dissenting.
I disagree with the principal opinion, because I believe that the case should be decided solely by recount of the ballots, and that it is neither necessary nor proper to adduce testimony of the election officials as to why certain ballots were counted or rejected.
The trial judge defined the issue as follows:
Is it necessary for a voter desiring to cast a write-in ballot in accordance with Chapter 115.439, R.S.Mo., to make an “X” or other mark to the left of the name of the write-in candidate in order to have the write-in vote counted?
The court found that 670 voters cast write-in ballots for the contestant, by writing his name and the title of the office on the sleeve furnished with the punch card, and then placing an “X" mark opposite the written name. 67 voters wrote the name but “failed to make an “X” mark or other mark.” These latter ballots were placed by the precinct judges in envelopes or bundles marked “spoiled or rejected," and delivered to the county clerk’s office along with the other election materials. If the 67 ballots were added to the 670, the contestant would receive 737 votes to the contestee’s 713.
It appeared from the county clerk’s testimony that two voters properly wrote the name of the contestant on the ballot with the “X” opposite his name, but also punched the contestee’s name on the punch card. These ballots were rejected by the precinct judges for “double voting,” and were returned to the county clerk’s office with the election materials. There is no evidence that any other ballots were rejected for double voting. Nor is there any indication that the judges did not perform their duty by delivering all of the election materials, including punched cards, sleeves with write-ins (whether counted or rejected), spoiled punch cards, and unvoted cards and sleeves, to the county clerk after the election.
*476The contestee relies primarily on § 115.439.1(3), RSMo 1986, reading as follows:
If the voter desires to vote for a person whose name does not appear on the ballot, he may cross out a name which appears on the ballot for the office and write the name of the person for whom he wishes to vote above or below the crossed-out name and place a cross (X) mark in the square directly to the left of the crossed-out name. If a write-in line appears on the ballot, he may write the name of the person for whom he wishes to vote on the line and place a cross (X) mark in the square directly to the left of the name.
The contestant places primary reliance on § 115.453(3), RSMo 1986, reading as follows:
No vote shall be counted for any candidate that is not marked substantially in accordance with the provisions of this section. The judges shall count votes marked substantially in accordance with this section when the intent of the voter seems clear. No ballot containing any proper votes shall be rejected for containing fewer marks than are authorized by law. (Emphasis added).
Both sections were enacted under the Comprehensive Election Act of 1977, 1977 Mo.Laws 207.
I would hold that § 115.453(3) should be applied, and that a person who writes the name of a qualified write-in candidate should be held to have properly voted for that candidate, even though the “X” is omitted. I cannot see any reason for his writing the candidate’s name if there were no purpose of voting for that candidate. I would hold as a matter of law that the intent of the voters of the 67 irregular write-ins was clear. The modem tendency is to require only substantial compliance with technical requirements, and to indulge every presumption in favor of the voters’ expressed choice.1 The trial court, in citing Hope v. Flentge, 140 Mo. 390, 402, 41 S.W. 1002, 1007 (1897), echoes a more severe standard of an earlier day.
The trial judge, as the sole reason for rejecting the 67 ballots, suggested that the intent of the voter who omitted the “X” was not clear because the voter might also have punched the card in the manner appropriate for a vote for the contestee. There is no evidence whatsoever that any voter did this. I suppose that election judges who felt that a write-in without the “X” was insufficient might treat the purported vote on the sleeve to be a nullity, so that a ballot punched for the contestee would not be a prohibited double vote and would be placed in line for mechanical counting. If the judges proceeded in this manner then the contestee could conceivably have been credited with as many as 67 votes that should not have been counted for him, because the voter had actually cast a prohibited double vote. But in any event the contestee received no more than 713 punch card votes and, if my initial assumption about the legal issue is correct, the contestant should have received an additional 67 votes. It makes no difference that the contestee may have been credited with votes that should have been eliminated. If the contestant is entitled to the votes with the name written but without *477the “X”, it can be said without fear of contradiction that he received a majority of the valid votes.
Any other conclusion would mean that there could never be an effective contest of an election in which write-ins are significant. The write-in sleeves and the punch cards cannot be kept together. The voter deposits the ballot in a sleeve. The precinct judges separate the cards from the sleeves and tabulate the write-in votes, in substantially the same manner as paper ballots are tabulated. All election supplies and unused ballots, including any spoiled or voided ballots, are returned to the election authority (which, in this case, is the county clerk.) The punch cards are then tabulated by the use of the central processing equipment. This procedure cannot be followed unless the punch cards are separated from the sleeves.
The trial judge recognized as much by overruling the contestee’s objection to unsealing and recounting the votes. The judge stated:
So the allegation has been there were 70 votes rejected improperly. The margin of victory was 43 votes. The clerk in this case, because of the way the ballots were delivered to him, has no independent means of proving or disproving the fact that the 70 votes in question were improperly thrown out or improperly counted, and because of that fact, I think a prima facie case [to examine the ballots] has been made_ (Emphasis added).
It is unrealistic under the circumstances of this case to require the contestant to prove, by evidence extrinsic to the ballots themselves, why the ballots were rejected, and the showing would be immaterial. The contestant should not be required to establish facts that the county clerk, the chief election authority in the premises, could not establish. The principal opinion affirms on a ground not relied on by the trial judge. This is not inappropriate, if the law supports the reason but shows that the case is not disposed of on factual grounds. Nor do I find legal authority for the holding of the principal opinion.
It should not be necessary to secure the testimony of election officials in the precincts, as to why they may have rejected purported votes listed on the ballot sleeves. An election contest is not an appeal on a record made before the election officials. The issue may be fully determined from the residual materials deposited with the county clerk and received in evidence. We may presume that the officials did their duty by returning all the materials, and that nothing was lost or destroyed. What is now at issue is not why the judges may have counted or rejected certain ballots, but how the ballots in evidence should be counted. The trial judge’s findings, as opposed to his legal conclusions, are clear on this point. The court is in a position to make a complete recount, superseding the count of the election officials. This is the nature of a contest.
The Court, at the very least, should consider ordering a new election because of “irregularities of sufficient magnitude to cast doubt on the validity of the initial election ...” Marre v. Reed, 775 S.W.2d 952 (Mo. banc 1989). I did not join that opinion, but accept its authority. This case seems more compelling for relief than that one.
I would reverse and remand with directions to enter judgment for the contestant.
. While election results are not to be lightly set aside and statutory requirements must be followed, this Court has long recognized that election laws must be liberally construed in order to sustain the choice of the electorate. Kasten v. Guth, 375 S.W.2d 110, 113 (Mo.1964), appeal after remand, 395 S.W.2d 433 (Mo.1965); Armantrout v. Bohon, 349 Mo. 667, 162 S.W.2d 867, 871 (1942); State ex inf. McKittrick v. Stoner, 347 Mo. 242, 146 S.W.2d 891, 894 (1941); Nance v. Kearhey, 251 Mo. 374, 158 S.W. 629, 631 (Mo. banc 1913). Section 115.453(3) recognizes as much by validating ballots marked "substantially in accordance” with that section. Unless a statute expressly voids a technically irregular ballot, such a ballot is valid so long as the voter’s intent is clear. See Kasten, supra, 375 S.W.2d at 114-116 (misspelled or incomplete name of candidate); Felker v. City of Sikeston, 334 S.W.2d 754, 756-757 (Mo.App.1960) (technically incorrect ballot form); Riefle v. Kamp, 241 Mo.App. 1151, 247 S.W.2d 333, 336-341 (1952) (ballots missing stickers; improperly marked and smudged ballots).
Authority from other jurisdictions likewise acknowledges liberality in dealing with technical irregularities. See generally 29 C.J.S. Elections § 180 (1965); 26 Am.Jur.2d Elections § 257 (1966); Annot., 86 A.L.R.2d 1025 (1962).