[Cannon's Precedents, Volume 6]
[Chapter 162 - The House The Judge of Contested Elections]
[From the U.S. Government Publishing Office, www.gpo.gov]
THE HOUSE THE JUDGE OF CONTESTED ELECTIONS.
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1. House not bound by agreement of parties. Section 90.
2. House not bound by decisions of State tribunals. Sections
91, 92.
3. Relations of House to acts of canvassing officers. Sections
93-95,
4. House ascertains intent of voter when ballot is ambiguous.
Section 96.
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90. The Connecticut election case of Jodoin v. Higgins in the Sixty-
second Congress.
A stipulation by parties for a recount of ballots is not binding on
the House or its committees.
Although not bound by agreement of parties for a recount of ballots,
the committee in view of the difficulty in securing a recount under the
laws of the State, and evidence indicating the probability of
inaccuracy in the returns, ordered a recount.
On August 3, 1912,\2\ Mr. Henry M. Goldfogle, from the Committee on
Elections No. 3, submitted the report of the committee in the
Connecticut case of Raymond J. Jodoin v. Edwin W. Higgins.
Under the law of the State of Connecticut a recount of ballots might
be had only when application was made within three days after the
election by an elector in the town in which recount was desired.
However, after answer had been served to the notice of contest, the
parties and their attorneys entered into a stipulation dated March 16,
1911, in which, among other things, the following was stated:
That in many voting districts it is probable that the moderators were
mistaken in their decisions as to the validity or invalidity of ballots
cast for said office of Representative in Congress from said district,
and that without opening the boxes and examining the ballots therein it
is impossible to determine the extent of such mistaken decisions.
* * * * * * * * *
That it is impossible to tell with accuracy what ballots have been
improperly counted or rejected for the contestant or contestee without
opening said boxes and examining said ballots.
* * * * * * * * *
That said contestant desires that said boxes be opened and said
ballots examined and recounted and that the lawful and correct count of
mid ballots be ascertained thereby without objection on the part of the
contestee.
* * * * * * * * *
That said contestant and contestee waive any question of formality or
sufficiency of the pleadings as to said matter of contest and agree
that all issues are properly raised and presented
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\1\ Supplementary to Chapter XXI.
\2\ Second session Sixty-second Congress, House Report No. 1136;
Record p. 10145; Moore's Digest, p. 51.
Sec. 91
for the opening of said ballot boxes and for a recount of all the
ballots cast at said election for the office of Representative in
Congress for said congressional district in said Sixty-second Congress.
* * * * * * * * *
That said contestant and contestee stipulate and agree to waive any
and all claims which they or either of them might make under any of the
pleadings or any part of the proceedings for the determination of said
question so that a full recount of all ballots cast for Member of
Congress from said congressional district in said Sixty-second Congress
may be had.
The congressional district affected was composed of 36 towns. In only
one of the 36 was application made within the 3 days specified, but on
recount in the one town the contestant gained 3 votes, indicating the
possibility of similar changes in the returns from other towns in event
of a general recount.
The committee held that:
A stipulation of parties to an election contest for a recount of
ballots cast for Representative in Congress is not binding or
conclusive either on the House of Representatives or its Committee on
Elections. In view, however, of the stipulation to which we have above
referred and of the declarations upon the hearings by the counsel for
the contestee of his willingness that such recount should be had, and
of the circumstances existing with regard to the counting of the vote
in the town of Plainfield which reduced the meager majority by which
the contestee was declared elected, and of the difficulty that the
contestant would experience to secure a recount under the Connecticut
law within the very brief period of time limited by the laws of that
State, the committee concluded to give heed to the stipulation and
render it effective by ordering a recount.
On March 21, 1912,\1\ Mr. Goldfogle offered the following resolution
in the House which was agreed to:
Resolved, That the Committee on Elections No. 3 be, and it hereby is,
authorized to send for ballots cast for Representative in Congress in
the third congressional district of Connecticut, at the election held
in November, 1910, and that such ballots be brought from said
congressional district by such person as may be designated by the
committee or its chairman, and the expenses incurred therefor shall,
upon vouchers approved by the chairman of the committee, be paid out of
the contingent fund of the House.
In compliance with this resolution the ballots were brought from
Connecticut and opened by the committee in the presence of counsel and
representatives of both parties to the contest, but before the
completion of the recount the counsel for the contestant announced that
from an examination of the ballots he was convinced that the returns
would not be materially changed by the recount. The committee,
therefore, without proceeding further with the recount recommended
resolutions declaring that Raymond J. Jodoin was not elected and Edwin
W. Higgins was elected.
The House agreed to the resolutions without debate or division.
91. The Michigan election case of Camey v. Smith in the Sixty-third
Congress.
The House in deciding a Federal election case, acts in the capacity
of a court and is not bound by decisions of State courts unless such
decisions are founded upon sound principles and comport with reason and
justice.
Decisions of State tribunals are not binding on Congress for the
reason that State election laws are made Federal laws by the Federal
Constitution.
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\1\ Journal, p. 919: Record, p. 3766.
Sec. 91
A recount of ballots having been agreed upon by contestant and
contestee it is the duty of the House to accept the revision in
official returns made by such recount.
Votes sought to be influenced by election officials must be rejected.
Where the soliciting of votes by election officials continued during
the whole day the entire poll should be rejected, but where
solicitation is shown to have applied to a limited number of votes
those votes only should be deducted from the poll.
Irregularities in the conduct of an election unaccompanied by fraud
do not vitiate the returns.
Adjournment of election officials contrary to provision of law before
completion of the count, where untainted with fraud or misconduct does
not warrant rejection of the poll.
On January 30, 1914,\1\ Mr. James D. Post, of Ohio, from the
Committee on Elections, No. 1, submitted the report in the Michigan
case of Claude C. Carney v. John M. C. Smith.
The contest in this case was predicated on various irregularities in
several precincts in the district.
In Climax Township of Kalamazoo County, a recount made by agreement
between the parties reduced contestee's plurality in the district from
127 to 116. The recount having been made by mutual agreement the
committee held:
Your committee makes no question as to the right and duty to accept
the revised figures as to the township of Climax. We do not believe
that in the original canvass of the votes in that township there was
any intentional fraud. The evidence shows that the election officials
were unanimously of the opinion that when the original figures were
received that they could not be correct; that more votes had been cast
in that precinct than the total as shown by the returns. Besides,
contestant and contestee agree that the correction should be made.
In ward 3, of the city of Charlotte, Eaton County, inspectors of the
election repeatedly went into the booths when voters were preparing
their ballots. Section 3642, Michigan Compiled Laws of 1897, paragraph
169 provides:
When an elector shall make oath that he can not read English, or that
because of physical disability he can not mark his ballot, or when such
disability shall be made manifest to said inspectors his ballot shall
be marked for him in the presence of the challenger of each political
party having a challenger at such voting place, by an inspector
designated by the board for that purpose, which marking shall be done
in one of the booths.
Paragraph 170 of section 3643 further provides:
It shall be unlawful for the board, or any of them, or any person in
the polling room or any compartment therewith connected, to persuade or
endeavor to persuade any person to vote for or against any particular
candidate or party ticket.
It developed that the inspectors entered the booths without requiring
the oath specified in the statutes.
The opinion of the Supreme Court in the case of Attorney General v.
McQuade (94 Mich., 439) was cited to show this statute was mandatory,
and on this ground
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\1\ Second session Sixty-third Congress, House report No. 202;
Record, p. 2586.
Sec. 91
it was urged that the entire poll of ward 3 of the city of Charlotte
should be thrown out.
The committee, decided:
We must concede under the case cited, the law in this respect being
mandatory, that the votes sought to be influenced by the election
inspectors must be cast out. In the McQuade case the court cites with
approval the following excerpt from Payne on Elections, section 499,
and McCreary on Elections, sections 190 and 192:
``When fraud on the part of the officers of the election is
established, the poll will not be rejected, unless it shall prove to be
impossible to purge it of fraud. When the result at a poll, as shown by
the returns, is false and fraudulent, and it is impossible to ascertain
the actual vote from the other evidence in the case, the vote of such
poll must be wholly rejected.''
This rule is certainly founded in good sense and is sustained by the
overwhelming weight of the authorities.
In the American and English Encyclopedia of Law, page 353, the rule
is thus bid down:
``Fraud does not invalidate the legal votes cast, but by destroying
the presumption of the correctness of the returns it makes it necessary
that any person who claims any benefit from the votes shall prove them;
and where no proof is offered and the frauds are of such a character
that the correct vote can not be determined, the return of the precinct
will be rejected.''
The total vote cast in this precinct was 363. The record shows the
mistake complained of did not apply to more than 8 votes. Should 355
voters be disfranchised, the integrity of whose ballots can not be and
is not questioned? To segregate the tainted votes in this ward would be
in harmony with the great weight of the authorities, and give full
force and effect to the mandatory provisions of the Michigan laws
relative to the marking of the ballots, but we do not believe that more
than 8 votes should be deducted from the poll in this precinct. We
believe such a conclusion is in exact accord with the intent and spirit
in the decisions laid down in the case of the Attorney General v.
Furgason (91 Mich., 438) and Attorney General v. May (99 Mich., 545).
If the records show that the soliciting of votes in this precinct was
open and continued during the whole day, the opposite conclusion should
be reached; but we have searched the record in vain to find that these
two election inspectors solicited any of the voters except those who
called for instructions. In neither of the three cases cited, and upon
which the contestant relied, did the Supreme Court of Michigan hold
that the entire poll should be vitiated
In Sunfield Township of Eaton County the board adjourned before
completion of the count, leaving the ballots and books in the voting
place. Subsequently on the same night they reassembled upon advice of
the prosecuting attorney and continued the counting. It was not claimed
or shown that there was any disturbance of the ballots or modification
of figures during the adjournment, and the committee held:
I do not believe that any one would contend for a single moment that
the poll of this precinct should be thrown out simply on account of
this unwarranted adjournment. To disfranchise the 345 electors who
voted in this township at that election upon this mere irregularity
would certainly be a most dangerous precedent.
Upon the question of a recess taken by the officers, we cite Payne on
Elections, section 463:
``A recess of an hour taken by the officers at noon for dinner
without fraudulent or wrongful purpose or result will not warrant the
rejection of the poll of the precinct.''
It is decided even in Michigan, in the case of The People v. Avery
(102 Mich., 572), that electors are not to be deprived of the result of
their vote at an election by mere mistakes of their officers when it
does not appear to have changed the result.
A further complaint was that in this township the board without
authority of law appointed one Albert Sayer to deliver ballots to the
voters. Section 3640 of the Michigan Compiled Laws of 1897 provides:
Sec. 91
No ballot shall be distributed by any person other than one of the
inspectors of the election, nor in any place within the railing of the
voting room, to show electors how to vote, and no ballot which has not
the initials of a member of the board of election, written by such
member on the back thereof, shall be placed in the ballot box.
On the strength of this statute the contestant claimed that the
entire vote of this precinct should be thrown out, and cited in support
of that contention a decision of the Supreme Court of Michigan in the
case of McCall v. Kirby (120 Mich., 592).
However, as nothing of a dishonest nature was claimed or shown to
have been done by Sayer, the committee decided:
We do not believe that a committee of this House, looking for the
truth to determine who in fact was elected by the voters, should, on
account of this irregularity, disfranchise the electors of this
township. No question is made but that the ballots cast in this
precinct were cast by legal voters and in good faith. Nor is it claimed
that the contestee received a single vote more than was intended to be
cast for him, or that the contestant lost a single vote. We do not
believe that the facts warrant the rejection of the entire poll of this
township, nor does the law as practiced in almost every jurisdiction
warrant such a result. McCreary on Elections, section 488, says:
``The power to reject an entire poll is certainly a dangerous power,
and, though it belongs to whatever tribunal has jurisdiction to pass
upon the merits of a contested-election case, it should be exercised
only in an extreme case; that is to say, where it is impossible to
ascertain with reasonable certainty the true vote.''
Paine on Elections, section 497, says:
``Ignorance, inadvertence, mistake, or even intentional wrong on the
part of the local officers should not be permitted to disfranchise a
district.''
Section 498 says:
``The rules prescribed by the law for conducting an election are
designed chiefly to afford an opportunity for the free and fair
exercise of the elective franchise, to prevent illegal votes, and to
ascertain with certainty the result.
``The departure from the mode prescribed will not vitiate an
election, if the irregularity does not deprive any legal voter of his
vote, or admit an illegal vote, or cast uncertainty on the result and
has not been occasioned by the agency of a party seeking to derive a
benefit from them.
``Power to throw out the vote of an entire precinct should be
exercised only under circumstances which demonstrate beyond a
reasonable doubt that there has been such a disregard of law or such
fraud that it is impossible to determine what votes were lawful or
unlawful, or to arrive at any result whatever, or whether a great body
of voters have been prevented from exercising their rights by violence
or intimidation. (Case of Daley v. Petroff, 10 Philadelphia Rep., 389.)
``There is nothing which will justify the striking out of an entire
division but an inability to decipher the returns or a showing that not
a single legal vote was polled or that no election was legally held.
(In Chadwick v. Melvin, Bright's Election cases, 489.)
``Nothing short of an impossibility of ascertaining for whom the
majority of votes were given ought to vacate an election, especially if
by such decision the people must, on account of their distant and
dispersed situation, necessarily go unrepresented for a long period of
time. (McCreary on Elections, 489.)
``If there has been a fair vote and an honest count, the election is
not to be declared void because the force conducting it were not duly
chosen or sworn or qualified.''
In the second ward of the city of Charlotte, Eaton County, it was
charged that one John C. Nichols, who was at the time a candidate for
circuit court commissioner was asked to assist during the illness of
one of the election inspectors, and deposited some ballots in the box.
Section 3612 of the Michigan Compiled Laws of 1897 provides that no
person shall act as inspector who is a candidate for office at such
election. The contestant
Sec. 92
claimed that under the decision of the Supreme Court of Michigan,
passing upon a similar case, the entire vote of this ward should be
rejected.
The committee, however, say:
It is contended by the contestant that the Supreme Court of Michigan
upon the points involved ought to be followed by Congress, and that it
is against the settled doctrine of both Congress and the Federal
judiciary to disregard the decisions of State tribunal in construing
their own laws. The position can not be successfully maintained. Where
a line of decisions have been made by the judiciary of a State and
those decisions have become a rule of property, the Federal judiciary
will follow them; but the rule is different as to all other cases. In
the ease of the Township of Pine Grove v. Talcott (19 Wall., 666), the
Supreme Court of the United States in passing upon the validity of a
Michigan statute says:
``It is insisted that the invalidity of the statute has been
determined by two judgments of the Supreme Court of Michigan and that
we are bound to follow these adjudications.
``With all due respect to the eminent tribunal by which these
judgments were pronounced, we must be permitted to say that they axe
not satisfactory to our minds. The question before us belongs to the
domain of general jurisprudence. In this class of cases this court is
not bound by the judgment of the courts of States where the cases
arise; it must hear and determine for itself. It must be conceded that
in matters not local in their nature the Supreme Court of the United
States has uniformly held that the decisions of the State courts were
not binding upon it. (Swift v. Tyson, 16 Pet., 1-18.)''
A cogent reason why Congress should not be bound by decisions of
State tribunals with regard to election laws, unless such decisions are
founded upon sound principles and comport with reason and justice, is
that every State election law is made a Federal law by the Constitution
of the United States, where Congress has failed to enact laws on that
subject. To say that Congress shall be bound absolutely by the
adjudication of the State courts on the subject of the election of its
own Members, is inimical to the soundest principles of national unity.
If a State legislature should pass a law unreasonable and unjust in its
terms, and the State courts should uphold such unreasonable and unjust
law, should Congress be bound by such law or adjudication? To say that
it should would be subversive of the constitutional provision that each
House shall be the judge of the election, qualifications, and returns
of its own Members.
The House in deciding upon a Federal election case acts in the
capacity of a court, and it should not be bound by decisions of the
State courts unless the reasons given by them are not only convincing
but sound. There was cast in the second ward, city of Charlotte, county
of Eaton, 300 votes for the office of Representative in Congress. By a
fair preponderance of the evidence it is shown that John C. Nichols did
not handle more than 7 ballots; no question was made as to the honesty
and bona fides of the voters who cast the 300 ballots for
Representative in Congress. So far as the evidence discloses, every
ballot was cast by a qualified elector. To cast out this entire poll
and disfranchise 300 electors, every one of whom intended to and did
honestly vote for some one of the candidates for Congress, does not, in
our opinion, comport with the precedents firmly established by this
House. In the absence of any proof of misconduct or fraud on the part
of the election inspectors, or on the part of John C. Nichols, to
nullify the poll of this ward, would not be in keeping with the
precedents of the House. We believe that the entire poll should be
counted as cast and canvassed in accordance with the canvass made by
the supervisors of elections. The very most that your committee
believes that the contestant can claim is that the 7 ballots alone
might be purged from the poll. To go beyond this, in our opinion, would
be to do violence to the expressed will of the public.
92. The case of Carney v. Smith, continued.
Mistakes of election officials, neither operating to change the
result nor accompanied by fraud, do not warrant rejection of the poll.
Error of election officer in removing initials properly affixed as
required by law does not invalidate ballot.
Sec. 92
Opening of the ballot box in violation of law and swearing in of
unauthorized clerks held, in the absence of fraud, not to vitiate the
vote.
Illegal votes should be deducted from the total vote in proportion to
the entire vote returned for each candidate.
In Carmel Township, of Eaton County, it is alleged that as the voting
proceeded the ballot became full and the election officers thereupon
unlocked the box and poured the ballots out upon a table. They reclosed
the box and continued to receive ballots and deposit them in the box.
Also that two outsiders were called in and sworn as extra clerks. That
these two clerks sorted the ballots which had been poured out on the
table, placing the straight Democratic votes in one pile, the straight
Republican votes in another pile, and the split votes in a third pile.
Section 3618 of the Michigan Compiled Laws of 1897 provides:
That the box shall not be opened during the election except as
provided by law in case of adjournments.
In view of this provision the contestant contends, first, that the
opening of the box before the closing of the polls vitiated the entire
poll; second, that the tally by two persons not members of the board
violated the secrecy and integrity of the ballot of the voter and
therefore vitiated the entire poll.
The committee decide as to the first proposition:
As to the first proposition: It was very unfortunate that the
election inspectors did not procure another box in which to deposit the
ballots after the ballot box furnished them by the proper authorities
had become filled, yet there is no law of Michigan providing for the
use of a second ballot box. The contingency seems to have been wholly
overlooked by the State legislature. Had they adopted this course and
procured another box no doubt complaint would have been made that this
would vitiate the entire poll, because there was no law permitting the
use of a second ballot box. The judges of the election were confronted
by a condition; they were compelled to adopt some means for the conduct
of the election during the remainder of the afternoon, and while some
other method might have been less objectionable as the one adopted, yet
in the absence of any showing of fraud we do not believe that the whole
poll should be cast out for the fact that the ballot box was opened and
emptied of its contents before the time prescribed by law.
As to the second proposition:
As to the second proposition. The two clerks did not leave the voting
place until after 5 o'clock; the ballots were separated, the straight
tickets and split tickets being placed in separate piles. There was no
evidence to show that any voter had access to any of the ballots. The
only information that voters might receive in passing by the table
would be the announcement of a name by an inspector. It is not shown
that any voter saw either of the tally sheets kept by the clerks. While
this was an irregularity that should not be encouraged, your committee
does not believe that it destroys the secrecy or integrity of the
ballot.
In Windsor Township of Eaton County, it was discovered that the
ballots were not initialed by the election officials.
Section 3640 of the Michigan Compiled Laws of 1897 provides:
No ballot shall be distributed by any person other than one of the
inspectors of election, nor in any place except within the railing of
the voting room, to electors about to vote, and no ballot which has not
the initials of a member of the board of election written by such
member on the back thereof shall be placed in the ballot box.
Sec. 92
On this point the report cites the opinion of the Supreme Court of
the State of Michigan in the case of The People v. Avery (102 Mich.
572):
We have frequently held that the electors are not to be deprived of
their votes by mere mistakes of their election officers when such
mistakes do not indicate that the result has been changed thereby, and
many things may occur that can be treated as irregularities.
The report continues:
It must be borne in mind that the acts complained of was the mistake
on the part of the supervisor in initializing the ballots and no act on
the part of the electors.
In Loranger v. Navarre (102 Mich., 259) we find this language:
``The voter finding the ticket upon the official ballot is not
required to determine its regularity at his peril. This might involve a
necessary knowledge of facts difficult to ascertain. He may safely rely
upon the action of the officers of the law, whom he has a right to
suppose have done their duty.''
In The People v. Avery (102 Mich., 572) this principle is laid down:
``The electors are not to be deprived of the result of their votes at
an election by the mistake of election officers when it does not appear
to have changed the result.''
The committee, therefore, deduce that acts done by the elector are
mandatory, while those by the inspector are directory, and quote
supporting citations from McCreary on Elections, from Paine on
Elections, and the decision of the Michigan court in the case of People
v. Rinehaxt, and conclude:
The committee having under consideration the questions involved make
these observations: The voter is not to be deprived of his right and
the citizens are not to lose the result of an election fairly held
because of some important omission of form or of the neglect or
carelessness or ignorance on the part of some election officers or the
failure to carry out some important direction of the law.
In the case of Cox v. Straight, volume 2 Hinds' Precedents, 142, the
House unanimously held that irregularities unaccompanied by fraud did
not vitiate the returns. Now, let us apply these salutary rules to the
case in hand. The proper inspector initialed the ballots above instead
of below the perforated line. The ballot was given to the voter, who
marked the same, returned it to the proper inspector, who, on receiving
the ballot, would determine that the ballot was initialed by the proper
inspector. By this procedure no spurious ballot could have been placed
in the ballot box and no fraud could have occurred. The record does not
disclose that either the electors or the inspectors knew any mistake
had been made in the initialing of the ballots. The ballots were voted
and counted without their validity being questioned. There is nothing
to indicate that the inspector who marked them, or the elector who
voted them, discovered they were not properly marked or that there was
any wrong intended by anyone in connection with the transaction, nor
could it be told for whom any individual elector voted. Under such a
state of facts, should the electors voting these tickets be
disfranchised? How could such a transaction destroy the integrity or
secrecy of the ballot? Your committee feels impelled to follow the
reasoning of a long line of decisions of the Supreme Court of Michigan,
and the conclusion reached in the Homing ease, than to adopt the more
recent rule enunciated in the Rinehart case, and in so doing hold that
there was nothing shown by the contestant to vitiate the poll in this
township.
In the second precinct, second ward of Battle Creek, Calhoun County,
the election officials in making up the statement sheets showing the
results of the election omitted to credit the candidates with the
number of straight votes each candidate had received, and gave the
candidates from governor down credit only for the number of votes each
had received upon the split tickets. The result showed that contestant
had received 23 votes and the contestee 31 votes. The error being
discovered, the board of county canvassers caused the ballot box to be
brought before them on November 13, aud corrected the returns, adding
to the 31 votes already
Sec. 92
recorded for Smith 66 straight votes, making a total of 97; and to the
23 already recorded for Carney, 38 votes, making a total of 61.
The contestant complains that the action of the county board of
canvassers and supervisors of the election, in changing the final
returns, was in violation of the provisions of the law; that the board
of county canvassers were obliged to canvass the vote according to the
returns made by the inspectors on the night of the election; and that
the board of election inspectors had no authority to reconvene and
correct the returns. By the express terms of section 3665, Michigan
Compiled Laws, 1897, the board of county canvassers are given, if they
find a mistake has been made, power to correct the returns. The
committee accordingly find:
It might well be said that the mistake that was made in this ward,
being apparent from the face of the papers, from the fact that the
presidential electors had received a vote largely in excess of the
candidates from the governor down, was merely clerical, and that the
board, from the evidence before them, had a perfect right to correct
the returns, but in order to reach a proper conclusion it is not
necessary for us to so hold.
The decision in the case of Roemer v. Canvassers (90 Mich., 27) was
made on the 22d day of January, 1892. Subsequently the legislature of
the State enacted paragraph 239 of the Compiled Laws of Michigan, 1897,
expressly granting to the board of county canvassers the right to call
before them the proper witnesses and correct any mistake that was
manifest upon the face of the returns.
The statute above quoted gives to the board of county canvassers and
the board of election inspectors absolute authority and power to do
precisely what they did in this case. It was not shown, and in fact not
even claimed, that John M. C. Smith was not credited with every vote
that he received in this ward or that the contestant, Claude S. Carney,
was not credited with every vote that he received. To vitiate this
entire poll on account of the things complained of by the contestant,
when such acts were expressly authorized by the statutes of Michigan,
and, in the face of the fact that no fraud actually or constructively
existed, would be repugnant to our ideas of right and justice.
In conclusion the committee summarizes:
It is well settled by the precedents of the House that illegal votes
in any poll should be taken from the total vote of the poll
proportionately according to the entire vote returned for each
candidate. The record does not disclose the votes that were cast for
each of the congressional candidates in the precincts where we have
found illegal votes, and for that reason and the further reason that it
does not affect the result, we have apportioned these illegal votes
between the contestant and the contestee in proportion to the votes
that each received in the several precincts.
Deducting Mr. Smith's loss from Mr. Carney's loss makes a gain of 7
votes for Mr. Smith, which added to Smith's plurality, conceded to be
116 votes upon the face of the returns after making the correction for
the township of Climax, county of Kalamazoo, would give Mr. Smith a
majority of 123 votes.
Your committee, therefore, offers for adoption the following
resolutions:
``Resolved, That Claude S. Carney was not elected as a Representative
to the Sixty-third Congress from the third congressional district of
Michigan; and
``Resolved, That John M. C. Smith was duly elected as a
Representative from the third congressional district of Michigan to the
Sixty-third Congress, and is entitled to retain the seat which he now
occupies in this House.''
On February 6, 1914,\1\ the resolutions recommended by the committee
were unanimously agreed to without debate or division.
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\1\ Journal, p. 195, Record, p. 3050; Moores' Digest, p. 73.
Sec. 93
93. The Michigan election case of MacDonald v. Young in the Sixty-
third Congress.
Irregularity of nomination does not prejudice claimant's case in the
House. It is sufficient if the candidate's name was duly certified as
required by law and printed on the ballot at the November election.
Irregularity in the manner of nomination should be tested in the
courts and under the laws of the State and is not considered by the
House.
The House is not bound to take cognizance of the manner of
nomination, unless fraudulent methods appear to have thwarted the will
of the electorate.
On August 22, 1913,\1\ Mr. James D. Post, of Ohio, from the Committee
on Elections No. 1, submitted the report in the Michigan case of
William. J. MacDonald v. H. Olin Young.
The report embodies a sufficient statement of the facts in the case:
The case arises out of the election held on the 5th day of November,
1912, for the election of presidential electors and public officers,
including a Representative to Congress from the twelfth district of the
State of Michigan.
This district is composed of counties and occupies what is generally
known as the Upper Peninsula of the State.
At the election there were four candidates, the contestant, William
J. MacDonald, being the candidate upon the National Progressive ticket,
and the contestee, Hon. H. Olin Young, was the candidate of the
Republican Party for the office of Representative in Congress. In 14 of
the counties Mr. MacDonald received 17,975 votes. In one of the
counties, Ontonagon, his name appeared upon the ballot as Sheldon
William J. MacDonald, and under such designation, he received 458
votes, making a total in the 15 counties of 18,433. Mr. Young received
18,190. The State board of canvassers, composed of the secretary of
state, treasurer of state, and commissioner of the land office,
canvassed the returns of the district, allowing the contestant 17,975
in the 14 counties and canvassed the vote for Ontonagon County under
the name of Sheldon William J. McDonald, thus giving to the contestee
upon the face of the returns a plurality of 215 votes, and on the 10th
day of December, 1912, issued to him his certificate of election. When
the Congress convened in extraordinary session at the beginning of the
Sixty-third Congress Mr. Young appeared at the bar of the House, took
the oath of office, and served as a Member until the 10th day of May,
1913, when he resigned his seat.
It was generally understood in the district that the contestant had
been elected until the 10th day of December, when the State board of
canvassers issued the certificate of election to Mr. Young.
When Congress convened in extraordinary session at the beginning of
the Sixty-third Congress, Mr. William H. Hinebaugh, of Illinois,
objected to the swearing in of Mr. Young and offered a resolution \2\
providing for the appointment by the Speaker of a select committee to
investigate and report upon his right to a seat in the House. A
substitute offered by Mr. John J. Fitzgerald, of New York, directing
the administration of the oath forthwith was agreed to and Mr. Young
was sworn in.
On May 10, 1913,\3\ on motion of Mr. James R. Mann, of Illinois, by
unanimous consent, Mr. Young was granted an hour in which to discuss
the case, and at the
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\1\ First session Sixty-third Congress; House Report No. 60; Record,
p. 2640.
\2\ Journal, p. 249; Record, p. 65.
\3\ Record, p. 1479.
Sec. 93
conclusion of his speech announced that he had forwarded to the
governor his resignation \1\ as a Member of the House.
The contestee both in his answer and in debate in the House admitted
the facts as set forth in the contestant's notice of contest, but
charged irregularity in the nomination of the contestant through
noncompliance with the primary laws of the State of Michigan, and
submitted that votes cast for Sheldon William J. MacDonald could not be
canvassed or counted for the contestant, as no evidence was admissible
under the election laws of the State of Michigan to determine the
intention of the voter.
Following the contestee's resignation the committee took evidence and
heard arguments.
On the question of irregularity of nomination the committee found:
Whether the nomination of Rogers was regular and in conformity with
the primary act, or whether the congressional committee was regularly
formed, we do not deem fatal to contestant's claim to a seat. It is
sufficient to say that the contestant's name was duly certified as
required by the general laws of the State of Michigan to the election
boards of the several counties, and by them printed upon the official
ballot for the use of the voters at the November election. This
certification took place as early as the 11th day of October, and the
certificate was made a matter of public record in each county in the
district. No objections were made in any county in the district by Mr.
Young, any elector of the district, any officer of any political party,
or by any of the election officials to the manner in which Mr. Rogers,
or Mr. MacDonald had been nominated, until four days prior to the 5th
day of November, the date of the general election. The contestee, who
was more vitally interested than any other person, by telegram to all
of the boards of election commissioners in the district requested that
Mr. MacDonald's name remain upon the ballots as they were printed and
in his circular invoked the rule of the people. His desires in this
regard were respected by the election officials in every voting
precinct in the district, with the exception as shown by evidence, in
one voting precinct the election officers pasted blank paper over the
name of the contestant, thus depriving him of the Progressive votes in
that precinct.
The primary act provides that any candidate, feeling aggrieved on
account of fraud or error by the board of primary election inspectors,
or in the count of the votes cast, or returns made by the board, may
file a petition to correct any error or fraud complained of, and that
the board of election inspectors may correct any fraud practiced, or
irregularity in the election. This is a remedial statute and if the
manner of the nomination of Joseph M. Rogers was irregular or
fraudulent, its provisions should have been invoked at the proper time.
In addition to this your committee finds that the courts of the State
of Michigan had the inherent right and power if the name of William J.
MacDonald was not entitled to be printed upon the ballots for the use
of the voters at the general election, to have corrected such
irregularity, and that recourse should have been had to the courts if
complaint was to be made prior to the existence of the right of
suffrage by the electors of the district.
The committee further found:
It is not claimed that the nomination of Rogers, his resignation, and
the filling of the vacancy with the name of the contestant, or with the
formation of the congressional committee who selected the contestant to
fill the vacancy caused by Rogers, were fraudulent. It is only
contended that it was irregular and not in strict conformity to the
primary act of the State of Michigan. By a long line of unquestioned
precedents established by the House it is not bound to take cognizance
of the manner in which a candidate for Congress is nominated, unless
the methods employed are unfair or fraudulent and have resulted in
thwarting the will of the electorate. Objections made by the contestee
to the manner and form of the nomination of the contestant am highly
technical,
-----------------------------------------------------------------------
\1\ Journal, p. 150; Record, p. 1569.
Sec. 94
and if enforced by the House would result in the disfranchisement of
not only the 458 votes cast in Ontonagon County, but of the 17,975
votes cast in the remainder of the district.
We believe that if the contestee or any elector in the district were
dissatisfied with the manner in which contestant's name appeared upon
the official ballot such dissatisfaction should have been exemplified
prior to the general November election; that it would be exceedingly
unfair and inequitable to wait until after the voters had made their
choice between the candidates, and if not then satisfactory, to urge
objections. But we believe the nomination of Rogers and the formation
of the congressional committee were regular and legal under the
provisions of the primary act
94. The case of MacDonald v. Young, continued.
Enrollment as a member of one party does not preclude election by
another.
In determining an election case the House is not limited to the
powers of a court of law but possesses all the functions of a court of
equity.
The House may go behind the ballot to ascertain the intention of the
voter, State statutes to the contrary notwithstanding.
Where clearly demonstrated that voters were misled by typographical
errors in the ballot, the intention of the voter was taken into
consideration by the House.
While not obliged to consider any issue not specifically raised in
the pleadings, the House may do so if the integrity of the election
appears thereby to be conserved.
The House has the undoubted right to refuse to seat a person
violating the corrupt practices act or practicing methods in any other
way violative of law.
Violations of laws merely directory, as failure to comply with
technical requirements within time specified, while subject to extreme
penalties, may be disregarded by the House under extenuating
circumstances.
Failure to file with the Clerk of the House before and after election
affidavits required by law held not to justify vacating seat.
Sitting Member having resigned, the House did not regard it necessary
formally to pass upon the question of his election.
Application of the corrupt practices act.
As to election by one party while enrolled with another:
The contention that votes cast for the contestant because at the time
of the primary election and at the time of the general election he was
enrolled as a Republican can not be counted for him is wholly
untenable. No evidence whatever was introduced even tending to show
that the persons who voted for him were not qualified electors of the
district. So far as the evidence discloses the election was fair and
honest, and the votes cast were by honest electors, and the election
was regularly and legally conducted. The claim that he was disqualified
from receiving votes upon the National Progressive ticket when he was
enrolled as a Republican imposes a qualification upon a Member of
Congress not sanctioned by the Constitution of the United States or by
the constitution of the State of Michigan.
Section 5, Article I, of the Federal Constitution provides that the
House shall be the judge of the election returns and qualifications of
its own Members.
Section 2, Article I, provides that the electors in each State shall
have the qualifications requisite for electors of the most numerous
branch of the State legislature; and that a Member of Congress shall be
25 years of age, 7 years a citizen of the United States, and an
inhabitant of the State in which he shall be chosen. The constitution
of Michigan, article 6, section 1, provides
Sec. 94
that in all elections every male inhabitant of the State a citizen of
the United States, 21 years of age, a resident of the State for 6
months, the township or ward for 20 days, shall be an elector and
entitled to vote.
Section 5, article 5, of the constitution of the State of Michigan
provides that the qualifications of a representative to the State
legislature are that he shall be a citizen of the United States and a
qualified elector of the district he represents.
As the contestant at the time of the general November election, 1912,
possessed all the qualifications required by the Constitution of the
United States and the constitution of the State of Michigan, to
superadd a new qualification would be to deny to the House the right to
be the judge of the qualifications, election and returns of its
Members.
The provisions in the primary act to the effect that votes cast for a
person not enrolled as a member of the party casting such votes are
applicable only to the primary election held in accordance with the
terms of its provisions, and if its provisions relate to the general
November election it superadds a qualification to those embraced in the
Constitution of the United States. Mr. Justice Story, in his
Commentaries, volume 2, page 101, lays down the doctrine ``that the
States can exercise no powers whatsoever which exclusively spring out
of the existence of the National Government which the Constitution does
not delegate to them.
``They have just as much right, and no more, to prescribe new
qualifications for a Representative as they have for a President. Each
is an officer of the Union, deriving his powers and qualifications from
the Constitution, and neither created by, dependent upon, nor
controllable by States.''
If the ballots cast for him at the election were void, it could only
be so upon the theory that by the statutory and adjudged law of the
State he was ineligible to receive votes cast by Progressive electors
and ineligible to be a candidate for the office, because enrolled as a
Republican. In other words, it was contended such enrollment
disqualified him from receiving votes on Progressive ballots, and for
that reason 18,443 votes of the district should be disfranchised. Such
a contention is unsound. If the laws of the State of Michigan lead to
such results, then it is absolutely certain that they superadd a
qualification to a Member of Congress not contemplated by the Federal
or State Constitutions.
In this connection the committee define the constitutional powers of
the House in the adjudication of election cases:
``It being conceded that the votes cast for the contestant were cast
by honest voters and qualified electors of the district, and such votes
were intended to be cast for the contestant, then the case should not
be decided upon any technicalities arising in the manner or form in
which he was nominated. The House should not confine itself to such
narrow limits. It possesses the power of a court, having full
jurisdiction to try the question, Who was elected? and is not limited
to the powers of a court of law, but clearly possesses all the
functions of a court of equity, which, in a forum governed by broad
equitable rules, would justify a verdict in my favor.'' The committee
unanimously concur with contestee in these views.
The powers of the House in this respect when in conflict with State
laws:
(4) The 458 votes cast for the contestant in Ontonagon County should
be counted for him. The evidence is uncontradicted that the word
``Sheldon'' was placed before his name in that county through a mistake
pure and simple. The recipient of the telegram from the secretary of
the National Progressive committee to the clerk of the board of
election commissioners misinterpreted the telegraphic characters for
the word ``spelled'' to mean the word ``Sheldon,'' and in transcribing
the name made it Sheldon William J. McDonald. This fact is conceded by
all. Is the House powerless to correct this mistake? Notwithstanding
the fact that it is the settled law of the State of Michigan that the
intention of the voter can be determined only from the face of the
ballot, the House can go behind the ballot to ascertain the intention
of the voter; it may consider the circumstances surrounding the
election; it can determine who were the candidates; whether there were
other persons of the same name residing in the district who were
candidates; whether the ballot was printed perfectly or imperfectly;
and if imperfectly, how it came to be so printed.
Sec. 94
Knowing how the word ``Sheldon'' became prefixed upon the printed
ballot before the name of the contestant, and it being conceded that
458 of such ballots were intended for him, it would be eminently unjust
or unfair not to grant him the benefit of such votes.
The contestee did not raise the issue of the contestant's failure to
comply with the statutory requirements in the filing of statements of
campaign contributions and expenses, but the subject was strongly
stressed by others in debate in the House and during the hearings
before the committee.
Accordingly the committee in their report unanimously agree:
Evidence was taken showing that the contestant failed to file with
the Clerk of the House, as provided by law, prior to the general
election held on November 5, 1912, an affidavit setting forth the
source or sources of moneys contributed to his campaign fund, and also
failed to file, as provided by law, an affidavit touching election
contributions and expenses within 30 days following the general
election.
No issue was made in the pleadings upon this subject, and the
precedents are numerous to the effect that no issue having been raised
upon it the committee is not bound to give the subject consideration.
However, your committee feel that in the investigation of a contested-
election case where facts are disclosed that might have a bearing upon
the right of a Member to his seat, whether these facts be advanced by
any of the parties to the controversy or not, it is proper for the
committee to investigate the same and to come to some conclusion
thereon. Moreover, it is important that the House take full notice of
the compliance with the law looking to the purification of elections.
In view of this, your committee has given full consideration to the
question raised.
The correctness of these statements touching the facts has not been
questioned. Your committee finds, however, that on the 21st day of
April, 1913, contestant filed an affidavit with the Clerk of the House
showing that he had incurred no election expenses required by law to be
reported subsequent to the filing of his statement before the election
on October 26, 1912. Contestant also filed an affidavit with the Clerk
of the House on April 24, 1913, setting forth that during the month of
October, 1912, he received a contribution to his campaign fund in the
amount of $300 through George P. Shiras on behalf of the National
Progressive Party.
The House has repeatedly affirmed its right to consider the
eligibility of a person presenting himself as a Member elect to the
House of Representatives from the standpoint of the manner in which his
campaign for election has been conducted under the corrupt practices
acts, and the House has the undoubted right to refuse to seat a person
presenting himself for membership for violation of the law.
In this case, however, it does not appear that the failure of
contestant to comply with the law was willful or on account of ulterior
purposes. The money contributed was not an unreasonable amount and was
from a source that was legitimate, and the failure of contestant to
file an affidavit within 30 days following the election, as is provided
by law, when, as a matter of fact, no expenses had been incurred
subsequent to the affidavit filed on October 26, 1912, can not have
been to avoid the disclosure that such an affidavit might reveal. The
delinquency of contestant lies solely in his failure to comply with the
law within the time required.
In view of this the committee feels that while the Congress must
retain the principle of reserving to itself the right to seat, or
refuse to seat, a person presenting himself as a Member elect, on
account of his conduct in attaining his election, in this instance the
failure to comply with the law, as has been disclosed, carries with it
nothing of opprobium, and your committee can not recommend that
contestant be denied his seat on account of his failure to comply with
the technical provisions of the law.
In conclusion the committee recommend:
We can not fail to recognize the frank and honorable manner in which
Hon. H. Olin Young has conducted himself with relation to the pending
contest, nor fail to approve his candor in reaching a conclusion
touching the question of his own election which prompted him to tender
his resignation to the House of Representatives on May 10, 1913. In
view of this waiver of any rights that contestee may have had in the
contest, the committee does not regard it necessary to present
Sec. 95
for the consideration of the House a separate resolution bearing upon
the question of the election of Mr. Young.
The committee, therefore, offers for adoption the following
resolution:
``Resolved, That William J. MacDonald was duly elected a
Representative from the twelfth congressional district of Michigan to
the Sixty-third Congress and is entitled to a seat therein.''
The report was debated at length on August 26, 1913,\1\ when the
House unanimously agreed to the resolution.
Thereupon Mr. MacDonald appeared and took the oath.
95. The North Carolina election case of Britt v. Weaver in the Sixty-
fifth Congress.
Discussion of the distinction between directory and mandatory
election laws.
Instance wherein the House overruled the report of the majority of
the elections committee.
Committee resolutions based on the counting of ballots failing to
comply with statutory requirements were rejected by the House.
On February 21, 1919,\2\ Mr. Walter A. Watson, of Virginia, from the
Committee on Elections No. 3, submitted the report of the majority of
the committee in the North Carolina case of James J. Britt v. Zebulon
Weaver.
The majority and minority reports in this case differ sharply as to
what is the real question at issue.
The majority report that the official returns in the case were:
Weaver................................................................................................. 18,023
Britt.................................................................................................. 18,014
--------
Majority......................................................................................... 9
The contestant claims that if properly ascertained they would have
been:
Britt.................................................................................................. 18,008
Weaver................................................................................................. 17,995
--------
Majority......................................................................................... 13
and that the difference is occasioned by the counting or the failure to
count certain ballots not marked in accordance with directions of the
State law. The disposition of these ballots, the majority contend is
the one decisive issue in the case.
The minority do not agree with this statement of the issue. According
to the minority views submitted by Mr. Cassius C. Dowell, of Iowa, the
county boards met in each of the 13 counties of the district November
9, 1916, and the vote was on that date counted and certified in each
county, with the single exception of Buncombe County. The returns as
certified in the 12 counties other than Buncombe gave the contestant
13,971 votes and the contestee 13,670. In Buncombe County, according to
the minority views, the original returns gave the contestant 4,037
votes and the contestee 4,325, aggregating a total return for the
district of 18,008 votes for the contestant and 17,995 votes for the
contestee, a majority of 13 voters in favor of the contestant.
-----------------------------------------------------------------------
\1\ Journal p. 253; Record, p. 3780; Moores' Digest, p. 63.
\2\ Third session Sixty-fifth Congress, House Report No. 1115,
Record, p. 3936.
Sec. 95
The minority claim, however, that when the canvassing board of
Buncombe County met on November 9, instead of completing its work as in
the other counties of the district, it adjourned from time to time
until November 17, when amended and supplemental returns were brought
in from five precincts in Buncombe County, which were secured by adding
to the official returns from the five precincts certain ballots not
marked in accordance with the directions of the State law. These
unmarked ballots, the minority allege, were originally rejected but
later counted for the purpose of overcoming the 13 majority which had
been received by the contestant in the district. The question at issue,
then, as propounded by the minority is whether or not the evidence in
the case is sufficient to overcome the original returns.
The State law of North Carolina referred to by both majority and
minority follows:
That opposite the name of each candidate on the general ticket to be
voted at the general election shall be a small square, and a vote for
any candidate shall be indicated by making a cross mark thus (X) in
such square, and no voter shall vote for more than one candidate for
any office; but there shall also be a large circle opposite the names
of each party's candidates on each ticket and printed instructions on
said ticket that a vote in such large circle will be a vote for each
and all of the candidates for the various offices of the political
party the names of whose candidates are opposite said large circle; and
if a voter at the general election indicates by a cross mark in such
large circle his purpose to vote the straight or entire ticket of any
particular party, his vote shall be counted for all the candidates of
such party for the offices for which they are candidates, respectively,
as indicated on such ticket.
The congressional ballots distributed under the law and used at the
election were in the following form:
For the Democratic Party:
DEMOCRATIC CONGRESSIONAL BALLOT.
(To vote this ticket make a cross mark (X) in the square.)
For Representative in 65th Congress,
Tenth District,
{time} Zebulon Weaver.
For the Republican Party:
REPUBLICAN CONGRESSIONAL BALLOT.
(To vote this ticket make a cross (X) in the square.)
For Representative in 65th Congress,
Tenth District.
{time} James J. Britt.
The evidence tends to show that some 90 electors cast their ballots
in the election without marking a cross in the square opposite the
candidate's name as provided by the statute. The decision of the case
lies in the acceptance or rejection of these ballots. A majority of
them apparently were cast for the sitting Member, and if they are
counted his majority is conclusive; if rejected, the majority is
transferred to the contestant. The acceptance or rejection of the
ballots turns upon the construction of the section of the statute
quoted. If mandatory, the failure of the voter to place a mark in the
square would invalidate the ballot; if merely directory, his failure to
follow the statute would not deprive him of his vote.
Sec. 95
The majority thus discuss the distinction between mandatory and
directory election laws:
It is hard to lay down any precise rule of construction so as to
determine in every case what provisions of a statute are mandatory and
which directory; but it is easy to gather from the legal text writers
and from court decision what the general principle is applicable to the
case in hand.
Judge Cooley's rule:
``Those directions which are not of the essence of the thing to be
done, but which are given with a view merely to the proper, orderly,
and prompt conduct of the business, and by a failure to obey which the
rights of those interested will not be prejudiced, are not commonly to
be regarded as mandatory; and if the act is performed, but not in the
time or in the precise mode indicated, it may still be sufficient, if
that which is done accomplishes the substantial purpose of the statute.
(Constitutional limitations, p. 113, and the following cases from State
courts; Odiorne v. Rand, 59 N. H., 504; Pond v. Negus, 3 Mass. 230;
Holland v. Osgood, 8 Vt., 275; Colt v. Eves, 12 Conn., 243; People v.
Hartwell, 12 Mich., 508; Edmonds v. James, 13 Tax., 52; People v.
Tompkins, 64 N. Y., 53; State v. Balti. Comrs., 29 Md., 516; Fry v.
Booth, 19 Ohio, 25; Slayton v. Halings, 7 Ind., 144.)''
And relative to the construction of election laws in particular, the
same author says:
``Every ballot should be complete in itself and ought not to require
extrinsic evidence to enable the election officers 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 not required in any case.
The cardinal rule is to give effect to the intention of the voter,
wherever it is not left in uncertainty, etc. * * * A great
constitutional privilege--the highest under the Government--is not to
be taken away on a mere technicality, but the most liberal intendment
should be made in support of the elector's action wherever the
application of the common-sense rules which are applied in other cases
will enable us to understand and render it effective. (Idem, pp. 914
and 920.)''
McCrary, some time a representative from Iowa and a leading authority
on election cases, laid down this rule:
``The language of the statute construed must be consulted and
followed. If the statute expressly declares any part of an act to be
essential to the validity of the election, or that its omission shall
render an election void, all courts whose duty it is to enforce such
statutes must so hold, whether the particular act in question goes to
the merits, or affects the result of the election, or not. Such a
statute is imperative, and all considerations touching its policy or
impolicy must be addressed to the legislature. But if, as in most
cases, the state simply provides that certain acts or things shall be
done, within a particular time or in a particular manner, and does not
declare that their performance is essential to the validity of the
election, then they will be regarded as mandatory if they do, and
directory if they do not, affect the actual merits of the election. * *
* The principle is that irregularities which do not tend to affect the
results, are not to defeat the will of the majority; the will of the
majority is to be respected even when irregularly expressed. (McCrary
on Elections, pp. 93 and 94; and see to the same effect, Tucker v. Com.
Penn. St. R. 493.)''
``Where the intention of the voter is clear the ballot will not be
rejected for faulty marking by the voter, unless a law undoubtedly
mandatory so prescribes,'' was the rule formulated by Mr. McCall, of
Massachusetts, in a very able report from the Elections Committee and
adopted by the House of Representatives in the case of Yost v. Tucker
in the Fifty-fourth Congress.
``Where the intention of the voter was not in doubt the House in the
case of Moss v. Rhea followed the rule of the Kentucky court and
declined to reject a ballot because not marked strictly within the
square required by the State ballot law.''
In many cases the House has counted ballots rejected by the election
officers under an erroneous construction of the law, and reference may
be made particularly to the case of Sessinghaus v. Frost in the Forty-
seventh Congress where this course was pursued.
The Supreme Court of North Carolina in construing the very statute
under review said:
``If the matter was properly before us and we had jurisdiction to
decide it, we would hold as to the congressional ticket, which has only
one name on it, that all unmarked ballots ought to be
Sec. 95
counted for the respective candidates, because the purpose of the
election is to ascertain the will of the voter, and the marking of the
ballot can only serve a useful purpose in ascertaining this will when
there are more names than one upon the ballot. (See Britt v. Board of
Canvassers, 172 N. C., p. 797.)''
Applying this construction the majority claim:
Applying the foregoing principles then to the question at issue, we
have these facts before us:
The statute nowhere else declares it to be mandatory to mark the
ballot in the square, nor pronounces the ballot invalid if not so
marked; the marking could serve no purpose in indicating the will of
the elector where only one name appeared, as his intention was manifest
upon the face of the ballot itself; and lastly the marking of the
ballot under such circumstances could not, by any stretch of the
imagination, be deemed of the essence of the election or to affect its
validity in any way.
For these reasons, therefore, we have no hesitancy in holding that
section 32 of the North Carolina primary law of 1915 was not mandatory;
but that its provisions were directory only, and that the failure of
the voter to comply therewith did not invalidate his ballot. All the
unmarked ballots properly cast at the election should have been
counted, and it was a mistake of law for the election officers to have
excluded them from their official returns.
The minority oppose this view and contend:
The language of the above provision of the North Carolina statute is
clear, concise, and unequivocal. It is subject to one interpretation,
to wit, that a ballot must be marked. It is similar to the provisions
of the election laws of nearly every State in the Union, and its
purpose is to guard against the very thing which happened in this case,
that while the ballot is made plain and easy in order that everyone,
regardless of his education, may have an equal opportunity to
understand it and vote according to his desires, yet it requires some
affirmative act on the part of the voter to express his intention. This
act was to place a cross mark in the square in front of the name of the
candidate the voter desires to vote for.
The minority of your committee believe that the law of North
Carolina, providing for the manner of voting and the manner of marking
the ballot is mandatory, and that the ballot should have been marked as
provided by this statute, in order to become a legal ballot. This is
the general rule laid down by the courts in construing similar
statutes. And it is our opinion that the unmarked ballots should not be
counted.
We call attention to a few of the cases bearing upon this question.
``Where the law provides that the voter shall indicate the candidates
for whom he desires to vote by stamping the square immediately
preceding their names or in case he desires to vote for all the
candidates of the party, etc.: Held, that this provision is mandatory;
the stamping of the square being the only method prescribed by which
the voter can indicate his choice. Parvin v. Wirnberg (Ind.), 30 N. E.
790.)''
From the opinion of the court in this case, on page 791, we quote:
``The doctrine that it is within the power of the legislature to
prescribe the manner of holding general elections, and to prescribe the
mode in which the electors shall express their choice, is too familiar
to call for the citation of authority. In this instance it has declared
that the mode by which the elector shall express his choice shall be by
stamping certain designated squares on the ballot. There is nothing
unreasonable in the requirement, and it is simple and easily
understood. Furthermore, if he is illiterate or is in doubt, the law
makes ample provision for his aid. If he does not choose to indicate
his choice in the manner prescribed by law, he can not complain if his
ballot is not counted. (Kirk v. Rhoads, 46 Cal. 399.) If we hold this
statute to be directory only and not mandatory, we are left entirely
without any fixed rule by which the officers of election are to be
guided in counting the ballots.''
Under a statute similar to the North Carolina statute, it was held
that a ballot on which the names of candidates were written in, but no
cross mark made after any of the names, can not be counted for any
candidate. (Riley v. Traynor (Col.), 140 Pac. 469.)
After quoting the statute, the court, on page 470 says:
Sec. 96
There can be no mistaking this language. It requires that in order to
designate his choice, the voter must use a cross mark, as the law
requires. In this case, no cross mark was used anywhere with reference
to any of the candidates for the particular office in question, and the
ballots ought not to have been counted.''
Under a similar statute requiring the voter to make a cross
designating his choice of candidates, it has been held that a failure
to comply with this requirement invalidates the ballot. (Vallier v.
Brakke (S. Dak.), 64 N. W. 180, at 184.)
``The law has prescribed the manner in which an elector may arrange
his ticket, and what act he may do to designate the candidates for whom
he desires to vote. His act must correspond with his intention, and
unless it does the vote can not be counted. The system devised is so
simple that a man of sufficient intelligence to know what a circle is,
how to make a cross, and left from right, can find no difficulty in
making up the ticket he desires to vote. He can have no difficulty in
expressing his intention in the manner the law has prescribed. It is
not necessary, therefore, to impose upon judges of election or courts
the duty of ascertaining the intention of the voter, except in the
manner pointed out by the statute, namely, by the marks he has placed
upon the ballot in the manner prescribed by law.''
Following this construction of the law, there can be no other
conclusion but that Contestant Britt was elected and is entitled to his
seat.
The minority reported resolutions declaring Mr. Weaver not entitled
to the seat, and seating contestant, while the majority reported
resolutions declaring the contestant not elected and confirming the
title of the sitting Member.
The case was fully debated in the House on March 1.\1\
At the conclusion of the debate Mr. Dowell offered as a substitute
for the resolution reported by the majority the resolutions recommended
in the minority views. The substitute was agreed to, yeas 182, nays
177, but the usual motion to reconsider offered by Mr. Dowell was
carried by a vote of 180 yeas to 177 nays. The question recurring on
the substitute it was the second time agreed to, yeas 185, nays 183.
The original resolutions as amended by the substitute were then agreed
to, yeas 185, nays 182.
Thereupon Mr. Britt appeared and took the oath.
96. The Massachusetts election case of Tague v. Fitzgerald in the
Sixty-sixth Congress.
The affixing of a sticker bearing a candidate's name was held to
sufficiently indicate the intent of the voter and the House declined to
reject ballots so prepared because not marked with a cross thereafter
as required by the State ballot law.
Discussion as to domicile of voters.
The House declined to count the vote of precincts wherein by
fraudulent registration many disqualified persons had been put on the
voting lists.
The returned Member being unseated by the rejection of fraudulent
ballots, the House seated the contestant.
On October 13, 1919,\2\ Mr. Louis B. Goodall, of Maine, from the
Committee on Elections No. 2, submitted the report of the majority of
the committee in the Massachusetts case of Peter F. Tague v. John F.
Fitzgerald.
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\1\ Journal, p. 272; Record, p. 4777.
\2\ First session Sixty-sixth Congress; House Report No. 375; Record,
p. 6828.
Sec. 96
The facts in the case are sufficiently embodied in the following
excerpt from the majority report:
Contestant and contestee were candidates for the Democratic
nomination for Member of Congress in the primaries in the September
preceding the election. Contestee, on the face of the returns, was
declared to have received the nomination, whereupon contestant
instituted proceedings to have this result reversed, first before the
board of election commissioners of the city of Boston and subsequently
before the ballot-law commission of the State of Massachusetts. The
validity of contestee's nomination was eventually upheld, but the
decision was rendered a few days before election day, too late for
contestant to file an independent petition whereby his name could be
printed upon the ballots to be used in the general election. The method
of voting in Massachusetts is by the voter making a cross after the
name of the candidate of his choice where it appears on the ballot.
Where the name of the voter's choice is not printed on the ballot, he
is permitted to write the name thereon or affix thereto a sticker
bearing the name of his choice and then marking a cross after the name
thus written or affixed. All votes cast for contestant in the election
necessarily were of this character. On the face of the returns
contestee was declared elected by a plurality of 238 votes in a total
number of 15,293 votes cast for Member of Congress in the entire
congressional district.
An incidental question related to the validity of ballots to which
stickers had been affixed, but which the voters had failed to mark with
a cross, as required by the common law and the statutes of the State of
Massachusetts. All members of the committee agreed that the intent of
the voter was sufficiently indicated in the application of the sticker,
notwithstanding the act of voting had not been completed by the making
of a cross thereafter, and all ballots so prepared were counted for the
candidate whose name appeared on the sticker.
Various charges of fraud and irregularities were made by the
contestant which the committee did not consider necessary to discuss,
but the principal question at issue concerned the allegation of
colonization and illegal registration in the fourth, eighth, and ninth
precincts of the fifth ward of the city of Boston.
The laws of the State of Massachusetts did not provide for an annual
personal registration of voters. Names appearing on the registry list
were carried subject to the check of a canvass made by police officers
on the 1st day of April of each year. Information not under oath
furnished the police on this occasion by a member of a household or by
an employee of a hotel or lodging house was sufficient to retain a name
on the registry list.
From the evidence it appeared that lists were sometimes supplied to
the police by clerks of such hotels or lodging houses bearing names of
persons as being domiciled there, who, in fact, were not such residents
and of whom, subsequently, no trace could be found. After an
investigation the majority of the committee reported that fully one-
third of the total number of votes cast in the three precincts at this
election were fraudulent.
The majority cite the rule established by the House in similar cases
to the effect that where precincts or districts are so tainted with
fraud and irregularity that a true count of the votes honestly cast is
impossible, such precincts or districts must be rejected and the
parties to the contest may prove aliunde and receive the benefit of the
votes honestly cast for them.
In conformity with this rule the majority find:
Sec. 96
Rejecting these three precincts, your committee finds that the
contestant, Peter F. Tague, on the face of the returns, without
considering the changes made by the committee in its recount of the
ballots, received a plurality of 316 votes over the contestee, John F.
Fitzgerald. Giving effect to the revision of the count of ballots, your
committee finds that contestant had a plurality of 525.
For the reasons assigned, your committee recommends to the House the
adoption of the following resolutions:
1. That John F. Fitzgerald was not elected a Member of the House of
Representatives from the tenth congressional district of the State of
Massachusetts in this Congress and is not entitled to retain a seat
herein.
2. That Peter F. Tague was duly elected a Member of the House of
Representatives from the tenth congressional district of the State of
Massachusetts in this Congress and is entitled to a seat herein.
This conclusion is combatted vigorously in both minority views
submitted in the case.
Minority views, signed by Messrs. James W. Overstreet, of Georgia,
and John B. Johnston, of New York, submit:
The action of the committee is indefensible for the reason that
hundreds of honest voters are disfranchised on insufficient evidence of
illegal registration, whereas if only a few cases were proven
conclusively the same result could be obtained.
The contestant in his brief practically admitted that he had not
proved his allegation of illegal registration. He claims, however, that
because his unsubstantiated allegations were not answered by the
persons involved he is excused from proving them. This position is
unsound for the reasons:
First. The burden of proof is on the contestant.
Second. There is a presumption that the certified voting lists are
correct and in compliance with the law.
Contestant attacks the right of many persons to vote where listed and
registered in this district, claiming that they have no legal domicile
there.
Every man must have a domicile. It is undisputed that he has a right
to choose his domicile. In the case of men having several homes, they
have the right to choose any one of them as their domicile. In the case
of men moving from place to place, it is clearly their right to choose
their domicile, and the question of domicile is a question of intent.
Ward 5 comprises nearly the entire business section of Boston, with
its great hotels, docks, and wharves, great banks and warehouses, the
two great railroad terminals of Boston, the statehouse, post office,
customhouse, city hall, and the county courts. It has a highly
diversified population in which are represented all of the European
countries, as well as the native Yankee. There are many small hotels
and lodging houses. There are a great many places where men only live
for a short while, and move from place to place. There are many
unfortunate men who are compelled by force of circumstances to live in
these cheap places, but who have the right to a domicile and the right
to vote. These men can not be disfranchised because they happen to live
in a different house or on a different street at election time than
they did at the time they were listed by the police.
In Boston, men, in order to vote at election, must be listed where
they reside the first week of April. If they are so listed they have
the right to vote from such residence if qualified and later
registered. (See see. 14, chap. 835, acts of 1914.)
All of the witnesses stated that they were listed and registered in
ward 5 where they lived and nowhere else. Now, if these men live there
intending that it shall be their domicile, they cannot be listed
elsewhere, and without listing they would not be entitled to vote
elsewhere, and would therefore be disfranchised.
Here is the law on this matter:
``Sec. 69. In Boston there shall be a listing board composed of the
police commissioner of said city and one member of the board of
election commissioners.
Sec. 96
``Sec. 70. The listing board shall, within the first seven week days
of April in each year, by itself or by police officers subject to the
jurisdiction of the police commissioner, visit every building in said
city, and after diligent inquiry make true lists, arranged by streets,
wards, and voting precincts, and containing as nearly as the board can
ascertain, the name, age, occupation, and residence on the first day of
April in the current year, and the residence on the first day of April
in the preceding year, of every male person twenty years of age or
upwards, who is not a pauper in a public institution, residing in said
city. Said board shall designate in such lists all buildings used as
residences by such male persons in their order on the street where they
are located, by giving the number or other definite description of
every such building so that it can be readily identified, and shall
place opposite the number or other description of every such building
the name, age, and occupation of every such male person residing
therein on the first day of April in the current year, and his
residence on the first day of April in the preceding year.
``The board shall place in the lists made by it, opposite the name of
every such male person or woman voter, the name of the inmate, owner or
occupant of the building, or the name and residence of any other
person, who gives the information relating to such male person or woman
voter.''
(Chap. 835. Listing and Registration of Voters in Boston.)
As shown above in the statute the name of the informant must be given
to the police, so that this evidence was available to show whether or
not these men were bona fide residents.
After quoting authorities in support of this position, the minority
continue:
In order to decide that there was illegal registration so as to
invalidate any of the contestee's votes, it must be shown either that
the men charged were acting in conjunction with the contestee or his
friends in fraudulent registration or that the informant or landlord
were doing the same. This was not shown in any case.
In conclusion the views submitted the following for the action of the
House in lieu of the resolutions offered by the majority of the
committee:
In conclusion, we submit that the whole case of the contestant rests
on allegations and assertions with no substantial proof and that the
misstatements made by him in connection with the ballots justifies us
in rejecting his uncorroborated testimony about illegal registration.
We therefore submit for the action of the House the following
resolution in lieu of the resolution offered by the majority of the
committee:
Resolved, That John F. Fitzgerald was duly elected a Member of the
House of Representatives from the tenth congressional district of the
State of Massachusetts in this Congress, and is entitled to a seat
therein.
Mr. Robert Luce, of Massachusetts, in separate views submitted,
concurs in opposition to the proposal of the majority to reject the
poll of the three precincts, and gives an historical resume of the
action of the House in similar cases:
The question rose in the second contested election case coming before
the House. It was in the Second Congress that Gen. James Jackson
contested the seat of Gen. Anthony Wayne because of gross frauds in a
Georgia district. The House did not hesitate to vote unanimously to
unseat Wayne, but when Jackson urged that the seat should be given to
him by rejecting the returns of certain counties, the House refused. To
be sure it was by a tie vote, the Speaker deciding, and it seems to
have been feared that if new evidence were admitted, it might put the
House in an awkward position by showing Wayne to have been elected, so
that the precedent is not clear, but at any rate the proposal to reject
certain polls did not prevail.
In the next Congress, in the case of Van Rensselaer v. Van Allen, the
committee reported that according to the law of the State of New York
the fact that more votes were cast for the petitioner in a town than
were returned for him could not, if proved, suffice to set aside the
vote of the town, and the decision was in favor of the setting Member.
In the case of McFarland v. Culpepper, in 1807, irregularities were
proved in three out of five counties, and if the returns from these
were thrown out the seat would go to the contestant.
Sec. 96
Culpepper alleged that if he had time he could prove irregularities in
the other two. The report is directly in point here:
``The committee are of opinion that, even presuming the vote in Moore
and Cumberland to have been legally taken, it would be improper to
deprive the other three counties of a representation for the fault of
their election officers, etc., therefore think it most proper to give
the citizens of that district an opportunity to have another
election.''
So the seat was vacated.
Ten years later, in the case of Easton v. Scott, the committee by
throwing out the poll of one township, where 24 votes were east, would
have given the seat to Easton, but the House recommitted the report
with instructions to the committee to take evidence. At this the
committee balked, partly because of the remoteness of the district,
which was in the Territory of Missouri, and the expense of collecting
testimony. In the end a motion to discharge the committee was amended
by a substitute vacating the seat.
Although there were two or three cases where a committee showed
itself not averse to rejecting the entire vote of certain precincts,
towns, or counties, yet for nearly 70 years after Congress first sat in
no instance was the result of an election changed by such a rejection.
Partisanship inflicted the pernicious doctrine on Congress. That may
not have been the case with the first instance, where the result was
changed by throwing out a precinct, Otero v. Gallegos, Thirty-fourth
Congress (1856), but this was a Territory of New Mexico case of
relatively slight consequence. With Howard v. Cooper in the Thirty-
seventh Congress (1860), a political use of the expedient clearly
began. Brightly characterizes this case as notoriously partisan and
entitled to little credit, yet it was to serve as a precedent supposed
to justify many questionable findings. At the same session Blair v.
Barrett was decided by throwing out three precincts; in 1864, in Knox
v. Blair, the committee rejected a precinct; and in Washburn v.
Voorhees, in 1866, the committee rejected two precincts.
The device lent itself peculiarly to partisan needs and by this time
contested-election cases had become political questions. During a long
period after the Civil War the chief reliance of the partisan was the
throwing out of entire polls. In one instance the whole city of
Charleston was disfranchised; in another the whole city of Norfolk. Now
that the fires of partisanship have somewhat died down, it may be
admitted that the application of the principle had much to do with
determining the Hayes-Tilden contest.
Possibly in many of these instances a just result was reached, even
though by dubious means. Yet it is the age-long experience of mankind
that it is better to keep within the lines of ordered justice than to
disregard its canons for temporary ends.
Mr. Luce then submits that when an election is tainted with fraud the
proper remedy is a new election, and urges that the seat be declared
vacant.
In the course of the debate on the case in the House on October
23,\1\ Mr. Goodall, the Member in charge of the time allotted to the
minority, yielded time to Mr. Tague, the contestant.
At the close of the debate Mr. Overstreet withdrew the substitute
resolution offered by him, and Mr. Luce offered in lieu thereof the
following:
Resolved, That neither Peter F. Tague nor John F. Fitzgerald was duly
elected a Member of this House from the tenth congressional district of
Massachusetts on the 5th day of November, 1918, and that the seat now
occupied by the said John F. Fitzgerald be declared vacant.
The substitute was rejected by the House, yeas 46, nays 167. The
majority resolutions were then agreed to without division.
Thereupon Mr. Tague appeared and took the oath.
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\1\ Journal, p. 528; Record, p. 7381.