Livingston v. Heydon

Citations: 27 Cal. App. 3d 672; 104 Cal. Rptr. 83; 1972 Cal. App. LEXIS 883Docket: Civ. 30613

Court: California Court of Appeal; September 11, 1972; California; State Appellate Court

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The case involves an appeal by George L. Livingston against Harlan Heydon and others regarding a judgment from the superior court that ruled cross marks made by voters next to candidates' names on a municipal election ballot, but outside the designated "voting square," would not be counted as valid votes. The ballot instructions specified that a cross must be placed within the voting square to be counted, and any deviation, such as marks outside this area, would render the ballot void. During the recount, the cross marks made outside the square were disregarded, resulting in a tie between Livingston and another candidate, Richard N. Nelson, for third place, preventing both from being elected. Livingston argued that the law requires such markings to be counted for the intended candidates and claimed a violation of his constitutional right to equal protection under the law if they were not counted. The court referenced the state's Elections Code, emphasizing that the legislative intent is clear that votes must be marked within the specified voting square for them to be valid.

Section 22871 mandates that ballots display instructions for voters to mark their choice by stamping a cross in the voting square next to the candidate's name. Section 14412 clarifies that a cross must be stamped after each candidate's name to count as a vote. However, Section 18600 allows for "write-in" votes to be counted even if no cross is marked in the square, as long as the name is written in the designated space. Section 17070 states that a cross partially within or outside the voting square does not invalidate the ballot, but there is no provision for a cross solely outside the square. Consequently, any ballots not marked as required by law are deemed void, as reinforced by the principle that clear statutory language should be interpreted literally. The statute's intent is to ensure accurate and efficient vote counting, as a misplaced mark could be overlooked. Historical case law supports that only a cross within or partially within the voting square validly indicates voter intent. This requirement is consistent with longstanding legal precedents that emphasize the mandatory nature of marking ballots correctly.

A voter who fails to place a cross entirely within the designated voting square next to a candidate's name is considered to have not voted for that candidate, resulting in a "no vote." The appellant heavily cites the case of *Tebbe v. Smith*, which interpreted an earlier version of Political Code section 1205, stating that a cross made after a candidate's name could be counted even if not in the voting square. However, this precedent is not applicable under the current law, which explicitly requires the cross to be placed in the voting square, suggesting a legislative intent that contradicts the appellant's argument. 

The appellant also refers to section 14413, which allows voters to mark a cross after the names of candidates they wish to vote for. However, this does not negate the requirement for the cross to be in the voting square, as such markings can still be considered "after the names" but must comply with the voting square requirement. The court decision in *Sweetser v. Pacheco* remains unaffected by this statute. Additionally, *Castagnetto v. Superior Court* does not support the appellant's claim, as it dealt with a different statute that allowed for leniency regarding ballot errors, specifically permitting a penciled cross in the voting square instead of a stamped one.

The court established that under Political Code section 1205, relating to general elections, the statutory provisions are mandatory, as confirmed by case law including Sweetser v. Pacheco and Pleasant Grove Union School Dist. v. Algeo. The appellant argued that irregular ballot markings indicated a clear intention to vote for his candidacy; however, the court referenced McFarland v. Spengler, emphasizing that voter intent must be expressed according to legal standards. The court held that the questioned ballot markings did not have to be counted as votes due to adherence to legal regulations aimed at maintaining secrecy, uniformity, and fairness in voting.

The appellant's claim of a violation of equal protection was dismissed, with the court noting that equality under the law must consider similar conditions among similarly situated individuals. The court explained that the Legislature can classify individuals reasonably, as long as distinctions serve a legitimate purpose. The distinction between regulations for direct primary elections and general elections was justified, as different legal foundations apply to each. The court concluded that election laws ensure equality among voters, reinforcing that differences in ballot marking compliance are not arbitrary. The judgment was affirmed, with concurrence from other judges.