Blackburn v. Hall

154 S.E.2d 392, 115 Ga. App. 235, 1967 Ga. App. LEXIS 1074

• Court: Court of Appeals of Georgia
• Decided: January 25, 1967
• Docket: 42585
• Status: Published

Opinions

Eberhardt, Judge.

This is an appeal of the overruling of a general demurrer to a petition brought under the Election Code by twelve electors residing in the 4th Congressional District contesting on behalf of James A. Mackay, the candidate of the Democratic Party, the result of the general election held November 8, 1966, in which Benjamin B. Blackburn, III, the Republican candidate, was the apparent winner, and seeking a recount of all votes cast by the votomatic process in Fulton and DeKalb Counties, particularly (a) the ballots deleted by the computer as not having been cast for either candidate in the election, (b) the defective ballots which the computer could not process and which were duplicated by election officials for counting, and (c) the “over-vote,” wherein there was a voting of a straight party ticket (Democrat or Republican) and a vote for the opposing candidate in the Congressional race.

The question raised by appellees’ motion to dismiss is whether the appeal is premature, in the light of §§ 34-1708 and 34-1709 of the Georgia Election Code (Ga. L. 1964, Ex. Sess., pp. 26, 183-184), requiring a final determination of the matter as a basis of appeal. The overruling of a general demurrer is, of course, not a “final determination.”

But appellant contends that the above provisions of the Election Code have been superseded by the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18), which allows an appeal from an order which would have been final if it had been rendered as contended for by him. If the demurrer had been sustained it would have terminated the proceeding, and thus have been final.

In interpreting the intent of the legislature with regard to the sweep of the Appellate Practice Act of 1965, this court stated: “ ‘This Act being intended as a comprehensive revision of appellate and other post trial procedure, the failure to specifically enumerate any statute, Code section or Act dealing with a matter covered hereby shall not be construed as continuing such Code section, statute or Act in effect, and to this extent the doctrine of expressio unius est exclusio alterius shall not apply,’ and Section 25 provides that ‘All laws and parts of laws in conflict with this Act are hereby repealed.’ These provisions make it clear that the legislative intent was to provide a uniform post-trial procedure in all courts of this State from which a writ of error would lie to the Supreme Court or the Court of Appeals at the time of the passage of the Appellate Practice Act.” White Oak Acres v. Campbell, 113 Ga. App. 833, 834-835 (149 SE2d 870).

It is contended however that the 1965 Act is inapplicable to an election contest for the reason that the same is “not an action at law or a suit in equity” but rather a “special statutory proceeding.” Harris v. Sheffield, 128 Ga. 299 (57 SE 305). We agree that an election contest is “a special statutory proceeding”; however, this court has held in another case involving “a special statutory proceeding” (workmen’s compensation) that the special appellate procedure and practice found in Code § 114-710 was supplanted by the Appellate Practice Act of 1965. Peters v. Liberty Mut. Ins. Co., 113 Ga. App. 41 (1) (147 SE2d 26). There are many more “special statutory proceedings” that are analogous but are too numerous to even mention.

It is further contended that the 1965 Act is limited to civil and criminal cases and that an election contest is neither. The specific answer to this can be found in the very section of the Election Code relied on by the appellees. It provides that appeals shall be taken “as in other civil cases.” Code Ann. § 34-1709. (Emphasis supplied). In view of this language it would seem a bit illogical to contend that the legislative intent was that an election contest was not a civil case.

We think the ultimate statement on this question is found in Undercofler v. Grantham Transfer Co., 222 Ga. 654, 657 (151 ). In dealing with the same question which we have before us in this case—possible exceptions to the reviewability of an order under the Appellate Practice Act of 1965—the Supreme Court held: “It therefore appears the legislature in excepting the three classes of cases (mandamus, quo warranto and writ of prohibition) from the operation of Section 1 (a) (2) of the 1965 Appellate Practice Act intended it to apply to all other cases, . . .”

Did the trial court have jurisdiction of the subject matter? If it did not, the general demurrer should have been sustained for that reason.

Article I, Section 5 of the Constitution of the United States provides: “Each House shall be the judge of the Election, Returns and Qualifications of its own members. . .” This may suggest a preemption of the subject matter by the Congress and a resulting lack of jurisdiction in the courts.¹ However, in a well-reasoned opinion the Supreme Court of Oklahoma reached a contrary conclusion in Wickersham v. State Election Board, (Okla.) 357 P2d 421, holding that “where the right to a recount of votes cast for a particular office is not granted by statute, a proceeding that has for its purpose the matter of recounting the votes in fact 'constitutes a challenge to the title to the office’ . . . and is therefore in effect an action in the nature of quo warranto to try the right or title to the office. In such cases all of the election processes have been carried out before the proceeding is filed and for said reason Congress alone has exclusive jurisdiction and it alone can grant relief. On the other hand, where, as a part of the election proceedings, a recount is provided for in proper instances, an election cannot be considered as over or final until a recount is allowed, and until the election is final, the courts can and should exercise jurisdiction for the purpose of requiring lower tribunals to comply with the election statutes.”

The Supreme Court of Minnesota employed similar reasoning in Odegard v. Olson, 264 Minn. 439 (119 NW2d 717), pointing out that there had been no statutory provision for contesting the count of ballots when a contrary result was reached in Youngdale v. Eastvold, 232 Minn. 134 (44 NW2d 459), Williams v. Maas, 198 Minn. 516 (270 NW 586), and State ex rel. 25 Voters v. Selvig, 170 Minn. 406 (212 NW 604). And see Ransley’s Contested Election, 268 Pa. 303 (111 A 876), where jurisdiction was held lacking because of the absence of any statutory authorization of the contest.

Since a contest of this nature is specifically authorized by the Georgia Election Code of 1964, § 34-1701 et seq., we conclude that the courts of this State have jurisdiction of a proceeding brought under the provisions of the Code to obtain a recount of all or a portion of the ballots cast in an election for a representative to either House in the Congress.

We share the sentiment expressed by the Supreme Court of Oklahoma concerning the proposition that the Congress might refuse to seat a contestant although a recount should disclose that he had received the greater number of votes. Said the court: “Although Congress may have such power, we do not agree with [the] suggestion that to accept jurisdiction herein and grant relief we will be doing a vain or futile thing. We are not convinced that Congress will refuse to recognize the result of a recount or a Certificate of Election issued in accordance with the recount. If we entertained doubt on said score, we nevertheless would be of the opinion that the respondents are under a duty to comply with the election laws, and since respondents have failed to comply with said laws by granting a recount, we are under a duty to direct respondents to grant a recount.” 357 P2d 421, supra. In the situation here, if there are votes which have not been counted and which under the Georgia Election Code are entitled to be counted and included in the totals, a recount should be had for that purpose. We know of no better means of securing observance of our election laws than to require them to be applied and enforced as written. The courts are empowered to determine whether that has been done. Jurisdiction is clear. Its exercise is neither officious nor nugatory.

This brings us to a consideration of whether, for other reasons, there was error in the overruling of the general demurrer to the petition. As has been indicated, the count or tabulation of the votes is urged to be erroneous in three areas or respects. In the consideration of these we should have in mind, in addition to the applicable provisions of the Election Code, a general principle that there is a distinction between the errors of officers conducting elections and errors of the voters themselves; in the former case, since the voter has no power over the officer, the officer’s blunder will not disfranchise the voter—• unless it is mandatory under the law, whereas the voter may by his own neglect disfranchise himself. McCrary on Elections, § 724; Morris v. Board of Canvassers of City of Charleston, 49 W. Va. 251 (38 SE 500).

Each of the parties urges as the most important of the considerations raised the matter of the “over-votes.” It is alleged that there are numerous instances where the voter punched the ballot in the indicated space opposite the name of the candidate for Congress on the ticket of the opposing party, both parties having candidates for that office.

These ballots were thrown out by the computer and were not included in the tabulation by the election officials because, as they construed the matter, there was a vote for both candidates for the same office. Contestants contend that this was an erroneous construction of the ballot; that in truth and in fact the voter had intended to vote for all candidates of the party for which he had indicated a vote save and except its candidate for Congress, and .that he had intended to vote for the candidate of the opposition party for that office—and that these votes should be so counted and tabulated.

Let us first look to applicable provisions of the Election Code.

The only provision by which the voter is instructed as to how he should prepare and cast his vote in an election is found in § 34-1314 (c): “At elections, the elector shall prepare his ballot in the following manner: He may vote for the candidates of his choice for each office to be filled according to the number of persons to be voted for by him for each office by making a cross (X) or check (V) mark in the square opposite the name of the candidate, or he may write, in the blank space provided therefor, any name not already printed on the ballot, and such insertion shall count as a vote without the marking of a cross (X) or check (V) mark. If he desires to vote for every candidate of a political party or body, he may make a cross (X) or check (VJ mark in the square opposite the name of the party or body of his choice in the party or body column on the left of the ballot, and every such cross (X) or check (A/) mark shall be equivalent to and be counted as a vote for every candidate of a party or body so marked. If he desides to vote for the entire group of presidential electors nominated by any party or body, he may make a cross (X) or check (V) mark in the appropriate square at the left of the names of the candidates for President and Vice President of such party or body. In case of a question submitted to the vote of the electors, he may make a cross (X) or check (V) mark in the appropriate square opposite the answer which he desires to give.” (Emphasis supplied.)

Provision for the counting of ballots is made in § 34-1322: “(a) Any ballot marked so as to identify the voter shall be void and not counted, except a ballot cast by a challenged elector whose name appears on the electors list; such challenged vote shall be counted as prima facie valid but may be voided in the event of an election contest. Any ballot marked by anything but pen or pencil shall be void and not counted. Any erasure, mutilation or defect in the vote for any candidate shall render void the vote for such candidate, but shall not invalidate the votes cast on the remainder of the ballot if otherwise properly marked. If an elector shall mark his ballot for more persons for any nomination or office than there are candidates to be voted for for such nomination or office, or if, for any reason, it may be impossible to determine his choice for any nomination or office, his ballot shall not be counted for such nomination or office, but the ballot shall be counted for all nominations or offices for which it is properly marked. Ballots not marked, or improperly or defectively marked so that the whole ballot is void, shall be set aside and shall be preserved with the other ballots.

“ (b) At elections, any ballot marked by any other mark than a cross (X) or check (V) mark in the spaces provided for that purpose shall be void and not counted: Provided, however, that no vote recorded thereon shall be declared void because a cross (X) or check (V) mark thereon is irregular in form. A cross (X) or check (-\j) mark in the square opposite the name of a political party or body in the party or body column shall be counted as a vote for every candidate of that party or body so marked. Any erasure, multilation or defective marking of the straight party or body column at general elections shall render the entire ballot void, unless the elector has properly indicated his choice for candidates in any other column, in which case the vote or votes for such candidates only shall be counted. Any ballot indicating a write-in vote for any person whose name is not printed on the ballot shall be counted as a vote for such person, if written in the proper space or spaces provided for that purpose, whether or not a cross (X) or check (V) mark is placed before the name of such person.” (Emphasis supplied.)

It is true that these sections refer to voting by paper ballot, but there is no reason that we can see for having a separate rule (not spelled out in the Code) for preparing and casting ballots by use of the vote recorder or votomatic. Rather, it is in the interest of both the candidate and the voter to have a rule of uniformity so that voters moving from a paper ballot area into a votomatic area, or vice versa, or a voter from a votomatic area who casts an absentee ballot, will not be confronted with the confusing and illogical change. Moreover, these directions as to how a voter should mark his ballot and as to what ballots shall or shall not be counted, though specifically referring to the paper ballot, are declarations of public policy by the legislature.

There are provisions in the Code as to how the votomatic or vote recorder shall be set up for use in voting, going to the mechanical process of preparing it for use in casting the ballot— but which do not provide as to how the ballot shall be marked, or what ballots shall be counted except the inferential provision against the counting of over-votes.

Section 34-1220 (b) provides, relative to the use of vote recorders (votomaties) that: “It shall permit each elector, at other than primaries., to vote a straight party or body ticket in one operation, and, ... in one operation, to vote for all of the candidates of one party or body for every office to be voted for, except those offices as to which he votes for individual candidates.”

Section 34-1220 (e) as amended provides that: “When [the vote recorder or votomatic process is] used in conjunction with a tabulating machine, it shall preclude the counting of votes for any candidate or upon any question, for whom or upon which an elector is not entitled to voté, and shall preclude the counting of votes for more persons for any office than he is entitled to vote for, and shall preclude the counting of votes for any candidate for the same office or upon any question more than once.”

The Election Code was amended in 1965 (Ga. L. 1965, p. 226). The purpose of the amendment, as stated in the caption, was “to amend the Georgia Election Code ... [so as] to provide that no vote recorder shall be adopted or used in this State unless it shall, when used in conjunction with a tabulating machine preclude the counting of votes for any candidate or upon any question for whom or upon which an elector is not entitled to vote, and shall otherwise preclude the counting of over-votes. . .” The amending Act provided in the body thereof that: “Section 2. Subsection (e) of Section 34-1220 of the said Georgia Election Code, relating to the requirement that a vote recorder shall preclude an elector from over-voting, is hereby amended by striking such subsection (e) in its entirety and inserting in lieu thereof a new subsection (e) to read as follows: ‘(e) When used in conjunction with a tabulating machine, it shall preclude the counting of votes for any candidate, or upon any question, for whom or upon which an elector is not entitled to vote, and shall preclude the counting of votes for more persons for any office than he is entitled to vote for, and shall preclude the counting of votes for any candidate for the same office or upon any question more than once.’ ”

What does the clause, “and shall preclude the counting of votes for more persons for any office than he is entitled to vote for” mean? And what was the purpose of the General Assembly in the adoption of this amendment to the Election Code? We are of the opinion that it is stated in the caption of the amending statute and in the statute itself—“to preclude an elector from over-voting,” and to preclude the counting of “over-votes.”

Then what is an “over-vote?” Authorities are not in harmony on this problem. “According to one view, the general intention to vote a straight ticket by placing a cross in the circle at the end of a party ticket is controlled by making cross marks opposite the names of candidates on another ticket, at least where the names of the candidates in the party column opposing those candidates individually voted for are erased, and such a ballot should be counted only for the candidate or candidates on the ticket marked with a cross at the top whose opponent or opponents have not been voted for by placing cross marks opposite their names.” 29 CJS 525, Elections, § 182. However, it is further pointed out that “Some statutes are so construed that the making of a cross in the circle at the head of a party ticket is equivalent to voting for all the candidates of that party, even though cross marks are placed after the names of candidates on other columns, or the making of cross marks in the voting spaces opposite the names of candidates on other tickets is held simply to neutralize the marking so that the vote cannot be counted for either candidate, at least where the name of the candidate in the party column voted for has not been erased²; and, where this rule obtains, the only way to vote a split ticket is to make cross marks in voting spaces opposite all the candidates for whom the elector wishes to vote. In other words, when each column on the ballot contains names of candidates for all the offices to be filled or voted for, when the voter marks a cross in the circle at the head of a party column he has exhausted his privilege of voting and cannot vote for any other person in another column.

“However, the rule is inapplicable when the party has no candidate for the office to be filled, and where the party column, in the circle at the head of which the voter makes a cross mark, contains the name of only one candidate for an office, whereas two are to be elected, he may properly mark a cross opposite the name of a candidate on another ticket, as he is entitled to vote for two candidates.” Ibid, p. 526.

Every judge on this court participated in the election here involved, some as candidates—all as voters, some voting by paper ballots, some by votomatic, and we may take judicial notice that the State Election Board, whose duty it was to administer the Code and to instruct the officials holding elections over this State as to the manner in which voting should be done and what votes were to be counted and tabulated under the provisions of the Election Code, publicized by all available means what it regarded as the proper manner of splitting tickets, including publicity at the polling places, viz., that if a voter intended to vote a split ticket he should not put a cross in the circle or indicated space at the head of a party ticket, or punch the space on a votomatic ticket, but should proceed to split the ticket by making proper marks or punches in indicated spaces opposite the name of every candidate for whom he wished to vote or for whom he wished to write in a vote. We have no doubt that a great deal of ticket-splitting was done in that manner. That was the interpretation given the Code provisions by the State Election Board, and it is the view we entertain of the matter.

An “over-vote,” then, occurs when the voter appropriately marks the indicated space at the head of a party column on a ballot, indicating an intention to vote for all of that party’s candidates, and also places marks opposite the- names of an opposing candidate or candidates, indicating an intent to vote also for them, or when he marks a straight party ticket and additionally writes in the name of a candidate for one of the offices for which there is a candidate by that party. Where an over-vote has. occurred, as to that office, or those offices, the ballot is invalid, but it is valid as to others. And of course, as to the offices for which the party has no candidate, he may vote a straight party ticket and for individuals who are candidates of another party, or who are “write-ins,” without over-voting.

The 1965 amendment to the Election Code was intended to invalidate over-votes and prevent their counting and tabula^ tion, because that kind of ballot is ambiguous. The true intent of the voter cannot be known. Assuming that there was no intention to vote for both candidates, he may have intended to vote only a straight party ticket, and then on reflection have decided to do otherwise, or he may have started out to vote for the individual candidate of a particular party and then, on reflection, have decided to vote the straight ticket of the opposing party, or he may have intended to vote for all nominees of the designated party save the one for the office where he indicated a vote for an opposing candidate. But it is speculative for us to say what his intention was. Unless the ballot clearly demonstrates the voter’s intention those who are charged with the counting and tabulation of ballots should not be called upon to surmise as- to what the intent may have been— for they may well come to the wrong conclusion. It is the duty of the voter—the elector—to make his intention clear and certain, upon pain of having the vote cast out if that does not appear. It is better that his vote fail than that it be counted for the party against whom he intended to vote, or against a party for whom he intended to vote.

Of course this is not to say that if the legislature had clearly spelled out in the law that an over-vote cast in the manner of those here is lawful and shall be counted for the candidate of the opposing party (or for a write-in, if that is the indication) a voter would be presumed to have voted with that provision in mind and his intent would be clear. But our statute does not so spell it out, and, as we see it, does not authorize the casting of an over-vote; rather it prohibits and forbids the counting of them.

Any contention that the invalidating of over-votes should result in the call of another election is without merit. The Code does not contemplate or provide for the calling of another election because ballots which the voter has improperly marked and cast are invalidated. If it did, the process of holding an election would never end, for an election has been rarely held when some of the ballots were not so invalidated. Invalidation is necessary so that the result may be determined upon the counting of ballots lawfully prepared and cast. No fraud is charged.

There is no decision from the appellate courts of this state dealing with the problem now confronting us, and we have found none from the courts of other states dealing with the splitting of tickets under the votomatic system of voting. The cases cited in Judge Deen’s dissent are inapposite. All of them deal with balloting by paper ballots, but they are distinguishable for other reasons. In Pires v. Bracken, 412 Ill. 416 (107 NE2d 706) it was pointed out that “the Democratic column did not contain a nominee for every office to be filled. Three circuit judges were to be elected, and there was only one Democratic candidate. By marking the circle at the head of the Democratic column, the voter cast a vote for only one of the offices of circuit judge. Two remained to be voted on, and none of the ballots in question contained marks at more than two of the names on the Republican ticket.” Consequently, there was no over-voting in that case. In Opening of Ballot Box in Third Election Dist. of Forty-First Ward, 328 Pa. 535 (195 A 890) a statute of Pennsylvania provided that when the voter marked with a cross (X) mark at the head of a political party column he was deemed to have voted for all candidates of that party, “except for those offices as to which the voter has indicated a choice for individual candidates of the same or another party or body in any office block, in which case the ballot shall be counted only for the candidates thus individually marked, notwithstanding the fact that the voter has made a mark in the party column. . (Emphasis supplied).

State ex rel. Hammond v. Hatfield, 137 W. Va. 407 (71 SE2d 807) dealt with ballots in a city election with irregular markings of various kinds. With many citations of the law of West Virginia by article, chapter and section, but without giving it even in substance save in one or two instances, the court proceeded to hold some of the ballots valid and some void, concluding that “After all is said and done, the intention of the voter, when ascertainable, is the prime consideration on the question whether the ballot should be counted or discarded, and, if counted, for what candidate or candidates.” With that statement we are in accord, but do not think the intention is ascertainable in the case of an over-vote. In State ex rel. Bumgardner v. Mills, 132 W. Va. 580 (53 SE2d 416), another West Virginia case, it is pointed out in the case of the over-vote the voter had scratched out the name of the party candidate in the column of the party ticket which he had voted, and had, for that office, voted for an opposing individual candidate.

State ex rel. Robeson v. Clark, 28 Wash.2d 276 (182 P2d 68) deals with a statute providing that “If [the elector] desires to vote for all the candidates of any political party he may mark a cross ‘X’ after the name, against the political designation of such party, and shall then be deemed to have voted for all the persons named as candidates of such party. If he desires to vote for any particular candidate of any other political party he may do so by placing after the name of such candidate a mark ‘X'. . . There was no over-voting involved. Where there had been ticket-splitting the voter had voted for the party of his choice and for candidates of another party only for offices for which his party had no candidate.

In Denny v. Pratt, 105 Conn. 256 (135 A 40) a statute provided that: “[Wjhere an elector has made a cross-mark ‘X’ in the circle at the head of any party column, and also made a cross-mark ‘X’ in a voting space at the left of the name of any candidate in any other column on the ballot, such ballot shall be counted for the candidate opposite whose name such cross-mark ‘X’ shall have been placed, and for all the candidates in the party column at the head of which a cross-mark ‘X’ has been placed, except any candidate for an office for which the name of the candidate has been marked in another column. . .” As we see it, our statute provides just the contrary.

Consequently, if this were the only issue raised by the petition the general demurrer would be good and it would have been error to overrule it.

But there are other issues raised which cannot be resolved on demurrer, viz., whether the ballots rejected by the computer as not having been cast for either candidate were, for some reason—perhaps mechanical—improperly rejected, and whether the defective ballots were properly duplicated for counting in accordance with provisions of the Code. These are factual issues, and because they are made the overruling of the demurrer was proper.

Judgment affirmed.

Beil, P. J., Frankum, P. J., Jordan, Hall and Pannell, JJ., concur. Quillian, J., concurs in the judgment. Felton, C. J., and Deen, J., dissent.

1 The decisions of courts in some of the states contain language that would lead to this conclusion. E.g., see McLeod v. Kelly, 304 Mich. 120 (7 NW2d 240); Smith v. Polk, 135 Ohio St. 70 (19 NE2d 281); In Re Opinion of Justices, 80 N. H. 595 (113 A 293); Britt v. Board of Canvassers, 172 N. C. 797 (90 SE 1005). Federal courts have disclaimed jurisdiction in this area. See Application of James, (DC, NY) 241 FSupp. 858; Peterson v. Sears, (DC, Iowa) 238 FSupp. 12. But in none of these cases was the question dealt with in relation to a state election law providing for a recount, as here. See Anno, in 107 ALR 205 and in 68 ALR2d 1320. In Barry v. Cunningham, 279 U. S. 597, 619 (49 SC 452, 73 LE 867), it was asserted that “The Senate, having sole authority under the Constitution to judge of the elections, returns and qualifications of its members, may exercise in its own right the incidental power of compelling the attendance of witnesses without the aid of a statute.” Again, however, the court was not dealing with the question here, but with the power of a Senate Committee inquiring into expenditures made by or in behalf of the candidate in the election to subpoena witnesses, and the power of the court to punish a recalcitrant witness for contempt. In Laxalt v. Cannon, 80 Nev. 588 (397 P2d 466) after a recount had been completed a contest was filed originally in the Supreme Court. See also 26 AmJur2d 151, Elections, § 330.

2 Erasures are not possible in the votomatic process.