ELECTIONS ‑- CLERKS FOR COUNTY BOARDS ‑- USE OF STAMP PAD AND RUBBER STAMP TO MARK BALLOTS
It is mandatory that the counting board appoint two clerks. The use of rubber stamps in voting booths should be discouraged.
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October 22, 1956
Honorable John C. Merkel
Prosecuting Attorney of Kitsap County
307 Dietz Building
Bremerton, Washington Cite as: AGO 55-57 No. 331
Your letter of October 3, 1956, previously acknowledged, requested our opinion on the following questions:
"1. In precincts where both election boards and counting boards are required by law, is the appointment of two clerks mandatory under Chapter 148, Laws of 1955? By whom must such clerks be appointed?
"2. May the county election board provide, in addition to pens or pencils, rubber stamp X' s and ink pads for the use of voters marking their ballots at any primary or general election?"
1. We answer part one of your first question in the affirmative. The answer to part two will be found in the following analysis.
2. It would be highly inadvisable to place rubber stamp X's and ink pads in the ballot booths.
Section 3 (1) and (2), chapter 148, Laws of 1955, provides as follows:
[[Orig. Op. Page 2]]
"(1) The counting board may appoint clerks as provided in RCW 29.45.020;
"(2) The ballots shall be counted as provided in RCW 29.54.030 and section 5 of this amendatory act."
The duties of the inspector, judges and clerks are set forth in § 4 of the same session law, which reads in part as follows:
". . . One clerk shall tally the votes in the county auditor's copy of the poll book and the other clerk shall tally the votes in the inspector's copy of the poll book. . . ."
It is our opinion that the permissive word "may" used in § 3 (1) of the session law is rendered compulsory by the language which follows.
It is a fundamental rule of statutory construction that an act must be read and construed as a whole and not as individual unrelated clauses. The general rule is well expressed in Sutherland's Statutory Construction. (3rd Ed.), Volume 2, § 4703, page 337, wherein the author quotes from Attorney General v. Sillem, 2 H. & C. 431, 159 Eng. Repr. 178, as follows:
". . . 'To discover the true construction of any particular clause of a statute, the first thing to be attended to, no doubt, is the actual language of the clause itself, as introduced by the preamble; second, the words or expressions which obviously are by design omitted; third, the connection of the clause with other clauses in the same statute, and the conclusions which on comparison with other clauses, may reasonably and obviously be drawn. . . . If the comparison of one clause with the rest of the statute makes a certain proposition clear and undoubted the act must be construed accordingly and ought to be so construed as to make it a consistent whole. If after all it turns out that that cannot be done, the construction that produces the greatest harmony and the lease inconsistency is that which ought to prevail.'"
In the matter at hand a reading of § 3 (1) as a separate clause would create the impression that clerks may or may not be appointed. A reading of this subsection, however, together with subsection (2) and § 4, negates this impression. Section 3 (2) provides that:
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"The ballotsshall be counted as provided in RCW 29.54.030 and section 5 of this amendatory act." (Emphasis supplied.)
This is clearly mandatory. RCW 29.54.030 is amended by § 4 of the act and provides in compulsory language the duties of each clerk. It is clear from a reading of the act as a whole that the legislature intended the appointment of two clerks to be mandatory.
The statute plainly states that it is the counting board which is to appoint the clerks.
Although the law is not specific upon the question, we feel that stamps and stamp pads should not be placed in the voting booths. Statutes regulating the marking of ballots are mandatory because of the possibility of fraud resulting from a directory construction. Sutherland, Statutory Construction, (3rd Ed.), Volume 3, § 5820, page 115. While our statutes are not as regulatory as those in some other jurisdictions, RCW 29.30.010 provides that the voter "mark a cross" in the square provided. In RCW 29.30.030 we find the words "make a cross". It is our opinion that the legislature did not contemplate any substitute for a marking with pencil by hand.
There is yet another reason for discouraging the use of a stamp and pad. The danger is all too acute of one whose hand may not be steady by reason of age or infirmity placing the stamp in some spot other than that intended. This could result in either of two misfortunates: (1) a vote for a candidate other than the voter's choice; or (2) a distinguishing mark invalidating the entire ballot.
We hope the foregoing opinion will prove of help to you.
Very truly yours,
CLYDE A. BARNARD
Assistant Attorney General