Reese v. Dempsey

153 P.2d 127, 48 N.M. 485

Opinions

MABRY, Justice.

This is an original proceeding based upon petition of Informant, order to show cause and return thereto, in which action Informant George L. Reese, a candidate in the 1944 Democratic primary election for the nomination of Justice of the Supreme Court seeks to compel Respondents, the State Canvassing Board, to perform certain acts in connection with its alleged statutory duties as a canvassing board— as well as duties required of it by a writ of mandamus which heretofore issued and to he hereinafter noticed—which acts and duties,- if performed, it is alleged would show him to have received a plurality of the votes as between him, Eugene D. Lujan, the candidate with the next highest number of votes, and Martin A. Threet, and he would therefore be entitled to the certificate of nomination.

Informant had theretofore been declared the nominee of the party and had earlier, and on October 3rd, been issued the certificate of nomination by the Board after its consideration of the matter of purging, or deducting, from each candidate’s total vote certain votes cast by unregistered voters in certain precincts of the state. See Reese v. Dempsey et al., 48 N.M. 417, 152 P.2d 157, recently decided, an original proceeding in mandamus out of which this present action grew.

After the writ of mandamus in Reese v. Dempsey et al., supra, was issued and made absolute, the State Canvassing Board to whom it was directed, met and certified to the several district judges of the counties wherein questioned, or unregistered, votes appeared to the Board to have been cast and included by the precinct election officials in their returns, a list of such unregistered voters; and thereafter proceedings were had in such district courts as is provided by 1941 Comp.Sec. 56-349 (6); and the results of such purging of the votes of such voters as were found by the district judges to be unregistered and not entitled to vote in said primary election, were then certified to Respondents, the Board. Deductions where then by the Board made, from “each candidate for whom such ballots of unregistered voters were cast from the totals shown by the court’s findings to have been cast in favor of such candidates.” 1941 Comp. Sec. 56-349(6), supra. These deductions, having been made, some from the vote of Reese and some from that of Lujan, overcame Lujan’s lead of seventy-seven votes and resulted in a net gain for Informant of seventy-nine over the number previously shown and calculated by the Board prior to such proceedings, which gave him a plurality of two votes, and Informant was issued the certificate of nomination. Then, based upon its further consideration and canvass of the returns from the several counties of the state as amended by certificates of certain county canvassing boards of the state showing results of the recounts invoked by both Informant and his opponent Eugene D. Lujan, in several precincts • of the State, and acting under the provisions of 1941 Comp.Sec. 56-826, as amended by Chapter 86, § 9, of the Laws of 1943, Lujan, having a plurality of 35 votes, was given the certificate of nomination, the one previously issued to Reese being can-celled.

The particular question here presented is whether the Board performed its full duty, and showed complete obedience to the writ of mandamus which heretofore issued in this suit. The present dispute now arises over the matter of throwing out the entire vote of some six precincts, involving some five-hundred votes, because some forty-three of such voters were unregistered and were not entitled to vote. It appears that there were some six precincts, all in Bernalillo and Sandoval Counties, where, because the ballot numbers had not been set down opposite the names of the voters in the poll book and on the official registration affidavits, as required by law, the district judge before whom such question arose could not determine for whom the unregistered and illegal voters in each of these precincts had voted. As to these precincts, the district judge, acting in obedience to the mandate of the statute (Sec. 56-349(6), so certified to Respondents its inability to determine for whom such unregistered voters had voted. It is not the contention that the district judge, in this connection, did not comply with the statute. The charge of error is brought against the Board only. The pertinent portion of the controlling statute as it applies to the immediate question, reads:

“Provided, further, that whenever it appears that the election officials have failed and neglected to set down opposite the names of the voters in the poll book and the official registration affidavits the numbers of the ballots cast by the voters as herein provided, and it further appears that unregistered votes have been cast in such precinct, then and in such event, it shall be the duty of the canvassing board to ignore and fail to include in its canvass the entire election returns from such precinct or election division. * * * ” Sec. 56-349(6).

■ It was found by the district judge that the omission to so set down the ballot numbers was not the result of fraud or intentional negligence with intention to procure the rejection of the vote of any such precincts, but was wholly unintentional.

Informant Reese contends that all the votes of each and all of the six precincts so involved should have been thrown out, ignored, and not included in the Board’s canvass of the entire election returns from such precincts or election districts for such office, and that had this been done he would have had a plurality of some Two-hundred eighty-six votes over his opponent, Lujan. The Board declined to so ignore and refuse to include in its canvass the total vote of such precincts, taking the position that, under the law as interpreted by Informant himself at the time he applied for the writ of mandamus involved in the original suit, and as shown by the writ of mandamus, they would not be entitled to so disfranchise so large a number of voters when it could not “change the result of the Supreme Court race.”

In interpreting this section of the statute we have heretofore held (Miera v. Martinez, 48 N.M. 30, 145 P.2d 487, 492) that the parenthetical language “Provided said unregistered voters are sufficient in number to change the results,” which quoted language appears in this Section 6 before the proviso first above mentioned and which has reference to cases where the ballots of unregistered voters could be identified, must be read into the section as it would apply to such a situation as is now before us, viz., where the ballots of the unregistered voters of any precinct cannot be identified because of failure to set down the ballot numbers opposite the names of the voters in the poll book, etc.; that it is necessary to so interpret in order not to charge the legislature with an intention to create a situation where “the voters of a precinct are to be disfranchised if their election officials have been honest, though negligent; but, not so, if they have been dishonest and corrupt.” To quote more fully from Miera v. Martinez, supra :

“Such is the course of procedure outlined in the statute where the ballots of unregistered voters are easily identifiable by reason of compliance with the statutory requirement for placing the number of the voter’s ballot opposite his name in the poll books. The matter is not so simple, however, where either through negligence or design this statutory mandate is not observed. Literally read and given effect, where the election officials through mere negligence have failed to set down opposite the voter’s name in the poll books the number of the ballot cast by him, and unregistered votes have been cast, the election officials must ‘ignore and fail to include in its canvass the entire election returns from such precinct’; whereas, if the court finds that the omission so to preserve and identify the number of the ballot cast by each voter was ‘with intent to procure the rejection of the vote of such precinct’, then the court must endeavor to determine from evidence how the unregistered voters cast their ballots, eliminating them from the returns, of course, in the manner hereinabove set forth; and, if it cannot so determine, then a method of elimination by deducting the unregistered votes ‘from the several candidates in proportion to the number of legal votes received by such candidates’ is provided.

“We say such is the meaning of the statute—'literally read and given effect’— because the parenthetical condition accompanying the first proviso, viz, that the recount is to be sought by the canvassing board only when ‘said unregistered voters are sufficient in number to change the result,’ is not repeated in the statement of the second proviso. Hence, except as it is to be found there by interpretation ás a matter of true legislative intent, as few as two unregistered votes cast in the largest precinct in a county would compel the board to ‘ignore and fail to include in its canvass the entire election returns from such precinct’, even though they could not possibly change the result as to a single office.

“It seems quite obvious to us that the legislature intended the condition to apply in the one case as well as in the other and that it runs through and qualifies the right to demand a recount by reason of the casting of ballots by unregistered voters, whether or not the ballot numbers are placed opposite the names of such voters. In neither case does the right to request a recount exist in the canvassing board because of the casting of balldts by unregistered voters unless ‘said unregistered voters are sufficient in number to change the results’. If the condition does not modify the provision for recount in cases where the number of the ballot cast is not preserved in the method directed, then we have this absurd result: Where the omission of the election officials to set down in the poll books opposite the name of the voter the number of the ballot cast by him is merely negligent, but not fraudulent, the vote of the entire precinct is excluded from the canvass; whereas, if said omission is found to be fraudulent in the respect indicated, then the vote, determined in the manner specified, is to be included.

“In other words, the voters of a precinct are to be disfranchised if their election officials have been honest, though negligent; but, not so, if they have been dishonest and corrupt. The contestee invokes an application of the statute according to its literal reading, ignoring the condition preceding it in the statute as properly qualifying that meaning. The district court at the recount proceeding thus construed it. We decline to hold the legislature so intended. At least, we must have a language rendering such a construction inescapable before we will so conclude. The language of this sub-paragraph § 56-349 is not of that kind.”

The Respondents, as the canvassing board, say they were interpreting the act as this court, in a unanimous opinion written by the Chief Justice, now a member of the Board, itself interpreted it and as they, Respondents, understood the law to be; that they were called upon, after they had examined and properly deducted all of the votes of unregistered voters certified to them by the several district judges, to then throw out the entire vote (some five-hundred in all) of these questioned six precincts only if, and when, it could be made to appear that it would be “sufficient to change the result of said supreme court race”-—quoting from the writ of mandamus itself. So, finding at the time, and when they had made the appropriate deductions from the respective candidates’ vote, that Informant Reese had a plurality of two votes and was entitled to receive the certificate of nomination on the basis of such returns, they declined to do the useless thing, to throw out and disregard the vote of all the electors, where, out of a total of some five-hundred, only some forty-three had been shown to be unregistered; and when it would not change the "result” of the race in question.

The “result” they were called upon by the writ to deal with, say the Respondents, was not a speculative one, a result that might follow either a recount or a contest, but the result which they, as a canvassing board, were then and there required to determine. Sec. 56-826, as amended. That to add to a candidate’s plurality merely by this wholesale disfranchisement of several hundred voters when it is conceded that only some eight percent of the whole vote of such precincts was illegal, they say, was not required of them and was not within the contemplation of the writ, or the law. We agree with that view.

It is not enough to say, as Informant Reese now contends, that he was entitled to have his total vote so augmented so that in event, upon recount or contest (neither of which remedies could be invoked until the Canvassing Board had first certified a nominee and neither of which was certain to follow), he would need such vote to overcome some wholly speculative result of such recount or contest; that they were not required to speculate as to whether there would be further proceedings, or whether, if such were had, one or the other of the candidates would profit thereby, to thus invoke the extremely penal provision of the statute.

In arriving at the meaning of the term “change the result” and going to the question of interpretation which Informant, himself, placed upon the statute at the time, it is well to notice the language of the writ which issued out of this court upon the petition of Informant and which writ he, or his counsel, prepared. The writ, among other things, contains the following direction and command, to-wit:

“ * * * and if it should appear from the certified findings of any Court or Courts to which such referrals may be made that persons other than registered Democrats voted in said primary election and that it cannot be determined for whom such persons voted by reason of the failure of the election officials to record the ballot numbers of the voters in the poll books or on the original affidavits of registration, and if it further appear from the official returns, as finally corrected or amended, that the total number of votes of such persons so voting in any such precinct or precincts is sufficient to change the result of said Supreme Court race, then it is your duty and obligation to disregard and refuse to canvass the returns from any and all such precincts or election districts, * * * ”. (Emphasis ours.)

It would thus appear that Informant, in preparing the writ secured from this court upon his petition, and the Respondents, as a canvassing board, and before any such questions arose in light of subsequent events, all then interpreted the statute in question as requiring that the entire vote of the precincts in question where it could not be determined how the unregistered voters voted should be thrown out only in the event that “the total number of votes of such persons so voting in any such precinct or precincts is sufficient to change the result of said Supreme Court race.” The writ, substantially following the statute, after providing for the ordinary purging and deductions where ballot numbers have been preserved opposite the names of the voters, clearly contemplates that such deductions are first to be made. As to the next step, and that one concerned with throwing out the votes of entire precincts, the writ reads:

. ‘-‘And if it further appears from the official returns, as finally corrected or amend-

It is not difficult to determine from the 'language of the writ itself that Respondents, as a canvassing board, were not required to take the drastic action which now, in the light of subsequent events, it is revealed, might be helpful to Informant, when it could not have changed “the result of said Supreme Court race” at the time of the canvass and the issuance of the certificate to Informant.

Respondents urge upon us a consideration of the question whether Informant ever urged upon the Board that they disregard the six precincts in question for the reason it would “change the result.” They argue that his present contention that it would change the result is an afterthought. That is to say, it was the contention of Informant when he appeared before the Board at the close of the canvass and when his certificate had been prepared, signed, and laid upon the table for him that the Board should, by the rejection of the votes of such precincts show his total majority over Lujan as would then be reflected. Our attention is called to a portion of Informant’s statement read into the record at that time:

■ fit is my contention that in arriving at the result of the election in regard to ihe number or the majority which the returns show to have been received, the returns from the boxes mentioned in these counties should be disregarded.” (Emphasis ours.)

However, the point of whether Informant is now claiming something not presented to or claimed by him in his appearance before the Board we need not decide since another and controlling question determines the dispute.

We should have no difficulty in defining “result” as here used. It is:

“That which results, the conclusion or end to which any course or condition of thing leads, or which is obtained by any process or operation; consequence or effect.” Webster’s International Dictionary.

“If our proposals once again were heard, we should compel them to a quick result.” Milton.

The result contemplated by the statute, as the majority view it, is not a determination of who got exactly how many votes after all unregistered votes possible to be ascertained and deducted are accounted for; but it is controlled by answer to the query: “Who has the plurality of votes and is entitled to the certificate?” Then, if other votes which the statute says must be deducted even if it means the denial of the elective franchise right to hundreds of voters, are challenged, it must first be shown before we would invoke such a harsh and penalizing statute that to do so would “change the result” of the race at the time the Canvassing Board would be first called upon to declare the result and issue its certificate.

As to the difference between counting, tabulating, or returning, and declaring the result of an election, see Pritchard et al. v. State ex rel. Barrs, 111 Fla. 122, 149 So. 58, 59, where it is said:

“Election inspectors, as such, have ho power to declare the result of an election, even in or for the particular precinct for which they act. Their sole duty is to count, tally, tabulate, and return the votes as they find them to have been cast. The declaration of the result is a duty confided to the canvassing board to which the election returns are required to be sent for the purpose of being canvassed and there having the result declared and announced.”

This court, itself, spoke pretty clearly on the subject in Miera v. Martinez, supra, where we said:

“It follows from the views expressed that the only authority residing in the County Canvassing Board to initiate a recount before the district court on account of the casting of unregistered votes is subject to the indispensable condition that 'said unregistered voters are sufficient in number to change the results’. The official returns from the Rodarte Precinct show 114 votes cast for contestant and 62 votes cast for contestee as found by the trial court in the contest. Since contestee’s majority in the county as certified by the County Canvassing Board, without the returns from the Rodarte Precinct, was only 16 and contestant’s majority in this precinct was 52, it becomes obvious that the total number of unregistered votes cast, if all were in truth unregistered, could not possibly affect the result even if each of them be deducted from contestant’s majority otherwise existing.” (Emphasis ours.)

Reluctance of the Courts to permit a wholesale disfranchisement of qualified electors through no fault of their own is reflected by this Court’s recent decisions in the cases of Trujillo v. Suazo, 48 N.M. 57, 145 P.2d 871, and Valdez v. Herrera, 48 N.M. 45, 145 P.2d 864. Where any reasonable construction of the statute can be found which will avoid such a result, the Courts should and will favor it.

In any event, and if we were not satisfied that the writ carried as full and complete a mandate as the statute itself, as we are, we would be constrained to say Respondents would be entitled, at this late hour and when neither Informant nor his opponent could profit by a longer delay and when the names of the party candidates must be in the hands of the printers perhaps within two or three days of the date (October 21), upon which this case was submitted and argued, to look to, and rely exclusively upon, the writ for . the answer to the question presented. The writ will, under the circumstances at least, be looked to as distinguished from the broader query whether Respondents exactly complied with the statute, which, under some circumstances at least, lodges with them some discretion. It was because of the urgency of the situation in respect to the time element that we announced our decision soon after argument of the case and prior to the writing of the opinion therein.

We do not overlook the able, although as it appears to the majority unpersuasive, additional argument of counsel for Informant. This is to the effect that even if it could be said that Respondents were not called upon to make a complete canvass and to declare the result to be shown after the entire votes of the six precincts had been thrown out because it would appear before this was to be done that Informant already had a plurality of two over his nearest opponent, Lujan, yet, the entire vote of these precincts should be disregarded and not canvassed when, thereafter, and upon recount, it appears that it would then have “changed the result.” We say, simply, that the Respondents, in canvassing and at the time they were called upon to determine whether the result would be changed by disfranchising some five-hundred voters, when Informant then had more votes than his opponent and was entitled to the certificate of nomination, acted within the direction and command of the writ certainly; and the statute as well, as we interpret it. And, when we say that the result contemplated is the result appearing at the time of the canvass made in obedience to the writ and not any result to be shown after the recount proceedings were had, it necessarily follows that the command of the writ was obeyed.

Other interesting points are raised and relied upon by Respondents in their return and brief, but none of these need be noticed. Likewise, a somewhat different question touching the matter of the vote in one Taos County precinct, in which nine votes are involved, need not be noticed in view of our disposition of the case of the vote in the six precincts of Bernalillo and Sandoval Counties, which is decisive.

The order to show cause should be discharged and the petition dismissed. And, it is so ordered.

WM. J. BARKER and ALBERT R. KOOL, District Judges, concur.