The Resolution of Election Disputes: Legal Principles that Control Election Challenges
268 N.W.2d 620
268 N.W.2d 620
(Cite as: 268 N.W.2d 620)
Page 8
use of the surname is sufficient in the circumstances to indicate for whom the voter intended to cast his ballot. Beck
v. Cousins, 252 Iowa 194, 106 N.W.2d 584 (1960); Brown
v. McCollum, 76 Iowa 479, 41 N.W. 197 (1889). As these
cases hold, the issue is to be decided in light of all facts of a
general public nature surrounding the election which the
voter may be presumed to know and in view of which he
may be presumed to have exercised his franchise. Among
the circumstances bearing on the determination of voter intent are whether the write-in candidacy was well publicized
and whether other candidates and other residents of the locality involved had the same or similar surname.
In this case Devine's candidacy was well publicized and advertised. Because of this and because of his prior candidacy
for the same office, his name was familiar to many voters in
this rural, lightly-populated county. Ten other residents of
the county bore the same surname, but all were relatives of
Devine and none was a candidate for this or any other office. One was his 70 year-old aunt and the others were all
members of his immediate family. In addition, another person, a non-relative named Daniel Edward Devine, had died
in March 1976, about eight months before the election.
The circumstances here are sufficiently close to those in the
Brown and Beck cases to warrant the same result. In view of
Devine's active candidacy, the publicity and advertising
which accompanied it, and the unlikelihood of his being
confused with the few other persons having the same surname, none of whom were shown to be politically active,
the use of his surname alone was sufficient to indicate a
vote for him.
We find that the voters who wrote in the surname Devine,
Mr. Devine, or F. Devine intended to vote for candidate
Francis P. Devine.
In addition to the Brown and Beck cases, authorities from
other jurisdictions support this conclusion. See Fitzsimmons
v. Wilks, 25 Cal.App. 56, 142 P. 892 (1914) (three members
of immediate family bore same surname); Kreitz v.
Behrensmeyer, 125 Ill. 141, 17 N.E. 232 (1888) (other persons in the county had the same surname but none was a
candidate); Gulino v. Cerny, 13 Ill.2d 244, 148 N.E.2d 724
(1958); Dupin v. Sullivan, 355 S.W.2d 676
206
(Ct.App.Ky.1962) (other persons in the city had the same
surname but were not candidates); Petrie v. Curtis, 387
Mich. 436, 196 N.W.2d 761 (1972); Kasten v. Guth, 395
S.W.2d 433 (Mo.1965); Petition of Fifteen Registered
Voters on behalf of Flanagan, 129 N.J.Super. 296, 323 A.2d
521 (1974) (nine other registered voters had the same surname but none was a candidate); Chonin v. Millspaugh, 13
Misc.2d 841, 180 N.Y.S.2d 674 (1958); Keenan v. Briden,
45 R.I. 119, 119 A. 138 (1922); Annot., 86 A.L.R.2d 1025
et seq. See also 26 Am.Jur.2d Elections s 272 at 99
("Although some courts deem themselves bound by a
stricter rule, it has been held that a ballot that contains a
candidate's surname only may be counted, even though
there are other persons in the county having the same surname."); 29 C.J.S. Elections s 180 at 518.
We hold the district court erred in refusing to count these 77
votes for Devine.
[14] III. Other name variations. The trial court counted 19 of
46 ballots for Devine on which numerous variations of his
name appeared. The principle which is applicable *628 in
this situation is similar to the one involved when the surname alone is written in. The voter's intention, if it can be
ascertained, should not be defeated or frustrated by the fact
the name of the candidate is misspelled, or the wrong initials were employed, or some other slightly different name
of similar pronunciation or sound has been written instead
of the actual name of the candidate intended to be voted for.
Brown v. McCollum, 76 Iowa 479, 485, 41 N.W. 197, 198
(1889). In Brown, ballots were counted for Ella S. Brown
on which the write-ins were "Mrs. A. Brown", "Ella
Brown", "Miss Emma Brown", and "Elice Brown".
[15] In the present case the district court counted 19 votes
for Devine where the name variations were slight. Examples
include "France Devine", "France P. Defvine", and "Franics
P. Deiven". These all appear to be attempts by voters to cast
their ballot for Devine, and we believe the trial court was
correct in counting these votes for him.
[16] However, the court rejected an additional ballot which
comes within the same principle. This ballot was cast for
"Frank Devine". We find it sufficiently reflects an intent to
vote for Francis P. Devine and should have been counted for
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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