Opinion of the Justices

To His Excellency the Governor and the Honorable Council:

' Your resolution presents to this court the question whether an otherwise statutorily authorized recount pursuant to RSA 59:101 (Supp. 1975) may proceed in the face of a town’s innocent destruction of its ballots, and, if so, whether the original certified ballot tally of the town should be included in the recount.

Subsequent to the submission of the original question, the court was advised that ballots in two additional towns were also inadvertently destroyed after they had been counted on election night and an official return certified to the secretary of state. According to the return for the town of Mason, 273 ballots were cast on the question: 169 affirmative, 104 negative; and for the town of Nottingham, 583 ballots were cast: 376 affirmative, 207 negative. In both instances there are no specific challenges to the results and no allegations of fraud or wrongdoing in the manner in which the elections were conducted, the ballots counted, or the ballots destroyed.

RSA 59:101 (Supp. 1975) provides that upon presentation to the Governor and Council of a petition requesting a recount, “all ballots shall remain in the custody of the respective town and city clerks, under seal, until called for by the secretary of state for the purpose of recounting the ballots.” The statute is silent, however, as to the procedure to be followed when a town’s ballots have been innocently destroyed.

In resolving election difficulties of this nature, care must be taken that the matter is not decided on the basis of unwarranted technicalities. The goal must be the ascertainment of the legally expressed choice of the voters. Nickerson v. Aimo, 110 N.H. 348, 351, 266 A.2d 828, 830 (1970); Murchie v. Clifford, 76 N.H. 99, 102, 79 A. 901, 902 (1911); see Opinion of the Justices, 114 N.H. 784, 330 A.2d 774 (1974); Opinion of the Justices, 114 N.H. 711, 327 A.2d 713 (1974); Keene v. Gerry’s Cash Mkt., Inc., 113 N.H. 165, 304 A.2d 873 (1973). “The object of election laws is to secure the rights of duly qualified voters, and not to defeat them.” Swift v. Registrars of Voters, 281 Mass. 264, 277, 183 N.E. 727, 729 (1932). As a means to the end of ascertaining the popular will, a statutory recount is simply “a resort to the ballots, themselves, as the primary and best evidence of the result of the election.” Walker v. Mechem, 56 N.M. 529, 532, 246 P.2d 201, 202 (1952).

It follows from these considerations that the effective disenfranchisement of a town in a recount, owing to the destruction of the town’s ballots, is to be avoided. This principle is especially compelling where there is no indication that the destruction of the ballots is linked to any wrongdoing. Walker v. Mechem supra; Swift v. Registrars of Voters.

The twin objectives of ascertaining the popular will and avoiding voter disenfranchisement require that the recount proceed with the inclusion of the original certified ballot tallies of any towns whose ballots have been inadvertently destroyed. Walker v. Mechem supra; Swift v. Registrars of Voters supra; see Thoms v. Andersen, 235 N.W.2d 898 (S.D. 1975), appeal after remand, 244 N.W.2d 311 (S.D. 1976); Conley v. Rice, 252 Ky. 370, 67 S.W.2d 478 (1934). The question posed is in all respects answered in the affirmative.

Frank R. Kenison Edward J. Lampron William A. Grimes Robert F. Griffith Maurice P. Bois