[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[C. Grounds of Contest]
[Â§ 12. Voting Booth and Balloting Irregularities]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1013-1016]
 
                               CHAPTER 9
 
                           Election Contests
 
                         C. GROUNDS OF CONTEST
 
Sec. 12. Voting Booth and Balloting Irregularities

    As a basis for contesting an election, a wide variety of charges 
have been made in election contests with respect to use of voting 
booths and voting machines and equipment. Similarly, alleged 
improprieties in balloting are frequently cited as a reason for 
overturning the result of an 
election.                          -------------------

Voter Confusion as Excuse for Official's Entering Booth

Sec. 12.1 In determining whether an election official, in entering a 
    voting booth and conversing with voters, was act

[[Page 1014]]

    ing fraudulently and in conspiracy with a candidate, the elections 
    committee may consider the extent to which there existed voter 
    confusion as to the proposition on the ballot or in the operation 
    of voting machines.

    In Gormley v Goss (Sec. 47.9, infra), a 1934 Connecticut contest, 
contestant failed to establish that an election official's actions in 
entering a booth and talking to voters were fraudulent and 
conspiratorial. The committee noted that there existed voter confusion 
as to the placement of a proposition on the ballot and that there were 
no complaints of interference with voter intent.

Balloting irregularities

Sec. 12.2 A committee finding of evidence of irregularities in the 
    conduct of an election will not provide a sufficient basis for 
    overturning that election where there is no evidence connecting 
    contestee with such irregularities.

    In Miller v Cooper (Sec. 48.3, infra), a 1936 Ohio contest, the 
Committee on Elections found evidence of irregularities in the 
destruction of ballots, tabulations of votes cast, and in the method of 
conducting the election. However, there was no evidence whatsoever 
connecting the contestee therewith, and the committee recommended that 
he be seated.

Sec. 12.3 Where votes are cast by persons not qualified to vote, being 
    only temporarily in the district, such votes are considered 
    invalid.

    In Swanson v Harrington (Sec. 50.4, infra), a 1940 Iowa contest, 
contestant claimed that 70 of the 528 votes cast in a certain precinct 
were illegal as they were cast by Works Progress Administration workers 
only temporarily in the district; the committee ruled, however, that 
while such votes were illegal and could be disregarded, they would not 
affect the outcome of the election.

Sec. 12.4 An allegation that contestee had received a 
    disproportionately large number of ``split votes'' must be 
    supported by the evidence.

    In McAndrews v Britten (Sec. 47.12, infra), a 1934 Illinois 
contest, contestant alleged that contestee had received a ``split 
vote'' so disproportionately large as compared to the ``straight ticket 
votes'' that a presumption of fraud followed. This allegation was 
rejected as not supported by the evidence, the testimony of an

[[Page 1015]]

expert being regarded as ``frail and unconvincing''; it appeared that a 
large split vote had been the case for many members of contestee's 
political party, as they had to have ``run ahead of the ticket'' to 
have been elected.

Sec. 12.5 An elections committee will not presume ballots marked for 
    the Presidential nominee of contestant's party to have been 
    intended as ``straight ticket'' votes where the state law provides 
    for a separate circle for casting ``straight ticket'' ballots.

    In Ellis v Thurston (Sec. 47.6, infra), an election contest 
originating in the 1934 Iowa election, the contestant argued that on a 
number of ballots on which the voters had marked the squares opposite 
the Presidential and Vice Presidential candidates but which indicated 
no choice for Representative, the voters had intended to vote a 
straight party ticket. The committee ruled against this contention, 
however, noting that the state statute provided that a cross be placed 
in a separate party circle in order to cast a straight party ticket.

Sec. 12.6 Where state law voids ballots cast for more than one 
    ``straight party'' ticket, an elections committee will not validate 
    ballots that are marked for ``straight ticket'' and, in addition, 
    for a local ``wet party'' ticket, the latter being adjacent to a 
    column permitting a vote for repeal of the 18th amendment, in the 
    absence of evidence that such voters intended to vote for repeal 
    and mistakenly voted for two ``straight tickets.''

    In Fox v Higgins (Sec. 47.8, infra), a 1934 Connecticut contest, 
the Committee on Elections, while conceding the probability of some 
voter confusion, found that the juxtaposition of the ``wet party'' 
entry with the column relating to the repeal of the 18th amendment, had 
been arranged in the customary way by a competent state elections 
official.

Sec. 12.7 Statutory violations by voters in failing to comply with 
    state absentee voting laws were held sufficient to invalidate the 
    ballots cast.

    In the 1958 Maine contested election case of Oliver v Hale 
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, the 
report of the Committee on House Administration listed nine areas 
stressed by the contestant in which there had been a failure on the 
part of the voter to comply

[[Page 1016]]

with the absentee voting laws of Maine: application for absentee or 
physical incapacity ballot not signed by the voter; application for 
physical incapacity ballot not certified by physician; envelope not 
notarized; no signature of voter on envelope; jurat not in form as 
prescribed by statute; name of voter and official giving the oath are 
the same; variance in writing between signature on application and 
signature on envelope; failure of voter to specify on envelope his 
reason for absentee voting; and voter not properly registered or 
qualified to vote.
    The committee concluded that there were 109 instances where the 
voter failed to substantially comply with the elect on laws, leading to 
rejection of the ballots as compliance was mandatory.

Sec. 12.8 Where state law required alternation of names of all 
    candidates on ballots so that each name appeared an equal number of 
    times at the beginning, end, and at intermediate places thereon, 
    failure to comply with the requirement did not result in 
    overturning the election.

    In the 1951 Ohio contested election case of Huber v Ayres 
(Sec. 56.1, infra), a newly adopted state constitutional provision 
required alternation of the candidates' names an equal number of times 
in various positions on the ballot. However, the majority recommended, 
and the House agreed to, a resolution dismissing the contest on the 
basis that the remedy under state law had not been exhausted.