Rehearing Denied June 13, 1961.
Harry W. Bagnall, Jr., Coolidge, for appellant.
Powers & Rehnquist, by William H. Rehnquist, Phoenix, for appellee.
Appellant and appellee were nominees for the office of Sheriff of Pinal County in the general election held in 1960. The appellant, running under the Democratic Party designation, received 6,290 votes and the appellee, running under the Better Law Enforcement designation, received 6,282 votes. These votes were cast by marking an 'X' in the square opposite the name of the candidates, both of whose names were printed on the ballot, or by an 'X' in the square designated for straight ticket voting. An additional thirty-two ballots contained 'write-in' votes for these two condidates, appellant receiving six and appellee receiving twenty-six. The county supervisors declared appellee the winner. An election contest ensued in which the trial court ruled that these thirty-two ballots[89 Ariz. 328] should be counted, and sustained the certification of appellee as the winner of the contest with a vote of 6,308 in his favor as compared to 6,296 for appellant.
The sole question raised by this appeal and the only assignment of error made by appellant is as follows:
'The Court erred in allowing any of the 32 questioned write-in votes to be counted for either party.'
We have long since established the rule of construction that 'in counting the ballots, the determination of the intent of the voter is the question of primary importance.' However, this rule 'is always subject to statutory mandates as to how the voter's intention must be expressed.' Findley v. Sorenson, 35 Ariz. 265, 270, 276 P. 843, 844. The pertinent law is contained in A.R.S. § 16-834 and reads as follows:
' § 16-834. Instructions for voters and election officers; form; preparation and distribution; posting
'A. The board of supervisors shall prepare the following instructions for the guidance of voters and election officers at the election, according to which the election shall be conducted and which shall govern the voters and election officers:
'Instructions to Voters and Election Officers.
'1. On entering the polls each voter shall give his name in full, and his place of residence, to the judge having charge of the ballots. The inspector, or one of the judges or clerks shall then ascertain if the name of the voter appears on the precinct register, and, if so, the voter will be given a ballot on the stub of which shall be written the initials of the judge delivering the
ballot, and the register number of the voter.
'2. The voter will then retire to a booth provided for that purpose, and there make or stamp his ballot. If he wishes to vote a straight ticket he may place a cross in the square at the top of the column under the name of the party and for whose candidate he wishes to vote; otherwise he will mark his ballot with an 'X' in the square opposite the name of each candidate whose name is printed on the ballot for whom he desires to vote.
'3. If the voter desires to vote for any person whose name is not printed on the ballot, he shall write the name of such person on the blank lines immediately below the names of all the candidates printed on the ballot for the particular office for which he desires to vote for such person, and mark the same with an 'X' in the square opposite such blank line.' (Emphasis supplied.)
[89 Ariz. 329] It is manifest that A.R.S. § 16-834, subd. A constitutes a mandate to the voters and election officers with reference to the exact manner in which votes can legally be cast. The wording in the statute is clear, that the board of supervisors shall prepare the instructions for the guidance of the voters and election officers at the election, according to which the election 'shall be conducted and which shall govern the voters and election officers.' In Hunt v. Campbell,19 Ariz. 254, 169 P. 596, this court held that the provisions of this statute must be strictly complied with. We held in that case that where a voter is instructed to ...