[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[J. Evidence]
[Â§ 37. Ballots]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1065-1074]
 
                               CHAPTER 9
 
                           Election Contests
 
                              J. EVIDENCE
 
Sec. 37. Ballots

Ambiguous Ballots

Sec. 37.1 In determining voter intention, an elections committee should 
    distinguish between ambiguous ballots, which permit examination of 
    the circumstantial evidence surrounding an election to determine 
    voter intent, and ballots mistakenly marked for two parties, as to 
    which voter intent would be a matter of conjecture.

    In the 1934 Connecticut election contest of Fox v Higgins 
(Sec. 47.8, infra), the ``Australian ballot,'' on which voters could 
vote a ``straight ticket'' by marking an ``X'' in the circle above a 
party column, was employed as the official ballot. State law voided 
ballots marked with an ``X'' in more than one party circle. By 
inadvertence, the committee found, the contestee had caused the ballots 
to be printed with the party name ``Wet Party'' near the question on 
repeal of the 18th amendment. The contestee had been charged with the 
responsibility of preparing the ballots, being the Connecticut 
secretary of state at the time. The effect of the juxtaposition was 
that, as several witnesses testified, they inadvertently voted for more 
than one political party when they intended to vote their regular party 
affiliation and for repeal, and had mistakenly voted for the ``Wet 
Party,'' a local political entity.

[[Page 1066]]

    The committee found, however, that the question of the intention of 
the voters of the rejected ballots was a matter of conjecture and that 
the ballots were rightly rejected as this ``was not the case of an 
ambiguous or doubtful ballot, where the committee can look at the 
circumstances surrounding the election explaining the ballots.''

Ballots as Best Evidence

Sec. 37.2 In an election contest, the best evidence as to the number of 
    ballots cast, and for whom they were cast, is the ballots 
    themselves, and not tally sheets or check lists, provided the 
    integrity of the ballot box has been pre-served and there is no 
    evidence that the boxes have been tampered with or molested.

    In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest, 
the issue to be decided was whether the tally sheet and check list of a 
certain precinct were to be considered the best evidence of the vote. 
The minority of the Committee on Elections claimed that the number of 
ballots cast as determined on recount, had been successfully impeached 
by contrary evidence of check lists, tally sheets, and sworn 
depositions of voters. But the committee did not accept such tally 
sheets and check lists as the best evidence of the number of votes cast 
for the parties in the precinct, and accepted the recount of the 
ballots in that precinct as the best evidence thereof.

Method of Proportionate Deduction

Sec. 37.3 Where it is impossible to determine for which candidate 
    illegal absentee votes were cast, the proportionate deduction rule 
    for deducting such votes is followed.

    In the 1961 Indiana investigation of the right of Roush or Chambers 
to a seat (Sec. 59.1, infra), the Committee on Elections found that in 
one precinct 42 absentee ballots had been illegally procured and cast, 
though there was no proof as to the person for whom they were cast. The 
committee first determined the total votes cast for each candidate in 
the precinct (615 for Mr. Roush and 352 for Mr. Chambers). The 
committee then determined the number of absentee ballots cast in the 
precinct for Mr. Roush, 20, and for Mr. Chambers, 42. Of the 62 total 
absentee ballots cast in the precinct, then, 68 percent were cast for 
Mr. Chambers and 32 percent were cast for Mr. Roush. Applying these 
percentages to the 42 votes

[[Page 1067]]

to be deducted, the subcommittee deducted 29 votes from Mr. Chambers' 
total and 13 votes from Mr. Roush's total. In following this procedure, 
the committee report cited precedents of the House in which this 
proportionate deduction method had been followed: Oliver v Hale 
(Sec. 57.3, infra); Macy v Greenwood (Sec. 56.4, infra); Wickersham v 
Sulzer and Grigsby (6 Cannon's Precedents Sec. 113); Chandler v Bloom 
(6 Cannon's Precedents Sec. 160); Bailey v Walters (6 Cannon's 
Precedents Sec. 166); and Paul v Harrison (6 Cannon's Precedents 
Sec. 158).

Sec. 37.4 Where absentee ballots should be rejected due to invalid 
    envelopes and applications filed by voters, but it cannot be 
    determined to which ballots the invalid material relates, an 
    elections committee will apply the method of proportionate 
    deduction as an equitable method of deducting votes from the totals 
    of each candidate.

    In the Maine contested election case of Oliver v Hale (Sec. 57.3, 
infra), arising from the Sept. 10, 1956, election, the committee cited 
the contested election case of Macy v Greenwood (Sec. 56.4, infra), as 
precedent for an equitable method of deducting 109 absentee ballots 
from the totals of the contestant and contestee. This method 
presupposed that each candidate received invalid ballots in the same 
proportion that he received his total vote in the election precinct. 
Thus, by dividing the number of absentee votes received by a candidate 
in a precinct by the total number of absentee votes cast in that 
precinct, and by then multiplying the fraction thereby obtained by the 
number of absentee votes rejected in the precinct, the committee 
determined that 86 votes should be deducted from the contestee's total 
and 23 votes from the contestant's total.

Sec. 37.5 When it cannot be ascertained for which candidate the illegal 
    votes were cast, the votes will be deducted proportionally from 
    both candidates according to the entire vote returned for each 
    candidate.

    In the New York election case of Macy v Greenwood (Sec. 56.4, 
infra), the contestant, who had lost by only 135 votes, alleged that 
932 voters were not qualified as to residence because they had entered 
the district and voted although they had not been ``for four months a 
resident of the county'' as required by state law.

[[Page 1068]]

Although the committee found additional basis for disregarding the 
contestant's challenge and recommending dismissal of the contest, the 
committee report specifically stated the ``general rule'' that ``had it 
found the 932 votes illegally cast, the votes presumably would be 
deducted proportionally from both candidates, according to the entire 
vote returned for each.'' The House subsequently dismissed the contest.

Interpretations of ``Straight Ticket'' Votes

Sec. 37.6 Where state law permits ``straight ticket'' voting by a mark 
    in the appropriate circle, and also permits voting for only part of 
    a ticket, a candidate for Representative is not entitled to ballots 
    cast for his party's Presidential nominee but not marked for 
    Representative.

    In Ellis v Thurston (Sec. 47.6, infra), a 1934 Iowa contest, the 
contestant claimed all ballots that were cast for the Presidential 
nominee of his party, but which indicated no choice for Representative. 
The Committee on Elections ruled that voters in marking the squares 
opposite the Presidential and Vice Presidential candidates did not 
intend to vote a straight party ticket, as the statute provided that a 
cross be placed in a separate party circle in order to cast such a 
vote. The committee dismissed contestant's claim that ``the intent of 
the voter should be given effect regardless of local Iowa laws,'' and 
refused to assume ``that because voters voted for Roosevelt, or Hoover, 
who headed the respective tickets, that they intended to vote also for 
the candidates for Congress toward whom the voters indicated their 
neutrality.''

Sec. 37.7 In an election involving the use of ``straight ticket'' 
    ballots, a candidate is entitled to the number of votes equal to 
    the total number of ``straight ticket'' ballots cast for his party 
    and on which his name appears undisturbed.

    In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois case 
involving the Australian (or so-called ``straight ticket'') balloting 
system, the issue was whether the defeated candidate, a Democrat, was 
entitled to be credited with the same number of votes cast for his 
party by the ``straight ticket'' voters.
    The majority of the Committee on Elections found in favor of 
Democrat Kunz, notwithstanding the contention of the minority

[[Page 1069]]

that a number of straight Democratic ballots had been marked for his 
Republican opponent, Granata. The majority took the view that Mr. Kunz 
was entitled to every ``straight ticket'' ballot on which his name 
appeared undisturbed along with the names of the other Democratic 
candidates. The fact that the contestant did not receive the ``straight 
ticket'' vote in many of the precincts was considered conclusive 
evidence of fraud or gross irregularity, justifying a recount.
    When the ``straight ticket'' vote was given contestant, he overcame 
the contestee's apparent majority, and was eventually seated as the 
Representative from his district.

Sec. 37.8 An elections committee will not presume ballots marked for 
    contestant's party Presidential nominee to have been intended as 
    ``straight ticket'' votes where state law provided a separate 
    circle for casting ``straight ticket'' ballots.

    In the 1934 Iowa contested election of Ellis v Thurston (Sec. 47.6, 
infra), the committee dismissed the contestant's claim that ``the 
intent of the voter should be given effect regardless of local Iowa 
laws,'' holding instead that ``to presume now that the voters intended 
to vote otherwise than as expressed by their marked ballots would be to 
indulge in a presumption not justified in law or facts.'' The 
contestant had argued that the voters, in marking the squares opposite 
the Presidential and Vice Presidential candidates, intended to vote a 
straight party ticket, although the statute provided that a cross be 
placed in the party circle in order to cast such a vote. The committee 
ruled otherwise, however.

Effect of Writing in Name of Listed Candidate

Sec. 37.9 Where voters write in the name of a candidate whose name is 
    already printed on the ballot, but do not put an ``X'' in the box 
    on the ballot opposite the name, the ballot may still be valid.

    In the 1959 Arkansas investigation of the right of Dale Alford to a 
seat in the House (Sec. 58.1, infra), the Committee on Elections 
validated two ballots on which the voter had written in the name of the 
candidate, but had not marked an ``X'' in the box opposite his printed 
name. In the absence of an Arkansas case on point, the committee cited 
a Pennsylvania case as authority.

[[Page 1070]]

Using Other Than Specified Mark

Sec. 37.10 Where the voter places some mark other than an ``X'' in the 
    box opposite a candidate's name on a ballot, the ballot may still 
    be valid if the intention of the voter is clear.

    In the 1959 Arkansas investigation of the right of Dale Alford to a 
seat in the House (Sec. 58.1, infra), the Committee on Elections 
validated 42 of 43 ballots on which the voters had placed some mark 
other than an ``X'' or check in the square opposite the name of the 
candidate, as the intention of the voter was clear.

Sec. 37.11 Where the name of a candidate has been written in and the 
    box opposite his name checked, rather than ``Xed'' as required, the 
    ballot may nevertheless be held valid.

    In the 1959 Arkansas investigation of the right of Dale Alford to a 
seat in the House (Sec. 58.1, infra), the elections committee found the 
intention of the voters was clear and ruled valid 236 ballots in which 
the voters had written in the name of a write-in candidate and placed a 
check in the box on the ballot opposite his name, instead of placing an 
``X'' in the box.

Incorrect or Wrong Name for Write-in Candidate

Sec. 37.12 Although a misspelling in the name of a write-in candidate 
    on a ballot does not necessarily invalidate it, where the name 
    provided is wrong or so badly spelled as to produce confusion as to 
    the intent of the voter, the ballot should be rejected.

    In the 1959 Arkansas investigation of the right of Dale Alford to a 
seat in the House (Sec. 58.1, infra), the Committee on Elections 
validated 1,035 of 1,097 ballots on which the name of the write-in 
candidate was misspelled or only the last name used. The committee 
invalidated those ballots on which the wrong given name was written or 
the surname so incorrectly spelled as to render the intent of the voter 
uncertain.

Stickers Used in Lieu of Writing in Name

Sec. 37.13 Where state law permits, stickers bearing a candidate's name 
    may be used in lieu of a ``write-in'' for the candidate.

    In the 1959 investigation of the right of Dale Alford to a seat in 
the House (Sec. 58.1, infra), the Committee on Elections determined 
that an opinion of the state attor

[[Page 1071]]

ney general, issued immediately prior to the election, to the effect 
that stickers were legal, was binding on the clerks and judges and they 
were required to count the sticker votes. Neither the defeated 
candidate nor any voter had appealed the attorney general's opinion. 
The committee also cited a 1932 Arkansas Supreme Court decision that 
ballots bearing stickers distributed at the polls were legal, as well 
as the 1919 Massachusetts contested election case of Tague v Fitzgerald 
(6 Cannon's Precedents Sec. 96), in support of the proposition that the 
use of stickers in balloting should not void the ballots involved.

Sec. 37.14 Where the wrong end of a sticker has been placed on a ballot 
    or the sticker partly covers marks on the ballot for the other 
    candidate, the ballot is invalid.

    In the 1959 Arkansas investigation of the right of Dale Alford to a 
seat in the House (Sec. 58.1, infra), the Committee on Elections ruled 
invalid 52 ballots on which the wrong end of a sticker bearing the name 
of a write-in candidate had been placed on the ballot. The committee 
also found invalid seven ballots upon which stickers had been placed 
over or partially over marks for the other candidate.

Ballot Marked for Both Candidates

Sec. 37.15 Where the name of a write-in candidate has been written in, 
    or placed on the ballot by sticker, and the box opposite the name 
    of the other candidate has also been marked, a ballot will be 
    declared invalid.

    In the 1959 Arkansas investigation of the right of Dale Alford to a 
seat in the House (Sec. 58.1, infra), the Committee on Elections ruled 
invalid 28 ballots, on the ground that a voter had voted twice on the 
same ballot for the same office.

Failure to Mark in Designated Place

Sec. 37.16 Where the intent of the voter can be ascertained, a vote is 
    valid even though the voter fails to mark a cross in the square 
    provided on the ballot.

    In the 1959 Arkansas investigation of the right of Dale Alford to a 
seat in the House (Sec. 58.1, infra), the Committee on Elections ruled 
that 415 ballots which had the name of a write-in candidate written in, 
or placed on the ballot by sticker, but which did not contain any mark 
in the box opposite the name, were valid. In ruling that

[[Page 1072]]

the cross in the box opposite the name was not necessary, the committee 
cited the election contest of Tague v Fitzgerald (6 Cannon's Precedents 
Sec. 96).

Necessity of Detaching Stub From Ballot

Sec. 37.17 A ballot will be invalid if it does not have the stub 
    detached as required by state law.

    In the 1959 Arkansas investigation of the right of Dale Alford to a 
seat in the House (Sec. 58.1, infra), the Committee on Elections cited 
an Arkansas statute which required that the voter detach the stub from 
the ballot and deposit it separately, in ruling that each of 48 ballots 
which did not have the stubs detached were invalid. The committee also 
cited a Kentucky case which declared that detaching the stub is 
mandatory in order to comply with requirements for preserving the 
secrecy of the ballot.

Marking With Improper Instrument

Sec. 37.18 An elections committee has regarded state laws as merely 
    directory which provided that ballots were invalid if marked with 
    some instrument other than a blue pencil.

    In the 1961 Indiana investigation of the right of Roush or Chambers 
to a seat in the House (Sec. 59.1, infra), the Committee on Elections 
ruled that 436 ballots that were marked with other than a blue pencil 
were valid, despite Indiana court decisions that had invalidated 
ballots marked with ink or lead pencil. The committee cited House 
precedents, Goodich v Bullock and Kearby v Abbott (2 Hinds' Precedents, 
Sec. Sec. 1038, 1076 respectively), in which the House had held state 
statutory requirements that ballots be marked with designated 
instruments to be directory, and not mandatory.

Integrity of Ballots

Sec. 37.19 The integrity of ballots is preserved where it is shown that 
    election officials have supervised the counting and storage of such 
    ballots in conformity with state law.

    In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois contest, a 
contention that the integrity of the ballots had not been preserved was 
rejected by the Committee on Elections majority, where it was found 
that the ballots had been preserved as provided by law and kept under 
the supervision and control of the clerk of the Board of Election 
Commissioners, and that the ballot boxes were all opened

[[Page 1073]]

under his supervision, and that after being counted the ballots were 
replaced in boxes as required by law and put in the proper depository.

Sec. 37.20 A committee on elections refused to conduct a partial 
    recount, in part because contestant failed to prove such proper 
    custody of ballots as to reasonably prevent the opportunity for 
    tampering with them.

    In O'Connor v Disney (Sec. 46.3, infra), the committee on elections 
applied the principle that, to entitle a contestant in an election case 
to an examination of the ballots, he must establish, in part, that the 
ballots since the election have been so rigorously preserved that there 
has been no reasonable opportunity for tampering with them. In this 
case, some actual evidence of tampering with the ballot box existed.

Ballot Tallies

Sec. 37.21 An uncorroborated tally of ballots by contestant, taken 
    without the knowledge of contestee during an examination thereof by 
    both parties, will be rejected by an elections committee as an 
    inadmissible self-serving declaration.

    In Chandler v Burnham (Sec. 47.4, infra), a 1934 California 
contest, the official returns gave a plurality of 518 votes to 
contestee from a total of 87,061 votes cast. At the time, state law did 
not provide machinery for conducting a recount. Contestant alleged that 
his own informal recount of approximately one-third of the ballots cast 
showed that he had been elected. He contended that during the taking of 
testimony under subpena, at which time the ballots had been examined in 
the presence of both parties and their counsel, he had kept a tally of 
votes cast, including certain ballots he declared to be void or 
otherwise improper. The committee found that since contestee had not 
known that contestant was conducting such a tally, and was not given 
the opportunity to identify the ballots tallied, the testimony of 
contestant was uncorroborated and constituted a self-serving 
declaration of no probative value. The committee therefore ruled out, 
as inadmissible, evidence concerning the tally as well as the tally 
itself. The committee report was also critical of inconsistent or 
contradictory allegations it attributed to contestant--namely, that on 
the one hand, an examination of the ballots as shown by his tally 
indicated that he had been elected

[[Page 1074]]

and, on the other hand, that the ballots were not preserved and 
returned in the manner required by law. The committee ruled that these 
dual contentions could not be maintained, and indicated that votes 
could not be asserted as legal for one purpose and illegal for another.