Summary
overruling State ex rel. Karlinger v. Deputy State Supervisors, 80 Ohio St. 471, 89 N.E. 33, 24 L.R.A., N.S., 188
Summary of this case from Jefferson County v. Jefferson County Fis. CourtOpinion
No. 21676
Decided June 19, 1929.
Elections — Voting machines may be used, when — "Ballot" construed — Charter municipalities cannot prescribe method of conducting state and county elections — Constitutional law.
1. A constitutional requirement that all elections be by ballot does not invalidate an otherwise legal enactment providing for the use of voting machines in elections. The term "ballot" designates a method of conducting elections which will insure secrecy, as distinguished from open or viva-voce voting. ( State, ex rel. Karlinger, v. Board of Deputy State Supervisors of Elections, 80 Ohio St. 471, overruled.)
2. A charter city is not authorized, under Section 3 of Article XVIII of the Ohio Constitution, to prescribe a method of conducting state and county elections.
IN MANDAMUS.
This is an action in mandamus originally instituted in this court to compel the defendant, the finance director of the city of East Cleveland, Ohio, to issue a voucher payable from the treasury of the city of East Cleveland to the relator in the sum of $90, for the rental of one voting machine for the period of two years, commencing March 1, 1929.
The petition alleges that at the general election held in the city of East Cleveland on November 5, 1928, the city charter was amended by a vote of 6,024 votes; the amendment to the charter so adopted reading as follows:
"Section 33. All city, county and state elections may be held by voting machines that will preserve the secrecy of the ballot. The Commission may rent or purchase such voting machine as will correctly register and tabulate the votes cast and install the same in one or more precincts.
"Ordinances may be passed to further carry out the provisions of this Section."
The petition further alleges that Ordinance No. 2930, which became effective March 1, 1929, reads as follows:
"Be it ordained by the Commission of the City of East Cleveland, County of Cuyahoga, and State of Ohio:
" Section 1: That the said Manager be and he is hereby authorized and directed to rent a voting machine for a period of two years at a rental not to exceed $90.00 per year, that will preserve the secrecy of the ballots and correctly register and tabulate votes cast and to install the same in all of the precincts within the corporate limits of the City of East Cleveland.
" Section 2: That said voting machine shall be used in said city precincts to register and tabulate votes cast at all city, county and state elections hereafter held.
" Section 3: That this Ordinance shall take effect and be in force from and after the earliest period allowed by law."
The petition further states that on March 2, 1929, in accordance with the ordinance, the city manager of East Cleveland entered into a contract with the relator for the rental of one voting machine, such as would preserve the secrecy of the ballot and correctly register and tabulate the votes cast, providing for a rental charge of $90 for a period of two years, the rental being payable to the relator on the date of the execution of the contract; that, in compliance with this contract, the relator supplied the city of East Cleveland with one voting machine that would preserve the secrecy of the ballot and correctly tabulate the votes cast; and that the city manager thereupon issued an order to the defendant, as finance director of the city of East Cleveland, for the payment from the treasury of such city of the sum of $90 for the rental of such voting machine.
The petition further states that bills duly authorized to be paid by the clerk of the city of East Cleveland are paid by the clerk issuing a voucher on a bank containing funds belonging to the city, such voucher to be signed by the finance director; that a voucher was prepared for the payment of $90 due the relator, which voucher the finance director has failed, neglected, and refused to sign; that there is sufficient money in the hands of the finance director to the credit of the fund set forth for payment of the rental of such voting machine, which money is not otherwise appropriated.
The relator then prays for a writ of mandamus commanding the defendant finance director to issue a voucher payable from the treasury of the city of East Cleveland to the relator, for the sum of $90, for the rental of one voting machine for a period of two years, commencing March 1, 1929, and for such other and further relief to which the relator may be entitled in the premises.
To this petition the defendant has filed a demurrer, upon the ground that the petition fails to state a cause of action in mandamus against this defendant, for the reason that the relief prayed for in plaintiff's petition is contrary to, and in violation of, the Constitution of Ohio, and is in conflict with the general laws of ths state.
An agreed statement of facts is also filed, which virtually admits the allegations of the petition, and sets forth that the Automatic Registering Machine Company, after the enactment of the amendment to the charter and the ordinance hereinbefore set forth, entered into a contract with the manager of the city of East Cleveland for the rental of the voting machine in question, and that the defendant, the finance director of the city of East Cleveland, has refused to sign the voucher for the payment of the consideration to relator for the rental of such voting machine, upon the ground that the amendment to Section 33 of the Charter of the city is in conflict with the general law, and is unconstitutional, in that the Constitution of the state provides that all elections shall be by ballot. Certain depositions are also by stipulation of counsel admitted as a part of the record.
Further facts are stated in the opinion.
Mr. John A. Elden and Mr. George D. Thompson, for relator.
Mr. E.A. Binyon, director of law, and Mr. F.D. Green, for defendant.
The demurrer squarely raises the question of the constitutionality of the charter provision as to voting machines. Hence the chief issue of law to be decided in this case is whether an amendment to the charter of the city of East Cleveland, providing for the casting of votes by a mechanical device, contravenes Section 2 of Article V of the Constitution of Ohio, which requires that all elections shall be by ballot. At the outset we are confronted by the fact that this question has heretofore been decided by this court in the case of State, ex rel. Karlinger, v. Board of Deputy State Supervisors of Elections, 80 Ohio St. 471, 89 N.E. 33, 24 L.R.A. (N.S.), 188, which held that voting by voting machines was not voting by ballot within the constitutional provision. The decision was made by a divided court. The majority opinion based its conclusion partly upon the reasoning that the constitutional provision requires that elections must be conducted by "a printed or written expression of the voter's choice upon some material capable of receiving and reasonably retaining it, prepared or adopted by each individual voter and passing by the act of voting from his exclusive control into that of the election officers, to be by them accepted as the expression of his choice."
The court adverts at length in its opinion to the fact that the voting machine often is incorrect in operation, and that it does not instill in the voter the confidence that he has voted his choice. Since these practical objections evidently had weight in influencing the decision of the court, we proceed to consider the depositions which are by stipulation of counsel made part of the record in this case.
The depositions set forth the statements of election officials of great experience that the use of the voting machine results in a practically infallible count. Mr. H. Allen Nichols, commissioner of elections of Monroe county, New York, an election official with thirty consecutive years of experience; Mr. Alexander S. Carlson, president of the New York state election commission, for 20 years an election official of Onondaga county, New York; Mr. C.H. Pitchforth, county auditor of Muscatine county, Iowa, who has had charge of the elections in his county for seven years; Mr. William Spencer, who has been connected with the election commission of the state of Indiana since 1878 — all describe the practical workings of the voting machine. It is the testimony of these officials that no errors have ever been found in the count of the voting machines where they have been employed; that there has never been a successful contest of elections in precincts where voting machines are in use; that the machines are much easier for the uneducated voter to operate than the Australian ballot. It is demonstrated that the expense of elections has been reduced by the use of voting machines from approximately one-third to one-half; that the secrecy of the ballot is better protected than under the present system of the written or printed sheet; and that the vote cast is counted and returned to election headquarters within 30 to 45 minutes after the polls have closed, a fact which is a practical deterrent to fraud in election counts. Hence the sworn testimony in this record indicates that the practical reasons which seem to have influenced the court some 20 years ago in making the decision in the Karlinger case are completely wiped away by the experience of the years. In 1909 adding machines were little used, and doubtless the lack of experience with the clerical accuracy of such devices had something to do with the decision of the court.
The vital question in the case, however, remains the question whether voting by a voting machine is a voting by ballot. The current of decisions is strongly against the holding in the Karlinger case. 9 Ruling Case Law, 1062. This authority states the general rule to be that a constitutional requirement that the vote be by ballot does not invalidate a statute providing for the use of voting machines in elections, the term "ballot" not being employed in its literal sense, but only for the purpose of designating a method of conducting elections which will insure secrecy. Lynch v. Malley, 215 Ill. 574, 74 N.E. 723, 2 Ann. Cas., 837; U.S. Standard Voting Machine Co. v. Hobson, Judge, 132 Iowa 38, 109 N.W. 458, 7 L.R.A. (N.S.), 512, 119 Am. St. Rep., 539, 10 Ann. Cas., 972; Nichols v. Board of Election Commrs. of City of Boston, 196 Mass. 410, 82 N.E. 50, 12 L.R.A. (N.S.), 280, 124 Am. St. Rep., 568; City of Detroit v. Board of Inspectors of Election, 139 Mich. 548, 102 N.W. 1029, 69 L.R.A., 184, 111 Am. St. Rep., 430, 5 Ann. Cas., 861; Helme v. Board of Election Commissioners, 149 Mich. 390, 113 N.W. 6, 119 Am. St. Rep., 681, 12 Ann. Cas., 473; Elwell v. Comstock, 99 Minn. 261, 109 N.W. 113, 698, 7 L.R.A. (N.S.), 621, 9 Ann. Cas., 270.
In 20 Corpus Juris, 175, Section 213, the same general rule is stated. In 24 L.R.A. (N.S.), 188, it is also said that this court in the Karlinger case arrived at a decision which stands alone. The Ohio decision has been criticized in 9 Columbia Law Review, 732.
The basis of the decisions counter to the Karlinger holding is that the word "ballot," as used in the Constitution, the statutes, and in political literature generally, means secret voting in contradistinction to viva voce, or open voting. Thus Professor John H. Wigmore, in an article in 23 American Law Review, 725, says that "his search has convinced him that in common usage the term ballot has always been used, without an adjective, to express the idea of a vote cast in such a way that its purport is unknown at the time of casting — in short, of 'secret' voting."
In Opinion of the Judges, 7 Me. 492, 495, the court stated that the "word 'ballot' may be considered as opposed to a vote by word or by signs," and decided that printed ballots come within the constitutional provision requiring written votes. The same distinction is drawn in Temple v. Mead, 4 Vt. 535, at page 541.
In the case of Williams v. Stein, 38 Ind. 89, 10 Am. Rep., 97, the court points out the same distinction, holding that the essential of ballot voting is secrecy, in order that the elector may exercise the franchise as he pleases, uncontrolled and unquestioned by any person or power.
The same doctrine has been announced in Ritchie v. Richards, 14 Utah 345, 47 P. 670; Brisbin v. Cleary, 26 Minn. 107, 1 N.W. 825; People v. Cicott, 16 Mich. 297; State v. Shaw, 9 S.C. 94, 138; State, ex rel. Smith, v. Anderson, 26 Fla. 240, 8 So. 1; Ex parte Arnold, Recorder of Voters, 128 Mo., 256, 260, 30 S.W. 768, 1036, 33 L.R.A., 386, 49 Am. St. Rep., 557.
In the exhaustive brief filed on behalf of the relator an interesting discussion is given of the ballot in the English Parliament, the ballot in literature, and the history of the ballot both in other countries and also in colonial times in America, which shows that, while the ballot originally was a ball which was kept concealed in the hand and used without its being known how the voter voted, the derivative and practically universal meaning of the term now is the method of secret voting, or, as stated in part 2 of volume 1 of Cassell Co.'s Encyclopedic Dictionary (1884), page 404, "secret as opposed to open voting."
It was manifestly impossible for the framers of the Ohio Constitution to foresee all of the mechanical developments of our modern age. Just as our forefathers in drafting the national Constitution could not foresee the time when the term "post roads" might be applied to airplane traffic — a traffic through air lanes which have not the slightest physical resemblance to the highway, as it has been known from the time of the Egyptians down — so the framers of the Ohio Constitution could not well foresee the time when a voter, by manipulating a lever, could mark either a straight ticket or a split ticket with exactly the same definiteness of individual expression as when he marks the ballot in his hand. However, surely the impress of a lever upon the record of a voting machine is not much farther removed from marking the ballot by hand than the impress of the key of the typewriter upon the paper is removed from the actual making of characters of the alphabet by hand. If typewriting is the equivalent of long-hand, how can voting by machine be said essentially to differ, except in its efficiency, from voting by the old system of the ballot?
We think that the constitutional provision was meant merely to relate to the essential secrecy of the indication of the voter's choice; that this secrecy has been demonstrated to be retained and enhanced by the use of voting machines; that, by the vast weight of authority, the Karlinger case was an incorrect decision, and therefore we overrule that holding.
We conclude, therefore, that a measure in other respects valid, which provides for the use of voting machines in elections, does not contravene the provision of Section 2 of Article V of the Constitution that all elections shall be by ballot.
A further question arises, however, as to the power of a charter city to provide that county and state elections may be held by voting machines.
Under the doctrine laid down in the case of State, ex rel. Taylor, v. French, 96 Ohio St. 172, 117 N.E. 173, Ann. Cas., 1918C, 896, the power to regulate and supervise elections is a power of local self-government, and is extended even to the point of permitting a charter city to determine that women may vote at a municipal election prior to their general enfranchisement. However, county and state elections are not a matter of municipal concern. The Home Rule Amendment to the Constitution does not give a municipality authority to provide how elections for county and state officers shall be conducted. The mere fact that as a matter of convenience these elections are at times united does not enhance the jurisdiction of the municipality nor extend its power beyond its own territorial limits.
It is conceded that the coming election in East Cleveland is to cover, not only municipal officials, but members of the board of education. The control of election for members of a board of education is not a city function. We hence conclude that, while the major legal question involved in this record must be decided in favor of the relator, the writ must be denied for the reason that Section 33 of the city Charter, in so far as it relates to county and state elections, is unconstitutional and void.
We make no decision as to the provision of the new elections statute relative to voting machines (Section 4785-161, General Code), for the reason that that statute has not yet gone into effect.
Writ denied.
MARSHALL, C.J., KINKADE, MATTHIAS and DAY, JJ., concur.
ROBINSON and JONES, JJ., concur in proposition 2 of the syllabus and in the judgment.