Otjen v. Kerr , 191 Okla. 628 ( 1942 )

Our election contest laws contemplate a practical and adequate plan of procedure to test the verity of the returns of any county, district, or state election. As to county offices the provisions are plain, simple, and direct. As to district and state offices the plan appears somewhat more complicated, but when considered carefully, keeping in mind the evident intention of the Legislature to provide a contest and recount therein when a proper case is presented, the conclusion is inescapable that the people, speaking through legislative enactment, intended to provide for a recount in district and state races.

Realizing the purpose of the Legislature to provide an adequate and practical plan of recount in such races, and cognizant of the impelling public and private reasons supporting the determination of the Legislature to make provision therefor, I cannot agree with the result obtained by the majority and I am compelled to respectfully dissent.

The majority opinion holds:

"The facts relied upon must be stated with sufficient certainty to advise the election board as to the fact contentions upon which contestant desires to be heard, and sufficient to advise the adversary party as to the particular facts upon which he is required to respond upon the hearing."

The result of the majority opinion is based on the foregoing stated principle. I agree with this principle. However, the application thereof in this case by the majority, in testing the sufficiency of the petition to state a cause of action, is so strict as to practically prevent district and state election contests or recounts. There was no right to a recount of elections at common law; such right in this state is purely statutory, remedial and exclusive. In construing statutes regarding election contests and recounts, the general rule is that such statutes should be construed strictly and the acts of the contestant closely viewed with reference to compliance with provisions thereof for inaugurating the contest and which are necessary to jurisdiction. See 26 C.J.S. page 357, § 247.

There is no question herein but that an affidavit challenging the results of the election was filed and a notice, as required by the statute, was served in the manner prescribed; that the jurisdiction of the State Election Board wag, under the foregoing rule, invoked there can be no doubt. The effect of the majority opinion is to confuse the question of jurisdiction with the sufficiency of the challenge to state a cause of action and withstand demurrer or motion to dismiss. This should not be done, for the rule of liberal construction applies to statutes relative to election contests in all matters, including sufficiency of petition to state a cause of action, except the requirements as to jurisdiction. I concede that the State Election Board is a quasi-judicial body and therefore had the power to pass upon the sufficiency of the challenge. Albright v. Election Board of Payne County, 172 Okla. 162,44 P.2d 995. This it should have done under a liberal construction or view of the allegations in order that justice might have been done in behalf of the people and the obvious intention of the Legislature maintained.

Our statute specifically provides:

"The right to a certificate of election shall not be considered a property right to any extent whatsoever, unless and until such right to such certificate shall be determined and such certificate issued as hereinafter provided." (26 O. S. 1941 § 392.)

By this provision the Legislature, speaking the will of the sovereign people, unmistakably indicated that the will and intention of the people and the Legislature should be paramount to the interest of any individual candidate. That the people and the Legislature intended that there should be a recount upon a sufficient showing af fraud, collusion, or mistakes that would change the election, there can be no doubt.

A reasonable interpretation of our election statutes must be given in order that the purpose for which they were enacted should not be destroyed and the intention of the Legislature expressed on behalf of the people that elections be kept free from fraud, corruption, mistakes, and inaccuracies should not be defeated, and in order that the contestant's rights might be protected. Technicalities and rules of construction should not be permitted to destroy the public purpose, the intention of the Legislature, or the rights of individual candidates. Herein lies the fundamental reason for the rule that liberal construction should be indulged and applied to election contest statutes. That elections be conducted honestly and efficiently is of grave concern to the people of this state, and technical rules should not be permitted to thwart the will of the people to determine whether or not in any case the result of any election was controlled by fraud, etc. Individual interests, likes and dislikes, are inferior to the public good. The public welfare, as well as the individual interest, can and should be protected under the law, but the public interest should not be destroyed by making it subservient to the likes or dislikes of individuals. The only way that both interests and the integrity of our balloting system can be protected and preserved is by a recount in a proper case. To hold otherwise, the will of the people might be ignored and the sanctity of the ballot destroyed and the confidence of the people in their system of elections greatly shaken. What is a proper case?

Section 392, supra, provides:

"Any candidate for county office may, at any time within ten days from the date of the general election, file with the secretary of the county election board his or her challenge of the correctness of the announced results of said general election by filing with the secretary of the county election board, whose duty it is to canvass the returns in such race, a verified statement setting forth a state of facts, which, if true, would change the result in his or her favor; or setting forth a state of facts showing that fraud had been committed in connection with such election, or both, which, if sustained, would affect the result of the election, and change the same in favor of the contestant."

The foregoing expressed right of contest is by implication accorded candidates for district and state offices with specific provision as to place of filing and notice, etc. So the requirements of the petition or challenge filed in a district or state race is the same as in the case of a county office set forth in the quotation, supra.

Neither this provision, nor any provision similar to it, has ever been before this court for construction as to the sufficiency of a challenge or petition thereunder, though it is contended by the contestee that the statute with reference to primary elections, passed by the Legislature in 1929, under which arose the Looney Cases (Looney v. Election Board of Seminole County, 145 Okla. 25, 291 P. 554; Looney v. Election Board of Hughes County, 145 Okla. 23, 291 P. 565), is similar thereto and the court's construction thereof is in point here.

At this point an historical review of pertinent provisions of our election contest laws and reference to our adjudicated cases thereunder is appropriate. Our first act, which remained in force until 1927, applied only to primary elections. It provided:

"Any candidate in a primary election may challenge the correctness of the announced result thereof by filing with the county election board, whose duty it is to canvass returns in such race, a verified statement setting forth a state of facts which, if true, would change the result in his favor; and thereupon it shall be the duty of such board to inspect and count the ballots questioned by such candidate within ten days after he has filed his affidavit. Such board shall, upon the conclusion of such recount, proceed to certify the result." (Sec. 6107, C. O. S. 1921.)

Note, the foregoing section provides that "a state of facts" should be set forth which, if true, would change the result in favor of the contestant. If this were done, it is provided,"It shall be the duty of such board to inspect and count theballots questioned." We so held in Brown v. Branson,139 Okla. 271, 270 P. 63, wherein we said:

"It will be observed that section 6107. C. O. S. 1921, provides that, in case of one of the parties to a primary election shall desire a recount of the ballots, he shall file with the county election board a verified statement setting forth a state of facts which, if true, would change the result in his favor, and that on the filing of such verified statementit became the duty of such board to inspect and count theballots questioned by such candidate within ten days after he had filed his affidavit, and that upon a conclusion of such recount said board should proceed to certify the results."

Until its repeal we had no occasion to construe and apply the foregoing statute with reference to the sufficiency of a challenge thereunder. By the plain wording of the foregoing statute it is obvious that if a petition or challenge thereunder were sufficient, no testimony would be necessary to support the allegations therein made and a recount would be necessary on the allegations of the challenge standing alone.

While this act was in force concerning primary elections the case of Logan v. Young, 121 Okla. 203, 249 P. 369, arose. This case involved a general election. It was an action in the nature of "quo warranto." The petition in that case alleged generally that in each of the 50 precincts in said county the election officers, by error, mistake or fraud, overcounted and certified for the defendant more votes than he in fact received; that said ballots voted for the plaintiff were erroneously declared to be mutilated ballots and not counted for the plaintiff; that said ballots stamped under the Democratic emblem and also in front of plaintiff's name had not been counted for the plaintiff, but had been counted for the defendant; that if such mistake were corrected, it would be disclosed that plaintiff had been duly elected to said office. The sufficiency of the petition was not questioned. However, the court held that before a recount could be ordered under such petition plaintiff would first be obliged to offer proof of the alleged fraud or malconduct to overcome the prima facie presumption of the regularity and correctness of the action of the election officials. The trial court heard the testimony offered in support of the petition and request for recount. The testimony of the plaintiff went entirely to the qualifications of the plaintiff and the fact that the ballots had been properly preserved. The motion of the plaintiff for an order of recount based upon his testimony was denied by the trial court. There was no evidence in support of plaintiff's allegations of error, mistake, or fraud. In such a situation the legal presumption of correctness of the returns would maintain. The trial court, and this court on appeal, so held. The lower court in that instance either thought the allegations of the petition were sufficient or the sufficiency thereof was never called to its attention and it never passed thereon. That case is authority for only one proposition, and that is, that the presumption of regularity and correctness of election returns prevails until overcome by proof in a "quo warranto" action. In the instant case we are concerned with the sufficiency of the petition to entitle one under our statute to offer proof and the case supra is not in point here.

In 1927 a new and different procedure for the contest of elections was provided (chap. 63, S. L. 1927). This act provides for contest both in primary and general elections. (Attention is directed to the fact that there is very little difference in the wording of that act and the one now in force.) The only time that the 1927 act was before this court was in Brown v. Branson, supra. In that case no question as to the sufficiency of the challenge was raised. It was alleged, among other things, various acts of fraud against the county election officers of Creek county which, if true, were responsible for the defeat of the contestant. Contestant failed to introduce any evidence in support of his allegations as to fraud, etc. The court therein applied the rule announced in Long v. Young, supra, and held:

"Under chapter 63, Session Laws 1927, a contestant of a primary election is not entitled to a recount of the ballots cast upon the mere filing of a verified statement which, if true, would change the result in his favor; but under section 9 of said act he must offer such legal evidence in support of the charge as will overcome the prima facie presumption of the correctness of the returns, as provided in chapter 100, Session Laws 1927.

"In order to overcome such presumption, the evidence on behalf of the contestant must indicate at least a probability that the recount would decide the contest in his favor. In any event, such evidence must be introduced as will reasonably overcome the prima facie presumption of the correctness and fairness of the official returns."

In 1929 the Legislature again changed the procedure as to contests of primary elections. Section 6, ch. 241, Session Laws 1929, provides, in part, as follows:

"Any candidate in a general primary election may challenge the correctness of the announced and posted results thereof by filing with the county election board, whose duty it is to canvass the election returns of and in said county, a verified petition setting forth a detailed statement, in separately numbered paragraphs, of each error or alteration complained of, which allegations, if true, will show that the petitioner had received a majority of all votes cast for said nomination, . . . .

"Upon the filing of such a petition, it shall be the duty ofsaid board, if a recount is prayed for, to inspect and count the ballots questioned, . . ."

It will be noted by that provision the Legislature went back to the 1921 law in providing that upon the filing of a sufficient petition praying for a recount in a primary election the ballots must be recounted. The only proof necessary would be proof that the ballots had been preserved as provided by law, as we held in Brown v. Branson, supra. That section was before this court in Looney v. Election Board of Seminole County, supra, and Looney v. Election Board of Hughes County, supra. In the first Looney Case, this court said:

"Under the provisions of chapter 241, Laws 1929 (Sp. Sess.), an election contestant is given the right to a recount of theballots cast in any precinct upon the filing of a verifiedpetition in the manner and form and within the time therein specified, but before a recount of said ballots may be had, there must be a showing by evidence that the ballots 'had beenpreserved in the manner and by the officers prescribed by the statute, and that, they were the identical ballots cast by the voters, and that while in said custody they had not been so exposed to the reach of unauthorized persons as to afford a reasonable opportunity of their having been changed or tampered with.' The burden of making such showing is upon the election contestant. In the absence of such a showing the prima facie case made by the returns of the precinct election officers must prevail."

We also therein held that no testimony need be offered in support of the allegations of a sufficient challenge under that section to entitle contestant to a recount. We said:

"We therefore hold that under the provisions of section 6, c. 241, Laws 1929 (Sp. Sess.), a contestant is given a right to a recount upon the mere filing of a petition in the manner and form and within the time therein specified."

By the following quotations from that opinion we gather the significance of the inclusion in such sections expressions like "Thereupon it shall be the duty of such board to inspect and count the ballots questioned" (6107, C. O. S. 1921) and, "Upon the filing of such a petition, it shall be the duty of such board, if a recount is prayed for, to inspect and count the ballots questioned." (Sec. 6, ch. 241, Laws 1929.)

"In Brown v. Branson, 139 Okla. 271, 270 P. 63, 67, a challenge to the correctness of the announced results of the primary election was filed with the secretary of the State Election Board. It could not have been filed under the provisions of section 6107, supra, for under those provisions it would have been filed with the county election board. It must have been filed, as held in that case, and as stated by the contestant therein, under the provisions of chapter 63, Laws 1927.

"In discussing the case, the court said:

" 'Further, it will be noticed that section 3 of this act is practically identical with section 6107, except that it leavesout that part of section 6107 which provides that thecontestant shall be entitled to a recount upon the filing ofthe affidavit or challenge as a matter of right. It appears that, in this revisory and substitute statute, if theLegislature intended to give a contestant the right to arecount upon the mere filing of a challenge, it would have saidso, and by reason of having omitted the latter part of section 6107, above referred to, it expressly intended to change therule heretofore in effect.'

"We think that that reasoning must be applied in construing the provisions of the act of 1929, chapter 241. In that act almost the identical language of section 6107, supra, was used. We must conclude that that language was used for the purpose of restoring to the law that provision which this court in Brown v. Branson, supra, said had been repealed."

By that decision we again, in effect, stated that where a party is entitled to a recount merely upon the filing of a verified petition it must set forth the facts, if true, that show that the contestant is entitled to the office. The reason for strictness in requiring a detailed statement of facts in such a case is apparent. No evidence is required in such a case in support of the allegations of the petition. The affidavit itself becomes the only necessary proof required to entitle the contestant to an order for a recount.

I have found no cases where such a strict rule has been applied to the petition filed under a statute which requires the taking of evidence before a recount can be ordered.

In Brown v. Branson, supra, which was a case arising under a statute that had no such expressions in it sufficient to overcome the presumption of the validity and correctness of the returns of an election. It is apparent from what I have said that the Looney Cases, supra, are not in point here. The Logan v. Young and Brown v. Branson Cases, supra, bear out my view on this material distinction.

There is no expression in the statute whereunder the instant case arises that even intimates that a recount shall be ordered by the State Election Board merely upon the filing of a sufficient challenge or petition. In my judgment a contestant would have to support every allegation of his petition relied upon before he would be entitled to an order of recount, and in view of the very strong presumption in favor of the validity and correctness of the returns of an election, the character of proof offered would have to be clear, cogent, and convincing. This is particularly true of any allegation of fraud. The allegation is made in the instant case that all county and precinct election officials conspired to determine all ballots which were stamped under the Democratic party emblem but also stamped for the opposing party's candidate for Governor as mutilated and that this conspiracy was carried out in every precinct of the State of Oklahoma, and that such ballots were cast in every precinct in the State of Oklahoma, and that in every instance they were determined to be mutilated ballots and were not counted for the Republican nominee, or were counted for the Democratic nominee; that except for the failure of the election officials in all of the precincts to count such ballots cast for the contestant and, except for their mistakes, errors, and omissions in counting and tabulating the votes cast, the petitioner would have won the election. The nature, character, and extent of this alleged mistake or fraud is exact. The only thing that could have been left out of the allegation is the exact number of votes so cast in each of the 3,690 precincts of the State of Oklahoma.

In the majority opinion it is said:

"A statement of a fact or of facts ordinarily comports with usual or reasonable means of observation or knowledge. When a statement is so broad or so extravagantly made as to preclude any reasonable probability of foundation of observation or knowledge, and is made without any stated foundation or information source, then such statement may characterize itself as a mere conclusion as distinguished from an averment of a state of facts."

By this statement, I take it that the majority concede that there are facts alleged in the challenge which would be sufficient except for the fact, so my associates conclude, that there is no reasonable probability of proof of such alleged facts being made. I do not think we should take judicial knowledge that proof cannot be made of mistakes, errors, omissions, corrupt acts, or illegal counting in the face of positive allegations to the contrary. The effect of this conclusion on the part of the majority is to say that the presumption of regularity and correctness dispels the possibility of proof being made that such ballots were cast and that they were considered mutilated. If such were the facts and the election officials are honest, I think it would be a simple matter to make such proof.

On a hearing before the State Election Board, prior to the time it is required to determine whether or not a recount should be ordered in any county or precinct of the state, evidence would be required to support this general allegation as to all the precincts of the entire state. If this is done, the contestee will have all the evidence of the contestant supplied him by the witnesses in person, and thereafter, no doubt, have an opportunity, such as the circumstances may prescribe, to meet the issues.

The statute now in force is a great improvement in protecting the verity and sanctity of the ballot box over our foregoing statutes. Under the present statute no ballot box will be ordered opened and the ballots therein recounted except upon specific testimony of such convincing weight as to overcome the very strong presumptive verity that attends elections presided over by duly qualified and acting officers of the state.

Though the petition in this case, in a large measure, amounts to nothing more than glittering generalities and conclusions, there are some statements of fact therein that, if proven, would show the contestant entitled to the office. But aside from the vitriolic arguments of counsel and the harsh and extravagant statements and allegations by political partisans, we have before us a question of vital public concern that should be dealt with in a straightforward, positive manner with the sole view of determining the real intention of the people, speaking through the Legislature. I am convinced that the Legislature, thus speaking, intended to provide for election contests and intended to provide a practical, adequate and workable system by which a recount could be accomplished without interference of the right of any individual. I think the Legislature has provided such a method and I do not think that strict rules of construction and pleading should be indulged, especially where, as here, to do so would prevent the will of the people and the Legislature from being carried into effect. An election contest, properly filed and diligently prosecuted, without unwarranted delay on the part of the parties thereto, will determine the rights of both the individual and the public before the time to take office has arrived.

Other than our own cases, the cases relied on by the contestee and cited by the majority opinion are from the states of Colorado, California, Montana, and Oregon.

The Colorado law requires that the contestant allege, among other things, ". . . the time of the election, and the particular cause or causes of the contest; . . ." (3 C. S. A. ch. 59, sec. 286) and further: "When the reception of illegal or the rejection of legal votes is alleged as a cause of the contest, a list of the number of persons who so voted, or whose votes were rejected, and the precinct or ward where they voted, or offered to vote, shall be set forth in the statement of contestor . . ." (Sec. 287).

The statutes of California, Montana, and Oregon, in effect at the time of the cited opinions, were very similar to the Colorado statutes in these respects. The dissimilarity of the provisions of our statute is clearly apparent. Obviously such cases can give no assistance in reaching a conclusion as to our statute, and therefore constitute no authority for the application of a strict rule of construction as to the sufficiency of a petition for recount under our statute.

In my judgment, the petition in the instant case, though subject to severe criticism for what it says — not what it fails to say — meets the minimum requirements of the law and the principle laid down by the majority opinion; the practical result of the majority opinion is to prevent a district or statewide election contest between Republicans and Democrats.