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 6 Two statutory provisions bear on this issue. First is the proscription of s 49.98 against marking a ballot in any manner for the purpose of identifying it. Second is the *625 requirement of s 49.99 that a write-in vote be inserted "in the proper place" on the ballot. The extra words on the stickers would invalidate the ballots if they constituted identifying marks within the meaning of s 49.98. This concept is explained in Fullarton v. McCaffrey, 177 Iowa 64, 70-72, 158 N.W. 506, 508 (1916), as follows: The distinguishing mark prohibited by law is one which will enable a person to single out and separate the ballot from others cast at the election. It is something done to the ballot by the elector designedly and for the purpose of indicating who cast it, thereby evading the law insuring the secrecy of the ballot. In order to reject it the court should be able to say, from the appearance of the ballot itself, that the voter likely changed it from its condition when handed to him by the judges of election, otherwise than as authorized, for the purpose of enabling another to distinguish it from others. * * * What is an identifying mark is not defined in our statute, and whether any mark on a ballot other than the cross authorized to be placed thereon was intended as a means of identifying such ballot must be determined from the consideration of its adaptability for that purpose, its relation to other marks thereon, whether it may have resulted from accident, inadvertence or carelessness or evidenced design and the similarity of the ballot with others cast and the like. In other words, the court, in deciding the issue * * * may, and should, consider all the evidence and circumstances bearing thereon precisely as in passing on any other issue. Electors are not presumed to have acted corruptly and identifications only which may fairly be said to be reasonably suited for such purpose, and likely to have been so intended, will justify the rejection of the ballot. See also Headington v. North Winneshiek Comm. School Dist., 254 Iowa 430, 117 N.W.2d 831 (1962); Beck v. Cousins, 252 Iowa 194, 106 N.W.2d 584 (1960). [5] The statute barring identifying marks originated from a desire to guard against the possibility of a vote seller indicating to a vote buyer in advance how his ballot could be dis- 204 tinguished so the buyer could determine if the bribed voter had carried out his agreement. The issue as to whether a particular ballot violates the prohibition is ordinarily one of fact. [6] We agree with the district court that the presence of the extra words on the stickers did not invalidate the 108 ballots. The words were the same as appeared on the ballot; they appeared on all the stickers which the auditor had caused to be printed and obviously were not calculated to permit individual ballots to be identified. They did not constitute identifying marks within the meaning of the prohibition. See Ray v. Hogan, 221 Mass. 223, 108 N.E. 1051 (1951) (the extra words "three years" stating the term of office did not invalidate ballots); 26 Am.Jur.2d Elections s 269 at 96 ("The fact that unnecessary words are printed on stickers used * * * is not a ground for rejecting a ballot.") [7][8] Wonderlich also asserts the 108 ballots are invalid because the additional language spoiled them. The principal basis for this assertion is s 49.68, The Code, which governs instructions to voters. However, this statute is inapplicable. It provides voters are to be instructed not to vote spoiled or defaced ballots. s 49.68(6). A separate provision authorizes a voter to return a spoiled ballot for a new one. s 49.100, The Code. However, assuming a ballot would be "spoiled" by attaching one of the Devine stickers to it, s 49.68 does not make a "spoiled" ballot invalid as such because it does not establish a standard for determining the validity of ballots. The statute is a precautionary device. It is procedural rather than substantive. When construed with s 49.100, it means that when a ballot contains an erasure, crossed out words or other extraneous markings, it is spoiled or defaced and may therefore be replaced. However, when the *626 ballot is not replaced it is not invalid so long as the voter's intent can be ascertained and the markings were not placed on the ballot for the purpose of identifying it. The instructions "do not supersede the statutes, but are intended to guide the voter, and especially to enable him to avoid any mistake in expressing his choice, and prevent him from loading his ballot with identifying marks." Fullarton v. McCaffrey, 177 Iowa 64, 68, 158 N.W. 506, 507 (1916). © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.