STATE of North Dakota ex rel. Allen I. OLSON, Governor of the State of North Dakota, Petitioner, v. Honorable A.C. BAKKEN, Judge of the District Court, Respondent. Henry STINNETT, Jeanne Stinnett, Peter Nikle, Don Cooksey, Joanne Cooksey, Donald Harriman, Darlene Harriman, Tom Gest, John Ippoliti, Jerry Waletzko, Jan Kurtyka, and LeRoy Kurtyka, Contestants and Appellees, v. Anita HANSEN, County Auditor of Grand Forks County, and the County Canvassing Board of Grand Forks County, Contestees and Appellants.
Civ. Nos. 10362, 10363.
Supreme Court of North Dakota.
Jan. 14, 1983.
329 N.W.2d 575
A.C. Bakken, Grand Forks, argued, pro se.
Henry H. Howe, Grand Forks, argued, and Mary E. Seaworth, Senior Law Student, argued, for contestants and appellees.
SAND, Justice.
Initially, twelve voters brought an action under the provisions of
Sixty-one ballots were cast after the discovery and correction, and were placed in a separate ballot box. The County Canvassing Board met and certified only the 61 votes cast in Winship precinct after the discovery of the error. The board ruled that it was impossible to determine the actual preference or intent of the voters from an examination of the ballots voted from guide books in which the order of listing candidates varied. However, in the final analysis, the only race that had a margin less than 526 votes was for legislative candidates for the House of Representatives from the Forty-second District.
After a hearing, the district court found that the error was of such magnitude that it could have affected the outcome of the election; that it was impossible to determine the actuаl will or intent of the 526 Winship precinct voters; and “that no one was elected to the race for the second seat in the House of Representatives in District 42 and any election certificate issued to Mike Hamerlik must therefore be annulled and set aside.” The court also noted that the last sentence3 of
The judgment also directed that certified copies of the findings of fact, conclusions of law, order for judgment and judgment be transmitted to the Governor and the Speaker of the House of Representatives for the 48th Legislative Assembly.
In the meantime, a certificate of election was issued to Mike Hamerlik, the legislative candidate whose margin of victory was less than 526 votes, and the House of Representatives had an organizational meeting on 7 December 1982. Thereafter, the State of North Dakota ex rel. Allen I. Olson, Governor, requested this Court to exercise its original jurisdiction and issue an appropriate writ declaring the judgment of the district court void ab initio and such other relief as may be appropriate.
Shortly thereafter, the County Auditor and the Canvassing Board of Grand Forks County, pursuant to
Both the appeal by the twelve voters and the application to this Court for an appropriate writ involved basically the same issue and, accordingly, we will treat them as wholly consolidated.4
The contestees and the State, relying upon
“Each house shall be the judge of the election returns and qualifications of its own members.”
This provision (previously § 47) has been involved in some manner by this Court in a number of instances. Morgan v. Hatch, 274 N.W.2d 563 (N.D.1979); State ex rel. Olson v. Thompson, 248 N.W.2d 347 (N.D.1976); State ex rel. Andrews v. Quam, 72 N.D. 344, 7 N.W.2d 738 (1943); State ex rel. Schmeding v. District Court of Sixth Judicial District, 67 N.D. 196, 271 N.W. 137 (1937). In Morgan, after referring to the earlier case of Thompson, the Court concluded that the constitutional provision did not deprive it of jurisdiction in determining if absentee ballots without an official stamp or initial, in a senatorial contest, should or should not be counted.
Significantly, the United States Constitution has a similar provision found in
“Each house shall be the judge of the elections, returns and qualifications of its own members ....”
The United States сonstitutional provision has been construed at least twice by the United States Supreme Court. In Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the Court held that
Other state courts, in interpreting a similar constitutional provision, have concluded that each house of the legislature has the final power and authority to judge elections, returns, and quаlifications of its own members; however, even though the legislature has the final power, that power does not prevent courts from exercising jurisdiction and entertaining election contests. State ex rel. Wahl v. Richards, 44 Del. 566, 64 A.2d 400 (1949) (relief sought under constitutional provision giving Supreme Court
We are aware that several courts, in matters relating primarily to qualifications, have held that each house of the legislature has final and exclusive authority to judge its members. In re McGee, 36 Cal.2d 592, 226 P.2d 1 (1951); Lee v. Lancaster, 262 So.2d 124 (La.App.1972); Lund ex rel. Wilbur v. Pratt, 308 A.2d 554 (Me.1973); Opinion of Justices to the Senate, 375 Mass. 795, 376 N.E.2d 810 (1978); Combs v. Groener, 256 Ore. 336, 472 P.2d 281 (1970); Scott v. Thornton, 234 S.C. 19, 106 S.E.2d 446 (1959).
The North Dakota Supreme Court, in State ex rel. Sathre v. Quickstad, 66 N.D. 689, 268 N.W. 683, 107 A.L.R. 202 (1936), had under consideration a statute providing in part that “the city council shall be the judge of the election and qualifications of its own members.” The court held that under this provision the courts were not divested of jurisdiction to inquire into the right of an occupant to hold the office of city alderman.
In addition to the foregoing,
“The district court shall have original jurisdiction of all causes, except as otherwise provided by law....”
In construing constitutional and statutory provisions, we give meaning to every phrase, word and sentence and, if necessary, reconcile conflicting pari materia provisions, if possible. Rothe v. S-N-Go Stores, Inc., 308 N.W.2d 872 (N.D.1981);
If we were to accept and extend the argument of the contestees and give
Significantly, the action commenced by the twelve voters did not contest the election of any legislative candidate specifically (
In resоlving this issue, we cannot overlook that it involves a basic constitutional question, the right to vote and its importance. See, Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964).
Taking into account the foregoing legal principles announced in the cases mentioned earlier, and giving full application to the constitutional and statutory procedures, we conclude that the district court, under
We now consider the issue whether or not the court properly acted within the scope of its authority by concluding that, pursuant to the
“Undoubtedly, the right of suffrаge is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized.” Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, 527 (1964).
“No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481, 492 (1964).
To preserve this right to vote and our reрresentative form of government, each branch of government in its respective role must affirmatively act or react within the laws and vigilantly guard against any action or lack of action by any official which will prevent eligible votes, validly cast, from being counted.
The trial judge obviously was concerned about the 526 votes that were validly cast by eligible voters but were not counted because of an improper use of a ballot label (voting guide booklet). The result was that votes recorded on the ballot card were for candidates other than the оne for which the voter had cast the vote. The action of the 12 voters was not directed at any particular candidate, but rather was an action focusing on the error that was committed and requesting that the election process be completed or redone so as to permit the 526 voters whose votes could not be counted to cast their votes. In this respect the completion or reconstruction of the election is not, in the true sense, a special election as that term is employed in
However, experience tells us that neither a statute, rule, nor regulation can pragmatically cover every situation that may arise, and as a result the official body required to act or make a decision or fashion a remedy must fill the interstices in accordance with those legal concepts, principles, or objectives which may apply to the situation and that are in harmоny and legally compatible with the rule, regulation, or statute. This is the situation in this instance. The Legislature in 1981 enacted a comprehensive set of laws in
The very heart of our form of government depends upon the legal and moral principle that each valid vote should be counted. In this instance there was no evidence introduced that the voters committed the error, nor was the slightest hint presented that such evidence existed. The voters took the pain, time and effort to votе and should be given an opportunity to cast their vote if, through no fault of their own, the vote, as originally cast, cannot be counted. While the limited remedy provided by the trial court may not be the idealistic remedy because a voter may have changed his or her mind since then and may not cast the vote as before, nevertheless the practical remedy outweighs the penalty of failing to count a vote because of an error by someone other than the voter.
The law and equity does not favor disenfranchising voters who have complied with the law when the disenfranchisement occurs merely because of mistake, error, negligence, or misconduct on the part of election officials. Haggard v. Misko, 164 Neb. 778, 83 N.W.2d 483 (1957).
In Larson v. Locken, 262 N.W.2d 752 (S.D.1978), the court held an election invalid, null and void and affirmed the trial court‘s order for a new election because, in an election where only 105 votes were cast, and where there was a three-vote difference between candidates, 16 ballots were invalid on their face because the official stamp was not placed on the ballots. The court affirmed the new election rather than have the election decided without counting the absentee ballots. The opinion does not indicate if the absentee ballots could have been identified or why the election was not limited to the absentee voters.
In Buonanno v. DiStefano, 430 A.2d 765 (R.I.1981), an obvious malfunction existed in two voting machines which did not accurately record vote totals. A differential of 91 votes existed establishing the probability that the election results would have been effectively different had the machine functioned properly. The court held that the board did not err in holding a new election and limiting it to the polling place in which the malfunctioning machines were located.
A new election is a proper remedy as a result of an original election which is encircled with doubt. See Buonanno v. DiStefano, supra at 771, and cases cited therein.
In this instance the total votes cast for the legislative candidates, which are the only races put in doubt as a result of the failure to count the 526 votes, are as follows:
| Glenn Pomeroy | 2,332 |
| Benjamin A. Ring | 1,645 |
| Mike Hamerlik | 1,865 |
| Raymond R. Reily | 1,376 |
Concerning the equitable relief courts may provide, the court in Griffin v. Burns, 570 F.2d 1065, 1079 (1st Cir.1978), quoted approvingly from Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151 (1973), as follows:
“In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow. Moreоver, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable.”
In Akizaki v. Fong, 51 Hawaii 354, 461 P.2d 221 (1969), nineteen invalid ballots were commingled with valid ballots and counted in an election where a margin of only two votes existed between candidates. The court, under these circumstances, held it was proper to hold a new election.
In LaCaze v. Johnson, 310 So.2d 86 (La.1974), the Louisiana Supreme Court held that the trial court properly annulled an election and ordered a new one where a voting machine malfunctioned and failed to record the votes cast for one candidate, which might have altered the election.
In Matter of Ippolito v. Power, 22 N.Y.2d 594, 294 N.Y.S.2d 209, 241 N.E.2d 232 (N.Y.1968), the court held that if irregularities are sufficiently large in number to establish a probability that the result would be changed, a new election should be held.
In Foulkes v. Hays, 85 Wash.2d 629, 537 P.2d 777 (1975), the court held that the neglect of duty on the part of election officials in preserving and safeguarding ballots between canvassing and recount warranted a new election.
Regarding the instant matter, we have reservations that an election contest initiated under the provisions of
After a careful analysis of the situation, we conclude that a vacancy, as that term is generally used in our statute, did not actually come about in the instant case. Rath-
er, because of the error, the election process was not completed and, as a result, the legislative office which had a two-year limitation remained unfilled. However, because the canvassing board and the election board certified Hamerlik as elected and he received a certificate of election and no contest was filed against him, he became a de facto member of the House of Representatives and will remain such until the election is completed and all the votes, including the 526 votes, are tabulated. Thereafter, the House of Representatives, as the final judge of the election, may take whatever action it deems appropriate if a contest is filed.
Due process and related legal principles оf law clearly establish that courts generally do not have jurisdiction over those which are not parties in an action. In this instance, neither the Governor, Hamerlik, nor the entity or board which issued the certificate of election, was a party to the action. Consequently, for this reason alone, the court did not have jurisdiction of the Governor or these parties. In this respect, the conclusions of law and the judgment, in some instances, use language which is merely advisory. We are, however, convinced that the court does not have authority to order thе Governor to hold a special election. We have reservations that the court could order the certificate of election furnished to Hamerlik annulled.
We are aware that our court has upheld election board action of voiding or not counting ballots (except absentee ballots counted by canvassing board, Morgan, supra) which did not have the official stamp or proper initials where the voter cannot be identified. The contestees argued that the 526 ballots involved should be treated and disposed of in the same manner as ballots without the affixed stamp and initials. However, there is a significant difference between voiding a ballot which pursuant to statute does not contain the official ini-
Taking into account all of these items, and specifically the fundamental constitutional right to vote, we believe the remedy fashioned by the court was proper, in pаrt, and that the court has jurisdiction to direct the county auditor of the precinct involved to conduct a special election limited to the 526 voters who can be identified and whose votes were not counted. To accomplish this the judgment of the court, however, must be modified by eliminating the reference to the Governor calling a special election and the annulment of the certificate of election issued to Hamerlik which will be dependent upon the outcome of the limited election. In addition, the judgment should contain adequate guidеlines to the county auditor regarding the limited election to avoid any confusion as to who is entitled to vote.
Accordingly, we remand the case with directions to the trial court to amend the judgment in conformance with this opinion, and as so amended it is affirmed. As a result of the conclusions reached herein it is not necessary to issue an appropriate writ as requested in the application by the State. Neither side is to be taxed costs.
ERICKSTAD, C.J., and PAULSON and VANDE WALLE, JJ., concur.
PEDERSON, Justice, concurring in the results.
I agree entirely with the necessity to remand to permit the judgment to be modified so that it applies only to persons over which the trial court had jurisdiction.
Because there has been no change in the pertinent constitutional provision (except its number which was changed from
Courts do not have any inherent powers that override
If Anita Hansen can somehow determine the preference of the 526 disenfranchised Winship precinct voters, I think it may very well facilitate the judging that only the House of Representatives must do. It may not be clearly established how this will be done, but if Judge Bakken‘s suggested methods prove unworkable, he is readily available to consider alternate methods.
The preservation of the right to vote should be given appropriate high priority by all concerned, including the House of Representatives when and if the matter comes before it.
VANDE WALLE, Justice, concurring specially.
I concur in the opinion written by Justice Sand.
This is the first time we have been asked to construe the provisions of
The statute clearly provides for recounts in
Although the practical effect of the election contest involved in the cases before us may indicate that the statutes providing for a legislative contest of election should have been followed rather than the statutes applying to elective offices generally, I аgree with Justice Sand that the legal posture of the instant cases indicates the election contest was a challenge to the entire election in the precinct rather than specifically to Hamerlik‘s right to hold a legislative office. Justice Sand has so characterized the contest and I agree with his conclusion that such action does not limit the twelve petitioners to the legislative contest of election provisions. If, however, the contest of election had been directed only at Hamerlik, I believe the statutory scheme presented in
Although our decision herein may appear to be inconsistent with previous decisions in which we have upheld the voiding of certain election ballots, there is, as Justice Sand has noted, a significant difference between voiding a ballot which does not con-
tain the official initials or stamp pursuant to statute as compared with the situation where the improper ballot label was used so that the intention of the votеrs could not be determined but the voters involved can be identified without disclosing for whom they voted. That difference is, of course, that “to protect his right to vote the elector should observe the stamping and initialing of the ballot.”
Although it would be ideal if we could require all of the 526 voters to cast their ballots for the person for whom they voted on November 2, 1982, that is not possible because we cannot compel an elector to disclose how he voted. I believe the procedure specified by Judge Bakken, as modified by the opinion written for the Court by Justice Sand, is the best procedure available to correct the disenfranchisement of the 526 voters in Winship precinct.