Huntley v. Timm

435 N.W.2d 683, 1989 N.D. LEXIS 35, 1989 WL 9823
CourtNorth Dakota Supreme Court
DecidedFebruary 8, 1989
DocketCiv. No. 890017
StatusPublished
Cited by2 cases

This text of 435 N.W.2d 683 (Huntley v. Timm) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Huntley v. Timm, 435 N.W.2d 683, 1989 N.D. LEXIS 35, 1989 WL 9823 (N.D. 1989).

Opinions

ERICKSTAD, Chief Justice.

Thomas R. Huntley appeals from a district court judgment dismissing, on its merits, Huntley’s contest of Mike Timm’s election to the House of Representatives for the Fifth Legislative District in Minot. We affirm.

The facts of this case are undisputed. Huntley and Timm were candidates for the legislative seat during the November 8, 1988 election. The Ward County Canvassing Board determined that Timm had been elected by a three vote margin over Huntley. The State Canvassing Board and the Secretary of State ordered a recount which resulted in the Ward County Recount Board certifying Timm the winner by a final tally of 3,600 votes for Timm and 3,599 votes for Huntley.

In dispute on this appeal are five ballots which were excluded by the recount board. [684]*684Each of the five excluded ballots contained the official election stamp bearing the mark of the appropriate precinct but none of them contained the initials of an election official, and for that reason they were excluded during the recount. Of the five excluded ballots, four votes were cast for Huntley and one vote was cast for Timm.

The sole issue raised on appeal is whether the recount board erred in refusing to count the five ballots which were not initialed by an election official. Huntley asserts that the ballots should have been counted, because under current law an un-initialed ballot is not invalid if it has been properly stamped. We disagree.

Section 16.1-13-22, N.D.C.C., provides:

“Failure to stamp and initial a ballot or ballot card in the proper place does not . invalidate such ballot or ballot card, but a complete failure to stamp and initial a ballot or ballot card does invalidate the ballot or ballot card.”

That section, enacted in 1981, amended the language of Section 16-12-04, N.D.C.C., which provided:

“Failure to stamp and initial a ballot in the proper place on the ballot shall not invalidate such ballot but a failure to stamp and initial a ballot at any place on a ballot shall invalidate the ballot.”

Under the amended 1981 version of the provision the word failure is prefaced by the term “complete” and the phrase “at any place on a ballot” has been deleted. Huntley asserts that the Legislature, in making this change, intended that a ballot would be invalid only if there was a complete failure to both stamp and initial it. Huntley asserts that ballots which have been stamped but not initialed, as occurred on the five excluded ballots in this case, should not be invalidated because there has not been a “complete” failure to stamp and initial them. Timm asserts that the Legislature, in amending the provision, intended to codify this court’s rationale in Morgan v. Hatch, 274 N.W.2d 563 (N.D.1979), that a ballot is valid if there has been substantial compliance with the statutory requirement that it be both stamped and initialed. Timm asserts that the failure to either stamp or initial a ballot constitutes a complete failure to meet the endorsement requirements under the statute and thereby invalidates the ballot.

The interpretation of a statute is a question of law fully reviewable by this court. Rocky Mountain Oil & Gas Assoc. v. Conrad, 405 N.W.2d 279 (N.D.1987). The primary objective in interpreting a statute is to ascertain and give meaning to the intent of the Legislature. Amerada Hess Corp. v. Conrad, 410 N.W.2d 124 (N.D.1987). The trial court, having examined the legislative history to the enactment of Section 16.1-13-22, N.D.C.C., stated that it “finds nothing which would indicate the intent of the Legislature in making the change.” Neither party on appeal nor this court has found any helpful legislative history regarding the relevant amendment.

In Miller v. Schallern, 8 N.D. 395, 79 N.W. 865 (1899), the court held that a ballot which contained an official stamp but did not contain an election official’s initials was invalid and could not be counted. The court in that case explained the rationale underlying the requirement that all official ballots must be both stamped and initialed as a prerequisite to counting them:

“[T]he legislature of this state, following the lead of many older states, where the matter had received long and conscientious consideration, has seen fit to adopt what is known as the ‘Australian Method’ of regulating the elective franchise. As we have said, the characteristic and distinctive feature of this system is an official ballot. The state charges itself with the responsibility of furnishing the elector with such ballot, and in doing so announces to him in explicit terms that no other ballot can be placed in the ballot box or counted by the canvassers. In furtherance of this policy laws have been passed which are designed to place in the hands of every voter a genuine official ballot.
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“The capital purpose of these statutes, manifestly, is to provide the voter with an official ballot, and to enable him to make sure that he gets such ballot. Pro[685]*685vision is made, not only that an official shall deliver such ballot to the voter, but, with the same purpose in view, the law requires the official to indorse the ballot so delivered, not merely with an official stamp, with which he is provided, but with his own initials as well. This legislation, therefore, places it within the power of every voter to determine whether a ballot which is handed to him by a precinct officer is or is not an official ballot. If it is not stamped and initialed as the statute directs, it is not an official ballot, and hence cannot lawfully be voted, or, if voted, cannot be lawfully count-ed_ The state has therefore safeguarded the privilege of voting and the purity of elections.” Miller, supra, 79 N.W. at 867-868.

The requirement that an official ballot must be both stamped and initialed was reaffirmed in Weber v. O’Connell, 55 N.D. 867, 215 N.W. 539 (1927), and in the subsequent case of Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134 (1937). The rationale underlying Weber and Torkelson was followed by this court in Kuhn v. Beede, 249 N.W.2d 230 (N.D.1976), a case in which this court held that absent voters’ ballots failing to carry an endorsement of both an official stamp and initials are void and cannot be counted.

In Morgan v. Hatch, 274 N.W.2d 563 (N.D.1979), this court held that substantial compliance, rather than strict and literal compliance, with the endorsement requirement was sufficient to render a ballot valid and countable if that compliance effectuated the purpose of the ballot statute. However, in so holding, this court recognized that a failure to either stamp or initial a ballot constitutes noncompliance with the endorsement provisions resulting in an invalid ballot:

“[T]he Legislature has expressly stated its intent to render void any ballot not containing the proper endorsements, that is, the stamp of the official stamp and initials of an inspector or judge of election.

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Bluebook (online)
435 N.W.2d 683, 1989 N.D. LEXIS 35, 1989 WL 9823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huntley-v-timm-nd-1989.