Number 5. September 9, 1976

Number 5. September 9, 1976 The Honorable Paul Guzzi Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Secretary Guzzi: You have requested my opinion on two questions of law relating to the manner in which local elections officials are to count "sticker" votes. A sticker is a printed, pre-pasted label which an individual who wishes to vote for a candidate whose name does not appear on the ballot may affix to his or her ballot in lieu of writing in the name and address of that candi- date. The laws of the Commonwealth specifically provide that individuals may cast their ballots by using such stickers. See, Mass. Gen. Laws c. 53, §§35 x and 35A and c. 54, §§41-44, 65 and 77. 2 But, the statutes are gen- eral in form and do not provide clean-cut answers to your particular questions. Specifically, you have asked: 1. Must votes be counted if a voter votes by using stickers with a preprinted [X] on them, and otherwise votes in the ap- propriate manner? 2. Must sticker votes be counted if the sticker is placed on the ballot under the office to be filled, but is placed vertically over any other names, or diagonally over same, or near the office designation or in a place other than the appropriate one? I answer your first question in the affirmative. In reaching this con- clusion, I have been guided by the "cardinal rule" for guidance of election officers: If the interest of the voter can be determined with reasonable certainty from an inspection of the ballot . . . effect must be given to that intent and the vote counted in accordance there- with, provided the voter has substantially complied with the requirements of the election law. O'Brien v. Election Commis- sioners of Boston, 257 Mass. 332, (1926). Although no reported case in the courts of the Commonwealth has attempted to apply this rule to the issue posed by your first question, in my opinion, its application would clearly require counting ballots contain- ing premarked stickers. My opinion is buttressed by a recent unreported decision of the Massachusetts Superior Court directly holding that pre- marked stickers should be counted under Massachusetts law (Bowen v. Registrars of Voters of Millville, Moynihan, J.). iMass. Gen. Laws c. 53, §35 provides in pertinent part: A cross (X) marked against a name shall constitute a vote for the person so designated. 2Mass. Gen. Laws c. 54, §77 provides in pertinent part: The voter on receiving his ballot shall . . . prepare his ballot by marking a cross (X) in the square at the right of the name of each candidate for whom he intends to vote or by inserting the name and residence of such candidate in the space provided therefor and making a cross in the square at the right. . . . P.D. 12 87 The same conclusion was reached by the Arkansas Supreme Court in a well-reasoned opinion interpreting the provisions of a sticker statute sub- stantially the same as Mass. Gen. Laws c. 53, §77. In the only reported decision in any jurisdiction dealing specifically with the problem of the validity of premarked stickers the court opined: The only question is whether the (X) may be placed on the sticker before the voter enters the polling place. We hold that it may be. . . . What the statute requires is that the voter mark his ballot inside the polling place. Here the marking of the ballots was accomplished by the affixation of stickers. As long as that substantive step was taken inside the polling place, it made no difference under either the letter or the spirit of the statute, when or where the marking of the (X) mark took place. Pace v. Hickey, 236 Ark. 792, 370 S.W. 2d 66, 67 ( 1963 ) . Based on these judicial precedents and my own view of the Massachu- setts law, I conclude that premarked stickers should be counted. I must respectfully decline to answer your second question. In essence, it asks whether a sticker should be counted if it appears under the appro- priate office to be filled, but is otherwise imperfectly placed. I decline to render an opinion on the question because determination of the actual intent of a voter is a question of fact which should be made in the first instance by local election officials on a case by case basis. Two cases decided by the Supreme Judicial Court provide guidance for those officials. In Ray v. Registrars of Voters of Ashland, 221 Mass. 223 (1915) the Court held that a sticker placed over the name of a candidate appearing on the ballot accompanied by an (X) marked alongside the sticker could properly be counted for the sticker candiate. In O'Brien v. Election Commissioners of Boston, 257 Mass. 332 (1926) the Court con- sidered several variations of irregular sticker votes and validated some while invalidating others. In both instances, the Court sought merely to ascertain whether the ballot as cast manifested the clear intent of the voter. Like the Court, I conclude that the provisions of Massachusetts law for casting one's ballot are directory rather than mandatory, and that ballots should be counted whenever there is substantial compliance with the law and a clear indication of the voter's intent. Very truly yours, FRANCIS X. BELLOTTI Attorney General 88 P.D. 12