Knowles v. HollyKnowles v. Holly
- Reporters:
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- Before:
- Rosellini
This is an election contest, filed by the respondent under the provisions of
The respondent was the Democratic Party’s nominee for the position of Commissioner, having narrowly defeated the appellant in the primary election held in September 1972. After his defeat, the appellant campaigned as a write-in candidate. The general election in November of that year was conducted exclusively by paper ballot. The ballot was printed in accordance with the form set forth in
Instructions: If you desire to vote for any candidate, place an X in the □ at the right of the name of such candidate. If you desire to vote “For” or “Against” any Measure or Constitutional Amendment, place an X in the appropriate □ following such Measure or Constitutional Amendment.
According to the certified results of a recount of the ballots demanded by the respondent after the appellant had been declared the winner, 2,016 votes were cast for the respondent and 2,177 voters wrote in the name of the appellant for the office of Commissioner.
It was the contention of the respondent in the lower court that irregularities in the marking of 322 ballots made them ineligible to be counted in the appellant’s favor. The trial court did not agree with this contention as to every questioned ballot, but it did find that the voter’s intention to vote for the appellant was not clearly manifested in 213 of the ballots which had been credited to the appellant, and held that these ballots could not be counted. As a result, the total number of votes for the appellant was reduced to 1,964, which was 52 votes fewer than the respondent’s total of 2,016, and the County Auditor was directed to issue a certificate of election to the respondent.
The appeal has been expedited by the parties and the court.
There were several different types of irregularities which occurred in the balloting. Some voters wrote in the correct surname but the wrong given name; a few misspelled the appellant’s name. Others wrote his name correctly but placed it in the Commissioner, 3d District box or the Pre‘cinct Committeeman box. But the largest number of irregularities occurred in two categories. One hundred five electors wrote “thé name of the appellant correctly in the
One hundred sixty-four voters wrote the name of the appellant in the box designated County Commissioner, 1st District, but placed it in the column of another political party. One hundred fifty-seven of these voted for the appellant in the Republican Party column and seven in the column designed Taxpayer$ Party to Cut Taxe$. The lower court held that the ballots cast by these voters did not clearly manifest an intent to vote for the office of Commissioner.
The appellant assigns error to the latter ruling. The conclusions which we have reached in regard to these two categories of ballots determine the outcome of the election and it will therefore be unnecessary to consider the question whether the trial court erroneously rejected ballots showing other types of irregularities.
We will consider first the question whether, as contended by the respondent,
On receipt of his ballot in an election the elector shall forthwith and without leaving the polling place retire alone to one of the places, booths, or apartments provided to prepare his ballot. Each elector shall prepare his ballot by marking a cross “X” after the name of every person or candidate for whom he wishes to vote.
In case of a ballot containing a constitutional amendment or other question to be submitted to the vote of the people the voter shall mark a cross “X” after the question, for or against the amendment or proposition, as the case may be. Any elector may write in the blank spaces the name of any person for whom he may wish to vote: Provided, That where a partisan office is concerned, the voter must not only write in the name of the candidatebut also the party affiliation of such person pursuant to the provisions of RCW 29.51.170 as now or hereafter amended.
It will be observed that an elector who writes in the name of “any person for whom he may wish to vote” is not expressly directed to mark a cross after the name. The only express requirements are that he write the candidate’s name and designate his political party pursuant to the requirements of
The direction that a ballot be marked by placing an “X” after the name of the candidate would seem to have its logical application where the names of candidates are printed on the ballot and the elector makes a choice among them. If an elector does not place an “X” after the name of any candidate printed on the ballot but instead writes, in the space provided for the office in question, the name of a person whose name is not printed on the ballot, there should be no question but that he has expressed his choice for the office. The placing of an “X” after the name may add emphasis, but the intent is clear without it.
The legislature has recognized, in
[t]hose parts of ballots must not be counted which:
(2) Are not marked with sufficient definiteness to determine the voter’s choice or intention: Provided, Thatno ballot or part thereof shall be rejected for want of form or mistake in initials of names if the election board can determine to their satisfaction the person voted for and the office intended.
Most recently enacted in Laws of 1965, ch. 9, the substance of this provision was first adopted by the territorial government in Laws of 1865, § 2, p. 38. This count, in the early case of State ex rel. Orr v. Fawcett, 17 Wash. 188, 49 P. 346 (1897), observed that the legislature had recognized the difficulty that the ordinary citizen might experience in understanding the ballot and following the directions given him in casting his vote, and had, in this provision, declared that the voter’s intention should be given effect in spite of errors in marking the ballot, if that intention could be ascertained.
The elective process, this court said,
though a constitutional privilege and right, must be exercised under such reasonable legislative restrictions as will prevent intimidation, bribery and fraud and secure an honest, untrammeled and genuine expression of public sentiment. It is also true, however, that in the absence of constitutional inhibition all statutes tending to limit the citizen in the exercise of the right of suffrage should be liberally construed in his favor. If his ballot is rejected, it must come within the letter of the prohibition, and when the statute specifically declares under what conditions ballots shall be rejected, courts should not enlarge those ■conditions, or make other or different conditions from those expressed in the statute grounds for rejecting the ballots. It will be noted that our statute provides only ■one condition under which a ballot should be rejected, viz.: a ballot from which it is impossible to determine the elector’s choice, and, after all, this should and must be the intention of the legislature. The important thing is to determine the intention of the voter and to give it effect.
17 Wash. at 199. Accord, State ex rel. Hufford v. Eddings, 86 Wash. 233, 149 P. 945 (1915) and State ex rel. Robeson v. Clark, 28 Wn.2d 276, 182 P.2d 68 (1947).
Since the intent of an elector can be expressed by writing the name of his candidate in the space provided opposite the office intended, a requirement that he also mark an
The election board and the superior court correctly refused to reject the 105 ballots upon which the voters had written the name of Fred Holly but had not marked an “X” after the name.
We turn to the appellant’s contention that the trial court erroneously set aside the election board’s finding that the intent of 164 voters had been sufficiently manifested, even though they placed his name in the column of a political party with which he was not affiliated. The answer to this contention depends upon the construction to be given to the proviso in
Provided, That where a partisan office is concerned, the voter must not only write in the name of the candidate but also the party affiliation of such person pursuant to the provisions ofRCW 29.51.170 as now or hereafter amended.
This is what is known as a “reference” statute. Reference statutes are those which refer to, and by reference adopt wholly or partially, preexisting statutes or which refer to other statutes and make them applicable to an existing subject of legislation. They are frequently used to avoid encumbering the statute books by unnecessary repetition, and they are recognized in this state as an approved method of legislation. Roehl v. PUD 1, 43 Wn.2d 214, 261 P.2d 92 (1953).
Courts are unanimous concerning the primary legal effect of the statutory reference whenever an act of the legislature brings into itself, by reference, the terms of another act. The precepts and terms to which reference is made are to be considered and treated as if they were incorporated into and made a part of the referring act, just as completely
At any election or primary, any voter may write in on the ballot the name of any person for whom he desires to vote for any office and such vote shall be counted the same as if the name had been printed on the ballot and marked by the voter: Provided, That when voting machines or voting devices and ballot cards are used, no v/rite-in vote for any candidate for a partisan office at either a state primary election or state general election shall be valid unless a political party affiliation is also written by the voter after the candidate’s name. The same procedure must be followed when paper ballots are used for partisan offices at a state primary election. For such write-in voting, it shall not be necessary for a voter to write the full name of the political party concerned. Any abbreviation including the first letter of the political party name shall be acceptable as long as the precinct election officers can determine to their satisfaction the person voted for and the political party intended.
The proviso lists the circumstances under which the write-in voter must designate a political party affiliation for his candidate. They include state primaries and state general elections where voting machines or voting devices and ballot cards are used, and state primaries where paper ballots are used. They do not include state general elections where paper ballots are used. Remembering that statutes regulating the exercise of the franchise must be liberally construed in favor of the voter, and applying the maxim expressio unius est exclusio alterius,
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it would appear that there is no statutory requirement that an elector designate a political party affiliation when he writes in the name of
But the respondent maintains that the legislature has manifested a contrary intent in
“Pursuant to” means “in the course of carrying out: in conformance to or agreement with: according to.” Webster’s Third New International Dictionary (1968), at 1848. It is a restrictive term. State ex. rel. Ickes v. Slinger, 79 Ohio App. 334, 73 N.E.2d 385 (1946); Fabianich v. Hart, 31 A.2d 881 (D.C. Mun. App. 1943).
This interpretation also is indicated by the familiar rule of statutory construction — that where there is a conflict between one statutory provision which deals with a subject in a general way and another which deals with the same subject in a specific manner, the latter will prevail. State ex rel. Phillips v. State Liquor Control Bd., 59 Wn.2d 565, 369 P.2d 844 (1962). The sentence relied upon by the respondent is general, the proviso is specific.
The respondent would have us believe that it was through oversight that the legislature omitted a requirement -that the party of the write-in candidate be designated by the voter in a general election where paper ballots are used. He contends that there is no logical reason to require such a designation in a primary and not require it in a
Since the purpose of the primary is to designate party nominees, and since a person may be a candidate in more than one party, and since the persons who count the votes cannot be expected to know the party affiliations of write-in candidates, the legislative purpose in requiring political party designation is manifest.
It also should be observed that the requirement of such designation in primary elections is consistent with the provision of
On the other hand, to require a voter to designate the party of his write-in candidate in a general election serves no similar purpose. True, the candidates whose names are printed on the ballot are listed according to their party affiliations, but it would seem that the purpose of this is to aid the voter who wants to vote for his party’s nominees but does not know their names. Certainly we can find in
The respondent’s theory that the legislature in
We note that the legislature, in drafting its sample ballots, neglected to include instructions for voting for write-in candidates and to include a space designated as a place to vote for write-in candidates. Where is the voter to write the name? He knows that his candidate is not the nominee of any party and yet the only spaces on the ballot are under party headings. He may not know the party affiliation, if any, of his candidate. This is not a problem for him in a primary election, of course, since his specific purpose is to vote for his candidate as the nominee of a particular party.
In the case before us, the appellant had been defeated in the Democratic Party primary. The voter who wished to vote for him as a write-in candidate might well reason that he should not place his name in the Democratic Party column, since that party had rejected him in the primary. There was no space for an independent candidate. It is not surprising that some voters reasoned that the logical place for his name was in some column other than the Democratic column. Such voters were forced to choose a column of a party with which the appellant was not associated.
There is no statute designating the place on the ballot where the names of write-in candidates should be written.
We are convinced that the election board was justified in determining that voters who wrote the correct name of the appellant in the spaces marked “County Commissioner— 1st Dist.” had satisfactorily manifested their intention to vote for the appellant for that office, even though they wrote the name in a column devoted to candidates of a political party to which the appellant had no commitment.
Adding the 164 votes falling into this category to the 1,960 votes which were tallied from ballots regular on their face and those regular except for the omission of cross-marks, brings the total of votes cast for the appellant to 2,124, being 108 more than the total votes cast for the respondent. Accordingly, the judgment must be reversed and the certification made by the election board must be reinstated.
It is so ordered.
Hale, C.J., Finley, Hunter, Hamilton, Stafford, Wright, Utter, and Brachtenbach, JJ., concur.
Notes
If a statute specifically designates things or classes of things upon which it operates, an inference arises that all things or classes of things omitted from the statute were intentionally omitted by the legislature. Washington Natural Gas Co. v. PUD 1, 77 Wn.2d 94, 459 P.2d 633 (1969); State v. Roadhs, 71 Wn.2d 705, 430 P.2d 586 (1967).
While we have concluded that in a general election, where paper ballots are used, a voter can designate his candidate and the office intended without signifying a political party affiliation of the candidate, we do not venture an opinion upon the question whether the legislature can properly require such a designation. We note that the legislature, in the 1973 extraordinary session, amended