217 S.W.2d 980 | Ky. Ct. App. | 1949
Affirming.
An election was held last November to fill an unexpired term in the office of Coroner of Jefferson County. The tabulation of the voting machines gave Dr. Vincent Stabile, Democrat, a majority of 31 over Dr. Paul Osborne, Republican. The totals were 67,739 and 67,708, respectively. When the count of the ballots of absentee voters had been added, the result was a majority of 119 for Dr. Osborne, and the certificate of election was issued to him. Dr. Stabile challenges the legal right to count *429 any of these ballots. A demurrer to his petition as amended was sustained and his petition of contest dismissed.
The petition charges specifically the failure of the County Clerk and the Board of Election Commissioners to perform in the manner prescribed any of the duties imposed upon them by KRS 126.270(1, 3) relating to the handling and counting of absentee voters' ballots. On this appeal the argument is confined to the failure of both the County Clerk and a member of the Board of Election Commissioners to write their respective names on each ballot and of the Commissioners to detach the secondary stub from any of them before they were placed in the box. It is further charged that every ballot was exposed to the view of the officers and their clerical aids with the secondary stub attached, thereby revealing for whom every absentee had voted. The contestant prayed that all of these ballots be disregarded and that he be declared elected.
The original petition stated there were 529 absentee votes of which 189 had been added to the machine votes of the contestant and 340 to those of the contestee. After the expiration of the time for filing a contest or setting up new grounds, an amended petition was filed to conform to the proof. This stated the total absentee ballots to be 546 of which the contestant received 198 and the contestee 348. We need not decide the point raised by the contestee that it was error to file the amendment because it set up additional grounds of contest, since the result of the election would be the same whether the additional ballots be considered or not. Neither need we pass upon the point raised by the appellee that the petition was fatally defective because it omitted to name the voters whose ballots were challenged.
The statute covering absentee voting, KRS 126.270(1), prescribes that preparatory to counting the ballots the county clerk shall remove each ballot from the inner envelope so as not to expose how it was voted and that "The clerk shall write his name on the back of the ballot and then hand it to one of the members of the board of election commissioners, who shall write his name on the back of the ballot, detach the secondary stub, and *430 then place the ballot in a regular ballot box which has been provided for the purpose."
The petition charges, as we have said, that neither officer signed any ballot. The appellant relies upon the line of cases which holds that a ballot not signed by a judge of the election cannot be counted. The general election statute, KRS 118.280, prescribes that the clerk and a judge of the election shall each sign his name on the ballot at the place designated before handing it to the voter. But it further declares "No ballot not so signed in the handwriting by one of the judges shall be counted by the canvassing board." The courts, of course, give effect to the mandatory provision. Campbell v. Little,
The question as to the exposure of the ballots is more serious. The secrecy of the ballot is of paramount importance. It is prescribed by Section 147 of the Constitution, *431
which makes it the imperative duty of the legislature to enact enforcement laws. Under that requirement it was held in State Board of Election Commissioners v. Coleman,
The appellant relies upon Nall v. Tinsley,
Nall v. Tinsley deals with a local option election. It was rendered not long after the Australian ballot system was inaugurated and discusses its purposes and objects. The purpose of secrecy is to permit an independent expression of the people, free from the evils of improper *432 influences and intimidation. It was held that the use of ballots not of the thickness prescribed by the statute, but so thin as to nullify effectually the demand of a secret ballot and the object of the constitutional and statutory law, required the election be set aside. The opinion drew an analogy to a supposed case where the county clerk had not furnished any kind of ballots and a viva voce election had been held. In short, the court held that there was no substantial compliance with the law and, therefore, a consequent failure to hold a lawful election. There was a vigorous dissent on the ground that the decision gave the officers the power to nullify an election and that there was, in fact, an expression by the people of their choice in the matter. It was ably argued that the secrecy of the ballot, though an essential element, is but a means to the end, and a violation by the officers of the election should be disregarded where the voters were free from fault and it was not expressly provided in the statute that their dereliction in duty should invalidate it.
Smith v. Jones, supra, involved a primary election. There was almost a complete disregard of the law pertaining to the holding of an election in a certain precinct, and the results were thrown out. This but followed the general rule that fraud or illegal practices will nullify an election in a certain precinct or as a whole where the free expression of the people cannot be ascertained.
Raymer v. Willis, supra,
In Cole v. Nunnelley,
Making specific application of this rule, in Snowden v. Flanery,
It would be a dangerous thing and put a premium upon misconduct to declare that an election officer by his dereliction in performing a duty, such as preserving the secrecy of individual ballots, may disfranchise the electorate in part or in whole and perhaps swing an election from one candidate to another, as here, or from one group of candidates to another group. There is a difference where there was a deliberate destruction of the secret quality of an election during the course of holding it or other fraud or such gross misconduct that it cannot be said that the results reflect the free and unhampered will of the people. The winners in such an election cannot be permitted to enjoy the fruits of victory. Of such is Nall v. Tinsley, supra. Likewise where good-faith action of officials is of such consequence that it cannot be said there was a free and equal election. Of such is Lakes v. Estridge,
As we have said, there is no claim of fraudulent or willful wrongdoing on the part of these election officials. The case is to be determined in the light of that situation. There is no need to express any opinion as to what would be proper under other circumstances. *435
We conclude that the trial court properly held this ground of contest unsustainable also.
The judgment is affirmed.