Burke v. State Board of Canvassers , 152 Kan. 826 ( 1940 )

The opinion of the court was delivered by

Thiele, J.:

This is an original proceeding in mandamus brought by plaintiff against the state board of canvassers to compel that board to permit plaintiff to examine certain affidavits returned to the secretary of state in connection with absentee ballots, and as more specifically referred to hereafter. Upon the filing of the application, we made a rule to the defendant to show cause why a peremptory writ should not issue. The defendant has filed its combined motion to quash and answer, and a number of electors have been permitted to intervene.

The application for the writ sets forth the status of the defendant and its official composition; that plaintiff was the Democratic candidate for the office of governor and his name appeared on the official ballot at the election held on November 5,1940, and that Payne Ratner was the Republican candidate for that office; that prior to that election and by virtue of G. S. 1935, ch. 25, art. 11, ballots were sent by the secretary of state, on application of persons claiming to be electors of Kansas, to divers places, outside of Kansas; that about 7,500 of such ballots were mailed out and about 7,000 were voted and returned; that the defendant board is now canvassing such ballots ; that the affidavits attached to the ballots, as provided by statute, have by that board been segregated from the ballots, and plaintiff, through his representatives, has demanded opportunity to inspect the affidavits to determine whether or not they are in accordance with the statute; that the defendant has refused to permit plaintiff or his representatives to examine or inspect the affidavits and it is necessary for plaintiff to examine the affidavits to determine whether or not the persons executing the same and returning the ballots are qualified electors of the state of Kansas; that there is no valid excuse for the refusal of the defendant board to permit examination of the ballots (probably “affidavits” was the word intended),. and this plaintiff has no other adequate remedy than through proceedings in mandamus. The prayer is for a writ of mandamus to compel the defendant board to permit plaintiff, or his duly authorized representatives, to examine the affidavits.

The motion to quash and the answer of the defendant board may be summarized: (1) The court is without jurisdiction of the parties or of the subject matter. (2) The motion for the writ shows on its face insufficient facts to constitute the basis for a writ of mandamus. (3) The plaintiff is not entitled to the writ for the reason he has a plain and adequate remedy at law. (4) That the defendant board, under the statute, possesses right, power and discretion to determine validity of any ballots cast by electors of the state under the above-mentioned statute, and in connection therewith the defendant alleges that the statutes do not authorize or require the board to admit any candidate or his representative to witness either the count of the ballots or the qualifications of the electors who cast such ballots, and that under the statute the county clerk of each county is vested with the absolute power to determine the qualification of any resident elector for the purpose of casting an absentee ballot, and his decision is final and conclusive and binding on the secretary of state and the defendant board. It was further alleged the board is vested with power of discretion to determine whether such an elector has made his affidavit and marked his ballot in accordance with the statute, and the decision of the board is final and there is no appeal therefrom except by reason of the statutes providing for a legal contest of the election; that the board cannot be sued without consent of the state and there has been no such consent; that there is a presumption the board has performed its duties in a lawful manner and there is no allegation it has acted otherwise'in counting the out-of-state absentee ballots; that if the writ issue it would render nugatory provisions of statute relative to secrecy of the ballot; that the purpose of the affidavit is to enable the board to identify the voter with the person certified by the county clerk as a qualified elector, and that the board is vested with a sound discretion to determine whether the affidavit is in the form prescribed by law and such discretion cannot be controlled by mandamus.

The various applications to intervene set forth the reasons why, and where the interveners voted, and that each is entitled to have his vote kept and maintained secret from all persons other than the state board of canvassers, and that his right to such secrecy should be protected.

For our purposes, the statute, with reference to the issuance of a writ of mandamus, reads:

“The writ of mandamus may be issued by the supreme court . . to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.” (G. S. 1935, 60-1701.)

Under the statute, it has been frequently held that the applicant for the writ must show a clear legal right to have the thing done which is asked for, and it must be the clear legal duty of the party sought to be coerced to do the thing he is called upon to do. (Swartz v. Large, 47 Kan. 304, 27 Pac. 993; National Bank v. Hovey, 48 Kan. 20, 28 Pac. 1090; Hughes v. Parker, 63 Kan. 297, 65 Pac. 265; State v. Cloud County Comm’rs, 148 Kan. 626, 84 P. 2d 405.) And in some of the above cases, as well as in Drainage District v. Wyandotte County et al., 117 Kan. 369, 232 Pac. 266, it was held that no writ should issue in doubtful cases or to enforce a right which is in substantial dispute.

In Sharpless v. Buckles, 65 Kan. 838, 70 Pac. 886, it was held:

"The only purpose of a writ of mandamus is to require the person to whom it is issued to perform some act which the law enjoins as a duty. The writ itself confers no power and creates no duty, and its only office is to command the exercise of a power already possessed, or the performance of a duty already imposed.

“The duty of a county canvassing board is ministerial only. If the election returns made to the county clerk are genuine and regular, the board has no other duty to perform than to make the footings and declare the result. Mandamus will not lie to require a county canvassing board to recanvass returns and exclude from the count certain votes because cast and returned under a law that is claimed to be unconstitutional, since the determination of such question is not a duty imposed on the board, nor within its power.” (Syl. ¶ ¶ 1, 2.)

A similar situation to that considered in the above case was considered in Lemons v. Noller, 144 Kan. 813, 63 P. 2d 177, where absentee ballots had been counted and an application for a writ to prevent was entertained, but where in the second paragraph of the opinion it was stated that our action in so doing was not to be considered as a precedent that proceedings in mandamus may be substituted for a proceeding to contest an election or other proper remedy. In the present case, we do not choose to deny the writ upon the technical ground that some other remedy may be available. The question presented requires an answer for the guidance of public officials, and possibly would be difficult to raise if a different remedy were pursued.

It appears that under our statute pertaining to mandamus, and under our decisions treating the statutes and the general right to the writ, that before the writ may issue, it must appear the plaintiff has a clear right to compel the performance of an act which it is the lawful duty of the officer or board sought to be coerced to perform, and so we proceed to an examination of our statutes pertaining primarily to the right of electors absent from the state to vote, with especial attention to their qualification, manner of voting, return of ballot, counting of votes, and to such provisions of the general election laws as may be applicable, to determine what the right of a candidate for a state office may be to inspect the affidavit returned with the ballot.

As a preliminary to an intelligent discussion, it is necessary that a review be made of the particular statute with reference to the right of electors absent from the state to vote at a general election, the same being G. S. 1935, chapter 25, article 11. Except as otherwise necessary, we shall refer only to such ballots as are cast for state officers and returned to the secretary of state, but otherwise the summary is quite complete. As all statutory references hereafter made refer solely to chapter 25 of the General Statutes of 1935, to avoid repetition we shall refer only to the section number.

Under section 1101, a qualified elector who is to be absent from the state upon the day of a general election and who is actually so absent may, upon having complied with the law in regard to registration if applicable to him, vote for state officers. The concluding sentence of the section reads: “The votes of such electors shall be cast and received and canvassed as in this act provided.”

Section 1102 refers to the county clerk’s duties in the preparation of ballots for county offices. Section 1103 makes it the duty of the secretary of state to procure ballots for state officers, and that attached to each ballot shall be a stub with a perforated line allowing it to be easily torn from the ballot. The ballots shall be consecutively numbered and the stubs shall contain the same numbers as the ballot. The stub shall contain a printed form of affidavit, to enable the voter to state his place of residence, election precinct and place of residence therein, whether he is duly registered and that he personally marked the ballot to which the stub was attached and personally removed the stub after marking the ballot. It is here noted that it is these particular affidavits which are to be removed from the ballots which plaintiff desires to inspect and examine. We shall hereafter refer to them as identifying affidavits to distinguish them from another and different affidavit required by the following section. Section 1104 requires that in a specified time preceding an election, any person described in section 1101 may file with the county clerk of the county of which he is a resident an affidavit in duplicate duly executed. We shall hereafter refer to these affidavits as the qualifying affidavits. These qualifying affidavits shall state the precinct in which the elector is a resident and his correct post office address, and that he will necessarily be absent on election day. The statute then reads:

“It shall be the duty of the county clerk at once upon receiving such affidavit to ascertain and determine whether or not the person named therein is a duly qualified elector of such county, and to enter upon a record kept by him such name, and thereupon he shall mail to the secretary of state one copy of each such affidavit and file the other in his office, and certify to the secretary of state the name of such person named therein to be a duly qualified elector of his county.” (25-1104.)

Under section 1105 it is the duty of the secretary of state, upon receiving the certificate from the county clerk with a copy of the qualifying affidavit, to forward to the voter named in the certificate one of the state ballots with stub attached and with printed instructions and an identification envelope having the same number outside as the number of the ballot and stub which he sends the voter. Section 1106 provides that the voter, upon receipt of the ballot, may cast his vote by placing his cross mark with ink or black pencil opposite the name of each person for whom he wishes to vote and that he shall make no other mark and allow no other person to make any marks on the ballot, and he shall then fill out the identifying affidavit upon, the stub, execute it in the manner provided, and shall then personally remove that affidavit and place it in the identification envelope bearing the same number as his ballot and stub (affidavit), seal the identification envelope and enclose the same with his ballot in an envelope duly sealed, addressed to the secretary of state. The statute states: “Such ballot shall be marked and mailed on such election day,” etc.

Section 1107 requires the secretary of state to keep a record of the ballots sent out by him. Section 1108 pertains to the place of residence for registration purposes and is not presently involved. Section 1109 provides for canvass of all state ballots by the state board of canvassers at a time fixed and “No ballot shall be counted unless marked and transmitted as required by this act.”

Section 1110 provides that if any person make or cause to be made and delivered a false affidavit to be used under the act, etc., upon conviction he shall be punished by fine not exceeding $1,000 or by imprisonment not to exceed one year or by both fine and imprisonment. Section 1111 makes it unlawful for a voter to vote more than once. Section 1112 provides that if more than one affidavit giving different addresses of the same voter be filed with the county clerk, it shall be his duty to determine the correct address. Section 1113 states that the provisions of the general election law which are in their nature applicable shall apply to all transactions under this act.

It will be observed the above statute contains no provision whatever for the challenge of any voter, but that it does specifically provide the votes “shall be cast and received and canvassed as in this act provided.” There is no allegation in the motion for the writ that this provision of statute was not literally followed. In plaintiffs’ oral argument and brief that provision is ignored, his contention being that under the general election laws he is entitled to challenge each person offering to vote and that he can only do so by inspecting and examining his identifying affidavit.

Article 5, section 1, of our state constitution fixes the qualifications of electors; section 2 provides who are disqualified; section 3 makes provision as to gaining or losing a residence, etc., while section 4 states:

“The legislature shall pass such laws as may be necessary for ascertaining by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established.”

Under authority there granted, acts for registration of voters in certain instances have been passed. The general election laws also provide that any person desiring to vote shall give certain information to the judges of election, and for the challenge of the right of such person to vote, by any person (sec. 415) or by one of the judges of election (sec. 408), and machinery is provided for determining his right (sec. 408, et seq.), and if a challenged person’s vote be received, appropriate reference is made on the poll book and his ballot is numbered (sec. 413). These provisions were enacted long prior to the absentee voters’ act under consideration. They contemplate a challenge at the time the person offers to vote and not at some subsequent time and not when the vote is being counted. At the time the count is made, all ballots are counted whether of challenged voters or not, and the only usual purpose of the challenge and the numbering of the ballot is for the purposes of identification in the event of a contest.

The act now under consideration was passed at a much later date and, as noted, contains a provision that the votes shall be cast, received and counted as provided in it. Under section 1106 the vote is cast when the ballot is marked, the identifying affidavit executed and removed, and the two placed in envelopes and mailed on election day. The sections of the general election law applicable to challenge refer to challenge before the vote is cast. They are obviously inapplicable to out-of-state absentee voters, and in conflict with the provisions of the act under consideration. It is true there are provisions for representatives of a candidate to be present during the time of receiving and counting votes at the polling places (sec. 421) and to permit them to inspect ballots when the vote is counted (sec. 419), but neither of these sections gives any right to challenge. There is no provision of any kind permitting a challenge of a voter after his vote is cast.

Under the specific act, any person desiring to vote as an absentee is required by section 1104 to file the duplicate qualifying affidavits, and it is specifically made the duty of the county clerk to determine qualification and to certify that fact to the secretary of state. Lacking that certificate, no ballot and identifying affidavit would be sent to the proposed voter. No reason has been advanced why this portion of the statute is not a valid exercise of the power conferred by the constitution. And it may here be observed that, so far as the statute is concerned, if a challenge were at any time proper, it might just as well be filed with the county clerk on or before election day and lodged against the qualifying affidavit made when the proposed voter initiates his right to vote, as to his identification affidavit the only purpose of which is to show he is the same person as the one who was certified by the county clerk to the secretary of state as a qualified elector and which identifying affidavit is not made until after he has marked his ballot. The statute, however, contains no provision for challenge in either instance.

The defendant board contends that to display the identifying affidavits would violate the secrecy of the ballot with consequent results. The plaintiff contends that under our decision in Lemons v. Noller, supra, we held that an absentee voter waived his right of secrecy, and to sustain that contention, he directs attention to one or two sentences which he reads separate and apart from the context of the opinion. In that case, the constitutionality of the statute here involved was under consideration, it being contended the act was bad because secrecy of the ballot was not preserved. We need not review what was said there. All that was under consideration was right of secrecy as against the canvassing board of the county, not as against candidates or the public generally. By way of parallel, see section 417, providing that clerks and judges of election shall give no information as to how the ballot of a person requiring physical assistance was marked. If it be assumed the defendant board in opening the envelopes returned to the secretary of state, performed duties comparable to those performed by an election board in receiving and counting votes, it would follow that provisions of the general law as to the conduct of its members would be applicable, and if they made disclosure, they would be subject to the provisions of section 1720, reciting:

“Any public officer . . , who shall disclose to anyone except as may be ordered by any court of justice, the contents of any ballot as to the manner in which the same may have been voted, shall upon conviction be punished by a fine of not less than fifty dollars nor more than one thousand dollars, or by imprisonment in the penitentiary for not less than one year nor more than five years, or by both such fine and imprisonment.”

It is to be remembered that the identifying affidavit and the ballot bore the same number — there is no provision for eliminating the number, and if plaintiff may examine the identifying affidavit and inspect the ballot,'he will know how each absentee voter cast his ballot for any particular office. Certainly he has no such right in the absence of a clear statutory declaration to that effect.

Further, if the general election laws are to be considered as applying, we note that the statute pertaining to absentee voters within the state, passed prior to the statute under consideration, expressly provides for return of the ballot in an envelope, the face of which discloses the voter’s name, and that when the board of county commissioners shall open the envelope and ballot, they are required to—

“Keep the fact of such vote and the person for whom the same is recorded and the contents thereof secret and shall not reveal or divulge the same.” (Sec. 1005.)

And further that any candidate or his authorized representative may be present at the canvass, but neither shall be permitted to see the notations on the envelopes in which the ballots were returned from other counties. (Sec. 1008.) If the above section is in any manner applicable, or if any analogy may be drawn as to state policy with respect to secrecy, it is that the candidate may not know how any absentee voter cast his vote. Failure of the election officials to observe the above requirements would subject them to the penalties of section 1720, quoted above.

Another matter persuasive to us is this: The statute under consideration expressly provides that only upon certification of qualification by the county clerk is the secretary of state to send out any ballots, and it provides explicitly the manner in which the voter shall cast his vote and return his ballot, and that “no ballot shall be counted unless marked and transmitted as required by this act.” (Sec. 1109.)

There is no allegation in the motion for the writ charging that this section was not literally observed, no allegation that any ballot was sent to or voted by an unqualified elector, nor is it charged there was any fraud or corruption or dereliction of .any kind, either by a voter, a county clerk, the secretary of state or the defendant board, and this court may not assume the public officials did not perform fully the duties incumbent upon them under the act.

Election laws are liberally construed to permit exercise of the right of suffrage conferred by the constitution and laws of the state. To protect that right it is equally as important to preserve the voter’s right to cast his vote freely and as secretly as circumstances under which he votes may permit, as it is that .some other person has a right to protest that he is not a qualified elector. If he is unlawfully deprived of his right to vote, or, if having voted, his right of secrecy be invaded, he may do nothing further than invoke the criminal laws. The protestor, however, is not limited to his right to challenge. He may forego that entirely, but in an election contest case may have reviewed fully whether any person who voted for the particular office in controversy was a qualified elector. (See sec. 1426 and Hansen v. Lindley, 152 Kan. 63, 102 P. 2d 1058.) In the opinion in the case last mentioned, as reported in our advance sheets, the statute is quoted with reference to the duty of judges of election in determining residence (sec. 407), and it is stated the section refers to the judges of election when a vote is challenged and intended as a guide for them. Then follows this statement:

“The first opportunity a candidate has to challenge a mailed-in vote, however, is when the board of canvassers is considering it. Hence there is no reason why the above section should not be a guide to the board of canvassers, to the contest court, and on appeal to the district court and to this court.” (Italics ours.) (p. 68.)

The action considered in that case was an election contest proceeding. The statement above quoted was made arguendo. It was foreign to the issue tendered, in the nature of dictum, and is not any part of the law of the case as stated in the syllabus. As a statement of law, it is not correct and is disapproved. It has been eliminated from the opinion and that portion printed in italics will not appear in the permanent bound volume of our reports.

It is to be borne in mind the present proceeding is not an election contest where ballots and affidavits may be -introduced in evidence for the purpose of determining their sufficiency. (See Hansen v. Lindley, supra.) The present proceeding is one in which no relief of any kind is sought further than to ask this court to compel permission for an examination to determine sufficiency. In effect, plaintiff is seeking to learn how each absentee ballot was cast, before he determines to file a contest. In the absence of some statute so authorizing, and there is none, that may not be done.

The matters raised by the interventions and presented in the briefs of the interveners are sufficiently discussed in what has been said.

We conclude the motion for the writ of mandamus should be denied, and it is so ordered.