This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-2278

 

In the Matter of the Notice of Contest

of Election for Question #2 of Recount

Results of Question #2 of ISD 861 Levy Referendum.

 

Filed July 2, 2002

Reversed

Forsberg, Judge*

 

Winona County District Court

File No. C0011797

 

 

William A. Lindquist, 63 ½ West Fourth Street, Winona, MN 55987 (for appellant Donald A. Evanson)

 

Joseph J. Langel, Ratwik, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondent Independent School District 861)

 

Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Forsberg, Judge.


U N P U B L I S H E D  O P I N I O N

FORSBERG, Judge

In a contested election, appellant challenges the district court’s determinations of the intent of individual voters as evidenced by their ballots.  Because we disagree with the district court’s determinations regarding one of the individual ballots, we reverse.

FACTS

Appellant Donald A. Evanson contested the results of a special election held on November 6, 2001, by respondent Independent School District 861 (the District).  The election resulted in the approval of two levies to finance school operations.  Evanson contested the election with regard to the levy proposed in question two.  Evanson challenged the determinations made by election officials during a recount as to a number of individual ballots, claiming that the recount did not conform to statutory procedure.

After a bench trial, the district court made determinations as to the individual ballots in question.  Based on the district court’s determinations, the levy in question two was passed by one vote.  Evanson appeals.

D E C I S I O N

When reviewing a decision involving an election contest, the appellate court will not reverse the district court’s findings of fact unless they are clearly erroneous.  In re Matter of Ryan, 303 N.W.2d 462, 465 (Minn. 1981).  But the appellate court is not bound by the district court’s interpretation of documentary evidence if it believes an error was made.  Id.

Each side challenges the district court’s determinations with regard to the validity of several individual ballots.  The intent of the voter is an important consideration that must be ascertained from the ballot itself without speculating or making efforts to determine intent in a manner other than provided by statute.  Minn. Stat. § 204C.22, subd. 2 (2000); Prenevost v. Delorme, 129 Minn. 359, 363, 152 N.W. 758, 759 (1915).  When determining a voter’s intent, the court may look at the whole ballot rather than merely the portion related to the present contest.  Id.  The canons of construction governing general elections in Minn. Stat. § 204C.22 (2000) apply to school-district elections.  See Ganske v. Indep. Sch. Dist. No. 84, 271 Minn. 531, 532, 136 N.W.2d 405, 407 (1965) (stating that the 1965 version of Minn. Stat. § 204C.22 applied to school-district elections notwithstanding the fact that at the time, the statute excepted school-district elections from the definition of general election).

Evanson argues that the district court erred when it determined that the ballot marked “exhibit three” was defective.  (See facsimile of Exhibit 3 in the appendix to this opinion.)  This ballot leaves question one unanswered, but has the word “no” written in both the yes and no boxes for question two.  The district court stated that although the markings might indicate an “emphatic no,” it was uncertain and therefore found the ballot to be defective and did not count it. 

Evanson argues that because the word “no” has a given meaning, its use on a ballot means the same as placing a check mark in the “no” box.  Minnesota case law supports Evanson’s position.  Where a voter left the yes box blank but wrote “yes” in the no box and placed an X next to the word yes, the vote was correctly determined to be a yes vote.  Schultz v. Shelp, 131 Minn. 303, 306-07, 155 N.W. 97, 98 (1915), see also Fitzgerald v. Morlock, 264 Minn. 520, 530-31, 120 N.W.2d 339, 349 (1963) (finding that where a voter placed Xs in the boxes for several candidates but wrote “no” in the boxes of the remaining candidates, the voter’s intent was clear); In re Krassin, 119 Minn. 137, 138, 137 N.W. 191, 192 (1912) (when voter wrote “no” across from “in favor of license,” rather than putting an X across from “against license,” the voter’s intent to vote against the license was clear). 

Additionally, in Wackenhut Corp. v. NLRB, a ballot with “no” written in both the yes and no box on the ballot clearly indicated the voter’s intent to vote no for the proposition.  Wackenhut Corp. v. NLRB, 666 F.2d 464, 466-68 (11th Cir. 1982); see also NLRB v. Conn. Foundry Co., 688 F.2d 871, 875 (2nd Cir. 1982).  The Wackenhut court emphasized that ballots

with multiple marks [have] been found valid [] where one of the markings, standing alone, clearly indicates a particular choice, and the remaining markings are consistent with that choice and appear to be designed merely to emphasize it.

 

Id. at 468 (quotation omitted).

Although many of the cited cases differ from the present case in that the voter in the present case wrote “no” in both the yes and no boxes, because the word “no” is used as opposed to some other mark such as a check mark or an X, the voter’s intent to vote no on question two was communicated nearly as clearly as the intent in the cases cited above.  Therefore, we hold that the district court erred when it determined that the ballot marked exhibit three was defective.  We reverse the district court, finding that the ballot marked exhibit three is counted as a no vote for question two.  Because we agree with the district court as to the other challenged ballots and we find our decision with regard to the ballot marked exhibit three determinative of the election, we need not discuss the other ballots.

Our decision results in a tie count for question two and therefore the levy proposed in question two fails.  See Minn. Stat. § 126C.17, subd. 9(e) (Supp. 2001) (stating that “[t]he approval of 50 percent plus one of those voting on the question is required to pass a referendum authorized by this subdivision”).

Reversed.

 

 


APPENDIX 

 



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.