Moore v. Hayes

OPALA, Justice,

with whom ALMA WILSON, Justice, joins, dissenting from Part 11(B) and concurring in the remainder of the court’s opinion.

I

I concur in Part 11(A) of the opinion because the machine-readable ballot used in the election clearly manifests the elector’s intent to cast a vote for Leon Moore, the petitioner in this proceeding. In the face of a plainly manifested voter’s intent, the *944 court today correctly rejects the notion pressed by the State Election Board’s instructions to the county election officials that “human counters” should always apply the very same counting criteria as those which the voting devices are programmed to follow. 1

II

I dissent from today’s invalidation of the ballot discussed in Part 11(B) of the court’s opinion because the mark drawn by the voter to the left of the candidate’s name clearly and distinctly expresses his choice of the candidate. The small square to the right of the candidate’s name is not sufficiently distinctive to invalidate the ballot under the command of 26 O.S.Supp. 1983 § 7-127(2). 2 There is here no proof of the voter’s intent to set his ballot apart from others by a “distinguishing mark.” 3 Boevers v. Election Bd. of Canadian County, Okl., 640 P.2d 1333, 1336 [1981] and McClelland v. Erwin, 16 Okl. 612 , 86 P. 283, 287 [1906]. Moreover, I would deem the questioned ballot valid since it was clearly possible for the human counters to determine the voter’s choice of candidate. 4

The terms of § 7-127(2) 5 cannot easily be made applicable to a machine-readable ballot. Unlike on a paper ballot, the square to be marked on a machine-readable ballot is utterly indistinctive to an untrained person. It should make no difference for purposes of counting a machine-readable ballot whether the mark is in the square to the right of the candidate’s printed name or to the left so long as it is possible to determine, within the meaning of § 7-127(7), the voter’s choice of candidate. 6

I hence recede from the notion that the ballot in contest is invalid either because it is tainted by the mark affixed by the voter in the wrong place or by the incapability of the voting device to count it.

. The State Election Board's instructions to the county election boards was based upon the terms of 26 O.S.1981 § 8-114 which provided that human counters shall carry out a recount in the same manner as that prescribed by law for counting paper ballots in primary, runoff primary and general elections. The State Election Board's interpretation of § 8-114 was that ballots in counties using voting devices must be recounted in the very same manner as that which the voting machines are programmed to follow. In short, where the machine-readable ballots must be recounted by human beings, the State Election Board directed that human counters apply the same counting criteria as would the machines. Because a voting machine would pick up the dot on the ballot next to the name of Kolar, as well as the full mark next to the name of Moore, that machine-readable ballot could not be counted by the voting device for want of a voter’s clear indication of his choice between the two candidates.

. The terms of 26 O.S.Supp. 1983 § 7-127(2) provide:

"An ‘X’, cross, or two lines that meet, including the so-called ‘check mark’, the intersection or point of meeting of which shall be within or on the line of the proper circle or square, shall be valid. Such marking shall be hereinafter referred to as 'valid markings'. Such valid markings located otherwise on the ballot shall not be counted. Such valid markings shall include a circle or square which has been blackened in ink, even if the entire circle or square is not filled and even if the blackened portion may extend beyond the boundaries of the circle or square; ”

. The term "distinguishing mark” is one of art. It does not include every form of excess material that is penned on the ballot but is not needed to show the voter’s designated intention. Under the proscribed rubric fall only those marks — not used in an attempt to indicate a voter’s choice— which show on the face of the ballot, or from some evidence aliunde, a deliberate intent of having been placed there to set the ballot apart from others. A ballot bearing distinguishing marks is capable of being identified. The purpose of the rule making such ballots void is to protect the secrecy of elections and to discourage bribery, fraud or corruption. Boevers v. Election Bd. of Canadian County, supra 640 P.2d at 1336 , and Gentry v. Reinhardt, 350 Ill. 582 , 183 N.E. 631 [1932].

. The terms of 26 O.S.Supp. 1983 § 7-127(7) provide:

"Any ballot or part of a ballot on which it is impossible to determine the voter’s choice of candidate shall be void as to the candidate or candidates thereby affected.”

. See footnote 2 supra.

. See the terms of 26 O.S.Supp.1983 § 7-127(7), supra note 4.