McNulty v. Board of Supervisors of Elections

Finan, J., delivered the opinion of the Court. After oral arguments, we affirmed by per curiam order dated October 20, 1966, the order of the Circuit Court for Anne ⁴ Arundel County which dismissed appellants’ petition for a Writ of Mandamus. Our reasons for affirmance follow. The appellant, Honorable John F. McNulty (hereinafter referred as to McNulty) for some years a member of the General Assembly of Maryland and a candidate for the office of State Senator, in the September 13, 1966 Democratic Primary, petitioned the Circuit Court for Anne Arundel County for a Writ of Mandamus to be directed to the appellees, Board of Supervisors of Elections of that County (hereinafter referred to as the Board), to require them to award to him 136 disputed votes cast in the primary and to declare and certify him as the democratic nominee for the office of State Senator from Election District 6A of that County.

From the lower court’s (Sachse 6 Childs, JJ.) dismissal of the petition for mandamus this appeal was taken. McNulty was one of four candidates running for the Democratic nomination for State Senator from Legislative District 6A. The names of the candidates for that office were arranged in alphabetical order in column seven (7) on the ballot. Thus on line A of column 7 appeared the name of candidate Bertier, on line B candidate Boyd, on line C candidate Clark and on line D candidate McNulty.

Line E, column 7, was left blank. Line E ran across the face of the machine under the columns for all offices and the majority of all blocks in that line, including that portion of line E under the State Senatorial candidate column were left blank. Line E was the last line devoted to democratic candidates. Since Republican levers, below line E on the voting machines were all locked by an attendant when a democrat entered the booth, line E was the “bottom line” for a democratic voter.

To better visualize the situation we have reproduced column 7 as it appeared on the ballot. ⁵ Although it is the established practice for blank spaces on voting machines to be covered by metal plates, spaces in line ⁶ 7E, which were the blocks immediately below the name of McNulty, were left uncovered or “open” on 39 of the 49 voting machines used in District 6A. Failure to cover these spaces was allegedly due to a shortage of covers. There was testimony that the Board did not know of the shortage of covers until the day after the election and that had they known of this shortage they would have made arrangements to borrow additional covers from another County. The Chairman of the Board testified that in his opinion all the levers should have been locked and that the available supply of covers could have been better arranged on the machines. 1 It is uncontradicted that McNulty’s campaign slogan called for the voters to “vote the bottom line.” Since line E was left open it became the bottom line and the 136 votes in dispute are the ones which were cast in block 7E, the blank space directly below McNulty’s name (block 7D).

It is also uncontroverted that McNulty’s campaign manager mailed 15,000 sample ballots showing McNulty’s lever number as 7D; that voting instructions, published in two weekly papers on the Thursday prior to the election and in a daily paper on the Monday preceding the election, specifically told the voters to turn down the pointer over the candidate’s name for whom they wanted to vote; that specimen ballots contained these same instructions ; that voting directions prepared by the Attorney General, containing the specific instruction to pull down the lever over the candidate’s name were posted on all but three voting machines; and that when a voting lever was pulled a white ‘x’ appeared over the name of the candidate directly below the lever. Models of a voting machine, showing a portion of the machine’s face, were also available in each polling place for the voters’ inspection. The results of the election showed McNulty (1964 votes) ⁷ ran second to candidate Bertier (2016 votes). On the 39 machines, on which the E line had been left open, 136 votes had been cast in space 7E.

From these figures candidate Bertier was declared the winner. McNulty requested that the Board of Canvassers award the 136 votes cast in space 7E to him. After a canvass was made, McNulty requested a recount on the premise that the votes cast in 7E were intended for 7D and therefore should have been awarded to him. A recount, at which McNulty was present, was had on 27 September 1966 and on the same day a hearing was held at the office of the appellees.

At this hearing appellant was represented by counsel, who had an opportunity to argue why appellant’s request for the 136 disputed votes should be granted. McNulty produced no witnesses, although he was given the opportunity to do so. After listening to the arguments of all interested parties, the appellees refused to award the 136 votes to McNulty saying: “The Board unanimously feels that the intent of the voter was probably to cast their vote for Mr. Mc-Nulty and other candidates on the D Line, when instead they, in error, pulled the lever for the E Line. We feel sympathetic to these candidates; however our counsel, John Blondell, had advised us there is no legal justification for awarding these votes to them, in the absence of evidence showing that levers over the candidates names could not be pulled.” After the appellees certified Mr. Bertier as the winning candidate, McNulty petitioned the lower court for a Writ of Mandamus.

Candidate Bertier was allowed to intervene in the action as an interested party. Demurrers and answers were filed by appellees and the intervenor. At the hearing on the petition for Mandamus, appellant Elksnis testified that notwithstanding the fact that he had taken a sample ballot card, given out by McNulty, into the voting booth with him when he voted, he cast his vote beneath McNulty’s name (7E) because he had been told at various political rallies, “Don’t forget to vote the bottom line, don’t forget the bottom line, Mr. Wagner and Mr. McNulty,” and that since line E column 7 “was unlocked, * * * I thought I was voting right and I pushed it [lever 7E] ⁸ down.” However, Elksnis admitted that there was nothing to have prevented him from pulling down lever 7D, as the instructions on McNulty’s sample ballot card so advised. McNulty argued that the obvious intention of the 136 voters who had cast votes in block 7E was to vote for him and that since the appellees had found that this was “probably” their intention, these 136 votes should be awarded to him and he should have been certified as the winner of the Democratic nomination for State Senator from Election District 6A of Anne Arundel County.

Elksnis contended that if the votes cast in space 7E were not awarded to McNulty, he and 135 other voters would thereby be disenfranchised, in violation of the law and the Constitution of the United States. It should be noted that, even though line E was left unlocked, or “open,” only 1 vote could be cast in column 7, thus there was no possibility of 1 person voting twice for a State Senatorial candidate (column 7). Holding that the judicial process does not extend to guessing what a voter intended to do or for whom he intended to vote, and finding no fraud or arbitrary conduct on the part of the appellees, the lower court dismissed the petition for a Writ of Mandamus. For many years this Court has held that the actions of a Board of Supervisors of Elections in the absence of fraud are reviewable on mandamus only in the event that such conduct is capricious or arbitrary, although it is also now well settled that an error of law committed by a quasi-judicial body is an abuse of discretion and hence reviewable.

Hammond v. Love, 187 Md. 138, 143-45 , 49 A. 2d 75, 77-78 (1946). Accordingly the question before this Court was whether or not the lower court erred in refusing to issue a Writ of Mandamus holding that the Board was not guilty of arbitrary or capricious action in refusing to award the 136 disputed votes to McNulty. It is rational to assume that wherever an ambiguity arises with regard to election results, every effort should be made to reasonably ascertain the intention of voters and this is the initial duty of the Board. See Wilkinson v. McGill, 192 Md. 387 , 64 A. 2d 266 (1949).

It is also axiomatic that unnecessary dis ⁹ enfranchisement of voters due to minor errors or irregularities in casting their ballots, in the absence of fraud, should be avoided Coulehan v. White, 95 Md. 703 , 53 Atl. 786 (1902). In the past this Court endeavored to give the fullest meaning to the aforegoing principles in the cases of Mahoney v. Sup. of Elections, 205 Md. 380 , 109 A. 2d 110 (1954) and Mahoney v. Sup. of Elections, 205 Md. 325 , 108 A. 2d 143 (1954). The opinions of Chief Judge Bruñe and Judge Delaplaine in these cases make it clear that where a Board of Supervisors of Elections makes a mistake of law, the Court has the power by mandamus to correct it. Keeping these principles before us let us review the present case.

The record is devoid of any