This is an election recount proceeding involving the office of jailer in Clay County, voted on at the last November 3rd general election. The race was very close and after a recount of the ballots by the circuit court, it was adjudged that Tom J. Henson was elected by a majority of three votes over his opponent J. M. Sizemore. The latter appeals.
Something over 100 ballots are in controversy. In order that the questions concerning these ballots may be more fully understood, we are printing a copy of one of them (omitting the constitutional amendments printed thereon). This particular ballot is discussed under subdivision 1 of this opinion. There are five groups of ballots involving 70 votes which were either counted for Henson or counted for no one, and all of which Sizemore claims were erroneously counted.
1. In the first group are 16 ballots not voted for anyone in the Republican column (where Henson's name appeared) by either a mark in the circle under the party emblem or a mark opposite the printed name of any candidate in that column. Most of these ballots have a stenciled cross-mark in the first box of the column under Sizemore's picture, which is immediately under the office heading "For Representative'. The others have such a mark in a different block in Sizemore's column, other than the one opposite his name. These votes were counted for no one.
KRS 118.280(2) provides in part as follows:
"No ballot shall be rejected for any technical error that does not make it impossible to determine the voter's choice.'
With this provision in mind an examination of these ballots indicates clearly that: (1) the voter had no intention of voting for Henson, and (2) he was trying to vote for someone. It may be noted that on these ballots the voter had also made marks in the columns for other independent candidates.
An examination of the ballot we have copied in this opinion shows that there was only one printed name in the entire column under Sizemore's picture. That name was his name. The other printing in the column was unnecessary, and the listing of nine other officers with accompanying blank lines and boxes was not only unnecessary but would certainly tend to confuse the voter.
We cannot examine these ballots without realizing that the voters were making an honest effort to cast a vote for someone. Doubtless they could have done the job more perfectly, but we have held that it is proper to search out the purpose of the voter and if his intention is manifest, it should be given effect. Thompson v. Boling, 240 Ky. 340, 42 S.W.2d 321. We should not disfranchise these voters if it may be ascertained that a bona fide attempt was made to vote for a particular candidate.
It is apparently conceded by the parties that if the stencil mark had been in the circle under Sizemore's picture it would have been a vote for him. A mark in the first box appearing in his column likewise indicates that the intention was to vote for him as there was no name opposite the first box and the only name appearing thereunder in the entire column was that of Sizemore. While a mark in a box further down the column may at first glance appear meaningless, since no other name appears in Sizemore's column but his, we have the choice of determining that the vote was either for no one or it was for Sizemore.
In view of the particular form of ballot used in this election, we are inclined to give the benefit of the doubt to the voter rather than to deprive him of his democratic right. The fact that a substantial number of voters apparently were confused by this ballot and failed to mark it in the proper box is persuasive that the type of ballot caused the confusion. We are of the opinion that because of its form, Sizemore's column was of more significance than the box opposite his name. We do not mean to say that a mark anywhere in the column would necessarily constitute a vote, but where the voter has marked in a box which fairly can be identified with a candidate, then it should be counted for that candidate.
It is our conclusion this group of 16 ballots should have been counted for Sizemore. We do not believe this ruling conflicts with the case of Brandenburg v. Hurst, 289 Ky. 155, 158 S.W.2d 420, in which we held that where there were several named candidates in a column a mark in the square opposite a blank line would not constitute a vote for such candidates.
The above reasoning applies to the next three groups of ballots.
2. The second group consisted of 22 ballots in which the voter had obviously voted for a named candidate in the "Republican Party' column and had also marked one of the boxes in Sizemore's column. Clearly this was not a vote for Henson, and giving effect to the mark in Sizemore's column, was ...