Henderson v. Maley , 806 P.2d 626 ( 1991 )

SUMMERS, Justice,

concurring in part and dissenting in part.

The majority’s analysis is correct if the ballot security question is found to be controlled by the statutes governing old fashioned paper ballots. If, however, Oklahoma County’s ballot security is held controlled by the more recently adopted State Election Board Rules governing “voting devices” then a different result must be reached and a recount must be ordered.

The legislature has not seen fit to expressly impose the “metal box, three locks, with keys to each Election Board member” requirement (26 O.S.1981 § 7-133 et seq.) to the more high-tech election procedures. It has said that “voting machines shall be locked” until the next election or a court of competent jurisdiction orders otherwise. 26 O.S.1981 § 9-111. But, as the trial court and the majority correctly point out, we are not dealing with voting machines. We are dealing with a device that electronically scans and counts votes that are marked by hand.

The legislature has authorized the State Election Board to approve “voting devices” which aren’t otherwise described in the statutes, and to adopt suitable rules govr erning their use. 26 O.S.1981 § 9-119. That is precisely what has happened here. Section 9-119 also calls for a procedure in the use of “such devices” as “provides essentially the same protection for the purity of the ballot and against election fraud” as do voting machines. Id. It is clear that the legislature recognizes as permissible both voting machines and voting devices. See, e.g., § 9-120, providing for the costs of printing and supplies “incident to the use of voting machines or voting devices.”

Pursuant to § 9-119 the State Election Board has adopted a set of Rules and Regulations for voting devices such as the ones used in Oklahoma County, effective September 1, 1983. The rules were officially published in 22 Okla.Gaz. No. 17, 2130 (Sept. 1, 1983). Then they were filed on December 30, 1985, in accordance with the mandatory filing requirement of 75 O.S. Supp.1984 § 251. They have been submitted for both gubernatorial and legislative approval, and received the latter as recently as April 20, 1989. The rules have the force and effect of law, 75 O.S.Supp. 1987 § 308.2,¹ and there is a presumption in favor of their legality. Rotramel v. Public Service Company, 546 P.2d 1015, 1017 (Okla.1975). They provide for ballot security, but not the “metal box, three locks, etc.” version. The Secretary of the State Election Board testified without contradiction that Oklahoma County’s procedure of using the transfer box and sealing with paper tape in this election was in compliance with State Election Board Rules. (Tr. 102). The legislature requires no more, unless, as observed earlier, we consider ourselves bound by the original statutes on pre-electronic ballot counting.

I would allow the State Election Board’s rules to control the Oklahoma County ballots and those of any other county using electronic voting devices. That done, a finding of the substantial compliance required in recount cases would follow. See Looney v. Election Board of Seminole Co., 146 Okl. 207, 293 P. 1056 (1930). Since there was no evidence offered (or suggested) of ballot tampering, unauthorized persons in the sheriff’s vault, or other criminal misbehavior, I would declare the ballots secure under 26 O.S.1981 § 8-112, and direct that the timely requested recount proceed.

I concur with the Court that the petition for contest alleging “irregularities” was filed out of time.

I am authorized to state that KAUGER, J. joins in these views, and that HODGES, V.C.J. joins except as to the petition for irregularities.

1 . 75 O.S.Supp. 1987 § 308.2 B: Rules shall be valid and binding on persons they affect, and shall have the force of law unless amended or revised or unless a court of competent jurisdiction determines otherwise.