Foster v. Evert

COVINGTON, Judge.

This case involves an election contest for the office of mayor of Richmond, Missouri. As a result of an election held on April 7, 1987, Monroe Evert received the certificate of election. Charles Foster contested the election. The case is before this Court for the second time on a direct appeal. On this appeal, Mr. Foster purports to raise constitutional challenges to the Comprehensive Election Act of 1977, § 115.001 et seq., RSMo 1986;¹ he thus invokes the jurisdiction of this Court. The judgment of the trial court is affirmed.

At the April 7, 1987, election, Mr. Evert received 713 votes for the office of mayor of Richmond, Missouri. Mr. Foster, a duly qualified write-in candidate, received 670 votes. On April 9, 1987, the election authority declared Mr. Evert the official winner. On April 27, 1987, Mr. Foster timely filed a petition in the Circuit Court of Ray County in which he contested the election on the basis of alleged irregularities associated with instructions given to voters. He claimed the election judges rejected over seventy ballots cast for him. He requested relief in the form of a new election or, in the alternative, a recount of the ballots the election authority rejected, to be followed by a declaration of Mr. Foster as winner of the election. Fifteen days later, Mr. Evert entered a special appearance and filed a motion to dismiss in which he alleged that the trial court lacked jurisdiction to hear the case because the summons provided for a thirty-day return in conflict with the fifteen day answering period prescribed by § 115.579, RSMo 1986, which had expired. The trial court agreed and dismissed the petition for lack of jurisdiction. On the first direct appeal of this case, this Court held that under the facts of the case the erroneous thirty-day summons did not divest the trial court of jurisdiction and remanded for trial. Foster v. Evert, 751 S.W.2d 42 (Mo. banc 1988).

At trial on remand, Mr. Foster sought to establish the validity of the ballots rejected by the election judges. Foster contended the ballots in question were rejected as a result of the voters' failure to include a cross (X) mark to the left of Foster’s name on the portion of the ballot known as the write-in sleeve. Mr. Foster also sought to establish irregularities in the manner in which voters were instructed on the write-in voting procedure.

Newton Hamacher, the county clerk, testified on behalf of Mr. Foster. Ray County is a third class county in which the county clerk is the election authority. Mr. Ha-macher described the voting procedure implemented by the election judges during the election at issue. According to Mr. Hamacher, election judges presented each voter with one punch card around which was wrapped one write-in sleeve. The card and the sleeve comprise a ballot The voter could use the punch card to vote for Mr. Evert or the write-in sleeve to vote for Mr. Foster. The voter voted the ballot and presented it to the election judge, who tore off the top part of the ballot, then returned the remaining portion to the voter, who deposited it in the ballot box. Mr. Hamacher also described the procedures used to count the voted ballots. The punch cards were counted mechanically while the write-in sleeves were counted by hand. Mr. Ha-macher did not know how many write-in sleeves were rejected; only the number of rejected punch cards was listed on the certification sheet. Mr. Hamacher testified that he could not be certain of the actual procedures used in counting the ballots, but he stated that he properly instructed the election judges on the proper method of ballot counting. When asked about ballots on which the voter selected two candidates for the same office, Mr. Hamacher testified that “normally we catch it.” Two ballots were rejected because of “over-voting,” that is, the voter both wrote in Mr. Foster’s name and marked an X on the sleeve as well as punched a card for Mr. Evert.

On this evidence and over the objection of Mr. Evert, the trial court found a prima facie case of irregularity and permitted Mr. Hamacher to examine and count the ballots contained in certain exhibits which had been offered and admitted into evidence. Mr. Hamacher did so, and the trial court participated. The trial court subsequently found that 670 voters wrote the name of the write-in candidate on the write-in sleeve and made an “X” beside the name, so that their intent was clear, and that sixty-seven voters wrote in the candidate’s name on the write-in sleeve but failed to make an “X” or other mark as required by § 115.439. The trial court found that the intent of the voters of those sixty-seven write-in sleeves could not clearly be determined. The trial court noted that it was possible that one or more voters wrote Mr. Foster’s name on the write-in sleeve and also voted by punching the square beside the name of Mr. Evert on the punch card. The trial court entered judgment in favor of Mr. Evert.

On appeal, Mr. Foster first purports to challenge the constitutional validity of § 115.439, which delineates the manner in which a write-in vote may be voted. The statute prescribes that a voter place a cross (X) mark on the write-in sleeve in the square directly to the left of the name of the write-in candidate. Mr. Foster references no constitutional provision violated by the statute; rather, his argument is that a subsequent, more general section, § 115.453 takes precedence over the more strict requirements of § 115.439.1(3). Section 115.453(3) provides:

No vote shall be counted for any candidate that is not marked substantially in accordance with the provisions of this section. The judges shall count votes marked substantially in accordance with this section when the intent of the voter seems clear....

Mr. Foster contends that the issue of voter intent should be dispositive when determining whether to count a ballot and further contends that the election judges could ascertain the intent of voters without the “X” being placed by Mr. Foster’s name on the write-in sleeve. Mr. Foster posits a number of arguments in support of his contention which, if accepted, would permit the election authority to count the sixty-seven rejected ballots.

It is unnecessary to decide whether § 115.453 takes precedence over § 115.439, however, for even if the Court were to accept each of Mr. Foster’s arguments, there is still no means by which to determine the intent of the voters, a prerequisite to counting the votes. The testimony presented in the trial court does not assist this Court in ascertaining the reason for the election judges not counting the ballots. At one point Mr. Hamacher stated he did not know the reason for rejection of the disputed ballots:

MR. HOCKEMEIER: And as a matter of fact, the write-in ballots which were rejected, many of them were rejected for lack of an “X.”

MR. HAMACHER: I don’t know that.

And, later in the hearing Mr. Hamacher’s responses were equivocal in light of the fact that pursuant to § 115.447.2(1), (2), (3) a ballot may be determined defective, rejected or spoiled for numerous reasons in addition to the failure to contain a cross (X) mark on the write-in sleeve:

MR. HOCKEMEIER: So we have an excess of sixty write-in votes that were obviously voting for Charles Foster, but without the “X,” so they weren’t counted?

MR. HAMACHER: Yes, we had invalid ballots, yes, sir.

MR. HOCKEMEIER: Okay. But that would be in excess of forty-three, is that correct?

MR. HAMACHER: Yes.

MR. HOCKEMEIER: And those ballots were not counted because either they didn’t have the “X,” or they didn’t have the word “mayor?”

MR. HAMACHER: They were not counted because they did not comply with the statutes, with the instructions on the write-in ballot.

On the record presented in this case, therefore, this Court may attempt to ascertain the intent of the voter only by examining the complete ballot. The complete ballot consisted of a punch card around which was wrapped a write-in sleeve. Although a number of the write-in sleeves have stamped words on the sleeve which say “spoiled or rejected” in addition to containing hand written words “no X mark,” neither Mr. Hamacher’s testimony nor any other evidence in the record establishes the reason or reasons for the election judges’ failure to count a particular ballot. Mr. Foster has failed to establish that election officials rejected the contested ballots solely because the write-in sleeves failed to contain the cross (X) mark. Mr. Foster has failed clearly to establish any single reason for rejection of the ballots. Thus, he has failed to establish voter intent.

Mr. Foster’s second point asserts that § 115.439.1(3) is unconstitutional as applied. Mr. Foster’s argument, however, does not constitute a constitutional challenge but, rather, addresses an alleged irregularity in the manner in which voters were instructed by the election authority. In support of his argument, Mr. Foster refers to testimony from Beverly Trindle who was neither an election judge nor a qualified voter for the City of Richmond election. She testified that she attended a pre-election meeting where Mr. Hamacher gave instructions on the proper marking of write-in sleeves. Over objection, Ms. Trin-dle testified that she did not hear the election authority mention the necessity of placing an “X” on the write-in sleeve. Mr. Hamacher’s testimony directly controverts Ms. Trimble’s. Mr. Hamacher testified that he informed the persons present at the meeting that, in order for a write-in sleeve to be counted, the sleeve must contain an “X” in addition to the name of the write-in candidate and the office. Mr. Hamacher testified that all voters in the April 7,1987, election were provided with both a punch-card and a write-in sleeve. The write-in sleeve itself contained specific instructions for voting for the write-in candidate, which included placing an “X” in the square opposite the candidate’s name.

Mr. Foster presents absolutely no evidence that even one voter was erroneously instructed as to the proper procedure for using a write-in sleeve. There is no competent evidence in the record to rebut the testimony of the election authority. Furthermore, the trial court was free to believe Mr. Hamacher’s testimony and to disregard that of Ms. Trindle. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The allegation of irregularity fails.

Mr, Foster finally asserts that, since the election authority rejected sixty-seven ballots for him, it should similarly reject sixty-seven votes for Mr. Evert. Mr. Foster’s argument seems to presume that every voter who used a write-in sleeve which was rejected also punched a card on the same ballot for Mr. Evert and that the election authority counted all of the punch card votes for Mr. Evert. In support, Mr. Foster points solely to evidence that two ballots were “over-voted," that is, were voted for Mr. Foster on the write-in sleeve and for Mr. Evert on the punch card, and that the election authority rejected these two ballots. The record does not support Mr. Foster’s contention that the election officials rejected all over voted ballots. The punch cards and write-in sleeves, of course, are not now matched; thus there is no manner through which to determine which write-in sleeve accompanied which punch card. Absent other competent evidence with respect to election procedures of handling over voted ballots, not presented in this case, it is impossible to determine whether a voter who attempted to write in a vote for Mr. Foster did not also punch a card on the same ballot for Mr. Evert. The Court cannot, therefore, presume that every voter who used a write-in sleeve which was rejected also punched a card on the same ballot for Mr. Evert and that the election authority counted all of the punch card votes for Mr. Evert; there is simply no evidence to support this presumption.

The judgment of the trial court is affirmed.

WELLIVER, RENDLEN, HIGGINS and BILLINGS, JJ., concur. BLACKMAR, C.J., dissents in separate opinion filed. ROBERTSON, J., dissents and concurs in separate dissenting opinion of BLACKMAR, C.J.

1 . All references are to Missouri Revised Statutes, 1986, unless otherwise noted.