Oregon Advisory Opinions June 19, 1968: OAG 68-91 (June 19, 1968)
Collection: Oregon Attorney General Opinions
Docket: OAG 68-91
Date: June 19, 1968
Advisory Opinion Text
OAG 68-91.
Election officials are not authorized to refuse to count a large number of punch card type ballots on the basis of information that it is "possible" that some were voted on voting devices for the wrong precinct, where candidates' names were arranged in an order differing from that of the precinct where the ballot should have been voted, and the computer will record the votes on such ballots as if voted on the voting device for the proper precinct.
You state that the County Clerk of Klamath County established nine polling places for the May 28, 1968, primary election, at which the electors in 35 precincts were to vote. This was done under the authority of ORS 246.420 which provides in part: "* * * More than one polling place may be designated in the same building."
In Klamath County a punch card voting system is used, in which the voter expresses his choice by puncturing a card with a stylus after the name of the candidate of his choice, which appears on a separate booklet under which the card is placed. After the elector has voted he removes the card and gives it to an election official. At a later time the card is processed at a counting center and the holes in the card are recorded as votes for various candidates in accordance with a recording system based upon the particular booklet used in that precinct.
The names of candidates are "rotated" from precinct to precinct so that no candidate will obtain any advantage from appearing generally in a particular position in the list of candidates (for example, at the top of the list). Because of this, if a voter having a card for one precinct takes it to a voting device for another precinct and punches it in accordance with the arrangement of candidates' names in the booklet for that precinct, the card, when processed in accordance with the arrangement of names for the voting devices of the precinct where he should have voted, may very well register votes for candidates for whom he did not intend to vote.
You state that in Klamath County the county clerk was informed at approximately 9 a.m. of election day that "it was possible" that some voters, upon receiving their punch cards for voting, in one of the consolidated polling places took them to the voting devices for the wrong precinct without understanding their error. You state the county clerk then instructed the election officials to be certain that the voters in a given precinct use only the voting device assigned to that particular precinct within the polling place. You further state that the county clerk
"* * * either personally appeared at a
polling place or called the chairman in charge of the polling place and ordered all chairmen of the nine
polling places to separate both partys' ballots which had been cast to date, to seal them in envelopes and to hold them aside from the ballots cast during the remainder of the date."
"* * * it is now impossible to tell which ballots, if any, were improperly marked, improperly marked in the sense that they were voted in voting devices for a precinct other than their own."
"Should the county clerk count these 2,587 ballots, using the appropriate format of name rotation for the precincts indicated on the ballots?"
Answering, we find no basis in the statutes or in judicial precedent which would authorize election officials to fail or refuse to count ballots which are entirely regular and proper so far as any physical examination can determine, the failure or refusal to count them being based simply upon information that "it was possible" that some voters were using the wrong voting devices. The operation of the punch card voting system is required to be conducted pursuant to the regulations in the "Procedure Manual for Punch Card Voting" adopted by the Secretary of State in Oregon Administrative Rules, chapter 165, § 20-091, which require that the ballot cards be immediately taken to a counting center after the polls have closed and be there counted.
It would be obviously impossible to correct the errors, if any, which were committed in voting on election day (unless it would be possible to find fingerprints on a ballot card, identify who the voter was, contact him and ask whether or not he used the voting device of the proper precinct, and, if not, ask him to identify which precinct place he used, and then record his vote in accordance with the schedule of names of the voting device for that precinct---a physically impossible operation violating not only common sense but also the secrecy of the ballot). At any rate, we find no statute or legal precedent under which the ballot cards described in your request either could not or may not be counted.
We are advised that the electors, on appearing to vote, were accurately advised of the proper precinct place to be used in voting, and evidently the only mistake, if any, committed by election officials was in initially not being emphatic enough, or supervisory enough in seeing to it that absolutely no one could mistakenly use a voting device for the wrong precinct. The few, if any, who ignored their instructions and used the wrong voting device, should not be considered by election officials to have disenfranchised the remainder of the 2,587 voters who had cast their ballots prior to the time when the county clerk took the more aggressive action to prevent mistaken voting. Yet this would be the result if we were to arrive at any other conclusion, because, as we have pointed out, it would be impossible to determine which were the few cards, if any, that were voted on the wrong precinct voting devices. Thus, either all 2,587 ballot cards must be counted or none must be counted. We conclude that all must be counted.
Since the ballot cards voted prior to the time the county clerk was notified of possible erroneous voting have been segregated from the rest it will be possible for any candidate who feels aggrieved to attempt to contest this election or its result through legal proceedings. However, it is not for election officials to refuse to count them in the first instance.