In some other cases preliminary action by the public authorities may be requisite before any legal election can be held.

If an election is one which a municipality may hold or [* 603] not at its option, and the proper municipal authority de

cides against holding it, it is evident that individual citizens must acquiesce, and that any votes which may be cast by them on the assumption of right must be altogether nugatory.1 The same would be true of an election to be held after proclamation for that purpose, and which must fail if no such proclamation has been made.2 Where, however, both the time and the place of an election are prescribed by law, every voter has a right to take notice of the law, and to deposit his ballot at the time and place appointed, notwithstanding the officer, whose duty it is to give notice of the election, has failed in that duty. The notice to be thus given is only additional to that which the statute itself gives, and is prescribed for the purpose of greater publicity; but the right to hold the election comes from the statute, and not from the official notice. It has therefore been frequently held that when a vacancy exists in an office, which the law requires shall be filled at the next general election, the time and place of which are fixed, and that notice of the general election shall also specify the vacancy, to be filled, an election at that time and place to fill the vacancy will be valid, notwithstanding the notice is not given; and such election cannot be defeated by showing that a small portion only of the electors were actually aware of the vacancy or cast their votes to fill it. But this would not be the case if either the time or the place were

unreasonable, partial, calculated to subvert or impede the exercise of the right of suffrage by this class, and therefore void. Monroe v. Collins, supra.

1 Opinions of Judges, 7 Mass. 525; Opinions of Judges, 15 Mass. 537. 2 People v. Porter, 6 Cal. 26; McKune v. Weller, 11 Cal. 49; People v. Martin, 12 Cal. 409; Jones v. State, 1 Kansas, 273; Barry v. Lauck, 5 Cold. 588.

People v. Cowles, 13 N. Y. 350; People v. Brenahm, 3 Cal. 477; State v. Jones, 19 Ind. 356; People v. Hartwell, 12 Mich. 508; Dishon v. Smith, 10 Iowa, 212; State v. Orvis, 20 Wis. 235; State v. Goetze, 22 Wis. 363. The Case of Foster v. Scarff, 15 Ohio, N. s. 532, would seem to be contra. A general election was to be held, at which by law an existing vacancy in the office of Judge of Probate was required to be filled. The sheriff, however, omitted all mention of this office in his notice of election, and the voters generally were not aware that a vacancy was to be filled. Nominations were made for the other offices, but none for this, but a candidate presented himself for whom less than a fourth of the voters taking part in the election cast ballots. It was held that the election to fill the vacancy was void.

not fixed by law, so that notice became essential for that purpose.1

[* 604]

* The Manner of Exercising the Right.

The mode of voting in this country, at all general elections, is almost universally by ballot.2 "A ballot may be defined to be a piece of paper, or other suitable material, with the name written or printed upon it of the person to be voted for; and where the suf frages are given in this form, each of the electors in person deposits such a vote in the box, or other receptacle provided for the purpose, and kept by the proper officers." 3 The distinguishing feature of this mode of voting is, that every voter is thus enabled to secure and preserve the most complete and inviolable secrecy in regard to the persons for whom he votes, and thus escape the influences which, under the system of oral suffrages, may be brought to bear upon him with a view to overbear and intimidate, and thus prevent the real expression of public sentiment.1

State v. Young, 4 Iowa, 561. An act had been passed for the incorporation of the city of Washington, and by its terms it was to be submitted to the people on the 16th of the following February, for their acceptance or rejection, at an election to be called and holden in the same manner as township elections under the general law. The time of notice for the regular township elections was, by law, to be determined by the trustees, but for the first township meeting fifteen days' notice was made requisite. An election was holden, assumed to be under the act in question; but no notice was given of it, except by the circulation, on the morning of the election, of an extra newspaper containing a notice that an election would be held on that day at a specified place. It was held that the election was void. The act contemplated some notice before any legal vote could be taken, and that which was given could not be considered any notice at all. This case differs from all of those above cited, where vacancies were to be filled at a general election, and where the law itself would give to the electors all the information which was requisite. In this case, although the time was fixed, the place was not; and, if a notice thus circulated on the morning of election could be held sufficient, it might well happen that the electors generally would fail to be informed, so that their right to vote might be exercised. See also Barry v. Lauck, 5 Cold. 588.

2 The exceptions are in Virginia, Arkansas, Kentucky, Georgia, and possibly by law in some other States.

Cush. Leg. Assemb. § 103.

"In this country, and indeed in every country where officers are elective, different modes have been adopted for the electors to signify their choice. The most common modes have been either by voting viva voce, that is, by the elector

* In order to secure as perfectly as possible the benefits [* 605] anticipated from this system, statutes have been passed, in some of the States, which prohibit ballots being received or counted unless the same are written or printed upon white paper, without any marks or figures thereon intended to distinguish one ballot from another. These statutes are simply declaratory of a constitutional principle that inheres in the system of voting by ballot, and which ought to be inviolable whether declared or not. In the absence of such a statute, all devices by which party managers are enabled to distinguish ballots in the hand of the voter, and thus determine whether he is voting for or against them, are opposed to the spirit of the Constitution, inasmuch as they tend to defeat the design for which voting by ballot is established, and, though they may not render an election void, they are exceedingly reprehensible, and ought to be discountenanced by all good citizens. The system of ballot-voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with

openly naming the person he designates for the office, or by ballot, which is depositing in a box provided for the purpose a paper on which is the name of the person he intends for the office. The principal object of this last mode is to enable the elector to express his opinion secretly, without being subject to be overawed, or to any ill-will or persecution on account of his vote for either of the candidates who may be before the public. The method of voting by tablets in Rome was an example of this manner of voting. There certain officers appointed for that purpose, called Diribitores, delivered to each voter as many tablets as there were candidates, one of whose names was written upon every tablet. The voter put into a chest prepared for that purpose which of these tablets he pleased, and they were afterwards taken out and counted. Cicero defines tablets to be little billets, in which the people brought their suffrages. The clause in the constitution directing the election of the several State officers was undoubtedly intended to provide that the election should be made by this mode of voting to the exclusion of any other. In this mode the freemen can individually express their choice, without being under the necessity of publicly declaring the object of their choice; their collective voice can be easily ascertained, and the evidence of it transmitted to the place where their votes are to be counted, and the result declared with as little inconvenience as possible." Temple v. Mead, 4 Vt. 541. In this case it was held that a printed ballot was within the meaning of the constitution which required all ballots for certain State officers to be " fairly written." To the same effect is Henshaw v. Foster, 9 Pick. 312.

1 See People v. Kilduff, 15 Ill. 500. In this case it was held that the common lines on ruled paper did not render the ballots void. See also Druliner v. State, 29 Ind. 308.

what party he pleases, and that no one is to have the right, or be in position, to question him for it, either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted; and for the same reason we think others who may accidentally, or by trick or artifice, have acquired knowledge [*606] on the subject, should not be allowed to testify * to such knowledge, or to give any information in the courts upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged; and to allow evidence of its contents, when he has not waived the privilege, is to encourage trickery and fraud, and would in effect establish this remarkable anomaly, that, while the law from motives of public policy establishes the secret ballot with a view to conceal the elector's action, it at the same time encourages a system of espionage, by means of which the veil of secrecy may be penetrated and the voter's action disclosed to the public.3

1 "The right to vote in this manner has usually been considered an important and valuable safeguard of the independence of the humble citizen against the influence which wealth and station might be supposed to exercise. This object would be accomplished but very imperfectly if the privacy supposed to be secured was limited to the moment of depositing the ballot. The spirit of the system requires that the elector should be secured then and at all times thereafter against reproach or animadversion, or any other prejudice on account of having voted according to his own unbiassed judgment; and that security is made to consist in shutting up within the privacy of his own mind all knowledge of the manner in which he has bestowed his suffrage." Per Denio, Ch. J., in People v. Pease, 27 N. Y. 81.

2 66

The ballot," says Cicero, "is dear to the people, for it uncovers men's faces, and conceals their thoughts. It gives them the opportunity of doing what they like, and of promising all that they are asked." Speech in defence of Plaucius. Forsyth's Cicero, Vol. I. p. 339.

3 See this subject fully considered in People v. Cicotte, 16 Mich. 283. A very loose system prevails in the contests over legislative elections, and it has been held that when a voter refuses to disclose for whom he voted, evidence is admissible of the general reputation of the political character of the voter, and as to the party to which he belonged at the time of the election. Cong. Globe, XVI. App. 456. This is assuming that the voter adheres strictly to party, and always votes the "straight ticket;" an assumption which may not be a very violent one in the majority of cases, but which is scarcely creditable to the manly independence and self-reliance of any free people; and however strongly disposed legislative bodies may be to act upon it, we are not prepared to see any such

Every ballot should be complete in itself, and ought not to require extensive evidence to enable the election officer to

*

determine the voter's intention. Perfect certainty, how- [* 607] ever, is not required in these cases. It is sufficient if an

examination leaves no reasonable doubt upon the intention, and technical accuracy is never required in any case. The cardinal

rule is to give effect to the intention of the voter, whenever it is not left in uncertainty; but if an ambiguity appears upon its face, the elector cannot be received as a witness to make it good by testifying for whom or for what office he intended to vote.2

The ballot in no case should contain more names than are authorized to be voted for, for any particular office at that election;

rule of evidence adopted by the courts. If a voter chooses voluntarily to exhibit his ballot publicly, perhaps there is no reason why those to whom it was shown should not testify to its contents; but in other cases the knowledge of its contents is his own exclusive property, and he can neither be compelled to part with it, nor, as we think, is any one else who accidentally or surreptitiously becomes possessed of it, or to whom the ballot has been shown with a view to information, advice, or alteration, at liberty to make the disclosure. Such third person might be guilty of no legal offence if he should do so; but he is certainly invading the constitutional privileges of his neighbor, and we are aware of no sound principle of law which will justify a court in compelling or even permitting him to testify to what he has seen. And as the law does not compel a voter to testify, "surely it cannot be so inconsistent with itself as to authorize a judicial inquiry upon a particular subject, and at the same time industriously provide for the concealment of the only material facts upon which the results of such an inquiry must depend." Per Denio, Ch. J., in People v. Pease, 27 N. Y. 81. It was held in People v. Cicotte, 16 Mich. 283, that until it was distinctly shown that the elector waived his privilege of secrecy, any evidence as to the character or contents of his ballot was inadmissible. It was also held that where a voter's qualification was in question, but his want of right to vote was not conceded, the privilege was and must be the same; as otherwise any person's ballot might be inquired into by simply asserting his want of qualification. In State v. Olin, 23 Wis. 319, it was decided that where persons who had voted at an election had declined to testify concerning their qualifications, and how they had voted, it was competent to prove their declarations that they were unnaturalized foreigners, and had voted a particular way.

People v. Matteson, 17 Ill. 169; People v. Cook, 8 N. Y. 67; State v. Elwood, 12 Wis. 551; People v. Bates, 11 Mich. 362.

2 People v. Seaman, 5 Denio, 409. The mental purpose of an elector is not provable; it must be determined by his acts. People v. Saxton, 22 N. Y. 309. And where the intent is to be gathered from the ballot, it is a question of law, and cannot be submitted to the jury as one of fact. People v. McManus, 34 Barb. 620.