CHAPTER 9.

CASTING AND COUNTING OF VOTE.

Sec. 5055. Where Elector Shall Vote. Each qualified elector shall vote at the polls of the precinct in which he has a legal residence, unless otherwise directed by special provision of law.

History:-39 v. 13; 67 v. 47.

If the boundaries of a municipal corporation are not the same as those of the township in which such municipal corporation is located, the electors of such municipal corporation are not entitled to vote for township officers, whose duties concern the township territory outside of the limits of such municipal corporation exclusively. However, the electors of such municipal corporation may vote for township officers, in which they have a like or similar interest with that of the electors of such township outside of such municipal corporation: State ex rel. v. Ward, 17 O. S. 543.

The right to vote has its source in the constitution of the state, and the statute requiring registration in no way qualifies that right. It follows, therefore, that the phrase "qualified electors," as used in the statutes relating to local option elections, must be construed to mean an elector who is qualified to register within the proposed residence district, and not in the more restricted meaning of one who is not only qualified to register but actually has registered: In re Jones Law Petition, 11 O. N. P. (N. S.) 241.

Sec. 5056. Polls Open from 5:30 A. M. to 5:30 P. M. The polls shall be open at five thirty o'clock forenoon and kept open up to, and closed at five thirty o'clock, central standard time, in the afternoon of the same day.

History:-50 v. 311; 88 v. 99; 90 v. 281; 97 v. 217; 102 v. 446; 103 v. 21.

See also, section 4925, General Code.

The legislature no doubt intended that, when the polls are opened, in accordance with the provisions of section 5 of the act of May 3, 1852, "to regulate the election of state and county officers," they should be kept open until the hour prescribed for finally closing the same; and good policy as well as the convenience of voters would seem to require that this legislative intent should be observed. But in this respect the statute is directory, and a departure from the strict observance of its provisions does not necessarily invalidate an election, where it appears that no fraud has been practiced and no substantial right violated. Fry v. Booth, 19 O. S. 25.

Under the act of May 3, 1852, after the polls of an election have been once opened, they cannot be closed for any purpose until six o'clock in the afternoon (the time then fixed by law-Ed.) without rendering the election illegal and void: State ex rel. v. Ritt, 3 O. D. (Reprint) 475.

An election will not be invalidated by reason of the fact that the election officers, instead of closing the polls at 5:30 p. m., as directed by statute, kept the same open until 6:00 o'clock p. m., where there was no fraud or collusion and where there were not illegal votes cast after the time fixed by statute for closing sufficient to change the result of the election, although between 5:30 p. m. and 6:00 p. m. so many votes were cast by legally qualified voters as to cause the result of the election to be different from the result which would have been reached if the polls had been closed at 5:30 p. m.: In re Chagrin Falls, 91 O. S. 308.

If there is a fair and honest expression of the will of the electors and no fraud has intervened and no substantial right is violated, an election will not be held to be invalid because of the failure to follow the directory provisions of the law: In re Chagrin Falls, 91 O S. 308.

The votes of legal voters which are cast after the time fixed by law for closing the polls, but before they are in fact closed, are as expressive of the will of the electors as those which are cast before the time fixed by law for closing the polls: In re Chagrin Falls, 91 O. S. 308.

The statutory provision that polls shall be kept open until 6 p. m. is directory only, and the fact that an election for the purpose of authorizing an issue of municipal bonds the polls were closed at 5:30 p. m. is not sufficient to warrant the granting of an injunction restraining the putting forth of such issue,

in the absence of fraud or a positive showing that the result would have been materially changed had the opportunity to vote been extended to 6 p. m.: Link v. Karb 14 O. N. P. (N. S.) 244, 24 O. D. (N. P.) 221 (affirmed by court of appeals, without opinion, which was affirmed, Link v. Karb, 89 O. S. 326).

Sec. 5057. Judges Shall Open Ballot Boxes: Examination. Immediately before proclamation is made of the opening of the polls, the judges of elections, or one of them, in the presence and under the direction of the others and in the presence of the persons there present, shall open the ballot boxes and turn them upside down so as to empty them of anything that may be in them, and offer to such persons as may desire it the privilege of examining them in the presence of the judges, and then lock them. The boxes shall not be again opened until the polls are closed and the counting of the ballots begins.

History:-67 v. 51.

Sec. 5058. Appointment of Party Challengers. Two challengers may be appointed by the precinct committeeman of each political party having candidates to be voted for at each election, who shall be admitted to the polling place for the purpose of challenging electors in such precinct where the voters are not registered, and they may keep tally of the electors voting. In special elections when no candidates are to be elected, the judges of election in each precinct shall, at least one day before the election, appoint and make public two known representatives of each side of the question to be submitted, as challengers.

History-88 v. 454; 89 v. 444; 97 v. 234.

Where a ticket or candidate has been nominated by independent nomination papers, such independent candidates have no right under authority of this section to the appointment of separate challengers and inspectors.

The provisions of this section, as to the appointment of challengers and inspectors of elections, are not mandatory but directory only, and failure to make such appointments is an irregularity which does not invalidate an election at which there was a comparatively full vote cast with no evidence of fraud or attempts to deceive; nor does the dereliction of deputy state supervisors of election, or of any of them, invalidate an election, where it does not appear that except for such dereliction there would have been a different result. State ex rel. Johnston et al. v. Village of McClure, 5 O. N. P. (N. S.) 541. See Opinions of Attorney General (1919) p. 1394, cited under Sec. 4922.

Sec. 5059. Oath of Challengers. Such challengers shall serve without compensation from the county, city, village or township, and shall take the following oath, to be administered by one of the judges of elections:

"You do solemnly swear that you will support the constitution of the United States and of this state; that you will faithfully and impartially discharge the duties as official challenger, assigned by law; that you will not cause any delay to persons offering to vote further than is necessary to procure satisfactory information of their qualifications as electors, and that you will not disclose or communicate to any person how any elector has voted at such election."

History-88 v. 454; 89 v. 444; 97 v. 234.

Sec. 5060. Who May Challenge Voters. Any voter may be challenged by any challenger, judge or clerk of elections, and, if challenged, shall establish his right to vote, as provided by law. Any elector of the precinct may notify the judges of elections in writing. that he challenges the right of any person or persons to vote, giving the reason, and such person or persons shall be deemed challenged.

History:-88 v. 454; 89 v. 444; 97 v. 234.

Sec. 5061. Challenge Oath. If a person offering to vote is challenged as unqualified one of the judges shall tender him the following oath: "You do swear or affirm that you will fully and truly answer all questions put to you, touching your place of residence and qualification as to an elector at this election."

First-If the person is challenged as unqualified on the ground that he is not a citizen, the judges or one of them shall put the following questions:

1. Are you a citizen of the United States?

2. Are you a native or naturalized citizen?

If the person offering to vote claims to be a naturalized citizen of the United States, he shall, before the vote is received, produce for the inspection of the judges of election a certificate of the naturalization, and also under oath that he is the identical person named therein. The production of the certificate shall be dispensed with if the person offering to vote states under oath when and where he was naturalized, that he has had a certificate of his naturalization, and that, against his will, it is lost, destroyed or beyond his power to produce to the judges of elections or if he states under oath that by reason of the naturalization of his parents or one of them he has become a citizen of the United States, and when or where his parent or parents were naturalized, the certificate of naturalization need not be produced.

Second-If the person is challenged as unqualified on the ground that he has not resided in this state for one year immediately preceding the election, the judges or one of them shall put the following questions:

1. Have you resided in this state for one year immediately preceding this election?

2. Have you been absent from this state within the year immediately preceding this election? If yes, then

3. When you left this state, did you leave for a temporary purpose with the design of returning, or for the purpose of remaining away?

4. Did you, while absent, look upon and regard this state as your home?

5. Did you, while absent, vote in any other state?

Third-If the person is challenged as unqualified on the ground that he is not a resident of the county or precinct where he offers to vote, the judges or one of them shall put the following questions:

1. Have you resided in this county for thirty days last past? 2. Have you resided in this precinct for twenty days last past? 3. When did you last come into this county?

4. When you came into this county, did you come for a temporary purpose merely, or for the purpose of making it your home?

5-E. L.

5. Did you come into this county for the purpose of voting in this county?

6. Are you now an actual resident of this precinct?

7. Have you a family? If so, where does your family reside. Fourth-If the person is challenged as unqualified on the ground that he is not twenty-one years of age, the judges or one of them shall put the following question:

Are you twenty-one years of age to the best of your knowledge and belief?

The judges of election or one of them shall put such other questions to the person challenged under respective heads herein designated, as may be necessary to test his qualifications as to an elector at the election.

History:-54 v. 136; 102 v. 181; 106 v. 323; 103 v. 243.

Election officers are presumed to act according to law; Jeffrey v. State ex rel. 16 O. D. 591.

Sec. 5062. Vote Rejected When Person Refuses to Answer. If a person challenged refuses to answer fully any question put to him, or is unable to answer the question on the registers as they were answered by the person under whose name he offers to vote, or is unable to sign his name, or if for any other reason a majority of the judges believe he is not entitled to vote, the judges shall reject his vote.

History-39 v. 13; 102 v. 181.

Sec. 5063. Further Oath if Challenge Not Withdrawn. If the challenge is not withdrawn after the person offering to vote has answered the questions put to him, one of the judges of election shall tender him the following oath:

"You do swear that you are a citizen of the United States, of the age of twenty-one years; that you have been an inhabitant of this state for one year next preceding this election; that you are now an actual resident of this precinct, and that you have not voted at this election."

History-39 v. 13.

Sec. 5064. Rejection of Person Who Refuses to Take Oath or Is Not Qualified. If a person refuses to take the oath so tendered, his vote shall be rejected. After such oath has been taken, a majority of the judges may refuse to permit such person to vote if they are satisfied from record evidence or the testimony produced before them that he is not a legal voter, otherwise the vote shall be accepted. The judges may administer the necessary oaths to witnesses brought before them to testify to the qualifications of the person offering to vote.

History-54 v. 136; 85 v. 77; 90 v. 310.

Election officers are liable personally for refusing to a qualified elector the right to vote, even if they act in good faith and without malice; but in such case the damage will be only nominal: Jeffries v. Ankeny, 11 O. 372.

Sec. 5065. When Clerk to Enter on Poll Book the Word "Sworn."” When the vote of a person is received after he has taken the oath