State ex rel. Matthews v. Anderson | Cases | Westlaw

The duties of respondent relative to the reception and preservation of absent voters' ballots are imposed by Code, 3-6, and Chapter 1, Acts of the Legislature, First Extraordinary Session, 1944, and designated in the title of the Act as Code, 3-6a. The purpose of the enactment in 1944 is to afford citizens and voters of this State now in the armed services of the National Government an opportunity to cast their ballots during the present war, and hence the provisions of Code, 3-6a, are temporary. Notwithstanding their temporary character no other statute is of greater importance. It is altogether proper and fitting that persons engaged in defending this country and its system of government should be accorded every facility and consideration for participating in the choice of its various officials.

The clerks of the circuit courts of this State have been designated by the Legislature to perform part of the duties necessary to effectuate the legislative purpose. Statutes providing for absent voters' ballots are silent as to authority of the county court relative to furnishing such ballots to voters and the methods by which the ballots are received, preserved and forwarded to precinct election commissioners of the various precincts. A county court as to the matters here considered is a court of limited jurisdiction. See Boone v. Boone, 123 W.Va. 696, 703, 17 S.E.2d 790. No statute empowers a county court to direct a clerk of the circuit court as to how and by what means he shall preserve the integrity of absent voters' ballots received by him. An absent voter's ballot should remain in a sealed envelope, and such envelope with the ballots therein should be kept by the clerk in such place and in such *782 manner that no person other than the clerk or his deputy may have access thereto.

The failure of respondent to send requests for absent voters' ballots to the clerk of the county court in order that he may “check” the information thereon with registration records is in direct contravention of Section 10, Chapter 1, Acts of the Legislature, First Extraordinary Session, 1944. The importance and relation of the part of the statute here considered to the subject matter and purpose of the entire act are obvious, and must be held to be mandatory. The duty thus imposed on the respondent to send such requests to the clerk of the county court requires the exercise of no discretion, and the performance of that duty will be compelled by mandamus.

The action of respondent in permitting a voter to cast three ballots after the voter had destroyed a ballot previously cast cannot be excused as a mere irregularity. However, the fact that he sought and obtained legal advice from the prosecuting attorney of the county tends to show that he acted in good faith in so doing. But the failure to perform an imperative official duty is not obviated by a mistaken interpretation of the law which imposes that duty. It is true that a person who has received an absent voter's ballot but has not voted thereon may vote in person at the precinct election polls on the day of election, upon surrender and cancellation of the unvoted ballot. Code, 3-6-13. A clerk of the circuit court has no authority to allow the recall of an absent voter's ballot once voted and delivered to him, and there is no authority vested in said clerk by Code, 3-6-5, to receive another absent voter's ballot instead of one theretofore voted, recalled and destroyed. When a person expecting to be absent on election day marks his ballot and delivers it to the clerk of the circuit court, the voter has lost control of the ballot. Respondent having no authority to surrender any absent voter's ballot and permit the voter to substitute another ballot in its stead, he will be required to keep all absent voters' ballots cast in his possession for delivery to the election commissioners of the proper precincts. Code, 3-6-9, and Section 14, Chapter 1, Acts of the Legislature, First Extraordinary Session, 1944. It is established that the respondent keeps ballots which have been voted in a locker to which only he and his deputy have access, and we find no failure on the part of respondent to perform his duty in this respect. A member of respondent's family, without official status, however, has no authority to receive from the post office and have in his possession an absent voter's ballot. Such act should be performed only by the respondent or his deputy, and when such ballot is received it should be placed, with reasonable dispatch, in a secure place, as hereinabove indicated.

A voter who has suffered a physical disability may have that fact noted on his registration record at any time except the two weeks immediately preceding the election. Section 29, Article 2, Chapter 43, Acts of the Legislature, 1941. Any person unable to write may also receive assistance from poll clerks. Section 21, Article 5, Chapter 44, Acts of the Legislature, 1941. In the case of Huffman et al. v. O'Brien et al., not reported, decided August 1, 1942, this Court had under consideration the question of assistance to be given physically disabled and illiterate voters, and wherein it was ordered that the right of any physically able and literate voter to receive assistance in preparing his ballot should be challenged “*** except where such physical disability developed after the date of the voter's registration, and the voter was unable to have his registration record corrected in accordance with Section 29 of Chapter 43 of the Acts aforesaid, ***.” The same principle is applicable to a voter who appears in person in the office of the clerk of the circuit court to cast an absent voter's ballot. The statutes above mentioned are designed to eliminate a longstanding abuse and should be rigorously enforced *783 by officials authorized by law to receive a voter's ballot.

A voter casting an absent voter's ballot in the office of the clerk of the circuit court should be afforded the necessary means and facilities to exercise his constitutional right to vote a secret ballot if he so desires.

There is evidence tending to show that on three occasions respondent permitted assistance to be given to persons in marking their ballots in his office, and thereafter received such ballots presumably for transmission to election commissioners of the proper precincts. A majority of the Court is of the opinion that the record herein sufficiently establishes the fact that respondent has permitted assistance to be given to voters having no right thereto, and that he should be required by the writ hereinafter awarded to see that no assistance is given to any literate and physically able person preparing an absent voter's ballot in his office, and the said writ will embody that requirement. I am not in accord with the opinion of the majority on this phase of the case for reasons hereinafter stated.

The remaining charges of dereliction relate to the alleged refusal of respondent to allow two soldiers, who were duly registered, to cast absent voters' ballots. One of the soldiers above referred to made application in person for an absent voter's ballot, and was informed by respondent that a ballot had been mailed to the camp where the soldier was stationed. On being so informed the soldier said that he would vote and mail the ballot on his return to his station, which has been done and such has been received by respondent. Consequently, there has been no failure on respondent's part to perform his duty in that respect. The other soldier came to respondent's office with a voter's registration card and applied for an absent voter's ballot, and from questions asked by respondent it was developed that the soldier was a native of Braxton County, having been inducted into the army from that county two years before, and that he had been in Putnam County two days at the time of his application for an absent voter's ballot. Respondent requested the prosecuting attorney of the county, then and there present, to advise him if the soldier's residence in Putnam County was sufficient to entitle him to vote. The prosecuting attorney, after questioning the soldier, told him to vote, if he wished, but that if he, the prosecuting attorney, desired to take any action with respect to the voting by the soldier, he would do so later. The soldier then inquired as to the identity of the questioner, and, on being informed that he was the prosecuting attorney of the county, hurriedly left the office and did not return. Respondent and the prosecuting attorney both testified that the soldier was tendered a ballot and that he refused to vote. The questioning of the soldier when he applied for an absent voter's ballot was neither proper nor pertinent, and the incident just described clearly shows the necessity of an investigation of the registration records in the office of the clerk of the county court as hereinabove discussed. It is clear that if the soldier had not been a bona fide resident of Putnam County for sixty days next preceding the election to be held on November 7, 1944, he was not entitled to register and vote in that county. He made application for an absent voter's ballot on September 11, 1944, and the record herein shows that he had only been a resident of the county at that time for two days. Assuming that the soldier came into Putnam County on September 9, 1944, and that he established a residence at that time, his right to vote in Putnam County was questionable. Nevertheless, his right to vote should not have been questioned, but his ballot should have been received, subject to challenge, and the validity thereof determined by the election commissioners. It is the duty of the respondent to furnish absent voters' ballots to any person who is properly registered as a voter and makes application therefor, and such duty may be enforced by mandamus. The majority of the Court is of the opinion that respondent did not perform his duty in this respect. I am not in accord with the views of the majority on this phase for reasons to be hereinafter stated.