The Resolution of Election Disputes: Legal Principles that Control Election Challenges 302 N.W.2d 440 100 Wis.2d 490, 302 N.W.2d 440 (Cite as: 100 Wis.2d 490, 302 N.W.2d 440) 7.60, Stats.; (6) The ballots provided by the county board committee were cast and counted in the election contrary to sec. 7.50(1), Stats." McNally v. Tollander, 97 Wis.2d 583, 602, 294 N.W.2d 660 (Ct.App.1980). These election defects were not discovered after the election results were in. Rather, the record shows that the election statutes were intentionally ignored by public officials who were anxious to put the referendum issue on the November 1976 general election, even though the statutory requirements could not be timely met. Proper notice and simple compliance with the clear language of the election statutes would have avoided the problems now before us, that have now delayed resolution of the county seat question for over four years. *499 Because we hold that the failure to provide ballots to forty percent of the voters by itself requires that the election be set aside, we need not consider whether the several other defects involved mandatory provisions that would provide additional bases for setting aside the election. The Court of Appeals relied on this Court's decision in the very early case of State ex rel. Wold v. Hanson, 87 Wis. 177, 58 N.W. 237 (1894), in sustaining this election, despite the massive exclusion of qualified voters. Hanson was a quo warranto action in which the plaintiff, a losing candidate in a circuit court clerk election, sought to be placed in that office and to have the winning candidate excluded. The plaintiff's action was premised on the fact that eighteen qualified voters who desired to vote **445 for him were excluded from the polling place because election clerks erroneously believed they were not qualified voters. If all eighteen disenfranchised voters had cast their ballots for the plaintiff, he would have won the election by five votes. This Court let the election stand, stating that: "The exclusion of legal votes not fraudulently, but through error in judgment will not defeat an election. It is an error which there is no mode of correcting, even by the aid of the courts, since it cannot be known with certainty afterwards how the excluded electors would have voted; and it is obvious that it would be dangerous to receive and 328 Page 5 rely upon their subsequent statements as to their intentions, after it is ascertained precisely what effect their votes would have had upon the result.... An election honestly conducted under the forms of law ought generally to stand, notwithstanding individual electors may have been deprived of their votes, or unqualified voters have been allowed to participate. Individuals may suffer wrong in such cases, and a candidate who was the real choice of the people may sometimes be deprived of his election; but, as it is generally impossible to arrive at any greater certainty of result by resort to oral evidence, public policy is best subserved *500 by allowing the election to stand, and trusting to a strict enforcement of the criminal laws for greater security against the like irregularities and wrongs in the future." (Quoting Cooley, Const.Lim., 781 (6th ed.) (emphasis added). Hanson, supra, 87 Wis. at 179, 58 N.W. 237. We agree with this statement as a general rule. But the facts of the case case before us set it apart from the usual election contest case. First, the number of voters who were denied ballots in the present case was very substantial. Some 2,500 voters, approximately forty percent of the electorate, were denied ballots. Second, this is not a quo warranto action brought by a losing candidate for elective office. Instead, we are confronted with an entire class of voters whose right to participate in a referendum election was denied through no fault of theirs. In Clapp v. Joint School District, 21 Wis.2d 473, 124 N.W.2d 678 (1963), this Court suggested that a case involving deprivation of the right to vote would be treated differently from the run of cases involving procedural irregularities. The Court in Clapp stated: "We do not have a case of a resident demanding an absentee ballot for himself and being refused by a schooldistrict clerk and without such an affirmative proof, the election ought not to be held void if it is considered the furnishing of absentee ballots is mandatory." Clapp, supra, 21 Wis.2d at 481, 124 N.W.2d 678. The case now before us does present that affirmative proof of voters denied ballots. And, while absentee voting is a privilege, Clapp, supra, 21 Wis.2d at 481, 124 N.W.2d 678, © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.