
    Village of Richwood v. Algower.
    
      Election contest — Marking ballot by elector — Form of ballot — Section 6130, General Code — Intention of voter — Writing of name on ballot — Misplacing cross-mark — Ballot invalid, ivhen — Section 6134, General Code — Intoxicating liquors.
    
    1. A ballot upon which a voter has written his name is invalid and should not be counted.
    2. A ballot containing the word “no” written by the voter in the blank space opposite the negative proposition submitted under the provisions of Section 6130, General Code, is of such character that it is impossible to ascertain the intention of the voter and should be excluded from the count.
    3. In an election held under the foregoing provisions of the code, where the affirmative and negative propositions have been printed within enclosed spaces and separate enclosed blank spaces have been provided to the left of each for the placing of a cross-mark therein, and the voter has placed his cross- ' mark entirely outside of the spaces in which the propositions are printed and entirely outside the blank spaces to the left thereof, it is impossible to ascertain the intention of the voter of such ballot and such ballot is invalid and should not be counted.
    (No. 15277
    Decided January 30, 1917.)
    Error to the Court of Appeals of Union county.
    On January 12, 1915, an election was held in the village of Richwood, Union 'county, Ohio, under the provisions of Section 6127 et seq., General Code, for the purpose of determining “whether the sale of intoxicating liquors as a beverage” should be prohibited within the municipal limits. The village contained two voting precincts. The certified result of the election showed that in the north precinct the drys cast 157 votes, the wets 145, and in the south precinct the drys cast 112 votes, the wets 123, thus giving a majority of one vote in favor of the drys. The contestor, Carl Algower, thereupon instituted proceedings to contest the validity of the election, under the provisions of Section 6134, General Code.
    The form of ballot submitted to the electors contained affirmative and negative propositions, each of which was printed within an enclosed blank space, and separate, enclosed blank spaces, opposite and to the left of each such proposition on the ballot, were provided for the purpose of having the electors make their cross-mark therein. The géneral form of ballot is contained in the opinion following.
    The result of the election turned upon the validity of eight certain ballots cast at such election, which were attached to the record as exhibits. Exhibits “6,” “7,” “10,” “11” and “J” were all similar to the form of ballot contained in the opinion, and exhibit “I” was siniilar to those exhibits except that it contained an additional cross-mark, immediately above and without the blank space, opposite the affirmative proposition. Exhibit “L” contained the name of A. C. Smart written in with, and immediately below, the affirmative proposition, but contained no cross-mark. Exhibit “9” contained no cross-mark, but had the word “No” written in the enclosed blank space immediately opposite and to the left of the negative proposition.
    The judges of election in the north precinct counted exhibit “L” in favor of the dry proposition and rejected exhibits “I” and “J” from the count, fn the south precinct the judges counted exhibits “6,” “7,” “9,” “10” and “11” in favor of the wets. The official count, so certified, resulted in 269 votes dry and 268 wet.
    On a hearing the probate court found that one disqualified voter voted for the drys, and, further, deducted exhibit “L” from the dry total. It also deducted exhibits “6,” “7,” “10,” “11” and “9” from the wet total and refused to count exhibits “I” and “J” in favor of either proposition, thus leaving a majority of four in favor of the drys. The common pleas court affirmed the probate court, finding that there was no error manifest upon the face of the record, but its entry does not specifically pass upon any of the disputed ballots. The court of appeals, by a divided court, reversed the lower courts, it appearing by its journal entry that the five ballots marked with an “X”.below and outside of the block to the left of the negative proposition should be counted in favor of that proposition. These five ballots were exhibits “6,” “7,” “10,” “11” and “J.” Upon the undisputed facts that court ordered the case remanded to the probate court with instructions to correct the returns accordingly, showing the corrected total of 267 votes for the dry proposition and 268 for the wet or negative proposition. On motion of plaintiff in error the cause was directed to be certified to this court for hearing on error.
    
      Mr. James McCampbell and Mr. J. A. White, for plaintiff in error.
    . Mr. C. A. Hoopes; Mr. P. E. Dempsey and Mr. Timothy S. Hogan, for defendant in error.
   Jones, J.

As to three of the disputed ballots there seems to be a unanimity of judgment in the lower courts that each of them was invalid and should not be counted. This is manifestly true of exhibit “I,” where it was impossible to determine the intention of the voter upon the propositions involved, for the reason that he had made two cross-marks, one of which was above the affirmative proposition submitted and the other below the negative proposition, neither of them being included within anjr of the blank spaces on the ballot. Exhibit “9” was also properly excluded. The placing by the voter of the word “No” in the blank space to the left of the negative proposition was a double negative, and it is not clear whether the voter intended to emphasize his dissent from the * affirmative proposition submitted, or to emphasize his dissent from the negative proposition, to the left of which he had undertaken to write that word. Likewise the ballot described as exhibit “L” is properly excluded from the count for the reason that it contained a distinguishing characteristic identifying the voter who had cast that ballot. The purpose of the Ohio Australian ballot law is primarily to safeguard the secrecy of the ballot. Where this system of balloting has been adopted in the several states it has been held, irrespective of the fact whether the state law condemns these specific violations of the secrecy of the ballot, that a mark of this character placed upon the ballot in such form as to identify the voter thereof is against the policy of the law and invalidates the ballot. Were it otherwise, the purpose of the law would be defeated and there might result a wide field for bribery and corruption. Section 13271, General Code, emphasizes this policy by penalizing an elector who purposely marks his ballot so that it may be identified.

In the lower courts, however, the main question turned upon the issue whether the five ballots, viz., exhibits “6,” “7,” “10,” “11” and “J” should be excluded from the count or whether they should be counted in favor of the wet or negative proposition; and the solution of this question determines the judgment in this case. These ballots were, each of them, substantially as follower

It will be noted that these ballots contain a horizontal line directly under the negative proposition, enclosing it within a space of its own. They also contain a vertical line separating the propositions submitted from two enclosed blank spaces on the left, and the cross-mark was made immediately below and entirely without the blank space where the law provides it should be.

The Ohio ballot law relating to this subject is as follows:

Section 5070, General Code, provides:
“8. If a question is submitted, the elector shall make a cross-mark in the blank space at the left of and before the answer which he desires to give.
“9. No ballots shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.”
Section 6130, General Code, provides:
“The ballots at the election, held under the provisions of the next three preceding sections, shall be printed with an affirmative and a negative statement, to-wit: ‘the sale of intoxicating liquors as a beverage shall be prohibited,’ ‘the sale of intoxicating liquors as a beverage shall not be prohibited,’ with a blank space on the left side of each statement in which to give each elector an opportunity to clearly designate his choice by a cross mark as follows :
The sale of intoxicating liquors as a beverage shall be prohibited.
“(........) The sale of intoxicating liquors as a beverage shall not be prohibited.”

For the reason that the election laws of the various states vary as to the efficacy of ballots marked without the space specifically provided by their election laws, it is obviously difficult to obtain a rule of uniformity from the authorities cited. Suffice it to say that with a view to preserving the right of elective franchise to the citizen elector, in the absence of statutory provisions invalidating the ballot, the courts of this country have generally adopted a rule of liberality for the purpose of ascertaining and safeguarding the intention of the voter in the exercise of his constitutional privilege, and the Ohio statute above quoted emphasizes that feature when it provides that no ballot shall be rejected for technicalities which do not make it impossible to determine the voter’s choice. If the courts of other states have held that certain requirements for marking ballots are mandatory, it is because the specific, laws of such states relating thereto make ballots marked in noncompliance therewith invalid, or direct that they shall not be counted. And it is because of these distinctive features in the several jurisdictions that the courts generally have differed in their holdings as to whether the requirements are mandatory or directory.

The provisions of our law, requiring the cross-mark to be placed in the block directly opposite to the name voted for or proposition submitted, are directory. The Ohio law stipulates that no ballot shall be rejected if it is possible to determine the voter’s choice, but the converse of the statement follows, that if it is possible to determine the voter’s choice the ballot should not be rejected.

Applying a liberal rule to the ballots in dispute this court is unable to determine the voter’s choice between the two propositions submitted to him. There should be some effort at least of compliance with the requirements of the law. So far as these ballots are concerned they may have been voted by illiterates unable to distinguish the propositions submitted. Such evidently was the character of the elector who voted exhibit “1.” Or they may have been marked by electors who did not desire to commit themselves on the issue submitted. If the cross-mark had impinged on the horizontal line below the negative proposition, there would have been reason. to hold the ballot valid, in as much as the voter had thus identified and associated his cross-mark with the proposition submitted; likewise, had there been no horizontal line printed on the ballot below the negative proposition, the cross-mark might then also have been so associated with the full space so provided as to exhibit an intention to vote for the proposition embodied therein. These ballots are plainly distinguished from those reported in the case of State, ex rel. Bambach, v. Markley, 9 C. C, N. S., 561, affirmed by this court without opinion in 76 Ohio St., 636. In that case the cross-mark was made at various places within the column occupied by the name of Bambach alone, and it was there held that it was the evident intention of the voters to vote for the person occupying that column, but had there been another name in the independent column occupied by Mr. Bambach it is obvious that all the ballots thus marked would not have been credited to Mr. Bambach.

For the reasons stated the judgment of the court of appeals is reversed and the judgments of the probate and common pleas courts affirmed.

Judgment reversed.

Nichols, C. J., Wanamaker, Matthias, Johnson and Donahue, JJ., concur.

Newman, J., dissents from the third proposition of the syllabus and from the judgment.  