Poole v. BOARD OF CANVASSERS

276 N.W.2d 587, 88 Mich. App. 299, 1979 Mich. App. LEXIS 1976
CourtMichigan Court of Appeals
DecidedFebruary 5, 1979
DocketDocket 77-429
StatusPublished
Cited by5 cases

This text of 276 N.W.2d 587 (Poole v. BOARD OF CANVASSERS) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Poole v. BOARD OF CANVASSERS, 276 N.W.2d 587, 88 Mich. App. 299, 1979 Mich. App. LEXIS 1976 (Mich. Ct. App. 1979).

Opinions

M. F. Cavanagh, J.

Plaintiff, James E. Poole, was a certified candidate of the Republican Party for the position of trustee of Canton Township in the November, 1976, general election. As a result of a write-in campaign for three other candidates, a substantial number of voters chose to vote absentee. These votes were tabulated pursuant to MCL 168.792a; MSA 6.1792(1). Plaintiff lost to another candidate by 11 votes.

Due to widespread allegations of errors in tabulating the votes, plaintiff petitioned for a recount of the machine precincts and of the counting-board precinct. In respect to the latter, where absentee ballots were tallied, defendant Wayne County Board of Canvassers determined that, although the ballot boxes containing ballot bags with absentee ballots inserted were properly sealed, the ballot bags were not. It also found that there were 15 more names on the poll list than ballots found in the ballot box;1 the poll list contained no notations to indicate that any absentee ballots had not been returned.2 It subsequently appeared that 15 precinct workers had signed the poll list and voted directly on the machines used to count the absentee ballots. This explanation exactly accounted for the discrepancy between the poll list and the number of ballots. Nevertheless, defendant denied plaintiff’s request for a recount based on its reading of MCL 168.871(1); MSA 6.1871(1), and Ryan v Wayne County Board of Canvassers, 396 Mich 213;

[302]*302240 NW2d 236 (1976). Plaintiff petitioned for a writ of mandamus to compel a recount; the trial court upheld the defendant board’s decision and denied the petition. Plaintiff appeals from that denial.

MCL 168.871(1); MSA 6.1871(1), establishes several prerequisites to a recount of paper ballots. The Michigan Supreme Court in Ryan, supra, considered the terms of the section in the context of a recount of absentee ballots tallied in an absent voter counting place.3 In addition to reaffirming their mandatory nature, the Court summarized the procedures as follows: a recount will be permitted if (1) both the ballot bag and ballot box are sealed with a seal of record; or, (2) either the ballot box or ballot bag is so sealed and the number of names on the poll list corresponds with the number of ballots inside. Ryan, supra, p 218. In the instant case, only the ballot box was sealed with a seal of record. The number of names on the poll list, however, did not correspond with the number of ballots.

Despite the explicit language in Ryan, supra, and virtually identical rules for recounts promulgated by the State Board of Canvassers,4 plaintiff argues that the Legislature intended to exempt recounts of absentee ballots tallied in counting [303]*303board precincts from the requirements of MCL 168.871(1); MSA 6.1871(1). He relies most heavily on the language contained in the last paragraph of MCL 168.871(2)(c); MSA 6.1871(2)(c):

"Nothing in this section shall prevent the recounting of absent voters ballots tallied in a counting board precinct or in a precinct in which one or more machines are recountable if the ballots are securely packaged and sealed.”

Plaintiff argues that this section precludes the mandatory application of the recount requirements for paper ballots. The only precaution which need be observed to allow the recount of absentee ballots apparently is the secure packaging and sealing of the ballots, either in the ballot box or ballot bag. In the instant case, the ballots were found to be securely sealed within the ballot box, and thus, it is argued, may be recounted. Plaintiff further points to other provisions of the election laws that indicate legislative intent to tolerate possible discrepancies between the number of names on the poll list and the number of absentee ballots returned and that only require processing of absentee ballots in "as nearly as possible the same manner” as paper ballots.5 Consequently, variations from the directives of MCL [304]*304168.871(1); MSA 6.1871(1), should not bar a recount in the case at bar.

Where ambiguities exist in a statute or a statute is susceptible of two or more meanings, courts may construe the statute in a reasonable fashion considering the purpose of the statute and the object to be accomplished. King v Director of the Midland County Department of Social Services, 73 Mich App 253, 258; 251 NW2d 270 (1977), Royal Oak School District v Schulman, 68 Mich App 589; 243 NW2d 673 (1976).

We are not persuaded by plaintiffs argument that the Legislature did not intend to subject recounts of absentee ballots to the same strictures placed on recounts of paper ballots.

MCL 168.792a; MSA 6.1792(1), cited by plaintiff to support his argument that the Legislature intended different procedures to apply to recounts of absentee ballots, also states that all laws applicable to paper ballot precincts apply equally to absentee ballots. Furthermore, in 1970 the Legislature amended the provisions concerning the processing of already-tallied absentee votes to read:

"Voted absent voters’ ballots shall be placed in a ballot box and the ballot bag and ballot box shall be sealed in the manner provided by law for paper ballot precincts.” MCL 168.792a(7); MSA 6.1792(1X7).

Obviously, the Legislature intended that the same precautions be taken to preserve the integrity of voted absentee ballots and paper ballots alike. This directive and the more general language in MCL 168.792a; MSA 6.1792(1), together sweep broadly enough to include the recount requirements of MCL 168.871(1); MSA 6.1871(1), including the matching of poll list to number of ballots, within those provisions of the general election law appli[305]*305cable to absentee ballots tallied in a counting board precinct.

To adopt the construction of the statute urged by plaintiff would only create greater uncertainty in recounts, a result certainly not intended by the Legislature. Where either the ballot bag or ballot box is not properly sealed, there is a risk that some discrepancy in the number of ballots cast may exist. The poll list, in such cases, provides a source of independent verification to insure that no ballots have been inserted or withdrawn prior to recount. Without the evidence provided by the list, there is no method of assuring, in a recount where the ballot bag or box have not been correctly sealed, that the ballots will present "the identical verity they bore when cast”. Ryan, supra, p 217.

Plaintiffs reliance on the last paragraph of MCL 168.871(2); MSA 6.1871(2), is also misplaced. This section, including the language upon which plaintiff relies, was added in its entirety to the text of the act in 1965.6 Its evident purpose was to deline[306]*306ate, for the first time, the circumstances under which a recount of a machine would be permitted or prohibited. At the same time, it was intended to clarify the situations where a recount of absentee ballots tallied on a voting machine was permissible, even though the machine itself, by the terms of the section, could not be recounted.

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Poole v. BOARD OF CANVASSERS
276 N.W.2d 587 (Michigan Court of Appeals, 1979)

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Bluebook (online)
276 N.W.2d 587, 88 Mich. App. 299, 1979 Mich. App. LEXIS 1976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/poole-v-board-of-canvassers-michctapp-1979.