UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 HANDBOOK 
 
 ON 
 
 ELECTION LAWS 
 
 BY 
 
 JAMES HAMILTON LEWIS 
 
 Former Corporation Counsel of the Citij of Chicago. 
 
 President of the Webster Collerje of Law. 
 
 Member of the Chieaijo Bar. 
 
 AND 
 
 ALBERT H. PUTNEY 
 
 Author of ■■United State.s Constitutional History and Law, 
 
 ■'Oorernment in the United states/' etc. 
 
 Member of the Chieayo liar. 
 
 CHICAGO 
 
 ILLINOIS BOOK EXCHANGE 
 1912
 
 T 
 
 Copyright, 1912 
 ILLINOIS BOOK EXCHANGE 

 
 TABLE OF CONTENTS 
 
 Special Prefatory Introduction by the Authors. . 9 
 
 Historical Introduction 15 
 
 Chapter T. The Eight to Vote 25 
 
 Section 1. Not a Universal Right 25 
 
 Section 2. Determination of the Right to Vote in 
 
 the United States 27 
 
 Section 3. Remedies in Cases of the Deprivation of 
 
 the Eight to Vote 30 
 
 Chapter II. Qualifications of Voters 35 
 
 Section 4. Limitations on the Power of a State 
 Legislature to Impose Restrictions on 
 
 the Eight of Suffrage 35 
 
 Section 5. Age Qualifications 36 
 
 Section 6. Educational Qualitieations 37 
 
 Section 7, Eeligious Qualifications 38 
 
 Section 8. Property Qualifications 39 
 
 Section 9. Sex Qualifications 40 
 
 Section 10. Citizenship Qualifications 42 
 
 Section 11. Eesidenee Qualifications 43 
 
 Section 12. Special Disqualifications 51 
 
 Chapter III. Registration 56 
 
 Section 13. Constitutional Provisions as to Registra- 
 tion 56 
 
 3
 
 4 CONTENTS 
 
 Section 14. Power of State Legislatures over Regis- 
 tration 57 
 
 Section 1"). General Apijlieatioii of lie^islration 
 
 Laws. Exceptions 60 
 
 Section 16. Registration Officials 62 
 
 Chapter TY. Political Parties 63 
 
 Section 17. Party Organization and Party Names.. 63 
 
 Section 18. Political Committees 64 
 
 Section 19. Political Conventions 67 
 
 Section I'O. Control of the Courts Over Political 
 
 ( 'on^ ent ions 71 
 
 Chapter Y. Primary Election- Laws 74 
 
 Section I'l. General Right to Pass Priniarv Kicction 
 
 Laws 74 
 
 Section 2'2. Cases Where Particular Primary Elec- 
 tion Laws Have Been Declared Con- 
 stitutional 75 
 
 Section 23. Cases Where Particular Primary Elcc- 
 lion Laws Have Been Declared Un- 
 constitutional 78 
 
 Ch.\pter VT. CoxDrcT of Election's 82 
 
 Section 24. Calling Elections 82 
 
 Section 25. Election Officers 84 
 
 Section 26. Time of Holding Elections 86 
 
 Section 27. Place of Holding Elections 87 
 
 Section 28. Yoting 89 
 
 Chapter YII. Australian Ballot System 91 
 
 Section 29. History of the Australian Ballot Sys- 
 tem 91
 
 CONTENTS 5 
 
 Section 30. General Characteristics of the Australian 
 
 Ballot System 9;5 
 
 Section 31. Form of the Australian Ballot 94 
 
 Section 32. Constitutionality of Australian Ballot 
 
 System 100 
 
 Section 33. Effect of Irregularities in Preparing 
 
 Official Ballot Upon the Validity of 
 
 Vote Cast 104 
 
 Section 34. Form of the Cross 108 
 
 Section 35. Validity of Vote as Depen<ling C^pon 
 
 Place of Mark for Candidate 112 
 
 Section 3G. Distinguishing Marks llo 
 
 Section 37. Marking a Straight Ballot and a Split 
 
 Ballot 119 
 
 Section 38. Number of Times Name of a Candidate 
 
 May Appear on the Ballot 120 
 
 Section 39. Writing in Additional Names on Ballot 123 
 
 Chapter VIII. Voting Machines 133 
 
 Section 40. In General 133 
 
 Section 41. Constitutionality of Laws Providing for 
 the Use of Voting ^lachines in Elec- 
 tions 134 
 
 Chapter IX. Counting, Returning and Canvassing 
 
 Votes 140 
 
 Section 42. Counting the Votes 140 
 
 Section 43. Recounts 143 
 
 Section 44. Returns 144 
 
 Section 45. Canvassing Returns 145 
 
 Chapter X. Election Contests 152 
 
 Section 46. Natur. of Proceedings to Contest Elec- 
 tion 152
 
 CONTENTS 
 
 Section 47. Quo Warranto 170 
 
 Section 48. Mandamus 175 
 
 Section 49. Eight of Private Person to Enforce 
 Public Rights or Duty Relative to 
 
 Elections by Writ of Mandamus 184 
 
 Section 50. Certiorari 186 
 
 Section 51. Prohibition 187 
 
 Section 52. Injunctions 188 
 
 Section 53. Right of Contestant for Office to Enjoin 
 Incumbent from Performing Public 
 
 Duties Pending Election Contest.... 193 
 
 Section 54. Contests Before Legislative Bodies 196 
 
 Section 55. Grounds for Election Contests 198 
 
 Section 56. Effect of Irregularity or Fraud in 
 Nomination of Candidate Upon the 
 Validity of the Election 206 
 
 Section 57. Pleading and Evidence in Election Con- 
 tests 209 
 
 Section 58. Waiver of Right to Contest the Legal- 
 ity of an Election by Participating 
 Therein 216 
 
 Chapter XL CRi.Mf:s Kelatixg to Elections 220 
 
 Section 59. Frauil in Registration 220 
 
 Section 60. Illegal Voting 224 
 
 Section 61. Bribery 227 
 
 Section 62. Offenses by Election Officers 230 
 
 Section 63. Minor Offenses Relating to Elections. . . 232 
 
 Section 64. At What Elections Offenses May Be 
 
 Committed 233 
 
 Section 65. Federal Statutes as to Crimes Relating 
 
 to Elections 233
 
 CO JN TENTS 7 
 
 Chapter XII. Federal Elections 238 
 
 Section 66. Election of Federal Officers 238 
 
 Section 67. Contested Congressional Elections 242 
 
 Section 68. Presidential Elections 245 
 
 Table op Cases .■ 259 
 
 Index 273
 
 SPECIAL PREFATORY INTRODUC- 
 TION. 
 
 By general consent, in this country elec- 
 tions have been regarded as the incidental 
 engagement of mankind. The general man- 
 kind engaged in various occupations of 
 commerce have either ignored elections or 
 regarded them as objects which intruded 
 upon the time or financial opportunity of 
 the citizen. This particular citizen would 
 have curtailed the elections to as few as 
 possible, while others would have avoided 
 elections by making all offices appointive, 
 and of this latter individual we will not fail 
 to observe the utter absence on his part of 
 any reflection or conclusion as to how that 
 particular citizen was to be named who was 
 to make these appointments. It is interesting 
 to note that those who have engaged in 
 elections are those who have had the least 
 to gain from them and who in the end 
 suffered the most as a result of them. We 
 mean the individual engaged in humble occu- 
 pation. He was active in elections ; he sel- 
 dom knew anything about the principles of 
 
 9
 
 10 ELECTION LAWS 
 
 government; he only knew some immediate 
 wrong which was around him and which he 
 felt touched him ; or he knew some immediate 
 right which had been denied him to which 
 he was entitled, as had been taught him by 
 the press or the public orators, or by the 
 comments and protests of his neighbors. 
 When the election was on, this active indi- 
 vidual voted for something which benefited 
 everyone else but himself. Or, in the heat 
 of campaign, or induced by others who were 
 not interested in his welfare, he voted some- 
 thing out, of which he was really the bene- 
 ficiary, and did not know it until it was lost. 
 Through all of this the method of elections 
 was lost sight of. If ever there was a system 
 in free government that personified in its 
 practice the meaning of the old adage of the 
 "end justifying the means" it is elections. 
 Those who won were content to rest there ; — 
 they drew their consolations from the philos- 
 ophy that the result obtained justified every 
 measure adopted in the process. Those who 
 were defeated reversed the theory, their 
 doctrine being that the very end obtained 
 showed the means resorted to were unneces- 
 sary, unlawful or unwise. The intelligence 
 of the community, except upon election day, 
 seldom directs itself to elections at all. Then
 
 SPECIAL INTRODUCTION H 
 
 it directs itself to the mere manner in which 
 it casts its vote of assertion or vote of pro- 
 test. The method of securing the proper 
 voter, or of assuring that the voter who did 
 vote was a proper person within the meaning 
 of the law, was always overlooked; indeed 
 seldom thought about. The method of having 
 the vote counted when properly cast was an 
 action reflected upon, but that merely from 
 a degree of personal pride or personal vindi- 
 cation of each particular voter to vanquish 
 his opponent and his desire to have his vote 
 registered to accomplish that end. The great 
 fundamental questions of liberty, the orderly 
 procedure of government, the security of 
 citizenship, all involving a proper procedure 
 of elections and one which engaged the atten- 
 tion and held the confidence of the citizen, 
 were as unknown as they were unthought of 
 by the ordinary voter. 
 
 Let it be frankly admitted, the judges of 
 the courts have known little of the election 
 laws, and only when a question was brought 
 before them was investigation made or 
 information obtained. Then the field would 
 be new and the judge would be as an experi- 
 menter. While he would have resented the 
 intimation that he did not know the funda- 
 mental constitution, the decisions construing
 
 12 ELECT rOX EAWS 
 
 the law as based upon it, and the decisions 
 demonstrating their meaning, — he would 
 have been perfectly willing to admit that the 
 exception to this general information related 
 to the very organization which was necessary 
 as a thing of life before any of the others of 
 which he did know could exist in security or 
 in respect. The ordinary lawyer knew little 
 of election laws unless he had been partici- 
 pating in politics. And the general citizen 
 who fancied he knew his rights as a man, 
 not only did not know his rights as a political 
 citizen and officer of government and as an 
 apostle of liberty, but he made no effort to 
 obtain the knowledge and in the nine out of 
 ten times was either juggled from these 
 rights by the instrumentalities or agencies 
 which would profit ])y such procedure, or 
 when not juggled, had his rights taken from 
 him by the indirect method of ignorance or 
 indifference. 
 
 In States such as Illinois, where the Aus- 
 tralian system of elections, with appropriate 
 modifications, had been ado])ted and are now 
 in vogue, conjoined to a primary system, it 
 was thought wise by the authors of this work 
 to present in a concise form the general law 
 of elections, and present such in a manner 
 as would be agreeable to the student of gov-
 
 SPECIAL INTKODUCTION 13 
 
 ernmeiit, acceptable to the advocate of the 
 Bar, advisory to the judge on the bench, and 
 informing to the citizen at large. Late events 
 occurring in the State of Illinois, and in our 
 neighboring States, indeed, have clearly dem- 
 onstrated that the absence of such a book, of 
 such a source of information, can be charged 
 as the responsibility for ignorance inex- 
 cusable, conduct unpardonable and offenses 
 unjustified, which have all transpired and 
 been committed at every election within the 
 last ten years and in the memory of the pres- 
 ent citizen who is living through that decade. 
 Few books have been written upon elections, 
 as writers of law books were more given to 
 write upon subjects which were in general 
 demand. 
 
 We have referred to the limited sphere in 
 which elections were considered at all as gov- 
 ernmental agencies. This limited sphere no 
 doubt restrained the inclination of writers 
 upon the subject of elections. It may be that 
 the fact of elections under the guidance of the 
 law having of late received sanction as a 
 sovereign thing has, because of the slow prog- 
 ress, retarded the stimulus which otherwise 
 would have attracted the subjects of govern- 
 ment to the student. 
 
 This book is now tendered to thx)se who
 
 14 ELECTION LAWS 
 
 may be interested in the subjects, particu- 
 larly to the profession of the law, with no 
 pretense that it offers any philosophy, that 
 it tenders anything novel, or that it inducts 
 any doctrine of government. It is offered as 
 something of a guide, — perhaps as an index — 
 to the general rules applicable to the conduct 
 of elections, that the same may serve as 
 some direction and some aid to those who 
 may have occasion to look to the law of elec- 
 tions for information, or the method of pre- 
 scribed procedure as guidance. It is to be 
 earnestly hoped that, as the law of elections 
 may widen and develop, our citizenship may 
 take more heed and more interest in their 
 growth and in their meaning. At present 
 this book is tendered with the trust that it 
 may contribute in some small part to what in 
 future will be a larger field and one of 
 greater philosophy and learning than this 
 little effort is intended to suggest. 
 
 If it shall lighten the labor of the Bar, be 
 of some information to the courts and any 
 source of instruction to the citizen, the writ- 
 ers will have been compensated. 
 
 Jas. Hamilton Lewis. 
 
 Chicago, July, 1912.
 
 HISTORICAL INTRODUCTION 
 
 The history of election laws constitutes one 
 of the most interesting chapters in legal his- 
 tory. The origin and evolution of elections 
 is throughout closely connected with the crea- 
 tion and development of free political insti- 
 tutions. The existence or non-existence of 
 elections, together with the character of the 
 elections if they do exist, furnish a clue to the 
 general character of the laws of any country 
 or period. 
 
 In the earliest age in the history of nearly 
 every race the existence of rude elections 
 in the popular assemblies, is to be seen. The 
 greatest development in this field in ancient 
 times was reached in some of the city repub- 
 lics of Greece, and more especially in the 
 Roman Republic. The establishment of the 
 Roman Empire, and later of the Feudal Sys- 
 tem, almost eradicated popular elections as 
 an element in national government. 
 
 ''Elections seem to have originated in the 
 general assemblies of citizens (or perhaps 
 in the old labor-gilds), as in the Roman con- 
 cilia, the Athenian ecclesia or the Teutonic 
 
 15
 
 16 KI.KCTION l.AWH 
 
 assemblages of freemen. When they passed 
 away, first in fact and then in form, in the 
 growth of despotism and autocracy, the cus- 
 tom of election was preserved in the monastic 
 fraternities, ecclesiastical conventions, free 
 cities, and trade-gilds. Favored electors, as 
 in Germany, often elected emperors or even 
 kings." (The Encyclopedia of Social Re- 
 form, page 438.) 
 
 The re-establishment of popular elections 
 as the controlling power in government was 
 the work of the Anglo-Saxon race. Popular 
 elections seem to have been well known to 
 the Anglo-Saxons, even in their continental 
 homes, and were not forgotten by them after 
 their invasion and conquest of Britain. The 
 old Dux was an elective office. The later de- 
 veloped Kingship was theoretically, and to a 
 certain extent also actually, elective. The 
 higher ecclesiastical officials, the bishops and 
 the abbots, were elected by the clergy. The 
 principle of representation w^as to be found 
 in the reeve and four men from each township 
 who attended the county and hundred courts, 
 as the representatives of such township. The 
 development of the system of representative 
 government, therefore, in England during 
 the thirteenth and fourteenth centuries was 
 no radical departure, but merely a new ap-
 
 HISTORICAL INTRODUCTION 17 
 
 plication of principles with which the Eng- 
 lishmen of that period were already familiar. 
 
 Neither the elective nor the representative 
 principle, however, had had any place in the 
 legislative branch of the English Govern- 
 ment dnring the early Norman period. The 
 Curia Regis of the Norman English Kings, 
 the nearest approach to a legislative body in 
 England for the period after Senlac, was a 
 court of the King's feudal vassals, a body 
 whose powers and duties were of a mixed 
 legislative, executive and judicial nature. In 
 theory, at least, every tenant-in-chief of the 
 King by military service, had a personal 
 right to be summoned to this council ; cer- 
 tainly when the King was to impose any ex- 
 traordinary aid, and probably also on other 
 occasions. 
 
 The tirst national council or parliament 
 wliicli was in any sense a representative l)ody 
 was that held at St. Albans on August 4th, 
 1213, where the royal demesnes were each 
 represented by the reeve and four men. The 
 lesser barons, i. e., lesser tenants-in-chief, 
 about this time began to lose their theoretical 
 right to attend the National Council ; at the 
 same time they, in common with the other 
 freeholders, began to acquire the right to 
 elect representatives to the National Council,
 
 18 ELECTION LAWS 
 
 Four Kiiigiits of the Shire were summoned 
 by King John to the National Council in 
 1215. Two Knights from each shire at- 
 tended the National Council in 1254; these 
 were chosen by the freeholders of the Shire in 
 their county court, the semi-popular, semi- 
 representative assembly of the county. 
 
 A rapid development of representative gov- 
 ernment took place during the Barons' war. 
 In 1261 there were two rival summons to a 
 National Council ; the one by the Barons sum- 
 moning three Knights from each county to 
 meet at St. Albans, and the other l)y the King 
 for a similar representation in his Council to 
 be held at Windsor. In Simon de Montfort's 
 Parliament the counties were represented by 
 four Knights each. The final step was taken 
 by Simon de Montfort in the year 1265 
 when, in addition to the Knights of the Shires, 
 he summoned to the Parliament two citizens 
 from each city or borough. This was the first 
 Parliament in which all classes of the people 
 were represented ; the first truly national 
 representative assembly in the history of the 
 world. The overthrow of Simon de Montfort 
 a few weeks later put a check to this work. 
 The representation of the cities and even of 
 the Knights of the Shire during tlie next 
 thirty years was irregular and uncertain, and
 
 HISTOKICAL INTRODUCTION 19 
 
 it is only from the latter year that we can 
 date the regular and complete establishment 
 of a perfect representation of the three es- 
 tates in Parliament. From 1295, however, 
 all the constitutent elements of Parliament 
 became established. With the exception that 
 the representations of the lesser clergy drop 
 out in the fourteenth century and the abbots 
 in the sixteenth there was little change in the 
 constitution of Parliament from the Parlia- 
 ment held by Edward I, in 1295, to the one 
 which passed the great reform bill in 1832. 
 The Anglo-Saxons' greatest contribution to 
 the world's political progress consists in this 
 invention and development of representative 
 legislative assemblies. The lack of such in- 
 stitutions in earlier times rendered free gov- 
 ernment impractical, except in mere city 
 states. It was largely this defect which 
 caused the fall of the Roman Republic. The 
 Roman legislative assemblies, the comita 
 curiata, the comita centuriata, the comita 
 tributa, were all primary assemblies. All 
 Roman citizens voted in such assemblies. Such 
 a system, which could succeed when Rome 
 was a city republic on the Tiber, became in- 
 adequate with the extended area of her later 
 days. Legislation by primary popular as- 
 semblies was no longer possible, and repre-
 
 20 ELECTION LAWS 
 
 sentative legislative assemblies had not yet 
 appeared. There remained nothing but the 
 Empire. 
 
 Government by the people now having been 
 rendered practical, the question of the man- 
 ner in which elections should be conducted 
 became of the greatest imi)ortance. The 
 pioneer work in this legal fiekl was also to 
 be performed by members of the same Anglo- 
 Saxon race, but the honors were destined to 
 l)e won neither by England herself nor by our 
 own country, but by England's great colony 
 of the southern hemisphere. It was, in fact, 
 several centuries after the establishment of 
 representative legislative assemblies before 
 any real progress was made in the method of 
 conducting elections. 
 
 For a long period in F]ngland, members of 
 Parliament were elected by a show of hands. 
 There is no record of any poll ever being 
 taken until after the passage of the statute 
 of 8 Henry VI (1429) and even as late as the 
 sixteenth century a show of hands was con- 
 sidered as a legal method of determining an 
 election. The right to demand a poll was 
 only fully established by statute of 7 and 8 
 William *III (1696). After the polling of 
 voters had been finally adopted, the method 
 of taking the votes rem&iued crude and ob'
 
 HISTOEICAL INTRODUCTION 21 
 
 jectionable for a long period. The voter was 
 compelled to orally state for whom he wished 
 to vote. The polls were often kept open 
 for several days; in one election in Mayo 
 County it is recorded that the polls were open 
 for fifty-seven days. 
 
 The next step in advance consisted in the 
 introduction of the ballot. To the Anglo- 
 Saxon belongs the honor, not of first intro- 
 ducing the ballot, but of first making it of 
 practical value. Ballots are found in use 
 even in the republics existing before Christ, 
 and the Gabinian law of 139 B. C. contains 
 very elaborate provisions for the use of 
 ballots in elections. All early methods of 
 voting by ballot lacked those modern fea- 
 tures from which the superiority of this form 
 of voting is mainly derived. 
 
 America was greatly ahead of England 
 in the adoption of the use of ballots. In 
 many portions of the country ballots were 
 used even in colonial times, and most of the 
 States uniformly used this system after the 
 Declaration of Independence. The viva voce 
 system of voting continued the longest in 
 some of the Southern States, especially in 
 Kentucky, 
 
 "In Great Britain it (i. e. the use of the 
 ballot) was not only fought by the privileged
 
 22 i:LECTJOX LAWS 
 
 classes as overthrowing their leadership of 
 the tenants and artisans, but by a large part 
 even of the Liberals as undermining the man- 
 liness of the English character. The van- 
 guard of the movement were the Benthamites 
 and it stood foremost in the ])rogramme of re- 
 form put forward by the more radical Whigs 
 early in the nineteenth century. It was in 
 the first draft of the Reform Bill of 1832 ; in 
 1833 Grote the historian introduced it, and 
 repeated the attempt every year till 1839 with 
 a fresh speech of immense force and learning. 
 It was supported by Macaulay with his usual 
 effectiveness, but was sneered at by so good 
 a Lil)eral as Sydney Smith, and heartily suj^- 
 ported by none but the Chartists whose sup- 
 l^ort alone would have killed it. They made 
 it one of their 'six points' of their 'Peoj^le's 
 Charter.' In 1851 it was carried in the Com- 
 mons bj" 51 majority against Lord John Rus- 
 sell and his Liberal government, but went no 
 further. In 1869 it was tried at Manchester 
 as a test, and worked well; was adopted at 
 school-board elections in 1870; and the same 
 year a select committee of the House, headed 
 by Lord Hartington, reported in its favor as 
 a means of lessening corruption, 'treating' 
 and intimidation. In 1872 Mr. W. E. For- 
 ster's ballot act made printed ballots com-
 
 HISTOEICAL INTKODUCTION 23 
 
 pulsory at all national and municipal elec- 
 tions except those of university candidates 
 for Parliament, This put an end to the 
 drunken riots attending the previous public 
 nominations at the hustings, so keenly satir- 
 ized by Dickens and others." (Americana 
 Vol. li.) 
 
 The mere use of a printed ballot did very 
 little by itself to eliminate the existing elec- 
 tion evils. Where the different political par- 
 ties printed their own ballots, there was little, 
 or no, greater secrecy in voting than under 
 the viva voce system, and the same oppor- 
 tunities for the intimidation of voters still 
 existed. In addition the use of ballots intro- 
 duced new methods of fraud, impossible 
 under the viva voce voting, such as "stuff- 
 ing" the ballot box and repeating. 
 
 The great advance towards fair elections 
 was that made by the introduction of the Aus- 
 tralian ballot system, the history and pur- 
 poses of which are discussed in the body of 
 this book. A still more recently developed 
 method of voting is that by voting machines, 
 which is still in an embryonic stage. 
 
 The great innovation which this country 
 has produced in the field of political methods 
 has been the party nominating convention. 
 This institution, so long the central feature
 
 24 ELECTION LAWS 
 
 in American politics, is now being rapidly 
 relegated to the past by the new system of 
 primary nominations. 
 
 The introduction of tlie Australian ballot, 
 of primary nominations and of the initiative 
 and referendum, has so entirely revolution- 
 ized American political conditions during the 
 past quarter of a century, that the American 
 elections and election laws with which the 
 last generation was familiar bear almost no 
 resemblance to those of today. It seems 
 probable that the most enduring work which 
 the present generation will accomplish in the 
 field of jurisprudence is the reform of the 
 election laws.
 
 CHAPTER I 
 THE RIGHT TO VOTE 
 
 Section 1. Not a Universal Right 
 
 The right to vote is not one of tliose rights 
 known as "natural rights."^ The right to 
 vote, and voting itself, can only begin to exist 
 after men have organized themselves into 
 society, and created government, and the 
 right to vote must be determined by the rules 
 of the government thus created. The quali- 
 tied voters of a State, at any time, have the 
 right to decide what shall constitute any in- 
 habitant of the State a qualified voter, and 
 may grant, or withhold, the right of suffrage 
 at pleasure. - 
 
 The extent and the character of the restric- 
 tions placed upon the right to exercise the 
 elective franchise have varied greatly in dif- 
 ferent localities and at different times ; the 
 modern tendency being towards greater and 
 greater liberality in this respect. It has never 
 been proposed, however, nor could it ever be 
 practical, to give the ballot to every member 
 of a country or community. Certain classes 
 25
 
 26 ELECTION LAWS 
 
 in the community, at the very least, insane 
 persons and children, must be excluded from 
 this privilege, for the protection of all classes 
 in the community, including themselves. 
 
 The right to vote is not a vested right. A 
 law, properly passed, taking away this right 
 from persons who had previously possessed 
 it would be valid. 
 
 Certain classes in a State may be given a 
 partial right of suffrage. At an early period 
 in this country it was customary to have a 
 graduated system of qualifications for elec- 
 tors for different officials. This condition 
 caused the peculiar wording of that clause 
 in the Federal Constitution which provides 
 that: ''The House of Eepresentatives shall 
 be composed of members chosen every second 
 year by the people of the several States, and 
 the electors in each State shall have the quali- 
 fications requisite for electors of the most 
 numerous branch of the State Legislature.^ ^^ 
 
 Illustrations of the limited suffrage of this 
 character are to be found at the present time 
 in the laws of a number of the States per- 
 mitting women to vote in school elections 
 only, or in municipal elections only. 
 
 Notes 
 1. Spencer vs. Board oi Kegistration, 1
 
 THE EIGHT TO VOTE 27 
 
 MacArthur 169, 29 Am. Rep. 582; Anderson 
 vs. Baker, 23 Md. 531. 
 
 2. Blair vs. Ridgely, 41 Mo. 63, 97 Am. 
 Dec. 248. 
 
 3. United States Constitution, Article I, 
 Section 2, Clause 1. 
 
 Section 2. Determination of the Right to Vote in 
 the United States 
 
 The right to determine as to the qualifica- 
 tions for voting, both as to National, State 
 and local elections, belongs to the Legisla- 
 tures of the several States. 
 
 The only two classes of Federal officials 
 who are (or may be) elected by popular vote 
 are Presidential Electors and Representa- 
 tives in Congress. 
 
 The Constitution of the United States pro- 
 vides that each State shall elect as many 
 Presidential Electors as it has Senators and 
 Representatives in Congress, and that such 
 electors shall be appointed in each State in 
 such manner as the Legislature of the State 
 shall determine.^ 
 
 In the early years of the Republic these 
 electors were chosen in the different States in 
 three different ways: (1) directly by the 
 State Legislature; (2) b}^ popular vote, the 
 voters voting by districts; (3) by popular
 
 28 ELECTION LAWS 
 
 vole, the voters throughout the State voting 
 on a general l)a]lot for tlie full number of 
 electors to which the State was entitled. 
 Since 1832 all the States at every election 
 have chosen their electors by the third 
 method, with the exceptions of South Caro- 
 lina, where the Presidential Electors were 
 chosen directly by the State Legislature until 
 after the close of the Civil War, and Michi- 
 gan, where the electors were chosen by dis- 
 tricts in the single election of 1892. The con- 
 stitutionality of the law of Michigan provid- 
 ing for this method of choosing electors was 
 upheld by the Supreme Court of the United 
 States.- Any State Legislature has the un- 
 doubted power, at any presidential election, 
 to choose the Presidential Electors, and en- 
 tirely abolish any popular vote on this point. 
 The Federal Constitution originally gave 
 to the States an unlimited discretionary 
 power over the qualifications of voters for 
 members of the National House of Represen- 
 tatives.^ Limitations upon this power were 
 imposed for the first time by the Fifteenth 
 Amendment to the Constitution, which pro- 
 vides that: "The right of citizens of the 
 United States to vote shall not be denied or 
 abridged by the United States, or by any 
 State, on account of race, color or previous
 
 THE EIGHT TO VOTE 29 
 
 condition of servitude. ' ' Any other condition 
 may be imposed by any State Legislature 
 upon voting either for members of Congress 
 or for State officials, with the possible excep- 
 tion that a State statute, too greatly restrict- 
 ing the right of suffrage, might be held to be 
 in violation of the clause in the Federal Con- 
 stitution which provides that: "The United 
 States shall guarantee to every State in this 
 Union a republican form of government."^ 
 Particular qualifications for voting are dis- 
 cussed in Chapter II. 
 
 The legislative assemblies of the Terri- 
 tories have had, in the past, the authority to 
 regulate the right of voting, subject to the 
 restrictions and limitations imposed by the 
 Federal Constitution and the Acts of Con- 
 gress.^ This power belongs primarily to Con- 
 gress, and has only been delegated by them to 
 the Territorial Legislatures. The right to 
 vote in the colonies of the United States is 
 mainly regulated directly by Congressional 
 legislation.^ 
 
 Notes 
 
 1. United States Constitution, Article IT, 
 Section 1, Clause 2. 
 
 3. United States Constitution, Article I, 
 Section 2, Clause L Also see Section 1 of this 
 book.
 
 30 ELECTION LAWS 
 
 4. United States Constitution, Article IV, 
 Section 4. 
 
 5. Inuis vs. Bolton, 2 Idaho 407, 17 Pac. 
 264. 
 
 6. E. g. Act of Congress of July 1, 1902, 
 establishing government in the Philippine 
 Islands. 
 
 Section 3. Remedies in Cases of the Deprivation 
 of the Right to Vote 
 
 Although the right to vote is neither a 
 property right, nor a right of person, but 
 only a mere political privilege, nevertheless 
 it was early settled in the famous English 
 case of Ashby vs. White,^ that, under the 
 Common Law, a man entitled to vote for 
 members of Parliament had a right of action, 
 in trespass on the case, for damages against 
 the election officers who refused to receive his 
 vote. This rule was very soon modified so 
 as to limit recovery to cases where the vote 
 was rejected through malice. - 
 
 In this country an action for damages will 
 lie against election officers who wilfully and 
 maliciously refuse to accept the vote of a duly 
 qualified voter.^ 
 
 In an Illinois case it was decided that the 
 election officials were liable when the sole 
 ground for their refusal to permit the plain-
 
 THE EIGHT TO VOTE 81 
 
 tiff to vote was the fact that he was of the 
 negro race."* 
 
 The Massachusetts rule on this question dif- 
 fers from the prevailing rule in this country, 
 and holds that damages may be recovered for 
 the wrongful deprivation of the right to vote, 
 without proof of malice.^ This rule has been 
 followed by Maine,^ Oliio,"^ and Wisconsin.^ 
 
 In a Connecticut case,^ it was held, that 
 regardless of the question of malice or good 
 faith, the election officers were liable to a 
 registered voter, to whom they denied the 
 right to vote, the registry list, under the laws 
 of the State, being conclusive upon the elec- 
 tion officials. 
 
 In cases where malice on the part of the 
 election officials is an element of the action, 
 the courts have taken an extremely eral 
 position as to the evidence which is admissible 
 on this point. Evidence, on behalf of one side 
 or the other has been admitted to prove that 
 the election official knew that the voter be- 
 longed to the opposite political party from 
 himself;^'' to prove that the election officer 
 had acted under the advice of a lawyer ;^^ and 
 to show discrimination on the part of the de- 
 fendants in the cases of different voters, sim- 
 ilarly circumstanced.^- 
 
 In an action of this character, the plaintiff
 
 32 ELECTION LAWS 
 
 must affirmatively show his right to vote,^^ 
 and the denial of such right. ^^ It is not 
 necessary for the plaintiff to prove that the 
 election was a valid one; the mere fact that 
 it was held is sufficient.'"' 
 
 In the case of a refusal to permit a quali- 
 fied voter to vote for members of Congress, 
 the action against the election officials may 
 I)e brought in a State court, or (if the amount 
 of the damages alleged is sufficient) in a Fed- 
 eral court. 
 
 When registration is a necessary requisite 
 for voting, the registration officials who 
 maliciously refuse to permit a qualified per- 
 son to register, in spite of a proper showing 
 on his part, are liable for damages.^' Elec- 
 tion officials are also liable who improperly 
 and maliciously strike a voter's name from 
 the list of voters. In a similar manner asses- 
 sors who ]irevent a ]n*o]ierly qualified person 
 from voting, by maliciously failing to assess 
 him (where assessment is a prerequisite to 
 voting) are liable.'" 
 
 When a vote is i-ejected because the voter's 
 name has been improi)erly erased from the 
 list, the action is for the wrongful erasure of 
 the name, and not for the refusal to receive 
 the vote.''' 
 
 No action will lie against a carrier of pas-
 
 THE EIGHT TO VOTE 33 
 
 sengers, on the ground that because of the 
 negligence of such carrier the plaintiff did 
 not arrive at his destination in time to vote 
 at an election.-*^ 
 
 Where malice is proved on the part of the 
 officials rejecting the ballot, punitive damages 
 may be recovered.-^ 
 
 Notes 
 
 1. 1 Bro. P. C. 45, 2 Ld. Paym, 936 (de- 
 cided in 1703). 
 
 2. Drewe vs. Coulton, 1 East 563 ; Cullen 
 vs. Morris, 2 Stark 577. 
 
 3. Swafford vs. Templeton, 186 U. S. 487 ; 
 Byler vs. Asher, 47 111. 2 ; Friend vs. Hamill, 
 34 Md. 298. 
 
 4. Bernier vs. Russell, 89 111. 60. 
 
 5. Lincoln vs. Hapgood, 11 Mass. 354, 
 
 6. Osgood vs. Bradley, 7 Maine 411. 
 
 7. Jeffries vs. Ankeny, 11 Ohio 372. 
 
 8. Gillespie vs. Palmer, 20 Wis. 544. 
 
 9. Hyde vs. Brush, 34 Conn. 454. 
 
 10. Elbin vs. Wilson, 33 Md. 135. 
 
 11. Miller vs. Rucker, 1 Bush (Ky.) 135. 
 
 12. Cullen vs. Morris, 2 Stark 577. 
 
 13. Mills vs. McCabe, 44 111. 194; Griffin 
 vs. Rising, 11 Metcalf (Mass.) 339. 
 
 14. Gates vs. Neal, 23 Peck (Mass.) 308. 
 
 15. Bernier vs. Russell, 89 111. 60. 
 
 16. Wiley vs. Sinkler, 179 U. S. 58.
 
 34 ELECTION LAWS 
 
 17. Perry vs. Reynolds, 53 Conn. 527, 
 
 18. Griffin vs. Rising, 11 Metcalf fMass.) 
 339. 
 
 19. Harris vs. AYhiteomb, 4 Gray 333. 
 
 20. i\Iorris vs. Colorado Midland Railway 
 Company, 48 Colo. 147; 109 Pae. 430; 20 
 Amer. & Eng. Am. Cases 1006. 
 
 21. AViley vs. Sinkler, 179 U. S. 58.
 
 CHAPTEB 11 
 
 QUALIFICATIONS OF VOTERS 
 
 Section 4. Limitations on the Power of a State 
 
 Legislature to Impose Restrictions Upon the 
 
 Right of Suffrage 
 
 The princii^al limitations upon the power 
 of a State legislature to impose restrictions 
 upon the right of suffrage are found in the 
 provisions of the Fifteenth Amendment to 
 the United States Constitution, and in the fact 
 that laws imposing such restrictions must be 
 uniform in their application. Uniformity of 
 application, however, is not destroyed by the 
 fact that of two citizens qualified to vote so 
 far as one particular restriction is concerned, 
 one only may be permitted to vote, the other 
 being disqualified by some other restriction. 
 
 The Fifteenth Amendment to the Federal 
 Constitution prohibits any discrimination (as 
 to voting) on account of race, color, or pre- 
 vious condition of servitude.^ This amend- 
 ment does not confer on members of the 
 negro race the right to vote,- but it does 
 
 35
 
 36 ELECTION LAWS 
 
 prevent the right being denied to them for 
 this reason.^ 
 
 Any State statute which denies or abridges 
 the right of voting to any person on account 
 of race or color is in violation of the United 
 States Constitution, whether the attempt is 
 made to deprive a person of his rights in this 
 respect directly or indirectly. The adoption 
 of the Fifteenth Amendment rendered invalid 
 a provision in any State Constitution limiting 
 the right of suffrage to members of the white 
 race.'* 
 
 Notes 
 
 1. See Section 2. 
 
 2. United States vs. Reese, 92 U. S. 214. 
 
 3. Id. 
 
 4. Neal vs. Delaware, 103 U. S. 370. 
 
 Section 5. Age Qualifications 
 
 A State has full discretion as to the age 
 qualification to be placed upon voting. At 
 the present time a practical unanimity has 
 been reached in this respect; twenty-one 
 years being adopted as the minimum voting 
 age. 
 
 A person may vote on an election which 
 falls on the day immediately preceding his 
 twenty-first birthday anniversary.^
 
 QUALIFICATION OF VOTERS 37 
 
 Notes 
 
 1. In re Griffiths, 1 Kulp (Pa.) 157. 
 
 Section 6. Educational Qualifications 
 
 Educational qualifications for voting are 
 found in the laws of a few States and are 
 valid. 
 
 In a recent case, the Massachusetts statutes 
 providing that certain persons, before regis- 
 tering, must read a selection from the Consti- 
 tution and write their name, was held not to 
 violate the Fourteenth Amendment to the 
 United States Constitution.^ 
 
 The educational qualifications now in force 
 in the different States of this country have 
 been thus summarized by a recent writer : 
 
 ''Maine, Massachusetts, Connecticut, Dela- 
 ware, California, Wyoming and the States 
 mentioned below demand an ability to read, 
 Mississippi allows men to vote who can un- 
 derstand the Constitution when read to them. 
 North Carolina has an educational test, but 
 does not apply it to those who voted or whose 
 ancestors voted before 1867. South Carolina 
 does not deprive those intellectually unfit if 
 they own property assessed at $300. In Ala- 
 bama, voters must be able to read or must 
 own property worth $300, unless they have
 
 38 ELECTION LAWS 
 
 seen military service. Virginia requires abil- 
 ity to read or understand the Constitution, 
 or the payment of a State tax not less than 
 one dollar per year, unless the individual has 
 seen military service or is the son of an 
 American soldier. In Louisiana those may 
 vote who can read or write, or who own prop- 
 erty assessed at $300, or whose ancestors 
 voted before 1867. Georgia permits veterans 
 and their descendants to vote, limiting the 
 suffrage for others to those who can read or 
 understand the Constitution or own taxable 
 property worth $500. The clauses in five of 
 these Constitutions that really exempt whites 
 from the disabilities which are supposed to be 
 the same for all, are called 'grandfather 
 clauses.' The United States courts have re- 
 fused to consider cases which might force 
 them to declare whether these provisions are 
 contrary to the Fifteenth Amendment. "- 
 
 Notes 
 
 1. Stone vs. Smith, 159 Mass. 413; 34 
 N. E. 521. 
 
 2. Ashley's American Government, See. 
 30. 
 
 Section 7. Religious Qualifications 
 There is nothing in the Constitution of the 
 United States to prevent a Stato fi'om im-
 
 QUALIFICATION OF VOTEKS 39 
 
 posing religious qualifications upon voting. 
 The right to vote might even be limited to 
 members of a single denomination. 
 
 The Constitution of each of the States, how- 
 ever, contains provisions against such a pro- 
 cedure; and there are now no religious re- 
 strictions placed upon voting, in this country, 
 except that a few Western States have pro- 
 visions in their laws directed against the Mor- 
 mons. Such statutes are in the main directed 
 against the practice of polygamy, rather than 
 against the mere mental belief in the tenets 
 of the Mormon religion. 
 
 A statute of Nevada which prohibited 
 Mormons from voting at elections, and which 
 required those applying to register as voters 
 to take oath that they were not members of 
 the Mormon church, was held to be unconsti- 
 tutional under the Nevada State Constitu- 
 tion.^ 
 
 Notes 
 
 1. State vs. Findlay, 20 Nev. 198, 19 Pac. 
 241. 
 
 Section 8. Property Qualifications 
 
 The ownership of property,^ or the pay- 
 ment of taxes ;- may be fixed as one of the 
 qualifications of a voter. Such restrictions 
 are not in conflict with the Fifteenth Amend-
 
 40 ELECTION LAWS 
 
 ment to the Federal Constitution.'^ However, 
 if the provisions of the Fourteenth Amend- 
 ment were enforced, such restrictions would 
 constitute a sufficient ground for the reduc- 
 tion of the State's representation in the 
 House of Kepresentatives. 
 
 Where property qualifications for voting 
 exist, a person to whom land is deeded, 
 merely for the purpose of permitting him to 
 vote, without any intention of changing the 
 real ownership of the property is not entitled 
 to vote.^ 
 
 Notes 
 
 1. Inhabitants of Windham vs. Inhabit- 
 ants of Portland, 4 Mass. 384; In re Morgan 
 16 R. I. 542, 18 Atl. 279. 
 
 2. Frieszleber vs. Shallcross, 9 Houst. 1, 
 19 Atl. 576. 
 
 3. United States vs. Eeese, 92 U. S. 214. 
 
 4. Murdock vs. Weiner, 55 111. App. 527. 
 
 Section 9. Sex Qualifications 
 
 The question of extending the elective fran- 
 chise to women, or of restricting it to the male 
 sex, is one entirely within the discretion of 
 each State. The denial, to women, of the 
 right to vote does not conflict, in any way 
 with either the Fourteenth or the Fifteenth
 
 QUALIFICATION OF VOTEES 41 
 
 Amendment to the United States Constitu- 
 tion. On the other hand there is nothing in 
 the Federal Constitution which prevents a 
 State from giving full suffrage to women, as 
 has been done by Wyoming, Utah, Colorado, 
 Idaho, Washington and California. 
 
 Partial suffrage, i. e. the right to vote for 
 certain officials only, may be granted to 
 women.^ Suffrage in a more or less limited 
 form is now possessed by women in Arizona, 
 Delaware, Illinois, Indiana, Iowa, Kansas, 
 Kentucky, Louisiana, Massachusetts, Michi- 
 gan, Minnesota, Montana, Nebraska, Nevada, 
 New Hampshire, New Jersey, North Dakota, 
 Oklahoma, Oregon, South Dakota, Texas, 
 Vermont, and Wisconsin. 
 
 In States where both men and women have 
 the general right of suffrage, no qualification 
 for voting can be imposed upon the members 
 of one sex, and not upon those of the other. 
 Thus a statute of Utah, requiring all male 
 voters to be taxpayers, without imposing the 
 same condition upon female voters, was held 
 to be unconstitutional and void.^ 
 
 Notes 
 
 1. Plumraer vs. Yost, 144 I. 61, 33 N. E. 
 191. 
 
 2. Lyman vs. Martin, 2 Utah 136.
 
 42 ELECTION LAWS 
 
 Section 10. Citizenship Qualifications 
 
 "All persons born or naturalized in tlie 
 United States, and subject to the jurisdiction 
 thereof, are citizens of the United States and 
 of the State wherein they reside."^ 
 
 No State can in any way limit the right of 
 citizenship. A person born in this country 
 is a citizen, even although his parents belong- 
 to a race, members of which cannot become 
 naturalized in this country, (e. g. Chinese) 
 
 There is no direct connection between citi- 
 zenship and the right to vote. A citizen may 
 be disqualified from voting by the application 
 of age, education, sex, property, or other 
 qualifications for voters. On the other hand, 
 citizenshij) is not a necessary qualification of 
 a voter.- Aliens who have declared the in- 
 tention to become citizens, may vote under 
 certain restrictions in Alabama, Arkansas, 
 Colorado, Indiana, Michigan, Missouri, North 
 Dakota, Oregon, South Dakota, Texas, and 
 Wisconsin. 
 
 In a great majority of the States only 
 citizens are permitted to vote, but in a few 
 States the right of suffrage is extended to 
 those who have declared their intention to 
 become citizens, or who have been honorably 
 discharged from the army or navy of the 
 United States.-^
 
 QUALIFICATION OF VOTERS 43 
 
 Notes 
 
 1. Fourteenth Amendment to United 
 States Constitution, Sec. 1. 
 
 2. Spragins vs. Houghton, 2 Seam. (111.) 
 377. 
 
 3. See statutes of the particular states. 
 
 Section 11. Residence Qualifications 
 
 Eesidence qualifications for voters are to 
 be found in the statutes of all of the States. 
 In some States only a certain period of resi- 
 dence in the States and in the county are 
 specified, in other States a period of residence 
 in town or precinct, or both is also added. 
 
 The periods to jDrevious residence required, 
 in the different States, to qualify a person to 
 vote are as follows : 
 
 In Alabama, two years in the State, one 
 year in the county, three months in the town, 
 three months in precinct. 
 
 In Arkansas, one year in the State, six 
 months in county, thirty days in the town, 
 and thirtj^ days in the precinct. 
 
 In California, one year in the State, ninety 
 days in the county, and thirty days in the 
 precinct. 
 
 In Colorado, one year in the State, ninety 
 days in the county, thirty days in the town, 
 and ten days in the precinct.
 
 44 ELKCTTOX LAWS 
 
 In Connecticut, one year in the State and 
 six montlis in the town. 
 
 In Delaware, one year in the State, three 
 months in the county and thirty days in the 
 precinct. 
 
 In Florida, one year in the State, six 
 months in the county, and thirty days in the 
 precinct. 
 
 In Georgia, one year in the State, and six 
 months in the county. 
 
 In Idaho, six months in the State, thirty 
 days in the county, three months in the town, 
 and ten days in the precinct. 
 
 In Illinois, one year in the State, ninety 
 days in the county, and thirty days in the 
 precinct. 
 
 In Indiana, six months in the State, sixty 
 days in the county, sixty days in the town, 
 and thirty days in the precinct. 
 
 In Iowa, six months in the State, sixty days 
 in the county, ten days in the town, and ten 
 days in the precinct. 
 
 In Kansas, six months in the State, thirty 
 days in the county, thirty days in the town, 
 and ten days in the precinct. 
 
 In Kentucky, one year in State, six months 
 in the county, sixty days in the town and 
 sixty days in the precinct. 
 
 In Louisiana, two years in the State, one
 
 QUALIFICATION OF VOTEES 45 
 
 year in the county, and six months in the 
 precinct. 
 
 In Maine, three months in the State, three 
 months in the county, three months in the 
 town, and three months in the precinct. 
 
 In Maryland, one year in the State, six 
 months in the county, six months in the town 
 and one day in the i^recinct. 
 
 In Massachusetts, one year in the State, 
 six months in the county, six months in the 
 town, and six months in the precinct. 
 
 In Micliigan, six months in the State, 
 twenty days in the county, twenty days in the 
 town, and twenty days in the precinct. 
 
 In Minnesota, six months in the State, 
 tliirty days in the county, thirty days in the 
 town, and thirty days in the precinct. 
 
 In Missouri, one year in the State, sixty 
 days in the county, sixty days in the town, 
 and sixty days in the precinct. 
 
 In Montana, one year in the State, thirty 
 days in the county, thirty days in the town 
 and thirty days in the precinct. 
 
 In Nebraska, six months in the State, forty 
 days in the county, ten days in the town, and 
 ten days in the precinct. 
 
 In Nevada, six months in the State, thirty 
 days in the county, thirty days in the town, 
 and thirty days in the precinct.
 
 46 PJLECTION LAWS 
 
 In New Ilampsliiro, six months in the Sti^te, 
 six months in the county, six months in the 
 town, and six months in the precinct. 
 
 In New Jersey, one year in the State, five 
 months in the county. 
 
 In New^ York, one year in the State, four 
 months in the county, thirty days in the town, 
 and thirty days in the precinct. 
 
 In North Carohna, two years in the State, 
 six months in the county, and four months in 
 the precinct. 
 
 In North Dakota, one year in the State, 
 six 2nonths in the county, and ninety days in 
 the precinct. 
 
 In Ohio, one year in the State, thirty days 
 in the county, twenty days in the town, and 
 twenty days in the precinct. 
 
 In Oklahoma, one year in the State, six 
 months in the county, thirty days in the town, 
 and thirty days in the precinct. 
 
 In Oregon, six months in the State. 
 
 In Pennsylvania, one year in the State and 
 two months in the precinct. 
 
 In Khode Island, two years in the State, 
 and six months in the town. 
 
 In South Carolina, two years in the State, 
 one year in the county, four months in the 
 town, and four months in the precinct. 
 
 In South Dakota, six months in the State,
 
 QUALIFICATION OF VOTEES 47 
 
 thirty days in the county, ten days in the 
 town and ten days in the precinct. 
 
 In Tennessee, one year in the State, and six 
 months in the county. 
 
 In Texas, one year in the State, six months 
 in the county, and six months in the town. 
 
 In Utah, one year in the State, four months 
 iji the county, and sixty days in the precinct. 
 
 In Vermont, one year in the State, three 
 months in the county, three months in the 
 town and three months in the precinct. 
 
 In Virginia, two years in the State, one 
 year in the county, one year in the town, and 
 thirty days in the precinct. 
 
 In Washington, one year in the State, 
 ninety days in the county, thirty days in the 
 town, and thirty days in the precinct. 
 
 In West Virginia, one year in the State, 
 sixty days in the county, and ten days in the 
 town. 
 
 In Wisconsin, one year in the State, ten 
 days in the county, ten days in the town, and 
 ten days in the precinct. 
 
 In Wyoming, one year in the State, sixty 
 days in the county, ten days in the town, and 
 ten days in the precinct. 
 
 ''By the Constitutions of many States, no 
 person shall be deemed to have lost a resi- 
 dence for the purpose of voting,^ by reason
 
 48 ELECTION LAWS 
 
 of his absence from the State while employed 
 in the service of the United States,- or of the 
 State.^ Or, while engaged in the navigation 
 of the waters of this State or of the United 
 States,^ or temporarily absent from the 
 State.^ Or, while confined in prison,*"' or kept 
 at an almshouse or asylum at the public ex- 
 pense J Or while a student in any institution 
 of learning.^ And in several States no person 
 shall be deemed to have gained a residence in 
 the State by reason of his presence, for the 
 various reasons respectively specified.^" 
 
 But the undergraduates of a college who 
 are free from parental control and regard the 
 place where the college is situated as their 
 home, having no other to which to return in 
 case of sickness or domestic affiliations are as 
 much entitled to vote as any other resident of 
 the town pursuing his usual vocation ; but as 
 a general fact, undergraduates of colleges are 
 no more indentified with residents of the town 
 in which they are pursuing their studies than 
 the merest stranger. 
 
 Under Constitution of New York, Article 2, 
 Section 3, which provides that no person can 
 gain or lose his residence as a voter by his 
 presence or absence as a student at a semi- 
 nary, evidence that a student had entered a 
 seminary for the purpose of becoming a
 
 QUALIFICATION OF VOTEES 49 
 
 priest, and that no person is allowed to enter 
 or remain in a seminary as a student unless 
 he renounces all other residences or homes 
 and that on his admission to the priesthood 
 he continues in the seminary until assigned 
 elsewhere, has been held not to be sufficient 
 to change his legal residence, as the change 
 of residence of a student must be proved by 
 acts independent of his status as a student. ^^ 
 
 Under Article 2, Section 3, of the New 
 York Constitution, declaring that no person 
 shall be deemed to have gained or lost a resi- 
 dence by reason of his presence or absence, 
 while "kept" in any almhouse or other asy- 
 lum or institution, wholly or partly supported 
 at the public expense or by charity, an "un- 
 paid helper" in Bellevue Hospital, who was 
 simply an inmate with permission to use it 
 as an asylum, receiving his boarding and 
 lodging for the work, which he was required 
 to do, was "kept" therein, within the mean- 
 ing of the Constitution, and hence could not 
 gain a residence entitling him to vote in the 
 district.^^ 
 
 A person residing at the Samaritan Home 
 for the aged does not, by such residence, ac- 
 quire the right to vote at elections within the 
 district wherein such home is located.^-
 
 50 ELECTION LAWS 
 
 Notes 
 
 1. Or for the purpose of holding office 
 (Col., Ky., Tex.) or for any purpose what- 
 ever. (Ark., Cal., IncL, Wis.) 
 
 2. Ariz., 1693; Ark., 19, 7; Cal., 2, 4; 20, 
 12; Col., 7, 4; Ida., 6, 5; 111., 7, 4; Ind., 2, 4 
 Kan., 5, 3; Me., 2, 1; Mich., 7, 5; Minn., 7, 3 
 Mo., 8, 7; Mon., 9, 3; X. D., 125; Nev., 2, 3 
 N. Y., 2, 3 ; Ore., 2, 4 ; Pa., 8. 13 ; S. C, 2, 7 
 S. D., 7, 6 ; Tex., 16, 9 ; Wash., 6, 4 ; Wis., 3, 3 
 Wym., 6, 7. These exceptions do not apply to 
 a person serving out a sentence in a peniten- 
 tiary for infamous crime. 
 
 3. Ark., Cal., Col., Ida., 111., Ind., Ky., Me., 
 Mich., Mo., Mon., N. D., Ore., Pa., S. D., Tex., 
 Wash., Wis. 
 
 4. Ariz., Cal., Ida., Kan., La., Mich., Minn.. 
 Mo., Mon., Nev., N. Y., Ore., Pa., S. C, Wash., 
 Or, in all these last, except Idaho and Min- 
 nesota, of the waters of the high seas. 
 
 5. Ala., 1, 31 ; Ariz.. Ark.. S. C, 1, 12. 
 
 6. Ariz., Cal., Col., Kan., Mich., Minn., Mo., 
 Nev., N. Y., Ore., Pa. 
 
 7. Ariz., Cal., Col., Ida., Kan., La., Mich., 
 Minn., Mo., Mon., Nev., N. Y., Ore., Pa., Va., 
 Wash. 
 
 8. Ariz., Cal., Col., Ida., Kan., La., Mich., 
 Minn., Mo., Nev., N. Y., Ore., Pa., S. C, Va. 24, 
 Wash. 
 
 9. Ariz., Cal., Col., Ida., Kan., La., ^lich.. 
 Mo., Mon., Nev., N. Y., Ore., Pa., S. C, Wash.
 
 QUALIFICATION OF VOTERS 51 
 
 So, in ]\Iaine, as to paupers or asylum inmates 
 only. Stimson's Federal & State Constitu- 
 tions, Part III, § 242. 
 
 10. Order (Sup. 1899) 62 N. Y. S. 124; 
 Affirmed In re Barry 58, N. E. 12, 164 N. Y. 
 18, 8 N. Y. Ann. Cas. 148. 
 
 11. Order 62 N. Y. S. 816, 48 App. Div. 
 203. Affirmed, People vs. Hagen, 5^ N. E. 
 1091, 165 N. Y. 607. 
 
 12. Order (1900) 66 N. Y. S. 659, 54 App. 
 Div. 630. Affirmed, In re Olwell, 59 N. W. 
 1128, 165 N. Y. 642. 
 
 Section 12. Special Disqualifications 
 
 Certain persons, who possess all the posi- 
 tive requirements for citizenship, are never- 
 theless, especially disqualified in every State. 
 The classes of persons thus specially disquali- 
 fied are persons of unsound mind, and certain 
 classes of felons. Some States disqualify 
 paupers. 
 
 The classes of persons disqualified from 
 voting in the different States are as follows : 
 
 In Alabama, persons convicted of treason, 
 embezzlement of public funds, malfeasance in 
 office or other penitentiary offenses, idiots or 
 insane. 
 
 In Arkansas, idiots, ijisane, convicts until 
 pardoned, non-payment of poll tax,
 
 52 ELECTION LAWS 
 
 In California, Cliineso, insane, embezzlers 
 of public moneys, convicts. 
 
 In Colorado, persons under guardianship, 
 insane, idiots, prisoners convicted of bribery. 
 
 In Connecticut, persons convicted of felony 
 or other infamous crime unless pardoned. 
 
 In Delaware, insane, idiots, felons, paupers. 
 
 In Florida, persons not registered, insane 
 or under guardian, felons, convicts. 
 
 In Georgia, persons convicted of crime pun- 
 ishable ])y imprisonment, insane, delinquent 
 taxpayers. 
 
 In Idaho, Chinese, Indians, insane, felons, 
 polygamists, bigamists, traitors, bribers. 
 
 In Illinois, convicts of iDenitentiary until 
 pardoned. 
 
 In Indiana, convicts and persons disquali- 
 fied by judgment of a court. United States 
 soldiers, marines and sailors. 
 
 In Iowa, idiots, insane, convicts. 
 
 In Kansas, insane, persons under guardian- 
 ship, convicts, bribers, defrauders of the gov- 
 ernment and persons dishonorably discharged 
 from service of United States. 
 
 In Kentucky, treason, felony, bribery, 
 idiots, insane. 
 
 In Louisiana, idiots, insane, all crimes pun- 
 ishable by imprisonment, embezzling public 
 funds unless pardoned.
 
 QUALIFICATION OF VOTEES 53 
 
 In Maine, paupers, persons under guar- 
 dianship, Indians not taxed. 
 
 In Maryland, persons convicted of larceny 
 or other infamous crime, persons under guar- 
 dianship, insane, idiots. 
 
 In Massachusetts, paupers (except United 
 States soldiers), persons under guardianship. 
 
 In Michigan, Indians holding tribal rela- 
 tions, duelists and their abettors. 
 
 In Minnesota, treason, felony unless par- 
 doned, insane, persons under guardianship, 
 uncivilized Indians. 
 
 In Mississippi, insane, idiots, felons, de- 
 linquent taxpayers. 
 
 In Missouri, paupers, persons convicted of 
 felony, or other infamous crime or misde- 
 meanor or violating right of suffrage, unless 
 pardoned ; second conviction disfranchises. 
 
 In Montana, Indians, felons, idiots, insane. 
 
 In Nebraska, lunatics, persons convicted of 
 treason or felony unless pardoned, United 
 States soldiers and sailors. 
 
 In Nevada, insane, idiots, convicted of trea- 
 son or felony, unamnestied confederates 
 against the United States, Indians and 
 Chinese. 
 
 In New Hampshire, paupers (except honor- 
 ably discharged soldiers), persons excused 
 from paying taxes at their own request.
 
 54 ELECTION LAWS 
 
 In New Jersey, ]iaupers, insane, idiots and 
 persons convicted of crimes wliicli exclude 
 them from being witnesses unless pardoned. 
 
 In New York, persons convicted of bribery 
 or any infamous crime unless pardoned, bet- 
 tors on result of election, bribers for votes 
 and tlie bribed. 
 
 In North Carolina, idiots, lunatics, con- 
 ^"icted of felony or other infamous crimes, 
 atheists. 
 
 In North Dakota, felons, idiots, convicts 
 unless pardoned. United States soldiers and 
 sailors. 
 
 In Ohio, idiots, insane. United States sol- 
 diers and sailors, felons unless restored to 
 citizenship. 
 
 In Oklahoma, idiots, felons, paupers and 
 lunatics. 
 
 In Oregon, idiots, insane, convicted felons, 
 Chinese, United States soldiers and sailors. 
 
 In Pennsylvania, persons convicted of some 
 oiTense forfeiting right of suffrage, non- 
 taxpayers. 
 
 Khode Island, paupers, lunatics, idiots, con- 
 victed of bribery or infamous crime until 
 restored. 
 
 South Carolina, paupers, insane, idiots, 
 convicted of treason, dueling or other in- 
 famous crime.
 
 QUALIFICATION OF VOTEES 55 
 
 South Dakota, persons under guardian, 
 idiots, insane, convicted of treason or felony 
 unless pardoned. 
 
 In Tennessee, persons convicted of bribery 
 or other infamous crime, failure to pay poll 
 tax. 
 
 In Texas, idiots, lunatics, paupers, con- 
 victs, United States soldiers and sailors. 
 
 In Utah, idiots, insane, convicted of trea- 
 son or violation of election laws. 
 
 In Vermont, unpardonable convicts, desert- 
 ers from United States service during the 
 war, ex-Confederates. 
 
 In Virginia, idiots, lunatics, convicts unless 
 pardoned by the legislature. 
 
 In Washington, Indians not taxed. 
 
 In West Virginia, paupers, idiots, lunatics, 
 convicts, bribers. United States soldiers and 
 sailors. 
 
 In Wisconsin, insane, under guardian, con- 
 victs unless pardoned. 
 
 In Wyoming, idiots, insane, felons, persons 
 unable to read the State Constitution.
 
 CHAPTER III 
 
 REGISTRATION 
 
 Section 13. Constitutional Provisions as to 
 Registration 
 
 In some of the States the State Constitu- 
 tion contains provisions as to the registration 
 of voters. Several of these Constitutions ex- 
 pressly provide that there shall be registra- 
 tion of voters ;^ while in a few States the Con- 
 stitution contains provisions against regis- 
 tration. In Arkansas registration laws are 
 expressly prohibited by the Constitution, and 
 in West Virginia the Constitution forbids 
 the Legislature to establish any board of 
 registration of voters and provides that no 
 voter shall be deprived of lii>s vote because 
 his name is not registered as a voter. 
 
 Notes 
 
 1. E. G. : Alabama, Delaware, Florida, 
 Georgia, Indiana, Kentucky, Louisiana, Mary- 
 land, Missouri, Nevada, New York, Oklahoma, 
 Rhode Island, Pennsylvania, South Carolina, 
 Virginia, Washington and Wyoming. 
 5G
 
 REGISTEATION 57 
 
 Section 14. Power of State Legislatures Over 
 Registration 
 
 In the majority of the States the enact- 
 ment of laws requiring the registration of 
 voters as a prerequisite to voting is left to 
 the discretion of the State Legislature. 
 Under the powers of a quasi sovereign gov- 
 ernment, the legislative department of any 
 State government has the power to pass reg- 
 istration laws, when such power is neither 
 granted nor prohibited by the Constitution 
 of the State; under the condition, however, 
 that the registration laws must be such as are 
 merely intended to aid in the determination 
 of the qualifications of voters, and not such 
 as to increase such qualifications.^ 
 
 On the other hand, it is held that while 
 constitutional provisions requiring the Leg- 
 islature to pass registration laws are theo- 
 retically mandatory and not merely direc- 
 tory in their character, still nevertheless 
 there is no authority with the power to com- 
 pel the Legislature to pass such laws, and 
 their failure to do so does not invalidate 
 subsequent elections. 
 
 In Stallcup vs. Tacoma- the Supreme 
 Court of the State of Washington, in con- 
 struing Article 6, Section 7, of the State
 
 58 KLKCTION LAWS 
 
 Constitution, wliieli provided as follows : 
 "The Legislature shall enact a registration 
 law, and shall require a compliance with such 
 law before any elector shall bo allowed to 
 vote ; provided, that this provision is not 
 compulsory upon the Legislature except as 
 to cities and towns having a population of 
 over five hundred inhabitants. In all other 
 cases the Legislature may or may not require 
 registration as a prerequisite to the right to 
 vote, and the same system of registration 
 need not be adopted for both classes," said: 
 
 ''Our conclusion is that the right to vote 
 in this State at any election, general or spe- 
 cial, resides in those possessing the qualifi- 
 cations prescribed by Section 1, Article 6, of 
 the Constitution, subject only to compliance 
 with such reasonable provisions respecting 
 registration and regulating the exercise of 
 the right, as the Legislature may provide, but 
 the mere failure or neglect of the Legislature 
 to make any i)rovision for registration does 
 not operate to deprive those having the quali- 
 fications of the Constitution from exercising 
 the elective franchise." 
 
 *'The Constitution of South Carolina, 
 adopted in 18G8, required the Legislature to 
 pass a registration law. Init none had been 
 passed before the presidential election in
 
 EEGISTEATION 59 
 
 1876. Objections to counting the electoral 
 vote of the State, for this reason, were made 
 before the Electoral Commission. In reply 
 to these objections it was said that the Con- 
 stitution of the United States had devolved 
 the duty of directing the manner of appoint- 
 ing Presidential Electors on the Legislatures 
 of the States, and that the requirement of 
 the State Constitution could not bind the 
 Legislature so far as such elections were 
 concerned. There was no difference of opin- 
 ion upon this point between the commission- 
 ers, Messrs. Abbott and Bayard, expressly 
 holding it to be of no validity. Mr. Com- 
 missioner Abbott, in speaking of the laws of 
 the State as being calculated to promote 
 fraud, said: ^But although this is repre- 
 hensible in the highest degree, and shows the 
 fraudulent intent of the party in power, I 
 agree it does not furnish a sufficient reason 
 to reject the vote of the State. The law cer- 
 tainly is mandatory upon the legislature, but 
 if that body refuses to obey to do its duty, 
 and execute the mandate, by making a law to 
 provide for registration, such a refusal, how- 
 ever fraudulent, cannot deprive the State and 
 its people of the right to vote. Any other 
 construction would put an end to the govern-
 
 60 ELECTION LAWS 
 
 ment and prevent the people from electing 
 any officers, State or National.' "^ 
 
 Notes 
 
 1. Byler vs. Asher, 479 111. 101; Caper vs. 
 Foster, 12 Pickering (Mass.) 485; Page vs. 
 Allen, 58 Pa. St. 338, 98 Am. Dec. 272. 
 
 2. 13 Washington 142. The validity of the 
 same election was also in question in the case 
 of Seymour vs. Tacoma, 6 Washington 138, 
 
 3. Cong. Eec. Vol. 5, pt. 4, 237 and Am. 
 & Eng. Encye. of Law, second edition, Vol. 
 X, page 611, note. 
 
 Section 15. General Application of Registration 
 Laws. Exceptions 
 
 It is not necessary (in the absence of any 
 constitutional provision on the point) that a 
 State Legislature in passing a registration 
 law should make it of universal application. 
 In many States the registration laws only 
 apply to cities of over a certain population. 
 Where, however, the registration laws are 
 made to apply to certain localities and not 
 to others, the classification must not be an 
 arbitrary one, but must be based upon some 
 reasonable ground of distinction. 
 
 A law of this character was construed in 
 State vs. Shepherd,^ where it was held that:
 
 EEGISTEATION 61 
 
 ''The Kansas Act of March 2, 1889 (Laws 
 1889, c. 206), relating to the registration of 
 voters in cities of the first class, where the 
 metropolitan police law is or may be in force, 
 and where more than six thousand votes were 
 cast at the general election in November, 
 1888, or shall be so cast at any future general 
 election, applied only to cities of the first 
 class where more than six thousand votes 
 have been cast either at the general election 
 in November, 1888, or at some general elec- 
 tion since then." 
 
 The question has often arisen as to whether 
 a general registration law should be held to 
 apply in the case of special elections. In 
 Ben vs. State- it was held that the provision 
 of the Mississippi Constitution providing that 
 "electors shall not be registered within four 
 months next before any election at which they 
 may offer to vote," did not apply to local 
 option elections. In Seymour vs. Tacoma^ it 
 was held that a law requiring the registration 
 of voters for all elections for municipal and 
 other offices did not apply to elections held to 
 vote upon propositions for the purchase of 
 water works and light plants by a city. 
 
 Notes 
 
 1. 42 Kan. 360.
 
 62 ELECTION LAWS 
 
 2. 71 Miss. 1. 
 
 3. (i AVash. ViS. 
 
 Section 16. Registration Officials 
 
 The (inalificatioiis and metliods of appoint- 
 ment of election officials differ so greatly in 
 the different States that no general state- 
 ments on this subject can be made in a book 
 of this size. In some States the registration 
 officials are the same as the election officials, 
 while in other States the two sets of officials 
 are different men.
 
 CHAPTER IV 
 POLITICAL PARTIES 
 
 Section 17. Party Organization and Party Names 
 
 Government in the United States has 
 always heen distinctively a government by 
 political parties. For a long period, during 
 the early history of the Republic, the political 
 parties were entirely extra-judicial, and no 
 control over such parties, their committees 
 or conventions was attempted by the courts. 
 The increasing imi:)ortance of the political 
 organizations has brought about an ever in- 
 creasing degree of supervision over them on 
 the part of the Judicial Department of the 
 Government.^ 
 
 One of the first requisites for a political 
 party is some distinctive i)arty name. Party 
 names must be distinctive and not conflict 
 with names of previously existing parties. 
 In Lind vs. Scott- the name ''Social Demo- 
 cratic Party" was held to conflict with the 
 name "Democratic Party." A substantial 
 number of persons having an organization, 
 committees and a distinctive platform, is a 
 63
 
 64 ELECTION LAWS 
 
 political party and entitled to protection in 
 the use of a political name, even although 
 they do not poll a sufficient number of votes to 
 have the names of their candidates appear 
 upon the ballot otherwise than by petition.^ 
 
 Notes 
 
 1. See Sections 19 and 20. 
 
 2. 87 Minn. 226. 
 
 3. Davidson vs. Hanson, 87 Minn. 211. 
 
 Section 18. Political Committees 
 
 The general government of all political 
 parties is vested in its permanent political 
 committees. The members of such commit- 
 tees were formerly always chosen by the vari- 
 ous political conventions, now they are very 
 often elected directly at the direct primaries 
 of their parties. 
 
 At the head of the party stands the Na- 
 tional Committee of the party. Unlike other 
 political committees, such committees are 
 still nearly independent of the law. It is 
 only incidentally that a State statute relative 
 to primaries or elections can in any way 
 affect a National Committee or a National 
 Convention. The results of an election for 
 delegates to a National Convention, held in 
 accordance with a State primary law, may
 
 POLITICAL PARTIES 65 
 
 be aeeeptecl or rejected by the National Com- 
 mittee, or the National Convention, and there 
 is no way in which such proceedings could 
 be reviewed by the courts. 
 
 In every local political division there are 
 to be found political committees of each of 
 the large political parties. There are county 
 committees, town committees, city commit- 
 tees, and very often ward committees, which 
 are branches of the city committee of the city 
 in which they are located. There are also 
 committees for districts created solely as 
 election districts for certain officials. Thus 
 there are congressional district committees 
 and senatorial district committees. All of 
 these committees are under the supervision 
 of the State Central Committee of the party. 
 Many of these political committees have 
 nominal duties and do very little work. The 
 important local political committees are the 
 county committee and the town or city com- 
 mittee. The relative importance of the 
 county and town committees varies greatly 
 in the different States, as the importance of 
 the county and town governments vary in the 
 States. In most of the States the county 
 committees do the great part of the political 
 work of the party ; in others, as, for example, 
 Massachusetts, they are hardly more impor-
 
 66 ELECTION LAWS 
 
 taut than the committee for a senatorial dis- 
 trict. 
 
 ' ' Primary election laws usually intrust the 
 calling of elections to the party governing 
 committees^ subject to statutory limitations 
 on their mode of action.- A joower to the 
 state committee to count the votes cast at a 
 primary election for State officers will be 
 read into a statute which authorizes the com- 
 mittee to call the convention and authorizes 
 local committees to count the vote and certify 
 the nominations for local officers.^ Redress 
 must be first sought from the committee be- 
 fore mandamus or certiorari will lie to review 
 its action." ^ ^ 
 
 Notes 
 
 1. "When called under such statutory pro- 
 visions they cannot be enjoined (Ky. St., 
 Art. 12, c. 41), Meacham vs. Young, 24 Ky. 
 L. K. 2141, 72 S. W. 1094. State committee 
 denied power to prevent primary called regu- 
 larly by local committee or to remove local 
 committeemen and appoint new committee 
 for that end. Neal vs. Young, 25 Ky. L. R. 
 183, 72 S. W. 1082. Interference by state 
 committee enjoined. Id. governing committee 
 cannot question the eligibility of a candidate 
 before the primary and refuse to place his 
 name on the ballot. Young vs. Beckham, 24 
 L. R. 2134, 72 S. W. 1092.
 
 POLITICAL PAETIES 67 
 
 2. A statute providing that rules shall not 
 be amended except on reasonable notice, does 
 not apply to rules adopted by the first meet- 
 ing of a county general committee changing 
 rules of the preceding year. (Primary Elec- 
 tion Law, Laws, 1898, p. 336, c. 179, as 
 amended by Laws, 1899, p. 968, c. 473, subd. 
 2), People vs. Democratic General Committee, 
 82 App. Div. (N. Y.) 173. And a rule there 
 adopted controls acts performed at that time, 
 though it later may become ineffective on ac- 
 count of failure to file a certificate thereof 
 as required by statute. Id. 
 
 3. Ky. St., Art. 12, pp. 1563, 1565 ; Young 
 vs. Beckman, 24 Ky. L. K. 2135, 72 S. W. 1092. 
 
 4. Mandamus will not issue to compel the 
 recognition of an unnamed person as member 
 of the general committee of a party, if such 
 person has never applied for, or been refused 
 recognition, though by the statute summary 
 jurisdiction is given to review the actions or 
 neglect of the officers or members of a politi- 
 cal convention committee. People vs. Demo- 
 cratic Committee, 82 App. Die. (N. Y.) 172. 
 
 5. Current Law. 
 
 Section 19. Political Conventions 
 
 A political convention is a representative 
 body of a particular political party. It is 
 composed of delegates elected by tlie voters 
 of the party either directly at primaries or
 
 gg ELECTION LAWS 
 
 caucuses, or indirectly by other conventions. 
 Very often an alternate for each delegate is 
 elected at tlie same time as the delegate him- 
 self, to take the latter 's place at the conven- 
 tion if he is absent. Conventions vary 
 greatly in the numbers of the delegates com- 
 posing them ; a national convention of either 
 of the two great political parties has about 
 eleven hundred delegates, a State convention 
 may have as many as fifteen hundred, while 
 at the other extreme a local convention may 
 be composed of only a handful of delegates. 
 
 National political conventions are held 
 every four years in presidential years. In 
 the national convention of the great political 
 parties each State has twice as many dele- 
 gates as it has members in both houses of 
 Congress combined, and representation is 
 also given to tho Territories. The total 
 number of delegates in these conventions is 
 thus in the neighborhood of eleven hundred. 
 All of these delegates up to the campaign of 
 1912 were elected by preliminary conventions 
 in the ditferent States, Territories, or con- 
 gressional districts. 
 
 The delegates to most political conventions, 
 other than national, are elected directly in 
 the party primaries or caucuses. Some of 
 the State conventions have more delegates
 
 POLITICAL PAETIES 69 
 
 than the national conventions, but most of 
 the local conventions are quite small. Some- 
 times county conventions choose the delegates 
 to the State conventions. 
 
 The first thing to be done in every conven- 
 tion is to decide who are entitled to take part 
 in effecting the organization of the conven- 
 tion. The general procedure is for the ap- 
 propriate political committee of the party 
 (i. e., national committee in the case of a na- 
 tional convention, State committee in the case 
 of a State convention, county committee in 
 the case of a county convention, etc.) to make 
 up a list of delegates who are thus entitled 
 to take part in the preliminary business of 
 the convention. The general custom is not 
 to place on this temporary roll of delegates 
 the names of any persons whose claim to a 
 seat is disputed, it being considered best to 
 leave it to the delegates whose claim to a 
 seat is undisputed to pass upon the contested 
 cases. If a delegate whose seat is contested 
 is admitted, he will generally not vote on the 
 question of his own right to a seat. Occa- 
 sionally in the case of an unscrupulous com- 
 mittee, delegates whose right to vote is 
 disputed will be admitted and allowed to vote 
 on the question of their own right to a seat. 
 
 The chairman of the political committee of
 
 70 ELECTION LAWS 
 
 the party calls the convention to order. A 
 temporary organization is next effected by 
 the election of a temporary chairman, tem- 
 porary secretary and whatever other tem- 
 porary officers the convention may decide 
 upon. Following this a committee on cre- 
 dentials is appointed to decide who are en- 
 titled to act as delegates in the convention. 
 Upon their report having been acted upon by 
 the convention, the convention is ready for 
 its permanent organization, which is effected 
 by the election of the regular permanent 
 officials. 
 
 The principal work of all political conven- 
 tions is the nomination of the party candi- 
 dates for various offices, and the election of 
 delegates to higher conventions. In national 
 conventions the nominations are made by a 
 roll call of the States, and in State conven- 
 tions generally by a roll call of the counties. 
 Nominations are sometimes made by acclama- 
 tion and sometimes by written ballots. A 
 candidate must always receive a majority 
 vote in order to be nominated. 
 
 National conventions always, State con- 
 ventions almost always, and other conven- 
 tions very rarely, adopt political platforms 
 which are official statements of the position 
 and views of the party on pending political
 
 POLITICAL PARTIES 71 
 
 issues. These platforms are adopted by the 
 convention before the nomination of the 
 candidates. 
 
 The final duty of political conventions is 
 the election of campaign committees. 
 
 Section 20. Control of the Courts Over Political 
 Conventions 
 
 The importance of the political convention 
 during a long period in the history of the 
 United States has compelled the Legislature 
 and courts to assume a certain degree of con- 
 trol over such conventions. While political 
 conventions are primarily under the control 
 of the committees of the political parties, 
 nevertheless, statutory requirements regu- 
 lating the same are legal and binding, unless 
 they are of such a character as to violate the 
 constitutional guarantees of freedom of elec- 
 tion, or freedom of speech and assemblage.^ 
 Among the statutory provisions relative to 
 political conventions which have been upheld 
 are ones regulating who should call the con- 
 vention to order,'- administer the oath to the 
 temporary chairman,^ and call the roll.^ 
 
 The powers of a convention are of a tem- 
 porary and limited character.^ The power 
 of a convention is over when the nominations 
 have been made and the certificates filed.^
 
 72 ELECTlOiX LAWS 
 
 Vacancies caused by the declination of can- 
 didates are filled by the proper political 
 committees." 
 
 A majority of the delegates in a political 
 convention have the full right to control the 
 convention, and may adopt any legal methods 
 to carry out the business so as to give etfect 
 to the will of the majority.^ Thus it has been 
 held that when a combination of legal and 
 illegal delegates by unlawful means deprive 
 the majority of the legal delegates of their 
 right to organize the convention, the majority 
 members may proceed to organize the con- 
 vention either in the hall or elsewhere. '-* 
 
 A majority of the delegates voting is suf- 
 ficient to control the convention ;^'^ the legal- 
 ity of the work of the convention cannot be 
 defeated by the action of delegates in sitting 
 silent while a vote is being taken, or by dele- 
 gates withdrawing after the balloting is com- 
 pleted.^^ This is true even although the 
 delegates who withdrew constitute a majority 
 of the members of the convention, and unite 
 with rejected delegates to hold another con- 
 vention. ^- 
 
 A convention, legal and regular for one 
 purpose is legal and regular for all pur- 
 poses. ^-^ 
 
 The decision of the central organization of
 
 POLITICAL PARTIES 73 
 
 a political party as to which is the legal con- 
 vention of the party is generally binding 
 upon the courts. 
 
 Notes 
 
 1. State vs. Junkin (Neb.) 122 N. W. 
 Rep. 473. 
 
 2. In re Thomas, 128 App. Div. 330, 122 
 N. Y. Siipp. 664. 
 
 3. In re Byrne, 128 App. Div. 334, 122 
 N. Y. Supp. 699. 
 
 4. Id. 
 
 5. In re Greene, 121 App. Div. 693, 106 
 N. Y. Supp. 425. 
 
 6. In re Greene, 121 App. Div. 693, 106 
 N. Y. Supp. 425; State vs. Benton, 13 Mont. 
 306, 34 Pac. 301. 
 
 7. Id. 
 
 8. Wallace vs. Lansdon (Idaho), 97 Pac. 
 Rep. 396. 
 
 9. Id. 
 
 10. State vs. Porter, 11 N. D. 309. 
 
 11. Id. 
 
 12. Id. 
 
 13. State vs. Lmdahl, 11 N. D. 320. 
 
 14. Rose vs. Bennett (R. I.), 56 Atl. Rep. 
 185; State vs. Lindahl, 11 N. D. 320.
 
 CHAPTER V 
 
 PRIMARY ELECTION LAWS 
 
 Section 21. General Right to Pass Primary 
 Election Laws 
 
 That the State Legislatures have the gen-- 
 eral power to pass reasonable primary laws 
 is now well settled.^ "Primary elections, as 
 they in fact exist, are so far matters of public 
 concern that they are proper objects of legis- 
 lative oversight. ' ' - 
 
 A primary election law may provide for the 
 nomination of candidates by direct vote of 
 the members of the various political parties, 
 or it may provide for the making of nomina- 
 tions by conventions. The primary laws 
 whose constitutionality has been questioned 
 in the courts have been almost invariably 
 those of the first class. A primary law may 
 also make provisions as to the organization 
 and government of a political party, and as 
 to who shall l)e entitled to vote in the pri- 
 maries of a political party. 
 
 When a direct primary law is adopted by 
 a State, the previously existing laws govern- 
 ing party organizations, political committees, 
 conventions, etc., remain in force, except such 
 
 74
 
 PRIMAKY ELECTION LAWS 75 
 
 parts of the laws as are repealed by the new 
 law, either expressly or by necessary impli- 
 cation. 
 
 Notes 
 
 1. People ex rel. Breckon vs. Board of 
 Election Commissioners, 221 111. 9 ; Dapper 
 vs. Smith, 138 Mich. 104, 101 N. W. Rep. 60; 
 Leonard vs. Conn., 112 Pa. St. 622. But, 
 contra, Britton vs. Election Commissioners, 
 129 Cal. 337. 
 
 2. Hopper vs. Stack, 69 N. J. L. 569, 58 
 Atl. Rep. 1. 
 
 Section 22. Cases Where Particular Primary 
 
 Election Laws Have Been Declared 
 
 Constitutional 
 
 In Hopper vs. Stack,^ a provision of the 
 New Jersey law that a primary voter, if 
 challenged, must make affidavit that at the 
 last general election he voted for a majority 
 of the candidates of the party, at whose 
 primary he seeks to vote, was held consti- 
 tutional. 
 
 Statutes limiting the operation of the pri- 
 mary election laws to the two largest parties 
 in the State, or to those parties which poll a 
 certain per cent of the total vote of the State, 
 have been upheld in a number of decisions.- 
 
 In State vs. Moore,^ a provision of the Min- 
 nesota election laws, which prohibited an un-
 
 76 ELECTION LAWS 
 
 successfnl candidal c for nomination for a 
 certain office at the primaries of* one of the 
 political parties from having his name 
 printed on the election ballot as an indepen- 
 dent, was ui)held. 
 
 A primary election law is not unconstitu- 
 tional because a voter who votes at a pri- 
 mary held to nominate candidates for a cer- 
 tain election is prohil)ited from signing the 
 petition of another candidate for the same 
 election, either an independent or one belong- 
 ing to another political jiarty.* 
 
 A law is not unconstitutional on account of 
 its unreasonableness, because under its pro- 
 visions a voter who changes his party affil- 
 iations between registration and primary 
 day will thereby lose his right to vote at the 
 primary election of either party;' nor is a 
 law unconstitutional because voters are re- 
 quired to declare their political affiliation 
 with a certain political ])arty and })romise to 
 sui)port its candidates at the election before 
 being permitted to vote at the primary elec- 
 tion of such party. *^ 
 
 A primary election law is not an infringe- 
 ment of the elective franchise because it pre- 
 scribes an exclusive method of making nomi- 
 nations ; the right to vote not being a natural 
 right, and being subject in all respects to the
 
 PEIMAEY ELECTION LAWS 77 
 
 control of the Legislature in each State, ex- 
 cept as the })Ower of the Legislature is lim- 
 ited by«constitutional jorovisions, either Fed- 
 eral or State. 
 
 The requirement that candidates for nomi- 
 nation for any office shall ))e obliged to pay a 
 reasonable fee, to be used towards defraying 
 the expenses of the primary election, has been 
 upheld in a number of decisions."^ 
 
 The cases already cited in this section show 
 the great extent of the control which the 
 State may exercise over primary elections ; 
 on the other hand, the State may, if it deems 
 proper, allow each political party to pre- 
 scribe the time, manner and conditions of 
 election, and the qualifications of party 
 voters. The present tendency is strongly in 
 the direction of greater control of primary 
 elections by the State. 
 
 Notes 
 
 1. 69 N. J. L. 562. 
 
 2. Kennenviw vs. Allegany County, 102 
 Md. 110; State vs. Drexel, 105 N. W. Kep. 
 174 (Neb.) 
 
 3. 87 Minn. 808. 
 
 4. Katz vs. Fitzgerald, 152 Cal. 433, 93 
 Pae. Rep. 112. 
 
 5. Schastag vs. Cator, 151 Cal. 600, 91
 
 78 ELECTION LAWS 
 
 Pac. Rep. 502. 
 
 6. Id. 
 
 7. State vs. Scott, 108 N. W. Rep. 828 
 (Minn.) ; Kennewig vs. Allegany County, 102 
 Md. 119, 62 Atl. Rep. 249; Montgomery vs. 
 Chelf, 118 Ky. 766. 82 S. AV. Rep. 388.' 
 
 Section 23. Cases Where Particular Primary 
 
 Election Laws Have Been Declared 
 
 Unconstitutional 
 
 Primary election laws have been more se- 
 verely handled by the courts in Illinois than 
 in any other State in the country. 
 
 In People ex rel Breckon vs. Board of 
 Election Commissioners of Chicago,^ the Illi- 
 nois Direct Primary Act of May 18, 1905, was 
 declared unconstitutional for the following 
 reasons : 
 
 (1) The statute contained an unconstitu- 
 tional delegation of legislative power in the 
 provision which gave to the county central 
 committee of each political party the right 
 to determine whether county candidates 
 should be nominated by conventions or by 
 direct primaries, and if they were to be nomi- 
 nated by direct primaries, whether a ma- 
 jority vote or a plurality vote should be 
 required for a nomination. 
 
 (2) The statute violated Article IV, Sec- 
 tion 13 of the Illinois Constitution, by amend-
 
 PEIMAEY ELECTION LAWS 79 
 
 ing the Illinois Primary Election Act by 
 reference to its title only. 
 
 (3) It contained provisions as to the coun- 
 ties from which legislative candidates should 
 come, thus imposing qualifications for office 
 beyond those fixed by the Illinois Constitu- 
 tion. 
 
 (4) It provided one system of primary 
 elections for one county in the State, and 
 another system for the other counties, and 
 thus violated the Constitutional guarantee 
 that all elections should be free and equal. 
 
 (5) The provisions as to the fees to be 
 paid by candidates bore no relation to the 
 service to be rendered and the rights both of 
 candidates and of voters. 
 
 The Direct Primary Act of July 1, 1906, 
 was declared unconstitutional in the case of 
 Eouse vs. Thompson.- The provisions au- 
 thorizing primary elections to select candi- 
 dates of the several political parties to be 
 voted for in political conventions, were held 
 not to be within the scope of the title of this 
 Act, which was: ''An act to provide for the 
 holding and regulating of primary elections 
 of delegates to nominating conventions, for 
 the holding of such conventions, filling vacan- 
 cies and fixing penalties for the violation of 
 the provisions thercci'. " 
 
 Sections 2 and 3 of the Act, which author-^
 
 80 ELECTlUA' LAWS 
 
 izod the County Central Committees of the 
 different ijarties to designate election dis- 
 tricts, were held to contain an unconstitu- 
 tional delegation of power. 
 
 Section 59, which authorized political com- 
 mittees to select the candidates of the various 
 parties in the case of special elections was 
 held (when compared to the ]>rocedure pro- 
 vided for in the case of general elections) to 
 be in violation of the i^rovision of the Illinois 
 Constitution that all elections should be free 
 and equal. 
 
 Another ground upon which the statute was 
 declared unconstitutional was, that legally 
 qualified voters would be deprived of the 
 right to vote at every primary on account of 
 the fact that neither was a registration pro- 
 vided for within thirty days of the date of 
 the primary election, nor was any provision 
 made by which a voter, entitled to vote under 
 the riHnois Constitution, but not registered, 
 could swear in his vote. 
 
 A final ground of objection to the bill was 
 found in the provision that only one candi- 
 date for representative to the Legislature 
 could be nominated in each senatorial district 
 by any party ; thus taking away from the 
 voter his right to vote for three candidates. 
 
 The provisions of this statute which lim- 
 ited the right of participation in a primarjr
 
 PKIMARY ELECTION LAWS 81 
 
 election of a party to those who had not 
 voted at the primary election of anotlier 
 party, or signed the nomination petition of 
 the candidate of another party, within one 
 year prior to the primary which the voter 
 seeks to participate in, and who will declare 
 their political affiliations, were held consti- 
 tutional. 
 
 The Direct Primary Act of 1908 was held 
 to be unconstitutional in the case of People 
 vs. Strassheim.'^ 
 
 This Act was held void for the following 
 reasons : 
 
 (1) No ])roper provisions were made for 
 registration for the date of primary elections. 
 This not only illegally deprived certain voters 
 of the right to vote, but, as registration was 
 required in some portions of the State and 
 not in others, the law as it stood violated the 
 constitutional guarantee that all elections 
 should be free and equal. 
 
 (2) Voters, in voting for representatives 
 to the Legislature, were deprived of their 
 right to either cumulate their votes or to 
 vote for more than one person at their own 
 
 «P^i^"- Notes 
 
 1. 221 111. 9. 
 
 2. 228 111. 522, 81 N. E. 1109. 
 
 3. 240 111. 179, 88 N. E. Rep. 821.
 
 CHAPTER VI 
 CONDUCT OF ELECTIONS 
 
 Section 24. Calling Elections. 
 
 In order to render an election valid it must 
 not only be authorized by law, but must be 
 called by officials authorized by law to call 
 the election.^ It is sufficient, however, if the 
 officer who calls the election is a de facto 
 officer. The official in calling the election 
 must always observe the method, if any, pre- 
 scribed by law for calling the election, or such 
 election will be void.- When, however, all 
 the details of this election, including the time 
 and place of holding it, are fixed by statute, 
 the election will not be invalid because no 
 notice or proclamation relative to the election 
 was issued.^ 
 
 Again, while in some States the statutes 
 require the county judge or some other judi- 
 cial official to issue writs of election, the mere 
 fact that such writs were not issued will not 
 render the election void.^ Even in the case 
 of special elections, or elections to fill vacan- 
 cies, while a notice is invariably required to 
 
 82
 
 CONDUCT OF ELECTIONS 83 
 
 be issued, still, if there is no notice or procla- 
 mation made, but if the size of the vote shows 
 that the voters had general knowledge of the 
 election, the election will be upheld.^ Where 
 the statute requires a certain number of days ' 
 notice to be given of the election or desig- 
 nates what facts shall be set out in the notice, 
 these provisions should be complied with, but 
 a substantial compliance with the statute is 
 sufficient.*^ 
 
 The statutes generally require that notices 
 as to elections shall be published in a news- 
 paper or newspapers or posted in a certain 
 number of public places, or both. Only such 
 publication or posting as the statute requires 
 is necessary; and a substantial compliance 
 with such statutory requirements is suf- 
 ficient." 
 
 Defects or neglect in the posting or publi- 
 cation of the notices will not render the elec- 
 tion void where the defects were immaterial 
 and did not affect the result.^ 
 
 Notes 
 
 1. Clarke vs. Harrcock County, 27 111. 305 ; 
 Stephens vs. People, 89 111. 337 ; State vs. 
 Buck, 13 Neb. 273. 
 
 2. McHam vs. Conuell (Tex. App.), 15 S. 
 W. Rep. 284.
 
 84 ELECTION LAWS 
 
 3. Stephens vs. People. 89 111. 337; Jones 
 vs. Gridley, 20 Kan. 584. 
 
 4. Ex parte Schilling (Tex. Crim. App., 
 1897), 42 S. W. Rep. 553. 
 
 5. Ellis vs. Karl. 7 \eb. 381; Adsit vs. 
 Osmun, 84 ]\Iich. 420. 
 
 6. Chicago, etc.. R. Co. vs. Piekney, 74 
 111. 277 ; Tillson vs. Ford, 53 Cal. 701. 
 
 7. Seymour vs. Tacoma, 6 AYash. 427. 
 
 8. People vs. Avery, 102 Mich. 572. 
 
 Section 25. Election Officers 
 
 The numbers, titles and qualifications and 
 method of appointment of election officers are 
 regulated by statute and differ greatly in the 
 different states, F]lection officers are very 
 seldom elected, and are generally appointed 
 l)y some of the executive officers of the gov- 
 ernment. In some States, however, the stat- 
 ute provides that the election officer shall be 
 appointed by the judge of some court, and 
 such statutes have been held to be constitu- 
 tional, although they confer non-judicial 
 powers upon a judge. ^ 
 
 Various qualifications are prescribed in 
 the several States for election officers. It is 
 generally provided that such officials must 
 be citizens and residents of the election dis- 
 trict in which they serve, and able to read 
 and write. In some States, however, an elec-
 
 CONDUCT OF ELECTIONS 85 
 
 tion official can serve in a different precinct 
 from that in which he lives. Other qualifica- 
 tions are found in different States. 
 
 In Illinois the judges of election must be 
 "householders"; but no such requirement is 
 made as to the clerks of election. It is nearly 
 everywhere provided that the election officers 
 at each voting place shall contain representa- 
 tives from the two leading political parties. 
 
 Election officers are not judicial officers 
 when deciding upon the questions of receiv- 
 ing or rejecting votes ; they act in a minis- 
 terial, or, at most, in a quasi-judicial char- 
 acter.- Not being judicial officers, election 
 officials are liable to an action for damages 
 for illegally refusing to receive a vote.-'* 
 Election officials may also be liable criminally 
 when they wilfullly reject a legal vote or 
 accept an illegal one. The action of election 
 officers in receiving or rejecting votes is, of 
 course, always open to review in any election 
 contest before a court or legislative body. 
 
 Notes 
 
 1. People vs. Hoffman, 116 111. 587; Ex 
 parte Siebold, 100 U. S. 331. 
 
 2. Biddle vs. Wing, CI. & H. El. Cas. 504. 
 
 3. See Section 3.
 
 36 ELECTION LAWS 
 
 Section 26. Time of Holding Election 
 
 Statute i)rovisions providing the time at 
 which the election shall be held are manda- 
 tory and not directory, and an election held 
 at some other time will be void.^ An election 
 held at the wrong time, even with the consent 
 of all the voters, will be void.- 
 
 A majority can not change the time of 
 election against the will of the minority.^ 
 
 Thns, in People vs. Brewer,'* where, upon 
 the day fixed for an election of a school trus- 
 tee, a majority of the voters organized and, 
 against the will of the minority, adjourned 
 the election to a future day, it was held that 
 an organization and election by the voters 
 remaining was legal, and also that where a 
 majority attempts to adjourn an election 
 without day, the minority may organize on 
 the proper day and hold the election. 
 
 There must be some definite time legally 
 fixed for holding an election, otherwise the 
 election will be void. In Toney vs. Harris," 
 the court said : 
 
 *'To make the election of an oflScer of gov- 
 ernment legal, there must be a time fixed for 
 holding such election, either by law or by the 
 officer empowered by law to do so. If it was 
 not so, there could be neither a fair, orderly, 
 or free expression of the popular choice. If
 
 CONDUCT OF ELECTIONS 87 
 
 one candidate for an office and his friends 
 may, without authority of law, prescribe the 
 time for holding an election to fill a vacancy, 
 his opponent may as well fix another and 
 different time. For neither by the constitu- 
 tion nor statute is the first Monday in August 
 prescribed as the day in course for holding 
 an election to fill a vacancy in the office of 
 judge of the circuit or other courts of the 
 same class, and such election, therefore, can 
 be legally held on that day only when ap- 
 pointed by a writ of election. To sanction 
 an election held without lawful authority is 
 to countenance confusion, tumult and unfair- 
 ness. " 
 
 If the Constitution fixes the date for an 
 election, such date cannot be changed by the 
 Legislature.*^ The Constitution or laws of 
 the States sometimes give to some State or 
 local officer or board the power to fix the date 
 of an election. In such cases, if the power is 
 exercised in the proper manner, the election 
 will be valid. 
 
 Notes 
 
 1. Stephen vs. People, 89 111. 337; Field 
 vs. Hall (Texas), 40 S. W. 789. 
 
 2. State vs. Winter, 141 Ind. 177. 
 
 3. State vs. Collins, 2 Nev. 351.
 
 88 ELECTION LAWS 
 
 4. 20 111. 474; American and Englisli En- 
 cyclopedia of Law, ]). tiTD. 
 
 5. 85 Ky. 453. 
 
 6. Smith vs. Askew, 48 Ark. 82. 
 
 Section 27. Place of Holding an Election 
 
 In order for an election to be legal the 
 place of voting must be definitely fixed before 
 the balloting begins. 
 
 In Williams vs. Porter,^ where a statute 
 required the polling places, when more than 
 one was demanded by the excess of the num- 
 ber of voters over those voting at the last 
 preceding general election, to be fixed by the 
 county board, and it appeared that a school- 
 house, where certain votes were cast at an 
 election, had not been designated or ap- 
 pointed by the county board as a polling place, 
 it was held that such votes could not be 
 counted. Tt was said : * 'A number of voters 
 of the township assemble at a place unauthor- 
 ized by law, organize, and hold an election for 
 town officers, and the question is, shall the 
 votes cast at such election be counted ? . . . 
 It is clear, U])on the plainest principles of 
 law, they cannot bo so counted. The whole 
 thing, however well intended, was, in contem- 
 plation of law, illegal and void." 
 
 AVlien a place has been fixed the election
 
 CONDUCT OF ELECTIONS 89 
 
 must be held at this place, but if it becomes 
 impossible to hold the election at the place 
 designated and the polling place is moved to 
 some other place in the immediate vicinity, 
 and the voters notified of the change, in the 
 absence of fraud the election will be upheld.- 
 The statute of each State prescribed what 
 officer or body shall have the power to divide 
 the State into voting precincts and fixes the 
 polling places in each precinct. 
 
 Notes 
 
 1. 114 111. 628. But contra Steele vs. Cal- 
 houn, 61 Mass. 556. 
 
 2. Dale vs. Irwin, 78 111. 170. 
 
 Section 28. Voting 
 
 Voting in this country is now everywhere 
 by ballot, and almost everywhere under some 
 form of the Australian Ballot System, except 
 in places where voting by voting ma- 
 chines has been introduced. The Australian 
 Ballot System is treated in the next chapter 
 of this book, and voting machines in the suc- 
 ceeding one. 
 
 The voter in voting is entitled to secrecy, 
 but under certain circumstances, if he is un- 
 able to mark his ballot himself he may have 
 the assistance of some of the election officials. 
 Physical incapacity to mark his ballot on
 
 90 ELECTION LAWS 
 
 account of blindness, loss of hands, or other 
 causes, will always entitle the voter to such 
 assistance. Inability to read entitles the 
 voter to assistance except in those States 
 having educational qualifications. 
 
 The manner of rendering assistance in such 
 cases, and the official by whom it shall be 
 rendered, are designated by statute. It is 
 generally provided that two election officials, 
 one from each of the two leading political 
 parties must give such assistance together. 
 
 A voter who is rendered assistance in 
 marking his ballot is entitled to as great a 
 degree of secrecy as is possible under the 
 circumstances; the officers who assist him 
 have no right to divulge how he votes.
 
 CHAPTER VII 
 
 AUSTRALIAN BALLOT SYSTEM 
 
 Section 29. History of the Australian Ballot 
 System 
 
 The Australian ballot system, which in 
 some form or another is now in force 
 throughout the United States, derives its 
 name from the fact that it was first put into 
 operation in Australia.^ Such a system of 
 voting was first proposed in the Legislature 
 of South Australia by Francis S. Dutton in 
 1851, and became a law, under the title of 
 the Elections Act, in 1857. In the next fif- 
 teen years this system of voting was adopted 
 by all the other Australian colonies and by 
 New Zealand. 
 
 By Act of May 30, 1872, the Australian 
 ballot was adopted for parliamentary elec- 
 tions in England; and this system was next 
 adopted in Belgium in 1877, by Luxumberg in 
 1879, by Italy in 1882, and by Norway in 
 1884. 
 
 The first law providing for the adoption of 
 the Australian ballot in the United States 
 
 91
 
 92 ELECTION LAWS 
 
 was that of February 24, 1888, which pre- 
 scribed this method of voting for municipal 
 elections in Louisville, Kentucky, although 
 some features of the Australian ballot had 
 been copied in a statute of Wisconsin, gov- 
 erning elections in cities of over 50,000 popu- 
 lation, passed in 1887. 
 
 In 1888 the Legislature of New York 
 passed the Yates-Saxton Act for the adop- 
 tion of the Australian ballot system, but the 
 bill was vetoed by Governor David B. Hill. 
 
 Massachusetts was the first State to adopt 
 the principles of the Australian ballot for 
 general elections ; the bill which accomplished 
 this being signed by the Governor May 30, 
 1888.- Within the next seven years every 
 State in the country had followed the ex- 
 ample of Massachusetts except Georgia, 
 Louisiana, North Carolina and South Caro- 
 lina. Great differences as to details are 
 found in the laws of the different States. 
 
 Notes 
 
 1. It was claimed during the hearing be- 
 fore the British Parliamentary Committee in 
 1869, that this system was copied from the 
 system of voting which had been adopted in 
 the town of iMaryport in Cumberland (Eng- 
 land). 
 
 2. It is interesting to note that a similar
 
 AUSTBALIAN BALLOT SYSTEM 93 
 
 method of conducting elections had been ad- 
 vocated in this State by the "Know-Nothing" 
 Party in 1850-51. 
 
 Section 30. General Characteristic of the 
 Australian Ballot System 
 
 The two great features of the Australian 
 ballot system are the furnishing of the bal- 
 lots by the government and secrecy of voting. 
 
 ''The essential feature of the plan is that 
 all candidates in the field for any office shall 
 be placed on one ballot, and the voter com- 
 pelled to indicate his preference by a mark 
 against one ; thus forcing him to think per- 
 sonally concerning each one, inviting to inde- 
 pendence of judgment, breaking down the 
 tyranny of the party vote, and putting some 
 intelligence into the 'brute vote' even though 
 the name of the party of each candidate is 
 added." 1 
 
 The Australian ballot is supposed to accom- 
 plish two great results: (1) Prevent the 
 intimidation of the honest voter; and (2) 
 decrease bribery in elections by rendering it 
 impossible to be known whether the voter 
 who has sold his vote actually votes the way 
 he has been bribed to vote. 
 
 Note 
 
 1. Americana, Volume II.
 
 94 ELECTION LAWS 
 
 Section 31. Form of the Australian Ballot 
 
 Two general forms of the Australian bal- 
 lot are to be found in this country. The first 
 American law passed on this subject (that 
 of Massachusetts) provided that the candi- 
 dates for office should be grouped according 
 to the office for which they were candidates, 
 and the names of the candidates in each group 
 arranged alphabetically. Under this form of 
 the ballot it is not possible to A^ote a straight 
 party ticket by making a single cross. This 
 form of the ballot carries out the idea of the 
 Australian ballot to the extreme, and 
 although the example of Massachusetts has 
 been followed by some States, this is further 
 than most States seem willing to go. The 
 most common form of the Australian ballot 
 is the one where the names of the candidates 
 are arranged in party columns, and which 
 permits a voter to vote the straight ticket of 
 his party by putting a cross in the "circle" 
 at the head of the column. Under some of 
 the earlier Australian ballot laws the names 
 of the candidates of the different parties were 
 printed on separate ballots, all to be fur- 
 nished by the State. Such a law can hardly 
 be said to provide for the true Australian 
 ballot system. 
 
 In some States a special distinguishing
 
 AUSTRALIAN BALLOT SYSTEM 95 
 
 party device or emblem is printed at the head 
 of each party column, in other States this is 
 lacking. In some States the cross must be 
 placed at the left of the names of the candi- 
 dates for whom the voter votes, and in other 
 States at the right of such names. 
 
 The general characteristics of the two kinds 
 of Australian ballots will be seen from the 
 following samples of ballots used in Massa- 
 chusetts and in Illinois : 
 
 (Form of Massachusetts Ballot) (1) 
 
 OFFICIAL BALLOT FOR PRECINCT ONE, 
 
 WARD ONE OF CAMBRIDGE, 8TH 
 
 NOVEMBER, 1887 
 
 For Governor 
 
 VOTE FOE ONE 
 
 Oliver Ames of Easton 
 
 Eepublican 
 
 William Earle of Worcester 
 
 Prohibition 
 
 Henry B. Levering of Lynn 
 
 Democrat 
 
 For Lieutenant-Governor 
 
 VOTE FOR ONE 
 
 John Blackmer of Springfield 
 
 Prohibition 
 
 John Q. A. Brackett of Arlington 
 
 Eepublican
 
 96 KJ.E< TIOX I.AW8 
 
 Walter Cutting of Pittsfield 
 Democrat 
 
 For Secretary of the Commonwealth 
 
 VOTE FOR ONE 
 
 Amos E. Hall of Chelsea 
 
 Prohibition 
 
 John F. MuriDhy of Lowell 
 
 Democrat 
 
 Henry B. Peirce of Abington, 
 
 Republican 
 
 For Treasurer and Receiver-General 
 
 VOTE FOE OXE 
 
 Alanson W. Beard of Boston 
 
 Republican 
 
 John L. Kilton of Lee 
 
 Prohibition 
 
 Henry C. Thacher of Yarmouth 
 
 Democrat 
 
 For Auditor of Accounts 
 
 VOTE FOE ONE 
 
 William F. Cook of Springfield 
 
 Democrat 
 Charles R. Ladd of Springfield 
 
 Republican 
 
 Edmund M. Stone of Hudson 
 
 Prohibition
 
 AUSTKALIAN BALLOT SYSTEM 97 
 
 For Attorney- General 
 
 VOTE FOR ONE 
 
 Allen Coffin of Nantucket 
 
 Prohibition 
 
 John W. Corcoran of Clinton 
 
 Democrat 
 
 Andrew J. Waterman of Pittsfield 
 
 Republican 
 
 For Executive Councillor, Third District 
 
 VOTE FOR ONE 
 
 Robert Luce of Somerville 
 
 Democrat 
 
 Ebenezor N. McPherson of Boston 
 
 Republican 
 
 John S. Paine of Cambridge 
 
 Prohibition 
 
 For County Commissioner 
 
 VOTE FOR ONE 
 
 Joseph W. Barber of Sherborn 
 
 Prohibition 
 
 J. Henry Read of Westford 
 
 Republican 
 
 James Skinner of Woburn 
 
 Democrat 
 
 For Senator, Third Middlesex District 
 
 VOTE FOR ONE 
 
 George W. Gale of Cambridge 
 Democrat
 
 98 ET>Er'TTON LAWS 
 
 Chester W. Kingsley of Cambridge 
 Prohibition 
 
 For Representatives to the General Court, 
 First Middlesex District 
 
 VOTE FOE TWO 
 
 Walter H. Marble of Cambridge 
 
 Prohibition 
 
 Isaac McLean of Cambridge 
 
 Democrat 
 
 George A. Perkins of Cambridge 
 
 Democrat 
 
 John Reed of Cambridge 
 
 Democrat 
 
 Chester F. Savage of Cambridge 
 
 Republican 
 
 "Will A. Start of Cambridge 
 
 Prohibition 
 
 Question Submitted to the Vote of the People 
 
 Shall licenses be granted for the sale 
 of Intoxicating Liquors in this city? 
 
 Yes 
 
 No 
 
 The following form is prescribed by the 
 
 Illinois statutes: 
 
 **As nearly as practicable the ballot shall 
 
 be in the following form :
 
 AFSTEALIAN BALLOT SYSTEM 
 
 99 
 
 Republican 
 
 For Governor 
 JOSEPH W. FTFER 
 
 For Lieutenant-Governor 
 LYMAN B. RAY 
 
 For Secretary of State 
 L. N. PEARSON 
 
 
 
 
 
 Democratic 
 
 For Governor 
 
 JOHN M. PALMER 
 
 For Lieutenant-Governor 
 ARTHUR J. BELL 
 
 For Secretary of State 
 NEWELL 1). RICKS 
 
 Prohibition 
 
 For Governor 
 DAVID H. HARTS 
 
 For Lieutenant-Governor 
 JOS. L. WHITLOCK 
 
 For Secretary of State 
 JAMES R. HANNA 
 
 (And continning in like manner as to all can- 
 didates to be voted for at such election.) "
 
 ]00 ELECTION LAWS 
 
 Notes 
 
 1. From Wigmore's "Australian Ballot 
 
 System." 
 
 Section 32. Constitutionality of Australian Ballot 
 System 
 
 The constitutionality of the Australian bal- 
 lot system, in general, is now well established, 
 having been upheld by a long line of de- 
 cisions.^ 
 
 In Independence Party Nomination,^ how- 
 ever, the court held: "It is never to be 
 overlooked . . . that the requirement of 
 the use of an official ballot is a questionable 
 exercise of legislative power and even in the 
 most favorable view treads closely on the 
 border of a void interference with the indi- 
 vidual elector. Every doubt, therefore, in 
 the construction of the statute must be 
 resolved in favor of the elector." 
 
 The constitutionality of a number of spe- 
 cial provisions in Australian ballot laws have 
 been passed upon by the courts. 
 
 In Oughton vs. Black^ the provision of the 
 law allowing voters who wish to vote a 
 straight party ticket to do so by putting a 
 cross in the circle at the top of the party 
 column, was held valid and not in violation 
 of the provision of the Pennsylvania Consti-
 
 AUSTEALIAN BALLOT SYSTEM IQl 
 
 tution, that *' elections shall be free and 
 equal. ' ' 
 
 In Cole vs. Tucker,^ it was decided in Mas- 
 sachusetts that a provision in the law making 
 it compulsory in the election of city officers 
 and optional in the election of town officers, 
 did not make such law unconstitutional as 
 unequal in its operation upon the rights of 
 voters. 
 
 Provisions that only the names of candi- 
 dates of parties which received a certain per 
 cent of the votes cast at the last general elec- 
 tion and of candidates who filed independent 
 petitions signed by a designated number of 
 voters shall be placed upon the ballot, is 
 constitutional.^ 
 
 A statutory provision, which prevents a 
 voter from writing in, on the official ballot, 
 the name of a candidate for whom he desires 
 to vote, has been held not to be unconstitu- 
 tional when the voter had the same right as 
 every other voter to secure, or to aid in 
 securing, the printing of the name of his 
 candidate upon such official ballot.® 
 
 But, in Rogers vs. Jacob,'^ it was held that 
 a statute requiring each voter to retire to a 
 compartment and there, alone and unaided, 
 indicate by a mark on his ballot the various 
 candidates for numerous offices he wishes to
 
 102 ELECTION LAWS 
 
 vote for, practically operates to deprive those 
 unable to read or write of a free and intelli- 
 gent choice, and is to that extent invalid on 
 the ground that illiterate persons have the 
 right to avail themselves of whatever reason- 
 able aid and information may be necessary 
 to enable them to cast their ballots under- 
 standingly. 
 
 In Detroit vs. Rush,^ the court said: "It 
 is objected that the law deprives those who 
 cannot read, the blind, and cripples who can- 
 not walk, of the opportunity and means of 
 voting. If such were the effect, the law 
 would clearly be void, for they are given this 
 right by the Constitution. We are cited to 
 Rogers vs. Jacob, 88 Ky., 502, as a case in 
 point. But the statute there under consid- 
 eration provided that the voter must resort 
 to the booth, and there, 'alone and unaided,' 
 prepare his ballot. It is contended that 
 under the act in question the result is the 
 same, because no one is permitted to accom- 
 pany the voter to the booth to assist him. 
 It is to be regretted that the Legislature did 
 not expressly provide for furnishing ballots 
 to this class of voters. We must, therefore, 
 carefully examine the act to ascertain if it 
 leaves no way for such voters to obtain bal- 
 lots. It is clear that if voters are limited to
 
 AUSTEALIAN BALLOT SYSTEM 103 
 
 the use of tickets provided in the booths, then 
 some voters are disfranchised by the very 
 terms of the law. But we do not think that 
 the law necessarily bears that construction. 
 There is no express prohibition against as- 
 sisting such a person in the preparation of 
 his ticket, nor against his obtaining a ticket 
 outside the polling place for that purpose, 
 nor against assisting to a booth or the polls 
 one physically unable to go alone. Such a 
 case is not within the mischief aimed at, and 
 we hold that under this law such a voter is 
 entitled to receive assistance in the prepara- 
 tion of his ticket, and to receive and have his 
 ticket prepared outside the polling places. 
 This, we think, is in accord with that maxim 
 of interpretation that a thing which is within 
 the spirit of a statute is within the statute, 
 although not with the intention. ' ' 
 
 Notes 
 
 1. State vs. Boston, 59 Ohio St. 122 ; State 
 vs. McMillan, 108 Mo. 153; Oughton vs. 
 Black, 212 Pa. St. 1 ; Taylor vs. Bleakley, 55 
 Kan. 1 ; Atty. General vs. May, 99 Mich. 538 ; 
 Detroit vs. Rush, 82 Llieh. 532. 
 
 2. 208 Pa. St. 108. 
 
 3. 212 Pa. St. 1 ; Todd vs. Election Comm., 
 104 Mich. 481 ; but contra Eaton vs. Brown, 
 96 Cal. 365.
 
 104 ELECTION LAWS 
 
 4. 164 Mass. 486. 
 
 5. Miner vs. Olii, 159 Mass. 487. 
 
 6. Chamberlain vs. Wood, 155 Dak. 216. 
 
 7. 88 Ky. 502. Note American and Eng- 
 lish Annotated Cases, Vol. IV, p. 146. 
 
 8. 82 Mich. 541. 
 
 Section 33. Effect of Irregularities in Preparing 
 Official Ballot upon the Validity of Votes Cast 
 
 The general principle of law is that inno- 
 cent voters should not ordinarily be deprived 
 of their right to vote, through the mistakes 
 or misconduct of the officials whose duty it is 
 to prepare the official ballots.^ This is true 
 even although the officials may themselves be 
 criminally liable for their actions in the 
 matter.^ 
 
 In Blackmer vs. Hildreth^ the court said on 
 this general question : 
 
 ''This must be borne in mind in the con- 
 struction of such statutes, and the presump- 
 tion is that they are enacted to prevent fraud 
 and to secure freedom of choice, and not by 
 technical obstructions to make the right of 
 voting insecure. The provisions above cited 
 with reference to the preparation of the bal- 
 lot are plainly limited and confined to that 
 purpose. They are binding upon the officers 
 for whose guidance and direction they are
 
 AUSTRALIAN BALLOT SYSTE:\r 105 
 
 needed. If it be seasonably objected to a 
 nomination paper that it was not filed within 
 the time required by section 145, or that the 
 provisions of sections 141 and 142 have not 
 been complied with, it is the duty of the 
 proper board to inquire into and settle the 
 question, and to sustain the objection if 
 found to be true, and reject the paper. So 
 far as respects their decision these provisions 
 are mandatory. AVlien the decision is made 
 it is final, and a ballot made up in accordance 
 therewith is not thereby made illegal. And 
 in the same way the action of the town clerk, 
 at least in the absence of fraud and corrup- 
 tion, as to the papers to which no objection 
 is made, must be regarded as final so far as 
 respects the ballot which he prepares. 
 
 "But with the preparation of the ballot, 
 the influence of these provisions ends. If 
 there be irregularities like those in this case 
 they do not accompany the ballot and taint it 
 in the hands of the voter. This view of the 
 statute gives due weight and scope to the pro- 
 visions in question, and preserves the sanctity 
 of the right of suffrage and its free and hon- 
 est exercise. To hold otherwise would be to 
 lose sight of the purpose for which these pro- 
 visions were made, namely, to provide the 
 method and time for the preparation of the
 
 106 ELECTION LAWS 
 
 ballot, and would subject our elections to 
 intolerable and perplexing technicalities in no 
 way material to the substantial merits of the 
 controversy or to the freedom and result of 
 the action of the voters. Its natural tendency 
 would be to thwart rather than to secure a 
 true expression of the popular will." 
 
 The improper insertion or omission of 
 names of candidates will not invalidate the 
 ballots cast.^ The same rule applies in the 
 case of the omission of a party emblem, or 
 the insertion of a prohibited emblem.^ 
 
 Irregularities in the indorsement of ballots 
 by certain designated officials have also been 
 held not to invalidate the ballots cast.'' 
 
 In Dale vs. Irwin •' it was held that where 
 case where a county clerk, who was a candi- 
 date for re-election, fraudulently caused the 
 names of certain persons to be illegally 
 placed upon the ballots as candidates, bal- 
 lots cast could not be counted in his favor. 
 
 Ballots will not be counted where the ir- 
 regularities are such as by statute are de- 
 clared to invalidate the ballot, or are such 
 as serve as distinguishing marks. ^ 
 
 In Dale vs. Irwin " it was held that where 
 the owner of the building where a polling 
 place had been located refused to permit the 
 building to be used for this purpose and the
 
 ATTSTRALTAN BALLOT SYSTEM 107 
 
 election officials moved the polls to another 
 building 50 or 100 feet away and the election 
 was held there in plain sight of the adver- 
 tised polling place, that the election was not 
 invalidated. 
 
 Notes 
 
 1. Montgomery vs. Henry, 144 Ala. 629, 6 
 Ann. Cas. 965, 1 L. R. A. N. S. 656; Smith vs. 
 Harris, 18 Colo. 274, 32 Pae. Rep. 616 ; State 
 vs. Saxon, 30 Fla. 668, 12 So. Rep. 218, 18 L. 
 R. A. 721, 32 Am. St. Rep. 46 ; see Territory 
 vs. Kanealii, 17 Hawaii 243, 7 Ann. Cas. 837 ; 
 Baker vs. Scott, 4 Idaho 596, 43 Pac. Rep. 76 ; 
 :Murphy vs. Battle, 155 111. 182, 40 N. E. Rep. 
 470; Sehuler vs. Hogan, 168 111. 369, 48 N. E. 
 Rep. 195 ; Perkins vs. Bertrand, 192 111. 58, 61 
 N. E. Rep. 405, 85 Am. St. Rep. 315 ; Rexroth 
 vs. Schein, 206 111. 80, 69 N. E. Rep. 240. See 
 also Hodge vs. Linn, 100 111. 397; Gill vs. 
 Shurtlegg, 183 111. 440, 56 N. E. Rep. 174. 
 Compare Harvey vs. Cook County, 221 111. 
 76, 77 N. E. Rep. 424 ; Jones vs. State, 153 Ind. 
 440, 55 N. E. Rep. 229, 74 Am. St. Rep. 305 ; 
 Cook vs. Fisher, 100 Iowa 27, 69 N. AV. Rep. 
 264; Ogg vs. Glover, 72 Kan. 247, 83 Pac. 
 Rep. 1039 ; State vs. Norris, 37 Neb. 299, 55 
 N. W. Rep. 1086 ; Esquibel vs. Chaves, 12 N. 
 Mex. 482, 78 Pae. Rep. 505; State vs. Millar 
 (Okla. 1908), 96 Pac. Rep. 830; Kulp vs. 
 Railey, 99 Tex. 310, 89 S. W. Rep. 957.
 
 108 ELECTION LAWS 
 
 2. Jones vs. State, 153 Ind. 440, 55 N. E. 
 Rep. 229. 
 
 3. 181 Mass. 29, 63 N. E. Rep. 14. 
 
 4. Peabody vs. Nurcli et aL, 75 Kan. 543; 
 Rexroth vs. Schein, 206 111. 80, 69 N. E. Rep. 
 240; State vs. Franshan, 19 Mont. 273, 48 
 Pac, Rep. 1. 
 
 5. Jones vs. State, 153 Ind. 440. 55 N. E. 
 Rep. 229. 
 
 6. Parvin vs. Winberg, 130 Ind. 561, 30 X. 
 E. Rep. 790 ; Horning vs. Board of Canvassers, 
 119 Mich. 51, 77 N. W. Rep. 446. 
 
 7. 51 S. W. Rep. 428. 
 
 8. Cross vs. Keathly (Tenn.), 105 S. W. 
 Rep. 854. 
 
 9. 78 111. no. 
 
 Section 34. Form of the Cross 
 
 All the Australian ballot laws provide that 
 the voter shall express his choice by means 
 of a cross made opposite the name of the 
 candidate for whom he intends to vote. 
 
 The courts have always been very lenient 
 in their rulings as to what will be considered 
 as being the required cross. If, however, a 
 mark bears no possible resemblance to a 
 cross; or is evidently as a distinguishing 
 mark,^ the ballot cannot be counted. 
 
 In Rexroth vs. Schein- the court was called 
 upon to pass upon the legal sufficiency of the
 
 AUSTKALIAN BALLOT SYSTEM IQf) 
 
 three following marks, which appeared 
 within the circles of three different ballots: 
 
 The first ballot was rejected, but the sec- 
 ond and third were counted, the court say- 
 ing: "The marks were made with ink, and 
 while it is somewhat blurred and cannot be 
 said to be a cross, strictly speaking, still we 
 think it shows an attempt on the part of the 
 voter to make such a mark," and was, there- 
 fore, properly counted. 
 
 In Apple vs. Barcroft^ the Supreme Court 
 of Illinois again passed upon the sufficiency 
 of various marks found on some of the bal- 
 lots cast in an election, as follows : 
 
 "Ballot numbered 1, so counted for ap- 
 l^ellee, contains no cross in the appropriate 
 place, opposite the name of appellee, or pre- 
 ceding the appellation or title of the party of 
 which he was the candidate. There are two 
 lines commencing in the circle, preceding 
 said ai^pellation or title, drawn with a lead 
 pencil nearly perpendicularly through said
 
 IIQ ELECTION LAWS 
 
 circle and through each of the squares oi)po- 
 site the names of the candidates. These lines 
 were at some points coincident and at others 
 separated. There was no cross, nor any- 
 thing approaching one, in the circle, or in 
 the square opposite appellee's name, as the 
 statute required, to indicate an intention of 
 the voter to vote for him or any one else. 
 The statute must be substantially complied 
 with. To permit the voter to substitute some 
 other method of his own of marking his bal- 
 lot, to express his choice, for the one pro- 
 vided, would practically nullify the statute. 
 It would not only lead to uncertainty in ascer- 
 taining the voter's intention, but would de- 
 stroy the secrecy of the l)allot, by means of 
 distinguishing marks, by which the ballot of 
 each voter could be identified. There was in 
 this instance no such compliance with the 
 statute by the voter as contemplated by its 
 provisions, and the county court erred in 
 counting this ballot for appellee. Ballot 
 numbered 2 shows a cross, thus 'X,' not in 
 the square or apju'opriate jilace o])i)osite the 
 name of appellant, but to the right of appel- 
 lant's name, between such name and the 
 square opposite the name of appellee. AVhile 
 there was some plausibility in the contention 
 of appellant that the way in which this bal-
 
 AUtSTKALlAiN BALLOT SYSTEM m 
 
 lot was marked showed that it was the inten- 
 tion of the voter to vote for appellant, still, as 
 was held in the case of Parker vs. Orr (de- 
 cided at the present term of this court), 41 N. 
 E. 1002, it cannot be held a sufficient compli- 
 ance with the statute. It is clear from the 
 statute and the form of ballots prescribed that 
 the appropriate place for the cross is in the 
 circle or square preceding the title or name, 
 and not some blank space discovered by the 
 voter at the right of such title or name. As 
 to the ballot in question, as the cross is be- 
 tween the names of the appellant and ap- 
 pellee, being at the right of the former, and 
 at the left of the latter, the only reason for 
 supposing that the elector intended to vote 
 for appellant, rather than for appellee, is 
 that the cross is nearer appellant's than ap- 
 pellee's name. To hold such a ballot as one 
 cast for either candidate would be mere guess 
 work. Ballot numbered 3 shows mere pencil 
 erasures of the name of appellant and all 
 other names on the same ticket. No argu- 
 ment or authority is needed to show that the 
 trial court ruled correctly in refusing to count 
 this ballot for either party." 
 
 An unusually heavily marked cross will not 
 invalidate the ballot.^
 
 112 ELECTION LAWS 
 
 Notes 
 
 1. See Section 36. 
 
 2. 206 111. 80. 
 
 3. 158 111. 649, 41 N. E. 1116. 
 
 4. Rexroth vs. Shein, 206 111. 80 yo N. E. 
 Rep. 240. 
 
 Section 35. Validity of Vote as Depending Upon 
 Place of Mark for Candidate 
 
 While ballots are not necessarily to be 
 disregarded because not marked in exact ac- 
 cordance with the directions of the statute/ 
 still a ballot will not be counted for any can- 
 didate unless so marked as to clearly show 
 for which candidate it was intended to be 
 cast.^ 
 
 In State ex rel. Grain vs. Acker^ the case 
 involved the right to an office for which the 
 litigants were candidates. The respondent, 
 Acker, had a majority of sixteen of the con- 
 cededly valid ballots, Imt there were forty 
 ballots marked in the following manner: 
 For 
 
 County Super- 
 intendent of 
 Schools. 
 Vote for One. 
 EUBY M. ACKER, 
 A Non-Partisan
 
 AUSTKALIAN BALLOT SYSTEM 113 
 
 Superintendeiicy [ ] 
 
 Edward P. Grain, 
 E. P. GRAIN, 
 A Non-Partisan 
 Suioerintendency [ ] 
 
 [X] 
 
 Tlie relator, Acker, claimed that these forty 
 ballots should have been counted for him; 
 the court, however, held that the ballots were 
 properly rejected. 
 
 There are a number of other decisions hold- 
 ing that a cross so placed on the ballot should 
 not be counted for any candidate."* 
 
 The law on this subject is thus summed up 
 in Flanders vs. Roberts.^ "The rule to be 
 applied is this : If the intent of the voter can 
 be fairly determined, effect shall be given to 
 that intent and the vote counted in accord- 
 ance therewith. This is the rule originally 
 laid down in re Strong 20 Pick (Mass.) 484, 
 and continued under the Australian ballot 
 system in acts which are now R. L. c. 11, 
 Sec. 238, providing that if the voter's choice 
 cannot be determined, his ballot shall not be 
 counted ; and this has been recognized in this 
 commonwealth in all the reports of commit- 
 tees of the legislature on which it has acted 
 in deciding questions of this kind involved in 
 the election of its members. It must be taken
 
 114 KLECTION LAWS 
 
 to be established that where a cross is put in 
 the square o])posite the blank space left for 
 the insertion of a name of a candidate for 
 the voter, and nothing more appears, the bal- 
 lot is not to ])e counted as a ballot for the can- 
 didate whose name is printed next above that 
 space." 
 
 It has even been held that a cross thus 
 placed is a "distinguishing mark" and will 
 invalidate the entire ballot.*' 
 
 It has been held that when the lines of the 
 X cross in the square the fact that such lines 
 extend beyond the square will not invalidate 
 the vote." Thus it was hekl in Illinois, in the 
 case of Parker vs. Orr,^ that the statutory 
 provision that the voter shall prepare his bal- 
 lot by marking in the appropriate margin or 
 place a cross opposite the name of the candi- 
 date, for whom he desires to vote is merely 
 directory, and does not render invalid ballots 
 which show on their face that the voters at- 
 tempted to make a cross in the proper place, 
 but did not fully succeed in doing so. 
 
 In rendering this opinion the Court said: 
 
 "It has always l)een held in this state that 
 if the intention of the voter can be fairly as- 
 certained from his ballot, though not in strict 
 conformity with the law, effect will be given 
 to that intention. In other words, that the
 
 AUSTKALIAX BALLOT SYSTEM 115 
 
 voter shall not be disfranchised or deprived 
 of his right to vote through mere inadver- 
 tence, mistake, or ignorance, if an honest in- 
 tention can be ascertained from his ballot." 
 
 Notes 
 
 1. State ex rel Grain vs. Acker, 142 Wis. 
 394; 125 N. W. 952. 
 
 2. Sweeney vs. II Jul. 23 Nev. 409, 48 Pac. 
 Rep. 1036 ; State vs. Peter, 21 Wash. 243, 57 
 Pac. Rep. 814. 
 
 3. 142 Wis. 394, 123 X. W. 952. 
 
 4. Kerr vs. Flewelling, 235 111. 325, 88 
 N. E. 624; Patterson vs. People, 65 111. App. 
 651; O'Connell vs. Mathews, 177 Mass. 518, 
 59 N. E. Rep. 195 ; Carnile vs. Jones, 31 Mont. 
 
 590, 101 Pac. Rep. 153. 
 
 5. 182 Mass. 524, 65 N. E. Rep. 902. 
 
 6. Voorhees vs. Arnold, 1083 a 77, 78 N. 
 W. Rep. 795. 
 
 7. Parker vs. Orr, 158 111. 609, 41 N. E. 
 Rep. 1002. See also McKinnon vs. People, 110 
 111. 305 : Berbrensmeyer vs. Krertz, 135 111. 
 
 591, 26 N. E. 704. 
 
 8. 158 in. 609, 41 N. E. Rep. 1002. 
 
 Section 36. Distinguishing Marks 
 
 The principal object of the Australian bal- 
 lot system being to secure the secrecy of tlie 
 ballot, it* naturally follows that, as a general 
 principle of law, any mark either upon the
 
 116 ELECTION LAWS 
 
 lace or the back of a ballot, by which the per- 
 son voting it might be identified, will invali- 
 date the ballot. 
 
 It is often a difficult question, however, to 
 determine what is sufficient to constitute a 
 distinguishing mark. 
 
 If a mark of any kind is accidentally made 
 upon a ballot, this should not be considered 
 as a distinguishing mark, and as invalidating 
 the ballot.^ Thus it has been said:- 
 
 "xVll voters are not alike skillful in mark- 
 ing. Some are not accustomed to using a pen 
 or pencil, and may place some slight mark on 
 the ballot inadvertently, or a cross first made 
 may be clumsily retraced. It is evident that 
 in such cases, and in others where the unau- 
 thorized mark is not of a character to be used 
 readily for the purpose of identification, the 
 ballots should be counted, but where the un- 
 authorized marks are made deliberately, and 
 may be used as a means of identifying the 
 ballot, it should be rejected." 
 
 The same rule is generally applied when 
 the accidental mark is found upon the back 
 of the ballot. Thus in Eutledge vs. Craw- 
 ford" it was held that: "The fact that on 
 the back of a ballot, otherwise regular, is a 
 faint type impression of the face of a similar 
 ticket, caused by there having been too much
 
 AUSTEALIAX BALLOT SYSTEM II7 
 
 ink on the type, or that there is a small piece 
 of red sealing wax, or a stain, as from a drop 
 of oil, does not, in the absence of evidence of 
 unlawful intent in causing the impression, 
 make the ballot illegal, within the meaning 
 of Pol. Code, Sections 1206, 1207, which jDro- 
 vide that a ballot must be rejected if it bears 
 on the outside any impression, device, color, 
 or thing 'designed' to distinguish it from 
 other legal ballots, or 'intended' to designate 
 or impart knowledge of the person who 
 voted it." 
 
 "If an elector use ink to scratch names 
 from his ballot, and by that means the ballot 
 becomes discolored, such discoloration is not 
 a mark upon the ballot which will authorize 
 the judges of election to refuse to count the 
 vote, for it is not designated to distinguish 
 it from other ballots, or to impart knowl- 
 edge of the person who voted it."^ 
 
 Among various ballots which have been de- 
 clared void on account of a distinguishing 
 mark, are the following : 
 
 "A ballot having, in addition to stamps 
 in the squares opposite the names of candi- 
 dates, a stamp in a square opposite to which 
 there is no candidate, but merely a blank left 
 for a certain office, or having more than one
 
 118 ELECTION LAWS 
 
 stam]i in the square at the lioad of a ]iarty's 
 list.^ 
 
 A ballot having a pencil mark across the 
 name of a candidate violates such statute, as 
 does one properly stamped, except that a 
 stamp opposite the name of a candidate was 
 erased so that a hole was made through the 
 ticket.^ 
 
 A ballot bearing within one of the large 
 squares a distinct marking, as with a ]iencil, 
 about one-fourth of an inch wide and five- 
 sixteenths of an inch long, in addition to the 
 voter's stamp." 
 
 Ballots marked with a cross consisting of 
 more than two intersecting straight lines.^ 
 
 A ballot which has a cross under the head- 
 ing of one ticket outside the square, and the 
 square inclosed in a large circle.'^ 
 
 Perhaps the plainest case of all as to a dis- 
 tinguishing mark, is where a voter signs his 
 ballot. Such ballots are always void.^" 
 
 In Tebbe vs. Smith, ^^ the writing of the 
 letter ''J" on the ballot was held to invali- 
 date it. 
 
 Notes 
 
 1. People vs. Parkhurst. 5:^ X. Y. Supp. 
 598; McMahon vs. Polk, 105 D. 296. 
 
 2. Whittan vs. Zahorik. 91 Iowa 23. 
 
 3. 91 Cal. 526, 27 Pac. Rep. 779.
 
 AUSTRALIAN BALLOT SYSTEM HQ 
 
 4. \Yyinau vs. Lemon, 51 Cal. 273. 
 
 5. Sego vs. Stoddard, 186 liid. 297, 3G N. 
 Y. 204. 
 
 6. Id. 
 
 7. Zeis vs. Passwater, 142 Iiid. 375, 41 
 N. E. Kep. 796. 
 
 8. Whittaii vs. Zaliorik, 91 Iowa 23. 
 
 9. Ellis vs. Glaser, 102 Mieh. 396, 61 N. 
 W. Rep. 648. 
 
 10. Vallier vs. Brakke, 7 S. D. 343, 64 N. 
 W. 180; Parker vs. Orr, 158 111. 609 ; Penning- 
 ton vs. Hare, 60 Minn. 146. 
 
 11. 108 Cal. 101, 41 Pac. Rep. 454. 
 
 Section 37. Marking a Straight Ballot and a Split 
 Ballot 
 
 Under the Massachusetts form of the Aus- 
 tralian ballot there is no difference between 
 the method to be observed in marking a 
 straight ballot and a split l)a]lot. In either 
 ease the voter must place his cross beside 
 the name of each candidate for whom he de- 
 sires to vote. 
 
 Where, however (as for example, in Illi- 
 nois), tlie names of candidates are arranged 
 in party columns, it becomes possible to vote 
 a straight party ticket by placing a cross in 
 the circle at the head of the column. 
 
 A "split" ticket may be voted in either 
 of two ways. The simplest and safest way
 
 120 ELECTION LAWS 
 
 is for the voter to (lisrogarcl tlio circle and 
 to vote for each candidate separately. He 
 may, however (in most States), put his cross 
 in the circle of oiu> party, and place a cross 
 opposite the name of such candidates of other 
 parties as he may desire to vote for. A 
 ballot so marked will be counted for all the 
 candidates of the party in whose circle the 
 cross has been placed, except those candi- 
 dates who are candidates for positions, for 
 which a candidate of some other party is 
 marked. If more than one person is to be 
 elected to a certain position a voter who de- 
 sires to split his ticket must vote for all the 
 candidates for the position for whom he de- 
 sires his vote to be counted. For example, 
 if ten are to be elected to the position of 
 County Commissioner, and a voter makes a 
 cross in the Democratic circle, and in front 
 of the names of one Republican candidate for 
 Count}^ Commissioner, this ballot cannot be 
 counted for any of the Democratic candidates 
 for County Commissioner. 
 
 Section 38. Number of Tim^ Name of a Candi- 
 date May Appear on the Ballot 
 
 Under election laws which provide that the 
 names of candidates for office shall be 
 grouped in columns, by parties, the name of a
 
 AUSTRALIAN BALLOT SYSTEM 121 
 
 candidate may appear as many times on the 
 ballot as a candidate for a particular office, 
 as he has been nominated by different 
 parties.^ 
 
 In several States, however, where the 
 names of the candidates are arranged in 
 party colmnns, the statutes expressly pro- 
 hibit the name of a candidate appearing more 
 than once on the official ballot. Such statutes 
 have been held to be constitutional.- Thus, 
 in Todd vs. Election Commissioners,^ the 
 Court said : 
 
 "It is also insisted that the candidate has 
 the constitutional right to have his name ap- 
 pear upon the ticket of every party which in- 
 dorses him. It (the statute) gives every 
 candidate the right to have his name appear 
 upon the ticket once. Naturally, it belongs 
 in the column of that party with which he is 
 openly affiliated ; but if he chooses to have his 
 name attached to the ticket of some other 
 party, and that party does not object, he pos- 
 sesses that right. But I know of no reason 
 or authority for saying that any candidate 
 possesses the constitutional and inalienable 
 right to have his name appear more than once 
 upon the official ballot containing the tickets 
 of two or more political parties. The Aus- 
 tralian ballot contemplates that his name
 
 122 ELECTION LAWS 
 
 shall be there but once. It follows then that 
 every voter has a reasonable opportunity to 
 vote for him. This is the sole constitutional 
 right guaranteed him. He has no occasion to 
 find fault so long as he is permitted to have 
 his name upon the ballot upon such ticket as 
 he chooses, with the constitutional right fol- 
 lowing of an opportunity given to every 
 voter to vote for him, which he can do by 
 simply making two crosses instead of one." 
 
 Where the election laws of a State provide 
 that the candidates shall be arranged alpha- 
 betically under the title of the office for which 
 they are a candidate it is generally held that 
 the name of a candidate cannot appear more 
 than once on the ballot. In State vs. Allen^ 
 the court was called upon to construe the 
 following provision of the election laws of 
 the State of Nebraska : 
 
 ''Every ballot shall contain the name of 
 every candidate whose nomination for any of- 
 fice specified in the ballot has been certified 
 or filed according to the provisions of this 
 act, and no other names. The names of can- 
 didates for each office shall be arranged un- 
 der the designation of-the office in alphabeti- 
 cal order according to surnames, except that 
 the names of electors of President and Vice- 
 President of the United States presented in
 
 AUSTEALIAN BALLOT SYSTEM 123 
 
 one certificate of nomination shall be ar- 
 ranged in a separate group. Every ballot 
 shall also contain the name of the party or 
 principle which the candidate represents, as 
 contained in the certificate of nomination," 
 etc. Under this statute it was held that the 
 name of such candidate could appear once 
 only on the official and sample ballots, accom- 
 panied by such political or other designation 
 as corresponds to his nomination papers on 
 file with the proper officer. 
 
 Notes 
 
 1. Simpson vs. Osborn, 52 Kan. 328 ; Com- 
 monwealth vs. Richmond, 5 Pa. Dist. 647 ; 
 Fisher vs. Dudley, 74 Md. 242. 
 
 2. State vs. Bode, 55 Ohio State 224; but 
 contra ]\Iurphy vs. Curry, 137 Cal. 479. 
 
 3. 104 Mich. 474. 
 
 4. 43 Neb. 651. 
 
 Section 39. Writing- in Additional Names on 
 Ballot 
 
 Under the Australian Ballot System, every 
 voter has at all times the right to write in 
 additional names of persons for whom he 
 desires to vote. This is true whether or not 
 a line is left on the ballot, upon which to 
 write such names.
 
 124 ELECTIOX LAWS 
 
 This question was passed upon by the 
 Court in the case of Sanner vs. Patton,^ the 
 decision in wliich case was, in part, as follows : 
 
 ''This was a proceeding instituted by 
 Shields H. Sanner in the County Court of 
 Shelby County to contest an election for the 
 office of Commissioner of Highways of the 
 town of Penn held on the 3d day of April, 
 1894, wherein Robert A. Patton had been 
 declared elected. The defendant, Robert A. 
 Patton, put in an answer to the petition, and 
 on the hearing of the pleadings, and evi- 
 dence, the court entered a judgment dismiss- 
 ing the petition. 
 
 "The record in this case shows that Robert 
 A, Patton, the appellee, was nominated for 
 the office of a Commissioner of Highways and 
 his name placed upon the official ballot ; that 
 Sanner 's name was not printed or placed on 
 the official ballot, and that no ballot contain- 
 ing his name was furnished the voters at said 
 election. It is expressly stipulated in the rec- 
 ord that Patton was the only persons nomi- 
 nated as candidate for such office ; that 
 Shields H. Sanner was not nominated for 
 such office by any of the modes prescribed by 
 statute; that only one ticket was prepared 
 and printed by the Town Clerk, as follows :
 
 AUSTKALIAN BALLOT SYSTEM 125 
 
 Republican % 
 
 For Town Clerk 
 JOHN L. GREGORY 
 
 For Assessor 
 
 JAMES C. THOMPSON 
 
 For Collector 
 WELLS M. BECK 
 
 For Commissioner of Highways 
 R. A. PATTON 
 
 Justices of the Peace 
 E. B. CUTLER 
 IRA T. BAIRD 
 
 For Constables 
 
 D. R. CUTLER 
 
 E. T. ROBISON 
 
 Indorsement 
 
 ''Official Ballot of Annual Town Meet- 
 ing of Penn Township, Shelby County, 
 Illinois, April 3d, 1894. 
 
 ''R. BAND, 
 ''Town Clerk." 
 *'At the election 42 ballots were cast. Six- 
 teen of the 42 contained a cross in the large 
 circle on the ticket opposite the word 'Repub- 
 lican' and they were counted for Robert A. 
 Patton. One ballot had no mark in the large
 
 126 ELECTION LAWS 
 
 circle, but contained a cross in each of the 
 blocks opposite all the names on the ticket, 
 except the first one. It also appeared that 25 
 ballots were rejected by the judges of elec- 
 tion, being in the same form as the 17 above 
 referred to ; that 23 had the name of S. H. 
 Sanner written under the name of E. x\. Pat- 
 ton, in blank space between said Patton's 
 name and the words 'For Justice of the 
 Peace,' and a l)lock and X therein were placed 
 at the left of Banner's name. It was stipu- 
 lated in the trial that the 25 ballots were 
 rejected by the judges of election because the 
 name of Sanner was written on the ballots 
 for the office of Commissioner of Higliwa,vs ; 
 the judges holding that a voter had no right 
 to write Banner's name on an official ticket, 
 for the reason that he had not been nomi- 
 nated, and that by so doing the ticket was 
 void, and should be rejected by the judges of 
 election in canvassing the votes. 
 
 "It is apparent from Section 1 of the act 
 that all ballots to be used at the election are 
 required to be printed and furnished at pub- 
 lic exi3ense, and the use of all other bal- 
 lots is absolutely prohibited; and, if no sec- 
 tion of the act permitted the voter to change 
 the ballot by inserting the name of some per- 
 son whose name did not appear on the ticket
 
 AUSTEALIAN BALLOT SYSTEM 127 
 
 SO furnished, we would be inclined to hold 
 that the voter would be compelled to vote 
 the ticket as it was furnished to him, or be 
 denied the privilege of voting for any per- 
 son whatever. There are, however, other 
 sections of the act, which, when considered 
 in connection with Section 1, would seem to 
 indicate that the Legislature never intended 
 to restrict the voter to the persons whose 
 names were printed on the official ballot. 
 Section 21 of the act requires the officers 
 upon whom the duty is imposed of provid- 
 ing polling places to provide a sufficient num- 
 ber of booths, and the booths shall be fur- 
 nished with shelves, pens, penholders, ink, 
 blotters, and pencils, as will enable the voter 
 to prepare his ballot for voting. Each booth 
 is required to be three feet square, and con- 
 tain a shelf one foot wide, at a convenient 
 height for writing. If the voter, when he 
 receives a ballot and enters the booth, has no 
 authority to write the name of a candidate 
 on the ticket, and can do nothing but take a 
 ballot and make a cross in the circle, or a 
 cross opposite the names of such persons on 
 the ticket as he may wish to vote for, no 
 necessity exists for a shelf to write on, or 
 for ink, pens, and blotter. If the voter is 
 permitted to do nothing but make a cross on
 
 128 ELECTION LAWS 
 
 the ticket, as indicated, lie can do this with a 
 pencil in a moment, and no necessity exists 
 for the writing material required to be fur- 
 nished. But, independent of this section, we 
 think Section 23, which points out the mode 
 or manner of voting after the voter receives 
 the ballot, clearly confers upon the voter the 
 power to insert in the ballot the name or 
 names of such persons as he may desire to 
 vote for for any office to be filled at the elec- 
 tion, and vote for such persons. Upon ex- 
 amination of this section, it will be seen that, 
 if the voter desires to cast his vote for all 
 the candidates of one political party whose 
 names appear on the ticket, he may do so by 
 merely making an X in the circle printed 
 on the ticket, opposite the name of the politi- 
 cal party, and a vote of this character will 
 be counted for all the candidates on that 
 ticket. There is another mode. If the voter 
 does not desire to vote for all the candidates 
 whose names appear on the ticket of the 
 political party to which he belongs, he may 
 put a cross in the circle opposite the name 
 of his political party and then make an X 
 opposite the name of any candidate on any 
 one of the other tickets for whom he may 
 desire to vote, and the ballot will be counted 
 for any candidate before whose name the X
 
 AUSTEALIAN BALLOT SYSTEM 129 
 
 thus appears ; and, with this exception, it will 
 be counted for those candidates appearing be- 
 low the circle containing the X. There is 
 yet another mode, which in the language of 
 Section 23, is as follows: 'The voter shall 
 prepare his ballot by marking in the appro- 
 priate margin or place an X opposite the 
 name of the candidate of his choice for each 
 office to be filled, or by writing in the name 
 of the candidate of his choice in a blank 
 space on said ticket, making an X opposite 
 thereto.' Under this clause the voter may 
 pay no attention whatever to the circle, but 
 may place a cross opposite the name on the 
 ballot of any candidate whose name may be 
 on the ballot for whom he desires to vote, 
 and the ballot shall be counted for such can- 
 didate, or he may write the name of a candi- 
 date in the ballot and place an X opposite 
 the name, and the ballot shall be counted for 
 such person. 
 
 "It is claimed that Section 14 prohibits 
 the voter from writing on the ballot the 
 name of a person who has not been nomi- 
 nated. That section, as has been seen, in 
 substance, declares that the names of all per- 
 sons to be voted for shall be printed on one 
 ballot — all nominations of any political party 
 being placed under the party appellation, as
 
 130 ELECTION LAWS 
 
 designated in the certificates of nomination 
 — and the ballot shall contain no other name. 
 This section has reference to the duty of 
 those intrusted with preparing the ballot to 
 be placed in the hands of the judges of elec- 
 tion; but after the ballot has been prepared, 
 and placed in the hands of the judge? of elec- 
 tion, whether the voter may or may not add 
 the name of a candidate to the ballot is a 
 question upon which the section is silent. 
 Some importance is sought to be attached to 
 Section 26 of the act, which, in substance, 
 provides: No ballot without the official in- 
 dorsement shall be allowed to be deposited 
 in the ballot box, and none but ballots pro- 
 vided in accordance with the provisions of 
 this act shall be counted. As to this pro- 
 vision, it is sufficient to say that the addi- 
 tion of the name of one or more candidates 
 to a ballot by the voter does not destroy the 
 official indorsement on the ballot, nor does 
 the change render the ballot one prepared 
 contrary to the provisions of the act. On 
 the other hand, the ballot, after the change, 
 still retains the official indorsement, and is 
 still a ballot prepared at public expense, as 
 contemplated in the act. It is also said that 
 ample provision has been made in the act, 
 under which candidates mav be nominated,
 
 AUSTRALIAN BALLOT SYSTEM 131 
 
 and thus be entitled to have their names 
 placed on the ticket, and that it is the inten- 
 tion of the act that no vote should be cast 
 for a person who was not nominated. If 
 such was the intention, why did not the Legis- 
 lature say so, and why did it say directly the 
 contrary? What, it may be asked, is there 
 so sacred in the nomination of a candidate 
 for office by a political caucus that a voter 
 should be compelled to vote for a nominee of 
 the caucus, or else be deprived of the elec- 
 tive franchise! Under Section 1, Art. 7, of 
 our constitution, every male citizen of the 
 United States above the age of 21 years, 
 who has resided in the State 1 year, in the 
 county 90 days, and in the election district 
 30 days next preceding any election, is en- 
 titled to vote at such election. To exercise 
 this right there is one exception, and but one, 
 so far as we have been able to find ; and that 
 is found in Section 7 of the said article, which 
 declares : ' The General Assembly shall pass 
 laws excluding from the right of suffrage 
 persons convicted of infamous crimes.' 
 Adopting the well-known maxim or rule of 
 construction that the expression of one thing 
 is to be regarded as the exclusion of another, 
 the Legislature does not possess the power to 
 take away from a resident citizen the right
 
 132 ELECTION LAWS 
 
 of suffrage unless lie has been convicted of 
 an infamous crime, nor can the Legislature 
 do indirectly what they cannot do directly. 
 And yet, if the construction contended for by 
 appellee be the correct one, the voter is de- 
 prived of the constitutional right of suffrage ; 
 he is deprived of the right of exercising his 
 own choice; and where this right is taken 
 away there is nothing left worthy of the 
 name of the right of suffrage — the boasted 
 free ballot becomes a delusion. It will not 
 be necessary to extend the discussion. We 
 are satisfied that the Legislature, when they 
 adopted that part of Section 23 which au- 
 thorizes the voter to write the name of the 
 candidate of his choice in a blank space on 
 the ticket, making a cross opposite thereto, 
 did so advisedly, and for the purpose of pre- 
 serving the right of suffrage which belongs 
 to the voter." . 
 
 "In conclusion, we are of the opinion that 
 the ballots cast for S. H. Sanner were legal 
 ballots, and should have been counted for 
 him, and that the court erred in dimissing the 
 petition. The judgment will be reversed and 
 the cause remanded, with directions to enter 
 a judgment in favor of petitioner." 
 
 Notes 
 
 1. i:)5 111. :)r):l40 X. E. 290.
 
 CHAPTER VIII 
 
 VOTING MACHINES 
 Section 40. In General 
 
 The latest step in ballot reform has been 
 the introduction of voting machines in place 
 of written ballot. These machines are in- 
 tended to both register and count the votes. 
 It is claimed for these machines that they 
 lessen the chances of mistake in voting a 
 ticket, and make mistakes in counting the 
 ticket an impossibility. 
 
 ''Three varieties of the voting machine 
 have been legally sanctioned: (1) The 
 Myers, in which the single ballot is placed in 
 a frame having a push-knob for each can- 
 didate's name, the voter indicating his choice 
 by pushing the knob opposite his candidate's 
 name, when the machine indicates the vote 
 on a dial at the back of the frame, and locks 
 the knobs of all other candidates for the 
 same office (before a second voter is ready, 
 all knobs are unlocked) ; (2) the McTam- 
 many, which contains on its face a slot for 
 each office, beneath which is a card bearing 
 
 133
 
 134 ELECTION LAWS 
 
 the names of the candidates for the office seen 
 through the sk)t, the voter's choice being- 
 indicated by turning a wheel till the name 
 of his candidate appears, when he pushes a 
 knob which punctures the tally-sheet; and (3) 
 the Rhines, in which the names are arranged 
 as in the Myers, by parties and offices. Slip 
 names are inserted in the push buttons ; and 
 separate tally-sheets for each candidate, with 
 vertical serial numbers, are placed beneath 
 the face, the voter pushing a button which 
 places a punch in such a position for each 
 name that when the lid of the machine is 
 closed the next number on each tally-sheet is 
 punctured."^ 
 
 Notes 
 
 1. Americana, Volume II. 
 
 Section 41. Constitutionality of Laws Providing" 
 for the Use of Voting Machines in Elections 
 
 The constitutionality of laws providing for 
 the use of voting machines in elections has 
 been repeatedly upheld. 
 
 The Massachusetts Supreme Court,^ in 
 passing upon the question, said as follows: 
 "In construing a constitutional provision re- 
 quiring that representatives 'shall be chosen 
 by written votes' and an implied requirement 
 for sorting and counting votes, the Court
 
 VOTING MACHINES 135 
 
 said: 'It seems to us that the object and 
 even the words of the Constitution in requir- 
 ing "written votes" are satisfied when the 
 voter makes a change in a material object, 
 for instance, by causing a wheel to revolve a 
 fixed distance, if the material object changed 
 is so connected with or related to a written 
 or printed name purporting to be the name 
 of a candidate for office, that, by the under- 
 standing of all, the making of the change ex- 
 loresses a vote for the candidate whose name 
 is thus connected with the device. So far as 
 we liave been considering the requirement of 
 written votes alone, and have assumed that 
 all other constitutional conditions are com- 
 plied with. But it remains to consider 
 whether the result is changed by the pro- 
 visions as to sorting and counting votes 
 where those provisions apply. These seem 
 to us to raise less difficulty. The provisions 
 do not express a constitutional end ; they ex- 
 press merely assumptions that sorting and 
 counting will be necessary if you have writ- 
 ten votes, as they would have been necessary 
 a hundred years ago. . . . If it be 
 deemed technical!}^ necessary that the possi- 
 bility at least of sorting and counting should 
 remain, it does remain. Whether in the form 
 of successive punches in a line upon paper
 
 136 ELECTION LAWS 
 
 or ill the marked revolutions of a wheel ap- 
 propriated to a given candidate, material 
 changes abide which signify by predeter- 
 mined language the number of votes cast, 
 exactly to the same extent that it would be 
 signified by slips of paper bearing characters 
 in printer's ink. The votes could be counted 
 as cast, if it were necessary. They can be 
 counted afterwards as well. The fact that 
 the index of macliinery has cut down the 
 chance of personal error to a minimum surely 
 is not an objection sanctioned by the Con- 
 stitution.' " 
 
 In re Voting Machine- the Supreme Court 
 of Rhode Island likewise upheld this method 
 of voting: 
 
 "The primary meaning of 'ballot,' which 
 signified a little ball, is not the one intended, 
 but the broader meaning which has been sub- 
 stituted for the word by reason of the change 
 in the mode of voting, from little balls to 
 that of paper vote. The purpose of the Con- 
 stitution is evidently to provide a record 
 more permanent than that of counting hands 
 and the like, ))y which the declared result 
 may be verified. . . . We see no reason 
 why a choice may not be indicated as well 
 by a puncture of the pai)er as by a pencil 
 mark. Tlio language of the Constitution
 
 VOTING MACHINES 137 
 
 seems, to be broad enough to cover the pro- 
 posaL The purjjose of the Constitution is 
 subserved and the possibility of the change 
 of method is anticipated and provided for. 
 The essential thing to be secured is a record 
 of the choice of the voters, and this, wo 
 understand, will be secured by the method 
 proposed." 
 
 The Supreme Court of Illinois upheld such 
 a law in the case of Lynch vs. Malley et al.'' ; 
 citing with approval the Massachusetts case 
 and Rhode Island case above referred to. 
 Similar decisions have been rendered in a 
 number of other cases.^ 
 
 But in Helme vs. Board of Election Com- 
 missioners^ a law providing for a mixed use 
 of election machines and written ballots, in 
 the same precincts, was held to be unconsti- 
 tutional, as interfering with the secrecy of 
 the ballot. And in Nichols vs. Minton*'' the 
 Supreme Court of Massachusetts modified 
 its earlier decision' by holding the adoption 
 of voting machines to be unconstitutional 
 where the voter was compelled to trust every- 
 thing to the perfection of the machine. In 
 the later opinion, the Court said : 
 
 "But the method in detail is entirely un- 
 like the writing of a name of chosen candi- 
 dates upon a piece of paper, and the deposit
 
 138 ELECTION LAWS 
 
 of the paper in a box, to be afterwards taken 
 out and counted. In the use of the machine 
 the voter must trust everything to the per- 
 fection of the mechanism. He cannot see 
 whether it is working properly or not. This 
 chance of error, whether greater or less than 
 the chance that a ballot deposited in a box 
 will not be properly counted, is very different 
 from it. It was not within the knowledge or 
 contemplation of the framers of the Con- 
 stitution. . . . To a majority of the 
 Court, the adoption and use of a machine 
 which employs none of these methods, and 
 whose working and whose record of the re- 
 sult is invisible to the voter, seem so great 
 a departure from the method referred to in 
 the language of the Constitution as not to be 
 included within its broadest meaning. Even 
 if the principal objects to be accomplished by 
 the constitutional requirement would be ac- 
 complished as well by the use of the machine, 
 it seems too great a stretch of language to 
 say that the use of it is the expression of a 
 choice ])y a written vote. ' ' 
 
 Notes 
 
 1. Opinion of Justices, 178 Mass. 605. 
 
 2. 19 E. I. 729. 
 
 3. 215 111. 574 ; 2 Am. & Eng. Ann. Cases, 
 
 837.
 
 VOTING MACHINES 139 
 
 4. McTanimany Voting :\[aeliine, 23 R. I. 
 630 ; TrnmbuU vs. Board of Canvassers 
 (]\rieh.), 103 N. W. 993; Detroit vs. Board 
 of Inspectors, 102 ; 2, 1029 ; Ex parte Arnold, 
 128 Mo. 260; Elwell vs. Comstock, 9 Am. & 
 Eng. Anno. Cases 270; United States Stand- 
 ard Voting ]\Iaehine Co. vs. Hobson, 132 Iowa 
 38. 
 
 5. 140 Mich. 390. 
 
 6. 196 Mass. 410, 82 X. E. Rep. 50. 
 
 7. Opinions of Justices, 178 Mass. 605.
 
 CHAPTER TX 
 
 COUNTING, RETURNING AND CAN- 
 VASSING VOTES 
 
 Section 42, Counting the Votes 
 
 It is generally provided in election laws 
 that the election officials shall begin to count 
 the ballots immediately after the closing of 
 the polls. This is for the jiurpose of mini- 
 mizing the opportunities for fraudulently 
 changing the ballots. The ballots should be 
 counted at the time specified by statute;' but 
 in the absence of fraud a postponement of 
 the count will not be sufficient to vitiate the 
 returns.^ Nor will an election be necessarily 
 rendered invalid by the election officials be- 
 ginning to count the votes before the polls 
 close, the statute providing that the votes 
 should be counted after the closing of the 
 polls.-'' 
 
 It is not necessary that the ballots should 
 be counted at the polling place, unless there is 
 a mandatory statute to this effect.^ In Beh- 
 rensmeyer vs. Kreitz^ the judges took the 
 ballots to a room upstairs from the polling 
 
 140
 
 COUNTING. KETUE.NING, CANVASSING 141 
 
 place, but it was held that in the absence of 
 any proof of fraud such action did not vitiate 
 either the election or the returns. 
 
 In cases where the statute requires that 
 the ballots shall be publicly counted, it is un- 
 lawful to count them in a private room from 
 which bystanders are excluded;*^ but the ex- 
 clusion of bystanders in the absence of fraud, 
 is not, by itself, a sufficient violation of the 
 law to cause the rejection of the returns. ''' 
 
 Statutory provisions as to the manner of 
 counting the votes are almost invariably con- 
 strued as being directory instead of manda- 
 tory. A mere irregularity in the manner of 
 counting the votes, where no fraud or mis- 
 take is charged, is not sufficient to sustain an 
 election contest.^ In, in re Zacharias,'' how- 
 ever, it was held that as the statutes of the 
 State provided that the ballots should be 
 deliberately taken out of the ballot box, and 
 each ballot counted as it was taken out from 
 the ballot box, it was improper and irregular 
 to empty the ballot box all at once and to 
 separate the ballots into distinct lots. 
 
 The statutes generally provide that rep- 
 resentatives of the different political parties 
 shall be entitled to be present to watch the 
 count ; when such statutes are in force the 
 election officials have no authority to exclude
 
 142 ELECTION LAWS 
 
 the watchers properly appointed by the can- 
 didates, or the political committees of the 
 different parties.^" 
 
 Under no circumstances is it permissible 
 for any candidates for office to assist in the 
 counting of votes. ^^ If a candidate does 
 count or assist in counting the ballots, he 
 loses the ballots thus counted by him,^- Such 
 an action, however, will not invalidate the 
 election, or disqualify the candidate from 
 holding the office, if he is elected without the 
 aid of the votes counted by him. 
 
 The count of the ballots by persons other 
 than the election officials, while always im- 
 l)roper, will not affect the validity of the elec- 
 tion, in the absence of fraud. ^" 
 
 Notes 
 
 1. Taft vs. Adams, 3 Gray (Mass.) 126. 
 
 2. Atty.-Gen. vs. Glaser, 102 Mich. 390, 
 61 N. W. 648; Atkinson vs. Lorbeer, 111 Cal. 
 419, 44 Pac. Eep. 162. 
 
 3. Ex parte Williams, 35 Tex. Cr. 75, 31 
 S. W. 653. 
 
 4. United States vs. Brewer, 139 U. S. 
 278; Daly vs. Petroff, 10 Phila. (Pa.) 389. 
 
 5. 136 111. 591, 26 N. E. Rep. 704. 
 
 6. United States vs. Badinelle, 37 Fed. 
 Rep. 138 ; 15 Cyc. 374. 
 
 7. Atkinson vs. Lorbeor, lU Cal, 419,
 
 COUNTING, EETUKJSriNG, CANVASSING 143 
 
 44 Pac. Rep. 162. 
 
 8. Hartzell vs. Smith, 18 Pa. Co. Ct. 551. 
 
 9. 3 Pa. Co. Ct. 656. 
 
 10. Commonwealth vs. Miller, 98 Ky. -146, 
 33 S. W. 401. 
 
 11. Greele vs. Pinney, 62 Conn. 478, 26 Atl. 
 1106. 
 
 12. Id. 
 
 13. Roberts vs. Clavert, 98 N. C. 580, 4 
 S. E. 127. 
 
 Section 43. Recount 
 
 After the ballots cast in any election have 
 been once connted and the result declared, 
 the election officials have no authority to re- 
 count such ballots, unless such right is ex- 
 pressly given by statute.^ Furthermore, a 
 recount cannot be ordered by any court, even 
 when fraud or mistake are manifest, in the 
 absence of statutory authority.- 
 
 In many States there are no statutory pro- 
 visions authorizing such recounts of votes. 
 
 ''A petition for a recount is governed by 
 the rule which requires a plaintiff to state in 
 his declaration a prima facie case for recov- 
 ery, and a petition therefore praying for a 
 recount of the ballots on the ground that a 
 ballot was improperly rejected because of a 
 difference of opinion among the election offi- 
 cers was quashed because it failed to inform
 
 144 ELECTION LAWS 
 
 the court why tlie ballot was rejected, 
 or upon what point the election officers 
 differed."-' 
 
 Notes 
 
 1. State vs. Donnewirth, 21 Ohio St. 216; 
 Peopk^ vs. Board of Town Canvassers, 19 N. 
 Y. Supp. 206. 
 
 2. American and English Encyclopedia of 
 Law, Vol. X, p. 751. 
 
 3. Keboch's Contested Election. 19 Pa. 
 Co. Ct. Rep. 663, 6 Pa. Dist. Rep. 637. 
 
 Section 44. Returns 
 
 "The question as to what papers consti- 
 tute the official returns is purely a matter of 
 statutory regulation, but it may be said gen- 
 erally that the returns consist of the poll- 
 book in which is entered the certificate of 
 the officers conducting the election, together 
 with a list of voters and one or more of the 
 tally-sheets, all of which are to be carefully 
 enveloped, sealed, and delivered to the officer 
 or board designated by statute.^ Only such 
 papers as the statute requires may be re- 
 garded as election returns. If the officers 
 go further and make statements on their 
 own responsibility such statements should be 
 disregarded.- The returns of election in- 
 spectors are ministerial and not judicial 
 acts." But they arc (piasi-records and nmst 
 stand as evidence establishing the result of
 
 COUiXTJXO, KETUR^UNG, CANVASSING 145 
 
 the vote until they are impeached and over- 
 come by affirmative proof that they do not 
 speak the truth." ^ ^' 
 
 The returns must always l)e authenticated 
 by the judges, clerks or inspectors of elec- 
 tion. 
 
 The method of forwarding returns are 
 regulated by statute, but the statutory pro- 
 visions on this point are always construed 
 to be directory unless the statute expressly 
 states a non-compliance with the methods 
 will render the returns void.^ 
 
 In the absence of fraud, irregularity in 
 making returns is not sufficient to justify the 
 rejection of the returns." 
 
 Even a failure to make returns from cer- 
 tain election precincts will not render the 
 election invalid, unless it can be shown that 
 the votes not returned would have changed 
 the result." 
 
 The making of returns is a mere minis- 
 terial act, and election officials may be com- 
 pelled by mandamus to make such returns.-' 
 
 Notes 
 
 1. People vs. Ruyle, 91 111. 525; State v. 
 Eastman, 46 Neb. 675, 65 N. W. 805 ; State v. 
 McFadden, 46 Neb. 668, 65 N. W. 800. 
 
 Tally Sheets — In Missouri tally sheets are 
 unknown to the law, and, although they are
 
 146 ELECTION LAWS 
 
 convenient and perhaps necessary for the 
 judges and clerks of election in casting up 
 the votes polled for the several candidates 
 they constitute; no part of the official re- 
 turn. State V. Trigg, 72 Mo. 365 ; State v. 
 Stuckey, 78 Mo. App. 583. And the same is 
 true in North Dakota. State vs. McKenzie, 
 10 N. D. 132, 86 X. W. 231. 
 
 Names of Candidates — It has been held 
 that the returns of precinct officers stating 
 the number of votes received by the Demo- 
 cratic and Republican candidates respectively 
 for a particular office are sufficient without 
 stating the names of the candidates. Tunks 
 vs. Vincent, 106 Ky. 829, S. W. 622, 21 Ky. 
 L. Rep. 475. 
 
 Votes of Parties — The returns of election 
 ought to show not only the votes for candi- 
 dates, but also definitely the votes of parties. 
 In re McKinley-Citizens Party, 6 Pa. Dist. 
 109. 
 
 2. Pacheo v. Beck, 52 Cal. 3; Ex parte 
 Heath, 3 Hill (N. Y.) 42. On the trial of a 
 mandamus proceeding to compel the county 
 board of canvassers to reassemble and com- 
 plete the canvass of an election, defendants 
 offered in evidence a paper taken from the 
 sealed envelope with the poll-book and signed 
 by the judges of the election, stating that 
 certain persons (naming them), offered to 
 vote, they being men enlisted as soldiers in
 
 COUNTING, EETUBNING, CANVASSING I47 
 
 Fort Sully, and entitled to vote, under the 
 statutes of the United States, at the nearest 
 voting precinct, the officers stated that they 
 accepted their votes in a separate ballot-box, 
 canvassed the same separately, put them back 
 in the same box, and returned the same in- 
 closed in the larger box under seal and lock. 
 It Avas held that such paper was properly 
 excluded as the judges of election had no 
 right to make such statements, it not being 
 one of their prescribed duties. Smith vs. 
 Lawrence, 2 S. D. 185, 49 N. W. 7. 
 
 Superfluous Certificate — No other certifi- 
 cate of the officers of election than that pro- 
 vided by statute should be made and if made 
 should be disregarded. State vs. Stuckey, 78 
 Mo. App. 533. 
 
 3. Their character is shown by the free- 
 dom with which they are scrutinized in pro- 
 ceedings by mandamus or information in the 
 nature of a quo warranto. State vs. McFad- 
 den, 46 Neb. 668, 65 N. W. 800; Ex parte 
 Heath, 3 Hill (N. Y.) 42. 
 
 4. Powell vs. Holman, 50 Ark. 85, 6 S. W. 
 505. 
 
 5. 15 Cyc, p. 376. 
 
 6. Fowler vs. State, 68 Tex., 303 S. W. 
 Rep. 255, 
 
 7. Kellogg vs. Hickman, 12 Colo. 256, 21 
 Pac, Rep. 325 ; Mustard vs. Hoppess, 69 Ind. 
 324; Lehman vs. McBride, 18 Ohio St. 573. .
 
 148 ELECTION LAWS 
 
 8. Ex parte Heath, 3 Hill (N. Y.) 42. 
 
 9. Evos vs. State, 131 Ind. 560, 31 N. E. 
 Kep. 357. 
 
 Section 45. Canvass 
 
 The duties of the board or officials who 
 canvass the returns are of a ministerial 
 character ; the only power possessed by these 
 officials which is of even a quasi-judicial 
 character, is that of deciding as to whether 
 the papers transmitted to them, and the sig- 
 natures thereon, are genuine. 
 
 The scope of the power of canvassers of 
 election is summarized as follows : 
 
 ''Thus canvassers have no power to de- 
 termine whether or not the votes cast at the 
 election were legal or illegal,^ or to inquire 
 into the validity of the certificates of nomi- 
 nation of candidates.- Nor have they power 
 to withhold their certificate of election, on 
 the ground that fraud and bribery were used 
 in obtaining votes for the successful candi- 
 date.^ So the ballots of the electors as 
 shown by the statements of the inspectors of 
 election are the only evidence upon which 
 the board of canvassers can act.^ They have 
 no authority to pass upon the eligibility of 
 a candidate to office.^ They have no author- 
 ity to pass by the returns made to them by 
 the judge of election and undertake to count
 
 COUNTING, BETURNING, CANVASSING 149 
 
 the ballots themselves.*^ So where a propo- 
 sition on some question is submitted to the 
 voters at a general election, in a State where 
 such proposition in order to be carried must 
 receive a majority of all the votes cast at 
 such election for any candidate or question, 
 the county canvassers have no authority to 
 find and declare the total vote polled at the 
 election, and a finding in that respect made 
 by them will he rejected as surplusage.' It 
 is the duty of the canvassers to receive and 
 count all returns sent to them which are 
 not obviously spurious, however false and 
 fraudulent they may be in fact.^ But where 
 election returns are false on their face, show- 
 ing that the election officers, in positive dis- 
 regard of the mandatory election laws and 
 of their oaths, received and counted many 
 votes in reckless disregard of the terms of 
 the statutes, they carry no favorable pre- 
 sumption whatsoever, and should be stricken 
 from the election returns altogether." And 
 if a paper purjDorting to be a return is ob- 
 viously a forgery the canvassers should 
 disregard it.^*' But if it is doubtful they 
 cannot judge of its validity and must include 
 it in the count. ^^ In short, their duties are 
 confined to a pure, inflexible mathematical 
 calculation, and they have no authority to
 
 150 ELECTION LAWS 
 
 hear evidence upoji any matters of discre- 
 tion." ^^ 13 
 
 Notes 
 
 1. Franklin Connty vs. State, 24 Fla. 55, 
 3 So. 471, 12 Am. St. Rep. 183; State vs. 
 Tanzey, 49 Ohio St. 656, 32 N. E. 750. 
 
 A county Board of Canvassers cannot re- 
 ject any votes which may come to it duly 
 certified on the ground that the statute which 
 authorized such votes to be cast is uncon- 
 stitutional. Matter of Woods, 5 Misc. (X. Y.) 
 575, 26 N. Y. Suppl. 169. 
 
 In South Carolina the State Board of Can- 
 vassers has the power to throAv out ballots 
 which do not meet all the requirements of 
 the statute. Ex parte Riggs, 52 S. C. 298, 29 
 S. E. 645. 
 
 2. Piggott vs. Cascade County, 12 Mont. 
 537, 31 Pac. 536; Chamberlain vs. Hedger, 
 12 S. D. 135, 80 N. W. 178. 
 
 3. Com. V. Emminger, 74 Pa. St. 479. 
 
 4. They have no power to examine wit- 
 nesse or receive other evidences to prove for 
 whom a ballot was intended. People vs. Tis- 
 dale, 1 Dougl. (Mich.) 59; Kortz vs. Greene 
 County, 12 Abb. N. Cas. (N. Y.) 84. 
 
 5. State vs. Finley, 74 Mo. App. 213; 
 Matter of Atkinson, 28 ]Misc. (N. Y.) 694, 59 
 N. Y. Suppl. 792 (affirmed without opinion 
 in 45 N. Y. App. Div. 628, 61 N. Y. Suppl. 
 1131).
 
 COUNTING, BETUENING, CANVASSING ]51 
 
 Where a candidate has been nominated by 
 more than one party the canvassers should 
 reckon the total number of votes cast for 
 him and not the number cast for him by each 
 party. People vs. Erie County, 79 N, Y. App. 
 Div. 514, 80 N. Y. Suppl. 25. 
 
 6. Holt vs. People, 102 111. App. 276. 
 
 7. State vs. Clark, 59 Neb. 702, 82 N. W. 8. 
 
 8. Missouri, State vs. Steers, 44 Mo. 223; 
 Wisconsin, State vs. Board of State Canvas- 
 sers, 36 Wis. 498. 
 
 9. Matter of Barber, 10 Phila. (Pa.) 579 
 (affirmed in 32 Leg. Int. 229). 
 
 10. In Re Orphans' Ct., 1 Brewst. (Pa.) 
 67, 5 Phila. (Pa.) 102; Lawrence vs. Knight, 
 4 Phila. (Pa.) 355. 
 
 11. In re Orphan's Ct., 1 Brewst. (Pa.) 
 67, 5 Phila. (Pa.) 102; Lawrence vs. Knight, 
 4 Phila. (Pa.) 355. 
 
 12. Clark vs. Hampden County, 126 Mass, 
 282; Luce vs. Mayhew, 13 Gray (Mass.) 83; 
 In re Strong, 20 Pick. (Mass.) 484. 
 
 13. 15 Cyc, pp. 381-382.
 
 CHAPTER X 
 
 ELECTION CONTESTS 
 
 Section 46. Nature of Proceedings to Contest 
 Election 
 
 "As the election officers perform for the 
 most part ministerial functions only, their 
 returns, and the certificates of election which 
 are issued upon them, are not conclusive in 
 favor of the officers who would thereby ap- 
 pear to be chosen, but the final decision must 
 rest with the courts. This is the general 
 rule, and the exceptions are of those cases 
 where the law under which the canvass is 
 made declares the decision conclusive, or 
 where a special statutory l)oard is established 
 with powers of final decision. Whatever 
 may be the office, an election to it is only made 
 by the candidate receiving the requisite ma- 
 jority or plurality of the legal votes cast; 
 and whoever, without such election, intrudes 
 into an office, whether with or without the 
 formal evidences of title, may be ousted on 
 the proper judicial inquiry."^ 
 
 A proceeding to contest an election is 
 
 152
 
 ELECTION CONTESTS 153 
 
 strictly statutory and is neither an action at 
 law or a suit in equity,- although the char- 
 acter of the proceedings are in the nature of 
 chancery suits. 
 
 The judicial character of a proceeding to 
 contest an election was discussed by the 
 Supreme Court of Illinois in the case of 
 Quartier vs. Dowiat.^ 
 
 This case was a proceeding instituted by 
 Dowiat in the Circuit Court of Vermilion 
 county to contest the election of Quartier to 
 the office of president of the board of trustees 
 of the village of Westville. A petition was 
 filed with the clerk of the said Circuit Court 
 which, after alleging many grounds why the 
 appellant should be declared not duly elected 
 and why the appellee should be declared 
 elected, contained the following prayer: 
 "Your petitioner further represents that on 
 a count of the ballots cast by the electors 
 your petitioner would have a clear majority, 
 and he asks that such relief be granted as is 
 provided by the statute in such cases made 
 and provided, and for such other relief as 
 equity, justice and the good conscience of 
 this court will grant." The petition con- 
 cluded as follows : "Your petitioner further 
 asks that upon a recount of said ballots, as 
 provided by law, he be declared duly elected
 
 154 ELECTION LAWS 
 
 president of the village of Westville, and 
 the declaration of the said judges that the 
 said Eugene Quartier has been elected be 
 annulled and canceled." A regular form of 
 chancery summons was issued, which or- 
 dered the appellant to "answer unto Peter 
 Dowiat in his certain bill of complaint, being 
 a petition to contest election, filed in said 
 court on the chancery side thereof, ' ' and was 
 served as a chancery summons. The appel- 
 lant appeared and interposed a special de- 
 murrer on the ground that the contest of an 
 election was a statutory proceeding, and that 
 a court of chancery had no jurisdiction to 
 hear and determine an election contest. 
 Thereupon appellee "moved the court to di- 
 rect the clerk thereof to place the cause upon 
 the common-law docket of this court at the 
 present term thereof." The demurrer and 
 the motion, called in the record a "cross- 
 motion," were argued by the respective 
 counsel together, and the court granted, the 
 motion as a cross motion, but made no for- 
 mal order as to the disposition of the de- 
 murrer and the cause was thereupon placed 
 upon the common-law docket. When the 
 cause had been duly entered on the common- 
 law docket, the appellant jiresentod a plea in 
 abatement, in which he recited all of the pro-
 
 ELECTION CONTESTS 155 
 
 ceedings in the cause up to that time, and 
 urged that the court had no jurisdiction of 
 his person, for the reason that he had not 
 been served with process, as required in 
 common-law actions. A general demurrer 
 was sustained to this plea, and, the appellant 
 electing to stand by this plea, the court heard 
 the cause on the merits, and entered judg- 
 ment in accordance with the prayer of the 
 petition. There was an appeal from such 
 judgment. 
 
 In the course of its decision the court said : 
 ' ' The court did not err in transferring the 
 cause from the chancery to the common-law 
 docket. This is a purely statutory proceed- 
 ing, and is not regarded as a cause at law or 
 in equity. Douglas v. Hutchinson, 183 111. 
 323, 55 N. E. 628. In Reed v. Boyd, 84 111. 
 66, which was a suit to establish a mechanic's 
 lien under a statutory proceeding, the statute 
 requiring such suit tgo be entered upon the 
 common-law docket, we said (page 71) : 'Nor 
 can the fact that the statute requires it to 
 be placed on the common-law docket change 
 the nature of a cause. It is immaterial 
 whether it is on one docket or another. Its 
 position on the docket cannot change its 
 nature or its inherent qualities.' 
 
 "The demurrer to the plea in abatement
 
 156 ELECTION LAWS 
 
 was properly sustained. Proceedings of 
 this character are in the nature of chancery 
 suits, and the rules of chancery practice ap- 
 ply. Weinberg v. Noonan, 193 111. 165, 61 
 N. E. 1022; Kurd's Rev. St. 1903, c. 46, p. 
 116, entitled 'Elections.' Section 119 of the 
 election act provides the final order in a con- 
 tested election case shall be a judgment de- 
 claring who is elected ; not a decree in which 
 recitals of fact could be incorporated. In 
 case of appeal or writ of error to reverse 
 the same, the burden of preserving the evi- 
 dence to sustain an attack on the judgment 
 devolves on the party who questions the cor- 
 rectness of the action of the court. 
 
 "The summons recited that the cause was 
 on the chancery side of the court. This 
 statement was not inaccurate, as a proceed- 
 ing of this character is governed by the 
 chancery practice. Eeed v. Boyd, supra." 
 
 Where a mode of contesting an election has 
 been provided, this excludes all other meth- 
 ods of contest.^ 
 
 Where the statutes provide no method of 
 contesting an election an action of quo war- 
 ranto"^ generally is the proper method of try- 
 ing the question as to who is entitled to the 
 office. Equity courts in some instances, 
 where there was no common law method of
 
 ELECTION CONTESTS 157 
 
 trying an election contest, have taken juris- 
 diction under the equitable maxim that 
 "equity will not suffer a right to be with- 
 out a remedy;"^ but some cases hold that 
 where the statutes fail to i3rovide the man- 
 ner in which an election contest shall be con- 
 ducted, that no such contest can be made." 
 
 In State vs. Dubuclet^ it was held that: 
 
 "No statute having been enacted pre- 
 scribing the manner of reviewing the action 
 of the State returning board, their decision 
 is not subject to revision by the courts, not- 
 withstanding Const, art. 10, providing that 
 'all courts shall be open, and every person, 
 for injury done him in his lands, goods, per- 
 son or reputation, shall have adequate rem- 
 edy by due process of law, and justice 
 administered without denial or unreasonable 
 delay.' " 
 
 In such a case the result certified by those 
 holding the election is final and conclusive.^ 
 
 As an illustration of the general character 
 of State statutes regulating election con- 
 tests, the provisions of the statute of Illinois 
 on this subject are here inserted: 
 
 ^^When Legislature to Hear. §94. The 
 Legislature, in joint meeting, shall hear and 
 determine cases of contested elections of gov- 
 ernor and lieutenant-governor, secretary of
 
 158 ELECTION LAWS 
 
 state, auditor of pn])lic accounts, treasurer, 
 superintendent of public instruction, and 
 attorney general. The meeting of the two 
 houses, to decide upon such elections, shall 
 be held in the hall of the house of repre- 
 sentatives, and the speaker of the house shall 
 preside. 
 
 ^^ Senators and Representatives. §95. 
 The senate and house of representatives shall 
 severally hear and determine contests of the 
 election of their respective members. 
 
 ''Bij Circuit Court. §96. The Circuit 
 Court shall hear and determine contests of 
 the election of judges of the Supreme Court, 
 clerks of the Supreme Court, judges of the 
 Circuit Court, judges of the Superior Court 
 of Cook county, and members of the State 
 Board of Equalization, but no judge of the 
 Circuit Court shall sit upon the hearing of 
 any case in which he is a party. 
 
 ^^By Circuit Courts, and in Cook County, 
 also by the Superior Court. § 97. The Cir- 
 cuit Courts in the respective counties, and in 
 Cook county the Superior Court also may 
 have (hear) and determine contests of the 
 election of judges of the County Court, 
 mayors of cities, presidents of county boards, 
 presidents of villages, in reference to the 
 removal of county seats and in reference to
 
 ELECTION CONTESTS 159 
 
 any other subject which may be submitted 
 to the vote of the people of the county, and 
 concurrrent jurisdiction with the County 
 Court in all cases mentioned in section ninety- 
 eight (98). 
 
 ''By County Court. §98. The County 
 Court shall hear and determine contests of 
 election of all other county, township and 
 precinct officers and all other officers for the 
 contesting of whose election no provision is 
 made. 
 
 ''Election of State Officers — Petition of 
 Contestant. § 99. When any elector shall 
 desire to contest the election of governor, 
 lieutenant-governor, secretary of state, audi- 
 tor of public accounts, treasurer, superin- 
 tendent of public instruction, or attorney- 
 general, he shall, within ten days after the 
 result of the election shall have been deter- 
 mined, present a petition to the General As- 
 sembly, setting forth the points on which he 
 will contest such election, and praying for 
 leave to produce his proof. 
 
 "Joint Committee to Take Testimony. 
 § 100. The General Assembly shall appoint 
 a joint committee to take the testimony on 
 the part of the petitioner, and the person 
 whose place is contested. 
 
 "Powers of Joint Committee. §101. The
 
 "IflO ELECTION LAWS 
 
 committee so appointed shall have power to 
 send for witnesses, and compel the attend- 
 ance of witnesses and the production of 
 papers, issue commissions under the hand of 
 its chairman, to any officer authorized to 
 take depositions in other cases to take the 
 deposition of witnesses upon the points set 
 forth in the petition, at such time and place 
 as the commission shall direct. 
 
 ^'Notice. § 102. Reasonable notice shall 
 be given by the party in whose favor the 
 deposition is to be taken to the opposite 
 party of the time and place of taking the 
 same. 
 
 ' ' Testimony. ^ 103. No testimony shall 
 be taken except upon the points set forth in 
 the petition. 
 
 ^^ Report of Conniiiftee - — Hearing — De- 
 cision. § 104. The committee shall report 
 the facts to the house and a day shall be fixed 
 by a joint resolution for the meeting of the 
 two houses to decide upon the same, in which 
 decision the yeas and nays shall be taken 
 and entered upon the journal. 
 
 "Who May Contest Senator or Represen- 
 tative. § 105. The election of any membei' 
 declared duly elected to a seat in the senate 
 or house of representatives of the General 
 Assembly may be contested by any qualified
 
 ELECTION CONTESTS 161 
 
 voter of the county or district to be repre- 
 sented by such senator or representative. 
 
 ''Notice of Contest. § 106. The contest- 
 ant shall, within thirty days after the result 
 of the election shall have been determined, 
 serve on the person whose election he will 
 contest, a notice of his intention to contest 
 such election, expressing the points on which 
 the same will be contested; and shall, also, 
 on or before the next session of the General 
 Assembly, deliver a copy of such notice to 
 the secretary of state. In case the person 
 whose election is contested is absent, or can- 
 not be found, service may be had by leaving 
 a copy of such notice at his usual place of 
 residence. 
 
 ''■Testimony — How Taken. §107. When- 
 ever a notice shall have been given of inten- 
 tion to contest an election, as provided in the 
 ])receding section, either party may proceed 
 to take testimony of any witness before any 
 judge, justice of the peace, clerk of a court, 
 master in chancery or notary public, on giv- 
 ing to the adverse party or his attorney, ten 
 days' notice of the time and place of taking 
 the same, and one day in addition thereto 
 (Sunday inclusive) for every fifty miles' 
 travel from the place of residence of such 
 party to the place where such deposition is
 
 162 ELECTION LAWS 
 
 to bo taken, five days' notice shall be suf- 
 ficient. 
 
 ^'Poiver of Officer Taking Testimony. 
 § 108. The officer before whom depositions 
 are taken shall have power to compel the 
 production of papers and the attendance of 
 witnesses ; a'nd the same proceedings may be 
 had to compel the attendance of witnesses as 
 are provided in the cases of taking depo- 
 sitions to be used in courts of law and 
 equity. 
 
 ^^Depositions, etc., to Be Sent to Secre- 
 tary of State. § 109. A copy of the notice 
 to take depositions, with proof of the service 
 thereof, with the deposition, shall be sealed 
 up and transmitted, by mail or otherwise, to 
 the secretary of state with an indorsement 
 thereon showing the names of the contesting 
 parties, the office contested and the nature of 
 the papers. 
 
 '■^Delivery of Notice of Contest, etc. — 'Duty 
 of Presiding Officer. ^ 110. The secretary 
 of state shall deliver the copy of the notice 
 deposited with him by the contestant, and 
 the depositions unopened, to the presiding 
 officer of the branch of the General Assembly 
 to which the contest relates, on or before the 
 second day of its session next after the 
 receipt of the same ; and the presiding officer
 
 ELECTION CONTESTS 163 
 
 sliall immediately give notice to liis house 
 that such papers are in his possession. 
 
 ^^ Rights of Either House Saved. §111. 
 Nothing herein contained shall be construed 
 to abridge the right of either branch of the 
 General Assembly to grant commissions to 
 take depositions, or to send for and examine 
 any witnesses it may desire to hear on such 
 trial. 
 
 ''Who May Contest Election of Other Offi- 
 cers. § 112. The election of any person 
 declared elected to any office other than 
 governor, lieutenant-governor, secretary of 
 state, auditor of public accounts, treasurer, 
 superintendent of public instruction, attor- 
 ney-general, senator or representative, may 
 be contested by any elector of the State, 
 judicial division, district, county, town or 
 precinct in and for which the person is de- 
 clared elected. 
 
 ''Contest (Hit to File Statement, etc. § 113. 
 The person desiring to contest such election 
 shall, within thirty days after the person 
 whose election is contested is declared elected, 
 file with the clerk of the proper court a state- 
 ment, in writing, setting forth the points on 
 which he will contest the election, which state- 
 ment shall be verified by affidavit in the same 
 manner as bills in chancery may be verified.
 
 164 ELECTION LAWS 
 
 ^'Summons. §11-4:. Upon the filing of 
 such statement, snmmons sliall issue against 
 the person whose office is contested, and he 
 may be served with process, or notified to 
 appear, in the same manner as is provided 
 in cases in chancery. 
 
 ^^ Evidence. § 115. Evidence may be 
 taken in the same manner and upon like 
 notice as in cases of chancery. 
 
 ^' Trial. § 116. The case shall be tried in 
 like manner as cases in chancery, and may- 
 be heard and determined by the court in term 
 time or by the judge in vacation at any time 
 not less than ten (10) days after service of 
 process, or at any time after the defendant 
 is required by notification to appear, and 
 shall have preference in the order of hearing 
 to all other cases. The court in term time 
 or the judge in vacation may make and en- 
 force all necessary orders for the preserva- 
 tion and production of the ballots, poll books, 
 tally papers, returns, registers and other 
 papers or evidence that may bear upon the 
 contest. 
 
 ^' Other Elections Contested. §117. Any 
 five electors of the county may contest an 
 election upon any subject which may by law 
 be submitted to a vote of the people of the 
 county, upon filing in the Circuit Court,
 
 ELECTION CONTESTS 165 
 
 within thirty days after the result of the elec- 
 tion shall have been determined, a written 
 statement in like form as in other cases of 
 contested elections in the Circuit Court. 
 The county shall be made defendant, and 
 process shall be served as in suits against 
 the county ; and like proceedings shall be had 
 as in other cases of contested elections before 
 such court. 
 
 ^^Wlien Elector May Defend for County. 
 § 118. In case the county board shall fail or 
 refuse properly to defend such contest, the 
 court shall allow any one or more electors 
 of the county to appear and defend, in which 
 case the electors so defending shall be liable 
 for the costs in case the judgment of the court 
 shall be in favor of the contestant. 
 
 '^Judgment. § 119. The judgment of the 
 court in cases of contested election, shall con- 
 firm or annul the election according to the 
 right of the matter ; or, in case the contest is 
 in relation to the election of some person to 
 an office, shall declare as elected the person 
 who shall appear to be duly elected. 
 
 ^^Tie. § 120. If it appears that two or 
 more persons have, or would have had, if the 
 legal ballots cast or intended to be cast for 
 them had been counted, the highest and an 
 equal number of votes for the same office,
 
 166 ELECTION LAWS 
 
 the persons receiving suck votes shall decide 
 by lot, in such manner as the court shall 
 direct, which of them shall be declared duly 
 elected; and the judgment shall be entered 
 accordingly. 
 
 ^^ Certified Copy of Judgment. §121. A 
 certified copy of the judgment of the court 
 shall have the same effect as to the result of 
 the election as if it had been so declared by 
 the canvassers. 
 
 '^When Election Adjudged Void. §122. 
 When the person whose election is contested 
 is found to have received the highest number 
 of legal votes, but the election is declared 
 null by reason of legal disqualification on his 
 part, or for other causes, the person receiv- 
 ing the next highest number of votes shall 
 not be declared elected, but the election shall 
 be declared void. 
 
 '^Appeal. § 123. In all cases of contested 
 elections in the Circuit Courts or County 
 Courts, appeals may be taken to the Supreme 
 Court in the same manner, and upon like con- 
 ditions, as is provided b}' law for taking 
 appeals in cases in chancery from the Cir- 
 cuit Courts." 
 
 ''All provisions of the election law arc 
 mandatory, if enforcement is sought before 
 election in a direct proceeding for that pur-
 
 ELECTION CONTESTS 167 
 
 pose; but after election all should be hciu 
 directory only in support of the result, un- 
 less of a character to effect an obstruction 
 to the free and intelligent casting of the vote 
 or to the ascertainment of the result, or 
 unless the provisions affect an essential 
 element of the election, or unless it is ex- 
 pressly declared by the statute that the par- 
 ticular act is essential to the validity of an 
 election, or that its omission shall render it 
 void. Parvin v. Wimberg, 130 Ind. 561, 30 
 N. E. 790, and 15 L. R. A. 775; Boyd v. Mills, 
 53 Kan. 594, 608, 37 Pac. 16, and 25 L. E. A. 
 486 ; Miller v. Pennoyer, 23 Or. 364, 31 Pac. 
 830; Stackpole v. Hallahan, 16 Mont. 40, 40 
 Pac. 80, and 28 L. R. A. 502 ; Blankinship v. 
 Israel, 132 111. 514, 24 N. E. 615; Adsit v. 
 Osmun, 84 Mich. 420, 48 N. W. 31, and 11 
 L. R. A. 534; McCrary, Elect. §§ 27-29; Endl. 
 Interp. St. § 433. In the 16 Mont., 40 Pac, 
 case, it was held that the statute prescribing 
 certain facts to be stated in the certificate of 
 nomination is not to be held mandatory in a 
 case where the nomination has been duly 
 made, the certificate filed, the name pkced 
 upon the ballot, the candidate voted for and 
 elected by a plurality of all the legal votes 
 cast, and when the effect of giving a man- 
 datory construction to such provision would
 
 168 ELECTION T.AWS 
 
 be to disfranchise a plurality of the voters 
 of the district. A statute providing that to 
 entitle a political party to make nomination 
 by a convention, it must have polled at the 
 next i^receding election 2 per cent of the vote 
 of the county, is directory and not manda- 
 tory, after the election. Schuler v, Hogan, 
 1G8 111. ?S9, 48 N. E. 195. If one of the 
 judges of election proceeds throughout his 
 duties without taking the oath prescribed by 
 law, or if one of the superintendents of elec- 
 tion, after the polls are closed, but before the 
 votes are counted, leaves the precinct and the 
 other twx) count the votes and sign the certifi- 
 cate, the returns thus certified should not be 
 excluded from the consolidated vote of the 
 county because not signed by all three of the 
 superintendents as provided by law, nor 
 should they be excluded because one of the 
 superintendents left before the count. Tan- 
 ner V. Deen (Ga.) 33 S. E. 832. The statute 
 of Pennsylvania provides that the name of 
 any candidate shall not appear more than 
 once upon the ballot. Gunster was severally 
 nominated by the Democratic and Eepub- 
 lican parties for the office of judge, and his 
 name placed by the supervisors of election 
 on both tickets upon the official ballot for 
 that office; and it was held that 'after the
 
 ELECTIOX CONTESTS 169 
 
 qualified electors had declared their choice 
 by the use of the only ballots they could have 
 used, ' the election of Gunster was not thereby 
 invalidated. Com. v. McCormick, 8 Pa. Dist. 
 R. 117. It was held in Boyd v. Mills, 53 
 Kan. 594, 37 Pac. 16 and 25 L. R. A. 486, 
 that the mistaken use of colored sample bal- 
 lots by all the voters of a precinct did not 
 vitiate the election." ^° 
 
 Notes 
 
 1. Cooley's Constitutional Limitations, 
 Chapter XVII. 
 
 2. Devons et al. vs. Gallatin County et 
 al., 244 111. 40; Moore vs. Mayfield 47 111. 
 187 ; People vs. Smith, 51 111. 323, 55 N. E. M. ; 
 Douglas vs. Hutchinson, 183 111. 323, 55 N. E. 
 628 ; Brueggeman vs. Young, 208 111. 181, 70 
 N. E. 292 ; Williamson vs. Lowe, 527 111. 235. 
 
 3. 219 111. 326, 76 N. E. Rep. 371. 
 
 4. Stine vs. Berry. 27 S. W. Rep. 809, 16 
 Ky. Law Rep. 279. 
 
 5. See Section 47. 
 
 6. "Courts of Equity had taken juris- 
 diction under their general powers for the 
 sole reason that there was an absence of 
 necessary legislation for a contest by any 
 other means, but when the Legislature pro- 
 vided a method of contesting such an election 
 there ceased to be any ground for interfer- 
 ence by a Court of Equity under its general
 
 170 ELECTION LAWS 
 
 powers, and the jurisdiction has not since 
 been exercised." Devons et al. vs. Gallatin 
 County et al., 244 111. 40; 18 Am. & Eng. Ann. 
 Cases 422. 
 
 7. Clarke vs. Rogers, 81 Ky. 43. 
 
 8. 27 La. Ann. 698. 
 
 9. Clarke vs. Rogers, 81 Ky. 43 ; Savage 
 vs. AYolfe, 68 Ala. 569. 
 
 10. Jones vs. State, 153 Ind. 440, 55 N. E. 
 229. 
 
 Section 47. Quo Warranto. 
 
 The general scope of the action of qno 
 warranto, which can be brought to test the 
 right of an individual to hold a public office, 
 or of a corporation to exercise pul)lic or 
 quasi public functions, is broad enough so 
 that in many States it is available to test the 
 legality of an official's election. The right 
 to use this writ in election contests, as well 
 as the scope of its application, if it can be 
 used, depends very largely upon the statutes 
 of the several States, and on this point, as 
 on many others in election laws, the statute 
 of the particular States must he consulted. 
 Under the most favorable conditions there 
 are disadvantages and limitations in the use 
 of this writ; in particular the action can 
 only be brought against a person already in 
 office.^ It can never, therefore, be used to
 
 ELECTION CONTESTS 171 
 
 determine an election contest in time, so that 
 the legally elected candidate can enter into 
 the possession of the office at the beginning 
 of the term. There is considerable conflict 
 among the decisions on the question by whom 
 may this action be brought. Originally, in 
 England, the law was very plain that this ac- 
 tion could be brought only by the govern- 
 ment.^ During the Stuart period in English 
 history this writ was one of the most effective 
 weapons of despotism, being used to take 
 away their charters from nearly all the 
 English cities and from some of the Amer- 
 ican colonies. 
 
 By statute of 9 Anne it was provided that 
 an information in the nature of quo warranto 
 might be brought, with leave of the court, at 
 the relation of any person desiring to prose- 
 cute the same against any person usurping, 
 intruding into, or unlawfully holding any 
 franchise or office in any city, borough, or 
 incorporated town. The operation of this 
 statute, however, is confined to cases where 
 the public at large is not interested.^ 
 
 In some States of this country a private 
 person is permitted to bring quo warranto 
 proceedings by virtue of this statute of 9 
 Anne;* while in other States statutes have 
 been passed to this effect. It has been very
 
 172 ELECTION LAWS 
 
 generally held that under these State stat- 
 utes this action of quo warranto can only 
 be brought by a private person in cases where 
 he has a special interest in the office.'^ 
 
 ''Taxpayers of the district affected by the 
 office have been held to have such an interest.*^ 
 It has also been held that a citizen, resident 
 and taxpayer, who is the father of pupils in 
 the public schools of a city, may maintain 
 an action to oust the members of the board 
 of school directors." But a defeated candi- 
 date has been held not to have such an inter- 
 est in the office as justifies him in attempting 
 to oust the incumbent on the ground of 
 ineligibility.^ Likewise, a police justice 
 whose fees have been diminished by prosecu- 
 tions for violations of munieipal ordinances 
 before a municipal judge, has not such an 
 interest in the latter 's office as warrants him 
 in maintaining an information." ^ '^^ 
 
 Under some State statutes, not even a can- 
 didate for an office can bring quo warranto 
 proceedings to test the title of his opponents 
 until he has first asked the proper public 
 prosecuting officer to bring such suit, and has 
 met with a refusal. ^^ 
 
 The granting or refusal of leave to file an 
 information in the nature of quo warranto, 
 at the instance of a private person to test
 
 ELECTION CONTESTS 173 
 
 the right to a public office, has been held to 
 rest in the sound discretion of the court to 
 which application is made.^^ 
 
 The weight of authority, especially among 
 recent cases, is to the effect that where there 
 is no State statute on the subject a private 
 person can not bring quo warranto proceed- 
 ings against any public official. On this 
 point the Supreme Court of Idaho said in 
 Toncray vs. Budge :^^ 
 
 ''To allow any and every citizen to com- 
 mence an action against any public official 
 to oust him from office at any time he may 
 see fit, whether for private and personal re- 
 venge or the public weal, would be most dis- 
 astrous, dangerous, and prejudicial to the 
 public service. In some communities, and 
 under certain conditions, they might keep a 
 public officer engaged most of the time de- 
 fending his right to the office instead of 
 discharging the public business. This rem- 
 edy was created for the benefit and protec- 
 tion of the public in its governmental and 
 sovereign capacity, and for the benefit of the 
 community at large, rather than for the 
 gratification, satisfaction, or protection of 
 any particular individual other than one him- 
 self entitled to the office. The law-making 
 power, in recognizing the right and prescrib-
 
 174 ELECTION LAWS 
 
 ing the remedy to iiK|uire into the conditions 
 and circumstances under which one claims to 
 hold an office, had the clear and unquestion- 
 able authority to also designate the party or 
 parties avIio might invoke this remedy, and 
 the conditions under which it might be 
 applied." ^^' 
 
 All quo warranto proceedings relative to 
 the title of the United States officials must 
 be brought to the Federal Courts.^^ 
 
 Notes 
 
 1. Scott vs. State, 151 Ind. 556, 52 X. E. 
 Rep. Ki:}. 
 
 2. Atty.-Gen. vs. SuUivan, l(io ^iass. 44(), 
 40 X. E. Rep. Si:i; State vs. Ashley, 1 Ark. 
 279; State vs. Elliott, 13 Utah. 200. 44 Pae. 
 Rep. 248; State vs. Dahl, 60 Minn. 109, 71 
 X. AV. Rep. 910. 
 
 3. Commonwealth vs. Lexington etc. 
 Turnpike Road Co., 6 B. Mon. (Ky.) 397. 
 
 4. Id. 
 
 5. State vs. Stein, 13 Xeb. 529, 14 X. AY. 
 Rep. 481; State vs. Boal, 46 Mo. 528; Bar- 
 num vs. Oilman, 27 Minn. 466, 8 X. W. Rep. 
 375; Painter vs. United States, 6 Ind. Terr. 
 621, 98 S. W. Rep. 352. 
 
 6. State vs. Sanuielson, 131 Wis. 499, 111 
 X. W. 712. See also McAVilliams vs. Jacobs, 
 128 Ga. 375, 57 S. E. 509.
 
 ELECTION CONTESTS 175 
 
 7. State vs. Lindemann, 132 Wis. 47, 111 
 N. W. 214. 
 
 8. State vs. Bell, 169 Ind. 61, 82 N. E. 69, 
 13 L. R. A. N. S. 10-13, 124 Am. St. Rep. 
 203; Hudson vs. Conklin, 77 Kan. 764, 93 
 Pac. 585. See also State vs. Johnson, 28 
 Ohio Cir. Ct. 793. 
 
 9. Baughman vs. Nation, 76 Kan. 668, 92 
 Pac. 548. 
 
 10. 13 Am. & Eng. Annotated Cases, 1064 
 Note. 
 
 11. Boyd vs. Nebraska, 143 U. S. 135; 
 State vs. Frazier, 28 Neb. 438, 44 N. W. Rep. 
 471. 
 
 12. Rex. vs. Trenever, 2 B. & Aid. 479; 
 Commonwealth vs. McCarter, 98 Pa. St. 607. 
 
 13. 14 Idaho 621, 95 Pac. Rep. 26. 
 
 14. Wallace vs. Anderson, 5 Wheaton 291 ; 
 State vs. Bower, 8 S. Car. 400. 
 
 Section 48. Mandamus 
 
 Mandamus is an important auxiliary pro- 
 ceeding in election contests ; but is seldom 
 available as a method by wliicli the main 
 issue in an election contest can be tried. As 
 in all other cases mandamus can be used in 
 election contests only for the purpose of com- 
 pelling the jDerformance of a mere ministerial 
 act. 
 
 Where there can be no dispute as to the 
 plaintiff's right to the office sought, man-
 
 17G ELECTION LAWS 
 
 damus is the jjroper remedy. In Lewis vs. 
 Whittle^ the court said: 
 
 ''Wherever there is a right to execute an 
 office, perform a service, or exercise a fran- 
 chise, more especially if it be a matter of 
 public concern, and a person is dispossessed 
 of such right and has no other sijecific ade- 
 quate remedy, then the court ought to assist 
 by mandamus upon reasons of justice, as 
 expressed by the writ, and upon reasons of 
 jDublic policy, to preserve the peace, good 
 order, and good government. It ought to be 
 used on all occasions when the law has estab- 
 lished no specific remedy. Whatever may be 
 the rule elsewhere, it may be safely laid down 
 as the doctrine of this court that mandamus 
 is the true specific remedy for a wrongful 
 deprivation of an office. What other specific 
 adequate remedy have these petitioners, if 
 they are clearly entitled to this office ? If, as 
 suggested, quo warranto should be adopted, 
 and the petitioners should succeed there, 
 they would not thereby be put in possession 
 of what they seek, but might still be put to 
 the necessity of mandamus for relief. They 
 might succeed by quo warranto in removing 
 their adversaries from the office, and yet need 
 the mandamus to put them in possession. 
 No proceeding that will give them less than
 
 ELECTIOxX CONTESTS 177 
 
 they ask can be said to afford tliein a specific 
 and adequate remedy, if they are entitled to 
 what tliey seek. Under the quo warranto 
 information, judgment might remove the 
 occupants, but would not install the claim- 
 ants. They might still find it necessary to 
 ask other process against some other person 
 or office who might deem it his or their duty 
 to keep them out. ' ' 
 
 Mandamus is therefore the proper remedy 
 to restore a civil service appointee who has 
 been improperly removed f but can never be 
 used to try a disputed title to office. In Pratt 
 vs. Board of Police^ the court said : 
 
 "It is also insisted for respondent that the 
 appellant has mistaken his remedy, and that 
 mandamus will not lie to restore him to office, 
 because, since his removal, another person 
 has had charge thereof. Mandamus is an 
 extraordinary remedy, and the law is well 
 settled that it will not lie to try a disputed 
 title to an office, or to compel the admission 
 of a claimant to an office the title to which 
 is in dispute, and of which he has never dis- 
 charged the duties or had the possession. 
 Where a person, however, has been in the 
 actual and lawful possession of an office, re- 
 ceived and enjoyed the emoluments thereof, 
 is entitled to the office de jure, and was
 
 178 ELECTION LAWS 
 
 unlawfully removed therefrom, a different 
 rule appears to prevail. In such case man- 
 damus is an appro]H-iate remedy to restore 
 the de jure officer to his office, and it is not 
 necessary to resort to quo warranto, even 
 though the office he in possession of another." 
 
 The cases where the writ of mandamus 
 will and will not lie in election contests have 
 been summarized as follows: 
 
 '^ Mandamus will lie to comi^el the desig- 
 nation of the newspapers in which the list of 
 registration and polling places is to be pub- 
 lished,^ to compel statement of the result of 
 a primary election/' to compel the proper offi- 
 cers to receive and file a certificate of nomi- 
 nations,^ to conii)el the officer charged with 
 that duty to order an election," to compel the 
 placing upon the official ballot the name of a 
 nominee,^ to compel the appointment of 
 legally selected judges of election,'^ to compel 
 registrars of votes not to count an improp- 
 erly marked ballot, ^^ to compel a canvassing 
 board to canvass the returns and issue certifi- 
 cates in accordance with the result,^ ^ and to 
 compel a recount ;^- but the writ will not issue 
 to compel election officers to do an im]~>ossible 
 or an unnecessary tiling,^" to compel regis- 
 trars of election to erase from the i-egistra- 
 tion books the names of persons illegally reg-
 
 ELECTION CONTESTS 179 
 
 istered where the statutes do not confer^^ or 
 where the persons alleged to be illegally reg- 
 istered have not been brought into court or 
 served with notice/^ or to control the action 
 of a canvassing board in recounting the 
 votes. ^'' An election contest cannot be de- 
 termined in mandamus })roeeedings/' Man- 
 damus proceedings to compel a mayor and 
 council to canvass the returns of a municipal 
 election may be instituted by a candidate 
 claiming election^^ or by any citizen. ^'^ In 
 Massachusetts a voter and taxpayer of a 
 town may institute mandamus proceedings to 
 compel the registrars of voters not to count 
 an imi^roperly marked ballot cast at a local 
 option election. ^*^ Two candidates on the 
 same ticket chiiming election may join in a 
 petition for mandamus to compel a canvass 
 of the returns and issuance of certificates of 
 election.-^ Mandamus proceedings to com- 
 pel the performance of a duty incumbent 
 upon a board of officers should be brought 
 against the l)oard as such and not against 
 the members as individuals.^- The mayor of 
 a town who is the presiding officer of the 
 council is a proper party to mandamus jDro- 
 ceedings to compel the council to canvass the 
 returns of a municipal election.-^ The peti- 
 tion for mandamus must designate the duty
 
 180 ELECT lOX LAWS 
 
 sought to bo enforced-^ and state facts suf- 
 ficient to warrant its enforcement.^' In 
 Washington, where mandamus issues to com- 
 pel a town council to canvass the returns of 
 an election, service of the writ on a majority 
 of the council is sufficient.-" Where man- 
 damus is issued to compel a canvassing board 
 to canvass the returns of an election costs 
 may be awarded against the board.^^ The 
 fact that election officers have performed 
 some of the acts commanded by mandamus 
 does not i)reclude their appealing from the 
 order granting the writ." -^ -^ 
 
 Notes 
 
 1. 77 Virginia 415. 
 
 2. Hill vs. Boston, 19.3 Mass. 569, 79 N. E. 
 Rep. 825. 
 
 3. 15 Utah 1, 49 Pac. Rep. 747. 
 
 4. Where it is shown that no legal 
 designation has been made by the Board 
 of Elections, the Court may, notwithstand- 
 ing the prayer for an order, require that 
 a particular newspaper be designated, com- 
 mand the board to perform the duty de- 
 volving on it by law. People vs. Voorhis, 
 115 App. Div. 218, 100 N. Y. 927. 
 
 5. To compel Board of Registry and Elec- 
 tion to make up and sign such statement 
 as is required by P. L. 1903, p. 617, p, 15.
 
 ELECTION CONTESTS Igi 
 
 Freeman vs. Registry and Election of Me- 
 tuchen (N. J. Law), 67 A. 713. In sndi 
 case the ballot boxes may be opened if such 
 statement cannot be prepared without do- 
 ing so. Id. 
 
 6. Cosgriff vs. San Francisco Election 
 Com'rs (Cal.), 91 P. 98. 
 
 7. Jenny vs. Alden, 79 Vt. 156,64 A. 609. 
 
 8. Robinson vs. McCandless, 29 Ky. L. R. 
 1088, 96 S. W. 877. One to whom a certificate 
 of nomination has been issued. State vs. 
 Goff, 129 Wis. 668, 109 N. W. 628. 
 
 9. People vs. Edgar County Sup'rs, 223 
 111. 187, 79 N. E. 123. 
 
 10. Under Rev. Laws, c. 11, p. 421, the 
 Supreme Judicial Court has jurisdiction to 
 issue mandamus to compel registrars not to 
 count such a ballot cast at a local option 
 election. Brewster vs. Sherman (Mass.), 80 
 N. E. 821. 
 
 11. Lehman vs. Pettingell (Colo.), 39 P. 
 48; State vs. Mason (Wash.), 88 P. 126. 
 
 12. Laws, 1896, p. 964, c. 909, P. 111. 
 People vs. Beam, 183 N. Y. 266, 80 N. E. 921. 
 
 13. Where "questioned" ballots were 
 lodged with Clerk of County Court for safe 
 keeping, but had not been preserved in man- 
 ner required by law, it was held mandamus 
 would not issue to require election of offi- 
 cers to assemble and certify as to whether
 
 182 ELKCTIOX LAW8 
 
 such ])allots returned to them had been 
 counted, and if so, for whom. Childress vs. 
 Pinson (Ky.), 100, S. W. 278. Mandamus will 
 not issue to compel election officers to sign 
 certificates attached to stub book from their 
 precinct, where duplicate certificate used by 
 election commissioners in canvassing returns 
 has been presented and signed by officers. 
 Id. 
 
 14. Shannon's Code, pp. 5335, 5337. State 
 vs. Willett, 127 Tenn. 334, 97 S. W. 299. 
 
 15. Adequate remedy is given by Code, 
 1904, pp. 83a, 86. Spitler vs. Guy (Va.) 58 
 S. E. 769. 
 
 16. If the recount is erroneous the remedy 
 by quo warranto is open. Dickenson vs. Che- 
 boygan County Canvassers, 148 Mich. 513, 15 
 Det. Leg. N, 196, 111 X. W. 1075. 
 
 17. Lauritsen vs. Segard, 99 Minn., 313, 
 109 N. W. 404. Mandamus cannot be in- 
 voked to settle a doubtful claim to an of- 
 fice or to have the title to an office adjudi- 
 cated upon as between adverse claimants. 
 Hoy vs. State (Ind.), 81 N. E. 509. 
 
 18. Candidate claiming election to council. 
 State vs. Kendall (Wash.), 87 P. 821. 
 
 19. State vs. Mason (Wash.), 88 P. 126. 
 
 20. Rev. Laws, c. 192, p. 5. Brewster vs. 
 Sherman (Mass.). 80 X. E. 821. 
 
 21. Candidate claiming election to a mu-
 
 ELECTION CONTESTS 183 
 
 nieipal council, i^tate vs. Kendall (Wash.), 
 87 P. 821. The candidates for Sherift* and 
 Treasurer of a county on the same ticket may 
 join, under Code Civ. Prac, p. 10. Lehman 
 vs. Pettingell (Colo.), 89 P. 48. 
 
 22. I\landamus proceedings to compel call- 
 ing of election to vote upon disincorporation 
 of a city, as required by Henning's Gen. 
 Lawp., 989. p. 1, must be brought against 
 Board of Trustees. Taylor vs. Burke (Cal. 
 App.), 91 P. 814. 
 
 23. State vs. Kendall (Wash.), 87 P. 821. 
 
 24. Where petition is for mandamus to 
 compel inspectors of town meeting to .de- 
 clare and clerk to enter result of meeting, 
 if inspectors have failed to count ballots, 
 such count is fairly within prayer of peti- 
 tion, and proceedings will not fail because 
 it is not expressly requirested. People vs. 
 Armstrong, 116 App. Div. 103, 101 N. Y. S. 
 712. 
 
 25. Petition for mandamus to erase from 
 registration books, residents and members 
 of Soldiers' Home will not be granted wdiere 
 names of such persons are not stated and 
 some of them are entitled to registration. 
 State vs. Willett, 117 Tenn. 334, 97 S. W. 299. 
 Petition for mandamus to compel election 
 commissioners to place the names of nomi- 
 nees upon official ballot under name and 
 device of a certain party is insufficient if it
 
 384 ELECTION LAWS 
 
 fails to allege that certificate of nomination 
 designated such title and device as required 
 by Burn's Ann. St. 1901, p. 6215. State 
 vs. Board of Election Comrs. of ^Marshall 
 County, 1G7 Ind. 276, 78 N. E. 1016. 
 
 26. Pierce's Code, pp. 1420, 3521. State 
 vs. Kendall (Wash.) 87, p. 821. 
 
 27. Costs awarded against board where 
 writ issued at suit of candidate claiming 
 election. State vs. Kendall (Wash.) 87, p. 
 821 M. 
 
 28. People vs. Voorhis, 186 N. Y. 263; 
 78 N. E. 1001. 
 
 29. Current Law, Vol. 9, pp. 1052-4. 
 
 Section 49. Right of Private Persons to Enforce 
 
 Public Right or Duty Relative to Elections 
 
 by Writ of Mandamus 
 
 ' ' There is a great weight of American au- 
 thority in favor of the doctrine that any 
 private person may move, without the inter- 
 vention of the attorney general, for a writ of 
 mandamus to enforce a i^ublic duty not due 
 to the government as such. ' ' ^ 
 
 In the great majority of States, as an ap- 
 plication of this principle it is held that a 
 private person, as relator, may enforce by 
 mandamus, a public right or duty relating 
 to elections without showing any special in-
 
 ELECTION CONTESTS 185 
 
 terest which he possesses in the results of 
 the election distinct from the interest of the 
 public.- 
 
 In Texas it has been held that an individual 
 need not sue as relator, but may bring the 
 suit in his own name.^ 
 
 In Michigan, on the other hand, a private 
 individual must show some special and dis- 
 tinct interest in himself in the result of the 
 election, in order to be permitted to enforce 
 public rights, relative to such election, by 
 mandamus.^ 
 
 In some jurisdictions, under statutes pro- 
 viding that the writ of mandamus may issue 
 on the application of the party beneficially 
 interested, it has been held that a private per- 
 son is beneficially interested, and as relator 
 may enforce by mandamus a public right or 
 duty relating to elections, without showing 
 an interest therein ditferent from the interest 
 of the public at large.^ 
 
 Notes 
 
 1. Chief Justice Gray in Attorney Gen- 
 eral vs. Boston, 123 Mass. 460, 479. 
 
 2. Brewster vs. Sherman et al., 195 Mass. 
 222; 11 Am. and Eng. Ann. Cases, 417; Rizer 
 vs. People, 18 Colo. App. 40, 69 Pac. Rep. 
 315; State vs. Mason, 45 Wash. 234, 88
 
 180 ELECTION LAWS 
 
 Pac. Rop. 121): Stale vs. Jefferson County. 
 17 Fla. 707 ; ("onnnonwealth vs. Tree, 4 Phila. 
 362; State vs. St. Louis Public Schools, 134 
 .Mo. 296; 35 S. W. Rep. 617; State vs. Shrop- 
 shire, 4 Neb. 411. 
 
 3. Kimbery vs. Morris, 87 Tex. 637, 313 S. 
 ^Y. Rep. 808. 
 
 4. Debridge vs. Green, 29 Mich. 121; 
 Smith vs. Saginaw, 81 Mich. 123, 45 N. W. 
 Rep. 964. 
 
 5. Note to Am. and Eng. Ann. Cases, 
 Vol. 11, p. 420. Chumasero vs. Potts, 2 
 Mont. 242 ; State vs. Brown, 38 Ohio St. 344 ; 
 State vs. Tanzey, 49 Ohio St. 656, 38 N. E. 
 Rep. 750; State vs. Lien, 9 S. Dak. 297, 68 
 N. W. Rep. 748. See also Smith vs. Law- 
 rence, 2 S. Dak. 185, 49 N. W. Rep. 7. 
 
 Section 50. Certiorari 
 
 Certiorari is a remedy which may occa- 
 sionally be used to advantage in election 
 contests. 
 
 Certiorari may be brought to annul an 
 injunction, on the ground that it is issued 
 without jurisdiction, where the remedy by 
 api)eal is inadequate; as, for example, in the 
 case of an injunction restraining the use of 
 voting machines where appeal cannot be 
 heard until after election.^ 
 
 Ballot boxes containing ballots, keys and
 
 ELECTION CONTESTS 187 
 
 reports of election officials are not judicial 
 records reviewable under a writ of cer- 
 tiorari. - 
 
 Notes 
 
 1. United States Standard Voting ^la- 
 chine Company vs. Hobson, 132 Iowa 38, 109 
 N. ^Y. Rep. 458. 
 
 2. State vs. Reynolds, 190 Mo. 578, 89 
 S. W. 877. 
 
 Section 51. Prohibition 
 
 Tlie writ of prohibition can be seldom used 
 in election contests. It will not lie to pre- 
 vent ministerial acts ;^ to prevent a person 
 from holding an office to which he is not 
 entitled;- or to prevent a chancery judge 
 from issuing an injunction in election cases. ^ 
 
 The writ may be used to prevent can- 
 vassing boards from exercising judicial 
 powers.^ 
 
 Notes 
 
 1. Greir vs. Taylor, 4 McCord L. (S. Car.) 
 206. 
 
 2. Bucker vs. Verive, 63 Cal. 304. 
 
 3. Ex parte Reid, 50 Ala. 439. 
 
 4. Brazie vs. Fayette County, 25 W. Va. 
 23.
 
 188 ELECTION LAWS 
 
 Section 52. Injunctions 
 
 A court of equity may issue an injunction 
 in matters relative to elections, the same as 
 in other controversies. The proper use of 
 injunctions in election matters, however, has 
 a limited scope. 
 
 ''An injunction will be granted to restrain 
 a county clerk from certifying to judges of 
 election, fraudulent and fictitious registra- 
 tions,^ and a temporary injunction will issue 
 to restrain a county committee for party pri- 
 maries,^ but an injunction will not issue to 
 direct or control the mode in which an elec- 
 tion shall be held^ to restrain the placing of 
 the names of candidates duly nominated upon 
 the official ballot on the ground that there is 
 no vacancy to be filled at the election,^ or to 
 restrain a county clerk from canvassing the 
 vote on the question of granting a franchise 
 on the ground that the election was illegal.^ 
 In Colorado, the district court has jurisdic- 
 tion to issue an injunction to restrain the 
 county clerk from certifying to judges of 
 election fraudulent and fictitious registra- 
 tions made by him.^ Any member of a po- 
 litical party may sue to enjoin the county 
 committee of such party from enforcing an 
 illegal system of enrollment for party pri- 
 maries." The complaint in an action for
 
 ELECTION CONTESTS 180 
 
 injunction must allege facts sufficient to con- 
 stitute a cause of action." ^ ^ 
 
 In Dickey vs. Reed,^^ the court held that a 
 court of chancery has no power to restrain, 
 by injunction, a board of canvassers from 
 canvassing the returns of an election, where 
 the law under which the election was held, 
 neither in terms nor by implication confers 
 such power, and where there are no facts 
 before the court which requires it to take 
 judicial cognizance, and hear, adjudicate and 
 decree. 
 
 "Whilst the writ of injunction is one of the 
 most important in the law, and is, in fact, 
 indispensable to the complete administration 
 of justice, it is liable to great abuse, and it 
 would not be wise, nor would it promote jus- 
 tice, to extend its use to cases of doubtful 
 right, or to accomplish ends where there are 
 other adequate remedies. 
 
 "A writ of injunction, issued in a matter 
 where the court could not, under any circum- 
 stances, have power to hear, determine and 
 decree in reference to such matter, is coram 
 non judice, and void. 
 
 ''Where a writ of injunction is issued by a 
 court which has power over the subject mat- 
 ter, and authority to take jurisdiction, it must 
 be obeyed, but where the power of the court
 
 190 ELECTION LAWS 
 
 is wholly wanting, the writ is void, and can 
 legally operate on no one, nor can any one be 
 punished for contempt for disobeying it. 
 
 "It was not designed, when the funda- 
 mental law of the State was framed, that 
 either department of government should in- 
 terfere with or control the other, and it is 
 for the political power of the State, within 
 the limits of the constitution to provide the 
 manner in which elections shall be held, and 
 how they shall be contested, and the courts 
 can not interfere." 
 
 If a court of equity issues an injunction 
 relative to any aspect of an election, and such 
 injunction is beyond the power of the court, 
 the officials against whom the injunction is 
 issued may disregard it, without being in 
 contemi3t of court for such disobedience." 
 
 In some casee the question as to whether 
 an injunction can properly be issued is com- 
 plicated by the presence of other elements 
 than those directly concerned with the sub- 
 ject of elections. The problem is not unlike 
 that relative to injunctions against criminal 
 acts. It was formerly held, by an unbroken 
 line of decisions, that no injunction would lie 
 against the commission of a criminal act. 
 The recent decisions have modified this to
 
 ELECTION CONTESTS 191 
 
 the extent of holding that if a threatened act 
 will interfere with property rights it may 
 properly be enjoined, even althongh the act 
 may also constitute a crime. It would seem 
 as if a like principle would be properly ap- 
 jDlicable in election cases. In other words, a 
 court of equity may properly enjoin a threat- 
 ened trespass upon property, even although 
 there is involved indirectly an election dis- 
 pute, in relation to which equity would have 
 no authority to issue an injunction. Under 
 this theory an equity court might enjoin any 
 interference with the possession of a hall, in 
 which a meeting of a political convention had 
 been called. 
 
 Notes 
 
 1. Granting such an injunction does not 
 violate Const. Art. 2, p. 5, which declares 
 "that all elections shall be free and open, 
 and that no poAver, civil or military, shall at 
 any time interfere to prevent the free exer- 
 cise of the right of suffrage." Aiehels vs. 
 People (Colo.) 90, p. 1122. 
 
 2. Brown vs. Cole, 54 Misc. 278, 104 N. Y. 
 109. But a permanent injunction will not 
 be granted restraining chairman of such a 
 committee from putting into operation cer- 
 tain alleged illegal rules and regulations for 
 conduct of primaries, where primaries have
 
 192 ELECTION LAWS 
 
 been held and there was no effort to enforce 
 such rules and regulations are in force or 
 threatened to be enforced. (Brown vs. Cole, 
 105 N. Y. S. 196), but upon dismissal of 
 such suit, if the rules and regulations are 
 illegal, no costs will be allowed. (Id.) 
 
 3. Injunction will not issue to restrain 
 use of voting machines. United States Stand- 
 ard Voting Mach. Co. vs. Hobson, 132 Iowa 
 38, 109 N. AV. 458. 
 
 4. Sherlock vs. District Ct. (Colo.) 38, p. 
 396. 
 
 5. Such question can be determined in 
 the proceeding provided by Civ. Code, p. 289, 
 to test validity of franchise. Vickery vs. 
 Wilson (Colo.) 90, p. 1034. Such an injunc- 
 tion will not be granted because pending 
 determination of validity of franchise by 
 proceedings in quo warranto, plaintiff will 
 suffer loss from depreciation of value of his 
 stock in a rival company. Id. 
 
 6. Aichele vs. People (Colo.) 90, p. 1122. 
 
 7. Brown vs. Cole, 54 Misc. 278, 104 N. Y. 
 S. 109. 
 
 8. Facts alleged in complaint in action to 
 enjoin county committee of political party 
 from enforcing illegal system of enrollment 
 for party primaries held to constitute cause 
 of action. Brown vs. Cole, 54 Misc. 278, 104 
 N. Y. S. 109. 
 
 9. Current Law, Vol. IX, p. 1054.
 
 ELECTION rOX TESTS 193 
 
 10. 78 111. 261. 
 
 11. Walton vs. Develing, 61 111. 201 ; Darst 
 vs. People, 62 111. 806. 
 
 Section 53. Right of Contestant for Office to 
 
 Enjoin Incumbent from Performing- Public 
 
 Duties Pending Election Contest 
 
 Where opposing candidates for public office 
 both claim to have been elected to the office, 
 an injunction restraining the party who has 
 possession of the office from exercising the 
 functions pertaining thereto, pending an in- 
 vestigation of the claims of the parties, will 
 not be granted at the suit of the adverse 
 claimant. The courts are harmonious upon 
 this point. ^ 
 
 In Vette vs. Byington, the court said : ' ' It 
 is a rule, long established in this State, and 
 indeed it is a general rule . . . that a 
 court of chancery will not interfere by injunc- 
 tion, before a trial at law, in favor of an 
 officer de jure against an illegal claim when 
 the latter is already in possession of the 
 office. ' ' 
 
 The strongest and soundest reason for this 
 legal principle is one based upon public pol- 
 icy, as great public inconvenience would 
 result if the exercise of the duties of the 
 office were suspended.^ Another reason for 
 this rule is found in the existence of a plain,
 
 194 ELECTION LAWS 
 
 complete and adequate remedy at law, either 
 under statutory provisions regulating elec- 
 tion contests, or by quo warranto proceed- 
 ings.^ 
 
 In Gilroy vs. Appeal,^ the court said : 
 
 ''The only jDroper remedy by which such 
 questions may be determined in quo war- 
 ranto, which is a plain, simple, adequate, and 
 complete remedy. It is no more cumbrous 
 or dilatory than the remedy of injunction, 
 and it is much more comprehensive, comj^lete 
 and appropriate. And the equitable juris- 
 diction to restrain by injunction will never be 
 exercised where another plain and adequate 
 remedy exists." 
 
 ''While equity has no jurisdiction to de- 
 termine the right to hold and exercise a 
 public office, the appropriate remedy being 
 by quo warranto proceedings, yet where the 
 parties have agreed ujoon the record to waive 
 the question of jurisdiction and the court 
 below has considered the case as if it had 
 been brought before it by writ of quo war- 
 ranto, a decree awarding an injunction will 
 be regarded as equivalent to a judgment of 
 ouster in quo warranto proceedings." ^ 
 
 In a few States the question has arisen as 
 to whether the State statutes autliorized the 
 issuance of an injunction in this class of con-
 
 ELECTION CONTESTS 195 
 
 troversies; in all the cases on this point it 
 was decided that the injunction was not 
 authorized^ 
 
 Notes 
 
 1. Note to Am. and Eng. Ann. Cases, Vol. 
 XVI, p. 1052, citing Alabama, Little vs. Bes- 
 semer, 138 Ala. 127, 35 So. 64; Arkansas, 
 Lucas vs. Futrall, 84 Ark. 540, 106 S. W. 
 667; Colorado, Lawson vs. Hays, 39 Colo. 
 250, 89 Pac. 968 ; Georgia, Davis vs. Dawson, 
 90 Ga. 817, 17 S. E. 110; Illinois, Deemar 
 vs. Boyne, 103 111. App. 464 (see also Burgess 
 vs. Davis, 138 111. 582, 28 N. E. 817, affirming 
 37 111. App. 353) ; Indiana, Beal vs. Ray, 1 
 Ind. 554; Iowa, Vette vs. Byington, 132 la. 
 487, 109 N. W. 1073 ; Kansas, State vs. Dur- 
 kee, 12 Kan. 308 ; Kentucky, see the reported 
 case ; Louisiana, State vs. Rost, 47 La. Ann. 
 65, 16 So. 780; Minnesota, Burke vs. Leland, 
 51 Minn. 355, 53 N. W. 716; Mississippi, 
 Moore vs. Caldwell, Freem. 222; Missouri, 
 State vs. Withrow, 154 Mo. 397, 55 S. W. 
 460; Nebraska, State vs. Kearney, 28 Neb. 
 103; New York, People vs. Farley, 1 How. 
 Pr., N. S. 71; North Carolina, Jones vs. 
 Granville, 77 N. C. 280; Ohio, Harding vs. 
 Eichinger, 57 Ohio St. 371, 49 N. E. 306; 
 Pennsylvania, Hagner vs. Heyberger, 7 W. 
 & S. 104, 42 Am. Dec. 220; So. Carolina, 
 State vs. Rice, 66 S. C. 1, 44 S. E. 80 ; Tennes- 
 see, Adcock vs. Houk, 122 S. W. 979 ; Texas,
 
 196 ELECTION LAWS 
 
 jMcAlU'ii vs. Rhodes, G5 Tex. 348; Virginia, 
 Kilpatrick vs. Siiiitli, 77 Va. 347; West Vir- 
 ginia, Swinbnrn vs. Smith, 15 W. Va. 483. 
 
 2. 132 la. 487, 109 N. W. 1073. 
 
 3. Patterson vs. Hubbs, 65 N. C. 119. 
 
 4. Deeinar vs. Boyne, 103 111. App. 464; 
 Harding vs. Eichinger, 57 Ohio St. 371, 48 
 N. E. 306; Hotehkiss vs. Keek, 84 Neb. 545, 
 121 N. W. 579. 
 
 5. 100 Pa. St. 5. 
 
 6. Hayes vs. Sturges, 215 Pa. St. 605, 64 
 Atl. 828. 
 
 7. Patterson vs. Ilubbs, 65 X. C. 119; 
 State vs. Alexander, 107 la. 177. 77 N. W. 
 841 ; State vs. Herreid. 105 N. D. 16, 71 N. W. 
 319. 
 
 Section 54. Contests Before Legislative Bodies 
 
 The courts do not have the power to try 
 contested elections involving seats in the 
 Congress of the United States, or in the State 
 Legislature. The Constitution makes each 
 house of Congress, the judge of the elections, 
 returns and qualifications of its members.^ 
 Either house can decide all questions both 
 of law and of fact necessary to determine the 
 right of any individual who may claim to be 
 one of its members.- The returns from the 
 State authorities are only prima facie evi- 
 dence.^ A decision made bv either house
 
 ELECTION CONTESTS 197 
 
 cannot be reconsidered and reversed."* The 
 courts have no jurisdiction over questions 
 involving the right to a seat in either branch 
 of Congress.^ 
 
 The Constitutions of the different States 
 contain provisions similar to that in the Fed- 
 eral Constitution. In a number of States 
 inferior legislative bodies are also given the 
 right to judge of the election and returns of 
 their members.'^ 
 
 Every legislative body which has the power 
 to pass upon the returns and qualifications 
 of its members may (in the absence of ex- 
 press constitutional or statutory provisions 
 on the subject) adopt either general rules of 
 procedure for all such cases, or special rules 
 for each particular case. 
 
 Notes 
 
 1. United States Constitution, Art. I, Sec. 
 V, Clause T. 
 
 2. Baker vs. Bart, El. Cases 92. 
 
 3. Spaiilding vs. Mead, CI. & H., El. Cases 
 157. 
 
 4. The Louisiana Cases, Taft El. Cases, 
 426; Corbin vs. Butler, Taft El. Cases, 582. 
 
 5. State vs. Crawford, 28 Fla. 441 ; McDill 
 vs. Board of State Canvassers, 36 Wis. 505. 
 
 6. Foley vs. Tyler, 161 111. 167; People
 
 198 ELECTION LAWS 
 
 VS. Bingham, 82 Cal. 238; People vs. Essex 
 County, 69 Hun, (N. Y.) 406; Stearns vs. 
 Wyoming, 53 Ohio St. 352. 
 
 Section 55. Grounds for Election Contests 
 
 The grounds upon which election contests 
 may be based are so numerous and divers 
 that it is difficult to give any complete classi- 
 fication or enumeration of them. Fraud of 
 one kind or another in election is the most 
 general ground for election contests. There 
 is a marked difference in its effect upon the 
 election of fraud perpetrated by election of- 
 ficials, and fraud at the election committed 
 by third persons, without any guilt on the 
 part of the election officials. Fraud by the 
 judges and clerks of election will make the 
 whole returns from a precinct valueless.^ A 
 case of fraud and illegality, however, may 
 be made without in any way implicating the 
 election officials.- 
 
 Fraud by third persons merely destroys 
 the prima facie accuracy of the returns and 
 the true vote may be shown by evidence.^ 
 The cases are not in entire harmony as to 
 exactly where the burden of proof will rest 
 in such cases. 
 
 ' ' The rule of purging the poll bj^ deducting 
 the illegal votes proportionately from the
 
 ELECTION CONTESTS 199 
 
 different candidates, cannot properly be 
 adopted in cases of fraud, as this would give 
 the fraudulent party the benefit of one-half 
 of the fraudulent votes, and deduct from the 
 honest party the same number. Therefore, 
 where there is no evidence by which an exact, 
 or nearly exact, legal result can be reached, 
 the whole poll should be rejected, in which 
 case each party will receive the vote which 
 he proves to have been cast for him ; but this 
 rejection of the whole poll should never be 
 permitted where the true result can be other- 
 wise reached. " * ^ 
 
 It is an old principle of the Common Law, 
 and it is set out in the Constitution of many 
 of the States of the country, that all elections 
 ought to be free, and violence and intimida- 
 tion will therefore be a sufficient basis for 
 setting aside elections or for rejecting the 
 votes of certain precincts.^ 
 
 It is a well established principle that the 
 State militia should never be used at the 
 polls on election day except when such dras- 
 tic action is absolutely necessary to prevent 
 the holding of an election being prevented by 
 violence ; and furthermore, that such militia, 
 except in cases of absolute necessity, should 
 not be called out on election day even for 
 purposes entirely unconnected with election.
 
 200 ELECTION LAWS 
 
 The revised statutes of the United States''' 
 prohibits the bringing of armed troops to 
 the polling place except to keep the peace or 
 to repel the armed enemies of the United 
 States. The use of the police at polling- 
 places is unfortunately generally necessary 
 to a certain degree, but any intimidation on 
 the part of the police, deputy sheriff, mar- 
 shal, or other similar officer, will be just as 
 effective to vitiate an election as an interfer- 
 ence by the regular army.^ 
 
 The rule as to the degree of intimidation 
 or violence which will be sufficient to thus 
 vitiate an election is not unlike the rule as 
 to the degree of intimidation or force neces- 
 sary to render a contract voidable on the 
 ground of duress. In the case of elections, 
 the intimidation or violence must be of such 
 a character and degree that a man of ordi- 
 nary firmness and courage would be deterred 
 from voting. The intimidation need not be 
 in the nature of threats of physical violence. 
 It has been held that where there was a com- 
 bination on the pai't of employers to threaten 
 their workingmen witli the loss of their occu- 
 pation unless they voted as directed, this was 
 sufficient to render the election void if the 
 intimidation was extensive enough to affect 
 the result.'' It has even been held that
 
 ELECTION CONTESTS 201 
 
 threats of sociaP'^ or religioiis^^ ostracism 
 may have such an effect in intimidating 
 voters as to render an election void. 
 
 Bribery is a sufficient ground for setting- 
 aside an election.^- A great deal of confu- 
 sion often arises from the fact that two en- 
 tirely different legal principles as to bribery 
 are confused together. One rule of law has 
 to do with the effect of briliery in disqualify- 
 ing a candidate guilty of such an act from 
 holding the office to which he has been 
 elected; and the second relates to the viti- 
 ation of the election itself on account of the 
 bribery both by Common Law and statute in 
 England,^ ^ and by Constitutional or statutory 
 provisions in most of the States in this coun- 
 try.^^ Bribery by a candidate personally or 
 by any i^erson in his behalf with his knowl- 
 edge or consent disqualifies such candidate 
 from holding the office to which he is elected. 
 In such cases the number of the votes bought, 
 or the question as to whether or not such 
 votes could change the result of the election 
 are absolutely immaterial. The guilty can- 
 didate is disqualified as a punishment for his 
 illegal act and not on the ground that he did 
 not receive a majority of the votes legally 
 cast. The rule is very different where the 
 bribery is by a third person with no proved
 
 202 ELECTION LAWS 
 
 authority or consent from the candidate him- 
 self. If tlie l)ril)ery is general enough it ma}' 
 in an extreme case be a sufficient ground for 
 holding the election void or to throw out the 
 entire vote of certain precincts or election 
 districts. A more general result is the rejec- 
 tion of the votes which have been so bought. ^•''' 
 
 In State vs. Olin/*^ the Supreme Court of 
 Wisconsin said: 
 
 ''In our form of government, where the 
 administration of public affairs is regulated 
 by the will of the people, or a majority of 
 them, expressed through the ballot box, the 
 free exercise of the elective franchise by the 
 qualified voters is a matter of the highest 
 importance. The safety and perpetuity of 
 our institutions depend upon this. It is, 
 therefore, particularly important that every 
 voter should be free from any pecuniary in- 
 fluence. For this reason the attempt by 
 bribery to influence an elector in giving his 
 vote or ballot is made an indictable offense. 
 . . . Can a vote thus obtained, in direct 
 violation of the statute, be considered a valid 
 or a legal vote? If it can, then the very object 
 of the statute, which is that it shall not be 
 so obtained, is defeated. We are of opinion 
 that such votes are illegal and that the judge 
 was right in directing the jury to disregard
 
 ELECTION CONTESTS 203 
 
 them. This conclusion is sustained by the 
 authorities, so far as we have been able to 
 find any." 
 
 While a candidate may legally employ per- 
 sons to work for him in his campaign as can- 
 vassers, speakers, etc., such employment may 
 constitute bribery where the real purpose of 
 the employment was to secure the vote rather 
 than the services of the persons employed.^" 
 Or where the person employed is compelled 
 as a condition for such securing such employ- 
 ment to agree to vote for the candidate 
 employing him.^^ 
 
 The making of a loan to a voter,^'' or even 
 the payment of a past debt,-° may be suf- 
 ficient to constitute bribery when the loan 
 or the payment is for the purpose of in- 
 fluencing the vote of the person receiving it. 
 
 The sale of goods for a price far below the 
 true value of the article, or the purchase of 
 goods far above their value may constitute 
 bribery.-^ 
 
 In a Wisconsin case,^- where a candidate 
 had agreed to perform the duties of the office 
 for four hundred dollars less than the com- 
 pensation allowed by law, it was held that 
 while this did not technically constitute brib- 
 ery, still it was so strongly against public
 
 204 ELECTION LAWS 
 
 policy that the votes seeui-ed through this 
 promise should be rejected. 
 
 In addition to the forms of bribery already 
 referred to, there are an almost unlimited 
 number of other indirect methods of bribery 
 which would be sufficient to invalidate any 
 votes which may be secured thereby. It is 
 said that the use of undue influence upon 
 voters may be sufficient either to render the 
 election void or to throw out certain votes. 
 The scope of the doctrine is very vague and 
 uncertain and the ])ossibility for such undue 
 influence has boon mainly done away with 
 by the adoption of the Australian ballot sys- 
 tem, and the principle is of little importance 
 in this country. 
 
 Eelief will not be granted on a doubtful 
 showing^^ to review a void election,-^ or to 
 change what could not change the result.-^ 
 
 Notes 
 
 1. Knox Coimty vs. Davis, 6.3 111. 40.5. 
 
 2. Whaley vs. Thompson. L") Tex. Ct. Rep. 
 207, 93 S. W. Rep. 212. 
 
 .3. Knox County vs. Davis. 63 111. 405; 
 Foley vs. Tyler, 161 111. 167: Wa<ihbnrn vs. 
 Voorhis, 2 Bart. El. Cas. 54. 
 
 4. Le]\loyne vs. Farwell, Smith El. Cas. 
 411.
 
 ELECTION CONTESTS 205 
 
 5. 10 American and Eng. Encyc. of Law, 
 p. 775. 
 
 6. Jones vs. Glidewell, 53 Ark. 161 ; Hodge 
 vs. Jones, 43 S. W. 41. 
 
 7. Section 2002. 
 
 8. English vs. Peele, 48 Cong. H. Rep. 
 1547. 
 
 9. Duffy vs. Mason, 1 Ellsw. El. Cas. 362. 
 
 10. Richardson vs. Rainey, 1 Ellsw. El. 
 Cas. 233. 
 
 11. Trench vs. Nolan, 6 Ir. Rep. C.L. 464. 
 
 12. Whaley vs. Thomason, 15 Tex. Ct. 
 Rep., 93 S. W. Rep. 212. 
 
 13. In re Launceston Election Petition 
 L. R., 9 C. B. 626. 
 
 14. State vs. Elting, 29 Kan. 397; State 
 vs. Collier, 72 Mo. 13 ; State vs. Dustiu, 5 
 Oregon 375. 
 
 15. Commonwealth vs. Shaiier, 3 W. & S. 
 (Pa.) 338; White's Contested Election, 4 Pa. 
 Dist. Rep. 363. 
 
 16. 23 Wis. 327. 
 
 17. Reg. vs. Stewart, 16 Ont. Rep. 583. 
 
 18. Abbott vs. Frost, Smith El. Cas. Tor; 
 Gloucester Case, 20 Mai. & H. El. Cases 62. 
 
 19. Lynne vs. Regis, 1 P. R. & B. El. 
 Cas. 35. 
 
 20. McKay vs. Glen, Ilodgin's Election 
 Cas. 751. 
 
 21. Bergin vs. Macdouald, Ilodgin's Elec- 
 tion Cas. 547.
 
 206 ELECTION LAWS 
 
 22. State vs. Purdy, 36 Wis. 213. 
 
 23. In re Slattery, 100 N. Y. S. 419. 
 
 24. Phillips vs. Brynus, 39 So. 911. 
 
 25. In re Burrell, 100 N. Y. S. 470. 
 
 Section 56. Effect of Irregularity or Fraud in 
 
 Nomination of Candidate Upon the Validity 
 
 of Election 
 
 Tlie American rule is that all questions as 
 to irregularities or fraud in the nomination 
 of candidates to be voted upon in any elec- 
 tion must be raised prior to such election, 
 and that the title of a person legally chosen 
 at the election cannot be assailed on account 
 of any flaw in the legality of his nomination.^ 
 
 In Attorney-General vs. Campbell,^ the 
 Supreme Court of Massachusetts said : "We 
 are of opinion that, while the provisions as 
 to holding caucuses for the nomination of 
 candidates and as to the filing of nomination 
 papers are binding upon the officers for whose 
 guidance they are intended, they may be 
 disregarded in determining the validity of a 
 subsequent election, if it plainly appears that 
 the will of the majority of the electors is 
 fairly expressed by their ballots." 
 
 ''The following irregularities have been 
 held not to invalidate elections : Nominations 
 made by person or political party not entitled
 
 ELECTION CONTESTS 207 
 
 to make nominations;" nomination to fill va- 
 cancy caused by resignation of candidate, 
 nomination not being made in proper man- 
 ner;^ party nomination improperly made by 
 petitions f nomination papers altered by can- 
 didate, no fraud being shown f failure to call 
 caucus in proper manner ;" failure to file cer- 
 tificate of nomination;^ failure to file certifi- 
 cate in time;'' failure to set out in certificate 
 what statute required ;^*^ failure to acknowl- 
 edge properly certificate of nomination ;^^ 
 failure on part of clerk to make proper pub- 
 lication of nominations." ^- ^^ 
 
 The generdl principle of the law here in- 
 volved is well stated in the case of Jones vs. 
 State,^"* as follows : 
 
 ''It is the duty of the courts to uphold the 
 law by sustaining elections thereunder that 
 have resulted in a full and fair expression of 
 the public will, and, from the current of 
 authority, the following may be stated as the 
 approved rule: All provisions of the elec- 
 tion law are mandatory if enforcement is 
 sought before election in a direct proceeding 
 for that purjDose; but after election, all 
 should be held directory only, in support of 
 the result, unless of a character to effect an 
 obstruction to the free and intelligent cast- 
 ing of the vote, or to the ascertainment of the
 
 208 ELECTION LAWS 
 
 result, or unless the provisions alTect an es- 
 sential element of the election, or unless it is 
 oxpressh' declared ])y the statute that the 
 particular act is essential to the validity of 
 an election, or that its omission shall render 
 it void. ' ' 
 
 The lilnglish rule on this question is con- 
 trary to the American rule, it being held in 
 England that the validity of an election may 
 be destroyed by irregularities, or fraud, in 
 the nomination of candidates. ^^ 
 
 Notes 
 
 1. Territory ex rel AVillis vs. Kanealii, 17 
 Hawaii 243. 
 
 2. 191 Mass. 497, 78 X. E. Rep. 144. 
 
 3. Sehuler vs. Hogan, 168 111. 3(i9, 48 N. E. 
 Rep. 195; Bowers vs. Smith, 111 Mo. 4:), 20 
 S. W. Rep. 102, overruled IMcKay vs. ^Nlinner, 
 154 Mo. 608, 55 S. W. Rep. 866.' 
 
 4. Baker vs. Scott, 4 Idaho 596, 43 Pac 
 Rep. 76; Kulp vs. Bailey (Tex., 1905), 89 
 S. W. Rep. 957. 
 
 5. State vs. Fransham. 10 Mont. 273, 48 
 Pac. Rep. 1. 
 
 6. State vs. Bunnell (Wis., 1907), 110 
 N. W. Rep. 177. 
 
 7. Atty. Gen. vs. Campbell, 191 :\Iass. 
 497, 78 N. E. Rep. 133. 
 
 8. Peabody vs. Nurch (Kan., 1907), 89 
 Pac. Rep. 1016.
 
 ELEt'TlOxX CONTESTS 209 
 
 9. Blackmer vs. Hildreth, 181 Mass. 29, 
 03 X. E; Rep. 14; State vs. Deputy State Su- 
 pervisors, 9 Ohio Cir. Dec. 427. 
 
 30. OAven vs. Milhoan, 72 Kan. 701, 83 
 Pae. Rep. 1044. 
 
 11. Jones vs. State, 153 Ind. 440, 55 N. E. 
 Rep. 229. See also Bragdon vs. Navarre, 102 
 Mich. 259, 60 N. W. Rep. 277. 
 
 12. Allen vs. Glynn, 17 Colo. 338, 29 Pae. 
 Rep. 670. 
 
 13. 7 American and English Annotated 
 Cases, 840 note. 
 
 14. 153 Ind. 440, 55 N. E. Rep. 229. 
 
 15. Reg. vs. Parkinson, L. R. 3 Q. B. 11. 
 
 Section 57. Pleading and Evidence in Election 
 Contests 
 
 Pleadings in election cases do not strictly 
 follow the rules of either Common Law. 
 Equity or Code Pleading, but much more 
 closely resemble the last two systems of 
 pleading than the first. 
 
 In the statutory provisions relative to 
 election contests the forms of the pleadings 
 are generally not treated, A plain statement 
 of the facts upon which the complainant relies 
 for relief are generally sufficient. 
 
 An election contest, being a special pro- 
 ceeding, the facts giving the court jurisdic-
 
 2]0 KLKCTIOX LAWS 
 
 tion must appear upou the face of the plead- 
 ings.^ 
 
 A person contesting tlie election of an 
 officer must always set out in his pleading 
 that he was a candidate for the same office.^ 
 A bill of particulars may be ordered where 
 the petition does not set out the irregularities 
 with sufficient particularities.^ A petition in 
 an election contest may be bad as being too 
 indefinite. As for example a petition which 
 alleged that the election judges in each and 
 every precinct threw out a large number of 
 legal votes given to the contestant, for the 
 reason that the cross was not placed in the 
 proper position.'* In another case the allega- 
 tion that ''a number of illegal votes had been 
 polled for the incumbent against the contest- 
 ant" w^as also held to be too indefinite.^ 
 
 The allegation that "a large number of 
 legal voters desired and attempted to cast 
 their votes, but with the knowledge, consent 
 and connivance of the judges of election, were 
 by violence and threats prevented from so 
 doing" was also held to be too indefinite.^ 
 
 In some cases it has been held that it is 
 necessary to allege that the illegalities com- 
 plained of changed the result,' while in other 
 cases it has been held that this need not be 
 alleged.^
 
 ELECTION CONTESTS 211 
 
 In Nickols vs. Eagsdale'^ the ground of con- 
 test filed in a proceeding to contest an elec- 
 tion for sheriff stated that the contestor re- 
 ceived 1,716 votes, and the contestee 1,719 
 votes ; that illegal votes were cast for the con- 
 testee in eight townships of the county, and 
 that, but for such illegal votes, the contestor 
 would have been elected. Held that, as illegal 
 votes were cast for the contestee in eight 
 townships, the number of such votes could 
 not have been less than eight, and as these, 
 taken from the vote of the contestee, would 
 show that the contestor was entitled to the 
 office, the grounds of contest were well 
 stated. 
 
 "An election petition which sets forth mere 
 conclusions of law, and not of fact, which 
 alleges mere irregularities in relation to the 
 qualification of the election officers, time of 
 opening the polls, etc., and which avers that 
 votes were irregularly received, without set- 
 ting forth facts which would show that the 
 rejection of these votes would change the 
 result, will be quashed, as it does not set forth 
 affirmative averments of fact from which the 
 court, if the facts alleged were admitted or 
 proved to be true, can determine that the 
 petitioners were entitled to the relief prayed 
 for, or to some relief." ^^
 
 212 ELECTION LAWS 
 
 The complainant must allege that he was 
 lawfully elected to the office, but it is not fatal 
 if he fails to allege that he is eligible to such 
 office.^ ^ 
 
 The method and form of the necessary 
 pleading to be filed by the defendant in an 
 election contest depends mainly upon the con- 
 stitution of the different states, and differs 
 greatly in the different jurisdictions. Thus, 
 in Alabama it is not necessary for the de- 
 fendant to tile any i)lea to the contestant's 
 statement.^- In Illinois the defendant may 
 set up any defense which shows that the com- 
 plainant is not entitled to the relief he seeks. ^•' 
 
 In contested election cases, tried before the 
 courts, the ordinary rules of evidence are en- 
 forced; but in contested elections, tried be- 
 fore legislative assemblies, the rules restrict- 
 ing the admission of evidence are very great- 
 ly relaxed. ^^ 
 
 The returns of an election or the certificate 
 based upon them, if they are regular in form 
 are prima facie evidence of the facts stated 
 on their face.^^ However, if the l)allots have 
 been preserved, they are better evidence than 
 the returns and should be recounted where 
 there is a contest.'^' But, before a recount 
 should be allowed to })revail over the original 
 returns, it must be siiown that the ballots
 
 ELECTTOX CONTESTS 213 
 
 have not been tampered witli.'" The mere 
 fact that the ballots have not been kept in the 
 manner prescribed by law does not neces- 
 sarily render them inadmissible as evidence/* 
 bnt does throw npon the person seeking to 
 introdnce them the bnrden of proof to show 
 that they have not been tampered with.^^ The 
 statutory provisions as to the keeping of 
 ballots are directory and not mandatory. In 
 Hughes vs. Holman,-" the court said: "It is 
 true that returns should be guarded with 
 jealous care, and all the forms of law should 
 be observed, but these rules are only direc- 
 tory. ... If the rule were otherwise and 
 all the statutory provisions mandatory, the 
 precinct canvassing board might falsify the 
 returns, and by that means perpetuate in 
 office or elect any person whom they choose. 
 The only act necessary upon the part of the 
 judges and clerks of election for this purpose 
 would be to send the ballots cast by some 
 unauthorized person to the county clerk, and 
 it would not matter if it could be shown by 
 the testimony of a multitude of unimpeach- 
 able witnesses that such person had exer- 
 cised the greatest care that the ballots, when 
 delivered to the county clerk, were in the 
 exact condition as when received, such evi- 
 dence could not be admitted to overcome the
 
 214 ELECTION LAWS 
 
 prima facie correctness of the returns. There 
 would be neither reason nor justice in such a 
 rule. ' ' 
 
 Poll books, if required by law to be kept, 
 are the best evidence as to who voted. -^ If 
 the poll books are still in existence and come 
 from the proper custody, no other evidence is 
 admissible to show who voted.-- If no poll 
 books were kept, or if they have been de- 
 stroyed, or are rejected as evidence on 
 account of fraud or other reason, other evi- 
 dence may be introduced as to who voted. 
 
 In general, evidence may be received as to 
 the existence of any fact, which, if proved, 
 would render the election void, throw out the 
 entire vote of the precinct or throw out any 
 individual vote. Evidence may be introduced 
 to show that any of the voters alleged to have 
 voted did not live in the precinct or were 
 otherwise unqualified, or did not themselves 
 cast the vote. The "best evidence rule" is 
 recognized and followed in the trial of elec- 
 tion cases, 2^ although, perhaps, not as rigidly 
 as in other legal proceedings. The rule 
 against hearsay evidence is strictly followed. 
 Public rumors, newspaper reports, etc., as to 
 the number of votes cast, etc., are not admis- 
 sible. The opinions of witnesses are not ad- 
 missible unless the question is one upon which
 
 ELECTION CONTESTS 215 
 
 exjDert testimony may properly be intro- 
 duced.-^ Tims, in Pattern vs. Coates,-^ it 
 was held by the Supreme Court of Arkansas 
 that witnesses should not be permitted to give 
 their opinion as to whether an election was 
 free or fairly conducted. 
 
 Where the election returns are illegal or 
 wanting, secondary evidence may be intro- 
 duced to show the actual vote ; and any candi- 
 date may introduce evidence to prove the 
 votes cast for him.-*^ 
 
 Notes 
 
 1. Gihespie vs. Dion, 18 Mont. 183, 44 
 Pac. Rep. 954. 
 
 2. Edwards vs. Knight, 8 Ohio 375. 
 
 3. Mann vs. Cassidy, 1 Brewst. 11. 
 
 4. Smith vs. Harris, 18 Colo. 274, 32 Pac. 
 Rep. 616. 
 
 5. Lunsford vs. Culton, 15 Ky. Law Rep. 
 504. 
 
 6. Soper vs. Sibley County Commission- 
 ers, 46 Minn. 274, 48 N. W. Rep. 112. 
 
 7. Lanier vs. Galatos, 13 La. Ann. 175. 
 
 8. Steele vs. Martin, 6 Kan. 430. 
 
 9. 28 Ind. 131. 
 
 10. In re Contested Election of Burke, 22 
 Pitts. Leg. J. 193. 
 
 11. Rutledge vs. Crawford, 91 Cal. 526, 27 
 Pac. Rep. 779.
 
 216 KI.KCTIOX LAWS 
 
 12. Griffen vs. Wall, :VZ Ala. 149. 
 
 13. Talkington vs. Turner, 71 111. 284. 
 
 14. Stiiupson vs. Breed, — and R. (IMass. 
 El. Cas.) 260. 
 
 15. People vs. Thaeker, 7 Laws (N, Y, 
 274) ; Territory vs. Pyle, 1 Oregon 149; Peo- 
 ple vs. Miller, 16 Mich. 56. 
 
 16. Beall vs. Albert, 159 111. 127 ; Newton 
 vs. Newell, 26 Minn. 529. 
 
 17. :Murphy vs. Bottle, 155 111. 182 ; Coglar 
 vs. Beard, 65 Cal. 58; Gooding vs. Wilson, 
 Smith Kl. Cas. 79. 
 
 18. Hughes vs. Hartman. 23 Oregon 482; 
 Apple vs. Barcroft, 168 111. 649. 
 
 19. Kingery vs. Berry, 94 111. 515. 
 
 20. 23 Oregon 981. 
 
 21. Newark's Case. 1 Fras El. Cas. 277. 
 
 22. Olive vs. O'Rilet, Minor (Ala.) 410. 
 
 23. Sinks vs. Reese, 19 Ohio St. 306. 
 
 24. Convery vs. Conger, 63 N. J. 658. 
 
 25. 41 Ark. 111. 
 
 26. Norris vs. Handley, Smith El. Cas. 73. 
 
 Section 58. Waiver of Right to Contest the 
 
 Legality of an Election by Participating 
 
 Therein 
 
 That a voter, not himself a candidate for 
 office, cannot be held to have waived the right 
 to contest the legality of an election through 
 his taking part in the election, is held in all 
 the decisions which refer to this question.^
 
 ELECTTOX CONTESTS 217 
 
 In state ex rel. Birchmore vs. State Board 
 of Canvassers :- the court said, on this point : 
 
 '' Therefore this election must be held in- 
 valid unless, as relator contends the respond- 
 ents have waived their right to contest the 
 election by taking part in it without objection 
 to the arrangements. 
 
 "By waiver is meant the intentional re- 
 linquishment of a known right, or such con- 
 duct as warrants an inference of the relin- 
 quishment of such a right. "... 
 
 "From the nature of the doctrine it may 
 and seems generally to be applied to all rights 
 to which the party is legally entitled. A 
 limitation, however, is usually recognized, 
 and where such waiver would be against pub- 
 lic policy it is not allowed to be operative. 
 Would such a waiver as is claimed here by 
 the relator be against public policy? The 
 provision in the Constitution requiring popu- 
 lar elections to be by ballot had in view of 
 the purity of elections and the prevention of 
 intimidation of voters at the polls. From 
 earliest times such results have been recog- 
 Tiized as highly beneficial to municipalities 
 and commonwealths. While it might ajopear 
 that primarily the object was to secure bene- 
 fits to electors, yet we think this purpose can 
 only be regarded as a means to an end. With
 
 218 ELECTION LAWS 
 
 the right of the individual elector secure, 
 necessarily it must follow that the State's 
 welfare in this respect would be safeguarded. 
 To attempt to enumerate the advantages of 
 a well-regulated franchise would unneces- 
 sarily prolong this opinion, yet many of them 
 must be evident to the most casual observer. 
 Therefore, to hold that the respondents in 
 this case are estopped from contesting the 
 election because they cast their ballots in the 
 election without protest at the time, we think 
 would be an invasion of the integrity of the 
 franchise system of the State. ' ' 
 
 It has also been held, that the members of 
 a county canvassing board of election returns, 
 who had canvassed the vote on a county seat 
 question, had not waived, thereby, their right 
 to deny their own right to act in the matter.^ 
 
 Candidates, however, may be estopped 
 from contesting the legality of an election in 
 which they participated and were defeated. 
 Thus, it has been held that a person who was 
 a candidate for a nomination at his party 
 caucus could not afterwards object to the 
 regularity of such caucus because votes of 
 persons not members of the party were re- 
 ceived thereat, where he was cognizant of 
 such fact at the time of the caucus, but made 
 no objection.^
 
 ELECTION CONTESTS 219 
 
 But, in Smith vs. Holt,^ it was held that a 
 candidate who was dnly elected to office, at a 
 legal election, was not estopped from accept- 
 ing and holding such office, for the full term, 
 on account of the fact that he had taken part 
 in an election for this office improperly held 
 the previous year. 
 
 Notes 
 
 1. Elliott vs. Burke, 113 Ky. 479, 68 S. W. 
 445; State vs. Barton, 58 Kan. '^OQ, 51 Pac. 
 Kep. 218. 
 
 2. 78 S. Car. 461. 
 
 3. State vs. Whitney, 12 Wash. 420, 41 
 Pac. Ptep.. 189. 
 
 4. Re Winton Nominations, 2 Lock Leg. 
 N. (Pa.) 13. 
 
 5. 24 Kan. 773.
 
 CHAPTER XI 
 
 CRIMES RELATING TO ELECTIONS 
 Section 59. Fraud in Registration 
 
 Wherever the registration of voters is 
 required, I'randiiient registration is always a 
 crime on the part of the person wrongfully 
 registering. Where a person knowingly reg- 
 isters at two election places, a criminal intent 
 is not a necessary element of the crime. ^ A 
 person is not put twice in jeopardy for the 
 same otfense by being tried for fraudulent 
 registration, after having been acquitted of 
 this offense, being tried for illegal voting at 
 the election for which the registration was 
 made.- 
 
 In some States there are statutory provis- 
 ions for tlie punishment of all persons who 
 cause, allow, or induce another to register 
 fraudulently." 
 
 The Revised Statute of the United States'* 
 provides for the punishment of any person 
 who ''does any unlawful act to secure regis- 
 tration for himself or for any other person. ' ' 
 
 A registration officer wi\\ always be crimin- 
 ally liable for knowingly permitting fraudu- 
 
 220
 
 CEIMES 221 
 
 lent names to be placed, or to remain, on the 
 registration lists f but, except in Kansas and 
 Maryland, it is held that registration officials 
 are not criminally liable where they were de- 
 ceived as to the qualifications of the person 
 registered. 
 
 The crimes relative to registration are 
 enumerated in the Illinois statutes as follows : 
 
 "If at any general registration of voters, 
 or any meeting of the judges of election, held 
 for such purpose, or for revision thereof, as 
 provided in this act, any person shall falsely 
 personate an elector or other person, and 
 register, or attempt or offer to register, in 
 the name of such elector or other person ; 
 
 "Or if any person shall knowingly or 
 fraudulently register or offer, or attempt, or 
 make application to register, in, or under the 
 name of, any other person, or in, or under 
 any false, assumed or fictitious name, or in, 
 or under any name not his own ; 
 
 "Or shall knowingly or fraudulently reg- 
 ister in two election precincts ; 
 
 "Or, having registered in one precinct, 
 shall fraudulently attempt or offer to regis- 
 ter in another; 
 
 ' * Or shall fraudulently register or attempt, 
 or offer to register in any election precinct, 
 not having a lawful right to register therein ;
 
 222 ELECTION LAWS 
 
 * ' Or shall knowingly or wilfully do any un- 
 lawful act to secure registration for himself 
 or any other person ; 
 
 "Or shall knowingly, wilfully, or fraudu- 
 lently, by false personation or otherwise, or 
 by any unlawful means cause or procure, or 
 attempt to cause or procure, the name of any 
 qualified voter, in any election precinct, to 
 be erased or stricken from any registry of 
 the voters of such precinct, made in pur- 
 suance of this act or otherwise, as in this act 
 provided ; 
 
 "Or by force, threat, menace, intimidation, 
 bribery, reward, or offer, or promise thereof, 
 or other unlawful means prevent, hinder or 
 delay any person having a lawful right to 
 register or be registered, from duly exercis- 
 ing such right ; 
 
 "Or shall knowingly, wilfully, or fraudu- 
 lently compel or induce, or attempt, or offer 
 to compel or induce, by such means, or any 
 unlawful means, any judge of election or 
 other officer of registration in any election 
 precinct to register or admit to registration 
 any person not lawfully entitled to registra- 
 tion in such precinct ; 
 
 "Or to register any false, assumed or fic- 
 titious name, or any name of any person 
 except as provided in this act ; .
 
 CKIMES 223 
 
 * ' Or shall knowingly, or wilfully or fraudu- 
 lently interfere with, hinder or delay any 
 judge of election, or other officer of registra- 
 tion, in the discharge of his duties, or counsel, 
 advise or induce, or attempt to induce, any 
 such judge or other officer to refuse or neg- 
 lect to comply with or to perform his duties, 
 or to violate any law proscribed for regulat- 
 ing the same ; 
 
 "Or shall aid, counsel, procure or advise 
 any voter, person, judge of election, or other 
 officer of registration, to do any act by law 
 forbidden, or in this act constituted an 
 offense, or to omit to do any act by law 
 directed to be done ; 
 
 ''Every such person, upon conviction 
 thereof, shall be adjudged guilty of a misde- 
 meanor; and shall be punished by imprison- 
 ment in the county jail for not less than three 
 months nor more than one year." 
 
 The laws of the other States on this sub- 
 ject, are very similar to the Illinois statute. 
 
 Notes 
 
 1. State vs. Caldwell, 2 Hardesty (Del.) 
 164. 
 
 2. In re Donahue, 4 Ohio, N. P. 246, 6 
 Ohio Dee. 389. 
 
 3. People vs. Sternberg, 111 Cal. 3;
 
 224 ELECTION LAWS 
 
 United States vs. O'Connor, 31 Fed. Kep. 
 449. 
 
 4. Section 5512. 
 
 5. United States vs. Molloy, 31 Fed. 
 Eep. 19. 
 
 Section 60. Illegal Voting- 
 Illegal voting is always a crime in every 
 jurisdiction. This crime may take various 
 forms, such as voting by a person not quali- 
 fied/ falsely impersonating a voter,- or vot- 
 ing more than once."^ 
 
 The various acts which will constitute a 
 crime of this character in Illinois (whose 
 laws will serve as a fair example of the laws 
 of the other States on this subject) are as fol- 
 lows: 
 
 "If, at any election hereafter held in any 
 such city, village, or incorporated town, any 
 person shall falsely personate any elector or 
 other person, and vote, or attempt or offer 
 to vote in, or under the name of such elector 
 or other person ; 
 
 "Or shall vote, or attempt to vote, in or 
 upon the name of any other person, whether 
 living or dead, or in or upon any false, as- 
 sumed or fictitious name, or in or upon any 
 name not his own; 
 
 "Or shall knowingly, wilfully or fi-audu-
 
 CKIMES 225 
 
 lently vote more than once for any candidate 
 for the same office, except as authorized by 
 law ; 
 
 * ' Or shall vote, or attempt or offer to vote, 
 in any election precinct without having a 
 lawful right to vote therein ; 
 
 "Or vote more than once, or vote in more 
 than one election precinct; 
 
 "Or having once voted, shall vote or at- 
 tempt or offer to vote again ; 
 
 "Or shall knowingly, wilfully or fraudu- 
 lently do any unlawful act to secure a right 
 or an opportunity to vote for himself or for 
 any other person ; 
 
 "Or shall by force, threat, menace, intimi- 
 dation, bribery, or reward, or offer or prom- 
 ise thereof, or otherwise unlawfully, either 
 directly or indirectly, influence or attempt to 
 influence any elector or any person in giving 
 his vote ; 
 
 "Or prevent or hinder, or attempt to pre- 
 vent, or hinder any qualified voter from 
 freely exercising the right of suffrage ; 
 
 "Or by any such means induce or attempt 
 to induce any such voter, or any person, to 
 exercise any such right ; 
 
 ' ' Or shall, by any such means or otherwise, 
 compel or induce, or attempt to compel or 
 induce, any judge of election or other 'officer
 
 226 ELECTION LAWS 
 
 of election, in any election precinct, to receive 
 the vote of any person not legally qualified 
 or entitled to vote at the said election in 
 such precinct ; 
 
 "Or shall knowingly, wilfully or fraudu- 
 lently interfere with, delay or hinder, in any 
 manner, any judge of election, poll clerk or 
 otlier officer of election in the discharge of 
 his duties ; 
 
 ''Or by any such means, or other unlawful 
 means, knowingly, wilfully, or fraudulently 
 counsel, advise, induce or attempt to induce, 
 any judge of election, poll clerk or other offi- 
 cer of election whose duty it is to ascertain, 
 proclaim, announce or declare the result of 
 any such election, to give or to make any 
 false certificate, document, report, return or 
 other false evidence in relation thereto ; 
 
 *'0r to refuse or neglect to comply with 
 his duty, or to violate any law regulating 
 the same, or to receive the vote of any person 
 in any election district not entitled to vote 
 therein ; 
 
 ''Or to refuse to receive the vote of any 
 person entitled to vote therein ; 
 
 * ' Or to omit to do any act by law directed 
 to be done; 
 
 "Every such person, upon conviction 
 thereof, shall be adjudged guilty of a misde-
 
 CRIMES 227 
 
 meanor, and shall be punished by imprison- 
 ment in the county jail for not less than three 
 months nor more than one year. " ^ 
 
 Ignorance of law is no defense to a person 
 who votes illegally f but a mistake as to facts, 
 such as to the voter's own age, may be a good 
 defense.^ 
 
 In the absence of fraud or collusion the 
 decision of the election officials that a certain 
 person has the right to vote, will relieve him 
 of criminal liability/ 
 
 Notes 
 
 1. State vs. Ninnick, 15 Iowa, 124. 
 
 2. State vs. Perkins, 42 Vt. 399. 
 
 3. State vs. McClarnon. 15 R. I. 462 : Fleet 
 vs. State, 74 Md. 552. 
 
 4. Illinois Statutes, Act of July 8, 1899. 
 
 5. People vs. Barber, 48 Hmi. (N. Y.) 198. 
 
 6. Gordon vs. State, 52 Ala. 308. 
 
 7. State vs. Pearson, 97 N. C. 434; but 
 contra Morris vs. State, 7 Blackf. (Ind.) 606. 
 
 * Section 61. Bribery 
 
 The scope of the crime of bribery in elec- 
 tions, is very broad. The crime is committed 
 wherever money, or any other valuable con- 
 sideration is given or offered, to induce a 
 voter to vote for a certain party or candidate, 
 or to refrain from voting at all; or when a
 
 228 ELECTION LAWS 
 
 voter receives, or asks for, money, or other 
 valuable consideration as a consideration for 
 voting in a certain way or for not voting 
 at all. 
 
 ' ' It has been held indictable at common law 
 to be concerned either as actor or receiver 
 in bribery or attempt at bribery by giving 
 rewards or making promises in order to pro- 
 cure votes in elections;^ by giving refresh- 
 ments to voters before they vote to induce 
 them to vote for a particular candidate ;- by 
 promising money to a member of a corpora- 
 tion to induce him to vote for mayor;" by one 
 elector agreeing to vote for the favorite can- 
 didate of another elector for clerk in con- 
 sideration that the latter shall vote for the 
 favorable candidate of the former for com- 
 missioner;^ by giving money to a voter and 
 taking his note, at the same time giving a 
 counter-note to deliver up the first note, when 
 the elector has voted as required f by betting 
 with a voter that he will not vote for a par- 
 ticular person for the purpose of inducing 
 him to vote for such person f and by several 
 persons mutually agreeing to procure for 
 another an appointment to a public office for 
 a sum of money to be divided among them,'^ 
 and by giving a voter money to go out of 
 town and forbear voting.'* The statute pro-
 
 CEIMES 229 
 
 vides for the pnnisliment of all these cases as 
 common-law offenses. If a voter received 
 from one person a card or token in one room 
 which he presents to another person in an- 
 other room, and thereupon received tlie 
 money, it is evidence of the payment of 
 money by the former. " » ^^ 
 
 In general, the same acts will constitute 
 bribery at a primary election as at a regular 
 election; but the Illinois Primary Election 
 Act contains the provision that the person 
 giving the bribe shall not be guilty of any 
 crime. The text of this section of the statute 
 is as follows: 
 
 "Any person who shall solicit, request, de- 
 mand or receive, directly or indirectly, any 
 money, intoxicating liquor or other thing of 
 value, or the promise thereof, either to in- 
 fluence his vote, or to used, or under the pre- 
 tense of being used to procure the vote of 
 any other person or persons, or to be used 
 at any poll or other place prior to, or 
 on the day of a primary for or against 
 any candidate for office, or for or against 
 any measure or question to be voted upon 
 at such primary, shall be deemed guilty 
 of the infamous crime of bribery in primaries 
 and upon conviction thereof in any court of 
 record, shall be sentenced to disfranchise-
 
 230 ELECTION LAWS 
 
 ment by the judge of such court for a term 
 of not less than five and not more than fif- 
 teen years, and to the county jail not less than 
 three months and not more than one year, 
 and to pay the cost of prosecution and stand 
 committed to the county jail until such costa 
 are fully paid. That for a conviction of a 
 second offense under this section, the first 
 being alleged and proven, such offender shall 
 be by sentence of the court forever there- 
 after disfranchised and deprived of the right 
 to vote at a primary in this State, and be 
 imprisoned in the county jail not less than 
 one year, and be committed to jail in default 
 of the payment of costs of prosecution until 
 such costs are fully paid. Prosecutions may 
 be had under this section by indictment in 
 the Circuit Court, or by information in the 
 county courts, and the effect of a sentence 
 of disfranchisement in either of said courts, 
 both having jurisdiction of offenses here- 
 under, shall be to deprive such persons 
 sentenced to (of) the right to vote at any 
 primary within this State for a period of 
 time fixed by the court where such person 
 shall be convicted under this section. Any 
 candidate or other person paying, furnishing 
 or promising to pay or furnish or bribing 
 such person with money, intoxicating liquor,
 
 CEIMES 231 
 
 or any other thing of value, or the promise 
 thereof, shall not be liable to punishment 
 therefor, but shall be a competent witness 
 and compelled to testify in prosecution under 
 this section. Solicitations of any person of 
 a loan of money, or the purchase of anything 
 of value, or any other subterfuge, shall be 
 deemed a violation thereof." 
 
 Notes 
 
 1. Rex. vs. Pitt, 3 Burr, 1335; Vaughan's 
 Case, 4 Burr, 2491 ; U. S. vs. Norrel, "Whart, 
 St. Tr., 189; Com. vs. Shaver, 3 Serg. & W., 
 338; Rex vs. Cuplaiid, 11 Md., 387; Com. vs. 
 Shaver, Watts & S., 338. 
 
 2. Hughes vs. ]\[arshall, 2 Tyrw., 134; 5 
 Car. & P., 151. 
 
 3. Rex. vs Plympton, 2 Cainpb., 229 ; 2 
 Ld. Raym., 1377 ; Walsh vs. People, 65 lUs., 58. 
 
 4. Com. vs. Callaghau, 2 Va. Cas., 460. 
 
 5. Sulston vs. Norton, 3 Burr, 1235. 
 
 6. Roscoe Ev., 327. 
 
 7. Rex. vs. Pohman, 2 Camp., 229. 
 
 8. R. S., 395, §292. 
 
 9. Webb vs. Smith, 4 Bing., 373. 
 10. JMoore's Criminal Law, §656. 
 
 Section 62. Offenses by Election Officers 
 
 "Rlection officials are not generally held 
 criminally liable for any acts caused by errors
 
 232 ELECTION LAWS 
 
 of judgment without wilful disregard of 
 duty^ or fraudulent intent.- 
 
 Sucli officials, however, are held strictly to 
 account criminally for any fraud or inten- 
 tional misconduct on their part. 
 
 Election officials are criminally liable for 
 altering ballots,^ making false returns of the 
 votes cast,* obstructing other election offi- 
 cers,^ wilfully receiving votes from persons 
 not entitled to vote,''' or wilfully refusing to 
 allow qualified voters to vote/ 
 
 Notes 
 
 1. United States vs. Dwyer, 56 Fed. Kep. 
 464. Am. and Eng. Encyc. of Law. Vol. X, 
 p. 851. 
 
 2. People vs Burns, 75 Cal. G27. 
 
 3. Commonwealth vs. JMcGurtv, 145 ]\Iass. 
 257. 
 
 4. People vs. Sullivan, 7 N. Y. Crim. Kep. 
 420 ; Commonwealth vs. Mayor, Thatch, Crim. 
 Cas. 298. 
 
 5. In re Depriest, 43 Fed. Rep. 911. 
 
 6. State vs. McDonald, 4 Harr, (Del.) 555; 
 State vs. Krueger, 134 Mo. 262. 
 
 7. State vs. Daniels, 44 N. H. 383. 
 
 Section 63. Minor Offenses Relating- to Elections 
 
 Among the other crimes relating to elec- 
 tions, which are provided against by the stat-
 
 CRIMES , 233 
 
 utes in more or less of the various States, 
 are: Betting on elections/ intimidating 
 voters, carrying weapons in the vicinity of 
 any polling place,- and selling or giving away 
 liquor during the time the polls are open,^ or 
 during the whole of election day.^ 
 
 Notes 
 
 1. Wagner vs. State, 63 Ind. 250. 
 
 2. Cooper vs. State, 26 Tex. App. 575. 
 
 3. Wolf vs. State, 59 Ark. 297. 
 
 4. Commonwealth vs. Murphy, 95 Ky. 38. 
 
 Section 64. At What Election Offense May Be 
 Committed 
 
 In order to convict a person for any crime 
 relating to elections, the election in connec- 
 tion with which the alleged crime was com- 
 mitted must have been a legal election.^ No 
 act committed with relation to an election not 
 authorized by law, not properly called, or 
 otherwise invalid, can constitute a crime.- 
 
 Notes 
 
 1. Reed vs. Lamb, 6 H. and N. 75. 
 
 2. United States vs. Badnielli, 37 Fed. 
 Rep. 138. 
 
 Section 65. Federal Statutes as to Crimes Relat- 
 ing to Elections 
 
 The provisions of the Federal statutes as
 
 284 ELECTION LAWS 
 
 to crimes relating to elections are as follows: 
 Sec. 5507. (Intimidating voters by bribery 
 or threats.) Every person who prevents, 
 hinders, controls, or intimidates another from 
 exercising, or in exercising the right of suf- 
 frage to whom that right is guaranteed by 
 the fifteenth amendment to the Constitution 
 of the United States, by means of bribery or 
 threats of depriving such person of employ- 
 ment or occupation, or of ejecting such per- 
 son from a rented house, lands, or other 
 property, or by threats of refusing to renew 
 leases or contracts for labor, or by threats 
 of violence to himself or family, shall be 
 punished as provided in the preceding 
 section.^ 
 
 Sec. 5509. (Other crimes committed while 
 violating the preceding sections.) If in the 
 act of violating any provision in either of 
 the two preceding sections any other felony 
 or misdemeanor be committed, the offender 
 shall be punished for the same with such 
 punishment as is attached to such felony or 
 misdemeanor by the laws of the State in 
 which the offense is committed. 
 
 Sec. 5528. (Unlawful presence of troops 
 at elections.) Every officer of the Army or 
 Navy, or other person in the civil, military, 
 or naval service of the United States, who
 
 CRIMES 235 
 
 orders, brings, keeps, or has under bis an- 
 tbority or control, any troops or armed men 
 at any place wliere a general or special elec- 
 tion is held in any State, unless such force 
 be necessary to repel armed enemies of the 
 United States or to keep the peace at the 
 polls, shall be fined not more than five thou- 
 sand dollars and sutf er imprisonment at hard 
 labor not less than three months nor more 
 than five years. 
 
 Sec. 5529. (Intimidation of voters by offi- 
 cers, etc., of Army or Navy.) Every officer 
 or other person in the military or naval serv- 
 ice who, by force, threat, intimidation, order, 
 advice, or otherwise, prevents, or attempts 
 to prevent any qualified voter of any State 
 from freely exercising the right of suffrage 
 at any general or special election in such 
 State, shall be fined not more than five thou- 
 sand dollars, and imprisonment at hard labor 
 not more than five years. 
 
 Sec. 5530. (Officers of Army or Navy pre- 
 scribing qualifications of voters.) Every 
 officer of the Army or Navy who prescribes 
 or fixes or attempts to prescribe or fix, 
 whether by proclamation, order, or other- 
 wise, the qualifications of voters at any elec- 
 tion in any State, shall be punished as pro- 
 vided in the preceding section.
 
 236 ELECTION LAWS 
 
 Sec. 5531. (Officers, etc., of Army and 
 Navy interfering with officer of election, etc.) 
 Every officer or other person in the military 
 or naval service who by force, threat, intimi- 
 dation, order, or otherwise, compels, or at- 
 tempts to compel, any officer holding an elec- 
 tion in any State to receive a vote from a 
 person not legally qualified to vote, or who 
 imposes, or attempts to impose any regula- 
 tions for conducting any general or special 
 election in a State different from those pre- 
 scribed by law, or who interferes in any man- 
 ner with any officer of an election in the dis- 
 charge of his duty, shall be punished as 
 provided in section fifty-five hundred and 
 twenty-nine. 
 
 Sec. 5532. (Disqualification for holding 
 office.) Every person convicted of any of 
 the offenses specified in the five preceding 
 sections shall, in addition to the punishments 
 therein severally prescribed, be disqualified 
 from holding any office of honor, profit, or 
 trust under the United States; but nothing 
 in those sections shall be construed to pre- 
 vent any officer, soldier, sailor, or marine 
 from exercising the right of suffrage in any 
 election district to which he may belong, if 
 otherwise qualified according to the laws of 
 the State in which he offers to vote.
 
 CRIMES 237 
 
 Notes 
 
 (1) "The preceding section" above re- 
 ferred to, is repealed, 
 notes, infra, p. 870. 
 
 This section is in excess of the poAver of 
 Congress and is void. The essential element 
 of discrimination on account of race, etc., is 
 wanting, and the section is therefore unau- 
 thorized by the Fifteenth Amendment to the 
 Constitution. U. S. v. Amsden, (1881) 6 Fed. 
 Rep. 819; Lackey v. U. S., (C. C. A. 1901) 107 
 Fed. Rep. 114.
 
 CHAPTER XII 
 FEDERAL ELECTIONS 
 
 Section 66. Election of Federal Ofl&cers 
 
 The only Federal officers elected directly 
 by the people are the Representatives in Con- 
 gress. The President, Vice-President, and 
 Senators are elected by the people indirectly, 
 the former through the medium of presiden- 
 tial electors, the latter through the State Leg- 
 islatures. The proposed Sixteenth Amend- 
 ment to the Constitution, if adopted, will add 
 the United States Senators to the list of 
 Federal officers elected by the people. 
 
 The Presidential electors are apportioned 
 among the several States, each State having 
 as many Presidential electors as it has Sena- 
 tors and Representatives in Congress com- 
 bined. Each State has the authority to ap- 
 point its electors "in such a manner as the 
 Legislature thereof may direct," and the 
 electors from each State meet and vote by 
 themselves. 
 
 The United States Senate is distinctively 
 the representative body of the States, each 
 
 2bb
 
 FEDEEAL ELECTION' IS 230 
 
 State having two members who arc chosen 
 by the State Legislatures. 
 
 In the lower house the members are ap- 
 portioned among the States according to 
 their respective populations, and it is left to 
 the States to arrange the congressional dis- 
 tricts. The Constitution provides that mem- 
 bers of this house must be elected by the 
 people in each State, but the qualifications 
 necessary to voting for representatives is 
 left to each State to determine by the con- 
 stitutional provision that the electors in each 
 State shall have the qualifications requisite 
 for the electors of the m.ost numerous branch 
 of the State Legislature. 
 
 "The times, places and manner of holding 
 elections for Senators and Representatives 
 shall be prescribed in each State by the Leg- 
 islature thereof; but the Congress may, at 
 any time, by law make or alter such regula- 
 tions, except as to the places of choosing 
 Senators." 
 
 The power granted by this section of the 
 United States Constitution has been very 
 little used by Congress, except during 
 the period following the Civil War. Con- 
 gress, however, possesses this power of con- 
 trol over these elections in the fullest extent, 
 and can either provide for complete Federal
 
 240 ELECTION LAWS 
 
 control of such election or pass laws and 
 regulations binding on the election officers 
 appointed by the State. 
 
 The leading case on the question of the 
 right of Congress to pass laws regulating 
 congressional elections is that of Ex parte 
 Siebold. In this case Siebold and others, 
 who were judges of election in the city of 
 Baltimore, appointed to such positions under 
 the laws of Maryland, were convicted for the 
 violation of sections 5515 and 5522 of the 
 Revised Statutes of the United States, which 
 statutes established certain regulations gov- 
 erning elections at which Congressmen were 
 elected and imposing certain duties upon all 
 election officers serving at such elections. In 
 the decision in this case it was held that in 
 exercising its constitutional right to regu- 
 late congressional elections it is not neces- 
 sary that Congress should assume entire con- 
 trol of such elections, but may exercise this 
 power of regulation by acting in conjunction 
 with the States, and that in such cases the 
 Federal statutes relative to such elections 
 will prevail over the State statutes. 
 
 Under this power to regulate elections 
 Congress may make any regulation neces- 
 sary to secure to all electors in every State
 
 FEDEEAL ELECTIONS 241 
 
 the full and fair opportunity to declare their 
 will. 
 
 The Federal statutes at present contain 
 the following provisions as to the regulation 
 of elections : 
 
 Sec. 2003. (Interference with freedom of 
 election by officers of Army or Navy.) No 
 officer of the Army or Navy of the United 
 States shall prescribe or fix, or attempt to 
 prescribe or fix, by proclamation, order, or 
 otherwise, the qualifications of voters in any 
 State, or in any manner interfere with the 
 freedom of any election in any State, or with 
 the exercise of the free right of suffrage in 
 any State. 
 
 Sec. 2004. (Race, color, or previous con- 
 dition not to affect the right to vote.) All 
 citizens of the United States who are other- 
 wise qualified by law to vote at any election 
 by the people in any State, Territory, dis- 
 trict, county, city, parish, township, school 
 district, municipality, or other territorial 
 subdivision, shall be entitled and allowed to 
 vote at all such elections, without distinction 
 of race, color, or previous condition of servi- 
 tude ; any constitution, law, custom, usage, or 
 regulation of any State or Territory, or by 
 or under its authority, to the contrary not- 
 withstanding.
 
 242 ELECTIOX LAWS 
 
 Section 67. Contested Congressional Elections 
 
 As lias been already shown the Constitu- 
 tion makes each house the judge of the elec- 
 tions, returns and qualifications of its mem- 
 bers.^ Either house has the right to decide 
 all questions both of law and of fact neces- 
 sary to determine the right of any individual 
 who may claim to be one of its members. - 
 
 The second clause of the third section of 
 the First Article closes with an ambiguous 
 provision which has since been the occasion 
 of a great deal of controversy: '^And if 
 vacancies happen, by resignation, or other- 
 wise, during the recess of the Legislature of 
 any State, the executive thereof may make 
 temporary appointments until the next meet- 
 ing of the Legislature, which shall then fill 
 such vacancy." Under this clause the ques- 
 tion has arisen several times whether, wlien 
 the Legislature is in session when the va- 
 cancy occurs, and then adjourns without 
 electing a senator, the governor may fill the 
 vacancy. 
 
 The intention of the Constitutional Con- 
 vention on this point can be readily seen by 
 examination of the first draft of the Consti- 
 tution as reported to the convention by the 
 committee on detail on August 6th. In this
 
 TEDEEAL ELECTIONS 243 
 
 draft, Article V, Section 4, read as follows: 
 ''The Senate of the United States shall be 
 chosen by the Legislatures of the several 
 States. Each Legislature shall choose two 
 members. Vacancies may be supplied by the 
 executive until the next meeting of the Leg- 
 islature. Each member shall have one vote."^ 
 Here is an unequivocal grant to the execu- 
 tives of the several States of the right to fill 
 vacancies in the senate, no matter when oc- 
 curring. This grant of power was never 
 thereafter changed by the vote of the Con- 
 vention, and never intentionally changed 
 at all. The ambiguity arose from the 
 language adopted by the committee on 
 style in their final draft of the Consti- 
 tution. This was a finishing committee 
 appointed by the convention to correct 
 the style and form of the Constitution with- 
 out any power to alter its substance. It is 
 thus clear from the study of the history of 
 the Constitutional Convention that the execu- 
 tive authority of the State should have the 
 power to fill a vacancy in the Senate, even 
 when the same arises from the failure of the 
 Legislature to elect; the Senate, however, 
 upon every occasion when the question has 
 come before them, has refused to seat the 
 member thus appointed.^ It must, therefore,
 
 244 ELECTION LAWS 
 
 be taken as the settled law that the governor 
 of a State cannot fill a vacancy in the Senate 
 which existed while the Legislature was in 
 session. 
 
 The statutes of the United States^ provide 
 that the Legislature chosen next preceding 
 the expiration of the term of office of any 
 senator shall elect a senator on the second 
 Tuesday after its first meeting and organi- 
 zation. In case of a vacancy the election 
 shall be held on the second Tuesday after the 
 Legislature shall be organized and have no- 
 tice thereof.^ In either case at least one bal- 
 lot a day must be taken until the end of the 
 session, by the Legislature, unless the sena- 
 tor be sooner chosenJ A senator can never 
 be elected by a minority vote, even if the 
 person receiving the majority vote is in- 
 eligible.^ Where each of the two rival 
 Legislatures, one more nearly approaching 
 a de facto Legislature and the other more 
 nearly a de jure Legislature, but neither of 
 which has a majority of legally elected mem- 
 bers, elect senators, neither of such senators 
 can claim a legal election and both will be 
 
 denied a seat.^ ^" 
 
 Notes 
 1. United States Constitution, Art. I, See. 
 5, Clause 1.
 
 FEDERAL ELECTIONS 245 
 
 2. Baker 1 Bart. El. Cases, 92. 
 
 3. Madison's Journal of the Federal Con- 
 vention, under date of August 6tli. 
 
 4. Johns. Taft El. Cases, 1. 
 
 5. Rev. Stat. U. S. Sec. 14. 
 
 6. Rev. Stat. U. S. Sec. 17. 
 
 7. Rev. Stat. U. S. Sec. 15. 
 
 8. RaAvson vs. Abbott, Taft El. Cases, 338. 
 
 9. The Louisiana Cases, Taft El. Cases 
 426. 
 
 10. Putney's "United States Constitutional 
 History and Law." Section 125. 
 
 Section 68. Presidential Elections 
 
 The manner in which the President of the 
 United States should be chosen was one of 
 the much discussed questions before the Fed- 
 eral Constitutional Convention. 
 
 Among the various methods proposed were 
 elections by the people, by the executives of 
 the different States, the executive of each 
 State having one vote; by the executives of 
 the different States, the executive of each 
 having a vote proportionate to the popula- 
 tion of the State ; by Congress ; by the Sen- 
 ate; and by Presidential electors. This last 
 method, which was finally adopted, was sug- 
 gested by the method used to elect State 
 senators in Maryland. The provision con- 
 tained in the Constitution as finally adopted 
 is as follows:
 
 246 ELFX'TION LAWS 
 
 ''The executive power shall l)c vested in u 
 Pi'osident of the United States of America. 
 He shall hold office during the term of four 
 years, and, together with the Vice-President, 
 chosen for the same term, be elected as 
 follows : 
 
 "Each State shall appoint, in such man- 
 ner as the Legislature thereof shall direct, 
 a number of electors equal to the whole num- 
 ber of senators and representatives to which 
 the State may be entitled in the Congress ; 
 but no senator or representative, or person 
 holding an office of trust or profit under the 
 United States, shall be appointed as elector. 
 
 ' ' The electors shall meet in their respective 
 States and vote by ballot for two persons, of 
 whom one at least shall not be an inhabitant 
 of the same State with themselves. And 
 they shall make a list of all persons voted 
 for, and of the number of votes for each, 
 which list they shall sign and certify and 
 transmit sealed to the seat of Government of 
 the United States, directed to the President 
 of the Senate. The president of the Senate 
 shall, in the presence of the Senate and the 
 House of Representatives, open all the cer- 
 tificates, and the votes shall then be counted. 
 The person having the greatest number of 
 votes shall be President, if such number be
 
 FEDERAL, ELECTIONS 247 
 
 the majority of the wliole number of electors 
 appointed, and if there be j^nore than one 
 who have such majority, and have an equal 
 number of votes, then the House of Eepre- 
 sentatives shall immediately choose by bal- 
 lot one of them for President ; and if no per- 
 son have a majority, then from the five 
 highest on the list the said House shall in 
 like manner choose the President. But, in 
 choosing the President the votes sliall be 
 taken by States, the representatives from 
 each State having one vote; a quorum for 
 this purpose shall consist of a member or 
 members from two-thirds of the States, and 
 a majority of all the States shall be necessary 
 to a choice. In every case after the choice 
 of President the person having the greatest 
 number of votes of the directors shall be the 
 Vice-President. But if there should remain 
 two or more who have equal votes, the Sen- 
 ate shall choose from them by ballot the Vice- 
 President. 
 
 "The Congress may determine the time of 
 cjioosing the electors and the day on which 
 they shall give their votes, which day shall 
 be the same throughout the United States. ' ' ^ 
 
 No other clause in the Constitution has 
 worked in a manner so foreign to the expec- 
 tation of the framers of the Constitution as
 
 248 ELECTION LAWS 
 
 has this one. The intention of the framers 
 of the Constitution was to have the President 
 elected only indirectly by the people; the 
 people were to elect the Presidential electors, 
 men of character and standing in the com- 
 munity, who were then on their own judg- 
 ment to elect the President. As a matter of 
 fact, the people from the start took upon 
 themselves the power of choosing their Presi- 
 dent. By the third election, that of 1796, 
 regular party candidates were in the field 
 and the Presidential electors were reduced to 
 mere figureheads. Since this time these elec- 
 tors have merely registered the dictates of 
 the National Convention of the political party 
 by which they were nominated. This un- 
 broken custom, by which electors are obliged 
 to vote for the candidates of their party, is 
 the nearest approach in our institutions to 
 anything corresponding to the so-called con- 
 ventions of the English Constitution. 
 
 One serious defect in the method of elect- 
 ing the President and Vice-President early 
 made itself manifest. As each elector voted 
 for two men for the office of President and 
 as each party had two candidates (one of 
 whom they intended for Vice-President) it 
 was soon seen that the natural result of the 
 electors voting their straight party ticket
 
 FEDEEAL ELECTIONS 249 
 
 would be a tie vote for the position of Presi- 
 dent. To avoid such a result in 1796, a num- 
 ber of the Federalist electors (that party 
 having secured a majority of the Electoral 
 College) withheld their votes from Pinckney, 
 one of the candidates of this party, in order 
 to make John Adams President and Pinckney 
 Vice-President. A miscalculation, however, 
 resulted in Pinckney receiving fewer votes 
 than Thomas Jefferson, one of the candidates 
 of the Democratic party. The result was the 
 election of John Adams, a Federalist, as 
 President, and of Thomas Jefferson, a Demo- 
 crat, as Vice-President. 
 
 In the election of 1800, the Democrats 
 elected seventy-three presidential electors 
 and the Federalists sixty-five. To prevent a 
 result similar to that in 1796, all of the Demo- 
 cratic electors voted for both Thomas Jeffer- 
 son and Aaron Burr for President. 
 
 This resulted in the long contest in the 
 House of Representatives between Jefferson 
 and Burr. To remedy the defect, shown by 
 the results in 1796 and 1800, the Twelfth 
 Amendment was submitted to the States in 
 1803 and adopted in 1804. By this amend- 
 ment provision was made for separate bal- 
 loting for President and Vice-President. 
 The Twelfth Amendment is as follows :
 
 250 ELECTION LAWS 
 
 "The electors shall meet in their respective 
 States and vote by ballot for President and 
 Vice-President, one of whom, at least, shall 
 not be an inhabitant of the same State with 
 themselves ; they shall name in their ballots 
 tlie person voted for President and in dis- 
 tinct ballots the person voted for as Vice- 
 President, and of the number of votes for 
 each, which lists they shall sign and certify 
 and transmit sealed to the seat of Govern- 
 ment of the United States, directed to the 
 President of the Senate ; the President of 
 the Senate shall, in the presence of the Sen- 
 ate and House of Representatives, open all 
 certificates, and the votes shall then be 
 counted; the person having the greatest 
 number of votes for President shall be Presi- 
 dent, if such number be a majority of the 
 whole number of electors appointed; and if 
 no person have such a majority, then from 
 the persons having the highest numbers, not 
 exceeding three, on the list of those voted 
 for as President, the House of Representa- 
 tives shall choose immediately by ballot the 
 President. But in choosing the President 
 the votes shall be taken by States, the repre- 
 sentation of each State having one vote; a 
 quorum for this ]nirpose shall consist of a 
 member or members from two-thirds of the
 
 FEDEEAL ELECTIONS 251 
 
 States, and a majority of all the States shall 
 be necessary to a choice. And if the House 
 of Representatives shall not choose a Presi- 
 dent whenever the right of choice shall de- 
 volve upon them before the 4th day of March 
 next following, then the Vice-President shall 
 act as President, as in the case of the death 
 or other constitutional disability of the 
 President. 
 
 ' ' The person having the greatest number of 
 votes as Vice-President shall be the Vice- 
 President, if such number be a majority of 
 the whole number of electors appointed, and 
 if no person have a majority, then from the 
 two highest numbers on the list the Senate 
 shall choose the Vice-President ; a quorum for 
 the purpose shall consist of two-thirds of the 
 whole number of senators, and a majority of 
 the whole number shall be necessary to a 
 choice. 
 
 ''But no person constitutionally ineligible 
 to the office of President shall be eligible to 
 that of Vice-President of the United States." 
 
 Presidential electors have, in the past, been 
 chosen in many different ways, three meth- 
 ods in particular having been common in the 
 early days of the Republic, viz., by State 
 Legislatures ; by the people voting by dis- 
 tricts ; and by the people by general vote of
 
 252 ELECTION LAWS 
 
 the State.- Since 1832 they have been uni- 
 formly chosen in the last named manner 
 except that in South Carolina they were 
 chosen by the Legislature until after the Civil 
 War, and in Michigan they were chosen by 
 districts in the election of 1892.^ The man- 
 ner of choosing these electors is entirely in 
 the hands of the different States and is not 
 subject to the revision or control of the gen- 
 eral Government.'* Presidential electors are 
 State officials and not Federal officials. Con- 
 gress, however, may determine the time of 
 choosing the electors, and the day on which 
 they shall give their votes, which day shall 
 be the same throughout the United States.-"^ 
 There is an uncertainty in the Constitution 
 as to the procedure at the counting of the 
 votes for President and as to the method to 
 be used in determining the legality of any 
 undisputed votes. It has been argued by 
 different factions at different times that the 
 decision rested with the Vice-President, with 
 the two houses of Congress voting together, 
 and with the two houses of Congress voting 
 separately. The latter would seem to be the 
 correct view, but it fails to provide for cases 
 where a deadlock might arise between the 
 two houses on the question of accepting or 
 rejecting certain votes. This question, which
 
 FEDEEAL ELECTIONS 253 
 
 brought the country almost to the verge of 
 Civil War on the disputed election of 1876, 
 has never been passed upon by the United 
 States courts. The dispute in 1877 was set- 
 tled by the creation of the Electoral Com- 
 mission, a temporary and unsatisfactory 
 expedient which cannot become a precedent. 
 
 The method of electing the President in 
 case no candidate receives the votes of a 
 majority of the electors is a very anomalous 
 one, and one which might lead to very unex- 
 pected results if this country should ever 
 have three or more strong political parties, 
 instead of two such parties. 
 
 In case no candidate for President has a 
 majority the election goes to the House of 
 Representatives, where two peculiar condi- 
 tions are to be noted : first, the election is not 
 by the House of Representatives elected at 
 the same time as the Presidential electors, 
 but by the House of Representatives chosen 
 two years previous; the election would 
 therefore under any circumstances be deter- 
 mined not by the political sentiments of the 
 people at the time of the election, but by the 
 sentiment which existed two years before. 
 Second, the election is not by general vote of 
 the House, but by States, each State having 
 one vote and a majority of all the States
 
 254 ELECTION LAWS 
 
 being required to elect, tiie vote of each 
 State being determined by the vote of the 
 majority of the members from the State. In 
 case a representation from any State in the 
 House of Representatives was equally di- 
 vided politically, the vote of the Starte would 
 be lost. The vote of the majority of all the 
 States, however, would be necessary to elect 
 a President, and if there were three or more 
 candidates, each with material strength, or 
 the vote of the several States was equally 
 divided, and thus lost, an election of a Presi- 
 dent by the House would become very im- 
 probable. For example, in the year of this 
 writing (1912), although one of the two great 
 political parties has a substantial majority 
 in the House of Representatives, one of the 
 two leading parties have a majority in the 
 representation of twenty-two States, the 
 other in the representation of twenty-three 
 States, and the vote of three States is equally 
 divided between them. 
 
 The election of the Vice-President where 
 no candidate has a majority goes to the Sen- 
 ate, who must choose from the two candidates 
 receiving the highest number of votes. At 
 first sight it would seem certain that a Vice- 
 President would be chosen, except in the 
 unlikely contingency of the Senate being
 
 FEDEEAL ELECTIONS 255 
 
 equally divided between the two candidates. 
 In case the Vice-President was thus chosen, 
 and no chose of President was made, the 
 person chosen as Vice-President would, in 
 virtue of his election to this office, auto- 
 matically become President on the fourth of 
 March. There is one provision in the Con- 
 stitution, however, which would make it very 
 easy to prevent the election of any person as 
 Vice-President; the Constitution requiring 
 two-thirds of the members of the Senate to 
 make a quorum when the Vice-President is 
 to be chosen. Any number of senators con- 
 stituting more than one-third of the body 
 could prevent the election by absenting them- 
 selves from the Senate. 
 
 In case no person was chosen either as 
 President by the House of Representatives, 
 or as Vice-President by the Senate, upon 
 the fourth of March, the office of President 
 would devolve upon the Secretary of State 
 in the Cabinet of the retiring President, or 
 if he was ineligible, upon the highest member 
 of the Cabinet (according to the Presidential 
 Succession Law) eligible for the office. 
 
 Notes 
 
 1. United States Constitution, Art. II, 
 Sec. 1.
 
 256 ELECTION LAWS 
 
 2. McPherson vs. Blacker, 146 U. S. 25. 
 
 3. The States which chose Presidential 
 electors otherwise than by general ticket, 
 prior to 1832, and the elections in wliich they 
 were thus chosen, were as follows : 
 
 Rhode Island by the legislature from 1792 
 to 1796; i\Iassachusetts by districts from 1789 
 to 1796, and in 1812, 1820 and 1824, and by 
 the legislature from 1800 to 1808, and in 1816. 
 
 Connecticut by the legislature from 1789 to 
 1820. 
 
 New Hampshire by the legislature in 1800. 
 
 New York by the legislature from 1792 to 
 1824, and by districts in 1828. 
 
 New Jersey by the legislature from 1789 to 
 1804 and in 1812. 
 
 Pennsylvania by the legislature in 1800 and 
 by districts in 1816. 
 
 Delaware by the legislature from 1789 to 
 1828. 
 
 Virginia bj^ districts from 1789 to 1796 and 
 from 1812 to 1816. 
 
 South Carolina by the legislature through- 
 out this entire period. 
 
 North Carolina by districts from 1792 to 
 1808 and by legislature in 1812. 
 
 Maryland by districts from 1796 to 1832. 
 
 Georgia by legislature from 1789 to 1800 
 and from 1816 to 1834. 
 
 Vermont by legislature from 1792 to 1800 
 and in 1816 and by district in 1804.
 
 FEDERAL ELECTIONS 257 
 
 Kentucky by legislature from 1792 to 1796, 
 and by districts in 1804 to 1824. 
 
 Tennessee by legislature from 1796 to 1804, 
 and by districts from 1804 to 1828. 
 
 Louisiana by the legislature in 1824. 
 
 Illinois by districts in 1824. 
 
 Maine by districts from 1824 to 1828. 
 
 4. Id. United States Constitution, Art. II, 
 Sec. 1, Clause 4. 
 
 5. McPherson vs. Blacker, 146 U. S. 25.
 
 TABLE OF CASES 
 
 A. 
 
 Abbott vs. Frost (Smith El. Cas.) 205 
 
 Adcock vs. Houek (122 S. W. 979) 195 
 
 Adsit vs. Osmim (84 Mich. 420) 84-167 
 
 Allen vs. Glynn (17 Colo. 338, 29 Pac. Eep. 670) 209 
 
 Anderson vs. Baker (23 Md. 531) 27 
 
 Arnold, ex parte (128 Mo. 269) 139 
 
 Apple vs. Badcroft (158 111. 649, 41 N. E. Rep. 1116) 
 
 109-216 
 
 Ashby vs. White (1 Bro. P. C. 45, 2 Ld. Paym, 936) 
 
 (decided in 1703) 30 
 
 Atkinson vs. Lorbeer (111 Cal. 419, 44 Pac. Eep. 162) 142 
 
 Attorney General vs. Boston (123 Mass. 460.) 185 
 
 Attorney General vs. Campbell (191 Mass. 497, 78 N. 
 
 E.) 206-208 
 
 Attorney General vs. Glaser (102 Mich. 396, 61 N. W. 
 
 648) 142 
 
 Attorney General vs. May (99 Mich. 538) 103 
 
 Attorney General vs. Sullivan (163 Mass. 446) 174 
 
 B. 
 
 Baker vs. Bart (El. Cas. 92) 197 
 
 Baker vs. Scott (4 Idaho 596, 43 Pac. 76) 208-107 
 
 Barry, In re (58 N. E. 12, 164 N. Y. 18, 8 N. Y. 
 
 Ann. Cas. 148) 51 
 
 Barnum vs. Gilman (27 Minn. 446, 8 N. W. 375) 174 
 
 Baughnan vs. Nation (76 Kan. 668, 92 Pac. 548) 175 
 
 Beal vs. Eay (8 Ind. 554) 195 
 
 Beall vs. Albert (159 111. 127) 216 
 
 Beair vs. Eidgeley (41 Mo. 63, 97 Ab. Dec. 248) 27 
 
 Ben vs. State (71 Miss. 1) 61 
 
 Berbrensmeyer vs. Krertz (135 111. 591, 26 N. E. 
 
 704) 115-140 
 
 Bergin vs. Macdonald (Hodgin's Elee. Cas. 547) 205 
 
 Bernier vs. Eussell (89 111. 60) 33 
 
 Biddle vs. Wing (CI. and El. Cas. 504) 85 
 
 259
 
 260 TABLE OF CASES 
 
 Bl.ackmer vs. Hildreth (181 Mass. 29, 63 N. E. 14).. 104-209 
 
 Blankinship vs. Israel (1^- I"- 514, 24 N. E. 615) 167 
 
 Bovvers vs. Smitli (111 Mo. 45, 20 S. W. 102) 208 
 
 Boyd vs. Mills (53 Kau. 594, 608, 37 Pac. 16 and 25 
 
 L. E. A, 486) 157-169 
 
 Boyd vs. Nebraska (143 U. S. 135) 175 
 
 Bragdon vs. Navarre (102 Mieli. 259, 60 N. W. 277).. 209 
 
 Brazie vs. Fayette County (25 W. Va, 23) 187 
 
 Brewster vs. Sherman (195 Mass. 222) 183-185 
 
 Britton vs. Elec. Commissioners (129 Cal. 337) 75 
 
 Brown vs. Cole (54 Misc. 278, 104 N. Y. S. 109) 192 
 
 Brueggeman vs. Young (208 111. 181, 70 N. E. 292).. 169 
 
 Bucker vs. Verive (63 Cal. 304) 187 
 
 Eurrell, In re (100 N. Y. S. 470) 206 
 
 Byrne, In re (128 App. Div. 334, 122, N. Y. Supp. 
 
 699) 73 
 
 Bvler vs. Asker (47 III. 2) 33-60 
 
 Caker vs. Foster (12 Pickering (Mass.) 485) 60 
 
 Carnile vs. Jones (31 Mont. 590, 101 Pac. Rep. 1.53) . . 115 
 
 Chamberlain vs. Hedge (12 S. D. 135, 80 N. W, 178) . . 159 
 
 Chamberlain vs. Wood (155 Dak. 216) 104 
 
 Chicago et R. Co. vs. Pickney (74 111. 277) 84 
 
 Childress vs. Pinson (100 S.' W. Rep. 278) 182 
 
 Chimasero vs. Potts (2 Mont. 242) 186 
 
 Clarke vs. Hampden County (126 Mass. 282) 151 
 
 Clarke vs. Harrcock County (27 111. 305) 83 
 
 Clarke vs. Rogers (81 Ky. 43) 170 
 
 Coglar vs. Beard (65 Cal. 58) 216 
 
 Cole vs. Tucker (164 Mass. 486) 101 
 
 Commonwealth vs. Callaghan (2 Va. Cases) 160 
 
 Commonwealth vs. Emminger (74 Pa. St. 479) 150 
 
 Commonwealth vs. Lexington, etc., J. R. Co., (6 B. Mon. 
 
 (Ky.) 397) 174 
 
 Commonwealth vs. Mayor (5 Hatch. Crim. Cas. 298) . . 232 
 
 Commonwealth vs. McCarter (98 Pa. St. 607) 175 
 
 Commonwealth vs. McCormich (8 Pa. Dist. R. 117).. 169 
 
 Commonwealth vs. McGurty (145 Mass. 257) 232 
 
 Commonwealth vs. Miller (98 Ky. 446, 33 S. W. 401) 143 
 
 Commonwealth vs. Murphy (95 Ky. 38) 233 
 
 Commonwealth vs. Richmond (5 Pa. Dist. 647) 123 
 
 Commonwealth vs. Shaner (3 Serg. N. W. 338) ... .205-231 
 
 Commonwealth vs. Tree (4 Phila. 362) 186 
 
 Contested Election of Burke, In re (22 Pitts. Leg. 
 
 J. 193) 215
 
 TABLE OF CASES 261 
 
 Convery vs. Conger (63 C. J. 658) 216 
 
 Cook vs. Fisher (100 la. 27, 69 N. W. Eep. 264) 107 
 
 Cooper vs. State (26 Tex. App. 575) 233 
 
 Corbin vs. Butler (Taft El. Cases 502) 197 
 
 Cosgrifie vs. San Francisco Elec. Com. (91 Pac. 98).. 181 
 
 Creech vs. Davis (51 S. W. Eep. 428) 106 
 
 Cross vs. Keathly (Tenn.) (105 S. W. Eep. 854) 108 
 
 Oullen vs. Morris (2 Stack 577) 33 
 
 D. 
 
 Daly vs. Petroff (10 Phila. (Pa.) 389) 142 
 
 Dale vs. Irwin (78 111. 179) 89-106 
 
 Dapper vs. Smith (138 Mich. 104, 101 N. W. Eep. 60) 75 
 
 Darst vs. People (62 111. 306) 193 
 
 Davidson vs. Hanson (87 Minn. 211) 64 
 
 Davis vs. Dawson (90 Ga. 817, 17 S. E. 110) 195 
 
 Debridge vs. Green (29 Mich. 121) 186 
 
 Deemar vs. Boyne (103 111. App. 464) 195-196 
 
 Depriest, In re (43 Fed. Eep. 911) 232 
 
 Detroit vs. Board of Inspectors (102; 2, 1029) 139 
 
 Detroit vs. Ensh (82 Mich. 532) 103 
 
 Devons et al. vs. Gallatin County Ct. al. (244 111. 40) 169 
 Dickenson vs. Cheboygan County Canvassers (148 Mich. 
 
 513, 111 N. W. 1075) 182 
 
 Dickey vs. Eeed (78 111. 261) 189 
 
 Donahue, In re (4 Ohio N. P. 246) 223 
 
 Douglas vs. Hutchinson (183 III. 323, 55 N. E. 628).. 169 
 
 Drewe vs. Coulton (1 East 563) 33 
 
 Duffy vs. Mason (1 Ellsworth El. Cas. 362) 205 
 
 E. 
 
 Eaton vs. Brown (96 Cal. 365) 103 
 
 Edwards vs. Knight (8 Ohio 375) 215 
 
 Elbin vs. Wilson (33 Md. 135) 33 
 
 Elliott vs. Burke (113 Ky. 479, 68 S. W. 445) 219 
 
 Ellis vs. Glaser (102 Mich. 396, 61 N. W. Eep. 505).. 107 
 
 Ellis vs. Karl (7 Neb. 381) 84 
 
 Elwell vs. Comstock (9 Am. & Eng. Anno. Cases 270) . . 139 
 
 English vs. Peele (48 Cong. H. Eep. 1547) 205 
 
 Esquibel vs. Chaves (12 N. Mex. 482, 78 Pac. Eep. 505) 107 
 
 Evos vs. States (131 Ind. 560, 31 N. E. Eep. 357) .... 148 
 
 F. 
 
 Field vs. Hall (Tex.) (40 S. W. 789) 87 
 
 Fisher vs. Dudley (74 Md. 242) 123
 
 262 TABLE OF CASES 
 
 Flanders vs. Roberts (142 Wis. 394, 123 N. W. 9.52).. 114 
 
 Fleet vs. State (74 Md. 552) 227 
 
 Foley vs. Tvler (161 111. 167) 197 
 
 Fowler vs. State (68 Tex. 303. S. W. Eep. 255) 147 
 
 Friend vs. Hammill (34 Md. 298) 33 
 
 Friezleber vs. Shalleross (9 Hoiist. 1. 19 Atl. .316).... 40 
 Franklin County vs. State (24 Fla. 55, 3 So. 471, 12 
 
 Am. St. Eep. 183) 150 
 
 G. 
 
 Gates vs. Neal (23 Peck (Mass.) 308.) 33 
 
 Gill vs. Shurtlegg (183 111. 440, 56 N. E. Eep, 174) 107 
 
 Gillespie vs. Dion (18 Mont. 183, 44 Pac. Eep. 954).. 215 
 
 Gillespie vs. Palmer (20 Wis. 544) 33 
 
 Gilroy vs. Appeal (100 Pa. St. 5) 196 
 
 Gooding vs. Wilson (Smith El. Case 79) 216 
 
 Gordon vs. State (52 Ala. 308) ; 227 
 
 Greele vs. Pinney (62 Conn. 478, 26 Atl. 1106) 143 
 
 Greene, In re (121 App. Div. 693, 106 N. Y. Siipp. 425) 73 
 
 Grier vs. Taylor (4 MeCord L. (S. C.) 206) 187 
 
 GriflPen vs. Wall (32 Ala. 149) 26 
 
 Criffcn vs. Eising (11 Metcalf (Mass) 339) 33-34 
 
 Griftiths, In re (I Kulp (Pa.) 157) 37 
 
 H. 
 
 Harding vs. Eichinger (57 Ohio St. 371, 49 N. E. 
 
 306) 19 
 
 Harris vs. Whitcomb (4 Gray 333) 34 
 
 Hartzell vs. Smith (18 Pa. Co. Ct. 551) 143 
 
 Harvey vs. Cook County (221 HI. 76, 77 N. E. Rep. 
 
 424) 107 
 
 Hayes vs. Sturges (215 Pa. St. 605, 64 Atl. 828) 196 
 
 Heath Ex parte (3 Hill (N. Y.) 42) 146-7-8 
 
 Helme vs. Board of Election Commissioners (140 
 
 Mich. 390) 137 
 
 Hill vs. Boston (193 Mass. 569) 180 
 
 Hodgs vs. Jones (43 S. W. 41) 205 
 
 Hodge vs. Linn (100 HI. 397) 107 
 
 Holt vs. People (102 111. App. 276) 151 
 
 Hopper vs. Stack (69 N. J. L. 569, 58 Atl. Eep. 1) 75 
 
 Horgan, In re (16 E. I. 542, 18 Atl. 279) 40 
 
 Horning vs. Board of Canvassers (119 Mich. 51) (77 
 
 N. W. Rep. 446) 108 
 
 Hotcbkisa vs. Keck (84 >:eb. 545) 196
 
 TABLE OF CASES 263 
 
 Hoy vs. State (81 N. E. 509) 182 
 
 Hughes vs. Hartnian (23 Oregon 482) 216 
 
 Hughes vs. Hohnan (23 Oregon 981) 213 
 
 Hughes vs. Marshall (2 Tyrw. 134) 231 
 
 Hudson vs. Conklin (77 Kan. 764, 93 Pac. 585) 175 
 
 I. 
 
 Independence Party Nomination (208 Pa. St. 108)... 100 
 Inhabitants of Windham vs. Inhabitants of Portland 
 
 (4 Mass. 384) 40 
 
 Innis vs. Bolton (2 Idaho 407, 17 Pac. 264) 30 
 
 J. 
 
 Jeffries vs. Ankenny (11 Ohio 372) 33 
 
 Jenny vs. Alden (79 Vt. 156) 181 
 
 Jones vs. Glidewell (53 Ark. 161) 205 
 
 Jones vs. Granville (77 N. C. 250) 195 
 
 Jones vs. State (153 Ind. 440, 55 N. E. Eep. 229) . . . 
 
 107-8, 207, 209, 170 
 
 K. 
 
 Katz vs. Fitzgerald (152 Cal. 433, 93 Pac. Eep. 112) 77 
 Kellogg vs. Hickman (12 Colo. 256, 21 Pac. Eep. 325) 147 
 
 Kerr vs. Flewelling (235 Ilh 325, 88 N. E. 624) 115 
 
 Kennenwig vs. Allegany County (102 Md. 110) 77-8 
 
 Kilpatrick vs. Smith (77 Va. 347) 196 
 
 Kimbery vs. Morris (87 Tex. 637) 186 
 
 Kingery vs. Berry (94 111. 515) 216 
 
 Knox County vs. Davis (63 111. 405) 204 
 
 Kulp vs. Bailet (99 Tex.' 310, 89 S. W. Eep. 957) . .107-208 
 
 L. 
 
 Lackey vs. United States (107 Fed. Eep. 114) 237 
 
 Lanier vs. Galatos (13 La. Ann. 175) 215 
 
 Launcester Election Petition (9 C. B. 626) 205 
 
 Lauritsen vs. Segard (99 Minn. 313, 109 N. W. 404) . . 182 
 
 Laurence vs. Knight (4 Phila. (Pa.) 355) 151 
 
 Lawson vs. Hays (39 Colo. 250) 195 
 
 Lehman vs. McBridge (18 Ohio St. 573) 147 
 
 Lehman vs. Pettingell (89 Pac. 48) 181-183 
 
 Le Moyno vs. Farwell (Smith El. Cas. 411) 204,
 
 264 TABLE OE CASES 
 
 Leonard vs. Conn. (112 Pa. St. 622) 75 
 
 Lincoln vs. Hapgood (11 Mass. 354) 33 
 
 Liud vs. Scott (87 Minn. 26) 63 
 
 Louisiana Cases (Taft El. Cases 426) 197, 245 
 
 Lucas vs. Futrall (84 Ark. 540, 106 S. ^\■. IJ67) 195 
 
 Luce vs. Mayhem (13 Gray (Mass) 83) 151 
 
 Lunsford vs. Culton (15 Ky. Law Kep. 504) 215 
 
 Lyman vs. Martin (2 Utah 136) 41 
 
 Lynch vs. Malley et al. (215 111. 574, 2 Am. & Eng. 
 
 Anno. Cases 837) 137 
 
 Lyane vs. Regis (1 P. R. & B. El. Cases 35) 205 
 
 M. 
 
 Mann vs. Cassidy (1 Vrewst. 11) 215 
 
 Matter of Atkinson (28 Misc. (X. Y.) 694, 59 N. Y. 
 
 Suppl. 792) 150 
 
 Matter of Barber (10 Phila. (Pa.) 579) 151 
 
 Matter of Woods (5 Misc. (N. Y.) 575 26 N. Y. Supl. 
 
 169) 150 
 
 Meacham vs. Young (24 Ky. L. R. 2141, 72 S. W. 1094) 66 
 
 Miller vs. Pennoyer (23 Or. 364, 31 Pac. 830) 167 
 
 Miller vs. Rucker (1 Bush (Ky.) 135) 33 
 
 Mills vs. McCall (44 111. 194) '. 33 
 
 Miner vs. Olii (159 Mass. 487) 104 
 
 Missouri, State vs. Steers (44 Mo. 223) 151 
 
 Montgomery vs. Chelf (118 Ky. 766, 82 S. W. Rep. 388) 78 
 Montgomery vs. Henrv (144 Ala. 629, 6 Am. Cas. 965, 
 
 1 L. R. A. N. S. 656) 107 
 
 Moore vs. Caldwell (Freem 222) 195 
 
 Moore vs. Mayfield (47 111. 187) 169 
 
 Mooris vs. Cole Midland Ry. Companv (48 Colo. 147; 
 
 109 Pac. 430; 20 Am. & Eng. ANN. Cas. 1006).. 34 
 
 Morris vs. State (7 Blackf. (Ind.) 606) 227 
 
 Murdoek vs. Weiner (55 111. App. 527) 40 
 
 Murphy vs. Battle (155 111. 182, 40 N. E. Rep. 470).. 107 
 
 Murphy vs. Bottle (155 111. 182) 216 
 
 Murphv vs. C'urrv (137 Cal. 479) 123 
 
 Mustard vs. Hoppess (69 Ind. 324) 147 
 
 Me. 
 
 McAllen vs. Rhodes (65 Tex. 348) 196 
 
 McDill vs. Board of State Canvassers (36 Wis. 505) . . 197 
 
 McHani vs. Conned (Tex. App.) (15 S. E. Rep. 284). . 83 
 
 McKay vs. Glen (Hodgin's Elec. Cas. 751) 205
 
 TABLE OF CASES 265 
 
 McKay vs. Minner (154 Mo. 608, 55 S. W. 866) 208 
 
 McKinley-Citizens Party, In re (6 Pa. Dist. 109) 146 
 
 McKinnon vs. People (110 111. 305) 115 
 
 McMahon vs. Zahorik (91 Iowa 23) 118 
 
 Mcpherson vs. Blacker, (146 U. S. 25) 256-257 
 
 McTammany Voting Machine (23 K. I. 630) 134 
 
 McWilliams vs. Jacobs (128 Ga. 375) 174 
 
 N. 
 
 Neal vs. Delaware (103 U. S. 370) 36 
 
 Neal vs. Young (25 Ky. L. K. 183, 72 S. W. 1092) .... 66 
 
 Newark's Case (1 Fras. El. Cas. 277) 46 
 
 Newton vs. Newell (26 Minn. 529) 216 
 
 Nichols vs. Minton (196 Mass. 410, 82 N. E. Kep. 50). 137 
 
 Nickols vs. Eegsdale (28 Ind. 131) 211 
 
 Norris vs. Handley (Smith El. Cas. 73) 216 
 
 O'Connel vs. Mathews (177 Mass. 518, 59 N. E. Eep. 
 
 195) 115 
 
 Ogg vs. Glover (72 Kan. 247, 83 Pae. Eep. 1039) 107 
 
 Olive vs. O 'Eilet (Minor (Ala.) 410) 216 
 
 Olwell, In re (59 N. W. 1128, 165 N. Y. 642) 51 
 
 Orphan's Ct. In re (1 Brewst. (Oa.) 67, 5 Phila. 
 
 (Pa.) 102) 151 
 
 Osgood vs. Bradley (7 Maine 411) 33 
 
 Oughton vs. Black (212 Pa. St. 1) 100-3 
 
 Owen vs. Milhoan (72 Kan. 701, 83 Pac. Eep. 1044) ... 209 
 
 Pacheo vs. Beck (52 Cal. 3) -. 146 
 
 Page vs. Allen (58 Pa. St. 338, 98 Am. Dec. 272) 60 
 
 Painter vs. United States (6 Ind. T. 621) 174 
 
 Parkes vs. Orr (158 111. 609, 41 N. E. Eep. 1402) . .114-119 
 Parwin vs. Winberg (130 Ind. 561, 30 N. E. 790 and 
 
 15 L. E. A. 775) 108-167 
 
 Pattern vs. Coates (41 Ark. Ill) 215 
 
 Patterson vs. Hubbe (65 N. C. 119) 196 
 
 Patterson vs. People (65 111. App. 651) 115 
 
 Peabody vs. March et al (75 Kan. 543, 89 Pac. 
 
 1016) 108-208 
 
 People vs. Armstrong (116 App. Div. 103) 183 
 
 People vs. Avery (102 Mich. 572) 84 
 
 People vs. Barber (RI. Hun. (N. Y.) 198) 227 
 
 People vs. Beam (117 Div. 374, 103 N. Y. S. 818) 181 
 
 Perkins vs. Bertrabd (192 III. 58, 61 N. E. Kep. 405
 
 266 TABLE OF CASES 
 
 85 Am. St. Rep. 315) 107 
 
 People vs. Bingham (82 Cal. 238) 198 
 
 People vs. Board of Town Canvassers (19 N. Y. Supp. 
 
 206) 144 
 
 People vs. Brewer (20 111. 474) 87 
 
 People Ex rel Breekon vs. Board of Election Commis- 
 sioners (221 ill. 9) 75-8 
 
 People vs. Burns (75 Cal. 627) 232 
 
 People vs. Democratic Gen. Conim. (82 App. Div. (N. 
 
 Y.) 123) 67 
 
 People vs. Edgar County Com. (223 111. 187, 79 N. E. 
 
 123) 181 
 
 People vs. Erie C'ty- (79 N. Y. App. Div. 514, 80 N. Y. 
 
 Supp, 25) 151 
 
 People vs. Essex County (69 Hun. (N. Y.) 406) 198 
 
 People vs. Farley (1 How. Pr. N. B. 71) 195 
 
 People vs. Hagen (58 N. E. 1091, 165 N. Y. 607).... 51 
 
 People vs. Hoffman (116 111. 587) 85 
 
 People vs. Eugle (91 111. 525) 145 
 
 People vs. Miller (16 Mich. 56) 216 
 
 People vs. Parkhurst (53 N. Y. Supp. 598) 118 
 
 People vs. Smith (51 111. 323, 55 N. Y. M) 169. 
 
 People vs. Sternberg (111 Cal. 3) 223 
 
 People vs. Strassheim (240 III. 179, 88 N. E. Rep. 821) 81 
 
 People vs. Thacker (7 Laws N. Y.) 216 
 
 People vs. Tisdale (1 Dougl. (Mich.) 59) 150 
 
 People vs. Voorhis (186 N. Y. 263, 78 N. E. 1001) .180-184 
 
 Perry vs. Reynolds (53 Comm. 527) 34 
 
 Phillips vs. Brynus (39 So. 911 ) 206 
 
 Piggott vs. Cascade County (12 Mont. 537, 31 Pac, 
 
 5361) '. 150 
 
 Plimmer vs. Yost (1441. 61, 33 N. E. 191) 41 
 
 Powell vs. Holman (50 Ark. 85, 6 S. W. 505) 147 
 
 Pratt vs. Board of Police (15 Utah 1, 49 Pac. 747) .. . 177 
 
 Q- 
 
 Quartier vs. Dowiat (219 111. 326, 76 N. E. Rep. 371). 169 
 
 R. 
 
 Rawson vs. Abbott (Taft El. Cases 338) 245 
 
 Reed vs. Lamb (6 H. and N. 75) 233 
 
 Reg vs. Parkinson (L. R. 3 Q. B. 11) 209 
 
 Reg. vs. Stewart (16 Ont. Rep. 583) 205 
 
 Reid, Ex parte (50 Ala. 439) 187 
 
 Rex vs. Cupland (11 Md. 387) 231
 
 TABLE OF CASES 267 
 
 Eex vs. Pitt (3 Burr. 1335) 231 
 
 Eex vs. Plyrapton (2 Campb. 229, 2 Ld. Eaymond, 1377) 231 
 
 Eex vs. Pollmau (2 Campb. 229) 231 
 
 Eexroth vs. Schein (206 111. 80, 69 N. E. Eep. 240) . 107-8-112 
 
 Eichardson vs. Eainey (1 Ellsw. El. Cas. 233) 203 
 
 Eiggs, Ex parte (52 S. C. 298, 29 S. E. 645) 150 
 
 Eizer vs. People (18 Colo. App. 49, 69 Pac. 315) 186 
 
 Eoberts vs. Clavert (98 N. C. 580, 4 S. E. 127) 143 
 
 Eobinson vs. McCandless (29 Ky. L. E. 1088, 96 S. W. 
 
 877) 181 
 
 Eose vs. Neinnett (E. I.) (56 Atl. Eep. 185) 73 
 
 Eouse vs. Thompson (228 III. 522, 81 N. E. 1109) 79 
 
 S. 
 
 Sanner vs. Patton (155 111. 553, 40 N. E. 290) 124 
 
 Savage vs. Wolfe (68 Ala. 569) 170 
 
 Schilling, Ex parte, (5rx Crim. App. 1897) (42 S. W. 
 
 Eep. 553) 84 
 
 Scott vs. State (151 Ind. 556, 52 N. E. 162) 174 
 
 Schastag vs. Cator (151 Cal. 600, 91 Pac. Eep. 502).. 77 
 Schuler vs. Hogan (168 111. 349, 48 N. E. Eep. 195) ... 107 
 Schuler vs. Hogan (168 111. 349, 48 N. E. Eep. 195) .208-168 
 
 Sego vs. Stoddard (136 Ind. 297, 36 N. Y. 204) 119 
 
 Seymour vs. Tacoma (6 Wash. 427) 61-84 
 
 Siebold, Ex parte (100 U. S. 331) 85 
 
 Simpson vs. Osborn (52 Kan. 328) 123 
 
 Sinks vs. Eeese, (19 Ohio St. 306) 216 
 
 Slattery, In re (100 N. Y. S. 419) 206 
 
 Smith vs. Holt (24 Kan. 773) 219 
 
 Smith vs. Harris (18 Colo. 274, 32 Pac. Eep. 616) 215 
 
 Smith vs. Askew (48 Ark. 82) 88 
 
 Smith vs. Harris (18 Colo. 274, 32 Pac. Eep. 616) 107 
 
 Smith vs. Lawrence (2 S. D. 185, 49 N. W. 7) 147-186 
 
 Smith vs. Saginaw (81 Mich. 123, 45 N. W. 964) .... 186 
 Soper vs. Sibley County Commissioners (46 Minn. 274) 
 
 (46 Minn. 274, 48 N. W. Eep. 112) 215 
 
 Spaulding vs. Mead (CI. & H. El. Cases 157) 197 
 
 Spencer vs. Board of Eegistration (1 Mac Arthur 169, 
 
 29 AM, Eep. 582) 26 
 
 Stephen vs. People (89 111. 337) 83-4-7 
 
 Spragius vs. Houghton (2 Scam. (111.) 377) 43 
 
 Spitler vs. Guy (58 S. E. 769) 182 
 
 Stackpole vs. Hallabary (16 Mont 49, 40 Pac. 80) 167 
 
 Stallcup vs. Tacoma (13 Wash. 143) 57 
 
 State vs. Allen (43 Neb. 651) 122 
 
 State vs. Alexander (107 la. 177, 77 N. W. 841).... 196
 
 268 
 
 TABLE OF CASES 
 
 State vs. Ashley (1 Ark. 279) 174 
 
 State vs. Barton (58 Kan. 709, 51 Pac. Rep. 218) 219 
 
 State ex rel Birehmore vs. State Board of Canvassers, 
 
 (78 S. C. 461 ) 217 
 
 State vs. Bode (55 Ohio St. 224) 12.3 
 
 State vs. Boston (59 Ohio St. 122) 103 
 
 State vs. Burnell (110 N. W. Eep. 177) 208 
 
 State vs. Benton (13 Mont. 306, 34 Pac. 301) 73 
 
 State vs. Buck (13 Neb. 273).. 3 83 
 
 State vs. Brown (38 Ohio St. 344) 186 
 
 State vs. Board of Elec. Comm. of Marshall County, 
 
 (167 Ind. 276, 78 N. E. 1016) 184 
 
 State vs. Boal (46 Mo. 528) 174 
 
 State vs. Bell (169 Ind. 61, 82 N. E. 69) 175 
 
 State vs. Bower (8 S. C. 400) 175 
 
 State vs. Colline (2 Nev. 351) 87 
 
 State vs. Caldwell (2 Hardesty (Del.) 164) 223 
 
 State vs. Collier (72 Mo. 13) 205 
 
 State vs. Clark (59 Neb. 702, 82 N. W. 8) 150 
 
 State vs. Crawford (28 Fla. 441) 197 
 
 State vs. Dahl (69 Minn. 109, 71 N. W. 810) 174 
 
 State vs. Deputy State Supervisors (9 Ohio Cir. Ct.) 427 
 
 State vs. Dustin (5 Ore, 375) 205 
 
 State vs. Daniels (44 N. H. 383) 232 
 
 State vs. Drexel (105 N. W. Eep. 174) (Neb.) 77 
 
 State vs. Donnewirth (21 Ohio St. 216) 144 
 
 State vs. Eastman (46 Neb. 675, 65 N. W. 805) 145 
 
 State vs. Elliott (13 Utah 200, 44 Pac. 248) 174 
 
 State vs. Elting (29 Kan. 397) 205 
 
 State vs. Frazier (28 Neb. 435, 44 N. W. 471) 175 
 
 State vs. Franshorn (19 Mont. 273, 48 Pac. Rep. 1). 108-208 
 
 State vs. Fiulev (74 Mo. App. 213) 150-39 
 
 State vs. Gaff \l29 Wis. 668, 109 N. W. 628) 181 
 
 State vs. Herreid (105 N. D. 16, 71 N. W. 319) 196 
 
 State vs. Johnson (28 Ohio Cir. Ct. 793) 175 
 
 State vs. Jefferson County (17 Fla. 707) 186 
 
 State vs. Junkin (Neb.) (122 N. W. Eep. 475) 73 
 
 State vs. Kearney (28 Neb. 103) 196 
 
 State vs. Krueger (134 Mo. 262) 232 
 
 State vs. Kendall (87 Pac. 821) 182-3-4 
 
 State vs. Lindahl (11 N. D. 309) 73 
 
 State vs. Lieu (9 S. D. 297, 68 N. W. 748) 186 
 
 State vs. Lindemann (121 Wis. 47. Ill N. W. 712).. 174 
 State vs. Mason (45 Wash. 234, 88 Pac. 126) . .186-181-183 
 
 State vs. Moore (87 Minn. 308) 75 
 
 State vs. McClarnon (15 E. T. 462) 227 
 
 State vs. McDonald (4 Harr. (Del.) 555) 232
 
 TABLE OF CASES 269 
 
 State vs. McMillab (108 Mo. 153) 103 
 
 State vs. Millar (Okla. 1908) (96 Pac. Eep. 830) 107 
 
 State vs. Morris (37 Neb. 299, 55 N. W. Eep. 1086) . . 107 
 
 State vs. McFadden (46 Neb. 668, 65 N. W. 800) 145-7 
 
 State vs. McKennie (10 N. D. 132 N. W. 231) .146 
 
 State vs. Ninnick (15 Iowa 124) 227 
 
 State vs. Porter (11 N. D. 309) 73 
 
 State vs. Beter (21 Wash. 243, 57 Pac. Eep. 814) 115 
 
 State vs. Perkins (42 Vt. 399) 227 
 
 State vs. Pearson (97 N. C. 434) 227 
 
 State vs. Eice (66 S. C. 1) 195 
 
 State vs. Eeynolds (190 Mo. 578, 89 S. W. 877) 187 
 
 State vs. Scott (108 N. W, Eep. 828 Minn.) 77 
 
 State vs. Samuelson (131 Wis. 499, 111 N. W. 712).. 174 
 
 State vs. Stein (13 Neb. 529) 14 N. W. 481) 174 
 
 State vs. St. Louis Public Schools (134 Mo. 296) 186 
 
 State vs. Shropshire (4 Neb. 411) 186 
 
 State vs. Shepherd (42 Kan. 360) 60 
 
 State vs. Saxon (30 Fla. 668) (12 So. Eep. 218, 18 
 
 L. E. A. 721, 32 Am. St. Eep. 46) 107 
 
 State vs. Stuckey (78 Mo. App. 533) 146-7 
 
 State vs. Trigg (72 Mo. 365) 146 
 
 State vs. Tanzey (49 Ohio St. 656, 32 N. E. 759) . .150-186 
 State vs. Willett (127 Tenn. 334, 97 S. W. 299) ... .182-3 
 
 State vs! Withrow (154 Mo. 397, 55 S. W. 460) 195 
 
 State vs. Whitney (12 Wash. 420, 41 Pac. Eep. 189).. 219 
 
 State vs. Winter (141 Ind. 177) 87 
 
 State ex rel Grain vs. Acker (142 Wis. 394, 125 N. 
 
 W. 952) 115 
 
 Stearns vs. Wyoming (53 Ohio St. 352) 198 
 
 Steele vs. Calhoun (61 Mass. 556) 89 
 
 Steele vs. Martin (6 Kan. 430) 215 
 
 Stimpson vs. Breed (Mass. El. Cas.) 260 
 
 Stine vs. Berry (27 S. W. Eep. 809, 16 Ky. Law Eep. 
 
 279) 169 
 
 Strong, In re (20 Pick. Mass. 484) 151 
 
 Stone vs. Smith (159 Mass. 403, 34 N. E. 521) 38 
 
 Sulston vs. Norton (3 Burr. 1235) 231 
 
 Swafford vs. Templeton (186 N. S. 487) 33 
 
 Sweeney vs. Hjul (23 Nev. 409, 48 Pac. Eep. 1086).. 115 
 
 T. 
 
 Taft vs. Adams (3 *ray (Mass.) 126) 142 
 
 Talkington vs. Turner (71 111. 234) 216 
 
 Tanner vs. Deen (Ga.) (33 S. E. 832) 168 
 
 Taylor vs. Bleakley (55 Can. 1) 103
 
 270 TABLE OF CASES 
 
 Taylor vs. Burke (91 Pac, 814) 183 
 
 Tebbe vs. Smith (108 Cal. 101, 41 Pac. K^p. 454) 119 
 
 Territory vs. Pyle (1 Oregon 140) 216 
 
 Territory ex rel Willis vs. Kaneali (17 Hawaii 243) 107-208 
 Thomas, In re (128 App. Div. 3:J0, 132, N. Y. Supp. 
 
 664) 73 
 
 Tillson vs. Ford (53 Cal. 701) 84 
 
 Todd vs. Elec. Comm. (104 Mich. 481) 103-121 
 
 Toncray vs. Budge (14 Idaho 621, 95 Pac. 26) 173 
 
 Torry vs. Harris (85 Ky. 453) 87 
 
 Trench vs. Nolan (6 Ir. Eep. C. L. 464) 205 
 
 Trumball vs. Board of Canvassers, (Mich.) (103 N. 
 
 W. 993) 139 
 
 Tunks vs. Vincent (106 Ky. 829, S. W. 622, 21 Ky. 
 
 L. Eep. 475) 146 
 
 U. 
 
 United States vs. Amsden (6 Fed. Eep. 819) 237 
 
 United States vs. Badnielli (37 Fed. Eep. L38) 142-233 
 
 United States vs. Brewer (139 U. S. 278) 142 
 
 United States vs. Dwyer (56 Fed. Eep. 464) 232 
 
 United States vs. Moloy (31 Fed. Eep. 19) 224 
 
 United States vs. Norrel (Whart. St. Tr. 189) 231 
 
 United States vs. O'Connor (31 Fed. Eep. 449) 224 
 
 United States vs. Eeese, (92 U. S. 214) 36-40 
 
 United States Standard Voting Machine Company vs. 
 
 Hobson, (132 Iowa 38, 109 N. W. 458) .. .139-187-192 
 
 Vallier vs. Brakke (7 S. D. 343, 64 N. W. 180) 119 
 
 Vaughan 's Case (4 Burr. 2494) 231 
 
 Vette vs. Byington (132 la. 487, 109 N. W. 1073) 195 
 
 Voorhees vs. Arnold (1083 la. 77, 78 N. W. Eep. 795). 115 
 
 Voting Machines, In re (19 E. I. 729) 136 
 
 W. 
 
 Wagner vs. State (63 Ind. 250) 233 
 
 Wallace vs. Lansdon (Idaho) (97 Pac. Eep. 396) 73 
 
 Wallace vs. Anderson (5 Wheaton 291) 175 
 
 Walsh vs. People (65 111. 58) 231 
 
 Walton vs. Beveling (61 111. 201) 193 
 
 Washburn vs. Voorhis, (2 Bart. 31 Cas. 54) 204 
 
 Webb vs. Smith (4 Bing. 373) 231
 
 TABLE OF CASES 271 
 
 Whaley vs. Thompson (15 Tex. Ct. Eep. 207, 93 S. W. 
 
 212) 204-5 
 
 Whittan vs. Zahorik (91 Iowa 23) 119 
 
 Wiley vs. Sinkler (171 U. S. 58) 33-34 
 
 Williams Ex jjarte (35 Tex. Ct. Eep. 207, 93 S. W. 
 
 212) 204-5 
 
 Williamson vs. Lowe (527 111. 235) 169 
 
 Williams vs. Porter (114 111. 628) 88 
 
 Winton Nominations, Ee (2 Lock Lef. N. (Pa.) 13).. 219 
 Wisconsin, State vs. Board of State Canvassers (36 
 
 Wis. 498) 151 
 
 Wolf vs. State (59 Ark. 297) 233 
 
 Wyman vs. Lemon (51 Cal. 273) 119 
 
 Y. 
 
 Yoiing vs. Beckman (24 L. E. 2134, 77 S. W. 1092).. 66-67 
 
 Z. 
 
 Zaeharias, In re (30 Pa. Co. Ct. 656) 142 
 
 Zeis vs. Passwater (142 Ind. 375, 41 N. E. Eep. 796) . . 119
 
 INDEX 
 
 Apportionment of Members of Congress 239 
 
 Assemblies. 
 
 Teutonic 15 
 
 Early Popular 15 
 
 Athenian Ecclesia 15 
 
 Australian Ballot System. 
 
 History of 23-91 
 
 Form of 94 
 
 Constitutionality of 100-3 
 
 B. 
 
 Ballots. 
 
 Introduction of 21 
 
 Introduction of in England 22 
 
 Form of Illinois Ballot 99 
 
 Form of Massachusetts Ballot 95 
 
 Australian Ballot System 91 
 
 Effect of Irregularities in Preparing Official Ballot 
 
 Upon the Validity of Votes Cast 104 
 
 Form of Cross on 108 
 
 Distinguishing ]\larks on 115 
 
 Number of Times Name of Candidate May Appear on 120 
 
 Writing of Additional Names on 123 
 
 Betting on Elections 233 
 
 Bribery 227 
 
 What Will Constitute 228 
 
 C. 
 
 Calling Elections 82 
 
 Canvassers of Election 148 
 
 Certiorari 186 
 
 Use of, in Election Contests 186 
 
 City Political Committee 65 
 
 Conduct of Elections 82 
 
 Congress, Apportionment of Members of 239 
 
 273
 
 274 INDEX 
 
 Congressional Elections, Contested 242 
 
 Constitutional Provisions as to Registration 56 
 
 Constitutionality of Australian Ballot System 100-3 
 
 Constitutionality of Laws Providing for Use of Voting 
 
 Machines 134 
 
 Constitutionality of Primary Election Laws 75-77 
 
 Contested Congressional Elections 242 
 
 Contested Delegates, Eight to Vote 69 
 
 Contests Before Legislative Bodies 196 
 
 Control of Courts Over Political Conventions 71 
 
 Counting Votes 140 
 
 Statutory Provisions as to 141 
 
 By Candidates 142 
 
 County Political Committees 64 
 
 Crimes Eelating to Elections 220 
 
 Federal Statutes as to 234 
 
 Cross on Ballot, Form of 108 
 
 Curia Eegis 17 
 
 D. 
 
 Delegates to Political Conventions 68 
 
 Election of 68 
 
 Deprivation of the Eight to Vote 30 
 
 Eemedies in Cases of , 30 
 
 Development of Eepresentative Government in Eng- 
 land 16-19 
 
 Distinguishing Marks on Ballot 115 
 
 E. 
 
 Early Methods of Electing Members of Parliament... 20 
 
 Early Popular Assemblies 15 
 
 Effect of Irregularity or Fraud in Nomination of Can- 
 didates Upon the Validity of Election 206 
 
 Elections. 
 
 Popular Elections Among Anglo-Saxons 16 
 
 Conduct of .' 82 
 
 Officers of 84 
 
 Time of Holding 86 
 
 Place of Holding 88 
 
 Canvassers of 148 
 
 Use of Certiorari in Contesting 186 
 
 Effect of Irregularity or Fraud in Nomination of 
 
 Candidate Upon the Validity of 206 
 
 Pleading and Evidence in Contests of 209 
 
 Waiver of Eight to Contest Legality of by Partici- 
 pating Therein 216
 
 INDEX 275 
 
 Crimes Eelating to 220 
 
 Betting on 223 
 
 Contested Congressional Elections 242 
 
 Presidential 245 
 
 Election Contests, Pleading and Evidence in 209 
 
 Grounds for 198 
 
 Provisions of Illinois Statutes as to 158-166 
 
 Election Day, Selling of Liquor on 233 
 
 Election of Federal Officers 238 
 
 Elections, Nature of Proceedings to Contest 152 
 
 Election Officers 84 
 
 Election Officers, Offenses by 231 
 
 Election of President by Hoi^e of Representatives. . . . 254 
 
 Evidence in Election Contests 209 
 
 F. 
 
 Federal Elections 238 
 
 Federal Statutes as to Crimes Eelatinsr to Elections. . . . 234 
 
 Federal Officers, Election of '^. 238 
 
 Feudal System 15 
 
 Form of Australian Ballot 94 
 
 Of Massachusetts Ballot 95 
 
 Of Illinois Ballot 99 
 
 Form of Cross on Ballot 108 
 
 Fraud, Effect of, in Nomination of Candidate Upon the 
 
 Validity of Election 206 
 
 Fraud in Registration 220 
 
 General Characteristics of Ballots 93 
 
 H. 
 
 History of Australian Ballot System 91 
 
 History of Election Laws 15 
 
 I. 
 
 Illinois Ballot, Form of 99 
 
 Injunctions ^ 188 
 
 Use of, in Election Contests 188 
 
 In Election Cases Affecting Property Rights 191 
 
 Illegal Voting 224 
 
 What Will Constitute 224 
 
 Intimidation of Voters 233 
 
 Introduction of Ballot 21 
 
 Irregularity, Effect of, in Nomination of Candidate 
 
 Upon the Validity of Election 206
 
 276 INDEX 
 
 Legality of Election; Waiver of Eight to Contest by 
 
 Participating Therein 216 
 
 Legislative Bodies, Contests Before 193 
 
 M. 
 
 Mandamus 174 
 
 As an Auxiliary Proceedings 174 
 
 Scope of in Election Contests 174 
 
 Eight of Private Persons to Enforce Public Eight or 
 
 Duty Eelative to Elections by 184 
 
 Majority of Delegates, Eights of 72 
 
 Massachusetts, Adoption of Australian Ballot by 92 
 
 Form of Ballot 95 
 
 McTammany Voting Machine 138 
 
 Members of Congress, Apportionment of 239 
 
 Qualifications of Voters for 28 
 
 Members of Parliament, Early Methods of Electing. . . 20 
 
 Myers Voting Machine 133 
 
 N. 
 
 National Committees 64 
 
 National Conventions 64-68 
 
 Nature of Proceedings to Contest ElcL'tions lo2 
 
 Number of Times Name of Candidate May Appear on 
 
 Ballot 120 
 
 0. 
 
 Offenses by Election Officers 231 
 
 Officers of Election 84 
 
 Officials of Eegistrations 62 
 
 P. 
 
 Parliament of Simon de Montfort 18 
 
 Partial Suffrage 26 
 
 Party Organization 63 
 
 Party Names 63 
 
 Petition for Eecount 143 
 
 Place of Holding Elections 88 
 
 Pleading in Election Contests 209 
 
 Political Committees 64 
 
 Authority of 66
 
 INDEX 2Tl 
 
 Political Conventions 67 
 
 Control of Courts Over 71 
 
 Political Parties 63 
 
 Political Platforms 70 
 
 Popular Elections Among Anglo-Saxons 16 
 
 Ee-establishment of 16 
 
 Power of State Legislatures Over Registration 57 
 
 Primary Election Laws 74 
 
 Eight of Legislature to Pass 74 
 
 Constitutionality of 75-77 
 
 Unconstitutionality of 78-81 
 
 President, Election of, by House of Representatives. . . 254 
 
 Presidential Elections 245 
 
 Presidential Electors 27 
 
 How Elected 27 
 
 Prohibition, Use of in Election Contests 187 
 
 Q- 
 
 Qualifications of Voters, in General 35 
 
 Age Qualifications 86 
 
 Educational Qualifications 37 
 
 Religious Qualifications 38 
 
 Property Qualifications 39 
 
 Sex Qualifications 40 
 
 Citizenship Qualifications 42 
 
 Residence Qualifications 43 
 
 Special Disqualifications 51 
 
 Qualifications of Voters for Members of Congress 28 
 
 Quo Warranto 170 
 
 Scope of in Election Contests 170 
 
 E. 
 
 Recount, Petition for 143 
 
 Ee-establishment of Popular Elections 16 
 
 Eegistration, Constitutional Provisions as to 56 
 
 Power of State Legislatures Over 57 
 
 Officials of 62 
 
 General Application of Laws of 60 
 
 Fraud in 220 
 
 Eegistration Laws, General Application of 60 
 
 Eepresentative Government, Development of, in Eng- 
 land 16-19 
 
 Returns 1*4 
 
 How Authenticated 145 
 
 Method of Forwarding 145
 
 278 INDEX 
 
 Making of, a ^linisterial Act 145 
 
 Rhines Voting Machine 134 
 
 Roman Legislative Assemblies 19 
 
 Roman Republic, Cause of Fall of 19 
 
 Right of Contesting Delegates to Vote 69 
 
 Right of Contestant for Office to Enjoin Incumbent 
 from Performing Public Duties Pending Election 
 
 Contest 193 
 
 Right to Vote 25 
 
 How Determined 25-27 
 
 Deprivation of 30 
 
 Right of Private Persons to Enforce Public Right or 
 
 Duty Relative to Elections 184 
 
 Rights of Majority of Delegates 72 
 
 S. 
 
 Selling Liquor on Election Day 233 
 
 Senate, Vacancies in 242 
 
 Simon de Montfort, Parliament of 18 
 
 Split Ballot 119 
 
 State Central Committees 65 
 
 Statutory Provisions as to Counting Votes 141 
 
 Straight Ballots 119 
 
 Suffrage Partial ^6 
 
 T. 
 
 Tutonic Assemblies 15 
 
 Time of Holding Elections 86 
 
 Town Political Committees 65 
 
 Twelfth Amendment, Causes for Adoption of 249 
 
 U. 
 
 Unconstitutionality of Primary Election Laws 78-81 
 
 V. 
 
 Vacancies in Senate 242 
 
 Varieties of Voting Machines 133 
 
 Viva Voce Voting 21 
 
 Voting 89 
 
 Vote, Validity of, as Depending Upon the Place of 
 
 Mark for Candidate 112 
 
 Voter Entitled to Secrecy 89 
 
 Entitled to Assistance 90 
 
 Intimidation of 35
 
 INDEX. 279 
 
 Votes, Counting of 140 
 
 Statutory Provisions as to 141 
 
 Validity of as Depending Upon the Place of Mark 
 
 for Candidate 11:2 
 
 Voting Machines 133 
 
 Constitutionality of Laws Providing for Use of.... 134 
 
 Varieties of 133 
 
 W. 
 
 Waiver of Eight to Contest the Legality cf an Election 
 
 by Participating Therein 216 
 
 Ward Political Committees 65 
 
 Writing Additional Names on Ballot 123
 
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