The Manner of Exercising the Right. The mode of voting in this country, at all general elections, is almost universally by ballot.1 "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 suffrages 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." 2 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.3 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; Secord v. Foutch, 44 Mich. 89, 6 N. W. 110. That where the law provides for holding an election and one is duly called, equity has no authority to enjoin it, see Walton v. Develing, 61 Ill. 201. viva voce, that is, by the elector 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 overa wed, 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. 1 The ballot was also adopted in Eng- There certain officers appointed for that land in 1872. In municipal elections voting by ballot is lawful, but not so, as to illiterates, a provision requiring the voter to indicate by a mark the candidates he wishes to vote for, as it is contrary to the guaranty that all elections shall be free and equal. Rogers v. Jacob, 88 Ky. 502, 11 S. W. 513. [Use of voting machine sufficiently satisfies requirement of ballot. Opinion of Justices, 19 R. I. 729, 36 Atl. 716, 36 L. R. A. 547; Re House Bill No. 1291, 178 Mass. 605, 60 N. E. 129, 54 L. R. A. 430, but see dissenting opinions in both cases for forcible objections.] 2 Cush. Leg. Assemb. § 103. 8 " 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 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 In order to secure as perfectly as possible the benefits 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 where their votes are to be counted, and the result declared with as little inconvenience as possible." Temple v. Mead, 4 Vt. 535, 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. [A court has no power to require ballots voted at an election to be later submitted to the inspection of the grand jury. Ex parte Arnold, 128 Mo. 256, 30 S. W. 768, 1036, 33 L. R. A. 386; but see note thereto in L. R. A. upon power of courts to compel submission of ballot boxes to examination for other purposes than election contests, citing cases contra under substantially similar constitutional provisions, notably People v. Londoner, 13 Col. 303, 22 Pac. 764, 6 L. R. A. 444.] 1 See People v. Kilduff, 15 Ill. 492. In this case it was held that the common lines on ruled paper did not render the ballots void. Otherwise as to dotted lines under the name of an office, for which no candidate is named. Steele v. Calhoun, 61 Miss. 556. See also Druliner v. State, 20 Ind. 308, in which it was decided that a caption to the ticket folded inside was unobjectionable. To the same effect is Millholland v. Bryant, 39 Ind. 363. A method different from the usual one of printing the names of offices will not avoid the ballot. Coffey v. Edmonds, 58 Cal. 521. See also Owens v. State, 64 Tex. 500. As to what headlines are designed to mislead within a prohibition of such, see Shields v. McGregor, 91 Mo. 534, 4 S. W. 266; Williams v. State, 69 Tex. 368, 6 S. W. 845. A ballot ought not to be rejected because it differs from the regulations prescribed by the code as to size, paper, type, &c., or because the office of sheriff is designated "sheriff and collector;' the sheriff being er officio collector by law. State v. Watson, 9 Mo. App. 593; Kirk v. Rhoads, 46 Cal. 398. Making the ticket diamond shaped will not avoid it: State v. Phillips, 63 Tex. 390; nor will attaching slips to it. Quinn v. Markoe, 37 Minn. 439, 35 N. W. 263. [Contra, under the Australian Ballot Law, Fletcher . Wall, 172 Ill. 426, 50 N. E. 230, 40 L. R. A. 617.] The presiding officers of the election are the sole judges of what is a "distinguishing mark on a ballot, where such a mark is forbidden; and ballots which they have received and counted cannot be rejected afterwards by the Governor and Council. Opinions of Judges, 45 Me. 602. In Colorado it is held that, if voted in good faith, a ticket with such mark must be counted. Kellogg v. Hickman, 12 Col. 256, 21 Pac. 325. A requirement that that there shall be a space of one-fifth of an inch between names of candidates is mandatory, and avoids the whole ticket if disobeyed. Perkins . Carraway, 59 Miss. 222. [That statutory requirements concerning ballots in elections held for purpose of passing upon proposed municipal bond issues must be strictly observed, see Murphy v. San Luis Obispo, 119 Cal. 624, 51 Pac. 1085, 39 L. R. A. 444. Omission on part of officer in charge of ballot-box to tear off the strips bearing the numbers of the ballots before depositing them in the box does not invalidate them. Buckner v. Lynip, 22 Nev. 426, 41 Pac. 762, 30 L. R. A. 354. For a case involving a variety of marks upon ballots, some of which were held to invalidate the ballots and others not, see Parker v. Orr, 158 Ill. 609, 41 N. E. 1002, 30 L. R. A. 227; also Tebbe ». Smith, 108 Cal. 101, 41 Pac. 454, 29 L. R. A. 673; Dennis v. Caughlin, 22 Nev. 447, 41 Pac. 768, 29 L. R. A. 731; Sego v. Stoddard, 136 Ind. 297, 36 N. E. 204, 22 L. R. A. 468. Where through mistake of officers of election the colored sample ballots are used instead of the white ones prescribed by law, the error is harmless, as all voters used the colored ballots and secrecy is not violated. Boyd v. Mills, 53 Kan. 594, 37 Pac. 16, 25 L. R. A. 486.] 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 what party he pleases, and that no one is to have the right, or be in position, to question his independent action, 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 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 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. 45, 81. 2 "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. In Wil liams v. Stein, 38 Ind. 90, the Supreme Court of Indiana declared to be void the following enactment: "It shall be the duty of the inspector of any election held in this State, on receiving the ballot of any voter, to have the same numbered with figures, on the outside or back thereof, to correspond with the number placed opposite the name of such voter on the poll lists kept by the clerks of said election." Pettit, J., delivering the opinion of the court, after quoting several authorities, among others Commonwealth v. Woelper, 3 S. & R. 29; People v. Pease, 27 N. Y. 45; People v. Cicott, 16 Mich. 283; Temple v. Mead, 4 Vt. 535; and the text above, says: "It is believed that these authorities establish, beyond doubt, that the ballot implies absolute and inviolable secrecy, and that the principle is founded in the highest considerations of public policy. When our present constitution was framed, voting by ballot was in vogue in nearly every State in the Union. That mode of voting had been known and understood for centuries. The term "ballot," as designating a mode of election, was then well ascertained and clearly defined. 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.1 The eminent framers of the constitution certainly employed this term with a full knowledge of its meaning. Many of the most distinguished members of the constitutional convention of 1850 were members of the legislature of 1852, the first that met under the present constitution. That they regarded the ballot system as securing inviolable secrecy is clearly shown by the following law, which they then helped to enact: If any judge, inspector, clerk, or other officer of an election, shall open or mark, by folding or otherwise, any ticket presented by such elector at such election, or attempt to find out the names thereon, or suffer the same to be done by any other person, before such ticket is deposited in the ballot-box, he shall be fined in any sum not exceed ing one hundred dollars.' 2 G. & H. 473, sec. 60. If the constitution secures to the voter, in popular elections, the protection and immunity of secrecy, there can be no doubt that section 2 of the act of 1869, which authorized the inspector to number ballots, is clearly in conflict with it and is void. I am not unmindful of the rule that all doubts are to be solved in favor of the constitutionality of legislative enactments. This rule is well established, and is founded in the highest wisdom. But my convictions are clear that our constitution was intended to, and does, secure the absolute secrecy of a ballot, and that the act in question, which directs the numbering of tickets, to correspond with the numbers opposite the names of the electors on the poll lists, is in palpable conflict not only with the spirit, but with the substance, of the constitutional provision. This act was intended to, and does, clearly identify every man's ticket, and renders it easy to ascertain exactly how any particular person voted. That secrecy which is esteemed by all authority to be essential to the free exercise of suffrage is as much violated by this law as if it had declared that the election should be viva voce." A like ruling has been made in Minnesota. Brisbin . Cleary, 26 Minn. 107, 1 N. W. 825. In several States, however, this numbering is required. See Hodge v. Linn, 100 Ill. 397. [And in Slaymaker v. Phillips, 5 Wyo. 453, 40 Pac. 971, 42 Pac. 1049, 47 L. R. A. 842, it was held that the requirement that every ballot be officially stamped upon the back thereof and signed manually by one of the judges of election is not an undue restriction upon the right of suffrage, even though the failure of the judges of election to perform their duty in this regard makes the ballots void. Upon marking official ballot, see a valuable note to 47 L. R. A. 806, in which many cases arising under the Australian" ballot laws of the several States are collected. Where the voter votes for a person whose name is not printed on the ballot, the addition of the party designation to the written name, after the manner of the printed names and designations, will not be considered a distinguishing mark in the absence of proof. Jennings v. Brown, 114 Cal. 307, 46 Pa. 77, 34 L. R. A. 45.] 1 See this subject fully considered in People v. Cicott, 16 Mich. 283. And see also State v. Hilmantel, 23 Wis. 422; Brewer v. Weakley, 2 Overt. 99, 5 Am. Dec. 656. 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 Every ballot should be complete in itself, and ought not to require extrinsic evidence to enable the election officer to determine the voter's intention. Perfect certainty, however, 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 ;1 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 disposed legislative bodies may be to act upon it, we are not prepared to see any such 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. 45, 81. It was held in People v. Cicott, 16 Mich. 283, that until it was distinctly shown that the elector waived his privilege of secrecy, any evidence as to the charcter 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 other wise 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. Compare State v. Hilmantel, 23 Wis. 422. In People v. Thacher, 55 N. Y. 525, the evidence of voters as to how they voted was received, and as they did not object to giving it, it was held proper. See on this subject McCrary's Law of Elections, §§ 194, 195. [The public are interested in preserving the secrecy of the ballot in order to make bribery ineffective, and a statutory requirement that before the voter can take any person into the booth with him to aid him in making out his ballot, he shall swear that he is unable to read English, is mandatory. Ellis v. May, 99 Mich. 538, 58 N. W. 483, 25 L. R. A. 325.] 1 People v. Matteson, 17 Ill. 167; People v. Cook, 8 N. Y. 67; State v. Elwood, 12 Wis. 551; People v. Bates, 11 Mich. 362; Newton v. Newell, 26 Minn. 529, 6 N. W. 346. 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; Beardstown v. Virginia, 76 Ill. 34. But see McKinnon v. People, 110 Ill. 305; Kreitz v. Behrensmeyer, 125 Ill. 141, 17 N. E. 232, 24 L. R. A. 59. 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. "In canvassing votes of electors their intentions must be ascertained from their ballots, which must be counted to accord with such intentions. If the ballots express such intentions beyond reasonable |