Mahoney v. Board of Supervisors of Elections

Brune, C. J., delivered the opinion of the Court. This is the second appeal in this case. On the day following its argument in this Court we filed a per curiam order affirming the judgment of the Circuit Court for Talbot County which denied and dismissed the appellant’s petition for a writ of mandamus after a full hearing on the merits. The case (together with a companion case arising in Queen Anne’s County) first came before us on an appeal from an order sustaining a demurrer to the appellant’s petition incorporated in the answer of the Supervisors of Election of Talbot County (usually referred to below as the “Supervisors”) and a demurrer filed by the intervening respondent, Dr. H. C. Byrd, the appellant’s opponent for the Democratic Party’s nomination for Governor in the primary election held on June 28, 1954.

By a per curiam order, since followed by the full opinion ³⁸⁵ of this Court, we reversed the order sustaining the demurrers. The facts of the -case up to that stage of the controversy are fully stated in the opinion written by Judge Delaplaine (Mahoney v. Supervisors of Elections of Queen Anne’s County, Mahoney v. Supervisors of Elections of Talbot County, 205 Md. 325 , 108 A. 2d 143 ) and will not be repeated here. Following the remand of the case the Supervisors filed an amended answer and the intervenor filed an answer to the petition. The petitioner joined issue and traversed the answer, and the Supervisors and the intervenor demurred to the traverse.

These demurrers were overruled and the case went to trial on the merits. During the hearing 289 challenged ballots which had been segregated during the recount were introduced in evidence, and 35 of them were not then objected to by either side, thus reducing the number of challenged ballots to 254. The ballots were divided into classes or types designated by letters from A to P, inclusive, depending upon the principal type of objection asserted against them, all of which are described, and many of which are illustrated, in the painstaking and comprehensive opinion of the trial court. (At the hearing there proved to be no ballots classified as belonging to Type C (a check mark) or Type H (shaded), both of which Types were described in the appellant’s petition.) Where any ballot was claimed to be defective in more than one respect, the additional defect or defects were noted.

The trial court reviewed all of the challenged ballots, some of which had been cast for Mr. Mahoney and most of which had been cast for Dr. Byrd. The recount had shown a total of 1826 votes counted for Dr. Byrd and 1769 counted for Mr. Mahoney. As a result of the trial court’s review of the ballots, 16 votes cast for Dr. Byrd and 12 cast for Mr. Mahoney were eliminated. This reduced the majority for Dr. Byrd from 57 as returned by the Supervisors to 53, but did not change the result of the election.

Hence, the writ of mandamus did not issue. ³⁸⁶ The law applicable to the merits of this case was indicated in our previous opinion. We recognized that relief by way of mandamus is available for the correction of a clear legal error on the part of the Board of Supervisors. (Hammond v. Love, 187 Md. 138 , 49 A. 2d 75 .) We also recognized that the provision of Code (1951), Article 33, Section 85, for the rejection of ballots on which there may be any mark “other than the cross-mark in a square opposite the name of a candidate” is mandatory. However, our opinion also made it clear that the quoted phrase is not to be construed absolutely literally, for we said: “The test for determining the validity of a ballot is that when an irregularity in the marking of- a cross-mark apparently occurred accidentally and in pursuance of the voter’s purpose to make a cross-mark as prescribed by the statute, the votes on the ballot should be countéd; but when the irregularity was apparently placed on the ballot intentionally and constituted a means of identifying the ballot, the ballot should be rejected.” Almost since the first enactment by the Laws of 1901 (Special Session), Chapter 2, Section 66, of the provision quoted, it has not been construed with literal narrowness.

It is true that in Duvall v. Miller, 94 Md. 697 , 51 A. 570 , some rather sweeping language was used with regard to literal compliance with the text of the then very recently enacted statute. Even that opinion was by a divided Court (4-3) on the validity of ballots on which the end of a cross-mark extended beyond the square; and in less than a year thereafter, in Coulehan v. White, 95 Md. 703 , 53 A. 786 , which is briefly reviewed and summarized in our previous opinion in this case, a more liberal view was taken and some marks not within the square opposite the name of a candidate were held not to invalidate the ballots on which they appeared. It may be noted that of the four Judges who constituted the majority on the point on which this Court divided in Duvall v. Miller, three (including the writer of the ³⁸⁷ Duvall opinion) concurred in the per curiam opinion in Coulehan v. White, and the fourth did not sit in the latter case. Judge Boyd, who was of the minority in Duvall v. Miller, wrote the opinion of the trial court in Coulehan v. White.

This opinion was adopted without dissent and with only one change by the Court of Appeals. That one change involved a construction of the opinion in Duvall v. Miller and held valid some ballots which the trial court had rejected on its interpretation of the Duvall case. Since the Coulehan case the statute has been amended and liberalized. Chapter 576 of the Laws of 1908 liberalized it in two ways, one of which was to validate ballots of a kind held invalid in Duvall v. Miller and Coulehan v. White because a cross-mark extended beyond the lines of a square.

On the other hand, there was then, and there has been since then, no narrowing by legislation of any of the several liberal and non-literal constructions adopted in the Coulehan case. The repeal and re-enactment of the statute without changing the language applicable to these constructions indicates a legislative acceptance of-them. Sonnenburg v. Monumental Motor Tours, 198 Md. 227 , 81 A. 2d 617 ; Dept. of Tidewater Fisheries v. Sollers, 201 Md. 603 , 95 A. 2d 306 ; Nutwell v. Supervisors of Elections of Anne Arundel County, 205 Md. 338 , 108 A. 2d 149 . The principal contention of the appellant is, in substance, that the Supervisors have discretion only to determine the fact of the existence .of a mark (not due to an imperfection in the paper or to a like cause) other than the cross-mark in a square opposite the name of the candidate.

This, we think, is too narrow a view of the discretion confided to the Supervisors. It would push the rule of Hammond v. Love, supra, too far. Our previous opinion in this case expressly recognized that the Supervisors, “in making a recount of votes, are vested with discretion in determining whether a ballot should be counted or rejected,” and we further said: “We reaffirm the rule that where the Election Super ³⁸⁸ visors have not acted in violation of law, their action in counting or rejecting ballots cast in a primary election is not subject to review by mandamus in the absence of fraud or arbitrary conduct. White v. Laird, 127 Md. 120 , 96 A. 318 ; Fitzgerald v. Quinn, 159 Md. 543 , 151 A. 660 ; Roe v. Weir, 181 Md. 26 , 28 A. 2d 471 .

On the contrary, where a Board of Election Supervisors has made an obvious mistake of law in counting or rejecting ballots, the court has the power to correct such mistake.” The opinion of the learned trial judge upon which his rulings with, respect to the various challenged ballots were based, was in accordance with these views. He said: “To sum it all up succinctly, this Court believes that in the absence of improper motives on the part of the Supervisors, or a charge of fraud or actual arbitrary conduct, a Court of Law will not substitute its judgment for that of the Supervisors by granting a Mandamus compelling the Supervisors to reject certain ballots and count others, provided the Supervisors do nothing which is clearly contrary to law.” He then proceeded to review; each of the challenged ballots and set forth his conclusions with respect to each class and the ballots comprised therein. The case was tried by agreement of the parties without a jury; and on appeal, the question before us is whether or not on the law and the facts the writ should have issued. Whitridge v. Pope, 110 Md. 486 , 73 A. 288 ; Woods v. Simpson, 146 Md. 547 , 126 A. 882 ; Strott v. Broening, 160 Md. 560 , 154 A. 45 ; Schriver v. Mayor & City Council of Cumberland, 169 Md. 286 , 181 A. 443 ; Hecht v. Crook, 184 Md. 271 , 40 A. 2d 673 .

We have already expressed our agreement with the general rules of law set forth in the opinion of the trial court, and the care and thoroughness of its opinion in dealing with each class of alleged defects and with individual ballots have greatly facilitated our review. As a general observation, we may note that every one of the types of objection noted by the appellant was of a kind with respect to which the Supervisors were re ³⁸⁹ quired to exercise their judgment and which called for a determination of fact. Their exercise of judgment has been reviewed by the trial court; and with regard to the vast majority of the challenged ballots, that court has found the evidence insufficient to warrant the conclusion that the Supervisors acted clearly illegally in determining to count the ballots in question. We repeat what we said in our earlier opinion in this case — that there is no statutory right of appeal from the Supervisors to a court for a recount of votes in a primary election.

Judicial review is available in such cases only through mandamus proceedings and where, as here, there is no charge of fraud, only to redress clearly arbitrary or illegal action. Where the error is obvious and the facts are beyond dispute, as in Hammond v. Love, supra, this involves no great delay in ascertaining the result of a primary election. On the other hand, the practical difficulties where paper ballots are still in use inherent in the application or extension of the doctrine of Hammond v. Love to the determination of controverted factual details committed to the Supervisors of Elections for decision in the exercise of their discretionary powers, require little, if any elaboration. The time needed for the determination of the result of the primary election contest which gave rise to this case (and others) points them up.

That election was held on June 28th and our per curiam decision on the merits of this case (which did end the contest) was filed on August 25, 1954. Little time was then left before the date fixed for the mailing of absentee ballots for the general election. How much longer another case which, we were informed, would have followed this one if the judgment of the trial court had been reversed, would have delayed the determination of the outcome of this election is problematical. So is the time which might have been needed for the conclusion of this case, in which, we were told, the intervenor, Dr. Byrd, would have sought, in the event of reversal, to obtain a review of many ballots cast for his opponent and not previously challenged. ³⁹⁰ The preservation of the secrecy of the ballot is, of course,