Johnson v. Trnka
154 N.W.2d 185
277 Minn. 468, 154 N.W.2d 185
(Cite as: 277 Minn. 468, 154 N.W.2d 185)
facsimile of the official signature, and they may not otherwise mark the ballots.'
The foregoing is a common statutory requirement and is intended to assure the voter that he is given an authentic ballot, to enable the public to identify the actual ballot cast in
the event of an election contest, and to prevent fraud. 29
C.J.S., Election, s 172; Morandi v. Heiman, 23 Ill.2d 365,
178 N.E.2d 314; State ex rel. Braley v. Gay, 59 Minn. 6, 60
N.W. 676; Truelsen v. Hugo, 87 Minn. 139, 91 N.W. 434;
Moyer v. Van De Vanter, 12 Wash. 377, 41 P.2d 60, 29
L.R.A. 670; 6 Dunnell, Dig. (3 ed.) s 2919. These purposes
must be considered in light of the numerous decisions of
this court which express the well-established policy of giving effect to the votes of legal voters regardless of irregularities in the election. No person should be deprived of his
right to vote because of the neglect or carelessness of election officials unless that conduct has been carried to such an
extent as to affect the true outcome of the election and put
the results in doubt. Clayton v. Prince, 129 Minn. 118, 151
N.W. 911; Taylor v. Taylor, 10 Minn. 81 (107); McEwen v.
Prince, 125 Minn. 417, 147 N.W. 275; 6 Dunnell, Dig. (3d
ed.) s 2960. We said in In re Contest of Election of Vetsch,
245 Minn. 229, 238, 71 N.W.2d 652, 658:
'* * * (A)fter an election is over, statutory regulations are
usually construed to be directory rather than mandatory
unless the departure from the statutes casts uncertainty
upon the result.'
*471 With these preliminary observations, we may focus
upon the provisions of s 204.20, which specifically directs
the procedure to be followed as applied to the facts before
us. It appears that in the Township of Cambridge 505 voters
were registered in the election register. 507 ballots were
found in the box. Six of the ballots were not initialed by the
election judges. Of the 6 uninitialed ballots, 4 were for
Johnson and 2 were for Trnka. The court held that these
were properly counted and resolved the issue of the excess
ballots by withdrawing at random 2 ballots from the box
containing 507 ballots, thus reducing the number of ballots
to the correct total as shown by the register. This left contestant Johnson with a majority of 2 votes.
[3][4][5] It should be kept in mind that s 204.20 expressly
provides what should be done when an excess of ballots is
Page 3
found in an election box. The liberal principles which generally hold that neglect and carelessness of election officials
should not deprive a person of his right to vote must yield to
the express provisions of this statute as it applies to the disposition of excess ballots. Section 204.20, subd. 1, requires
that the first thing the judges shall do in the counting process is to ascertain that each ballot is single, 'and count them
to determine whether the number of ballots corresponds
with the number that the election register or registration file
shows were cast.' The outcome of an election should rest
upon ballots received according to law and should not be
determined by illegal votes. Obviously, 2 of the votes which
were cast cannot be said to be legal. Under the circumstances, it was the duty of the election judges, as required by
s 204.20, subd. 2, to examine the ballots in the box 'to ascertain that all are properly marked with the initials of the
judges, and if any are not so marked, they shall preserve but
not count them.' As we understand the language of the statute, a 'properly marked **188 ballot' is one 'marked with the
initials of the judges.' The statute specifically provides that
uninitialed ballots should not be counted.
[6][7] Apparently, the trial court felt that, since there was no
evidence of actual fraud here, a result should be reached in
some manner and therefore employed the method provided
for in the last part of s 204.20, *472 subd. 2, by withdrawing
2 ballots from the total of the ballots cast. That part of the
statute provides:
'* * * If there is still an excess of properly marked ballots,
the judges shall replace them in the box, and one judge,
without looking, shall withdraw from the box a number of
ballots equal to the excessive number, and the withdrawn
ballots shall be preserved but not counted.'
We are of the view that the method used in attempting to determine the outcome was not correct. The above provision
of the statute applies to the conduct of election judges only
where, after removing the uninitialed ballots, it is found that
there is 'still an excess of properly marked ballots * * *. '
Here, of course, there was no excess of properly marked
ballots. If the uninitialed ballots were laid aside and not
counted, as the statute requires, the total number of ballots
would be within the limit of registered voters as shown by
the election register or registration file.
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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