*1 fraud, compare arrangement. let enough. us this case That is reliance A constructive Winters, privilege recent case Cranston loss would be a detriment. to the .of case, left, will, a testator supra. In that agreement distribution, An for property real to his in certain a life interest signed by the one parties such as to this wife, by previ- to his children remainder case, Tomlinson, is a contract. Johnson v. widow, marriage. knowing ous (N.D.1968). Although 160 N.W.2d joint property held the she had plaintiffs have argued any specific (and husband title to it her tenancy with signing concessions made Oscar in death), signed in her vested since, agreement, this is not necessary a Petition for Pinal Decree Inventory and Dakota, pre North a written instrument is Distribution, capacity in her of co-execu- sumptive evidence of a consideration. Sec trix, listing property both instruments N.D.C.C.; Sprenger, tion Muller v. that, the estate. We an asset of found as (N.D.1960). 105 N.W.2d Oscar has the true as she did not know state of her nothing to overcome this presump shown tion, title, she neither intended to deceive own accept must plaintiffs so we that the negligent amounting to an extent nor was for gave agreement, consideration thus to constructive fraud. Id. N.W.2d at on Oscar’s relying inju statements to their Mistelski, also Sittner v. 652. See ry- (N.D.1966). N.W.2d finding estoppel by We find that the The instant case seems to us to be more correct, the trial court the four ele- similar, respect, Koryn in this to Hutton v. met, discussed above are ments and no find- Hutton, ta, where the supra. defendant ing leading finding clearly fact to such at a sale of certain real remained silent erroneous. person conducting property at which estopped claiming As Oscar is from title buyer that the the sale stated would receive tract, disputed we do not reach the possession, estopped we held him immediate of whether the deed was issue delivered to against to assert a leasehold interest him. buyer. We stated that case that opinion, For the reasons stated in this silence defendant’s showed either an inten judgment of the district court is affirmed. deceive, culpable negligence or such to amount to constructive fraud. Id. 218 VOGEL, PEDERSON, SAND and at 180. We believe that N.W.2d Oscar’s act PAULSON, JJ., concur. signing agreement distribution significance. same has the plaintiffs in this case
That had
knowledge of claim to title is clear Oscar’s record, nor deny
from the does Oscar this. they were not so informed at the time
That agreement surely precludes was made KUHN, Petitioner, Norma they had a any argument duty to make inquiry, certainly as it was further Os- BEEDE, Judge William interest that he tell at that of the Ward car’s them time. County Court, al., District et estoppel The last element of is that the Respondents. party asserting estoppel must have relied No. 9298. injury. Civ. on the statement admission to his plaintiffs had a to assume that Supreme Court of North Dakota. any arrangements farming the remain- Dec. 1976. interest would and could be der made the mother. through One fact made arrangements
those with the mother and attempting is now to thwart
Oscar *2 election, auditor,
clerk of board, canvassing member there of, person charged or other concerning any duty the election. . . *3 judge of such court shall order the error, person charged or officer with such neglect error, wrong, or to correct the act, wrongful perform from the desist duty, or show cause at a time place Eaton, Jr. and Nevin Van de Jonathan C. by why fixed the court he should not Streek, Minot, Streek, and Van de Eaton do so. . .” Kuhn; argued by Nevin Van petitioner for Streek, specific grant Minot. is in jurisdiction de addi- Such Supreme original juris- tion to the Court’s Wentz, Mahoney and Thomas A. Mitchell granted by diction 86 of the North Dako- § C., Minot, Herigstad, P. re- Pringle & for Constitution, primary ta as amended at the Wentz; argued by Mitchell Maho- spondent September 1976. See N.D. Wentz, A. Minot. ney and Thomas (1956), L.Rev. cases cited McGee, Hankla, Backes, Backes W. Orlin therein. intervenors; Minot, Wheeler, argued for & This matter arises out of the same factu- Backes, W. Minot. by Orlin as in State ex rel. Olson v. al situation Olson, Bismarck, Atty. Allen I. Gen. N.D., 1976, Thompson N.W.2d Secretary of Ben Meier. respondent, we stated: wherein following “This matter arose the No- PAULSON, Judge (on reassignment). 2, 1976, general election. The vember petition This is a for review of the Ward County auditor of Ward forward- decision which re- County District Court’s Secretary ed to State the certified jected certain absent voters’ ballots cast law, required by abstract of votes includ- legislative a state contest. Such decision Representative ing that of State from the by judge made district in the was 41st District as follows: conducting a ballot recount for course Representative the office of State from the Walsh.2,402 Legislative 41st District on November Forsberg.1,928 1976, pursuant 16-01-10(3), Wentz.2,283 N.D.C.C. § Kuhn.2,291 parties that this concede court has jurisdiction personal parties. Subsequent receipt to the of such certifi- jurisdiction This court has to hear cation, Secretary of State was served matter, subject pursuant to 16-01— copy of with a a Demand for Recount N.D.C.C., 10(3), wherein provided it is Wentz, pursuant 13—47.1, Janet to § 16— “Correcting Requir errors on ballots— N.D.C.C., as amended. performance duty or desistance ing days “Within fifteen after the Demand performance. wrongful from —Whenever Wentz, Recount was filed Sec- appear by made to an affidavit shall be retary of State received the results of the court, supreme or to the district pursuant to recount conducted 16-13- proper county that: court of 47.1, N.D.C.C., amended, certified Beede, William M.
the Honorable District Any wrongful Judge County, act has been or is “3. Ward which indicated by any judge following: done or
about to be Kuhn.2,205 election, they open shall the absent vot- Wentz.2,206 envelope such manner as not to er’s Walsh.2,311 " destroy They statement thereon. Forsberg 1,850 out the ballot ballots con- shall take unfolding without tained therein court proceeding, present same, permitting same of the district the decision to review asked examined, endorsing and after opened or did not count void and declared court endorsed, same as other ballots are which were voters’ ballots deposit ballot proper stamp and ini- the official endorsed box and show the records of 16-12-04, 16-18-17, pursuant §§ tialed such election such elector has voted. are further N.D.C.C. We [Emphasis .” determine, added.] in the event this requested to decision of the district approves and initial stamp The effect a failure *4 court, or the constitutional not whether specified 16-13-01(1), a is ballot in N.D. § voters were vio- of 202 absentee rights the C.C., provides, pertinent part: in which in court’s action void- district lated the not of “Ballots void and counted—Part ballots. their absent voters’ ing the canvass of ballot be counted.—In election, any votes shall the at ballot 16-12-04, provides: N.D.C.C. Section and not if: void shall be counted “Delivering Stamp- ballot It “1. is not endorsed with the official elector— ing. inspector judges or one of the stamp provided and initials as in —The ” shall deliver ballots to the of election title ... [Title 16] primary and at elec- qualified electors [Emphasis added.] only, shall inform each elector that tions statutory The district court construed such for he his ballot votes candi- splits if mandatory, ruling that to be all party one more than ballot dates of stamped not and so initialed are void rejected. delivering any Before will be ruling by are not to be counted. Such elector, inspector judge the ballot to an in voiding district court resulted top once of the back of stamp shall at subject absent voters’ is the designation ‘official the ballot the ballot’ review. is noted that absent of this for provided words in sec- and the other ballots cast in five seven voters’ 11, and also shall write his tion 16-11— comprising Legislative precincts the 41st stamp Failure to initials thereon. properly stamped District were and ini- proper place on the initial a ballot All of absent voters’ ballots tialed. such but invalidate ballot precincts cast in which used were voided stamp and initial a ballot at a failure to voting who vot- machines those electors place a ballot shall invalidate any on person. ed in ballot.” petitioner contends North Dako- initialing requirement is stamping and Such stamping require do not ta statutes absent voters’ ballots applicable to made initialing voters’ ballots which are of absent N.D.C.C., which, 16-18-17, after § under voting on machines. Petitioner con- cast instructing inspector elections or requirement applicable that such is tends open outer en- of elections to judges in pre- voters’ ballots cast only to absent velope compare signatures, then voting, is not using cincts ballot box but part: pertinent provides, applicable to absent voters’ ballots cast judges “. find that the precincts using voting .If machines. Petitioner sig- 16-18-20, N.D.C.C., authority is sufficient and that the statement cites § correspond, contention, appli- indicating and that 16-18—20 natures her that § only specifically duly qualified elector of refers cant is then statute is ballots in casting and has not voted such of absent voters’ such legislature, We find that the in en using voting machines. Section precincts N.D.C.C., N.D.C.C., 16-18-20, 16-18-20, acting intended provides: § a procedure whereby absent to establish of absent voters’ ballots “Registration effectively ballots could counted voters’ voters’ bal- voting machines.—Absent on voting machines, precincts using in those lots, registered any, if shall be legislature and that did intend by two election officials voting machines procedural safeguards already interests, be, there eliminate if such opposed protect integrity provided two election officials. otherwise process casting voting counting of absent voters’ ballots on election be done se- voters’ ballots. Such voting interpreta machines shall absent during gives election officials effect to both 16-18-17 § the two crecy 1-02-07, voting day at such intervals as are N.D.C.C. N.D.C.C. § machines are not in use when available Next, that, contended if even by voters..” requirement is applicable the endorsement contends, further 16- Petitioner cast in precincts absent voters’ ballots N.D.C.C., 18-20, contains no reference to machines, requirement using ballots, voters’ the endorsement directory to be and not should found legislature did not presumed mandatory. issue was raised in Web Such requirement the endorsement intend that O’Connell, er v. 55 N.D. N.W. to absent voters’ ballots cast applicable be. (1927), this court held: 540-541 wherein using voting machines. precincts We consistently “This court has held disagree. *5 requirements of section 985 16-12- [§ accept petitioner’s court were to If this indorsements N.D.C.C.] require- that the procedural contention initials, stamp official and construed in 16-18-17, N.D.C.C., set forth in but ments light of section [§ 16-18-20, N.D.C.C., included in are not N.D.C.C.], mandatory and that ballots applicable not to absent voters’ ballots cast stamp both so indorsed not and initials machines, using precincts it would and not void shall be counted. [Cita- procedural most of the safe- follow that [Emphasis tions omitted.] added.] guards legislature assure employs process of the election in the cast- integrity contends, “The defendant in this behalf counting of voters’ ballots ing and absent this was the view taken the trial and using voting machines would be precincts court, voters’ that the absent statute was 16-18-20, N.D.C.C., circumvented. Section in the law and was an innovation enacted provide comparison for a does not subsequent long to the enactment of sec- signature outer en- absent voter’s tions 985 and 1006 16-12-04 16—and [§§ such ballot with the absent voter’s velope of 13-01, Legislature, N.D.C.C.]; that application on his for an absent signature sections, it when enacted the latter had ballot; it require does not a determi- voter’s ap- no intention that such section should duly qual- be a nation that absent voter ballots, ply to absent voters’ that and precinct; elector of such it does ified not Legislature in 1913 when enacted the that require determination absent statute, clearly it absent voters’ did not election; it not voted at such does voter has contemplate provision that for the require an not examination absent indorsement of absent voters’ ballots ballot; require it does voter’s not elec- mandatory; that the reasons should to enter in the records of tion officials such for the enactment of section 1006 16— fact that elector has vot- election the [§ do not exist in the ease ed; provide of absent procedure not does 13-01] ballots, and the reasons not exist- which are voters’ preserving absent voters’ ballots defective; ap- was not ing, not re- this statute intended found to be and does hand, the ply. plaintiff ballots be On the other quire that the absent voters’ en- applying the and ordinary contends that dorsed. ballot; next, identify construction, of the stat- the official all rules of usual Though the elections of contest. conduct of in case governing the utes that, may not exist together, two reasons be construed first of these must ballots, the absent Legislature enacted when the case of absent voters’ in the having in so it did much in the one just voters’ statute does second other section 1006 view other.’ as in the [§ 16-13-01] case touching elections and the con- statutes that the remembered “It must also be given same and effect to the struction counting made for the only provision court, contemplated that this manner in prescribing the apply. should same is contained in be done this shall The absent 13—01].
section
[§ 16—
nothing whatsoever
says
us,
these
applying
clear to
statute
“So it seems
voters’
which the votes
case,
that we must
manner
rules in the instant
respecting
subject
this
ap-
leaves
hold that section
16-13-01]
be counted.
[§
is,
statutes,
ballots as well as to
to section
plies to absent voters’
that
pre-existing
chief
urged
repeatedly
other ballots.
It is
that the
has
1006, and,
as this
as re-
reason for indorsement of ballots
section
,
provision
held
quired by
16-12-04],
section 985
that
stamp
[§
ballots not indorsed
is, to
make sure
the elector shall vote
counted,
not
initials shall
void
op-
and shall have no
official ballot
presume,
mandatory. We must
portunity
place
to substitute in
thereof
in mind
course,
had
Legislature
that the
may
an unofficial ballot which
have been
judicial
construction
section
prior to
coming
polls,
marked
to the
it when it enacted the
put
apply
does
case of absent vot-
statute.”
voters’
ballots;
Legislature
ers’
in Torkelson
again
was
raised
issue
Such
carefully safeguarded every step of the
(1937),
N.W. 134
68 N.D.
Byrne,
proceedings prior
depositing
held,
1 of
paragraph
this court
wherein
absent voter’s ballot in the ballot box so
syllabus:
occur;
and that
*6
in-
have not been
“1. Ballots
ought
voter
not to
deprived
be
985, Comp.
by section
required
dorsed
right to cast his
through
vote
the default
16-12-04, N.D.C.C.], are
Laws 1913
neglect
[§
or
of election officers since he is
bal-
absent voters
they be
whether
void
present
protect
and cannot
himself in
regular ballots.”
respect.
this
or
But it
lots
must be remembered
that
in granting
right
to vote to
holdings in
court’s
that this
urged
It is
Legislature
absent voters the
has the
Torkelson, supra, are distin-
and in
Weber
prescribe
such reasonable re-
in these
facts because
on their
guishable
quirements as it sees fit.
regard-
So that
paper bal-
used
precincts involved
cases
less of reasons therefor
Legislature
is
in
casting their votes
electors
lots for those
power
within
well
in imposing such a
bal-
voters’
the absent
and because
person,
requirement.
imposes
If it
such a re-
individually along with
counted
lots were
quirement and the voter knows that
voting
person.
in
by electors
cast
ballots
when absent
polling place
from his
he
distinctions.
in such
We find no substance
peril
votes at his
regards
defaults of
in Weber
cast
ballots
officers,
Absent voters’
the election
complain.
he cannot
easily distin-
Besides,
just as
were
cannot be said
in Torkelson
that there is no
by electors
cast
imposition
reason for the
those ballots
require-
guished
from
proceed-
ment that
present
the ballot be
voting
person
indorsed. As is
in
as in the
Schallern,
in the
North
said
case of Miller v.
because,
and in
in 1927
ing
supra
N.D.
(1899)]:
means present proceeding court in the substantially the integrity to of the district contribute
237 law, that in “But it must be remembered with North Dakota is in accordance vot- right contention that to vote to absent petitioner’s granting now turn to rights pre- of the 202 absentee Legislature has the constitutional ers their voiding violated requirements voters were such reasonable as it scribe pursuant ballots to such law. regardless absent voters’ fit. that of reasons So sees (Petitioner specified particu- what not Legislature is well within therefor rights lar constitutional 202 absent imposing in such a power requirement. violated.) ap- have been Petitioner voters imposes requirement such a and the If regulatory provi- contend such pears to knows that when absent from voter operates upon equally quali- unequally sion place he votes at his as re- polling peril and it does not contribute fied voters officers, the election defaults of he gards substantially ensuring honesty toward Besides, complain. it cannot be cannot integrity process. Craig and no reason impo- that there is for the said Peterson, supra 345, in v. 233 N.E.2d is cited requirement that the sition disagree. of such contention. We support indorsed.” Bainbridge, F.Supp.
In Porter statutory handling absent Our scheme for (S.D.Ind.1975), the federal district voting con- ballots cast on machines voters’ adopted a rule the Indiana found that a time between the time templates interval Representatives House not are and opened absent voters’ N.D.C.C., which did not bear 16-18-17, count absentee ballots endorsed, pursuant to § and initials of the clerk the seal registered on time are and the pre- election clerk’s initials machines, voting pursuant only paper in which cast cincts N.D.C.C., such “during day did not were absentee ballots violate are when machines as available intervals Spe- rights. absentee voters’ constitutional time During in use voters”. this not cifically, the federal district court found interval, step step between did violate that such rule these absentee open are sub- voters’ ballots absent rights First Amendment voters’ freedom or ad- illegal substitutions ject potential speech, assembly, petition endorsement, for redress By lack of ditions. incorporated Due grievances identify would be unable inspector —as Process Clause of the Fourteenth Amend- step voted voters’ ballots ment; rights nor did violate such rule their opened step 1. being the same ballots equal protection the Equal under Protec- Schallern, 8 N.D. In Miller tion Clause the Fourteenth Amendment. (1899), our 866-867 wherein Su- N.W. The federal district court in v. Bair- Porter statutory that the preme first held Court bridge, supra F.Supp. at found that properly ballots be provision requiring that such rule directory, mandatory, endorsed requiring “. the election that: court stated ballots, initial is a clerks reasonable utmost contention “. . counsel’s logical requirement assure statute is that enforcement properly registered the ballots of operate, cases may in some reads qualified deposited voters are in fact practically to operate, at bar will case precinct. the ballot at the This box their constitutional electors of deprive *8 regis- procedure qualified assures and votes vote, to have their right to and votes be tered voters that their will not be made a test But this cannot counted. by unquali- diluted or nullified votes of regulative validity of statute. the of unregistered persons.” fied regulative many are There Court, enforcement of Supreme statutes the The North Dakota election O’Connell, deprive to vot- operate and do supra Weber v. N.W. at which will yet consti- privilege, and their of their stated: ers general the election voters ballots at of successfully chal- cannot tutionality 2, 1976, they in which election November lenged. . Represent- choices for their for State voted by plain- cited the case “. . But District, Legislative the 41st atives conceding to the . while tiff by were voided subsequently which general legislative of right the lawmaker of the district court which is the decision control, against prohibition the holds that subject this proceeding. of votes on which the counting of initials are written is a official an of that because there is no It is contended and, may as it regulation, unreasonable right a conferring on such electors statute instances, in isolated to possibly operate, intervene, and because such electors’ to voter, it is therefore un- disfranchise by adequately represented rights will be But, judg- and void. in our constitutional proceeding, this court should to this parties fallacious, ment, reasoning is disagree. We deny intervention. moreover, upon very dangerous trenches N.D.R.Civ.P., provides: 24(a)(2), Rule ground. proceeds the false no- Right. Upon of timely “Intervention province of the courts tion that .it is anyone permitted shall be application legis- of the to enter the conceded domain (2) ... intervene in action: lature, and, expe- upon question of the applicant when claims an interest re- regulative measure, diency given of a lating property or transaction judgment of the courts for substitute subject of action and he which is which body of the constitutional that disposition is so situated that original make practical impair matter action [Emphasis regulation.” added.] impede ability to protect inter- legislature We find could est, applicant’s interest is unless the ade- requirement of have concluded that en by parties.” represented existing quately absent voters’ ballots is rea dorsement of Although we believe that such electors’ in- assuring logical sonable and aid in by represented adequately terests integrity process. en will, existing parties, indicating we without requirement today as valuable dorsement cases, allow might what we do future precincts using voting machines for proceeding, pursuant to intervention in this casting person their electors votes in N.D.R.Civ.P., 24(a)(2), Rule requirement was such endorsement when e., of this matter —i. unique circumstances applicable first held absent voters’ bal-. pursuant recounts that election made fifty years ago, when electors casting lots 16-13-47.1, N.D.C.C., requirements of § person votes used their different colored very within a short time must be conducted used casting ballots than those electors frame, giving practical opportunity require ballots. We find such absentee recount; prior to an intervention to assure that ment intended subject proceed- matter of this registered qualified properly rights and concerns intervenors’ ing affects registered are in fact on the voters vote have their votes counted. qualified regis assure machines and to Having allow interven- thus decided to their voters that votes will tered tion, made arguments that the find by unquali or nullified votes cast diluted parallel arguments made the intervenors persons. fied adequately petitioner opinion, in this resolved earlier question we reach the Finally, applica- exception one issue—Does the qualified living in whether fifteen electors N.D.C.C., 16-13-01(1), violate Sec- tion 41st District of the Legislative State of Constitution, the North Dakota allowed, pursuant should be North Dakota provides: Rules Rule the North Dakota Procedure, present assembly to intervene in the The legislative Civil “Section 122. electors further empowered had cast absent make ex- proceeding. Such *9 error, act, wrongful that an or showing hereafter, suffrage at its dis- of tensions had or is about neglect duty of occurred age and cretion, citizens of mature to all crime, with- mind, convicted of occur. sound sex; extending no law but regard to
out
complaint, in ef-
primary
petitioner’s
The
suffrage shall
right of
restricting the
or
canvass-
fect,
recount board in
was that the
majority
of
adopted by
force until
be in
ballots followed the letter
ing the absentee
voting
gen-
at a
of the state
electors
law,
claimed it should not
which is
eral election.”
Compliance with the law can-
have done.
appli-
“error,” “neglect,”
distinction between
or a
find no
We
not constitute
N.D.C.C.,
16-13-01(1),
16-01-
rely upon
“wrongful
cation
act” so as
§
§
application
and its
proceeding
present
10, NDCC,
jurisdiction.
petitioner
paper
on a
ballot
any
voting
elector
relat-
argued that the statutes
claimed
subject
paper ballots are
Dakota —all
counting
North
of absentee
ing to the
requirement and
endorsement
supervis-
the same
been construed
should have
if
void and not counted
will be declared
absentee
judge so as
count
ing district
consistently
This court
endorsed.
voting
so
machines
precincts
where
statutory provi-
since 1899 that such
held
did not
though the ballots
were used even
repug-
enactment and is not
is a valid
initials,
sion
spite
stamp or
have the official
the North Dakota
any provision of
nant
16-13-01,
provisions of
specific
§
Schallern,
N.W.
Miller v.
Constitution.
NDCC.
¶
Syll.
2 of
supra
16-13-01, NDCC, as is material
Section
to conclude
appropriate
We find
here, provides:
made
this court
1899:
an observation
any
“In the canvass
votes
pro-
should show that the
experience
“If
election,
be void and shall
a ballot shall
16-13-01, N.D.
visions of section
[§
if:
not be counted
rigid,
do not
unnecessarily
are
C.C.]
—we
with the official
“1.
It is not endorsed
will,
it will
become
think
—then
provided
initials as
stamp and
legislature to intervene and
duty of the
title;
.”
.
.
regulation
different
devise some
16-18-
pertinent provision of §
A related
Schallern,
franchise.” Miller v.
elective
NDCC,
as follows:
N.W. at 868.
supra, 79
They
“.
.
board]
[election
requested
petition
in the
The relief
ballot or ballots contained
out the
take
denied;
requested
the relief
in the
review is
same,
unfolding the
without
therein
denied;
the intervenors is
petition
opened
to be
the same
ex-
permitting
13-01, N.D.C.C.,
provisions
§
16—
amined,
endorsing the same as
and after
constitutional, mandatory, and
to be
held
endorsed, they shall de-
other ballots
absent voters’ ballots cast in
applicable to
proper
ballot box
posit the
using voting machines.
precincts
the records of such
and show
.”
has voted.
elector
that such
J.,
ERICKSTAD, C.
concurs.
question can be seri-
believe
I don’t
SAND,
opinion, concur-
(Special
Justice.
“endorsing” or
the terms
ously raised that
result,
jurisdiction).
dissenting on
ring in
officially stamped
not mean
“endorsed” do
have
opinion, this court should not
my
and initialed.
original jurisdiction. Neither
exercised
contended
petitioner also
nor the
subject
presented,
matter as
16-18-20, 16-18-17, and
§§
86 of the North
come within
parties,
16-13-01, NDCC,
should be construed
Article),
(new Judicial
Constitution
Dakota
mandatory in
than
Code,
directory rather
Century
being
North Dakota
or §
used,
machines are
where
requirements
precincts
16-
do
meet
nor
should be coun-
10, NDCC,
the absentee ballot
petitioner
made
and that
01—
*10
stamp
by
provisions
the
the
regardless of
absence
court
virtue of
86 of
ted
initials.
the new
Article
Judicial
and §
the
writ of
court con-
NDCC. The
district
however,
question,
in
The statutes
are
proper
interference with the
stituted an
little,
unambiguous and leave
if
clear and
Canvassing
the
function of
State
Board.
They make no
any, room for construction.
conditions,
Normally, even under those
the
voting
exception in instances where
ma-
generally
court would
reluctant
exer-
are used.
chines
jurisdiction
original
and would re-
cise
petitioner presented no facts disclos-
The
first
the
quire
request
a
made to
district
procedure
by
the
followed
the
ing
election
prohibition.
the writ of
rescind
in
the
processing
absentee ballots.
board
(N.D.1965).
v.
jurisdiction Thompson in the Olson v. case though Even leaders House early December should do so here. agreement into an of some entered kind However, subject in the Olsoncase the mat- subject to specif- construction as to which pro- ter was an district court order ically accomplish, what it was meant to it is hibiting Canvassing Board from principle firm of law nevertheless duty. an administrative performing cannot be conferred consent jurisdiction jurisdiction this court existed as a result applies my opinion ex writ issued parte agreement, district agreement Broderick, reached rel. leadership Johnson v. 75 N.D. the House. (1947). N.W .2d There is at least one *11 law, adequate remedy other namely, quo Referring again to the spe- statute which warranto. cifically provides officially that ballots not stamped or endorsed are deemed void Petitioner has not met the requirements counted, are not to be the construction con- by down laid this court which need to be by petitioner require tended the would com- it will met before exercise its original juris- plete disregard language for the in the stat- diction. utes, language because the is clear and un- petitioner (Kuhn) If the had desire ambiguous. I would further note that through proceed judiciary, notwith- have statute would to be declared unconsti- standing of the 47 North § Dakota Consti- tutional prayed by to reach the result notwithstanding tution and the fact that petitioner. In a somewhat similar situ- question presented had been to but not ation, 11, NDCC, requiring resi- § 16-01— accepted by Representatives, the House of postoffice and an by dence and affidavit and if court were to jurisdic- exercise circulator, challenged being was uncon- tion, proper action would have quo been provisions stitutional in that violated the warranto, which designed resolve, 25 of the North Dakota Constitution. amongst things, other election issues. court, Byrne, This in Wood v. 60 232 N.D. reasons, For these I would have denied (1930); Byrne, N.W. 303 Schumacher v. 61 petition requesting this court to exer- (1931); 741 N.D. 237 N.W. and Dawson original jurisdiction. cise its Meier, (N.D.1956), 420 v. 78 N.W.2d held However, because majority of this statutory provisions valid, were has court reached the conclusion that this is face of the even in the of 25 of proper case for the court to juris- exercise Constitution, which provided, part, jurisdiction, and has diction assumed but “No shall hamper, law be enacted to members have some reached different re- restrict, impair the exercise of the sults, I deem it advisable express my rights people. . . ." herein reserved to the on the merits. position compro- Without mising my position question juris- rights referred to were the initiative diction, merely recognizing juris- but referendum, employ petition which assumed, I diction been concur in the accomplish purpose. by opinion results reached written my opinion, the legislature only signed by Justice PAULSON and Chief right, duty, has a but has a to enact laws Justice ERICKSTAD.
preserving integrity of the free and open process. VOGEL, Justice, dissenting. law, Based on case I am firmly convinced opinion majority of the is an exercise question jurisdiction be, should analysis in textual pays little heed be, may only principles decided on disenfranchising the fact that it is 202 vot- Any law. other reason would be inade- ers. It cites the text of statutes and court quate. years decisions to 50 old or more as if
This
graven
a number of instances has
were
opinion
on stone. The
superintending
said that
it will exercise its
says nothing
“spirit
about the
of the law”
only
power
under conditions that are tanta
which was held
same Justices
justice.
mount
to a
ago
denial of
Stormon v.
Thompson,
four weeks
[Olson
County,
District Court of Pierce
76 N.D.
(N.D.1976)]
justify
N.W.2d
wholesale
(1949);
“spirit ballot, voting by witnessed, acts of for such solemn cation be out (in proper official the case of this State. citizens furnished elections, auditor), county legislative feels free to choose majority which A military those in service are not except day law” one the “letter between application a formal 16- required use [§ day will law” another “spirit 18-06, N.D.C.C.]; that the ballots always triumphant but will always auditor to delivered or sent right.1 *12 mail, together en- by with an the elector to such Fortunately, we need not resort auditor, velope preaddressed the as the concepts “spirit the of amorphous containing swearing to a form of affidavit the fallacies in the to demonstrate law” spe- entitlement to vote in residence and a majority opinion. 18-09, N.D.C.C.]; and cific [§ 16— relying on opinion, primarily besides That county auditor delivers returned ballots the old, years 50 or 40 or more disre- precedents proper precinct 16-18-15 and [§§ rights 202 of the the constitutional gards 16-18-16, N.D.C.C.]. a district misapprehends Federal voters and virtually disregards au- decision and THE CASE LAW convincing interpretation of and thoritative construing first North Dakota case Supreme by the Court of like ours statutes initialing as stamping statutes and the that, it ignores prior Besides State. a sister was decided before there were by of our statutes our own interpretations absent voters ballots. It was Miller courts, surely are entitled to which district Schallern, 395, (1899). 8 N.D. 865 N.W. of Fed- than the decision a more deference cases, year the Two other decided same State, if judge in another even eral district Seitz, 8 way, were Lorin v. N.D. the same impor- it does not. Most applied, it (1899), N.W. 869 and Howser v. all, disregards controlling princi- tant of (1899). Pepper, N.D. N.W. 1018 law which have devel- ples of constitutional half-century-old cases were oped since person Miller involved ballots cast in decided. polls the which were not initialed the inspector judges or of was the election.
THE STATUTES held, relying (§ on the statute R.C. 1899), majority opinion precursor sets of which was a of forth some Section 16-13-01, N.D.C.C., gov- we the statutes which are called statute 16-12-04, 16-13-01, votes interpret erned could not be counted. —Sections basis for principal holding and 16-18-20. To these A was that should making himself Chapter 16-18 the voter had the means of be added some vote, relating to voters that he did not lose his absent ballots. Without sure detail, 16- examine the ballot to make sure giving them mention that he could expect stamped who was initialed and he 18-01 allows voters are or day physically opportunity or who are therefore had “an to see and or or military personally naval services know whether or he is disabled topic “spirit spirit we leave the ceived 1. Before from absentee voters. That majori- comparison by throwing we invite between the law” ty opinion of the law is not served those supra, Thompson, they Olson paper ballots out because do not contain holding now district court the case inspector stamp the initials and/or opinion us. The of the district court before judge election. says this: arguments “Good can be made that the usurped by reason, spirit throwing pointed law Mr. is those is as out “There Eaton, Unfortunately, why Legislature an where all of bal- ballots out. modify fit lots cast are cast on the machine and the hasn’t seen the letter of law only paper spirit ballots involved re- are those meet the law.” e., ballot,” not; an official for such a statute mandatory, lawful ballot —i. a “the loss of the vote is the result ques- therefore and the court cannot enter into own acts.” policy. hand, voter’s tion of its On the other if a provides simply statute certain Semmler, 411, 149 In Fuerst v. 28 N.D. things particular done shall be within precincts (1914), improp- two were N.W. manner, particular time or in a and does voting purposes, erly consolidated their performance not declare that used, precincts stamps of the two were election, be essential to validity of deposited in the same bal- the ballots were they regarded will mandatory if lot box. The court held that they election, affect the merits of the counted, saying: should directory only if do not affect its “Although requiring the statute the au N.W. merits.” 90 at 485. mandatory, thentication of ballot is said: This court also therewith not exact compliance literal duty “The violation of in this case was compliance ed. A substantial was ob conducting election, the officers required. served and this is all that was electors, doubt, While, and the latter duty it was the were elector’s weight judicial opin- not in fault. The *13 ballot was to see that his authenticáted that, ion is to the statute, effect in the absence of conformity substantial to the it fraud, voter, nothing a who to and do exceedingly would be an harsh need with the preparation of the ballots or require less rule would that he that preliminary election, matters should, peril to the having at the his vote not counted, deprived right should not be of his to see that the statute had been have his vote counted literally by the because observed election officers. . . .
wrongful act of election officers.” 90 483, N.W. at 486. O’Connell, Then came Weber v. 55 N.D. Legislature “. .To attribute to the 867, (1927), 215 N.W. 539 which the an absurd intent is equivalent to majority places much reliance. This court it an attributing lay to intent a trap to there refused to follow the rationale of the unsuspecting good-faith
for the
voter
cases,
prior
which had either held directions
which he is almost certain
be caught
to
election officers to be directory
to
in,
whereby
had
may,
his vote
at
the blame on the
making
voters for not
put
behest of dishonest or careless election
valid,
held,
that their ballots were
officials,
sure
for naught.”
held
149 N.W.
time,
the first
that voters could
115,
at 119-120.
by acts of
boards
disenfranchised
election
Another
some
is Perry
case of
interest
they
nothing
knew
of and had no
which
148,
(1902),
483
Hackney, 11 N.D.
90 N.W.
later,
Then
way
prevent.
years
to
pre-
where the results
the election
a
followed in Torkelson v.
harsh rule was
challenged
the voting
cinct were
13,
134,
Byrne,
276
68 N.D.
N.W.
113 A.L.R.
screened,
booths were not
so that
voters
(1937).
Neither
these cases even
marking
were visible while
their ballots.
upon constitutional issues which we
touched
[quoting
Wimberg,
court said
Parvin v.
This
controlling
now. And neither
believe
790,
775,
130 Ind.
30 N.E.
15 L.R.A.
voting
voting
They
involved
machines.
(1892):
Am.St.Rep. 254
“
slight
solving
obviously are of
value in
‘.
a
expressly
statute
de-
If
reasons,
problems of this case for these
any particular
clares
act to be essential to
vintage.
well as their
election,
validity
an
or that
void,
jurisdic
law
omission shall render the election
case
from other
courts,
referred,
to which we have
duty
whose
it is to enforce
been
tions
it,
hold,
find,
we can
involving
law as
find must so
whether
absent voters
Peterson,
question goes
Craig
act in
is
Ill.2d
particular
(1968).
merits or affects the result of
election
Election
ment, fault, by application their without requirement paper initialling to their in numerous noteworthy that “It is ballots in an otherwise machine election involving uninitialled bal- in this court cases problems poses substantial under section 18 lots, require- of that constitutionality pro- II of our constitution which of article challenged to have been nor ment seems not ‘All shall be free and vides: elections inferentially. The ab- other than discussed VII, provid- 1 of article equal’, and section challenge likely is accounted sence of such persons possessing qualifica- ing that all by requirement, that such as the fact specified ‘shall be entitled to tions therein election, all-paper is a to an ballot applied election,’2 at as well as under the vote such one in it patently reasonable serves a amendment to United States fourteenth enabling salutary purpose by the election Likewise, the Fed- constitution. identify judges to those ballots which have evinced similar concern. eral courts personally initialled and therefore con- have apportionment concerned with While there safeguard against an effective cor- stitutes problems, the statements United practices ‘stuffing’ ballot rupt such as Sims, Supreme Reynolds in States Court Likewise box. omitted.] 554-555, [Citation 84 S.Ct. 1377- 377 U.S. apply considerations have been held to same 506, 523, apropos: L.Ed.2d all-paper ballots in an ballot absentee ‘Undeniably the United the Constitution of equally for there is no other effec- election qualified of all protects the States identifying separating vote, feder- method in state as well as in tive citizens * * * legally illegally cast votes. repeated- cast from has been al elections. not at qualified all voters have But all ly recognized that omitted.] [Citations Constitution, V, qualified elec- Dakota Article ments “shall be elector 2. The North every person provides meet- Section ing citizenship, tion.” residence, require- age to the manner in in sanctity clear as absentee ballots the circumstances of this promoted integrity of an election is ease would be disenfranchise a substan- applying qualified the rule exclude uninitialled tial number of who voters have by qualified cast voters in absentee ballots in everything power comply done their only paper an election in which the law, a result with the which neither our question used on the issues offices nor Federal will constitutions tolerate absentees, those and this is voted where, here, as the rule causing their disen- where, question true particularly here made no franchisement substantial contri- tampering presented, of fraud or and it is integrity bution to the of this election. [Ci- stipulated question that the ballots in are in fact, initialling tations omitted.] delivered the coun- fact same ballots ballots, requirement if absentee held ty clerk’s Under these circumstanc- office. case, mandatory valid and might es we these uninitialled believe absentee achieving well serve as the means of counted, properly ballots could and that very prevent, result it was intended to statutory commands construed [cita- corrupt judges deliberately could tions in an mandatory all-pa- omitted] initialling refrain from those ab- ballot must per be held direc- voters whom they sentee had reason to be- tory applied when in the context of the case judges voted otherwise than lieve de- us. before course, This possibility, sired. always ballots;
exists as to absentee the difference ordinary purpose “No useful would be served a between situation and this is all-paper consideration of the other cases in detailed ballot election there is initialling requirement which the has been of identifying no other means the legally mandatory and uninitialled ballots held re- in order necessity, east ballots. jected. all-paper Each involved an guarantee election, integrity election, basic and the considerations have separating legally some such method requires been the same. statute cast ballots those illegally from cast suffices initialled, ballots to be it commands that no to make usual application case counted, shall be this re- unindorsed ballot permissible constitutionally though even quirement substantially contributes to the results in of those disenfranchisement ab- integrity election process and is a sentee voters whose ballots are uninitialled. valid, provision mandatory which the courts justification necessity No such exists in *15 reasoning But simply must enforce. this us. the case before apply equal not with to does force the situa- initialling before require- us where the to so a duty interpret “It is our statute as ment, case, in the circumstances of promote purposes its essential and to integrity not at all to contributes the avoid, possible, if construction that would process; it does not assist in identi- election doubts as to its validity. raise [Citations the fying prob- ballots no identification statutory We therefore hold the omitted.] exists, problem can a exist lem nor where relating initialling requirements the of only paper the ballots cast for these offices judges directory, election are ballots; were the absentee it does not assist mandatory, than when considered in rather separating illegally the cast from the only paper relation to an election where the legally cast ballots there were other the ques ballots used on issue or office in public paper ballots for offices and there is voters, tion are those of absentee and the no claim that these absentee were only complained irregularity of is the ab altered, any way tampered or in im- Craig sence of such endorsement.” v. Pe preserved stipulated fact it is properly —-in terson, 233 N.E.2d 347-351. these are the identical ballots received arguments simply the absentee voters from the We believe these unanswerable, of a mandatory appli- clerk. The net result unanswered ma- initialling requirement of opinion. adopt cation the We jority them as our own. Allegations re- of a violation of rules or attempt makes no distin majority Peterson, supra, and misun guish Craig quirements v. of state law are insufficient U.S.C., it cites only other decision for relief under derstands to state a claim question, Porter involving Moreover, constitutional plaintiffs’ 1983. com- Section (S.D.Ind. F.Supp. 83 Bainbridge, allege, and set plaint does not the facts court case. The 1975), a Federal district not prove, do tend to forth above alleged of based on violations action was rights plaintiffs’ voting of violation (conspiracy and civil statutes Federal rights First plaintiffs’ Amendment gave twelve reasons rights). The speech, assembly petition of freedom of complaint did not state a cause why grievances, incorporated for redress of was that under Federal law. One action in the Due Process Clause of Four- Legislature, under the the Indiana plain- In so far as Amendment. teenth Constitution, judge of was the sole Equal rely on the Protection Clause tiffs of qualifications its members. Others relat Amendment, they fail the Fourteenth con requirements Federal ed to purposeful allege any intentional and civil-rights impor spiracy laws. Most against an identifiable discrimination tant, issue before us was not even group. The Committee’s Select class raised, copy is shown when full 3, requiring that the election No. Buie majority from which the ex paragraph ballots, is initial a reasonable clerks part of another: one sentence and cerpted assure that logical requirement complaint, and facts “2. Plaintiffs’ registered only properly the ballots above, fail to state a claim set forth deposited qualified voters are fact granted based on 42 which relief can precinct. ballot box at This U.S.C., do 1983. Plaintiffs not Section qualified regis- procedure assures allege that either their votes will not be tered voters that requiring Code Indiana Election unquali- diluted or nullified votes of place clerks initials their precinct unregistered persons.” fied and Porter when are deliv- absentee ballots Bainbridge, F.Supp. at 90-91. polls and that ballots which do ered to the (1) language Thus will be seen that clerks such initials not contain majority relates to the quoted rejected, or the rules protested and not House committee and rules Recount Committee adopted by the Select statute, (2) complaint did Indiana that all absentee ballots and providing (3) allege any rights, violation not contain the which do paper ballots allege complaint did that the stat- clerks will initials its face the Four- was void on under ute tallied, facially not be unconstitution- Amendment. None these reasons teenth Amendment under the Fourteenth al Besides, we are not a applies here. Federal They al- United States Constitution. court, to apply instructed doctrines district rule and lege only adopting construing State law. We of abstention votes for *16 it to the recount of applying State, highest court of this constru- are Representative Twenty-Third Dis- ing our own law. Committee, trict, Recount the Select interpreta- We come now latest approv- Representatives of the House law, We of our own in our own State. tions Committee, ing report of such failed side, disput- one is not are advised decisions of Indiana Su- to follow other, years ago, in a by the two ed holding counting preme Court election contest the in- statewide between statutory recount or purposes votes for Republican United States Senator cumbent appropri- proceedings under contest opponent, presiding judges the six the Indiana Election provisions of ate districts, judicial appointed by us of our six ballots should be counted absentee Code recount, supervise the faced same they of whether contain regardless deciding, we now and that clerks. question initials
247
they decided to count all of the
imagination
contested
the possibility of fraud can be
voters ballots from
pre-
machine
found to exist. Similar
imagina-
feats of
cincts which were not
initialed
disregarded
tion were
Craig
Peterson,
v.
stamped. While the case was
appealed
supra.
us, surely
give
we
weight
should
some
placed
interpretation
on the identical
CONCLUSION
statutes
decisions
are now constru-
We conclude that
the 202 voters were
ing,
judges
appointed
we have
improperly and unconstitutionally
disen-
administer
the courts of all the other dis-
franchised;
that the 202 ballots should have
judges
Fargo
trict
in the State.
Public
allowed,
been
and that
either the
Library
City
Fargo
v.
Urban Renewal
canvassers,
may
board
be recalled into
Agency,
(N.D.1971).
We
N.W.2d
statute,
pursuant
session
Section 16-13-
so,
majority
do
while the
dissenters
does
N.D.C.C.,
15,
the State Board of
not.
session,
may
Canvassers
be recalled into
A
apropos:
few other comments
pursuant'
16-13-47.1, N.D.C.C.,
to Section
procedure approved
and the
in Olson v.
majority says
1. The
that the
Thompson, supra,
recertify
the result
16-18-17, N.D.C.C.,
of Section
are manda-
including
after
the 202 votes. Among our
tory, particularly
portion
relating to
reasons
these:
“endorsing” the ballots. The word “endors-
ing” appears in this context:
adopt
a. We
reasoning
rationale and
.
endorsing
. and after
the same
Craig
Peterson, supra,
v.
case in
endorsed,
ballots are
other
point. We
improve upon
could not
the lan-
deposit
proper
the ballot
ballot box. . ."guage
quoted,
we have
adopt
and we
it.
must,
can,
b. We
if we
construe a stat-
parties,
are advised
all
argu-
We
in oral
questions.
to avoid constitutional
ute so as
ment,
there were no ballot boxes in
construction does
This
so.
precincts
challenged
where the
c.
that recent
We believe
Federal consti-
were cast. Obviously,
portion
votes
relating
tutional cases
voting rights
re-
deposit
the statute as to
of ballots was
quire the result we have reached. Just as a
disregarded, yet no one asks to have all the
compel-
must show a substantial and
for
ballots voided
that reason.
It is a little
ling
imposing
reason for
durational
resi-
part
difficult
to understand how one
of a
requirements
undisput-
dence
face of
mandatory,
part,
clause is
but the other
Blumstein,
ed actual residence
[Dunn
comma,
separated by
even
is not. The
330,
995,
U.S.
S.Ct.
counted. initialed, stamped right require it to may interpretation he should favor the ma by voting he votes statutory If have of in- initialed. We rules franchise. will be counted. chine, is the vote in They he sure are found Sections terpretation. day, N.D.C.C., al pro- who travels on one But 1-02-38 advance, is at the to vote in though allowed vide: who corrupt or officials mercy of careless Intentions in enactment “1-02-38. disenfranchise him act as to may so statute, it is enacting a of statutes.—In ballot, thereby initial his failing stamp or that: presumed any without fault his franchise destroying Compliance “1. with the constitutions this violates the part. We on his believe state and of the United of both the Equal Protection Clause State is intended. States Dunn v. Blum Federal Constitutions. statute is intended “2. The entire Amendment, stein, supra; Thirteenth be effective. Constitution; Section United States A reasonable result just “3. Dakota Constitution. North intended. petitioner here raises a constitu- d. execution is “4. A feasible of result pre- in this question not raised tional intended. pro- therefore viously. prior Our decisions interest is favored over “5. Public on the constitutional precedent vide private interest.” we believe should be decided question which in favor validity of the 202 chal- [*] [*] [*] [*] [*] [*] ballots. lenged absent voters am- Aids in construction of “1-02-39. ambigu- a statute is biguous statutes. —If statutory that our scheme We notice e. court, determining ous, in the inten- counting of ab- some provides now legislation, consider tion stamped are not ballots which sentee among other matters: precinct election officials by the initialed 16-18-14, N.D. by anyone else. See Section object sought to be attained. “1. The C.C., counting by providing for under which “2. The circumstances absentee ballots which canvassing board of enacted. the statute was too late to be forwarded the elec- arrive legislative history. “3. The boards, initialing stamping or without law or former statu- “4. The common by anyone. Ten such ballots were counted provisions, including laws tory present canvassing board in the case by the subjects. similar upon the same or case). (as appears from the record this consequences a particular “5. respondents, the rationale Under construction. would be disallowed and their voters these construction of “6. The administrative disenfranchised. the statute. range of the full f. It is obvious preamble.” “7. The ap- relating to elections cannot be statutes rules, Applying we read the stat- these literally recounts of returns of ab- plied con- so as to make them utes precincts use which sent voters ballots uphold the fundamental stitutional appearing person. for voters machines disenfranchise We will not vote. said, put the officials cannot As we have voters, avoided, if it can for reasons they boxes if voters ballots illog- hypertechnical, to be believe impossible to It is have no ballot boxes. ical, contrary accepted doctrines machines vot- placed votes “recount” statutory construction. person. appearing in ers precautions of g.The numerous adopted at dif- Obviously, statutes when voting provide so reconciled, in- on absentee fully statutes times cannot ferent safeguards that more ade- necessary. something than many When terpretation
249
any
therefore,
im-
quately
guarantees
jurisdiction
substitute for
have no
in such
stamping
initialing proce-
plicit
If there is anything
cases.”
clearly
(1)
ap-
precautions
this,
dure. These
include
mandatory in all of
it is
47 of the
§
signed by
(except
the voter
if in
plication
Constitution.
service)
16-18-05, 16-18-06,
military
[§§
State District Court of Sixth Judi-
(2)
16-18-11];
sworn statement of vot-
Dist.,
196,
137,
cial
67 N.D.
271 N.W.
143
envelope accompanying
er on the
the ballot
(1937), this Court said: “It is well settled
16-18-09]; (3)
returned
when
certifica-
[§
that the courts should not
authority
assume
receipt
“proper
tion
the ballot
any steps
legislative
to take
contests
case,
(in
auditor)
officer”
authorized,
clearly
unless
only
and then
and delivered with the ballots to
specifically given.”
extent
State v.
16-18-16];
(4)
officials
com-
[§
344,
Quam,
(1943),
72 N.D.
vote Where absent voters 16-18-17]. [§ members. machines, tallied additional ignored This Court precedents these exist in that precautions the machine is instead to follow the chose statement representatives operated by parties of both 834, Meyer, 20 N.D. State N.W. 16-18-20]. [§ (1910), that: “This court does not at- h. areWe reluctant to disenfranchise tempt say what members shall be seated. reason, voters without sufficient in the face simply passing upon It is the question of ” * * * requirements. of constitutional We have presented law and “It is unnec- right always held the to vote to be a basic essary for us to consider whether our deci- country. constitutional in this To may any upon sion have effect the action of * * electors, have that vote taken from 202 My problem *.” Senate was nothing reasons which have do with ignore then and is now that I cannot part, fault whatever on their and based fact that our “decisions” do have some ef- solely on the failure of election officials to action fect House. This is perform requirement, a technical is abhor- very vividly illustrated in the instant case rent to our ideals and our govern- form of by the Journal of the House for the Forty- ment and violative of a fundamental consti- Legislative Assembly’s organizational fifth right. tutional There, pages through session. see, in an colloquy informal but in for- joins Justice PEDERSON me this dis- House, mal statements the leaders of the
sent. comments that indicate that we left the impression by previous
definite our decision only judge, that the House is the “final” PEDERSON, (dissenting). Justice seated, judge the “sole” of who shall be Supreme that either the Court or the Secre- opportunity We had the in the case of tary already had made the decision Thompson, State ex rel. Olson v. for the House. (N.D.1976), apply N.W.2d 347 47 of the “judicial” not be say you “I told North Dakota Constitution with a sense of so,” judge but I haven’t been long enough practicality, balance and and in accordance forget practical. that I should also be precedent. Montgomery, Leu v. misunderstood, (1914), pointed N.D. 148 N.W. Lest I be I reiterate that “ * * * challenged out that section 47 the when a election result involves Legislature Legislature, each Constitution branch of the members of the func- courts, judge quali- canvassing is made election and the election or members, courts, boards, Secretary fications of its and the and the of State is to *19 franchise fewer voters. If we had decided to be made the determination facilitate Thompson, supra, no Olson accordance makes Senate. or the House I my thoughts, agreed would now have with or the House Senate difference Justice SAND. decision to Court to leave chooses our 47 of Secretary of State. Section doing so. them from prohibits Constitution precedent will decision
Because involving non-legisla- disputes offices, along with Jus- go I choose
tive dissent because would disen-
tice VOGEL’s