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Where more than one office is to be filled at an election, the law may either require all the persons voted for, for the several offices, to be so voted for by each elector on the same ballot, or it may provide a different receptacle for the ballots for some one office or set of offices from that which is to receive the others. In such a case each elector will place upon the ballot to be deposited in each the names of such persons as he desires to vote for, for the different offices for whose election that box is provided. If, for instance, State and township officers are to be chosen at the same election, and the ballots are to be kept separate, the elector must have different ballots for each; and if he should designate persons for a township office on the State ballot, such ballot would, to that extent, be void, though the improper addition would not defeat the ballot altogether, but would be treated as surplusage, and the ballot be held good as a vote for the State officers designated upon it.1 But an accidental error in depositing the ballot should not defeat it. If an elector should deliver the State and township ballots to the inspector of election, who by mistake should deposit them in the wrong boxes respectively, this mistake is capable of being corrected without confusion when the boxes are opened, and should not prevent the ballots being counted as intended. And it would seem that, in any case, the honest mistake, either of the officer or the elector, should not defeat the intention of the latter, where it was not left in doubt by his action."

The elector is not under obligation to vote for every office to be filled at that election; nor where several persons are to be chosen to the same office is he required to vote for as many as are to be R," it was held that votes cast for "R-attached," and for "R- detached," and "for division," and "against division," were properly counted by the canvassers, as the intention of the voters was clearly ascertainable from the ballots themselves with the aid of the extrinsic facts of a public nature connected with the election. State v. Elwood, 12 Wis. 551. So where trustees of common schools were to be voted for, it was held that votes for trustees of public schools should be counted; there being no trustees to be voted for at that election except trustees of common schools. People v. McManus, 34 Barb. 620. In Phelps v. Goldthwaite, 16 Wis. 146, where a city and also a county superintendent of schools were to be chosen at the same election, and ballots were cast for "superintendent of schools," without further designation, parol evidence of surrounding circumstances was admitted to enable the proper application to be made of the ballots to the respective candidates.

1 See People v. Cook, 14 Barb. 259, and 8 N. Y. 67.

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elected. He may vote for one or any greater number, not to exceed the whole number to be chosen. In most of the States a plurality of the votes cast determines the election. In others, as to some elections, a majority; but in determining upon a majority or plurality, the blank votes, if any, are not to be counted; and a candidate may therefore be chosen without receiving a plurality or majority of voices of those who actually participated in the election. Where, however, two offices of the same name were to be filled at the same election, but the notice of election specified one only, the political parties each nominated one candidate, and, assuming that but one was to be chosen, no elector voted for more than one, it was held that the one having a majority was alone chosen; the opposing candidate could not claim to be also elected, as having received the second highest number of votes, but as to the other office there had been a failure to hold an election.1

The Freedom of Elections.

It is of the utmost importance that every election should be kept free of all the influences and surroundings which bear improperly upon it, or may influence the electors against their judgment or desire. In addition to the constitutional principles to which we have referred, and which protect the secrecy of the ballot, there are express constitutional and statutory provisions designed to accomplish the same general purpose. It is provided by the constitutions of several of the States that bribery of an elector shall constitute a disqualification of the right to vote or to hold office;2 the treating of an elector, with a view to influence his vote, is in some States made an indictable offence; 3 the militia are not allowed to be called out on election days, even though the purpose be for enrolling and organizing them, and not for exercise; courts are not allowed to be held, for the two reasons, that the electors ought to be left free to devote their attention to the exercise of this high trust, and that 1 People v. Kent County Canvassers, 11 Mich. 111.

* See the constitutions of Maryland, Missouri, New Jersey, West Virginia, Oregon, California, Kansas, Texas, Arkansas, Rhode Island, Alabama, Florida, New York, Massachusetts, New Hampshire, Vermont, Nevada, Tennessee, Connecticut, Louisiana, Mississippi, Ohio, Wisconsin.

3 State v. Rutledge, 8 Humph. 32. And see the provision in the constitution of Vermont on this subject.

Hyde v. Melvin, 11 Johns. 521.

suits if allowed on that day might be used as a means of intimidation; legal process in some States, and for the same reasons, is not allowed to be served on that day; intimidation of voters by threats or otherwise is made punishable; 2 and generally all such precautions as the people in their organic law, or the legislature afterwards, have thought available for the purpose, have been provided with a view to secure the most completely free and unbiassed expression of opinion that is possible.

Betting upon elections is illegal at the common law, on grounds of public policy; and all contracts entered into with a view improperly to influence an election would be void for the same reason.4

But it was held in New York that the statute of that State forbidding the holding of courts on election days did not apply to the local elections. Matter of Election Law, 7 Hill, 194; Redfield v. Florence, 2 E. D. Smith, 339.

2 As to what shall constitute intimidation, see Respublica v. Gibbs, 3 Yates,

429.

3 Bunn v. Riker, 4 Johns. 426; Lansing v. Lansing, 8 Johns. 454; Ball v. Gilbert, 12 Met. 397; Laval v. Myers, 1 Bailey, 486; Smyth v. McMasters, 2 Browne, 182; McAllister v. Hoffman, 16 S. & R. 147; Stoddard v. Martin, 1 R. I. 1; Wroth v. Johnson, 4 H. & M. 284; Tarelton v. Baker, 18 Vt. 9; Davis v. Holbrook, 1 La. An. 176; Freeman v. Hardwick, 10 Ala. 316; Wheeler v. Spencer, 15 Conn. 28; Russell v. Pyland, 2 Humph. 131; Porter v. Sawyer, 1 Harr. 517; Hickerson v. Benson, 8 Mo. 8; Machir v. Moore, 2 Grat. 257; Rust v. Gott, 9 Cow. 169; Brush v. Keeler, 5 Wend. 250.

In Jackson v. Walker, 5 Hill, 27, it was held that an agreement by the defendant to pay the plaintiff $1,000, in consideration that the latter, who had built a log-cabin, would keep it open for political meetings to further the success of certain persons nominated for members of Congress, &c. by one of the political parties, was illegal within the statute of New York, which prohibited contributions of money "for any other purpose intended to promote the election of any particular person or ticket, except for defraying the expenses of printing and the circulation of votes, handbills, and other papers." This case is criticised in Hurley v. Van Wagner, 28 Barb. 109, and it is possible that it went further than either the statute or public policy would require. In Nichols v. Mudgett, 32 Vt. 546, the defendant being indebted to the plaintiff, who was a candidate for town representative, the parties agreed that the former should use his influence for the plaintiff's election, and do what he could for that purpose, and that if the plaintiff was elected, that should be a satisfaction of his claim. Nothing was specifically said about the defendant's voting for the plaintiff, but he did vote for him, and would not have done so, nor favored his election, but for this agreement. The plaintiff was elected. Held, that the agreement was void, and constituted no bar to a recovery upon the demand. See also Meachem v. Dow, 32 Vt. 721, where it was held that a note executed in consideration of the payee's agreement to resign public office in favor of the maker, and use influence in favor of the latter's appointment as his successor, was void in the hands of the payee. In Pratt v.

The Elector not to be deprived of his Vote.

It has been held, on constitutional grounds, that a law creating a new county, but so framed as to leave a portion of its territory unorganized, so that the voters within such portion could not participate in the election of county officers, was inoperative and void.1 So a law submitting to the voters of a county the question of removing the county seat is void if there is no mode under the law by which a city within the county can participate in the election.2 And although the failure of one election precinct to hold an election, or to make a return of the votes cast, might not render the whole election a nullity, where the electors of that precinct were at liberty to vote had they so chosen, or where, having voted but failed to make return, it is not made to appear that the votes not returned would have changed the result, yet if any action was required of the public authorities preliminary to the election, and that which was taken was not such as to give all the electors the opportunity to participate, and no mode was open to the electors by which the officers might be compelled to act, it would seem that such neglect, constituting as it would the disfranchisement of the excluded electors pro hac vice, must on general principles render the whole election nugatory; for that cannot be called an election or the expression of the popular sentiment where a part only of the electors have been allowed to be heard, and the others, without being guilty of fraud or negligence, have been excluded.*

If the inspectors of elections refuse to receive the vote of an elector duly qualified, they may be liable both civilly and criminally for so doing: criminally, if they were actuated by improper and corrupt motives; and civilly, it is held in some of the States, even though there may have been no malicious design in so doPeople, 29 Ill. 54, it was held that an agreement between two electors that they should "pair off," and both abstain from voting, was illegal, and the inspectors could not refuse to receive a vote of one of the two, on the ground of his agree

ment.

1 People v. Maynard, 15 Mich. 471. For similar reasons the act for the organization of Schuyler County was held invalid in Lanning v. Carpenter, 20 N. Y.

477.

2

Atty.-Genl. v. Supervisors of St. Clair, 11 Mich. 63.

See Ex parte Heath, 3 Hill, 42; Louisville & Nashville R. R. Co. v. County Court of Davidson, 1 Sneed, 637. See Marshall v. Kerns, 2 Swan, 68. * See Fort Dodge v. District Township, 17 Iowa, 85.

ing; but the cases generally hold that, where the inspectors are vested by the law with the power to pass upon the qualifications of electors, they exercise judicial functions in so doing, and are entitled to the same protection as other judicial officers in the discharge of their duty, and cannot be made liable except upon proof of express malice.2 Where, however, by the law under which the election is held, the inspectors are to receive the voter's ballot, if he takes the oath that he possesses the constitutional qualifications, the oath is the conclusive evidence on which the inspectors are to act, and they are not at liberty to refuse to administer the oath, or to refuse the vote after the oath has been taken. They are only ministerial officers in such a case, and have no discretion but to obey the law and receive the vote.

The Conduct of the Election.

The statutes of the different States point out specifically the mode in which elections shall be conducted; but, although there are great diversities of detail, the same general principles govern them all. As the execution of these statutes must very often fall to the hands of men unacquainted with the law and unschooled in business, it is inevitable that mistakes shall sometimes occur, and that very often the law will fail of strict compliance. Where an election is thus rendered irregular, whether the irregularity shall avoid it or not must depend generally upon the effect the irregularity may have had in obstructing the complete expression of the popular will, or the production of satisfactory evidence thereof. Election statutes are to be tested like other statutes, but with a leaning to liberality, in view of the great public purposes which they accomplish; and except where they specifically provide that a thing shall be done in the manner indicated and not other

1 Kilham v. Ward, 2 Mass. 236; Gardner v. Ward, 2 Mass. 244, note; Lincoln v. Hapgood, 11 Mass. 350; Capen v. Foster, 12 Pick. 485; Gates v. Neal, 23 Pick. 308; Blanchard v. Stearns, 5 Met. 298; Jeffries v. Ankeny, 11 Ohio, 372; Chrisman v. Bruce, 1 Duvall, 63.

2 Carter v. Harrison, 5 Blackf. 138; Rail v. Potts, 8 Humph. 225; Peavey v. Robbins, 3 Jones, Law, 339; Gordon v. Farrar, 2 Doug. (Mich.) 411; Caulfield v. Bullock, 18 B. Monr. 494; Morgan v. Dudley, Ibid. 693.

3

Spragins v. Houghton, 2 Scam. 377; State v. Robb, 17 Ind. 536; People v. Pease, 30 Barb. 588. And see People v. Gordon, 5 Cal. 235; Chrisman v. Bruce, 1 Duvall, 63.

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