admissible under the statutes. But the policy which leads to this result must have some bearing upon the construction of the whole system.

"So far as I have been able to discover by means of the somewhat imperfect indexes on this head, there is but one case in which the decision has turned upon the propriety of allowing inquiry into the qualifications of voters, and the identification of their tickets when claimed to be disqualified. That case was the case of People v. Pease, 27 N. Y. 45. In the Supreme Court the judges, although arriving at a general result, were equally divided on this point. In the Court of Appeals, the judges elected to that tribunal were also equally divided, and the majority of the Supreme Court judges, belonging to it by rotation, turned the scale, and decided that the inquiry was proper. The decision was based chiefly upon English authorities; the previous New York decisions having turned principally on other errors which rest upon somewhat different grounds.

"New York, so far as may be inferred from the absence of decisions elsewhere, seems, until recently, to have been the only State preserving the ballot system, in which the right to office by election is open to examination on the merits to any considerable extent. The courts of that State .have gone further than any others in opening the door to parol proof. Some of the Western States have, upon the authority of the New York cases, permitted some of these matters to be litigated, but they are not in any majority. And it is quite manifest that the decisions have not in general acted upon any careful consideration of the important questions of public policy underlying the ballot system, which are so forcibly explained by Denio, Ch. J., in his opinion in People v. Pease; and it is a little remarkable that in New York, while so many doors have been opened by the decisions, the law requires all the ballots, except a single specimen of each kind, to be destroyed; thus leaving the number of votes of each kind, in all cases, to be determined by the inspectors, and rendering any correction impossible. I think the weight of reasoning is in favor of the view of Judge Denio in the New York case, that no inquiry can be made into the legality of votes actually deposited by a voter upon any ground of personal right as an elector.

"The reasons why such an inquiry should be prevented do not necessarily rest on any assumption that the inspectors act throughout judicially, although under our registration system that objection has a force which would not otherwise be so obvious. Neither do they rest in any degree upon the assumption that one rule or another is most likely to induce perjury, as very hastily intimated in People v. Ferguson, 8 Cow. 102. But a very strong ground for them is found in the fact that our whole ballot system is based upon the idea that unless inviolable secrecy is preserved concerning every voter's action, there can be no safety against those personal or political influences which destroy individual freedom of choice.

66

It is altogether idle to expect that there can be any such protection where the voter is only allowed to withhold his own oath concerning the ticket he has voted, while any other prying meddler can be permitted in a court of justice to guess under oath at its contents. If the law could permit an inquiry at all, there is no reason whatever for preventing an inquiry from the voter himself, who alone can actually know how he voted, and who can suffer no more by being compelled to answer than by having the fact established otherwise. The reason why the ballot is made obligatory by our constitution is to secure every one the

right of preventing any one else from knowing how he voted, and there is no propriety in any rule which renders such a safeguard valueless.

"It has always been the case that the rules of evidence have, on grounds of public policy, excluded proof tending to explain how individuals have acted in positions where secrecy was designed for their protection or that of the public. No grand juror could be permitted to disclose as a witness the ballots given by himself or others upon investigations of crime. Informers cannot be compelled to disclose to whom they have given their information. And many official facts are denied publicity. In all of these cases, the rule is not confined to one person any more than to another; for public policy is against publication from any source. And if, as is clear, a man is entitled to keep his own vote secret, it is difficult to see how any testimony whatever can be allowed, from any source, to identify and explain it.

66

The statutes contain some provisions bearing upon these topics with considerable force. By sec. 47 of the Compiled Laws, every voter is compelled to deliver his ballot folded; and, by sec. 52, the inspector is prohibited from either opening or permitting it to be opened.

"The devices adopted for creating different appearances in the ballots of different parties are such palpable evasions of the spirit of the law as to go very far towards destroying the immunity of the voter, and in some States it has been found desirable to attempt by statute the prevention of such tricks; but the difficulty of doing this effectually is exemplified in People v. Kilduff, 15 Ill. 492, where the evidence seems to have shown that a uniform variation may be entirely accidental. Unless some such difference exists, it would be idle to attempt any proof how a person voted, and it would be better to do away at once with the whole ballot than to have legal tribunals give any aid or countenance to indirect violations of its security; and the evidence received in the present case exemplifies the impropriety of such investigations. In some instances, at least, the only proof that a voter, complained of as illegal, cast his ballot for one or the other of these candidates, was, that he voted a ticket externally appearing to belong to one of the two political parties, and containing names of both State and county officers. To allow such proof to be received in favor of or against any particular candidate on the ticket, is to allow very remote circumstances indeed to assume the name of evidence. And the necessity of resorting to such out-ofthe-way proofs only puts in a clearer light the impropriety and illegality of entering upon any such inquiry, when the law sedulously destroys the only real proofs, and will not tolerate a resort to them. And the whole State is much more interested than any single citizen can be, in emancipating elections from all those sinister influences, which have so great a tendency to coerce or deceive electors into becoming the mere instruments of others.

“But there are further provisions bearing more directly on the propriety and necessity of allowing no inquisition into individual votes.

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County officers are among those included under sec. 31 of the Compiled Laws, which declares that the persons having the greatest number of votes shall be deemed to have been duly elected.' The law does not confine this to votes cast by authorized voters, and can only be applied to votes cast and recorded in the manner provided by law. And although this section, standing alone, might be open to construction, yet, when the whole law is taken together, there are

provisions not to be reconciled with any rule allowing single voters and their votes to be made the subject of inquiry. It will not be denied, that an inquiry into the legality of a particular voter's qualifications, after his vote has been cast, is of a strictly judicial nature; and it cannot be proper or legal to allow such an inquiry in one case, and not in another. But it will be found not only that the rejection of votes from the count is required to be in such a way as to preclude any consideration of the person giving or putting them in, but that there are cases where even a legal inquiry into the ballots themselves is prevented.

46

"In the first place, when two or more ballots are so folded together as to present the appearance of one, and if counted will make the ballots exceed the names on the poll-list, they are to be destroyed. And whenever, for any other reason, the number of ballots found in the box exceeds the number of names on the corrected poll-lists, the inspectors are required to draw out and destroy unopened a number equal to the excess. This is, of course, upon the assumption that the excess has probably been caused by fraud, and assumes that no man's vote ought to be counted, unless the testimony of the poll-lists shows that he actually handed in his ballot. It is, therefore, altogether likely, upon any theory of probabilities, that, in drawing out these extra ballots, they will really be ballots lawfully put in, and this probability is in the ratio furnished by a comparison of numbers between lawful and unlawful votes. In other words, it is more than likely to punish the innocent, instead of the guilty. The true method of arriving at the truth would be to inquire what vote each voter on the list actually cast, and destroy the remainder. The absurdity of this process upon such a large scale is such as to need no pointing out. But unless something very like it is done in such a case as the present, the result obtained by any partial inquiry will be no better than guesswork. Where votes are thrown out, no one can tell whether the illegal voter whose vote is sought to be assailed has not already had his vote cancelled. The adoption of the principle of allotment is the most sensible and practicable measure which could be devised, and I cannot conceive how it can be improved upon by any subsequent search.

"But when the inspectors have made their returns to the county canvassers, and by those returns a tie vote appears between two or more candidates, who are highest on the list, their right to the office is to be determined by lot, and the person drawing the successful slip is to be deemed legally elected to the office in question.' Compiled Laws, §§ 76, 132, 133.

"In case the State canvassers (who can only count the votes certified to them) find a tie vote, the legislature has power to choose between the candidates. Constitution, art. 8, § 5. In these cases, there can be no further scrutiny; and in the case of State officers, if such a scrutiny were had, no end could be reached within any reasonable time, and there would be a practical impossibility in attempting to conduct it in any time within the official term, or to approach accuracy in a count of some thousand or more ballot-boxes before a jury. Yet State officers are not less important to the private elector, and, of course, are not to the community at large, than local. And the nearer a vote approaches a tie, the more likely it is that a rigid scrutiny might change its character. There is no more reason for preventing investigation behind the ballots in the one case than in the other.

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The statute also takes very efficient measures to prevent any needless litiga

tion by shutting out any preliminary resort to the means of information. If the officers do their duty, no one else can ever know whether their count is correct or not, until a suit is brought and issue joined upon it. The ballots are required to be sealed up, and not opened except for the inspection of the proper authorities, in case of a contest. The only ballots open to public inspection are those which are rejected upon the canvass for defects apparent on their face. These ballots are not sealed up with the rest, but are filed; while, therefore, it can be determined by inspection whether votes which have been thrown out should have been counted, the law does not seem to favor any unnecessary disturbance of the official returns, and any one who assumes to dispute an election is compelled to begin his suit before he can have access to the means of proof. This is not the usual course of litigation, and the rule has a strong bearing upon the policy to be deduced from the law.

"Under our statute, there is no general provision which makes the canvass for local officers conclusive in all cases, and therefore the rule is recognized that the election usually depends upon the ballots, and not upon the returns. These being written and certain, the result of a recount involves no element of difficulty or ambiguity, beyond the risk of mistakes in counting or footing up numbers, which may, in some respects, be more likely in examining the ballots of a whole county than in telling off those of a town or ward, but which involves no great time or serious disadvantage. But the introduction of parol evidence concerning single voters in a considerable district, can rarely reach all cases of illegality effectually, and must so multiply the issues as to seriously complicate the inquiry. And when we consider, that, for many years, legislation has been modified for the very purpose of suppressing illegal voting, and when we know that hundreds of elections must have been turned by the ballots of unqualified voters, the absence of any body of decisions upon the subject is very strong proof that inquiry into private ballots is felt to be a violation of the constitutional safeguard on which we pride ourselves as distinguishing our elections from those which we are wont to regard as conducted on unsafe principles."

[ 698 ]

INDEX.