appointment, or even draft him for this service. Sec. 8, Ch. 3, Code.
In regard to the manner of voting, Charlie Moore, a Democratic Commissioner, testified: "They were all to vote openly. That was the rule. Well, that was always the way, ever since I have been there, and I have been there about three elections." Martin White, a Democratic receiving clerk, testified that nearly all voters came in pairs; that he and the other poll clerk sat at school desks one in front of the other and that the ballots were marked openly on the desks. W. F. Butcher, another Democratic Commissioner, testified that practically all the ballots were marked by the clerks; that when the voters came in, they would either call for a ticket, or would be handed one, and then the clerks would fill out the ballots; that the great majority of the voters voted two at a time; and that when a pair of voters entered the election room, each clerk would take charge of one voter and mark his ballot for him. In response to a question as to whether the election in this precinct was "A clerk's affair", he admitted that it was.
The contestants contend that the rule requiring open voting was a rule of the Democratic Commissioners. We do not think that the evidence warrants such a construction, but it does establish the fact that it was a rule of the Democratic voters, in which the Democratic officials co-operated. It does not appear how this rule was established, or what methods were used to enforce it. The significant fact is that there was such a rule and that compliance with it was secured. Only one *432
Democratic voter in the precinct attempted to vote a secret ballot. Time was called on him by the Commissioners, and he then came out of the booth and voted an open ballot. Sec. 2 of Art. 4 of the Constitution of West Virginia requires that the voter "shall be left free to vote by either open or secret ballot, as he may elect." Our system of voting was designed by the Legislature to afford compliance with the Constitution and to encourage and protect the secrecy of the ballot. It is true that secrecy is the personal privilege of the voter, which he may waive, but such waiver must be voluntary and should not be the result of a rule among the voters of his political faith. If he vote an open ballot because of such a rule which he does not favor, he is not left free to vote as he may elect. He is voting in a manner prescribed by others. His constitutional rights are violated. Any rule, custom or practice, which defeats or tends to defeat the free and untrammelled expression of the voters, is contrary to the Constitution. "An election, to be free, must be without coercion of every description. An election must be held in strict accordance with every legal requirement as to form, yet if in point of fact the voter casts the ballot as the result of intimidation; if he is deterred from the exercise of his free will by means of any influence whatever, although there be neither violence nor physical coercion, it is not a free and equal election within the spirit of the Constitution." DeWalt v. Bartley,
A similar situation arose in the contest of Jones v.Glidewell, reported in
Because of the refusal of the Democratic officials to secure or permit a Republican poll clerk, and because of the rule of open voting and the co-operation therein by the Democratic officials, we hold that the election in this precinct was conducted in such a way as to prevent the free expression of the will of the voters, and we therefore reject its entire vote.
Neither Chafin nor any of his deputies denied any of this evidence.
Frank Williamson, a Republican election commissioner, stated that he heard Walter Queen, a Democratic election commissioner, tell Earl Thompson, a Democratic challenger, that "the boss was out there and said to vote four at a time". Williamson then asked who the boss was, and Queen replied "Don Chafin". Williamson further stated that he protested voting more than two voters at a time because they didn't have but two booths, but that he was overruled by the Democratic officials; that he counted five voters in the election room on one occasion, and to the best of his recollection, six at another time. After they commenced voting four at a time, some of the voters marked their ballots on benches and some in the booths. Jessie Spry, a challenger for the Republican party, testified that he heard Queen make practically the same statement as the one given in the evidence of Williamson. *436 Spry also testified that after Chafin's order, four would vote at a time and sometimes more than four; that he protested to Queen that when more than two were permitted to vote at one time the challengers could not keep up with the voters on their books; that Williamson replied that the boss had said vote four at a time, and that "he just shoved them right in". Andy Mullins saw 25 voters within the rope shortly after Chafin slapped Deskins. He and his wife, Serilda Mullins, both of whom voted open Republican ballots, testified of discourteous conduct toward them by Queen just after they had voted. Thomas Atkins, a Republican poll clerk, stated that he saw on two separate occasions that day, as many as six men in the election room at the same time. He said that the Republican officials objected to voting more than two at the same time and that the Democratic officials replied: that "it was none of their say, or something to that effect"; and that Walter Queen said that Don Chafin had instructed them to vote four at a time. Aaron Kirk, a voter of this precinct, testified that he heard Chafin call Queen out to one side where they whispered a little, and that he then heard Chafin say to Queen: "By God, this thing is not managed right; I want it managed right", and that Queen replied: "I don't know what to do to make it right", and that Chafin then said: "I will make it right", and that Chafin thereupon raised the rope around the election booth and sent in four voters at a time; and that shortly afterwards, there were from ten to fifteen within the rope. The evidence showed that when more than two voters were in the election room at a time, those outside the booths marked their ballots on the desks within the observation of others present. Freeland White, a Democratic poll clerk, did not remember seeing more than four or five voters in the election room at the same time. Queen admitted that he "hollored" from the porch to Chafin; that he could not remember the exact words of Chafin, but that from the time of his conversation with Chafin, there were four votes cast at a time. White and Queen were the only two Democrats who testified as to this precinct, and they gave no testimony in contradiction to the evidence of contestants concerning the mighty deeds of Chafin and Chafin's mighty *437 men. Queen did not specifically deny the remarks charged to him by the Republican witnesses. It does not appear how long Chafin remained after he assumed charge of this precinct, but the evidence shows that his deputies remained there all day.
It was the duty of the election commissioners to secure compliance with the election laws. They should have regulated the number of voters both within the rope and within the election room. They should have provided a sufficient number of booths for the accommodation of the voters. They should have performed their duties without aid from Deskins or domination by Chafin. In permitting Chafin to crowd the election room with more voters than there were booths, the opportunity for secret balloting was destroyed. The constitutional guaranty of free suffrage without espionage was thus violated. The manner in which Chafin conducted the election was illegal and it was nothing less than gross inefficiency and misconduct on the part of the Democratic Commissioners to supinely comply with Chafin's orders.
The evidence also discloses a clear case of intimidation of the voters by Chafin and his armed deputies, so far-reaching as to render doubtful what the result of the vote at this precinct would have been had there been no intimidation.
In Pradat v. Ramsey,
In discarding all the votes cast at both Striker and Mud Fork Precincts, we realize that many of the electors at these voting places are deprived of honest votes, fairly cast. We regret this. But the fact that honest voters may lose their votes must not stand in the way of the correction of fraud. If so, fraud could rarely be reached in such contests. Expediency demands that honest suffrages be immolated, when their sacrifice is necessary to thwart interference by outlaws and bullies. We agree with the Michigan court, that "The readiest way to stop fraud and corruption at elections is to see to it that the same is not rewarded by success; and when, *439
by the connivance and procurement of the election officers, the law is, in essential particulars, disregarded, so that candidates and voters lose the benefit of its protective provisions, under circumstances well calculated to produce the belief that such conduct may have changed the result from what it would otherwise have been, there is as great danger of wrong to the individual voter through counting, as excluding, the vote of the precinct." Atty. Gen. v. Stillson,
After excluding from the count all the ballots from Striker and Mud Fork precincts, we find the result of said election as to the parties to these contests to be as follows: for the office of Sheriff of Logan County, Tennis Hatfield received 7102 votes, and Emmett F. Scaggs received 6992 votes; for the office of Prosecuting Attorney of Logan County, Ira P. Hager received 6881 votes, and John Chafin received 7006 votes; for the office of Assessor of Logan County, J. G. Hunter received 7023 votes, and Elmo Gore received 6820 votes; for the office of Commissioner of the County Court of Logan County, A.D. Cook received 6909 votes, and J. N. Schweitzer received 6815 votes; for the office of Justice of the Peace of Logan District of Logan County, Ernest Thompson received 4697 votes, and G. F. Gore received 4708 votes, Simp Thompson received 4666 votes, and I. M. Conley received 4734 votes; for member of the Board of Education of Logan District of Logan County, K. P. Nowlan received 4644 votes, and J. W. Beckett received 4678 votes.
Judgments will be entered in accordance with the above results.
Judgment reversed in the first four cases, and affirmed inthe others. *440