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20 Ohio C.C. Dec. 113

State ex rel. Bambach v. Markle

Brown Circuit Court

Decided February 15, 1907

Brown Circuit Court · decided 1907-02-15

<p>CONTEST OF ELECTION.</p> <p>Jones, Walters and Cherrington, JJ.</p> <p>1. Necessity of Averment of Contestee's Residence.</p> <p>In a contest of an election for common pleas judge in a subdivision composed of two counties, failure to aver that the contestee is a resident of the county in which the action is brought does not deprive the court of jurisdiction.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 266-271. — Ed.]</p> <p>2. Admissibility of Parol Evidence of Destroyed Ballots.</p> <p>Where ballots have, been destroyed by the judges of election, which the statute does not require shall be destroyed, oral testimony is admissible in a contest of, the election to show how these ballots came to be destroyed, and for whom they were voted, and how they were marked.</p> <p>3. Parol Evidence to Identify Poll Books and Tally Sheets. .</p> <p>The will and judgment of voters cannot be rendered ineffectual through a disregard by the judges of election of their duty as laid down in the statute, whether such disregard be due to fraud, accident, mistake, misapprehension or negligence; and where such omitted duties with reference to the ballots cast were of a ministerial character, oral evidence is admissible to show the true character of the ballots as to which there is doubt, and to identify with certainty the poll books and tally sheets, and when the ballots in question are found to be truthful, they should be counted for the candidate for whom the voters intended they should be counted if that intention can be ascertained.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 284-292. — Ed.]</p> <p>4. Sufficiency of Marking Vote for Nonpartisan Candidate.</p> <p>Inasmuch as a single candidate on a nonpartisan ticket has no party emblem and no one else can go on that ticket, the printing on the nonpartisan ticket of words indicating various offices to be filled and voted for, with a circle above and blocks outside of the column will be regarded as surplusage; and if a voter makes a mark above or below or on the side or at the top of the column occupied by the name of the nonpartisan candidate, his intention to vote for such candidate is clearly indicated and the ballot should be counted.</p> <p>[For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 175-181. — Ed.]</p> <p>5. Right of Residents of Illegal District to Vote.</p> <p>Where territory is transferred from one township to another by an unconstitutional statute, electors in such territory are not thereby made legal voters of the township to which it is sought to attach the territory.</p> <p>6. When Voter may be Compelled to Tell How He Voted.</p> <p>While the law does not permit the questioning of a legal voter as to how he voted, and an illegal voter might decline to answer on the ground that his answer might tend to incriminate him, yet where an illegal voter does not claim his privilege of refusing to testify, but voluntarily discloses that he did vote, he may be compelled to tell for whom he voted.</p>

Decided 1907-02-15

JONES, J.

¶1I concur in the judgment by a plurality of thirteen only. It is undisputed-that ten of the destroyed ballots were so marked for judge, that the judges of election were unable to count them for that office but counted them for the other offices. These were not sealed up but were destroyed without protest from a single judge; they became, therefore, counted ballots. The Ohio election laws having securely guarded the canvass of votes; provided for inspectors and bipartisan judges; stipulated that all disputed ballots shall be sealed up for “judicial review”; and *125'that all the ballots counted shall be destroyed, thus effacing the primary •evidence of the voter’s intention, I hold that parol evidence is not admissible to show how such ballots were, marked. Any other rule would •open the door to fraud and perjury. As to four other destroyed ballots, •disputed by one or more judges who voted against their destruction, I am inclined to agree that oral testimony may be received showing how they were marked.

¶2Tabulated statement of votes: Supervisor of elections counted for •Judge Markley, 4,686 votes; supervisor of elections counted for Judge Bambach, 4,259 votes.

¶3Votes for judge rejected: Markley-Byrd township, 61 votes; Mt. Oreb, 48 votes; Hamersville, 22 votes. Total rejected for Markley, 131 votes.

¶4Bambach-Byrd, 142 votes; Mt. Oreb, 77 votes; Hamersville, 29 votes. Total rejected for Bambach, 248 votes.

¶5Total for Markley on face of returns, 4,686 votes. Add number of rejected votes, 131 votes. Total,as corrected, 4,817 votes.

¶6Total for Bambach on face of returns, 4,259 votes. Add number of rejected votes, 248 votes. Total as corrected, 4,777 votes.

¶7Deducting from Markley’s vote of 4,817, thus corrected, the Bam-baeh votes of 4,777, so corrected, leaves Markley over Bambach 40 votes.

¶8Deduct four votes from Perry township counted for Markley leaves 36 votes for Markley over Bambach.

¶9Disputed ballots: Markley now has over Bambach 36 votes; Union township Exb. B (9) of sealed ballots, 1 vote; Union township Exb. B (7) of seáled ballots, 1 vote; Union township Exb. B (6) of sealed ballots, 1 vote-; Union township Exb. B (3) of sealed ballots, 1 vote; Hamersville Exb. K (1) of sealed ballots, 1 vote. Total 41 votes. Deduct eleven illegal infirmary votes leaves Markley 30 votes.

¶10As to ten of the fourteen destroyed ballots, the presiding judge is •doubtful as to whether testimony being introduced should be confined to those ballots concerning which there was a dispute among the judges, ■ and that they should have certified.

¶11Bambach votes: Ripley, A (2), 1; Ripley, A (3), 1; Ripley, A (4), 1; Ripley, A (5),1; Ripley, A (6), 1; Ripley, A (8), 1; Ripley, A (11), 1; Ripley, A (13), 1; Ripley, A (15), 1; Ripley, A (16), 1; Ripley, A (17), 1; Ripley, A (18), 1; Ripley, A (19), 1; Ripley, A (12)„ 1; Ripley, B (11), 1; Ripley, B (10), 1; Ripley, B (8), 1; Ripley, B (5), .1; Ripley, B (4), 1; Ripley, B (2), 1; Ripley, B (1), 1; Franklin *126township, C (1), 1; Franklin township, C (2), i; Huntington township,, seven ballots all marked alike, 7; Aberdeen, I (6), 1; Aberdeen, I (5), 1; Aberdeen, I (3), 1; Aberdeen, I (2), 1; Jackson, G (2), 1; Hamers-ville, K (2), 1; Feesbnrg, H (1), 1; Washington township, F (1), 1;. Russellville, E (1), 1; Clermont, North Franklin, L (1), 1.

¶12Destroyed ballots: Higginsport, 3; Eagle, 4; Franklin, 3; Bard-well, 2; Jefferson township, 1; Washington township, 1. Total, 54.

¶13Deduct from same, Smith, infirmary vote, 1; deduct Markley vote,. 30; Bambach over Markley, 23 votes.

¶14One, Higginsport, disputed; 2, Eagle; 1, Washington; 4 destroyed, ballots.

¶15This leaves Bambach over Markley twenty-three votes in the whole subdivision. A decree will be entered accordingly.

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