Poole v. BOARD OF CANVASSERS

D. E. Holbrook, P.J.

(dissenting). This writer votes to reverse. The facts are set forth adequately in the majority opinion. Admittedly, the subject absentee ballots were not properly sealed in ballot bags and, due apparently to the voting method utilized by the county board election workers, the number of ballots preserved did not correspond to the number of entries in the poll book. Nevertheless, the ballot box was sealed with the seal of record. A record of the properly cast absentee ballots has thus been preserved intact.

*308The 15 election workers who recorded their own individual ballots on the machine used to tally absentee ballots did so on the basis of the township clerk’s reading of MCL 168.681; MSA 6.1681: "Any precinct election inspector in any township shall have the right to vote in the election precinct where he acts as such election officer, even though he resides in another election precinct of the same township”. As defined in MCL 168.654; MSA 6.1654, "election precinct” clearly signifies a geographic area and was not intended to include an absent voter counting place as provided for in MCL 168.792a; MSA 6.1792(1). Absent voters’ counting places were not established as polling places; rather they were intended to serve merely a recording function. The separate counting place was established expressly to prevent the recount difficulties experienced in the instant case.

In Groesbeck v Board of State Canvassers, 251 Mich 286, 291; 232 NW 387 (1930), the Court stated that:

"Some provisions are made mandatory in absolute effect by the use of specific imperative language. Others, while employing no special emphatic words, are held mandatory because they are designed to preserve the purity of the election, the secrecy of the vote, or the official character and integrity of the ballots both during and after the election. Such mandatory provisions must be given full effect even though it results in disfranchisement of voters or prevention of recount. Attorney General v. May, 99 Mich. 538 [58 NW 483] (25 L.R.A. 325 [1894]); Attorney General v. Glaser, 103 Mich. 396 [61 NW 648] (1894); Keith v Wendt, 144 Mich. 49 [109 NW 443 (1906)]; People v. Rinehart, 161 Mich. 585 [126 NW 704 (1910)]; Ritze v. Board of Canvassers, 172 Mich. 423 [137 NW 964 (1912)]; Smith v. Board of Canvassers, 220 Mich. 318 [189 NW 856 (1922)].
"Other provisions, however, while expressed manda*309torily, are held directory in some circumstances, in that their nonobservance is not fatal to a count of ballots, notably when they involve the performance of duty by an election official, the neglect of which has no effect upon the election or will result in disfranchising voters without their fault. An elector has the right to rely upon a legally authenticated ballot, in statutory form, handed to him at the polls by an election official, as being an official ballot upon which he can cast a lawful vote for a candidate of his choice. He is not bound to trace the history of the ballot to ascertain that all the provisions of law have been fulfilled in its preparation.”

Although the votes of election workers who recorded their ballots on the counting place machine were improperly cast, although the outcome of the election may have been altered by their vote and although solely as a result of the workers’ mistake the number of ballots does not equal the number of voters’ names entered in the poll book, the majority interprets the above section and Ryan v Wayne County Board of Canvassers, 396 Mich 213; 240 NW2d 236 (1976), which relied upon Groesbeck, supra, to preclude a recount of the absentee ballots. This writer is drawn by the same authority to the conclusion that the names of the election workers who voted improperly should be struck from the poll book.

If the Court were to adopt this approach, the rectified poll book would contain the same number of entries as the sealed ballot box contains ballots. Under MCL 168.871; MSA 6.1871, and the regulations promulgated by the State Board of Canvassers under MCL 168.889; MSA 6.1889, the absent voters’ ballots recorded at the counting board would be recountable since two of the three mandatory requirements to allowing a recount have been met. This writer does not believe that the suggested result would contravene the intent of *310the relevant Michigan election laws as expressed in Ryan, supra, at 216-217:

" 'The evident purpose of the precautions prescribed in the statute is to preserve the integrity of the ballots, so that, if necessary to resort to a recount thereof, it may be done with the assurance of having the ballots present the identical verity they bore when cast.’ Smith v Board of Canvassers of Saginaw County, 220 Mich 318, 320; 189 NW 856 (1922).”

This writer would reverse.