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 10
column. The issue is whether this is "the proper place" for a
write-in. Although space existed where the name was
placed, the form for the write-in was not printed on the ballot like it was under all but one of the other columns, and, of
course, Devine was a Democratic and not a Republican candidate. If it was not wrong for the voters to write the name
in the Republican column, it was not wrong for them to
place it under Wonderlich's name because that was within
the space in which the office was designated.
We have not had a case on this issue, but a decision from
Washington in which a similar problem was involved is persuasive. In Knowles v. Holly, 82 Wash.2d 694, 513 P.2d 18
(1973), the court held the correct party designation is not essential to the validity of a general election write-in vote. A
mistake as to the candidate's party is not a mistake of his
identity.
No doubt exists here of the voters' intent to cast these eight
ballots for Devine. We hold they should have been counted
for him. See also Sizemore v. Henson, 264 S.W.2d 865
(Ct.App.Ky.1954) (write-in of independent under the name
of the Republican candidate ballot held valid); Frothingham
v. Woodside, 122 Me. 525, 120 A. 906 (1923) (ballot valid
where Democratic write-in placed in Republican column).
We note that at least three write-in votes were cast for Wonderlich in the Democratic column and were counted.
We believe the district court was right in holding invalid the
remaining three disputed Devine ballots.
However, of the 41 disputed ballots discussed in this division which Devine claims, we hold the district court should
have counted *630 38 for him instead of four. Of the ten
disputed votes claimed by Wonderlich, we hold the court
should have counted nine.
We have held 164 ballots rejected by the district court
should have been counted for Devine, making his total
2667. Nine additional votes should have been counted for
Wonderlich, making his total 2647.
We hold Devine won the election. The case is reversed and
remanded for judgment ordering issuance of a certificate of
election to him in conformity with this holding.
REVERSED AND REMANDED.
All Justices concur.
268 N.W.2d 620
END OF DOCUMENT
[24] On seven other ballots Devine's name was written in
twice, once in the Democratic column and once in the Independent column. A voter may not vote for more than one
candidate for a single office. s 49.93, The Code. However,
the statutes do not speak to the problem of voting twice on a
single ballot for one candidate. We believe common sense
and general principles should govern. No doubt exists regarding the voters' intent to vote for Devine. These ballots
are valid as single votes for Devine and should have been
counted for him. See Sizemore v. Henson, 264 S.W.2d 865
(Ct.App.Ky.1954) (ballot marked twice for same candidate);
Howard v. Harrington, 114 Me. 443, 96 A. 769 (1916)
(ballot not invalid when same name placed on it in writing
and by sticker); Frothingham v. Woodside, 122 Me. 525,
120 A. 906 (1923) (marking ballot twice for same candidate
was a mere emphasis of choice).
208
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents