Oregon Advisory Opinions November 02, 1966: OAG 66-136 (November 2, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-136.

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Where a voter casts a vote for a candidate and draws a line through part of the candidate's name as listed on the ballot, such vote is nevertheless effective under circumstances presented.

Where a voter draws a line through part of a candidate's name as listed on the ballot, such mark does not constitute a "distinguishing mark" within the meaning of ORS 260.640 (2) under circumstances presented.

You advise of the following facts:

A candidate for Lane County Commissioner has been listed on the general election ballot as Vernon J. (Jack) Bonner. He had been listed on the primary election ballot, in a race for a different position, as Jack Bonner, by which name he is generally known. His full name is Vernon Jack Bonner.

You state that within the last few days a company engaged in polling electors has had sample ballots returned to it marked in favor of Mr. Bonner but with a line drawn through part of the ballot listing as follows:

(Jack) Bonner

You state it is your opinion that voters who mark their ballots in such a manner are clearly intending to vote for the candidate listed on the ballot, and ask if present state legislation will allow such votes to be counted.

We assume that the ballots in question will be regular in all other particulars.

ORS 250.510 provides:

"Only official ballots shall be counted. Any ballot from which it is impossible to determine the elector's choice for any office or measure or question shall be void and shall not be counted. Any ballot from which it is possible to determine the elector's choice for a part of the offices or measures or questions shall be counted for that part. The remainder of the ballot from which it is impossible to determine the elector's choice shall be void and shall not be counted. Election board clerks shall disregard misspelling or abbreviations of the names of candidates if it can be ascertained, from the ballot, for whom it was intended. Every ballot not counted shall be immediately indorsed on the back with pen and ink by the chairman, 'Not counted for .....' (stating what office or measure or question) and signed with his initials." (Emphasis supplied)

McCrary on Elections, 4th ed., p. 390, cites the decision of the house of representatives in the case of McKenzie v. Braxton, in the House of Representatives of the Forty-second Congress, as correctly stating the rule. In this decision it was held:

" 'We think evidence of such facts as may be called the circumstances surrounding the election, such as who were the candidates brought forward by the nominating conventions; whether other persons of the same name resided in the district from which the officer was to be chosen; and if so, whether they were eligible or had been named for the office; if the ballot was printed imperfectly, how it came to be so printed, and the like, is admissible for the purpose of showing that an imperfect ballot was meant for a particular candidate, unless the name is so different that to thus apply it would be to contradict the ballot itself; or unless the ballot is so defective that it fails to show any intention whatever, in which case it is not admissible.' "

Under the circumstances you described, it would appear clear that voters marking their ballots in the manner that you have described are indicating their intention to vote for the candidate listed as Vernon J. (Jack) Bonner on the general election ballot.

Nor does it appear that such a mark would constitute a "distinguishing mark" as prohibited by ORS 260.640 (2). The case of Van Winkle v. Crabtree, (1899) 34 Or. 462, at p. 480, 55 P. 831, 56 P. 74, held:

"* * * In our judgment, the interest of the state demands that a ballot which has been marked in such a manner as to be identified should be declared void, and that our statute impliedly commands that such an effect should follow an illegal marking of a ballot. * * *"

This case pointed out that the purpose of the law is to prevent a situation where

"* * * such a permutation could be arranged by those who would corrupt the purity of the ballot as would accommodate many thousand voters, thereby identifying the person who cast each ballot so marked, and evidencing the performance of an illegal agreement to thwart the purposes of the law." (At pp. 479-480)

The Oregon court in Tazwell v. Davis, (1913) 64 Or. 325, at p. 338, 130 P. 400, however, held:

"* * * Marks on ballots, a reason for which is or may be suggested, consistent with honesty and good faith, will rarely be allowed to invalidate them, unless it appears that they were in fact used for corrupt purposes * * *."

The fact that the candidate listed on the ballot as Vernon J. (Jack) Bonner was listed on the primary ballot as Jack

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Bonner clearly suggests a reason "consistent with honesty and good faith" whereby a voter might mark his ballot in the way you have described.

We therefore conclude that a voter who marks his ballot in such a manner has lawfully voted for the candidate listed as Vernon J. (Jack) Bonner.