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So, if the statute requires the cross (X) to be marked at the right of
the name of each candidate, instead of at the left, a ballot cannot be
counted where the cross (X) is placed at the left of the name: Curran
V. Clayton, 86 Me. 42; In re Vote Marks, 17 R. I. 812. The validity of
the ballot ought not to turn upon the. distance of the cross or stamp
mark from the square, for, in that event, if a quarter of an inch is near
enough, why not twice that distance or thrice that distance, or even
an inch and one-half, as ballots are sometimes marked. The only rule
free from embarrassment is to follow the language of the statute, and
reject the ballot unless the cross or stamp at least touches the square.
The voter has no greater right to stamp his ballot in a manner different
from that prescribed than he has to decline to go into a booth to stamp
it: Bechtel v. Albin, 134 Ind. 193, 203. In Nebraska, a contrary con-
clusion has been reached. While the statute there provides that the
cross which signifies the preference of the elector shall, in ink, be
placed in a space designated for that purpose, it is held that a ballot
upon which such preference is indicated by a cross made with a lead
pencil, outside of the space designated, but opposite the name of the
choice of the elector, should be counted according to such manifest in-
tention : Spurgin v. Thompson, 37 Neb. 39, 45. There is sreat danger,
under the Australian ballot law, in giving the voter such latitude in
marking his ballot, as it gives too much room for the use of distinguish-
ing marks under the guise of an innocent mistake. It is due the court,
however, to say that they did not in this case follow any chimerical
notions in giving effect to tha*^ frequently visionary and uncertain
quantity known as the voter's intention, because the statute in that
state provides that ''when a ballot is sufficiently plain to gather there-
from a part of the voter's intention, that it -^hall be the duty of the
judges of election to count such part," and the court were bound to give
effect to this enactment.

While statutory provisions as to the marking of ballots are in their
nature mandatory, all statutes tending to limit the citiaen in the ezer-

AlLBt. RlP^VOL. ZLIX. — li

Digitized by VnOOQ IC

242 Taylor v. Blbaklet. [Kansas^

ciae of the right of suffrage ebould be liberally construed in his favor.
Hence, if there is no mandatory provision requiring the voter to mark,
the cross in the square to the right of the candidate's name, and all
that is required of him is that he shall mark a cross after the name of
the person for whom he intends to vote^ he has complied with all that
is mandatorjT in the law after he has so placed his cross. If no such
provision exists, it is not an essential prerequisite to the marking of a-
legal ballot that it shall be done in the square to the right of the name:
Tebbe ▼. Smith, 108 Gal. 101; ante^ p. 68. Sometimes there is no
express statutory provision as to placing a square upon the ticket, and,
of course, no direction as to placing the cross within it. If all that the
statute requires to make the cross effective as a vote is, that it shall be
inscribed in the right-hand margin, opposite the name of the person
inl^nded to bo voted for, a cross placed in the margin of the ballot, on
the right of the names of the candidates, opposite a candidate's name,
should be counted as a vote for the candidate opposite whose name it
is placed, whether the margin has any square in it or not, and if there
is a square in it, the vote should be counted, though the cross is with-
out, or partly without, the square: In re Vote Marks, 17 R. I..812;
Tebbe v. Smith, 108 Cal. 101 ; ante, p. 68. If the statute, therefore,
makes no provision as to putting the cross in a designated square, th&
question whether the cross is or is not within the square usually pro-
vided for it is immaterial: In re Vote Marks, 17 B. 1. 812. A statute-
which does not mention squares or circles opposite the names of candi-
dates, and (ioes not say with what the cross shall be made, but merely
requires it to be made "in the appropriate margin or place opposite the
natne,"etc., is simply directory, and, under it, the voter's intention
should be given effect if it can be gathered from his ballot, having due^
regard to the requirement of secrecy : Parker v, Orr, 158 III. 609.

The statutory provision requiring the voter to mark his ballot by^
means of a stamp, by putting a cross opposite the name of each candi-
date thereon ior whom he intends to vote, is mandatory. There must'
be a cross (X) mark: Lay v. Parsons, 104 Cal. 661; but the statute is
not mandatory as to the exact form of cross to housed. Thus, the capi-
tal in parenthesis *' (X) " used in directing the manner of voting, i»
merely directory, and indicates to the voter how the cross may be made;
but the law is satisfied by complying with its language, and ''making a
cross" in some other form. Imperfect success in marking a cross in
the proper places to indicate a choice of candidates, if there is a c*ear
intention to conform to the statute and not to distinguish the ballot,
does not authorize its rejection. A mark, however, on a ballot which
bears no resemblance to a cross, and is not an attempt to make a cross
of any kind, is cause to reject the ballot. But a mark made with ink
and somewhat blurred, even if it cannot be said to be a cross, strictly
speaking, may, if it shows an attempt to make a cross, be sufficient to*
allow the ballot to be counted. An honest attempt, however, to follow
the directions of the law requiring a cross to be made in the appro-
priate margin or place opposite the name on the ballot, must appear,
m order to permit the ballot to be counted: Parker v. Orr, 158 III.
609. A ballot marked with two pencil lines, commencing in the
circle preceding the party title and running through it and each of the
squares opposite the names of candidates, but without anything like a
cross in the circle or in the squares, does liot substantially comply with
the ballot law. So, a cross to the right of the name of atsandidate between
such name and the square opposite the name of an opposing candidate,
does not sufficiently snow the intention of the voter to permit the ballot
to be counted for either candidate: Apple v. Barcroft, 158 111. 649.

If the statute does not provide with what the cross shall be made, it
may, of course, be made with either pen and ink or in pencil marks.
In fact, it has been held that, under the " Australian ballot system," a.

§ revision of a statute that the voting mark shall be made with ink i»
irectory merely, and if the mark is made with pencil the ballot is not

Digitized by


Jan. 1895.] Taylor v. Blbakley. 243

thereby rendered void: State v. Russell, 34 Neb. 116; 83 Am. St. Rep.
625^ Spurgin v. Thompson, 37 Neb. 39. Marking the cross on the bal-
lot in pencil does not, it is said, violate a providiun of the statute that
*'no elector shall place any mark upon his ballot bv which it may after-
ward be identified as the one he voted": State v. kussell, 34 Neb. 116;
S3 Am. St. Hep. 625. If the statute pruidcriL)es that the cross shall be
made with a stam^>, a ballot marked with a lead pencil and not with
the official stamp, is invalid: People v. Sausalito, 106 Gal. 600; Lay v.
Parsons. 104 Cal. 661.

Diftinguishing Mark»—What Prohibi fed. —^Under the Australian bal-
lot law one thing is e8i>ecially prohibited, and that is the use of
marks whereby one ballot may be distinguished from another. This
principle ia enforced by the courts, thov^^ the statute is silent on
the subject. The use of a mark furnishing means of avoiding th«
secrecy of a ballot requires its rejection, though the law contains no
direct prohibition of distinguishing marks; and this is so although
the mark used mav indicate the voter's candidate or party choice:
Parker v. Orr, 158 111. 609. And when the statute distinctly declares
that ballots having a distin^uishiu)^ mark upon them shall not be re-
ceived, or shall be rejected, it is to be construed as mandatory and not
as directory: State v. Saxon, 30 Fla. 668 j 82 Am. St. Rep. 46. We
have seen abuve that the only mark which the voter can lawfully use in
designating his choice of candidates on a ticket is a cross (X) or stamp.
mark:e<i opposite a name, and either in or outside of a designated circle
or square, depending upon the provisions of the state. Hence a statute
forbidding marks which may serve to distinguish the ballots, does not
include the cross legally placed upon the ballot; and when a legal mark
is placed upon the ballot in a legal place, whether at the right of the
name or in the square, the ballot cannot be rejected because the mark,
as placed, may serve some ulterior purpose to distinguish the ballot:
Tebbe v. Smith. 108 Cal. 101; ante, p. 68. Under a statute providing
that "no elector shall place any mark upon his ballot bv which it may
afterward be identified as the one he voted,'' the mark prohibited ia
such a one, whether letters, figures, or characters in ink or in pencil,
as shows an intention on the part of the voter to distinguish his partic-
ular ballot from others of its class, and not one that is common to, and
not distinguishable from, others in that class, and the ballot itself must
farniab evidence of an unlawful intention on the part of the voter, such
as his initials, or a mai^ known to l>e his, or the tike: State v. Kussell,
34 Neb. 116; 33 Am. St. Rep. 625. As the primary object of the ballot
reform acts is to enable the voter to cast his ballot without the possi-
bility of revealing, by the act of voting, the identity or political com-
plexion of the candidates voted for, it seems that any construction of
•uch acts which permits votes to be oast and counted which contain any
caption or word revealing what is so sought to be kept secret should be
avoided. Any ballot, therefore, easilv distinguishable from ail others
cannot be counted : People v. Board of Can vassers, 129 N. Y. 395. And
the conclusion seems to be almost inevitable that any mark upon a bal-
lot, other than the legal, appropriate, and necessary one, which is
a cross or stamp, to designate the intention of the voter, must be re-
garded as a distinguishing mark : Attorney General v. Glaser, 102 Mich.
396; though, on rehearing, in Attorney General v. Glaser, 102 Mich.
405, 409, this rule war '**^u8idered too rigid. Under the Michigan stat-
ute, the only instance k. jrhicb an unnecessary mark is recognised as
possible is where an elector votes for more than one person for the same
office, in which case his ballot shall not be counted for those persons,
but shall be, as to them, null and void : Attorney General v. Glaser,
102 Mich. 396.

WhcU Marks on Face of Ballot InvalidaU It, — Distinguishing marks
may appear either upon the inside of a ballot or upon its outside. The
following illustrations show what distinguishing marks upon the face
of a ticket will invalidate it. For example, if a letter on a ballot ia
written in pencil in a blank space left for the initial of a name, thoagh

Digitized by


244 Taylor v. Bleakley. [KansaB.

it may have been the intention of the voter to write a name, and he may
have abandoned bis intent after setting down an initial letter, yet, the
mark being one iiaving no lawful right on the ballot, and one which
could serve as a distinguishing mark, it renders the ballot void. The
voter's only remedy, having improperly marked the ballot, is to call
for the issuance to him of a fresh ticket: Tebbe v. Smith, 108 (Jal. 101;
ante, p. 68. Writing the word " Democratic" at the head of a ticket;
making a single mark through the circle or square; making a circle or
other irregular character, not being any form ot a cross, within the circle
or square; making a cross oppobite the names but outside the square,
with no attempt by the voter to indicate his choice by making a cross
in the appropriate place, and signing the name of the voter to the ballot,
are all modes of marking which disregard the directions of the law
besides destroying the ballot's secrecy, and ballots so marked should
be rejected: Parker v. Orr, 158 HI. b09. So, if, upon all the ballots
cast in a certain precinct, a name appears written in the blank space
under the office of justice of the peace, which was done by the same
person, and there was but one person in the precinct lawfully assisted
m the making of his ballot under the provisions of the statute, and
it does not appear whether the writing was upon the tickets when
they were put into the voter's hands, it must be presumed that the
public othcers did their duty. It will be presumed that they put legal
tickets into the hands of the electors, and that the writing was after-
ward put upon them. Hence, in the absence of proof removing such
objection, all the ballots, other than the ballot of the voter lawtully as-
sisted, should be rejected : Tebbe v. Smith, 108 Cal. 101; ante, p. 68.
In this case, McFarland and Garoutte, JJ., dissenting, could not see
that there were any presumptions upon which the problem could be
solved. They considered that if there is a distinguishing mark on a
ballot when it is voted, it should not be counted ; but that if the mark
is placed on a ballot after it is properly voted, then it should be counted
at the trial of a contest. The justices were, therefore, of the opinion
that the votes of the precinct in question should not have been reject d
without ''some evidence" tending to snow that the marking of the votes
for justice ot the peace was done before the ballots were voted. In
Sego V. Stoddard, 136 Ind. 297, followed in Sego v. State, 136 Ind. 700,
the following were held to he distinguishing marks rendering the ballot
invalid : A lead pencil mark across the name ol a candidate on the bal-
lot; a hole in a ticket, caused by partially erasing the stamp mark in
the small square to the left of the name of a candidate, though the
ticket was otherwise properly stamped at other places on the ballot; a
stamp in a square containing a device, and also to tho left of the name
of a candidate in the list under such stamped device; a stamp in a
BC[uare containing a device, and also to the left of two names in another
list of candidates, the list under the stamped device being complete; a
stamp in the square to the left of the candidates voted fur, in the va-
rious lists, and also in a square opposite to which there is no candidate's
name printed; a stamp in a square opposite no candidate's name; and
more than one Htamp mark in a square containing a device. The stat-
ute, as in Indiana, sometimes prescribes what shall be treated as a dis-
tinguishing mark ; and it may here be observed, with respect to ballots
in that state, that it is only the squares to tho left of names on the va-
rious tickets and the square inclosing the device that can be lawfully
stamned. If the voter desires to vote for all the candidates of one
party or group of petitioners, he may place the stamp on the large sciuare
inclosing the device and preceding the title under which the candidates
of such party or group of petitioners are printed. The Indiana statute
further provides that ''if tbe voter stamps the large square inclosing the
device he shall not stamp elsewhere on the ballot, unless there be no
candidate for some office in the list printed under such stam|ied device,
in which case he mav indicate his choice for such office by stamping the
square to the left of tlie name of any candidate for such office on any other
list ; a stamp on a ballot in violation ol this provision shall be treated

Digitized by


Jan. 1895.] Taylob v. Bleaki.ey. 245

AS a distinguishing mark. If a stamp touches a square it shall be
counted on the square, but a stamp that touches no square shall be
treated as a distinguishiiig mark'': Seeo v. Stoddard, 13b Ind. 297. A
cross (X) is the only mark that can be lawfully counted as a vote. It is
the only mark authorized by the statute to be used to designate the per-
son voted for, and it is only by force of the statute that it gets its sig-
nificance for that purpose. *' if another mark," says the court in In re
Vote Marks, 17 R. I. 812, '<be used, there is nothing to certify its mean-
ing. It might be conjectured that it was used inadvertently, instead of
a cross, but, in our opinion, such a conjecture would not justify thA
counting of it. The statute declares: ' No voter shall place any mark
upon his ballot bv which it may be afterward identified as the one voted
by him.' If marks other than crosses were counted, they might be used
both to answer the purpose of crosses and to identify the ballots."
. BcUloU Folded in an Unwudl and Striking Manner and creased by the
folding, so that they may be reaiily separated and distinguished from
other ballots folded in the ordinary* manner, and at a greater distance
than if marked with a pencil or with ink, should be rejected. So bal-
lots found with printed party circulars in the same envelope should be
rejected if they are so numerous as to preclude the idea that they were
the result of ignorance, accident, or mistake. Nineteen such circulars,
advising the voter to vote earlj^, and giving the location of the voting
place, etc, leave the presumption pretty strong that the circulars were
there by design; and if by design, it is difficult to conceive of any
honest motive in it. A ballot with a part torn off is to be rejected. So
ballots with another name written under the printed name of a candi-
date, but without striking out the printed name, are to be rejected.
The same with ballots having two pasters, one on top of the other, as
this may be a device arranged to enable the purchaser to prove that
the purchased voter had fulfilled his corrupt agreement. Fourteen bal-
lots, all of the same party, and each having a different name from the
others for lieutenant governor, put upon the ballots by a paster, the
name being in writing and all of the same hand, should be rejected, as
said pasters mav constitute a device for identifying the voter who cast
each of said ballots, and is a distinguishing mark within the meaning
of the law: Phelan v. Walsh, 62 Conn. 260. The Michigan election law
of 1891 provides that ''any elector may mark or stamp a cross in the
space below the party name printed at the head of the ballot. If
marked thus, such ballot shall oe counted for all the nominees of such
partv whose names appear on the ballot in that column. If the voter
shall have erased some name in the column, or marked a (X) before the
name of a candidate in some other column for the same office, or written
in a name under the name of any candidate, the name of such candi-
date shall not be counted as voted for by such ballot ; but if the name
of the candidate shall have been erased, such vote shall be counted for
the candidate whose name in another column shall have been marked,
or whose name shall be written under the name erased." It also pro-
vides that "anv ballot which shall bear any distinguishing mark or
mutilation shall be void, and shall not be counted, and any ballot, or
part uf a ballot, from which it is impossible to determine the elector's
choice of candidates, shall be void as to the candidate or candidates
thereby affected." Under these statutory provisions ballots should
not be counted if more than a single cross appears under the party
name of one of the tickets; if a cross appears in the square under the
party name of a ticket, and two marks similar to commas appear in tiie
B<^uflre under the party name of another ticket; if a cross, with a half
circle drawn around it, appears under the party name of a ticket, and
a figure 9 appears in the square under the heading of another ticket; if
a cross appears in the body of the ticket outside of any souare thereon ;
if a cross appears under the party name on a ticket and anorizontal line
is drawn through ti)e square under the party name of each of tiie other
tickets; if a cross appears umlpr the party name on a ticket, anil also
opposite the name of a candidate on another ticket, and a line is drawn

Digitized by


246 Taylor v. Bleaklet. [EansaSp

ander the name of the candidate for the same office on the flrat-named
ticket ; if the ballot has no cross upon it, but a blot appears in the
center thereof ; if a ballot has no cross upon it, but a straight line is
drawn through the square under the party name on one of the tickets;
and if a cross appears at the right of the square under the party name
of one of the tickets, and a large circle is drawn around said square —
as such marks, at least, fail to express the voter's intent: Attorney
General v. Glaser, 102 Mich. 405.

What Mark$ on Face of Ballot do not Invalidate /<•— But ballots are not
invalidated under the Michigan statute above quoted if the name of a
candidate appears on two tickets, and a cross is placed in the square op-
posite his name on each ticket; or if the names of the candidates on one
ticket appear on anothtjr ticket, and a cross appears in the square
under the heading of both of said tickets, or under the party name of
one ticket and opposite a portion or all of the names on the other; or
if a cross appears opposite the names of the candidates on one ticket, or
in the square under the party name of such ticket, and the names of
the candidates on the opposing tickets are erased, either by horizontal
lines or by a cross extending over all of said names; or if two tickets
are identical, and crosses are placed opposite all the names on each, and
a line is drawn through each name on the opposing ticket and through
one of the names on the duplicate ticket; or if a cross appears in the
square under the party name of a ticket, and the name of a candidate
thereon is erased, and the surname of the candidate for the same office
on the opposing ticket is written in ; or if a cross appears in the square
at the head of a ticket, and the name of one of the candidates on said
ticket is partiallv erased, and another name written thereon with a lead
pencil, such ballots should be counted, as the marks designated are
not distinguishing marks prohibited by law: Attorney General ▼•
Glaser, 102 Mich. 405. The word ''for" prefixed to the name of the
office on ballots does not necessarily render them invalid, although it
could be so used as to become a distinguishing mark: Phelan v. Walsh,
62 Conn. 260; Fields v. Osborne, 60 Conn. 544. So the words "Regu-
lar Prohibition Ticket," printed at the head of a ballot, on its face,
though not adopted legally as a caption under the vignette law, do not
constitute a part of the ticket, and do not make the ticket illegal, under
a statute providing that the word, "for" shall constitute the top line of
the ticket, if the remainder of the ticket consists of words showing for
whom and for what officers the ballot was cast. It being evident that
such words were not designed for the purpose of distinguishing the
ballots from others, and thus destroying their secrecy, they are not
thereby rendered illegal as being illegally marked and calculated to
distinguish the persons, or class of persons, voting them ; and the fact
that the device might have been used with that intention does not
justify the rejection of the ballots: Co£fey v. Lyman, 92 Cal. 136. Bal-
lots containing slight but visible marks, having the appearance of
being made with a pen, but a part of which are found to have been
made by the plates in the printmg, and remainder to be specks in the
paper, should be counted: Phelan v. Walsh, 62 Conn. 260. A statu-
tory provision prohibiting distinguishing marks upon ballots does not
conflict with a provision requiring all ballots to be numbered : State v.
Connor, 86 Tex. 133. And though the statute requires ballots to be
numbered consecutively, yet if ballots properly indorsed and otherwise
regular in form, except that their stubs are not consecutively num-
bered, have been voted, and the stubs detached, and the ballots cast
into the box and their identity lost, they must be counted, in the ab-
sence of any provision prohibiting it. Assuming that certain ballots
deposited with high numbers are "marked ballots," they do not
operate to render void the ballots that are regular and in accordance
with the provisions of the statute: People v. Bidelman, 69 Hun, 596.
Ballots with the name of the candidate for judge of probate erased and
another name written in in ink, all by the same hanci, and others where
the same change is made in pencil, and all by the same hand, are valid.

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 28 of 121)