LAWRENCE V. McCAVITT. vs. REGISTRARS OF VOTERS OF BROCKTON & others. [Note 1]

ABRAMS, J. This case involves a dispute over the results of the November 3, 1981, mayoral election in the city of Brockton. On April 5, 1982, we entered the following order. "At issue is the outcome of the November 3, 1981, mayoral election in the city of Brockton. Paul V. Studenski and Lawrence V. McCavitt, the candidates, each claim victory, and each has been declare the victor during different prior proceedings. After the polls closed, Studenski was declared the victor by twenty-three votes. Each candidate asked for a hand recount. See G. L. c. 54, Sections 135 and 135B. At the recount, McCavitt also asserted that `[c]ertain absentee ballots were improperly counted for Paul V. Studenski in that the applications were improper, and there were improper affidavits and returns.' McCavitt, however, did not challenge any specific absentee ballot at the recount. After the hand count was completed, the Board of Registrars of Voters (board) and the city clear announced that Studenski had won the election by twelve votes.

"On December 9, 1981, McCavitt filed an action in the Superior Court challenging the board's determination that Studenski had won the election. McCavitt asked the judge to declare McCavitt the winner or to declare `that there has

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been a failure to elect a Mayor and order a new election . . . .'After a trial in late December, 1981, a judge declared McCavitt the winner by one vote on December 30, 1981. On January 19, 1982, the judge entered an amended final judgment declaring McCavitt the winner by four votes. Studenski appeals. McCavitt filed a cross-appeal. The board and the city clerk also claimed an appeal. On February 17, 1982, we granted the parties' joint application for direct appellate review.

"To determine the outcome of this election, we must decide whether the same standards that apply to the counting of paper ballots govern a hand recount of punch card ballots. Next, we must decide whether an absentee ballot is invalid if the voter fails to comply strictly with the law governing absentee voting. See G. L. c. 54, Section 92. Finally, we must decide whether the government may compel an absentee voter, who has cast his ballot in good faith, but whose ballot is defective because of a failure to comply strictly with the absentee voting law, to disclose the candidate for whom he or she voted.

"We think that the judge correctly ruled that a hand recount of punch cards is governed by the same standards which govern a recount of paper ballots. We also believe that in the absence of evidence of fraud or intentional wrongdoing, an absentee ballot must be counted unless the voter substantially fails to comply with the absentee voting law. Finally, we conclude that in the absence of evidence of fraud or intentional wrongdoing, a voter who has cast an absentee ballot in good faith may not be asked to reveal for whom he or she voted. Such a requirement burdens the fundamental right to vote and strikes at the heart of the American tradition of the secret ballot. If the outcome of an election depends on good faith absentee voters whose facially valid ballots must be rejected because of procedural mistakes, we believe that a new election is preferable to compelling those voters to disclose the candidate for whom they voted.

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"Applying these principles to the case at bar, we conclude that the judge correctly determined that after the hand count of the punch cards, Studenski had a five vote lead. Further, one facially invalid absentee ballot rejected by the judge, because the counted for Studenski. Finally, seven of the eleven facially valid absentee ballots challenged [Note 2] by McCavitt at trial should not have been counted. Cast by good faith voters, these seven defective ballots determine the election. We, therefore, reverse the judgment and direct the entry of a judgment ordering a new election." This opinion is in explanation of that order.

1. Hand recount of punch card ballots. The city of Brockton uses an electronic voting system. To indicate their selection, voters place punch cards in a special device. While a card is in the device, a metal stylus punches a hole in the space or "chad" beside the name of the candidate whom the voter has chosen. Later, a reading machine counts the votes each candidate received by passing light through the holes the stylus has punched. As light passes through a hole, the machine records each vote.

Sometimes a voter does not completely detach the "chad" from the ballot. If the voter punches the card when it is outside the device, imperfectly applies the stylus to the card while it is in the device, or punches the card with a pen or pencil instead of the stylus, partial perforations, pinholes or depressions may result. If light cannot pass through these indentations, the reading machine treats the ballot as a blank.

On election night, the reading machine counted the votes cast for mayor. According to this count, Studenski received 10,135 votes and McCavitt received 10,112 votes. Thus, Studenski was declared the winner by twenty-three votes. McCavitt and Studenski petitioned for a hand recount. At the recount, the board determined that over 300 ballots that the machine read as blank had been intended as votes for

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one of the two candidates. The board concluded that Studenski received 10,291 votes, and that McCavitt received 10,279 votes. The board therefore announced that Studenski had defeated McCavitt by twelve votes.

At trial, the court reviewed over 400 challenged regular and absentee ballots de novo to determine the intent of the voters. Applying the same standard used to count paper ballots, the judge found that Studenski received 10,290 votes, and the McCavitt received 10,285 votes. [Note 3]

On appeal, Studenski claims that the judge did not apply the correct standard for determining the intent of the voters. Instead of using the paper ballot standard, Studenski asserts that the judge should have used the light standard. Under this standard, the judge would have limited his review of the challenged punch cards to a determination of whether unimpeded light can pass through the ballot. If light flows through the card, the judge would record the indentation on the ballot as a vote. If light cannot pass through the card, the judge would treat the ballot as a blank. Studenski claims that when punch card ballots are used, the light standard is the only method for ascertaining the intent of the voters with reasonable certainty. We do not agree.

We resolve "voting disputes, where at all possible, in favor of the voter." Santana v. Registrars of Voters of Worcester, 384 Mass. 487, 491 (1981). " `The object of election laws is to secure the rights of duly qualified electors and not to defeat them.' This must be borne in mind in the construction of such statutes, and the presumption is that they are enacted to prevent fraud and to secure freedom of choice, and not by technical obstructions to make the right of voting insecure." Blackmer v. Hildreth, 181 Mass. 29, 31 (1902), quoting from People v. Wood, 148 N.Y. 142, 147 (1895).

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We agree with the judge that the standard governing hand recounts of paper ballots is appropriate in this case. "The cardinal rule for guidance of election officers and courts in cases of this nature is that if the intent of the voter can be determined with reasonable certainty from an inspection of the ballot, in light of the generally known conditions attendant upon the election, effect must be given to that intent and the vote counted in accordance therewith, provided the voter has substantially complied with the requisites of the election law; if that intent cannot thus be fairly and satisfactorily ascertained, the ballot cannot rightly be counted." O'Brien v. Election Comm'rs of Boston, 257 Mass. 332, 338 (1926). The use of the paper ballot standard is the most practical method of ascertaining voter intent. [Note 4] Therefore, the judge correctly considered the "character and location of the mark and the conditions attendant upon the election." Kane v. Registrars of Voters of Fall River, 328 Mass. 511, 518 (1952). In addition, the judge correctly inspected each ballot for patterns that reveal the voters' intent. See Morris v. Registrars of Voters of E. Bridgewater, 362 Mass. 48, 50-51 (1972); Munn v. Dabrowski, 335 Mass. 41, 44-45 (1956); Gilligan v. Registrars of Voters of Wilmington, 323 Mass. 346, 348 (1948). By focusing on a variety of factors, the judge was able to ascertain the intent

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of some voters whose ballots would have been treated as blanks under the light standard.

Further, use of the paper ballot standard is consistent with the statutes. Under G. L. c. 54, Sections 135, 135B, a candidate desiring a recount has a choice between a hand or a machine recount. This choice would be rendered meaningless if those counting punch card ballots by hand had to use the light standard, the same standard used by the machine. We cannot assume that the Legislature intended to enact a barren and ineffective statute. See Baystate Medical Center v. Blue Cross of Mass., Inc., 382 Mass. 485, 491 (1981); Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189 (1969). Hence, we believe that the Legislature did not intend to limit the hand recount of punch card ballots authorized by G. L. c. 54, Section 135B, to a determination whether light passes through the ballot. We therefore affirm the judge's ruling that the standard for counting paper ballots should apply as nearly as possible to a hand count of punch card ballots.

The determination of the legal effect of ballots is a question of law. Morris v. Registrars of Voters of E. Bridgewater, 362 Mass. 48,49 (1972). The recount by the board is not final, and the judge must make a de novo determination of the voters' intent. When this question comes before us, we have the same function. DePetrillo v. Registrars of Voters of Rehoboth, 342 Mass. 13, 14 (1961).

After examining the challenged ballots de novo, we conclude that Studenski received 10,291 votes and McCavitt 10,286 votes. [Note 5] Before we consider the challenges to the absentee ballots, Studenski has five more votes than McCavitt. [Note 6]

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2. Absentee ballots. We turn to the challenges to two absentee ballots alleged to be facially invalid, and to eleven facially valid absentee ballots. Studenski asserts that McCavitt waived any objection to absentee ballots by failing to make individual protests to specific absentee ballots during the recount proceeding. According to Studenski, the failure to challenge individual absentee ballots is fatal to McCavitt's claim of invalidity. However, a petition which alleges that "absentee ballots and the applications therefor are in error," is sufficient to preserve the issue for judicial determination. Desjourdy v. Registrars of Voters of Uxbridge, 358 Mass. 664, 667 (1971). McCavitt's recount petition claimed that "[c]ertain absentee ballots were improperly counted for Paul V. Studenski in that the applications were improper, and there were improper affidavits and returns." We conclude that this sufficiently preserved the issue for judicial review. [Note 7]

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a. Facially invalid absentee ballots. The judge upheld the clerk's action in rejecting two absentee ballots for facial violations of G. L. c. 54, Section 92. Pursuant to G. L. c. 54, Section 94, the clerk rejected a ballot from ward two which was notarized by a candidate for school committee in ward five. In addition, the clerk rejected a second absentee ballot because he could not read the notary's commission was missing. See G. L. c. 54, Section 87 (c). Since these ballots did not comply with the statutes, the judge ruled that the rejection of these ballots was proper.

General Laws c. 54, Section 94, provides that the clerk shall reject a ballot if the person who notarized the affidavit "is a candidate for election at the election." General Laws c. 54, Section 92, states that an absentee ballot is defective "if the official . . .in whose presence it was marked and before whom the affidavit required was executed is a candidate for any office." Reading Sections 92 and 94 together, we conclude that the Legislature intended to bar a candidate for any office in an election from notarizing any absentee ballots in that election. This prohibition applies whether or not the candidate's name appears on the specific ballot that he notarized.

Although his name did not appear on the ballot in ward two, the notary was a candidate for school committee in the Brockton municipal election, held on November 3, 1981. As such, he was barred from notarizing any absentee ballots cast in that election. Pursuant to G. L. c. 54, Section 94, the clerk rightly rejected the ballot notarized by this candidate. The decision of the judge sustaining the clerk's action was proper.

But the judge should not have sustained the clerk's rejection of the ballot with the illegible notary signature and the missing commission expiration date. [Note 8] A voter who has cast

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his ballot in good faith should not be disenfranchised "because of the failure of a ministerial officer to perform some duty imposed upon him by law." Meyer v. Keller, 376 So. 2d 636, 638 (La. App. 1979), quoting from Champagne v. Ackal, 256 So. 2d 483, 486 (La. App. 1972). [Note 9] We therefore believe that these irregularities must be regarded as immaterial. Since this ballot was cast for Studenski, we must add one vote to Studenski's total. With the addition of this vote, Studenski has 10,292 votes and McCavitt has 10,286 votes. Before we consider the challenges to the facially valid absentee ballots, Studenski is ahead by six votes. [Note 10]

b. Facially valid absentee ballots. At issue are the eleven facially valid absentee ballots which the trial judge rejected. [Note 11] General Laws c. 54, Section 92, [Note 12] sets out the safeguards

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to ensure that absentee ballots represent the will of the voter. Desjourdy v. Registrars of Voters of Uxbridge, 358 Mass. 664, 671 (1971). The statute requires that before voting an absentee voter shall exhibit his ballot to a notary who must satisfy himself that the ballot has not yet been marked. The voter shall then mark his ballot in the presence of the notary, and no other person. If the voter is blind, disabled, or unable to read English, a qualified voter may also be present to assist the voter in marking his ballot. However, in the case of a disabled voter, the notary must add a statement that the voter is unable to write and the reasons therefor, See G. L. c. 54, Section 98. [Note 13] Once the voter has marked his ballot, he must place it in the specially provided envelope and execute the affidavit on the envelope in the presence of a notary. The notary must attest to the affidavit in the presence of the voter. See G. L. c. 54, Section 92. See also Desjourdy v. Registrars of Voters of Uxbridge, 358 Mass. 664, 671 (1971). The voter shall then mail his ballot to the city or town clerk. See G. L. c. 54, Section 87 (d).

The trial judge found that eleven absentee voters, whose ballots were counted by the clerk and the board, failed to follow the material procedures set out in G. L. c. 54, Section 92. Consequently, the judge ruled that the absentee ballots cast by those voters were invalid and had to be rejected.

Studenski concedes that the absentee voters whose ballots were rejected did not strictly comply with G. L. c. 54, Section 92. Nevertheless, he claims that these deviations from the statute were immaterial and, therefore, the judge should not have rejected those ballots. To support this argument,

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Studenski points out that there is no evidence that any of these voters were involved in fraud or intentional wrongdoing. McCavitt also does not charge these absentee voters with fraud or intentional wrongdoing.

A citizen who votes in person is not to be disenfranchised for minor irregularities. All that is required is substantial compliance with the election laws. Chamberlain v. Registrars of Voters of Harwich, 358 Mass. 536, 538 (1970). Kane v. Registrars of Voters of Fall River, 328 Mass. 511, 518 (1952). Gilligan v. Registrar of Voters of Wilmington, 323 Mass. 346, 349 (1948).

The same principles govern absentee voting. The right of absentee voting is "as sacred, as much to be protected and favored . . . as the right of voting by personal presence." Bryan v. Barnett, 35 N.M. 207, 212 (1930). See Kiehne v. Atwood, 93 N.M. 657 664 (1979). "The preservation of the enfranchisement of qualified voters and of the secrecy of the ballot, the prevention of fraud, and the achievement of a reasonably prompt determination of the result of the election have been the vital considerations in the development of absentee voting legislation." Bell v. Gannaway, 303 Minn. 346, 353 (1975). The absentee voting laws enlarge the right to vote. See Mittelstadt v. Bender, 210 N.W. 2d 89, 95 (N.D. 1973); Kiehne v. Atwood, supra. An absentee voter should not be disenfranchised if he substantially complies with the election law. See Boardman v. Esteva, 323 So. 2d 259, 269 (Fla. 1975), appeal dismissed, 425 U.S. 967 (1976); Lanser v. Koconis, 62 Wis. 2d 86, 92 (1974); Application of Moore, 57 N.J.Super. 244, 256 (1959).

Six voters marked their ballots outside the presence of a notary. [Note 14] The requirement that a voter mark his ballot in

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the presence of a notary is a significant safeguard against fraud. Cf. Desjourdy v. Registrars of Voters of Uxbridge, 385 Mass. 664, 671 (1971); Barks v. Turnbeau, 573 S.W.2d 677, 682 (Mo. 1978); Kiehne v. Atwood, 93 N.M. 657, 667 (1979). These voters substantially failed to comply with a material provision of G. L. c. 54, Section 92. [Note 15]

One other absentee voter substantially failed to comply with G. L. c. 54, Section 92. This voter not only marked the ballot in the presence of others besides the notary, but also failed to exhibit the unmarked ballot to the notary before voting. In addition, the voter did not knowingly take an oath before a notary. Further, after completing the ballot, the voter did not mail it directly to the town clerk. Instead, the voter gave it to someone, who turned it over to the notary. The notary also signed the envelope outside the voter's presence. Thus, seven absentee voters substantially failed to comply with the statute. These seven votes, therefore, are improperly included in the over-all total. See 839 & n.5, and 842, supra.

Three voters followed all the procedures set out in G. L. c. 54, Section 92, except that they failed to exhibit their unmarked ballots to the notary before voting. Each of these voters marked his ballot in the presence of a notary, placed it in the specially provided envelope, and executed the affidavit on the envelope in the presence of a notary. A notary also signed the envelope in the presence of these voters. These procedures are a sufficient guaranty that these voters marked their own ballots. See Application of Moore, 57 N.J.Super. 244, 254 (1959). Since this one violation of

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G. L. c. 54, Section 92, in no way impaired the integrity of the ballot, we conclude that these three voters substantially complied with G. L. c. 54, Section 92.

One disabled voter received assistance in marking the ballot. See G. L. c. 54, Section 98. The notary, however, failed to add a statement as required by G. L. c. 54, Section 98, that this voter was unable to write. In addition, the voter did not prove that the person assisting was qualified to vote. See G. L. c. 54, Section 98.

Votes counted by election officials are presumed to be legal. The challenger has the burden of overcoming that presumption. See Kiehne v. Atwood, 93 N.M. 657, 662 (1979). Since the challenger did not introduce any evidence that the person assisting the disabled voter was not qualified to vote, he has not met his burden.

The ballot was marked and the affidavits were executed in the presence of a notary. These procedures provide adequate safeguards against fraud. A disabled voter who substantially complies with G. L. c. 54, Sections 92, 98, should not lose his or her vote because the notary failed to perform his duty. See 841-842 & n.9 supra. Cf. Boardman v. Esteva, 323 So. 2d 259, 269 (Fla. 1975); Meyer v. Keller, 376 So.2d 636, 638-639 (La. App. 1979). Thus, these four ballots were correctly included in the over-all total. See 839 & n.5, and 842, supra.

3. Ballot Secrecy. In order to preserve ballot secrecy, facially valid absentee ballots are irrevocably separated from their envelopes prior to being counted. The question, thus, is how to reject the seven defective absentee ballots after the votes have been included in the over-all results. The judge compelled the voters who cast these invalid ballots to disclose the candidates for whom they had voted. [Note 16] After

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discovering which candidate had been credited with each invalid vote, the judge subtracted the defective vote from the appropriate candidate's total, and declared the winner. We believe that the judge erred in compelling the absentee voters who made mistakes in the execution of their ballots to disclose for whom they voted. [Note 17]

Courts have required illegal voters to state for whom they voted. See Wehrung v. Ideal School Dist. No. 10, 78 N.W.2d 68, 69 (N.D. 1956); Kiehne v. Atwood, 93 N.M. 657, 661 (1979); Olipint v. Christy, 157 Tex. 1, 8-9 (1957); Singletary v. Kelley, 242 Cal. App. 2d 611, 613 (1966). See also 8 J. Wigmore, Evidence Section 2214 (McNaughton rev. 1961). These courts reason that ballot secrecy is "intended to protect the inviolable secrecy of an honest ballot, and thus the purity of the ballot-box. It was not intended to be used in aid of the schemes of corrupt men to defeat the will of the people." G. McCrary, Elections Section 494 (4th ed. 1897). However, that rationale does not apply to voters whose ballots are rejected only because they made a mistake in marking their absentee ballots.

We think there is an important distinction between fraud, intentional wrongdoing, and mere failure to follow directions. See Note, Developments in the Law: Elections, 88 Harv. L. Rev. 1111, 1320 n.109 (1975). See also Taylor v. Pile, 154 Colo. 516, 522 (1964); Belcher v. Mayor of Ann Arbor, 402 Mich. 132, 134 (1978). We decline to burden

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the good faith absentee voter with the possibility that a technical mistake in the execution of an absentee ballot may require the voter to reveal for whom he or she voted. Ballot secrecy enables a voter to make a selection "independently and freely, without being subject to be overawed, intimidated, or in any manner controlled by others, and protects him from any ill will or persecution on account of his vote. The secret ballot is . . . an important and valuable safeguard for the protection of the voter, and particularly the humble citizen, against the influence which wealth and station may be supposed to exercise." G. McCrary, Elections Section 488 (4th ed. 1897). See T. Cooley, Constitutional Limitations 605 (2d ed. 1871). Compelling voter testimony in these circumstances is "a kind of inquisitorial power unknown to the principles of our government and constitution, and might be highly injurious to the suffrages of a free people, as well as tending to create cabals and disturbances between contending parties in popular elections." Johnston v. The Corp., 1 S.C.L. (1 Bay)441 (1795).

Moreover, the procedure followed by the judge conflicts with the intent of the Legislature to expand the use of absentee ballots so that more citizens will participate in the election process. If potential absentee voters think that their ballots will not remain secret, they may not take advantage of the absentee ballot law provisions. In addition, "[m]odern transportation has greatly affected our social and economic lives and many persons find it necessary or convenient to be away on election day. The number of absentee ballots is increasing rather than decreasing." Lanser v. Koconis, 62 Wis. 2d 86, 92 (1974), quoting from Sommerfeld v. Board of Canvassers, 269 Wis. 299, 302 (1955). We cannot sanction a result which tends to reduce citizen participation in the election process. That is too high a price to pay in a participatory democracy. We therefore conclude that good faith voters may not be asked to reveal the candidate for whom their absentee ballots were cast. [Note 18]

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Further, ballot secrecy "safeguards the purity of our election process by eliminating the fear of scorn and ridicule, as well as lessening the evils of violence, intimidation, bribery and other corrupt practices which can be incumbent in nonsecret elections." Anderson v. Mills, 664 F.2d 600, 608 (6th Cir. 1981). See 2 J. Weinstein & M. Berger, Evidence par. 5.07[02] (1981); Nutting, Freedom of Silence: Constitutional Protection Against Governmental Intrusions in Political Affairs, 47 Mich. L. Rev. 181, 194 (1948). A voter asked to disclose his vote "could then be subjected to a moral compulsion from his party associates." Major v. Barker, 99 Ky. 305, 310 (1896). "[I]t would . . . be dangerous to receive and rely upon the subsequent statement of the voters as to their intentions, after it is ascertained precisely what effect their votes would have upon the result." Briscoe v. Between Consol. School Dist., 171 Ga. 820, 824 (1931). Indeed, it might be possible that an election could be bought by the use of voter testimony. See Pennington v. Hare, 60 Minn. 146, 148 (1895); Note, Evidence: Voter Testimony -- A Faulty Legislative Response to Helm v. State Election Board, 33 Okla. L. Rev. 150, 156 (1980). Since ballot secrecy safeguards society's interest in the integrity of elections, we hold that the right to a secret ballot is not an individual right which may be waived by a good faith voter. [Note 19] Without

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the testimony from the seven absentee voters, there is no way to determine the outcome of the November 3, 1981, contest for mayor of Brockton.

Studenski contends that we should arbitrarily divide the illegal votes between the candidates in proportion to the whole vote of each. See Singletary v. Kelley, 242 Cal. App. 2d 611, 612 (1966). See also G. McCrary, Elections Section 497 (4th ed. 1897). Studenski's suggestion "may sometimes work a great hardship, inasmuch as the truth might be, if it could be shown, that all the illegal votes were on one side, while it is scarcely to be presumed that they would ever be divided between the candidates in proportion to their whole vote." Id. at Section 496. We decline to follow an arbitrary rule which is inconsistent with the theory of a popularly elected representative government. Instead, we believe that "whenever the irregularity or illegality of the election is such that the result of the election would be placed in doubt, then the election must be set aside," and the judge must order a new election. Callison v. Peeples, 102 S.C. 256, 265 (1915). See Citizens for a Referendum Vote v. Worcester, 375 Mass. 218, 219 (1978); McRobbie v. Registrars of Voters of Ipswich, 322 Mass. 530, 533 (1948). See also Jardon v. Meadowbrook-Fairview Metropolitan Dist., 190 Colo. 528 (1976); Stinson v. Manning, 221 Ga. 487 (1965); Akizaki v. Fong, 51 Haw. 354 (1979); Application of Moffat, 142 N.J.Super. 217 (1976).

We, therefore, vacated the judgment declaring McCavitt the duly elected mayor, and directed the entry of judgment ordering a new election.