dissenting.
The opinion of the majority is an exercise in textual analysis which pays little heed to the fact that it is disenfranchising 202 voters. It cites the text of statutes and court decisions 40 to 50 years old or more as if they were graven on stone. The opinion says nothing about the “spirit of the law” which was held by the same Justices only four weeks ago [Olson v. Thompson, 248 N.W.2d 347 (N.D.1976)] to justify wholesale disregard of mandatory statutes. In the opinion of four weeks ago they said, at four different places, that statutes could be disregarded because they required only “idle acts.”
*242Today the majority forgets about the “spirit of the law” and makes 202 idle acts out of the solemn acts of voting by 202 citizens of this State.
A majority which feels free to choose between the “letter of the law” one day and the “spirit of the law” another day will always be triumphant but it will not always be right.1
Fortunately, we need not resort to such amorphous concepts as the “spirit of the law” to demonstrate the fallacies in the majority opinion.
That opinion, besides relying primarily on precedents 40 or 50 or more years old, disregards the constitutional rights of the 202 voters and misapprehends a Federal district court decision and virtually disregards authoritative and convincing interpretation of statutes like ours by the Supreme Court of a sister State. Besides that, it ignores prior interpretations of our statutes by our own district courts, which surely are entitled to more deference than the decision of a Federal district judge in another State, even if it applied, which it does not. Most important of all, it disregards controlling principles of constitutional law which have developed since its half-century-old cases were decided.
THE STATUTES
The majority opinion sets forth some of the statutes which we are called upon to interpret — Sections 16-12-04, 16-13-01, 16-18-17, and 16-18-20. To these should be added some provisions of Chapter 16-18 relating to absent voters ballots. Without giving them in detail, we mention that 16-18-01 allows voters who are or expect to be absent on election day or who are physically disabled or in the military or naval services
to vote by absent voters ballots [§§ 16-18-01 and 16-18-02, N.D.C.C.]; that the application for such a ballot, witnessed, shall be furnished to the proper official (in the case of legislative elections, the county auditor), except that those in military service are not required to use a formal application [§ 16-18-06, N.D.C.C.]; that the ballots are to be delivered or sent by the county auditor to the elector by mail, together with an envelope preaddressed to the county auditor, containing a form of affidavit swearing to residence and entitlement to vote in a specific precinct [§ 16 — 18-09, N.D.C.C.]; and the county auditor delivers returned ballots to the proper precinct [§§ 16-18-15 and 16-18-16, N.D.C.C.].
THE CASE LAW
The first North Dakota case construing the statutes as to stamping and initialing ballots was decided before there were any absent voters ballots. It was Miller v. Schallern, 8 N.D. 395, 79 N.W. 865 (1899). Two other cases, decided the same year in the same way, were Lorin v. Seitz, 8 N.D. 404, 79 N.W. 869 (1899), and Howser v. Pepper, 8 N.D. 484, 79 N.W. 1018 (1899).
Miller involved ballots cast in person at the polls which were not initialed by the inspector or judges of the election. It was held, relying on the statute (§ 524, R.C. 1899), which was a precursor of Section 16-13-01, N.D.C.C., that the statute governed and the votes could not be counted. A principal basis for the holding was that the voter himself had the means of making sure that he did not lose his vote, because he could examine the ballot to make sure that it was stamped and initialed and he therefore had “an opportunity to see and know personally whether or not he is voting *243a lawful ballot — i. e., an official ballot,” and therefore “the loss of the vote is the result of the voter’s own acts.”
In Fuerst v. Semmler, 28 N.D. 411, 149 N.W. 115 (1914), two precincts were improperly consolidated for voting purposes, the stamps of the two precincts were used, and the ballots were deposited in the same ballot box. The court held that the ballots should be counted, saying:
“Although the statute requiring the authentication of the ballot is mandatory, a literal compliance therewith is not exacted. A substantial compliance was observed and this is all that was required. While, no doubt, it was the elector’s duty to see that his ballot was authenticáted in substantial conformity to the statute, it would be an exceedingly harsh and needless rule that would require that he should, at the peril of having his vote not counted, see that the statute had been literally observed by the election officers. . . .
“. . .To attribute to the Legislature such an absurd intent is equivalent to attributing to it an intent to lay a trap for the unsuspecting and good-faith voter which he is almost certain to be caught in, and whereby his vote may, at the behest of dishonest or careless election officials, be held for naught.” 149 N.W. 115, at 119-120.
Another case of some interest is Perry v. Hackney, 11 N.D. 148, 90 N.W. 483 (1902), where the results of the election in a precinct were challenged because the voting booths were not screened, so that the voters were visible while marking their ballots. This court said [quoting Parvin v. Wimberg, 130 Ind. 561, 30 N.E. 790, 15 L.R.A. 775, 30 Am.St.Rep. 254 (1892):
“ ‘. . . If a statute expressly declares any particular act to be essential to the validity of an election, or that its omission shall render the election void, the courts, whose duty it is to enforce the law as they find it, must so hold, whether the particular act in question goes to the merits or affects the result of the election or not; for such a statute is mandatory, and the court cannot enter into the question of its policy. On the other hand, if a statute simply provides that certain things shall be done within a particular time or in a particular manner, and does not declare that their performance shall be essential to the validity of an election, they will be regarded as mandatory if they affect the merits of the election, and as directory only if they do not affect its merits.” 90 N.W. 483, at 485.
This court also said:
“The violation of duty in this case was by the officers conducting the election, and not by the electors, and the latter were not in fault. The weight of judicial opinion is to the effect that, in the absence of fraud, a voter, who has nothing to do with the preparation of the ballots or matters preliminary to the election, should not be deprived of his right to have his vote counted because of the wrongful act of the election officers.” 90 N.W. 483, at 486.
Then came Weber v. O’Connell, 55 N.D. 867, 215 N.W. 539 (1927), upon which the majority places much reliance. This court there refused to follow the rationale of the prior cases, which had either held directions to election officers to be directory or had put the blame on the voters for not making sure that their ballots were valid, and held, for the first time, that voters could be disenfranchised by acts of election boards which they knew nothing of and had no way to prevent. Then years later, this harsh rule was followed in Torkelson v. Byrne, 68 N.D. 13, 276 N.W. 134, 113 A.L.R. 1213 (1937). Neither of these cases even touched upon constitutional issues which we believe are controlling now. And neither involved voting on voting machines. They obviously are of slight value in solving the problems of this case for these reasons, as well as their vintage.
The only case law from other jurisdictions to which we have been referred, or which we can find, involving absent voters ballots is Craig v. Peterson, 39 Ill.2d 191, 233 N.E.2d 345 (1968). Illinois’ Election *244Code, Section 17-9, was, in all pertinent respects, substantially identical to our Section 16-12-04, referred to above, and Illinois’ Election Code Section 19-9 was in all pertinent respects substantially identical to Section 16-18-17, referred to above. The Illinois court had this to say:
“While this court has had no occasion to consider the constitutionality or the effect of these provisions in an election in which both voting machines and paper ballots have been used, questions relating to the validity of uninitialed ballots in an all-paper ballot election have frequently been presented and it is now well established, despite earlier decisions to the contrary, that the statutory requirement that election judges initial the ballot before it is placed in the ballot box is a mandatory provision, and that no ballot without such initials may be counted, regardless of whether it be an absentee ballot or otherwise. [Citations omitted.] We have not, however, considered the question in the context here presented, and we agree with the intervening appellants that their disenfranchisement, without their fault, by application of the initialling requirement to their paper ballots in an otherwise machine election poses substantial problems under section 18 of article II of our constitution which provides: ‘All elections shall be free and equal’, and section 1 of article VII, providing that all persons possessing the qualifications therein specified ‘shall be entitled to vote at such election,’2 as well as under the fourteenth amendment to the United States constitution. . . . Likewise, the Federal courts have evinced similar concern. While there concerned with apportionment problems, the statements of the United States Supreme Court in Reynolds v. Sims, 377 U.S. 533, 554-555, 84 S.Ct. 1362, 1377-1378, 12 L.Ed.2d 506, 523, are apropos: ‘Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections. * * * It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote, [citation] and to have their votes counted, [citation]. In Mosley [United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355] the Court stated that it is “as equally unquestionable that the right to have one’s vote counted is as open to protection * * * as the right to put a ballot in a box.” * * * The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.’
“While the necessity of, and legislative authority to establish, reasonable rules assuring the honest and orderly conduct of elections is obvious, it is apparent from the above cases that statutory requirements which, absent fault on his part, deprive a fully qualified voter of his right to vote or to have his vote counted are constitutionally suspect, particularly where such requirements do not substantially promote the secrecy and integrity of the election.
“It is noteworthy that in the numerous cases in this court involving uninitialled ballots, the constitutionality of that requirement seems not to have been challenged nor discussed other than inferentially. The absence of such challenge is likely accounted for by the fact that such requirement, as applied to an all-paper ballot election, is a patently reasonable one in that it serves a salutary purpose by enabling the election judges to identify those ballots which they have personally initialled and therefore constitutes an effective safeguard against corrupt practices such as ‘stuffing’ a ballot box. [Citation omitted.] Likewise the same considerations have been held to apply to absentee ballots in an all-paper ballot election for there is no other equally effective method of identifying and separating the legally cast from the illegally cast votes. [Citations omitted.] But it is not at all *245clear as to the manner in which the sanctity and integrity of an election is promoted by applying the rule to exclude uninitialled absentee ballots cast by qualified voters in an election in which the only paper ballots used on the issues or offices in question are those voted by the absentees, and this is particularly true where, as here no question of fraud or tampering is presented, and it is stipulated that the ballots in question are in fact the same ballots delivered by the county clerk’s office. Under these circumstances we believe these uninitialled absentee ballots could properly be counted, and that the statutory commands construed in [citations omitted] to be mandatory in an all-paper ballot election must be held only directory when applied in the context of the case before us.
“No useful purpose would be served by a detailed consideration of the other cases in which the initialling requirement has been held mandatory and uninitialled ballots rejected. Each involved an all-paper ballot election, and the basic considerations have been the same. The statute requires the ballots to be initialled, it commands that no unindorsed ballot shall be counted, this requirement substantially contributes to the integrity of the election process and is a valid, mandatory provision which the courts must enforce. But this reasoning simply does not apply with equal force to the situation before us where the initialling requirement, in the circumstances of this case, contributes not at all to the integrity of the election process; it does not assist in identifying the ballots for no identification problem exists, nor can a problem exist where the only paper ballots cast for these offices were the absentee ballots; it does not assist in separating the illegally cast from the legally cast ballots for there were no other paper ballots for public offices and there is no claim that these absentee ballots were altered, tampered with or in any way improperly preserved — -in fact it is stipulated that these are the identical ballots received by the absentee voters from the county clerk. The net result of a mandatory application of the initialling requirement to the absentee ballots in the circumstances of this ease would be to disenfranchise a substantial number of qualified voters who have done everything in their power to comply with the law, a result which neither our State nor Federal constitutions will tolerate where, as here, the rule causing their disenfranchisement made no substantial contribution to the integrity of this election. [Citations omitted.] In fact, the initialling requirement as to absentee ballots, if held valid and mandatory in this case, might well serve as the means of achieving the very result it was intended to prevent, for corrupt election judges could deliberately refrain from initialling ballots of those absentee voters whom they had reason to believe voted otherwise than the judges desired. This possibility, of course, always exists as to absentee ballots; the difference between the ordinary situation and this is that in an all-paper ballot election there is no other means of identifying the legally east ballots. The necessity, in order to guarantee the integrity of the election, of some such method of separating the legally cast ballots from those illegally cast suffices to make its application in the usual case constitutionally permissible even though it results in disenfranchisement of those absentee voters whose ballots are uninitialled. No such necessity or justification exists in the case before us.
“It is our duty to so interpret a statute as to promote its essential purposes and to avoid, if possible, a construction that would raise doubts as to its validity. [Citations omitted.] We therefore hold the statutory requirements relating to the initialling of ballots by election judges are directory, rather than mandatory, when considered in relation to an election where the only paper ballots used on the issue or office in question are those of absentee voters, and the only irregularity complained of is the absence of such endorsement.” Craig v. Peterson, 233 N.E.2d 345, 347-351.
We believe these arguments are simply unanswerable, and unanswered in the majority opinion. We adopt them as our own.
*246The majority makes no attempt to distinguish Craig v. Peterson, supra, and misunderstands the only other decision it cites involving a constitutional question, Porter v. Bainbridge, 405 F.Supp. 83 (S.D.Ind.1975), a Federal district court case. The action was based on alleged violations of Federal statutes (conspiracy and civil rights). The court gave twelve reasons why the complaint did not state a cause of action under Federal law. One was that the Indiana Legislature, under the State Constitution, was the sole judge of the qualifications of its members. Others related to the requirements of the Federal conspiracy and civil-rights laws. Most important, the issue before us was not even raised, as is shown when we copy the full paragraph from which the majority excerpted one sentence and part of another:
“2. Plaintiffs’ complaint, and the facts set forth above, fail to state a claim upon which relief can be granted based on 42 U.S.C., Section 1983. Plaintiffs do not allege that either the provisions of the Indiana Election Code requiring that the precinct election clerks place their initials on absentee ballots when they are delivered to the polls and that ballots which do not contain such initials of the clerks may be protested and rejected, or the rules adopted by the Select Recount Committee providing that all absentee ballots and paper ballots which do not contain the initials of the precinct election clerks will not be tallied, are facially unconstitutional under the Fourteenth Amendment to the United States Constitution. They allege only that in adopting such rule and applying it to the recount of votes for Representative in the Twenty-Third District, the Select Recount Committee, and the House of Representatives in approving the report of such Committee, failed to follow decisions of the Indiana Supreme Court holding that in counting votes for purposes of statutory recount or contest proceedings under the appropriate provisions of the Indiana Election Code absentee ballots should be counted regardless of whether they contain the initials of the precinct election clerks. Allegations of a violation of rules or requirements of state law are insufficient to state a claim for relief under 42 U.S.C., Section 1983. Moreover, plaintiffs’ complaint does not allege, and the facts set forth above do not tend to prove, any violation of plaintiffs’ voting rights or plaintiffs’ First Amendment rights to freedom of speech, assembly and petition for redress of grievances, as incorporated in the Due Process Clause of the Fourteenth Amendment. In so far as plaintiffs rely on the Equal Protection Clause of the Fourteenth Amendment, they fail to allege any intentional and purposeful discrimination against an identifiable class or group. The Select Committee’s Buie No. 3, requiring that the election clerks initial the ballots, is a reasonable and logical requirement to assure that only the ballots of properly registered and qualified voters are in fact deposited in the ballot box at the precinct. This procedure assures qualified and registered voters that their votes will not be diluted or nullified by votes of unqualified and unregistered persons.” Porter v. Bainbridge, 405 F.Supp. 83, at 90-91.
Thus it will be seen that (1) the language quoted by the majority relates only to the rules of the House committee and not to the Indiana statute, (2) the complaint did not allege any violation of voting rights, and (3) the complaint did not allege that the statute was void on its face under the Fourteenth Amendment. None of these reasons applies here. Besides, we are not a Federal district court, instructed to apply doctrines of abstention in construing State law. We are the highest court of this State, construing our own law.
We come now to the latest interpretations of our own law, in our own State. We are advised by one side, and it is not disputed by the other, that two years ago, in a statewide election contest between the incumbent Republican United States Senator and his opponent, the six presiding judges of our six judicial districts, appointed by us to supervise the recount, faced the same question we are now deciding, and that *247they decided to count all of the contested absent voters ballots from machine precincts which were not initialed and stamped. While the case was not appealed to us, surely we should give some weight to the interpretation placed on the identical statutes and decisions we are now construing, by the judges we have appointed to administer the courts of all the other district judges in the State. Fargo Public Library v. City of Fargo Urban Renewal Agency, 185 N.W.2d 500 (N.D.1971). We dissenters do so, while the majority does not.
A few other comments may be apropos:
1. The majority says that the provisions of Section 16-18-17, N.D.C.C., are mandatory, particularly the portion relating to “endorsing” the ballots. The word “endorsing” appears in this context:
. . and after endorsing the same as other ballots are endorsed, they shall deposit the ballot in the proper ballot box. . ."
We are advised by all parties, in oral argument, that there were no ballot boxes in any of the precincts where the challenged votes were cast. Obviously, the portion of the statute as to deposit of ballots was disregarded, yet no one asks to have all the ballots voided for that reason. It is a little difficult to understand how one part of a clause is mandatory, but the other part, not even separated by a comma, is not. The majority opinion, using the logic that statutes are “mandatory” rather than “directory” when the language is a clear expression of the legislative intent, then proceeds to ignore all of the language which obscures the intent of the Legislature.
2. It was stipulated by the attorney for Wentz, during the recount, that no question was being raised as to the identity of the challenged ballots, and that no evidence of fraud was to be presented. In view of this, the concern of the majority for the possibility of fraud is, to put it mildly, misplaced. Apparently 202 voters are to be disenfranchised and a candidate who received fewer votes than an opponent is to be declared elected, because, by a farfetched feat of imagination the possibility of fraud can be found to exist. Similar feats of imagination were disregarded in Craig v. Peterson, supra.
CONCLUSION
We conclude that the 202 voters were improperly and unconstitutionally disenfranchised; that the 202 ballots should have been allowed, and that either the county board of canvassers, may be recalled into session pursuant to statute, Section 16-13-15, N.D.C.C., or that the State Board of Canvassers may be recalled into session, pursuant' to Section 16-13-47.1, N.D.C.C., and the procedure approved in Olson v. Thompson, supra, to recertify the result after including the 202 votes. Among our reasons are these:
a. We adopt the rationale and reasoning of Craig v. Peterson, supra, the only case in point. We could not improve upon the language we have quoted, and we adopt it.
b. We must, if we can, construe a statute so as to avoid constitutional questions. This construction does so.
c. We believe that recent Federal constitutional cases relating to voting rights require the result we have reached. Just as a State must show a substantial and compelling reason for imposing durational residence requirements in the face of undisputed actual residence [Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972)], we believe it must show a substantial and compelling reason for disenfranchising one whose vote was cast in good faith and without fraud or neglect on his part.
The right to vote is “a fundamental political right . . . preservative of all rights.” Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, 527 (1964).
We believe the disenfranchisement of the 202 voters is also unconstitutional, under developing Federal law, because it restricts the right to travel. See Dunn v. Blumstein, supra. One who does not travel from his precinct on election day will have his vote *248counted. If his ballot is not stamped and initialed, he may require it to be stamped and initialed. If he votes by voting machine, he is sure the vote will be counted. But one who travels on election day, although allowed to vote in advance, is at the mercy of careless or corrupt officials who may so act as to disenfranchise him by failing to stamp or initial his ballot, thereby destroying his franchise without any fault on his part. We believe this violates the Equal Protection Clause of both the State and Federal Constitutions. Dunn v. Blumstein, supra; Thirteenth Amendment, United States Constitution; Section 20, North Dakota Constitution.
d. The petitioner here raises a constitutional question not raised in this court previously. Our prior decisions therefore provide no precedent on the constitutional question which we believe should be decided in favor of the validity of the 202 challenged absent voters ballots.
e. We notice that our statutory scheme now provides for the counting of some absentee ballots which are not stamped or initialed by the precinct election officials or by anyone else. See Section 16-18-14, N.D. C.C., providing for counting by the county canvassing board of absentee ballots which arrive too late to be forwarded to the election boards, without stamping or initialing by anyone. Ten such ballots were counted by the canvassing board in the present case (as appears from the record in this case). Under the rationale of the respondents, these would be disallowed and their voters disenfranchised.
f. It is obvious that the full range of statutes relating to elections cannot be applied literally to recounts of returns of absent voters ballots in precincts which use machines for voters appearing in person. As we have said, the officials cannot put absent voters ballots in ballot boxes if they have no ballot boxes. It is impossible to “recount” votes placed in machines by voters appearing in person.
Obviously, when statutes adopted at different times cannot be fully reconciled, interpretation is necessary. When something as fundamental as the ballot is concerned, interpretation should favor the right to the franchise. We have statutory rules of interpretation. They are found in Sections 1-02-38 and 1-02-39, N.D.C.C., and provide:
“1-02-38. Intentions in the enactment of statutes. — In enacting a statute, it is presumed that:
“1. Compliance with the constitutions of the state and of the United States is intended.
“2. The entire statute is intended to be effective.
“3. A just and reasonable result is intended.
“4. A result feasible of execution is intended.
“5. Public interest is favored over any private interest.”
* * * * * *
“1-02-39. Aids in construction of ambiguous statutes. — If a statute is ambiguous, the court, in determining the intention of the legislation, may consider among other matters:
“1. The object sought to be attained.
“2. The circumstances under which the statute was enacted.
“3. The legislative history.
“4. The common law or former statutory provisions, including laws upon the same or similar subjects.
“5. The consequences of a particular construction.
“6. The administrative construction of the statute.
“7. The preamble.”
Applying these rules, we read the statutes of this State so as to make them constitutional and to uphold the fundamental right to vote. We will not disenfranchise 202 voters, if it can be avoided, for reasons which we believe to be hypertechnical, illogical, and contrary to accepted doctrines of statutory construction.
g.The numerous precautions of the statutes on absentee voting provide so many safeguards that they more than ade*249quately substitute for any guarantees implicit in the stamping and initialing procedure. These precautions include (1) an application signed by the voter (except if in military service) [§§ 16-18-05, 16-18-06, and 16-18-11]; (2) sworn statement of voter on the envelope accompanying the ballot when returned [§ 16-18-09]; (3) certification of receipt of the ballot by a “proper officer” (in this case, the county auditor) and delivered with the ballots to precinct election officials [§ 16-18-16]; and (4) comparison of application and affidavit, and checking the qualifications of the elector, by the election officials before counting the vote [§ 16-18-17]. Where absent voters ballots are tallied on machines, additional precautions exist in that the machine is operated by representatives of both parties [§ 16-18-20].
h. We are reluctant to disenfranchise voters without sufficient reason, in the face of constitutional requirements. We have always held the right to vote to be a basic constitutional right in this country. To have that vote taken from 202 electors, for reasons which have nothing to do with any fault whatever on their part, and based solely on the failure of election officials to perform a technical requirement, is abhorrent to our ideals and our form of government and violative of a fundamental constitutional right.
Justice PEDERSON joins me in this dissent.. Before we leave the topic of the “spirit of the law” we invite comparison between the majority opinion in Olson v. Thompson, supra, and the holding of the district court in the case now before us. The opinion of the district court says this:
“There is reason, as pointed out by Mr. Eaton, why an election where all of the ballots cast are cast on the machine and the only paper ballots involved are those re-
ceived from absentee voters. That the spirit of the law is not served by throwing those paper ballots out because they do not contain the initials and/or stamp of the inspector or the judge of the election.
“Good arguments can be made that the spirit of the law is usurped by throwing those ballots out. Unfortunately, the Legislature hasn’t seen fit to modify the letter of the law to meet the spirit of the law.”
. The North Dakota Constitution, Article V, Section 121, provides that every person meeting citizenship, residence, and age requirements “shall be a qualified elector at such election.”