Roe v. Wier

Forsythe, J., delivered the opinion of the Court. The appellant, Dudley G. Roe, and the appellees, David J. Ward and Leon Asa Andrus, were duly qualified candidates in the primary election held on September 8, 1942, for the nomination by the Democratic Party for the office of member of the House of Representatives in the Congress of the United States from the First Congressional District of Maryland. After the official count by the judges of election of the votes cast in the Sixth Election District of Wicomico County, one of the counties comprised in the First Congressional District of Maryland, and after the official canvass of the votes by the Board of Supervisors of Election, sitting as a board of canvassers, it appeared that Mr. Ward had received a plurality of the votes cast, and therefore was declared the nominee and the candidate whose name should appear in the ballots to be voted in the general election to be held on November 3, 1942. ²⁸ After the official declaration of the nomination of Mr. Ward, Mr. Roe, within the time prescribed by the statute, Article 33, Section 255, of the Code of Public General Laws of Maryland, filed a petition with the Board of Supervisors of Election of Wicomico County for an appeal from, and a rewiev of, the action and decision of the judges of election in counting the'ballots cast in the Sixth Election District of Wicomico County. That petition asked for a recount and recanvass of the ballots cast in said Sixth District.

The Board of Supervisors, sitting for the purpose of reviewing and recounting said ballots, under the authority and duty imposed upon them by the above mentioned statute, proceeded to. recount and recanvass the ballots cast in the said primary election for the appellant, and for the appellees Ward and Andrus. The result of that recount and recanvass was as above stated. Thereupon Mr. Roe filed in the Circuit Court for Wicomico County .a petition for a mandamus to compel the Board of Supervisors to reject 138 Democratic ballots, 99 of which had been counted for Mr. Ward and 26 for Mr. Roe. It was alleged in the petition that the said 138 ballots were “erroneously and mistakenly counted” both by the judges of election, and on the review and recount, by the Board of Supervisors.

The particular objection to the ballots, as set out in the petition, is “that the judge of election in said primary, in the said Sixth District holding the ballots and giving them to each voter voting in said district, did not write, in ink, his name or initals upon the back, or elsewhere on any of said ballots, as required by Section 110 of Article 33 of the Code of Public General Laws of Maryland.” The Circuit Court for Wicomico County, after hearing, dismissed appellant’s petition for mandamus, and it is from that action of the court that this appeal was taken. From the pleadings, it appears that the judge of election holding the ballots placed his initials on the ballots ²⁹ in question with an indelible pencil, and the sole contention of the appellant is that those ballots were invalid because ink was not used. The petition does not charge fraud, arbitrary conduct or any other wrongful acts on the part of the judges of election or the supervisors. The charge simply is that the objectionable ballots were “erroneously and mistakenly” counted.

The provision of the statute, Article 33, Section 255, under which the appeal was filed to the Board of Supervisors for a recount, and review of the action of the judges of election, is that the Board of Supervisors are “given jurisdiction and power to hear and determine * * * to review and correct the action of the