I dissent. I do not believe that § 20-7-25 relied upon by the majority opinion, or § 20-7-21 apply in this fact situation. I also agree that § 20-20-6(5) is not controlling here, but believe in our quest to find the voter's intent, we should heed the legislative recognition in that statute that when a voter casts more votes for an office than he is entitled to vote for, and one of the votes is a write-in vote, the write-in vote is the "obvious intent" of the voter.
Section 20-7-21 mandates that the intent of the voter shall be given "full recognition." I find it difficult to believe that a voter who goes to the trouble of either writing in the name of a candidate or placing that candidate's sticker on the ballot does not clearly intend to vote for the write-in candidate, despite the fact that the voter has also placed an "X" opposite the name of a candidate whose name has been printed on the ballot. I believe that this intent can be ascertained without guessing and that it complies with the statement of Chief Justice Wolfe inFrantz v. Hansen, 104 Utah 412, 140 P.2d 631 (1943), set forth and approved in the majority opinion, that "There must be sufficient indication from the ballot as to what the voter really intended. The indications must be such as lead the mind naturally and without guess to infer the voter's intent." The writing in of a candidate's name or the placing of his sticker on the ballot is a more thoughtful, intentional and deliberate act than the mere scratching of an "X" opposite the name of the candidate whose name has been printed on the ballot, and which in this case was the last of thirteen candidates listed in a column on his party's ticket. The Legislature has recognized the validity of that inference in § 20-20-6(5) governing the use of electronic *Page 61 voting systems, and has declared the intent of the voter in that situation to be "obvious." If it is obvious there, it is likewise obvious in the instant case.
I am not persuaded by the appellant's arguments that it is just as reasonable to infer that the voter may have intended to vote for both candidates because he liked both, or disliked both, or may have been trying to "update" the ballot by attaching the write-in sticker. While I do not deny that occasionally a voter may have such motives, I believe that it is unreasonable in this case to infer that such was the motive of the voters here since they comprised 24 votes out of a total of only 1920 ballots cast. It is much more likely and reasonable to believe that they were intending to cast their vote for the write-in candidate rather than engaging in any divisive or abnormal practice. We should assume that these were sincere voters and not attribute to them motives other than those possessed by conscientious citizens.
I would also count in favor of the respondent the other four ballots which are referred to in the majority opinion but are not discussed therein. On those ballots, the voter had not marked an "X" opposite the printed name of Gilmore. Instead, the voter had placed one of Mosier's stickers, not in the exact write-in slot for sheriff, but in an adjoining space on the ballot. In three of those instances it appears that the voter simply mistook the exact place for his sticker and placed it one space above the correct place. However, since the sticker contained the name of the candidate and the office he was seeking, there can be no mistake as to the voter's intent. This situation is covered by § 20-7-21 wherein it is provided that mechanical and technical defects in voting and the failure on the part of the voter to follow strictly the rules for balloting shall not invalidate a ballot.
I would affirm the trial court's decision.
MAUGHAN, J., did not participate herein prior to his death; CROCKETT, Retired Justice, sat.