COUGHLIN v. ELECTION COMMISSION OF LOWELL, Mass., Judgment, Law, casemine.com

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Attorney(S)

J.D. O'Hearn, for the petitioner Coughlin. M.G. Rogers, for the petitioner Dodge. No argument nor brief for the respondents.

Judges

RUGG, C.J.

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Smart Summary

Factual and Procedural Background

These consolidated proceedings arose from a contested election in Lowell for membership on the school committee. Each of the two petitioners, James C. Coughlin and Veronica Sullivan Dodge, was a candidate; each petition named the Election Commission of the City of Lowell as respondent and the other candidate was permitted to intervene. Both petitions were referred to the same auditor and the parties agreed that the auditor's findings of fact were to be final.

The auditor filed identical reports in the two matters and each petitioner moved to recommit the report, alleging errors of law in the auditor's findings and rulings. The single justice made specific rulings as to certain ballot exhibits (numbering nineteen in all) and adjusted the vote totals, ruling that Dodge's vote should be reduced to 17,789 and Coughlin's to 17,788. The Coughlin petition was dismissed as a matter of law; in the Dodge case a writ of mandamus was ordered to issue directing the respondents to count votes in accordance with the single justice's findings and rulings. Both candidates excepted to adverse findings and rulings.

Legal Issues Presented

Whether the auditor's findings of fact as to the intent of the voters, drawn from inspection of the ballots, were supported by the evidence and thus final.
Whether the single justice erred as a matter of law in ruling that certain specific ballot exhibits (Exhibits 111, 162, 213 and "Exhibit A for identification") should not be counted for either candidate.
Whether, based on the auditor's findings and the single justice's rulings, a writ of mandamus should issue in favor of Dodge and whether the Coughlin petition should be dismissed.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
O'Brien v. Election Commissioners of Boston, 257 Mass. 332, at page 338	Cardinal rule: if the intent of the voter can be determined with reasonable certainty from inspection of the ballot (in light of conditions), effect must be given to that intent and the vote counted, provided substantial compliance with election law; if intent cannot be fairly ascertained, the ballot cannot be counted.	The court invoked this rule as the primary standard for deciding whether ballots should be counted and assessed the auditor's findings against it.
Parrott v. Plunkett, 268 Mass. 202, 207	Cited as a supporting authority for the rule regarding determination of voter intent from the ballot.	Used as supporting precedent reinforcing the O'Brien principle that intent must be ascertainable with reasonable certainty.
Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 277	Cited as a supporting authority for the rule about ascertaining voter intent from the ballot.	Referenced in the discussion of the governing principles and later cited regarding finality of auditor findings and statutory interpretation (G.L. c.54, §106).
Clancy v. Wallace, 288 Mass. 557, 566	Cited as a supporting authority for the ballot-intent rule.	Listed among authorities establishing the standard that intent must appear with ordinary assurance and that no conjecture may be invoked.
Hall v. Barton, 290 Mass. 476, 480	Cited as a supporting authority for the ballot-intent rule.	Included as one of the cases underpinning the principle that intent must be ascertainable from the ballot.
O'Connell v. Mathews, 177 Mass. 518	Cited for the proposition that intent must appear with ordinary assurance and cannot be based on conjecture.	Used to support the court's statement limiting permissible inference about voter intent.
Beauchemin v. Flagg, 229 Mass. 23	Cited for the principle that a cross not in the square but in the space between the name and the square may still be counted if intent is clear.	Applied in assessing several ballots where crosses were not precisely in the square but intent could nevertheless be ascertained.
Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 284	Cited for the rule that findings of fact by an auditor (to be final) are conclusive unless tainted by some error of law.	The court held that the auditor's findings must be accepted if they can be supported on any rational view of the evidence and that they are not reviewed by the court except for errors of law, citing this authority.
Andrews v. Registrars of Voters of Easton, 246 Mass. 572, 576-577	Cited as authority for the finality/conclusiveness of an auditor's findings of fact unless there is an error of law.	Used to reinforce the principle that the auditor's factual findings are conclusive absent legal error.
Lunn Sweet Co. v. Wolfman, 268 Mass. 345, 349	Cited concerning the finality and conclusiveness of an auditor's findings of fact.	Referenced as part of the authority establishing that such findings are conclusive unless tainted by legal error.
Hawkins v. Jamrog, 277 Mass. 540, 543	Cited on the same point about finality of findings by an auditor.	Included among cases supporting the rule that auditor findings are conclusive unless legally erroneous.
Sojka v. Dlugosz, 293 Mass. 419, 422	Cited regarding the conclusiveness of final findings of fact by an auditor.	Applied as supporting authority for accepting the auditor's factual determinations absent error of law.
Ray v. Registrars of Voters of Ashland, 221 Mass. 223	Cited on the same general subject of finality of findings.	Listed among authorities that the court relied on when describing the limited scope of review of an auditor's factual findings.
Flanders v. Roberts, 182 Mass. 524	Cited for the principle that markings not in precise statutory conformity may nevertheless suffice to ascertain voter intent.	Applied in upholding the counting of several ballots despite imprecise markings, supporting the auditor's factual findings.
Brewster v. Sherman, 195 Mass. 222	Cited as authority consistent with allowing votes to be counted when intent can be determined despite nonprecise marking.	Used to support the court's conclusion that some ballots, though not precisely marked, still revealed sufficient intent to be counted.
Beauchemin v. Flagg, 229 Mass. 23, 25	Specific citation (page 25) reaffirming that a cross in the space between name and square may be counted if intent is clear.	Applied to particular ballots where the mark was outside the square but nonetheless indicated a clear intent.
Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 280	Cited with respect to G.L. (Ter. Ed.) c. 54, § 106 and the rule that a ballot cannot be counted when a prevailing intent to vote a permissible number of candidates is not discernible.	Invoked in refusing to count a ballot that contained four crosses when only three candidates could be voted for, because no prevailing intent to vote a permissible number was discernible.

Court's Reasoning and Analysis

The court began by stating the governing legal principle: a ballot should be counted when the voter's intent can be determined with reasonable certainty from inspection of the ballot (O'Brien and supporting cases); conjecture is not permitted and the intent must appear with ordinary assurance. It then explained the limited scope of appellate review in these law proceedings: because the parties agreed that the auditor's factual findings were to be final, those findings must be accepted if they can be supported on any rational view of the evidence and are conclusive unless tainted by error of law (Swift and related authorities).

Applying these principles, the court inspected the contested ballots (admitted as exhibits). For the ballots challenged by Coughlin, the court concluded that the determination of intent was a question of fact for the auditor and that, although some markings were not in precise statutory form or were not clearly defined crosses, sufficient indication of intent appeared on inspection to sustain the auditor's findings in those instances (citing Flanders, Brewster, Beauchemin).

The court then addressed the single justice's specific rulings on Exhibits 111, 162, 213 and "Exhibit A for identification." It found no error of law in those rulings. In three of the exhibits the cross could not be said to be in the square or space opposite either candidate and appeared equally in both, with the intersection on the dividing line between crucial spaces; therefore intent could not be determined and the ballots could not be counted. In the fourth exhibit there were four crosses where only three candidates could be voted for and, with only one faint square mark and three strong crosses left of squares, a prevailing intent to vote for a permissible number of candidates was not discernible; thus the ballot could not be counted (citing G.L. c.54, §106 and Swift).

The court observed that some decisions as to intent were close and difficult, but concluded that there was not enough to warrant reversal as a matter of law. Consequently, the auditor's findings were upheld except where the single justice had ruled otherwise as a matter of law.

Holding and Implications

Holding: The court overruled the exceptions of both the petitioner and the intervener and affirmed the auditor's findings of fact to the extent they were supported by inspection of the ballots; the single justice's rulings as to Exhibits 111, 162, 213 and "Exhibit A for identification" were held not erroneous as a matter of law. The Coughlin petition was dismissed as a matter of law, and in the Dodge case a writ of mandamus was ordered to issue directing respondents to count votes in accordance with the single justice's findings and rulings. The single justice had ruled the vote totals should be adjusted to reduce Veronica Sullivan Dodge's total to 17,789 and James C. Coughlin's total to 17,788.

Implications: The decision enforces the established rule that ballots are to be counted only when the voter's intent can be determined with reasonable certainty from the ballot and it affirms the limited scope of review of final auditor findings of fact (they are conclusive unless tainted by legal error). The opinion does not articulate any broader or new doctrinal rule beyond applying settled principles to the contested ballots; its direct effect is to resolve these two petitions by dismissing Coughlin's petition and ordering the writ for Dodge in accordance with the rulings described.

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JAMES C. COUGHLIN vs. ELECTION COMMISSION OF THE CITY OF LOWELL. VERONICA SULLIVAN DODGE vs. SAME.

Elections. Practice, Civil, Auditor: findings.

Statement by RUGG, C.J., of the governing principles of law as to the counting of ballots. Findings by an auditor, whose findings were to be final, as to the intent of the voters casting certain ballots at an election, as shown by the ballots, which were in evidence before him, must stand so far as warranted by examination of the ballots, but could not stand so far as not warranted thereby.

RUGG, C.J.

These petitions for writs of mandamus relate to a contested election for membership in the school committee in Lowell. Each petitioner was a candidate for election as a member of that committee. In each petition, the other petitioner was allowed to intervene. Each petition was referred to the same auditor. The parties agreed that his findings of fact should be final. An identical report was filed in each case. Each petitioner filed a motion to recommit the report, alleging errors of law in the findings and rulings of the auditor. Each motion was denied. It was agreed by all parties that the ballots marked as exhibits by the auditor, so far as referred to in the motions to recommit, should be considered in the same manner as if they had been reported by the auditor. After describing these exhibits by number, there being nineteen in all, the single justice ruled specifically as follows:

"With respect to Exhibit 111, I rule as matter of law that the finding of the auditor that `this was a Dodge vote' is not warranted and the ballot should not be counted for either Coughlin or Dodge.

"With respect to Exhibit 162, I rule as a matter of law that the finding `that it was the intention of the voter to vote for Dodge' is not warranted and that the ballot should not be counted for either Coughlin or Dodge.

"With respect to Exhibit 213, I rule as a matter of law that the finding of the auditor that this was a vote for Coughlin was not warranted and that this ballot should not be counted for either Coughlin or Dodge.

"With respect to Exhibit A for identification, I rule that the auditor was not wrong in admitting this ballot as an exhibit and was warranted in finding `that this was a blank ballot,' and Dodge loses one vote.

"I rule, therefore, as matter of law that the votes for Coughlin and Dodge as counted by the auditor should be changed by reducing the vote for Veronica Sullivan Dodge to 17,789, and the vote for James C. Coughlin to 17,788."

No specific rulings were made on any of the other exhibits considered, but each was allowed to stand as counted by the auditor.

The ballots considered by the single justice, the pleadings, and the auditor's report are made a part of the exceptions by reference.

In the Coughlin case the petition was dismissed as matter of law. In the Dodge case it was ordered that a writ of mandamus issue commanding the respondents to count the votes of the petitioner and intervener in accordance with the findings and rulings of the single justice. To the adverse "findings and rulings" both candidates duly excepted; their several bills of exceptions are combined in a single record.

It is provided by G.L. (Ter.Ed.) c. 54, § 77, that "The voter on receiving his ballot shall . . . retire alone to one of the marking compartments, and . . . prepare his ballot by making a cross (X) in the square at the right of the name of each candidate for whom he intends to vote."

The governing principles of law as to the counting of ballots are settled. In O'Brien v. Election Commissioners of Boston, 257 Mass. 332, at page 338, it was said with citation of supporting authorities: "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 the 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." Parrott v. Plunkett, 268 Mass. 202, 207. Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 277. Clancy v. Wallace, 288 Mass. 557, 566. Hall v. Barton, 290 Mass. 476, 480. No conjecture can be invoked as to where the cross was intended to be placed. The intent must appear with ordinary assurance of certainty and be capable of being fairly determined from inspection of the ballot; otherwise, it cannot be counted. O'Connell v. Mathews, 177 Mass. 518. Beauchemin v. Flagg, 229 Mass. 23. Within the general rules the question for whom a ballot ought to be counted is one of fact unless some positive mandate of the law has been violated.

These are proceedings at law. Hence the findings of fact made by the auditor, which were to be final, must be accepted as final if susceptible of being supported on any rational view of the evidence. They are not reviewed or revised by the court. When the findings of fact of an auditor are to be final, they are conclusive unless tainted by some error of law. Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 284. Andrews v. Registrars of Voters of Easton, 246 Mass. 572, 576-577. Lunn Sweet Co. v. Wolfman, 268 Mass. 345, 349. Hawkins v. Jamrog, 277 Mass. 540, 543. Sojka v. Dlugosz, 293 Mass. 419, 422. Ray v. Registrars of Voters of Ashland, 221 Mass. 223.

Tested by these principles, it appears that there was no error of law in dealing with the ballots which the petitioner Coughlin contends were counted wrongly. The determination of the intent of the voter in each instance presented a question of fact. On several ballots the cross was not placed in precise conformity with the statute, and in others the marking was not a clearly defined cross, but we think that enough appears on inspection to ascertain the intent of the voter. Flanders v. Roberts, 182 Mass. 524. Brewster v. Sherman, 195 Mass. 222. A cross not in the square but in the space between the name of the candidate and the square provided for the cross may still be counted provided the intent of the voter is clear. Beauchemin v. Flagg, 229 Mass. 23, 25. On one ballot a cross originally placed in the square opposite the name of Coughlin was found to have been erased. This finding cannot be pronounced unsupported by an inspection of the ballot. The most doubtful is a ballot where the marking opposite the name was not a plain cross and resembled somewhat a V, but there was a marking in addition and we think it cannot quite be said as matter of law to have been wrongly counted.

The rulings of law by the single justice as to Exhibits 111, 162, 213 and "Exhibit A for identification" were not erroneous. In three of these it is impossible to determine the intent of the voter because the cross cannot be said to be in the square or space opposite either candidate but is equally in both, and the intersection of the two lines made by the voter appears to be on the printed line dividing the crucial spaces. In the fourth there were four crosses where only three candidates could be voted for; one in a square was very faint, and the other three, strong and clear, were in spaces to the left of the square. A prevailing intent to vote for a permissible number of candidates is not discernible. Therefore, the ballot cannot be counted. G.L. (Ter. Ed.) c. 54, § 106. Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 280. The decision as to the intent of the voter as disclosed by several ballots appears on inspection to have been close and difficult. But there is not enough to warrant reversal of the result as matter of law. Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 284. Flanders v. Roberts, 182 Mass. 524. In each case the exceptions of the petitioner and the intervener are overruled.

So ordered.

COUGHLIN v. ELECTION COMMISSION OF LOWELL