*304HOUSE ORDER PROPOUNDING QUESTIONS
STATE OF MAINE HOUSE OF REPRESENTATIVES 103rd LEGISLATURE
IN HOUSE January 18, 1967
WHEREAS, in connection with the proposed examination by the House Committee on Elections in the ballots cast in the general election of November 8, 1966, for a House seat in the City of Auburn, certain questions have arisen with regard to the validity of certain ballots because of a contest for said seat by Peter T. Snowe of Auburn who contests the seating of Romeo Laberge of Auburn; and
WHEREAS, Peter T. Snowe of Auburn caused a recount to be had before the convening of the Legislature before the appropriate election officials of the State of Maine at which recount both parties were represented; and
WHEREAS, this recount resulted in an agreement between Mr. Snowe and Mr. Laberge that there were 3,773 votes cast for Romeo Laberge and 3,772 votes cast for Peter T. Snowe, and that there were seven (7) ballots in dispute, four challenged by Mr. Laberge and three challenged by Mr. Snowe, and
WHEREAS, this matter was brought to the attention of the House of Representatives on January 5, 1967, and
WHEREAS, the House referred to the Committee on Elections for its review the question of who should have the seat in question for the city above mentioned, and
WHEREAS, Mr. Laberge and Mr. Snowe have agreed that the recounted ballots are, as far as the count above-mentioned is concerned, acceptable, and that the ballots in dispute could decide the election, and
WHEREAS, the ballots in dispute are attached hereto and made a part hereof and are identified by markings affixed to each ballot which have been placed there by officials of the State of Maine and are not considered distinguishing marks, namely, number 1 through 7, inclusive, and
WHEREAS, no evidence has been offered to the House of Representatives or to the Committee on Elections that there has been any fraud of any nature or description in the casting of the votes in question, and
WHEREAS, two of the attached ballots have write-in candidates’ names written on them for specific offices, and there is appended herewith the original voting list of the City of Auburn for comparison therewith, and
WHEREAS, it appears that the reason for counting these questionable ballots one way or another must appear on the face thereof and must, therefore, be reduced to a question of law, and
WHEREAS, it appears to the Members of the House of Representatives of the 103rd Legislature that questions of law have arisen which make this occasion a solemn one;
NOW, THEREFORE, be it ordered, that in accordance with the provisions of the Constitution of the State, the Justices of the Supreme Judicial Court are hereby respectfully requested to give their opinion on the following questions;
I
Is ballot No. 1 a valid ballot?
*305II
If the answer to question No. 1 is in the affirmative, for whom should the ballot be counted?
III
Is ballot No. 2 a valid ballot?
IV
If the answer to question No. Ill is in the affirmative, for whom should the ballot be counted?
V
Is ballot No. 3 a valid ballot?
VI
If the answer to question No. V is in the affirmative, for whom should the ballot be counted ?
VII
Is ballot No. 4 a valid ballot?
VIII
If the answer to question No. VII is in the affirmative, for whom should the ballot be counted?
IX
Is ballot No. 5 a valid ballot?
X
If the answer to question No. IX is in the affirmative, for whom should the ballot be counted?
XI
Is ballot No. 6 a valid ballot?
XII
If the answer to question No. XI is in the affirmative, for whom should the ballot be counted?
XIII
Is ballot No. 7 a valid ballot?
XIV
If the answer to question No. XIII is in the affirmative, for whom should the ballot be counted?
Name: Bragdon
Town: Perham
HOUSE OF REPRESENTATIVES READ & On motion of Mr. Richardson of Cumberland TABLED PENDING PASSAGE In accordance with House Rule 41
TOMORROW ASSIGNED January 18, 1967
Bertha W. Johnson Clerk
HOUSE OF REPRESENTATIVES Speaker laid before the House The Order was PASSED January 19, 1967
Bertha W. Johnson Clerk
A true copy,
ATTEST: s/ Bertha W. Johnson (Mrs.) Bertha W. Johnson Clerk of the House
ANSWERS OF THE JUSTICES
To the Honorable House of Representatives of the State of Maine:
In compliance with the provisions of Section 3 of Article VI of the Constitution of Maine, we, the undersigned Justices of the Supreme Judicial Court, have the honor to submit the following answers to the questions propounded on January 19, 1967.
*306QUESTION NO. I: ballot?” Ts ballot No. 1 a valid
ANSWER: This ballot bears a cross (X) in the Republican Party square and check marks (V) in the squares at the right of the name of each nominee in the same column except two, in which cases the small square at the right of the nominee is blank. An office in the same column for which the name of no nominee is printed has “B. Johnson” written in, hut with no symbol in the small square at the right of such written-in name.
Under present laws a voter may express his preference by either a cross (X) or a cheek mark (V), 21 M.R.S.A. § 922 and if he wishes to vote a straight party ticket, he may place the symbol in the party square, or in the square at the right of each nominee of that party, or both. 21 M.R.S.A. § 922, subsection 1.
If a voter wishes to vote for a person whose name is not on the ballot, he may write in the name in the blank space provided for the nominee for the office in question. Such a “write in” vote may be cast in combination with a straight or split ticket. 21 M.R.S.A. § 922, subsection 3.
This ballot is valid unless the entry “B. Johnson” be held a distinguishing mark, in which case by 21 M.R.S.A. § 925, the ballot would be void.
The original voting list of the municipality involved does not carry a name “B. Johnson.” The name Bessie P. Johnson appears. Paraphrasing Libby v. English, 110 Me. 449, 457, 86 A. 975, we have no evidence whether the “B. Johnson” written in was intended to refer to the Bessife P. Johnson on the voting list or not. Even if there were no name on the voting list to which “B. Johnson” could apply, the write in of this name, unless fraudulently done, does not necessarily invalidate the ballot. The voter may vote for whom he pleases and the eligibility of a candidate does not affect the validity of the ballot. The name “B. Johnson” was entered in a proper space on the ballot and indicates a purpose to vote for such person, rather than an improper purpose of making a distinguishing mark. Ballot No. 1 is a valid ballot.
QUESTION NO. II: “If the answer to question No. 1 is in the affirmative, for whom should the ballot he counted?”
ANSWER: Ballot No. 1 should be counted for Peter T. Snowe.
*307valid ballot?” QUESTION NO. Ill: “Is ballot No. 2 a
ANSWER: Ballot No. 2 contains no symbol in either party square and bears distinct crosses (X) in selected small squares at the right oí the names of the nominees, except as below noted, of both political designations. The total of such crosses equals only to the numbers of candidates to be elected.
There was no nominee for the office of Judge of Probate in the Republican column and in the space for the name of such nominee appeared the words “Anyone but” followed by a cross (X) in the small square at the right of such entry with an arrow going into the Democratic ■ column pointing to the name of the Democratic nominee for that office.
In the Democratic Party column bearing the name of the nominee for the Clerk of Courts and in the open space next below the name of the nominee was entered “Santa Claus” followed by a cross (X) in the small square at the right of such entry.
Comment on distinguishing marks was expressed in Bartlett v. McIntire, 108 Me. 161, 79 A. 525, and repeated in Opinion of the Justices, 161 Me. 32, 38, but by section 1 of Chapter 360 P.L. 1961 (now 21 M.R.S.A. § 1) such mark is now defined as “a mark on a ballot of a type or in a place not specifically permitted by this Title, indicating the apparent intent of the voter to make his ballot distinguishable.” The entry of “Anyone but” on the one hand and “Santa Claus” on the other, serves no purpose, to elevate the right of franchise or retain the integrity of the written ballot. “If a voter has placed such a mark or device or name, or initials, or figures upon a ballot as seem inconsistent with an honest purpose, such ballot should he rejected.” Bartlett, supra, at page 171, 79 A. at page 529. Either or both of these entries falls within the definition of a distinguishing mark and we so find it. The ballot is invalid.
QUESTION NO. IV: “If the answer to question No. Ill is in the affirmative, for whom should the ballot be counted?”
ANSWER: Ballot No. 2 is not to be counted for either candidate.
*308QUESTION NO. V: “Is ballot No. 3 a valid ballot?”
ANSWER: Ballot No. 3 expresses an intention to vote a split ticket in a conventional' way by entering a symbol in the small square at the right of the name of each nominee, but including candidates of both parties. The symbol, however, consisted of filling in the respective squares by a series of substantially parallel marks. Such marking could fall within the class of distinguishing marks, but the express mandate of the statute that a voter is required to indicate his preference by a cross (X) or a check mark (V) renders this ballot invalid.
QUESTION NO. VI: “If the answer to question No. V is in the affirmative, for whom should the ballot he counted?”
ANSWER: Ballot No. 3 is not to be counted for either candidate.
*309QUESTION NO. VII: “Is ballot No. 4 a valid ballot?”
ANSWER: Ballot No. 4 bears check marks (V) in the small squares at the right of the names of the nominees, with exceptions noted below, and manifests an intention to vote a straight ticket without the cross (X) in the party square. The reference exceptions are to three of four candidates for Representatives to the Legislature in which the symbols are neither a cross (X) nor a cheek mark (V), hut a diagonal line. “It might he said with much force that the intention of the voter is as apparent when he places a circle as when he places a cross in the square, but the intention is not expressed as the statute demands, and therefore such a ballot would be fatally defective.” Bartlett, supra, at page 167, 79 A. at page 528. The voter did not meet the statutory requirement as to marking and as to these three nominees, one of whom is Mr. Laberge, the ballot is defective.
QUESTION NO. VIII: “If the answer to question No. VII is in the affirmative, for whom should the ballot be counted?”
ANSWER: Ballot No. 4 is not to he counted for either candidate.
*310QUESTION NO. IX: “Is ballot No. 5 a valid ballot?”
ANSWER: Ballot No. 5 manifests, except as noted below, an intention to vote a split ticket by the placing of a cross (X) in the small squares at the right of the names of nominees of both parties. The symbols entered for the first six candidates beginning at the top of the ticket wore entered by pen and overmarked by a red pencil, the remainder of the ballot was marked in red pencil. The four nominees on the Democratic ticket for Representatives to the Legislature had crosses (X) in the small squares at the right of each name overmarked by a long cross (X) beginning at the top of the upper square and ending at the bottom of the fourth and lower square. Such large cross (X) could be intended as emphasizing the four underlying smaller crosses (X). or could exhibit an intention to strike out the four crosses (X) previously entered. If the large cross (X) were made first exhibiting an intention to vote for the four candidates, followed by entry of four separate crosses (X)> it would indicate an intention to more specifically follow the voting requirement. It is impossible to determine the intent of the voter and the ballot is invalid for the office concerned. 21 M.R.S.A. § 925, subsection 2, Paragraph B.
QUESTION NO. X: “If the answer to question No. IX is in the affirmative, for whom should the ballot be counted?”
ANSWER: Ballot No. 5 is not to be counted for either candidate.
*311QUESTION NO. XI: valid ballot?” “Is ballot No. 6 a
ANSWER: Ballot No. 6 bears a cross (X) in the Republican Party square with a cross (X) in the squares at the right of the candidate for United States Senate and for the third candidate for the State Senate, but in each ease on the line next below the name of the nominee.
In the Democratic column is a cross (X) in the small square at the right for the candidate for Governor, but on the line next below the nominee’s name, and a cross (X) in the small square at the right of the name of Richard B. Rocheleau the fourth and last candidate for Representatives to the Legislature, but on the fourth line below the name of such nominee. Accepting the holding in Frothingham v. Woodside 122 Me. 525, 531, 120 A. 906 and Opinion of the Justices 124 Me. 453, 491, 126 A. 354 and apart from the cross (X) in the Republican Party square, the small cross (X) in the square below the nominee’s names would be counted as votes for the name appearing next above the line on which the cross (X) appears. In this ballot, however, is the cross (X) voting a straight Republican ticket, and an intention to vote for Mr. Roch-eleau as Representative to the Legislature on the Democratic ticket. This results in an attempt to vote for five candidates to fill four offices, which by 21 M.R.S.A. § 925, subsection 2, Paragraph A, invalidates the vote for such office.
QUESTION NO. XII: “If the answer to question No. XI is in the affirmative, for whom should the ballot be counted?”
ANSWER: The ballot is not to he counted for either candidate.
*312QUESTION NO. XIII: “Is ballot No. 7 a valid ballot ?”
ANSWER: Ballot No. 7 indicates an intention of the voter to vote selectively for candidates in the Democratic Party column. A symbol acceptable as a cross (X) or check mark (V) appears in the small square at the right of the nominees for United States Senate, Governor, Representativo to Congress, and Mr. Rocheleau as Representative to the Legislature. After the names of two of the nominees for State Senate appears to have been made a cross (X) overmarked by what is best described as a scribble, and on the small cross (X) at the right of Mr. Laberge’s name as nominee, the same appears. The intent of the voter cannot he determined and if the scribble was intended to delete the cross (X) no cross (X) remains. See Pease v. Ballou 108 Me. 177, 179, 79 A. 532.
QUESTION NO. XIV: “If the answer to question No. XIII is in the affirmative, for whom should the ballot be counted?”
ANSWER: Ballot No. 7 is not to bo counted for either candidate.
The' original ballots and the original voting list of the City of Auburn supplied to us by the Clerk of the House are herewith returned.
Dated at Augusta, Maine, this 31st day of January, 1967.
Respectfully submitted:
ROBERT B. WILLIAMSON Chief Justice WALTER M. TAPLEY, Jr. HAROLD C. MARDEN ARMAND A. DUFRESNE, Jr. RANDOLPH A. WEATHERBEE Justices WEBBER, J., has respectfully requested that he be excused from answering the question for the reason that as a citizen of Auburn he participated in the election.