Lauer v. Estes

McFARLAND, J. This is an election contest and involves the office of supervisor for the fourth supervisor district of Modoc county. The board of supervisors after canvassing the returns declared Estes elected, and he received the certificate of election. Afterward Lauer commenced this present contest; and the superior court rendered a judgment annulling the said certificate of election and declaring Lauer to have been duly elected to said office. From this judgment Estes appeals.

The court found that the appellant Estes received one hundred and thirty-one legal votes for said office of supervisor. By finding III the court found that the respondent Lauer received one hundred and thirty-two legal votes for said office; and in finding VII it is found that the said respondent Lauer received one hundred and thirty-three legal votes for the office. Appellant contends that these two findings as to the number of votes received by the respondent are fatal to the validity of the judgment, because they are inconsistent and uncertain. These find[653]ings might be embarrassing under certain circumstances, but we do not think that matter material in the case at bar, because, in our opinion, there were errors committed by the court prejudicial to the appellant to the extent of at least three votes.

In this case—and the same thing occurs in most election contests—each counsel contends that, with respect to certain points, the evident intention of the voter expressed by the ballot should prevail as against what is called the “technicalities” of the election law, while with respect to other points the same counsel contends that other votes should be rejected because not in compliance with the mandatory provisions of the code, no matter how clearly the ballots may express the intention of the voters. For instance, respondent’s counsel contends that the court was right in excluding a certain vote for appellant, because the stamp ©n the ballot was outside of the perforated line, which ruling appellant’s counsel considers highly technical, erroneous, and unjust, because the intent to vote for appellant was quite clear. But appellant contends that certain other votes counted for respondent should have been excluded, notwithstanding the apparent intentions of the voters, upon grounds which respondent’s counsel considers highly technical. The truth is, that under our present election laws courts cannot confine themselves to a mere inquiry as to what the voter intended to express by his ballot. The law has many other purposes; and to accomplish them it provides in great detail what the ballots shall be—what the voter may do and what he may not do; and it declares that “any ballot which is not made as provided in this act shall be void, and shall not be counted.” (Pol. Code, sec. 1211.) For instance, the law evidently contemplates that the intent which a ballot expresses may be the result of coercion or undue influence, and endeavors to prevent one having power over another from knowing how the latter voted; and so it is provided that “no voter shall place any mark upon his ballot by which it may be afterward identified as the one voted by him.” (Pol. Code, sec. 1215.) And this provision is mandatory. (Tebbe v. Smith, 108 Cal. 108; 49 Am. St. Rep. 68, and cases there cited.)