Devine v. Wonderlich (1978)
268 N.W.2d 620
268 N.W.2d 620
(Cite as: 268 N.W.2d 620)
Page 5
Code.
The county auditor was uncertain about whether Devine's
name should be printed on the paper ballot. On October 4,
1976, he notified Devine his name would be on the *624
ballot, but two days later he informed him he had changed
his mind. Devine commenced an injunctive action to have
his name put on the ballot. The auditor had stickers printed,
showing Devine's name and the office he sought, which he
intended to attach to the ballot if Devine's lawsuit was successful. However, Devine lost his case, and the auditor gave
the stickers to the secretary of a county taxpayers' association who distributed more than 3000 of them to other persons in the county.
Devine's problem received considerable publicity, and he
campaigned and advertised extensively as a write-in candidate. After the election, the official canvass of votes showed
he received 2655 votes and Wonderlich 2653. However, this
result was upset by the contest court, and Devine also was
declared the loser in district court. This appeal followed.
The district court concluded Wonderlich won by a vote of
2638 to 2503. At issue here is the validity of 282 ballots,
272 of which Devine claims and ten of which Wonderlich
claims.
The contested ballots fall into four main categories. First is
a group of 108 sticker ballots. Second is a group of 77 ballots on most of which the surname "Devine" only or the
name "F. Devine" was written in. Third is a group of 46 ballots in which numerous name variations exist. Fourth is a
group of 51 ballots, including the ten claimed by Wonderlich, which involve other irregularities.
The district court counted 79 of the contested ballots for
Devine, but Wonderlich contends it erred in doing so. Devine asserts the court should have counted all 272 of the
votes he claims.
I. The sticker ballots. Although the use of pasters or stickers
for voting on paper ballots is not expressly provided for by
statute in Iowa, authority for their use exists under s 49.99,
The Code, which provides:
The voter may also insert in writing in the proper place
the name of any person for whom he desires to vote and
place a cross or check in the square opposite thereto. The
writing of such name shall constitute a valid vote for the
person whose name has been written on the ballot without
regard to whether the voter has made a cross or check opposite thereto. The making of a cross or check in a square
opposite a blank without writing a name therein, shall not
affect the validity of the remainder of the ballot.
The words "in writing" include "any mode of representing
words or letters in general use." s 4.1(17), The Code. See
Barr v. Cardell, 173 Iowa 18, 155 N.W. 312 (1915); Ray v.
Hogan, 221 Mass. 223, 108 N.E. 1051 (1915), Murray v.
Floyd, 216 Minn. 69, 11 N.W.2d 780 (1943).
The stickers used on the contested sticker ballots in this case
were in the following form:
FOR MEMBER
BOARD OF SUPERVISORS
Term Commencing 1977
[ ]
FRANCIS P. DEVINE
The sticker accurately states the office and term for which
Devine was running, and the words used to do so are a precise duplicate of words printed on the ballot just above the
space for writing in a candidate's name in all but the Republican and petition-candidate columns on the printed ballot.
Wonderlich alleged the 108 [FN1] ballots containing these
sticker votes could not be counted for Devine because the
stickers have words other than Devine's name printed on
them, and he alternatively alleged 52 of them could not be
counted because they were not affixed in the proper place
on the ballot. The district court rejected his first allegation
but sustained his second. We must now determine if the
court erred.
FN1. He attacked an additional sticker ballot because it was voted in the Republican column. This
ballot is among those discussed in division IV.
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
203
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