Jackson v. Norris

Parke, J., delivered the opinion of the Court. The appeals and cross-appeals on this record present questions in relation to the validity of the contract of ⁵⁸³ purchase of voting machines for use, pursuant to the terms of chapter 94 of the Acts of 1937, in the primary and general elections to be held in Baltimore City, a political division of the state. The employment of voting machines in primary and general elections was controlled until 1937 by sections 222-224 of article 33 of the Code (1924) of Public General Laws, and added sections 224A-224D of the Acts of 1933, ch. 228, and Acts of 1935, eh. 532 (Code (Supp. 1935) art. 33, secs. 224A-224D). The effect of the statutory law was to grant to the respective boards of election supervisors in the state a discretionary power to introduce the machines, with two modifications which required the board in Baltimore City to use, in all future elections after the passage of chapter 228 of the Acts of 1933, the machines that had been theretofore purchased by that municipality and were then available for use, and which, subject to the approval of the local board of county commissioners, made a permissive installation of the machines in two specified election districts of Montgomery County.

Supra. In 1937, chapter 94 was passed as an emergency law within the scope and meaning of chapter 5 of the Laws of Maryland, Special Session, 1936, which authorized the borrowing of money by the Mayor and City Council of Baltimore for specified exigent purposes. The statute of 1937 was made effective from the date of its passage. The enactment declares the use of voting machines mandatory in all elections in Baltimore City after January 1st, 1938, unless a voting machine becomes unavailable because of an accidental happening; and leaves discretionary the installation of voting machines in the counties.

The statute further prescribes, with respect to Baltimore City, the general features and facilities of the machines; the powers, functions, and duties of the Board of Supervisors; and many provisons and regulations to assure a fair, honest, and free election; a certain and correct vote; and an accurate count and true return of the result. The Act of 1937 directs the Board of Supervisors of ⁵⁸⁴ Election for Baltimore City to use the voting machines which the municipality has purchased. The members of the Board of Estimates of Baltimore City and of the Board of Supervisors are together constituted a special board, and as such are “authorized, empowered and directed to purchase a sufficient number of voting machines for use in all polling places throughout the City of Baltimore.” Section 224A. The expenses incurred by this particular board and the cost of the machines are directed to be paid upon the requisition of this board, and after audit by the comptroller! of the city.

The board is empowered by a majority vote of its members to require such supplementary specifications to those set forth in the act as shall be decided to be proper for the voting machines acquired or to be acquired by this board, and to select in their discretion the type and make of the machines. The special board is further given the authority, in its discretion, to employ engineers or other skillful persons to advise and aid them in the exercise of the powers conferred and duties imposed. After their purchase the machines are to be delivered to the Supervisors of Election, who shall have their control and custody. Wherever possible, these provisions are to be construed in harmony with existing laws.

Section 224A. So, it is argued that this Voting Machine Board has no power to make a valid contract to buy the voting machines, unless the machines are purchased through or with the approval of the Central Purchasing Bureau, and in conformity with the promulgated rules and regulations of that bureau, and the statutory requirement of a bond to the State, if the seller sells in competitive bidding. Code, art. 78, secs. 1-8. The Central Purchasing Bureau was created by chapter 184 of the Acts of 1920, for the purpose of having the various institutions of the State buy through a central agency, and thereby secure lower prices and better quality and results because of the volume bought, of the standardization of materials, supplies, and articles customarily required, and of the check on waste, fraud, and ⁵⁸⁵ extravagance.

The functions of the executive and administrative officers who compose the personnel of the bureau are indicative of the legislative purpose; and there is no suggestion that the boards of election supervisors, which are engaged in a peculiarly important political office, were designed to be grouped with executive official boards, departments, and institutions charged with the administrative activities of the State, so that the equipment of an election should cease to be provided by the officials immediately responsible for the purchase, control, and custody under the law of the election machinery and supplies, and be bought by the Purchasing Bureau. The statutes impose weighty duties upon election officials in order that trickery and fraud may be prevented and freedom and purity of elections may be secured. Their grave responsibility is accompanied by criminal liability denounced by the statute for a failure to fulfill their functions as exacted by law. Considerations which are founded in public policy reject the suggestion that there is an implied legislative intention to divide the authority of the supervisors of election by the interposition of an intermediary, and, notwithstanding, retain the full measure of their liability.

So, both before and since the passage of the statute with which the bureau began, the several boards of supervisors of election throughout the state have been authorized to provide all necessary ballots, ballot boxes, and booths; registry books, poll books, tally sheets, blanks, and stationery. The expenses of the supervisors of election for the purchase of these and all other necessary supplies have been uniformly paid by Baltimore City or by the respective counties. Code, art. 33, secs. 3 (as amended by Acts 1933), ch. 417, 16, 62, 66; Acts 1924, ch. 581, secs. 54-61; 1922, ch. 225; and 1933, ch. 228; 1935, ch. 532 (Code Pub. Gen.

Laws 1924, art. 33, secs. 16, 62, 66; Code (Supp. 1935) art. 33, secs. 3, 54-61, 224A-224D). With respect to the equipment, ballots, ballot boxes, booths, and supplies, either the election law dr the supervisors prescribe their kind, quality, and form, and these matters are not otherwise delegable. ⁵⁸⁶ It is, therefore, reasonable to expect and to find that, within the terms of the statute which grants and defines the scope and power of the bureau, there is the implied exclusion from its operation of all boards of supervisors of election. The exemption appears from the fact that every state officer, board, department, commission, and institution intended to be included is limited to those whose accounts are payable by the Comptroller of the State out of the amounts appropriated therefor by the General Assembly of Maryland in the Budget Bill. Code, art. 78, sec. 4.

Again, it should be observed that the Act of 1937, ch. 94, creates a new board by combining the members of the Board of Election Supervisors for Baltimore City with the members of the Board of Estimates of Baltimore City. The official body so constituted is formed for the express purpose of determining the type and make, with any specifications supplementary to those required by the act, of the voting machines to- be acquired by purchase by this board, and to be paid for by the Mayor and City Council of Baltimore. In the performance of this exclusive function the board is given the authority to inform their judgment by the expert aid and advice of engineers or other skilled persons. These explicit provisions enforce the conclusion that the General Assembly did not intend the full, material, and complete powers of the specially erected board to be rendered meaningless by remitting to the bureau not only the purchase, but also the duty to “determine and formulate standards” of the voting machines.

Code, art. 78, sec. 3. If further support of this conclusion were necessary, it is found in the fact that if the bureau should buy the machines, and they be delivered, and the invoice approved by the bureau, the comptroller could not lawfully pay the account, because there are no funds “appropriated therefor by the General Assembly in the Budget Bill,” as contemplated by the statute in respect of the Purchasing Bureau. Ibid. sec. 4 It is obvious that the contract for the voting machines ⁵⁸⁷ is to be made by the board created by chapter 94 of the Acts of 19,37, without any recourse to the Central Purchasing Bureau. Nor does the court find that the newly-formed Voting Machine Board, as it may be conveniently called, is within any provision of the Charter and Public Local Laws of Baltimore City, which relate to competitive bidding (Pub.

Loc. Laws 1930, art. 4, sec. 14 et seq.). The advertisement and competitive bidding required before a contract may be made for any public work, or the purchase of any supplies or materials, involving an expenditure of $500 or more for the city, or by any of the city departments, subdepartments, or municipal officers not embraced in a department, or special commissions or boards, are made obligatory by sections 14 and 15 of the Charter and Public Local Laws of Baltimore, unless otherwise provided for by the local charter and laws. It is plain that these sections are confined to municipal agencies.

It is true that the term “or special commissions or boards” (section 14) is not specifically described as being confined to those of the municipality, but this is the implication of the context, which is clarified by subsequent sections so as to preclude any other rational construction. Thus, in section 25, the Mayor is granted “the sole power of appointment of all heads of departments, heads of sub-departments, municipal officers not embraced in a department and all special commissioners or boards, except as otherwise provided in this Article [Charter], subject to confirmation by a majority vote of all the members elected to the [Second Branch of the]. 'City Council.” See sections .22, 27, 28, 30, 81, 36, 222B, 480, 515B, 824A. The quotation from section 25 and the other sections cited establish that sections 14 and 15 of the Charter do not apply to the contracts made by the Voting Machine Board, which, as has been seen, is not the creature of the municipality, but a statutory board of purely legislative origin, with a large measure of discretion to be exercised as officials of the State in the performance of a function of vital importance to the people of the entire ⁵⁸⁸ state. Norris v. Mayor and City Council of Baltimore 192 A. 531, 538 .

The authority and power granted the Voting Machine Board in the supplementary specifications which it may adopt for the machines; in the selection, in its discretion, of the type and make of voting machines; and in the employment of experts to inform and aid the board in performance of its duties, are provisions which carry conviction that the right of the board to select and buy is intended to be exclusive, and to be exercised according to the best judgment of the board. It follows that the Voting Machine Board is free to buy in good faith machines as it may deem best. It may buy all or some, either with or without competitive bidding. So, if machines are bought, and prove not to answer some requirement, the board may contract, in its discretion, to have the omission rectified.

This freedom in contract is requisite to the full performance of the important and difficult duties of the Voting Machine Board. The constitutionality of this legislation was sustained on appeal in Norris v. Mayor and City Council of Baltimore, decided May 26th, 1937, and reported in 172 Md. 667 , 192 A. 531 , and thereafter the Voting Machine Board, after study, advice, and deliberation, prepared the specifications for the voting machines and advertised for the submission of proposals or bids for furnishing and delivering 910 voting machines and doing certain other work as set forth in the specifications. The Automatic Voting Machine Corporation and the Shoup Voting Machine Corporation were the two competitors in the 'bidding. The first corporation offered to furnish and deliver 910 voting machines, known as forty candidate machines of the type and size described in the specifications as type A, size 1, at $826.95 a machine, or a total of $752,524.50; and the Shoup Corporation offered to furnish and deliver similar machines at $1,047 each, or a total of $952,770.

The bid of the Automatic Corporation was accepted, and the contract made with the Voting Machine Board on September 8th, 1937. The fol ⁵⁸⁹ lowing day, William S. Norris, a citizen and voter resident in the City of Baltimore, and a taxpayer in said city and state, brought a suit in equity against the eight members of the Voting Machine Board and the Automatic Corporation to annul the contract. On September 18th, 1937, Hattie B. Daly, another citizen, resident and voter of the city and a taxpayer of both city and state, filed a suit in equity against the eight members of the Voting Machine Board, the comptroller of the city, and the Automatic Voting Machine Corporation to have the contract declared illegal and void. The two causes were heard together and testimony was taken by the parties before the chancellor.

The separate decrees passed in each suit were adverse to the complainants, except on the ground that the contract was null and void in that the voting machines bought are so constructed as to deny to a qualified voter the right to vote for any person of his choice, because the voter must vote either for the candidates! whose names are printed upon the voting machine ballot or not vote. For this reason, the defendants were enjoined from the performance of the contract. From this decree in the first suit, separate appeals were taken by the Automatic .Corporation, the members of the Voting Machine Board, the Mayor and City Council of Baltimore; and a cross-appeal from certain portions of the decree was taken by the complainant Norris. Similarly, in the second suit, appeals were taken by all the defendants, and the complainant entered a cross-appeal from certain paragraphs of the decree in that cause.

All the appeals in both causes are brought up on one record. The chancellor found on the testimony that the board had acted throughout in the best faith, without the taint of collusion or other fraudulent or wrongful conduct; and had exercised its discretionary powers after careful and diligent investigation and consideration, and had reached a reasonable conclusion on all matters of fact. The court here is in full agreement with the chancellor on this finding of facts, and so the only inquiry open on this ⁵⁹⁰ appeal is whether the acts of the board are within its lawful authority and power. Fuller Co. v. Elderkin, 160 Md. 660 , 154 A. 548 .

For convenience of discussion, the objections on legal grounds to each bill of complaint have been combined in one group. After an elimination of those matters which are within the sound discretion of the board, and which, therefore, are not reviewable, and, for the reasons which have been stated in this opinion, of the contentions that the buying] of the machines has to be made by or through the State’s Central Purchasing Agency, and that, within the doctrine stated in Konig v. Baltimore, 126 Md. 606 , 95 A. 478 , a proposal or bid may not be accepted under the charter of Baltimore City if it is a departure from those things for which proposals have been, by public advertisement, invited to be made upon prescribed and' definite specifications of the things to be bought, there remain in this group many objections. Most of these are in relation to an alleged failure of the accepted voting machines to conform to the requirements of the statute and of the specifications which were adopted by the board. . The specifications required the bidder to build a sample of the voting machines to be built, and to place' it in the office of the Supervisors of Election.

Before either of the bidders submitted their offers, each installed its sample of a machine. A doubt was expressed before the board whether the machine exhibited by the Automatic Corporation was in compliance with the specifications or the election laws, so another sample machine was provided which differed, as will be later stated, from the first sample. Both these machines were introduced in evidence, and the first will be referred to as Exhibit .1 and the second as Exhibit No. 2. The record has photographic exhibits of material details of these machines.

In addition, the two machines, together with a third one, were produced in the appellate court and their operation demonstrated. This third machine, which will be called Exhibit 3, differed from Exhibit 2 in that it was ⁵⁹¹ equipped with, a device which afforded the voter the opportunity to write in the name of his personal choice for any office when the name of his 'choice did not appear on the ballot as a candidate for that office. From the testimony on the record, the court finds, as did the able and experienced chancellor, that many of the objections urged were of a minor nature, which are either not supported by the proof or are shown by an inspection of the machines and equipment in evidence to be groundless. Moreover they relate, in most instances, to details in arrangement and form which, because of the facilities and adaptability of the machines, could be regulated and adjusted by the Supervisors of Election so as to bring them in reasonable conformity with the, directory requirements of the statutory law.

There are, however, certain allegations which are relied upon to establish that the type of machines which are bought cannot be used in accordance with the election laws. The first is that if there are three or more candidates who are competitors in a primary election for the same party nomination to a state-wide office, the ballot displayed by the machine' shows the name of every candidate more than once. It is asserted that this is a violation of article 33, section 203, of the Code of Public General Laws. In making this contention, its advocates ignore the distinction that section 203 was written for paper ballots and chapter 94 of the Acts of 1937 was drawn with reference to voting machines.

So the latter act recognizes and meets the conditions produced by this difference by declaring that the machine shall be in “substantial compliance with the provisions of Section 203,” and that all laws or portions of laws in conflict with the provisions of the act are .thereby repealed to the extent of such inconsistency or conflict. Acts of 1937, ch. 94, sec. 224-F (d); and section 3. The object of the provision of the election law which prohibited the name of a candidate to appear more than once was to prevent a candidate from gaining the advantage of having his name printed more than once, and the evil of a voter marking ⁵⁹² his ballot more than once for the same candidate. Where the voter may select in a primary election his first and second choice of the candidate for an office, all types of voting machines carry the name of every candidate more than once, but the difficulty is met, and the same result secured as in the provision of section 203 of article 33 with respect to the paper ballot, by the statute prescribing, and the mechanism of the voting machine assuring, the preclusion of “each voter * * * from voting for any candidate for the same office or upon any question more than once.” Section 224-F (e).

Thus the General Assembly, by appropriate but different provisions with respect to each method of voting, accomplished the single contemplated result. If there is any conflict, section 203 must be held repealed or modified to the extent of the inconsistency. The next point for consideration is the contention that in primary elections, where there are three or more candidates for nomination for the same office in the same party primary, the method by which the voter may avail himself of the right to indicate his first and second choice by the ballot presented by the machine bought (Exhibit 1) is illegal. If the voter were to cast a paper ballot, he would receive a ballot with the names of the candidates, and opposite every candidate’s name would be printed two squares, with appropriate legends informing him to mark the first choice square for his first choice and the second choice square for his second choice.

So, if the voter prefers candidate X for first choice and candidate Y for second choice, he makes his mark in the first choice square opposite X’s name, and his other mark in the second choice square opposite Y’s name. The voter may do no more than vote a first choice. Should he, however, mark no first choice, but vote in the second choice block, his vote is counted as a first choice vote for the candidate opposite that block, because having made but one choice the voter is assumed to have no second choice. It follows that in expressing his first and second choice, the voter must make two marks, if a paper ballot is cast.

Section ⁵⁹³ 203, article 33, Code of Public General Laws, Acts of 1912, ch. 2, sec. 160K. The statute of 1937 requires by section 224-F (d) that the voting machine selected must permit voting in “substantial compliance with the provisions of section 203” of article 33. The voting machine which was selected was placed on exhibition in the office of the Supervisors of Election before the bids were opened. It was ready for operation, and a ballot was shown as it was to be voted.

The arrangement of the ballot and the manner of voting are known as “plan A,” and the machine is referred to here as Exhibit 1. The ballot was arranged for a primary election similar to the one last mentioned. Under plan A the voter might depress one lever and vote for X as his first choice. Thereupon the machine locked, and he could not vote his second choice nor could he vote a second choice ballot only.

However, if he have a first and a second choice, he may, by pushing down but one lever, vote both hi’s first and second choice. By these devices the voter expresses his intention. If it be to vote his first- and his second choice, and it can be done by a' single movement of the lever, why should he be required to express the same intended vote by two movements when one will do? A mere economy of effort in giving effect to an identical intention with the same result introduces no substantial difference between plan A and section 203.

In the machine known as Exhibit 2, there is a different arrangement, so that to vote his first and second choice the voter moves a lever for each choice. This arrangement is known as plan B, which is conceded to be legal. Both plan A and plan B allow the voter to cast a first choice vote, without voting a second choice; and not only prevent the voter from voting for the same candidate for first and second choice, but also make it impossible for the voter to vote only a second choice vote. Thus the machine makes it impossible for the voter to commit the errors which thé paper ballot corrects by the provisions that if the voter marks the same candidate for first choice and for second choice, the ballot is only ⁵⁹⁴ counted for first choice for the candidate, and is not counted at all for second choice; and if the ballot is only marked for second choice, it is counted for first choice.

So, under section 203, the alternative second choice must be made in union with the voter’s first choice if a first and second choice vote is expressed. The voter’s second choice is not effective if his first choice get the nomination. His alternative second choice cannot operate, until and unless his and other first choice votes fail to nominate that candidate. It thus appears that machines arranged and equipped in( accordance with plan A or plan B are in substantial compliance with section 203, and accomplish the sanie ultimate object.

Ccurr v. Hyattsville, 115 Md. 545 , 81 A. 8 . The third and most difficult and grave problem is whether the type of voting machines bargained for is lawful, since it has no provision made for the voter to cast his ballot for any other candidates than those appearing on the voting machine ballot. The determination of this question depends upon the meaning of several constitutional provisions in relation to the exercise of the elective franchise. The first is article 7 of the Declaration of Rights, which is: “That the right of the People to participate in the Legislature is the best security of liberty and the foundation of all free Government; for this purpose elections ought to be free and frequent, and every male citizen having the qualifications prescribed by the Constitution, ought to have the right of suffrage.” And the qualifications for the exercise of the elective franchise are thus prescribed by section 1 of article 1 of the Constitution: “All elections shall be by ballot; and every male citizen * * * shall be entitled to vote * * * at all elections hereafter to be held in this State.” Constitution of 1867.

These provisions have been substantially in every Constitution of Maryland. Before and at the time of the adoption of the Constitution of 1867, the elective franchise wfis exercised by unofficial ballots on which the voters freely wrote the names of their own selection for ⁵⁹⁵ the offices to be filled, or marked out names of candidates, if the ballot was printed. Thus the election was free and the right of suffrage was fully enjoyed. Harris on Election Administration (1934) 165; Steiner on Citizenship and Suffrage in Maryland, 31, 78.

This manner of voting continued until the introduction of the Australian Ballot Law, which put an end to the use of unofficial ballots. Acts of 1890, ch. 538; 1892, ch. 236; 1896, ch. 202, secs. 49, 50. The official ballot provided was not designed nor intended to abridge the freedom and initiative of the citizen in the exercise of the right to vote according to his desire. Its purpose was to preserve the integrity and purity of an election by the prevention of fraud, trickery, and corruption, and to secure the secrecy of the vote and the voter from intimidation, coercion, and reprisal without any abridgment of his rights in the enjoyment of the elective franchise.

So, while the ballot became official and formal in arrangement, and the choice of the voter was primarily limited to those candidates for office who had complied with the conditions prescribed by the statute before their names would be placed on the official ballot for the vote of the electors, nevertheless provision -was made for the voter to write, in appropriately provided blank spaces, the names of such persons as he had selected for office. (Acts of 1890, ch. 538, sec. 137, p. 619; 1924, ch. 581, sec. 55.) It is stated by competent authority that: “All but seven states provide for, or permit, the elector to vote for persons who have not been nominated, and whose names are not printed on the ballot.” Harris on Election Administration (1934), p. 176; Brooks on Political Pairties and Election Problems (1936) (3rd Ed.), p. 428. In Cole v. Tucker,