Morgan

Massachusetts Supreme Judicial Court February 19, 1896

Morgan, 1 Rep. Cont. Elect. Case. 87 (Mass. 1896)

Attwill, Blynn, Crocker, Messrs, Quirk, Thrasher, Wales, Weston

Opinion of the Court

The Committee bn Elections, to- whom was referred the petition of William H. Morgan that he may be declared to be a duly elected member of the House of Representatives for the twenty-second Suffolk district, which is composed of ward 22, Boston, submit the following report: —

The above petition was received and referred to the committee Jan. 24, 1896. It alleged in substance that a mistake had been made in the count.

A petition of Frederick Bleiler, in substance alleging the same as the petition now in question, asking that he may be declared a duly elected member of the House of Representatives for said district, was referred to your committee Jan. 8, 1896 ; and as both petitions involved the same question, the committee acted upon them simultaneously.

*88The committee gave a hearing on said petitions Jan. 27 and Jan. 28, 1896, at which hearing the committee made a recount of the ballots cast in the district.

Another candidate, besides the said petitioners, for representative in said district, was James T¡ Brickley.

According to the official returns, the vote for representative on a recount by the Board of Election Commissioners of the city of Boston was as follows : —

Bleiler, 1,434; Brickley, 146; Morgan, 1,434.

The powers of the House and of this committee are conferred by the Constitution of the Commonwealth, chapter 1, section 3, article 10, which provides that the House of Representatives shall be the judge of the returns, election and qualification of its own members as pointed out in the Constitution.

Upon the recount by the committee, eight ballots were contested by counsel, but objection was afterwards waived as to three ballots, leaving five for the consideration of your committee.

The committee were unanimous in counting all except one ballot, cast in precinct 10, which if allowed for Bleiler, as claimed by his counsel, would make the result a tie; the vote, without counting said ballot, being as follows: —

Bleiler, 1,438; Morgan, 1,439.

The petitioner contended that this ballot should be thrown out, on the ground that it was defective.

The result of the vote in the block of fifty in which this ballot was found would be unchanged by your committee’s count if. this ballot were thrown out, the count of the Board of Election Commissioners being: Bleiler, 40; Brickley, 1; Morgan, 5, and 4 blank or defective ; while that of the committee was : Bleiler, 40; Brickley, 1; Morgan, 5; blank or defective 3, with said ballot in question.

In voting for the candidates for the various offices in said ballot, except in that of sheriff, where he did not vote, and in that of representative, the voter had done so by placing a well-defined cross in the square at the right of the names to be voted for, voting in every instance for the candidate of the Democratic party. In that part of the ballot where the names of candidates for representative in the General Court were placed, above the spaces prescribed for the candidates’ names, and directly beneath the words “ mark one,” there appeared a cross, no part of which was included by the parallel lines within which the names of the candidates appear.

The first name in order on the ballot of the candidates for representative was that of Frederick Bleiler, and was the nearest to the cross.

*89The following is a fac-simile of the part of the ballot in question : —

Section 162 of chapter 417 of the Acts of the year 1893 provides that “ the voter shall prepare his ballot by marking in the square a cross at the right of the name and designation, if any, of the candidate of his choice for each office to be filled, or by inserting the name of the candidate of his choice in the blank space provided therefor, and marking a cross in the square at the right of the name; ” and section 173 of the same chapter, provides that “ if a voter marks more names than there are persons to be elected to an office, or if for any reason it is impossible to determine the choice of the voter for any office to be filled, his ballot shall not be counted for such office.”

Your committee is in full accord with the view taken by previous legislatures that the provision of section 162 is directory rather than mandatory, and recognize the principle that in all cases the intent of the voter should govern, when it can be ascertained.

But your committee is of the opinion that it is impossible to determine the intention of the voter in the present instance with any degree of certainty, and is unwilling to establish the precedent that where the cross lies entirely outside of all spaces set apart for each candidate’s name and the mark for the same, or the horizontal lines enclosing such spaces extended, and where there are several candidates and there is nothing to indicate the voter’s intention, the ballot should be counted for the candidate whose name happens to appear nearest to the cross ; and therefore your committee recommend that the petitioner, William H. Morgan, be given his seat.

Dissenting Opinion

Messrs. Weston, Thrasher and Crocker

dissented, and expressed their views as follows : —

The undersigned, a minority of the Committee on Elections, dissent from the report of the majority, for the reason that the irregularly marked ballot referred to in their report, and which they claim *90should not be counted for any candidate, should, in our opinion, be counted for Mr. Bleiler. A fac-simile of a portion of this ballot, showing the irregular marking, is printed in the report of the majority.

If the ballot in question be not counted for any candidate, Mr. Morgan will have a plurality of one vote. If it be counted for Mr. Bleiler, as we think should be done, the result would be a tie between Morgan and Bleiler, each having 1,439 votes.

It has been clearly settled in this Commonwealth, both by the decisions of the courts and by a great number of legislative precedents, that in election controversies the intention of the voter should control. If the intention of the voter can be determined from an inspection of the ballot, that intention must prevail. If it be reasonably clear for whom the voter intended to vote, the ballot must be so counted.

For the rule as established in this Commonwealth see Russell’s Election Cases, note to Adams v. Moore, page 86, where the authorities are cited. The rule as there stated is that a mark upon the official ballot shall be counted as a vote, even if not in the prescribed place or form, provided such mark fairly indicates an intention to make it a vote for a particular candidate.

A similar rule prevails in other States and in England. In a Pennsylvania case, Weidknecht v. Hawk, 13 Penn. Co. Ct. Rep. 41, the court say : “ It is immaterial where the cross is placed on au official ballot, or whether a cross is used at all, provided the voter’s choice can be determined from the face of the ballot.” In the leading English case of Woodward v. Sarsons, L. R. 10 C. P. 733, the rule is laid down as follows : ‘ ‘ The paper must be marked so as to show that the voter intended to vote for some one, and so as to show for which of the candidates he intended to vote. It must not be marked so as to show that he intended to vote for more candidates than he is entitled to vote for, nor so as to leave it uncertain whether he intended to vote at all, or for which candidate he intended to vote. If these requirements are substantially fulfilled, then there is no enactment and no rule of law by which the ballot can be treated as void, though the directions in the statute are not strictly obeyed.”

The requirements both of the Pennsylvania and the English ballot acts as to the method of marking are almost identical with those of our own statute.

Applying the rule as thus established to the ballot in question, it seems to the minority of the committee impossible to conclude otherwise than that it should be counted for Mr. Bleiler.

It must be admitted by all that the person who made the cross in question did so with the intention of voting for one of the three *91candidates for representative named on. the ballot. This was not denied by Mr. Morgan’s counsel. To hold any other view would be to charge the voter with doing an act without purpose or meaning. This being conceded, it does not appear to us that there can be any question for which one of the three candidates the vote was intended.

[The report that petitioner Bleiler have leave to withdraw was accepted. — House Journal, p. 384. A motion to substitute the minority report was lost upon a division of the House, 29 to 95, and the report of the committee was accepted. — House Journal, p. 401.] [Nora ey the Editok. — The committee in the above ease did not refuse to recognize the rule established in the earlier eases, but disagreed in its application to the special facts. The general principle may be regarded as settled by the legislature in the cases above reported, — that a mark upon the official ballot shall be counted as a vote, even if not in the prescribed place or form, provided such mark fairly indicates upon inspection an intention to make it a vote for a particular candidate, and no intention to reveal the identity of the voter. In the above case the committee accepted this rule of law, but disagreed upon the question of fact whether the cross was so marked as to enable them to determine for what candidate the voter intended to vote. The rule as stated applies to the new system of voting, so far as practicable, the same rule of construction that was followed under the old system. It was early settled by the court in Massachusetts (Strong, pet., 20 Pick. 484) that, in determining an election, “ the only object should be to ascertain the expressed will of a majority of the electors, and with this in view, and with the guidance of good practical sense, unfettered by technical rules and nice distinctions, there will be no danger of mistaking the voice of the electors.” Morton, J., p. 493. This rule, that the intention of the voter should control the construction and effect of the vote, has invariably been followed in election controversies. Thus, under the old system of voting, votes for persons under a wrong or misspelled Dame have been counted for the candidate if the intention was reasonably clear. Howard v. Neill, ante, p. 23; Wright v. Hooper, Loring & Russell’s El. Cases, note, p. 102. The new system (Australian Ballot Act) makes no change in the right of election. It relates entirely to the mode of election. The right to vote and to have the vote counted remains precisely as before. The method of expressing the intention of the voter alone is changed, and the details of the change are mandatory only so far as they are necessary to carry out the purposes of the new law. The leading purpose was to secure greater freedom and secrecy in voting by providing an official ballot, a marking in a secret compartment, and a deposit of the ballot in the ballot box without exhibition. If these purposes are accomplished, the remaining provisions of the law as to the precise mode and place of marking the ballot may well be regarded as directory only. The voter then must (1) use an official ballot; (2) mark it in such a mode as to show by inspection of the ballot an intention to vote for a particular candidate; (3) and show no intention by marking to put an ear mark on the ballot for the corrupt purpose of revealing his identity. If the voter observes these requirements, so that his vote is not void, either for uncertainty or for attempt to violate the required secrecy, his vote should be given effect. As said by a writer in 1874, in the Journal of Jurisprudence (Scotland), vol. 18, pp. 199,201: “It seems to us that in determining the question there are just two things which the returning officer has to consider, — (1) Is it clear for whom the voter intends to vote ? (2) Is the mark such as to identify the voter ? If he keeps a straight course between the Scylla of uncertainty and the Charybdis of identification the vote is good, although the mark is not made precisely in the way pointed out in the directions.”

*91The names were arranged on the ballot one above the other in the following order : Bleiler, Brickley, Morgan. The cross made by the voter is just above the space opposite Bleiler’s name. The cross is not only further from Brickley’s name, but, as an additional and practically conclusive reason why the vote could not have been intended for Brickley, is the fact that Brickley received less than one vote in twenty out of the whole number cast; so that the only real question is, Did the voter intend his cross for Morgan or for Bleiler ? ¥e cannot have any doubt how the question should be answered. It is inconceivable to us that the voter could have intended his cross for Morgan, whose name is so far from it.

The conclusion is irresistible that the intention was to vote for Bleiler, and that by some mistake, oversight or momentary withdrawal of the voter’s attention from the square provided for the marking, the cross was not made in the usual place.

Suppose the cross had been just below the square opposite Morgan’s name; would it be claimed that the vote should not be counted for Morgan? Certainly not; and at least one ballot, on which the cross was either entirely, or almost entirely, below the square opposite Morgan’s name, was counted by the committee for Morgan, without question by any one.

For the above reasons we recommend that the petitioner be given leave to withdraw; and we also recommend the adoption of the accompanying order: —

Ordered, That the Speaker issue a precept giving notice that a vacancy exists in the twenty-second Suffolk representative district, and appointing a time for an election to fill said vacancy.

The Rule in Other States. Most of the States have now adopted the Australian ballot system, and in several of them the question of what marks are to be counted has come before their courts. While the question, as one of statute construction, depends somewhat upon the language and provisions of the particular ballot act of the State, there is a general disposition to follow what may now be called the Massachusetts rule. Reference is here made to some of the cases. In California, the rule is affirmed that “ a ballot is the ’only expression of the voter’s will, and it must be counted according to its legal effect. When it intelligently Bhows that a particular person is voted for to fill a- particular office, it cannot be coupted differently merely because the court may believe that the voter made a mistake in preparing his ticket ” Rutledge v. Crawford, 91 Cal. 526. Where, however, instead of the required stamp, there was simply an irregular blot in the blank margin opposite the name, it was rejected as a vote. Lay v. Parsons, 104 Cal. 661. A cross opposite and to the right of the name but not in the provided square was counted. Tebhe v. Smith, 108. Cal. 101. A ballot marked in pencil instead of by the official stamp is invalid. People v. Sausalito, 39 Pacific R. 937. In Colorado, crosses marked on the left of the name, or slightly to the right of the square opposite the emblem of the party, will be counted as votes. “ Unless the statute declares that a strict compliance with its requirement by the elector is essential to have his ballot counted, courts will not undertake to disfranchise him by rejecting his ballot where his choice can be gathered from the ballot viewed in the light of the circumstances surrounding the election.” Youngv. Simpson, 21 Col. 460. In Illinois, the court requires a strict compliance with the statute. While an honest attempt to make a cross in the provided square will be recognized, the court has rejected marks which were not at least attempts at crosses, and crosses marked opposite the name but outside the provided square. Parker v. Orr, 158 Ill. 609; Apple v. Barcroft, Id. 649. In Indiana, if in stamping the ballot “ there is manifestly an effort to comply in good faith with the statutory requirements, a reasonable compliance with the statutory rules will be sufficient, and a defect in the paper used for the ballot, without the evident fault of the voter, 'will not vitiate the ballot.” Bechtel v. Albin, 134 Indiana, 193. A distinguishing mark on the official ballot will render it void. Segó v. Stod-dard, 136 Id. 297. And see Parvin v. Wimberg, 130 Id. 561. In Iowa, also, a strict construction appears to be put upon the directions of her ballot act, the court holding that the cross mark must be made in the circle or square. Whittam v. Zahorik, 59 Northwestern Rep. 57- In Kansas, the statute is construed to be mandatory, and ballots not marked with a cross substantially in or upon the designated square will not be counted. Taylor v. BleaMey, 39 Pacific R. 1045; Richardson, v. Jamison, Id. 1050. In Boyd v. Mills, 53 Kansas, 594, the court held that colored sample ballots used by mistake in plqce of the official ballots should be counted, and deduced these two rules from the authorities : (1) that under the ballot acts, designed to preserve the secrecy of the ballot, any mark or distinguishing feature apparent on the ballot renders it void; and (2) that where the law is explicit in prohibiting the counting of any ballot which does not conform to the requirements of the statute, the courts will enforce the law as it reads, without interposing their own judgment as to the reasonableness or unreasonableness of the requirements. In Kentucky, the intention of the voter is given effect if it can fairly be discovered from the ballot. Ballots marked with a pencil of any color, instead of with a black ink stencil; ballots marked with a cross outside the square; ballots marked with a black figure instead of a cross; ballots marked with two or more crosses in one square, are to be counted. Houston v. Steele, 98 ICy. 596. In Maine, a strict compliance with the statute direction is enforced. So ballots are rejected where the cross is above the name of the candidate, where the cross is to the left of the name, where instead of a cross a short straight line was drawn across the square. Curran v. Clayton, 86 Me. 42; Waterman v. Cunningham, 89 Id. 295. In Michigan, “ any mark upon a ballot, other than the one appropriate and neces-essary under the law to designate the intention of the voter, must be regarded as a distinguishing mark,” and a ballot containing such a mark will be rejected. Attorney-General v. Glaser, 102 Mich. 396. 'Where the official ballot contains only the name of one person for each office to be voted for, the failure to mark the cross in the circle at the head of the ticket will not vitiate the vote. Johnson v. Board of Canvassers, 101 Mich. 187. “ Containing but one name for each office, there can be no doubt that the voter intended to vote for the persons whose names were printed therein, unless we accept the ingenious argument of counsel that the voter desired that his ballot should not be counted but put it in the ballot box to deceive somebody, which would be going a great way to avoid the duties of citizenship.” Hooker, J. And see Lindstrom v. Canvassers, 94 Mich. 467. In Minnesota, while a mark intended to distinguish the ballot will invalidate it, “ the statute does not prescribe any inflexible rule as to what shall or shall not be accepted as a cross mark, and any mark, however crude and imperfect in form, if it is apparent that it was honestly intended as a cross mark and for nothing else, must be given effect as such; otherwise electors unaccustomed to the use of pen and pencil might be disfranchised.” Pennington v. Hare, 60 Minn. 146. In Missouri, under the ballot act, the error of the county clerk in printing names of additional candidates on the official ballots will not nullify the election at which such ballots were used, and the court lays down the rule, in an elaborate opinion on the construction of the Australian Ballot Act, “ that where the legislature declares a certain irregularity in election procedure as fetal to the validity of the returns the courts will effectuate that command; otherwise they will ignore such innocent irregularities of election officers as are free of fraud and have not interfered with a fair expression of the voter’s will.” Bowers v. Smith, 111 Missouri, 45. In Nebraska it was held that the provision in the ballot act for marking the ballots with ink was directory only, and that ballots, if in other respects regular, will, in the absence of fraud, be counted, although marked with a pencil. The court say: “ It is not every mark by means of which a ballot might subsequently be identified which is a violation of the statute. The mark prohibited by law is such a one, whether letters, figures or characters, as shows an intention on the part of the voter to distinguish his particular ballot from others of its class, and not one that is common to, and not distinguishable from, others of a designated class. The fact that a number of ballots are, without any evidence of a fraudulent intention on the part of the voters, distinguishable from others cast at the same polling places, as, for instance, marked with a pencil or with ink of a different color, does not bring them within either the letter or spirit of the statute.” State v. Russell, 34 Nebraska, 116, 121. And see Spurgin v. Thompson, 37 Id. 39. Provisions of the election law which are not essential to a fair election will be held to be formal and directory only, unless declared to be mandatory by the law itself. State v. Van Camp, 36 Id. 91. The provision requiring the marking of the ballot is, however, mandatory, and a ballot upon which a name is written in, and then left with no mark opposite to it, cannot be counted as a vote. Martin v. Miles, 46 Id. 772. In New Jersey, under the provision of the ballot act that any device upon the ballot whereby it can be identified shall render it absolutely void, the intention of the voter cannot be considered in determining the legality of any ballot. The statute supersedes the common law rule of ascertaining, if possible, the intention of the voter, and the ballot cannot be counted. Kearns v. Edwards, 28 Atlantic R. 723. In New York, official ballots endorsed for use in one polling place and for the candidates of one party cannot be counted if cast and received in a different polling place, since the endorsement is not such as is prescribed by law, and contains a distinguishing mark. People V. Board of Canvassers, 129 N. Y. 395. A ballot must be received and counted, however, unless it appears that it was marked either by the voter, or by another with his knowledge, with his intent, or the intent known to him of such other person, that it might afterwards be identified. Such evidence may come from inspection of the ballots, or from other competent sources. The question is one of fact. People v. Supervisors, 135 N. Y. 522. And see People v. Shaw, 133 N. Y. 493. A mere irregularity on the part of election officers in preparing and printing the official ballot will not invalidate it. People v. Wood, 148 N. Y. 142. In Pennsylvania, the county courts have been very liberal in giving effect to the intention of the voter, however informally expressed, provided the intention is reasonably clear upon inspection of the ballot. Where the intention of a voter to vote for a given candidate can be gathered from the face of an official ballot, that intention must prevail, no matter how it is expressed. Coleman v. Gernet, 14 Penn. Co. Ct. Rep. 578; Reed v. Me Arthur, 15 Id. 136. So “it is immaterial where the cross is placed on an official ballot, or whether the cross is used at all, provided the voter’s choice can be determined from the face of the ballot.” Weidkneeht v. Hawk, 13 Id. 41, Mayor of York case, Id. 205; Louek’s case, 3 Penn. District Rep 131. If the voter fails to use a cross mark, but uses instead some other distinctive mark, indicating an intention to vote, such as a perpendicular stroke, his vote should be counted. “ The question is, does the mark used on the ballot in question sufficiently indicate the voter’s choice ? The presumption is that the elector who cast this ballot intended to vote; he used the same mark throughout the whole ballot. He made the marks in the square spaces intended for the voting mark. The character used is such as men often employ to indicate their choice, the usual tally mark. There can then be no doubt as to the voter’s intention. The mark as used is an unequivocal expression of his choice.” Hemphill Township Election, 14 Penn. Go. Ct. Rep. 577. The supreme court, however, in School Directors’ Election, 165 Penn. St. 233, holds that a blanket slip or paster covering the whole ballot containing the marked names of the candidates of one party cannot be counted as votes, as it is a clear violation of the intention and purpose of the ballot act. The court says: “ In so far as the mode of voting is thus specifically prescribed by the act all other modes are by necessary implication forbidden. ... To hold, as we are virtually asked to do, that by virtue of the authority given the voter to insert in the blank spaces provided therefor names not already on the official ballot, he may so use a previously prepared slip-ticket, given to him by an outside party, as to entirely cover the right-hand column of the official ballot, and thus effectually obliterate or conceal everything printed thereon, would not be construction, but judicial legislation of the worst type.” Sterrett, C. J., p. 237. See DeWatt v. Bartley, 146 Penn. St. 529. “Under the ballot law it is not enough that the intention of the voter may possibly be ascertained, or his irregularity or equivocal acts explained by evidence dehors his ballot. The purpose of the Legislature in presenting the form of ballot, and specifically directing how it should be prepared and used by the voter, was to avoid all such inquiries and the consequences likely to result therefrom. It was intended that the ballot, when prepared by the voter and delivered to the proper election officer, should be per se self-explanatory. In re Redman, 173 Penn. St. 59; In re Lawlor, 180 Id. 566. A straight mark within or outside the provided square is not a compliance with the provision that the voter shall mark a cross. Pike County Election, 18 Penn. Co. Ct. R. 278; Long v. Kochenderfer, 3 Penn. Dist. R. 678. On the contrary, other local courts in Pennsylvania hold that the single stroke, or a cross not exactly opposite the name, but a little below it, should be counted as a vote if the intention of the voter is fairly apparent. In re Flynn, 5 Penn. Dist. R. 168; Middendorf’s case, 4 Id. 78. In Rhode Island, a strict construction of the ballot act is held by the justices of the supreme court. They advised the governor in 1890 as follows: 1. A cross is the only mark that can be lawfully counted as a vote. 2. 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 a square in it or not, and if there be a square in it, even though the cross is without or partly without the square. 3. A cross or other mark, marked at the left of, or over any part of a name on an official ballot, cannot be counted as a vote. Opinion of Justices, 17 Rhode Island, 813. This opinion was reaffirmed in 1893. Opinion of Justices, 18 Id. 147. ' In South Dakota, the court in two cases held the requirement as to the place and form of the cross to be mandatory, and has rejected ballots where the cross was not marked in the provided space, and where the mark was a straight diagonal line at the left of the name. Vallier v. Brakke, 64 Northwestern R. 180; McKittrick v. Pardee, 65 Id. 23. The Ride in England. The construction of the English act was established in 1875 in Woodward v. Sarsons, L. R. 10, C. P. 733. It is “ necessary that the absolute enactment that the paper should be marked secretly should be obeyed exactly, but it would be sufficient that the manner of marking the paper should be obeyed substantially. If these two enactments be so obeyed there is no material breach of the act. . . . The paper must be marked so as to show that the voter intended to vote for some one, and so as to show for which of the candidates he intended to vote. It must not be marked so as to show that he intended to vote for more candidates than he is entitled to vote for, nor so as to leave it uncertain whether he intended to vote at all, or for which candidate he intended to vote, nor so as to make it possible, by seeing the paper itself, or by reference to other available facts, to identify the way in which he has voted. If these requirements are substantially fulfilled then there is no enactment and no rule of law by which a ballot paper can be treated as void, though the other directions in the statute are not strictly obeyed. If these requirements are not substantially fulfilled the ballot paper is void, and should not be counted; and if counted, it should be struck out on a scrutiny. The decision in each case is upon a point of fact to be decided, first by the returning officer and after-wards by the election tribunal on petition.” Lord Coleridge, C. J. Under this rule, marks of a character, or in places, other than as prescribed by the directions, but indicating clearly the intention of the voter and not designed to reveal his identity, were counted. This case was followed in 1880, in the Berwick-on-Tweed case, McLaren v. Home, 3 O’Malley & Hardcastle’s El. Cases, 178, where the court fcounted imperfect marks under application of above rule. This principle of liberal construction of the ballot acts was again recognized in Ackers v. Howard, 16 Q. B. D. 739, and in the Buckrose Division case, 4 O’Malley & Hardcastle’s El. Cases, 110. A mark of such a character as to show an intention of the voter to reveal his identity, or to create reasonable suspicion of such intention, will not be counted as a vote. Cases, supra; Stepney case, 4 O’Malley & Hardcastle’s El. Cases, 34; 2 Rogers’ Elections (15th ed.), 684. In Ireland the liberal construction adopted in England seems to be followed. Athlone case, Shell v. Ennis, 2 O’Malley 8c Hard-castle’s El. Cases, 186. The Rule in Scotland and Canada, The Scotch rule is less liberal, owing apparently to a difference in the presumption drawn from the character of the mark. In England, unless the mark shows on its face an intention to reveal identity, or such intention is proved, the presumption is that it was made with the honest purpose of voting. In Scotland, if the mark differs essentially from a cross, or is of such a character that it may lead to identification, the presumption is against its validity. In the Wigtown case, 2 O’M. & H. El. Cases, 215, Haswell v. Stewart, 1 Ct. of Sessions, 4th series, 925, Lord Neaves stated the rule: “ I think it essential to a good vote that the voter should make the cross thus pointed out, and that any mark materially different would be a deviation from what is prescribed and a failure to fulfil the requirements of the statute. ... I think that this declaration of nullity does not require that there should be absolute proof of a design or intention on the part of the voter to be identified,” p. 928. Lord Ormidale, concurring, said: “ While on the one hand there must be a reasonable and substantial compliance with the provisions of the act, on the other hand, trivial or unimportant deviations, such as might not unfairly be held to be'incidental to the performance of the piece of work in question by different individuals of different ages, habits and conditions, ought to be disregarded, provided that the true object and intention of the voter are free from serious doubt, and that there is not sufficient ground for holding in a fair and reasonable sense that there is any mark or writing on the ballot paper whereby the voter can be identified,” p. 930. Lord Benholme, dissenting, said: “ Where a cross has been made, and where that cross is so placed as to leave no doubt for which candidate the voter intended to vote, I am not able to agree with the principle upon which my brethren have determined to reject several such voting papers. In the first place, I think it is not fatal that the cross is put on the left hand, or above or immediately below, provided it is so placed as to leave no doubt as to the candidate for whom the vote was intended. Further, where a proper cross has been made designating the intention of the voter to vote for a particular candidate, and leaving no doubt as to what candidate he intended to vote for, I am not prepared to say that the addition of a score, or a double leg to the cross, — which may have been the result of awkwardness or accident, or of not seeing exactly how he was to commence the cross, — ought to be visited upon the voter by nullifying his vote,” p. 932. The decision of the court was affirmed in 1876 in Robertson v. Adamson, 3 Ct. of Sessions, 4th series, 978, and in 1886 in Anstruther v. Williamson, 13 lb. 577. The Canadian courts seem inclined to follow the Scotch rule. Ritchie, C. J., in the Bothwell case,' Hawkins v. Smith, 8 Can. Sup. Ct. 676, states the rule: “ After a good deal of consideration I find it impossible to lay down a hard and fast rule by which it can be determined whether a mark is a good or bad cross. I think that whenever the mark evidences an attempt or intention to make a cross, though the cross may be in some respects imperfect, it should be counted, unless, from the peculiarity of the mark made, it can be reasonably inferred that there was not an honest design simply to make a cross, but there was also an intention so to mark the paper that it could be identified, in which case the ballot should, in my opinion, be rejected. But if the mark made indicates no design of complying with the law, but, on the contrary, a clear intent not to mark with a cross as the law directs, as, for instance, by marking a straight line or a round 0, then such non-compliance with the law, in my opinion, renders the ballot null; the irresistible presumption from such a plain and wilful departure from the terms of the statute being that it was so marked for a sinister purpose. I am aware that in coming to this conclusion I am differing from the decision in the case of Woodward v. Sarsons, supra, but I cannot bring my mind to the conclusion that a ballot should be refused when there is evidence of an honest attempt to make a cross. One ballot objected to was marked, as may familiarly be said, by an inverted V, — thus, I think this good as showing an intention to make a cross and no indication of an intent at identification,” p. 696. For other Canadian cases see the North Victoria case, Cameron v. McLennan, Hodgin’s El. Cases, 671, 11 Can. L. Jour. 163; White v. Mackenzie, 20 Low. Can. Jurist, 22; Grant v. McCollum, 12 Can. Law Jour. 113; the South Wentworth case, Olmstead v. Carpenter, Hodgin’s El. Cases, 531; Dionne v. Gagnon, 9 Quebec L. Rep. 20; Bernatchez v. Fortin, lb. 81; Jenkins v. Brechen, 7 Can. Sup. Ct. 247. The English and Scotch rules of construction have been applied to the special circumstances in each of the cases cited supra, and marks of a certain character, or in. a certain place, counted or rejected as'votes, according to the rule followed and its application to the facts presented. Each case necessarily will depend upon the inspection of the ballot questioned and the peculiar circumstances. The decisions as to marks and places are digested by Mr. Wigmore in the appendix to his work on the “ Australian Ballot System,” pp. 190-194. Voter must not intend to reveal his Identity. The inconsistency in the Scotch rule is the assumption that an imperfect or incorrect mark is in some cases made for the purpose of disclosing identity and in other cases without such intention. The rule to be logical should reject every mark that is not a perfect cross in the proper place, but the Scotch courts expressly decline to do this. If the voter has this intention he can give it effect just as well by a slight change in, or addition to the cross, or in the place of marking, — insufficient under any judicial decision to justify the rejection of the vote, — as he can by a greater and (under the Scotch rule) fatal deviation. While the mark may be of such a character as of itself with the other circumstances to suggest such corrupt intention, such intention should not be presumed. The question is in each case one of fact, — did the voter intend to vote, and without disclosing his identity ? The first question should be decided by the inspection of the ballot, and evidence of surrounding circumstances. The voter’s statement of his intention would be inadmissible, for the same reason that his evidence for whom he intended to vote is inadmissible. The ballot, like a written contract, speaks for itself. (See note to Loring & Russell’s El. Cases, 103-105.) The question, whether by the marking of the ballot the voter intended to disclose his identity, would be decided: First, by inspection of the ballot in connection with the other ballots cast in the election. If, for instance, a number of ballots were found with a peculiar mark, or marked in a peculiar place, all for the same candidate, the circumstance would be suspicious. Second, to show a corrupt intention extrinsic evidence of intimidation or bribery would be admissible in an election controversy. Returning officers in counting cannot go outside of the ballots. In the absence of fraudulent intention, ballots, even if containing marks which might identify the voters, should be counted. The reasons are thus stated by Mr. Wigmore: “ 1. The words of our statutes do not expressly declare votes having identifying marks to be void; it should therefore clearly appear upon sufficient evidence — the mark alone being only a part of that evidence — that the vote was cast under a corrupt arrangement, before the ballot is thrown out. 2. The precaution disfranchises too many in proportion to the illegal votes which it eliminates; too much good wheat is lost to keep out a little chaff. 3. The marking of a vote in a special way requires so much prearrangement, and can be practised only on so small a scale, that it is an evil not worth trying to combat in this way. 4. Too much power is put into the hands of the officials who are to count the ballots. 5. Too much delay would probably be caused by the necessity of deciding, at the time of counting, upon the validity of informal marks.” “ Australian Ballot System,” p. 194.]

Reference

Full Case Name: William H. Morgan, Frederick Bleiler, Same
Status: Published