[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[C. Grounds of Contest]
[§ 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
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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.