dissenting. I concur in all of the majority opinion except that part relating to the vote of William Braden. My disagreement is based upon appellant’s argument, which is totally disregarded by the majority. In my opinion, it is valid, and I cannot understand why it does not dictate a different result. Appellant argues that a voter cannot be disfranchised solely by the reason of irregularities or improper action of election officials.
William Braden complied with the absentee voting requirements as fully as he could, given the situation resulting from the action or inaction of the county board of election commissioners and the county clerk. His vote was counted by the election officials. It was not shown or even alleged that he was not a registered voter. The circuit court held his ballot invalid, saying that William Braden failed to comply with provisions of the Arkansas statutes setting forth the method for making application and voting absentee. The testimony shows that Earl Braden, William Braden’s father, went to the county clerk’s office for the purpose of obtaining an absentee ballot for his son, a college student at “Arkansas Tech,” on three different occasions. The clerk told the senior Braden that he had no absentee ballot material, but finally marked an official ballot with the word “absentee” across the top and delivered it to the father, assuring him that this ballot would be legal in every respect.
There was a presumption that this vote, since it was accepted and counted by the election officials was valid, and the burden of overcoming this presumption was upon the contestant. Letchworth v. Flinn, 108 Ark. 301, 157 S.W. 402; Webb v. Bowden, 124 Ark. 244, 187 S.W. 461.
As appellee concedes, the evidence shows that no mechanism had been established for the casting of absentee ballots in this election. William Braden did not make an application for the ballot as required by Ark. Stat. Ann. § 3-904 (Supp. 1975). But that section of the statute clearly requires that the application be made only on the form set out in the act. That form is set out in Ark. Stat. Ann. § 3-905 (Supp. 1973). That section contains the following language:
Applications for absentee ballots shall be made only on the form furnished by the County Clerk and the County Clerk shall supply the following form on request beginning sixty (60) days before the election.
William Braden was prevented from making this application solely because the county clerk failed to provide the necessary application form as he was required by law to do. In casting his ballot William Braden used the ballot provided him by the clerk, because the election commissioners failed to provide absentee ballots as required by Ark. Stat. Ann. § 3-902 (Supp. 1973).
It is quite true that we said, appropriately enough, that there must be strict compliance with statutory provisions governing absentee voting in Bingham v. City of Eureka Springs, 241 Ark. 447, 408 S.W. 2d 607. But it was not a failure to perform by election officials which prevented compliance by the voter in Bingham. There should also be strict compliance by officers conducting the election. We did not, could not, and should not, in Bingham, or in this case, hold that failure of election officials to perform their mandatory duties can have the effect of disfranchising any voter.
It has long been the law that neglect, misconduct or mistakes of election officials should not disfranchise qualified electors. Appellee does not quarrel with this general rule, but says: “The rule that improper actions of election officials will not invalidate a voter’s ballot has no place in the area of absentee voting.” He cites no authority for this statement and the reason is understandable. As a matter of fact, the ■ authorities in Arkansas are to the contrary. In Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280, we had under consideration a challenge to absentee ballots in an election contest. In holding that they should be counted, we said:
The pertinent issue here is whether legal voters are to be denied their right of franchise because they used ballots upon which the candidates’ names had been placed by the use of a typewriter instead of some other form of printing and no objection to the form of the ballot is made until after the election. Even if it be conceded, without deciding, that the typing of the candidates’ names is not a substantial compliance with Ark. Stats. § 3-811 as amended by §§ 3-823 and 3-826, still the appellant may not object to the validity of the election on account of such irregularity where he did not avail himself of the opportunity to have it corrected before the election was held.
This court is committed to the rule that the mistake of an officer charged with responsibilities incident to an election will not have the effect of disfranchising the voter whose evidence of the right to participate in the election was irregular. In Henderson v. Gladish, 198 Ark. 217, 128 S.W. 2d 257, we reaffirmed the following principles announced in Jones v. State, 153 Ind. 440, 55 N.E. 229, 232: “To hold that all prescribed duties of election officers are mandatory, in the sense that their nonperformance shall vitiate the election, is to ingraft upon the law the very powers for mischief it was intended to prevent. If the mistake or inadvertence of the officer shall be fatal to the election, then his intentional wrong may so impress the ballot as to accomplish the defeat of a particular candidate or the disfranchisement of a party. And it is no answer to say that the offending officer may be punished by the criminal laws, for his punishment will not repair the injury done to those affected by his acts. ***
As pointed out in Henderson v. Gladish, 198 Ark. 217, 128 S.W. 2d 257, a voter should not be disfranchised by making him the innocent victim of either a careless, designing or uninformed officer. In that case, reference was made to our constitutional provision that “no power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage.” Art. 3 § 2, Constitution of Arkansas.
Since I woo'd hold the William Braden ballot valid, I would reverse the judgment and enter judgment here for the appellant.
I am authorized to state that the Chief Justice joins in this opinion.