<DOC>
[Hinds Precedents -- Volume II]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:hinds_xxxiii.wais]
Chapter XXXIII.
GENERAL ELECTION CASES IN 1883.
-------------------------------------------------------------------
1. Cases in the second session of the Forty-seventh Congress.
Sections 972-983.\1\
-------------------------------------------------------------------
972. The Mississippi election case of Buchannon v. Manning, in the
Forty-seventh Congress.
Illustration of specifications so vague as to destroy the validity of
the notice of contest.
Although insufficiency of the contestant's notice might preclude an
award of the seat to him, it might not preclude declaration of a
vacancy after examination of the testimony.
On January 29, 1883,\2\ Mr. William H. Calkins, of Indiana, from the
Committee on Elections, submitted the report of the majority of the
committee in the Mississippi case of Buchanan v. Manning.
In his reply to the notice of contest sitting Member had objected--
that said notice is so insufficient and defective that I need not deny
or admit the allegation therefor, for the reasons, to wit, said notice
does not specify particularly the grounds upon which you rely and gives
no reasons for failing to do so.
Second. The allegations are only conclusions of law and general
averment of wrongdoing in some undefined portions of the district, by
unnamed election officials of precincts not specified, in unnamed
counties, or by persons not named or described, and in places and by
means not specified, and in violation of laws and the rights of others
not designated.
Third. Your allegations are so vague and uncertain that I am not
informed as to the persons or officials whom you accuse of crimes, nor
where committed, nor do you aver that such wrongdoings were not
instigated by you, or that they were known to or acquiesced in by me,
or that the result of the election was changed by reason of the matter
set forth.
The first specification in contestant's notice was:
That in a portion of the counties comprising said district such
persons were not appointed, neither was such representation given to
the different political parties in said counties, in the appointment of
county commissioners of election, as was designed and required by law.
-----------------------------------------------------------------------
\1\ Other cases in this session are classified in other chapters:
McLean, Missouri. (Vol. I, sec. 553.)
Jones v. Shelley, Alabama. (Vol. I, sec. 714.)
\2\ Second session Forty-seventh Congress, House Report No. 1891; 2
Ellsworth, p. 287. It appears that the minority views received a number
as a separate report (No. 1890) when presented in the House, Journal,
p. 328.
Sec. 972
The majority in their report seem to consider this specification as
admissible:
The machinery of elections by the Mississippi code is placed in the
hands of the governor. He appoints the county commissioners of
election, who in turn appoint the precinct election officers. The
precinct officers make return of the vote cast in the different
precincts to the county board, who in turn make their report to the
secretary of state.
By section--of the Mississippi election law the different political
parties are to have representation on said board. It ought to be
carried out in good faith, and the different political parties ought to
be represented on the election board. It is a duty incumbent upon the
executive to see that this provision of law is carried out. It has been
found in many of the States of the Union that a provision in the
election laws similar to this is a safeguard against frauds and ballot-
box stuffing.
The second specification was:
That in a portion of the counties comprising said district, election
districts were abolished and other election districts established,
without complying with and in violation of law.
The majority report says:
This allegation is clearly insufficient, as being too vague and
general. It would have been an easy matter to have named the precincts,
and pointed out how the acts complained of tended to prevent a fair
election.
The third specification--
That in a portion of the counties comprising said district the
registration of voters was not conducted as required by law, thereby
depriving a large number of persons (of lawful right) of the privilege
of registering and voting.
is condemned by the report as ``uncertain, vague, and wholly
insufficient.'' The fourth specification is condemned for similar
reasons.
The fifth specification:
That in several of the counties comprising said district a large
number of persons lawfully entitled to register were refused
registration, and that the registration and transferring of voters was
discontinued many days prior to the time contemplated by law, thereby
depriving a large number of persons lawfully entitled to register (or
to transfer) from the right of registering and transferring and voting;
and that in a portion of said counties the registration books were for
a time removed from the place designated by law for their keeping,
thereby depriving a large number of persons (of lawful right) of the
privilege of registering (or transferring) and voting.
The report says of this:
This allegation is too general. The particular places and the acts
complained of should have been specifically set out. The same may be
said with reference to the sixth allegation in the notice of contest.
The seventh:
That at many of the voting places United States supervisors of
election were not permitted to exercise the duties of their office,
being prevented therefrom by the unlawful interference of other
officers of election, or from other sources, in violation of law, and
to such an extent as to prevent their ascertaining the result of the
election and from performing other duties required of them by law; that
no separate lists of the names of voters were kept by the clerks of
election, as was required by law; that the polls were not opened at the
time required by law, were not kept open continuously from 9 a. m. till
6 p. m., as required by law, and that upon the closing of the polls the
counting of the vote and making up of returns was not done at the
voting places nor at the time required by law.
The report concludes as to this specification:
The seventh ground of contest alleges that at many of the voting
places United States supervisors of election were not permitted to
exercise the duties of their office, and were prevented therefrom by
unlawful interference by the other officers of election (we presume
State officers). This charge is general, and it does not specify any
particular voting place in the district where these acts occurred;
Sec. 973
but, perhaps, if any such unlawful interference is shown to have
existed at any of the voting places, the committee would be justified
in considering the allegation amended so as to make it conform to the
proof, unless it were shown that thereby an injustice because of the
insufficiency had accrued to the contestee.
The eighth:
That at many of the voting places ballots were received and counted
that were not lawful ballots in form and print; that inspectors of
election rejected and refused to count ballots that were lawful after
the same had been lawfully deposited in the ballot boxes; that
inspectors of election (with knowledge of the fact at the time)
permitted ballots to be voted that were not lawful ballots; that during
the hours prescribed by law for voting, voters were harassed and
disturbed in such manner as to prevent their voting in a free, fair,
untrammeled, and peaceable manner.
This is also condemned:
The eighth ground of contest challenges the form and print of the
tickets, but it is not pointed out specifically in what the illegality
consisted. And the ninth, tenth, eleventh, twelfth, and thirteenth
grounds of contest are open to the same objections.
The majority therefore hold that with the single exception stated,
``under the uniform rulings of this committee and the House,'' and in
accordance with the precedent in the case of Duffy v. Mason, ``the
notice of contest would be held clearly insufficient.''
``We prefer, however,'' says the report, ``not to rest our decision
of this case upon the sufficiency of the pleadings, for if the
testimony taken in the case develops the fact that the sitting Member
was not elected, it would be our duty to so report, although the
contestant might not be entitled to his seat, having failed to comply
with the law with respect to the sufficiency of his notice.''
The minority views, presented by Mr. William G. Thompson, of Iowa,
also say on this point:
It will be observed that in the beginning the contestee claimed that
the notice of contest was insufficient, and has insisted for that cause
that the case should be dismissed.
In whatever manner any failure of proper notice might affect the
right of contestant in this case (for insufficiency of pleading), if
upon examination of the facts in the case it appear that the sitting
Member is not entitled to a seat it is the duty of the committee to so
report.
973. The case of Buchanam v. Manning, continued.
Discussion as to kind and quality of evidence needed to establish a
general conspiracy against a ballot box in a district.
Discussion of the validity of census tables as creating presumptions
in a case involving a constituency divided politically on the color
line.
The proof of one corrupted vote going into a ballot box does not
invalidate the whole.
The House is reluctant, on allegations of general conspiracy of
election officers, to reject unimpeached returns because other returns
are shown to be fraudulent.
Although illiterate election officers seemed to have been appointed
purposely, yet the House was reluctant to reject their returns when the
safeguard of Federal inspectors had existed.
As to the merits of the case, it appeared from the official returns
that the vote of the district was divided among three candidates, as
follows: Manning, 15,255; Buchanan, 9,996; Harris, 3,585.
Sec. 973
The minority of the committee, who recommended resolutions declaring
neither contestant nor sitting Member entitled to the seat, found from
the census that there was probably a majority of 2,600 colored voters
in the district, as compared with white voters, and became satisfied
from the evidence that colored voters belonged to contestant's party,
while the white voters were divided between sitting Member and the
third candidate. The minority views say:
It is further clearly proven that quite a number of white voters did
not go to the polls. (See evidence, Howze, p. 19; Newsom, p. 22.)
It is further proven that contestant received a number of white
votes, and yet, according to the returns, the contestee is credited
with 15,215 votes, which is manifestly impossible under the
circumstances.
On the other hand, the contestant is credited with only 9,996 votes,
while there are 19,800 colored voters in the district, who, according
to the proof of contestee's own friends, were all solid for contestant,
and came to the polls and voted or offered to vote.
This again is a manifest impossibility. This at once throws suspicion
on the fairness of the count, and when the whole of the election
machinery was in the hands of contestee's friends the burden of showing
the fairness of the count should be upon him when a reasonable doubt of
fairness has been established by the proof.
The minority conceive that a conspiracy existed, made possible by the
appointment of election officers almost entirely of sitting member's
party, although the other parties asked representation, and carried out
through corrupt administration of the registration laws, through
intimidation, through fraud aided by connivance with election officers,
through establishment of new polling places, by the appointment of
illiterate men to represent contestant's party on boards of election
officers. The minority thus sum up:
First. The appointment of illiterate officers of election is such a
manifest disregard of duty and violation of statute law as to render
void the whole appointment of election officers. One of the essential
duties of county commissioners and precinct inspectors is to sign and
certify the returns, and their duty can not be performed by a person
who can not read and write. Where three persons are named in a statute
as necessary to perform an official duty, all must be appointed and all
must act, though a majority may control. (See Ballard v. Davis, 2
George's Miss. Reports; also authorities heretofore cited.) Hence the
appointment of illiterate inspectors and commissioners of election
would vitiate the whole appointment and destroy the election.
Second. But we do not wish to rest our report on so technical a
ground, and hence we hold that the appointment of illiterate inspectors
and commissioners takes away from the return of the election officers
that presumption of truth which otherwise it would have, and a party
claiming a seat on the return of such officers must show the utmost
good faith in the election.
Third. In the case before us, first, the action of the governor and
State board, their refusal to allow the opposition party to name any of
the election commissioners; second, the same action of the part of the
county commissioners in appointing the precinct inspectors; third, the
appointment of corrupt and illiterate officers; fourth, the systematic
adjournments of the election without sufficient cause; fifth, the
premature closing of the registration books, and refusal to register
Republican voters, the erasing of names of Republican voters already
registered, and the forgery of poll books; sixth, the failure to openly
count the vote at the closing of the polls; seventh, the changing of
polling places; eighth, the abandonment of ballot boxes during
adjournment, and of their carrying off to private houses during
adjournment; the interference with and exclusion of United States
supervisors; ninth, the fact that these practices were in counties
having large Republican majorities, are conclusive evidence of a
conspiracy to defraud.
This being a conspiracy to defraud, there being proof of fraud at a
number of precincts, and the illiterate inspectors leaving the door
open to unlimited fraud, and there being no proof by contestee of good
faith in the election, it must be set aside.
Sec. 974
The majority of the committee do not agree to such propositions:
It has been strenuously contended that there is some evidence
uncontradicted and which tends to establish a conspiracy among the
Democrats of the district, which resulted in the returning of the vote
as heretofore given for Manning, and the suppression of the true vote
given for the contestant and Mr. Harris, the Greenback candidate. This
is founded upon the fact that the colored vote in the district exceeded
the white vote, and that it was solidly Republican, and that it was
cast, or ought to have been cast, for Mr. Buchanan; that the white vote
was divided between the sitting Member and the Greenback candidate, Mr.
Harris. To establish this, census tables have been resorted to, and
other evidence has been introduced tending to show that there was a
general turnout of Republican at the election, while there was much
indifference on the part of Democratic voters.
The case of Spencer v. Morey, decided in Forty-fourth Congress,
Miscellaneous Cases, Volume V, page 438, adverted to by contestant in
his brief, can not be regarded by us as an authority in this or any
other case. So far as we have been able to study it, it stands alone in
the line of contested election cases. We do not believe that proof of
one corrupted vote going into a ballot box is like ``a drop of poison
in a bowl of water, which contaminates the whole of it, and can not be
separated from that which remains pure.''
The duty of the House is to separate the honest from the dishonest
vote; to purge all ballot boxes of illegal votes; to administer a
rebuke to the voters of any precinct who permit the voice of the people
to be stifled or suppressed; and to enable the House to do this a
contestant should produce testimony of specific acts in order to show
the wrong which he complains of. It can not be done by general, vague,
and uncertain allegations and charges. There is some proof introduced
to establish these various points, but it is very general, and consists
largely of the opinion of witnesses, and is not of such a character
that the committee feel justified in finding that a general conspiracy
against the ballot box was practiced. It seems to your committee that
if any such practice prevailed the United States supervisors appointed
for the purpose of preventing such frauds could and would have given
information whereby they could have been specifically proven.
Your committee have not hesitated to recommend to the House the
throwing out of all the boxes where frauds, intimidation, or ballot-box
stuffing have been proven, but it would be unsafe to assume from the
testimony in this case that other frauds had been committed by the
election officers not specifically shown or proven in any tangible or
definite manner.
As to illiterate election officers, the majority say:
There is no doubt in our minds, from the evidence in this case, that
many of the Republican precinct inspectors were appointed as such
because they could neither read nor write. This is, in our judgment, a
clear abuse of the law, and without the supervisors' law, which enables
the opposing party to have men of their own selection to guard the
polls as supervisors, we would be strongly inclined to apply a
corrective for this manifest abuse of power.
With tickets exactly similar in all respects, or as nearly so as they
can be printed, and on the same kind of paper, it would not be a hard
task for election officers, if they were so disposed, to cheat an
illiterate man, who could neither read nor write, both in the vote and
in the count. All good people ought to discountenance and cry down evil
practices of this kind. We indulge the hope that it will not be
repeated in the future.
974. The case of Buchanan v. Manning, continued.
Although many electors have suffered by arbitrary refusal of
registration officers to do their duty, yet the House requires a
contestant to show specifically the resulting harm.
Disregard of a law requiring party representation on election boards
may contribute to establish conspiracy, but does not do so of itself.
Change of the place of an election may cause such confusion as to
defeat the popular will.
Periodical firing of a cannon at a polling place during an election
was held to be intimidation justifying rejection of the poll.
Instance wherein a contestant was granted leave to withdraw.
Sec. 974
As to the registration, the majority report holds:
It appears in the evidence that very many electors in the various
counties of this district were deprived of the right of voting because
they were not registered. The registry law of Mississippi provides the
manner in which registration shall be made. An unlawful refusal on the
part of the registration officers to register a qualified elector is a
good ground for contest; but in order to make it available the proof
should clearly show the name of the elector who offered to register;
that he was a duly qualified voter, and the reason why the officer
refused to register him, and, under the statutes of the United States,
if he offered to perform all that was necessary to be done by him to
register, and was refused, and afterwards presented himself at the
proper voting place and offered to vote and again offered to perform
everything required of him under the law, and his vote was still
refused, it would be the duty of the House to see to it that he is not
deprived of his right to participate in the choice of his officers.
Unfortunately, in this case the proof falls far short of that which is
required to enable the House to apply the proper remedy. That there
were many instances in which the officers of the registration
arbitrarily refused to do their duty is apparent. That many electors
were deprived of their right to vote in consequence of this action is
also apparent; but in going through the testimony in this case the
number thus refused registration and refused the right to vote if added
to contestant's vote would not elect him. Neither is it shown
sufficiently for whom the nonregistered voters would have voted had
they been allowed that right.
As to the partisan election boards, the majority say:
We are not willing to go as far in this case as the majority of the
committee did in the Forty-sixth Congress in the case of Donnelly v.
Washburn.\1\ It was there held--
``The very fact that in these seven precincts Mr. Donnelly had been
deprived by the city council of Minneapolis of all representation among
the officers conducting the election is, in itself, a very strong proof
of conspiracy and fraud.''
We may remark that there is abundance of testimony in this case
showing that nearly one-half of the polls in some of the counties were
under the exclusive control of the party friends of the contestee; and
it is stoutly maintained by the contestant that the refusal to register
qualified Republican voters, and that the appointment of incompetent
Republican election precinct officers at other polling places, and
various other acts and omissions on the part of the partisan friends of
the contestee, taken in connection with the fact that at many of the
precincts only Democrats were appointed election officers, afford a
strong reason why the rule laid down in the Washburn-Donnelly case
should apply in this.
The appointment of managers of election, in fairness and common
decency, should be made from opposite political parties. A refusal to
do so in the face of a statute directing it to be done may in some
instances be evidence of fraud, and it might form an important link in
the chain of circumstances tending to establish a conspiracy.
We are not satisfied that the evidence in this case establishes such
a conspiracy.
As to changes of polling places, both majority and minority say:
There is evidence tending to establish the fact that some of the
voting places were changed just prior to the election, and that much
confusion was thereby caused among the voters. Many of them were not
aware of the change, and in some instances they did not know where the
new polling places were established. Just how far this affected the
result of the election we are unable to tell from the evidence. We can,
however, readily imagine how a resort to changing the polling places
just before an election in a county would cause such confusion and
unfairness as would defeat the popular expression of the will of the
people through the ballot box.
The majority reject a precinct for the following act of intimidation
at North Oxford precinct:
B. P. Scruggs testifies that he was United States deputy marshal on
the 2d of November, 1880; that he lives in Oxford, State of
Mississippi; that he was present at the election held there on that
day;
-----------------------------------------------------------------------
\1\ It is hardly accurate to speak of anything as decided by this
case, where there was no report indorsed by a majority of the committee
and no action by the House.
Sec. 975
that within 20 steps from the entrance of the court-house, where the
voting was being carried on, Mr. Keyes, a prominent Democrat of that
place, and a member of the board of aldermen, was in charge of a cannon
which was being fired, and that the witness protested against the
firing of it; that he was told by Mr. Keyes that he had orders to fire
it; that it was none of his business who gave him such orders; that
they continued to fire the cannon until late in the afternoon; that the
cannon was a regular 6-pound field piece. Witness also testifies that
the Republicans were prevented from celebrating the victory gained by
them because they were told by two prominent Democrats, Mr. Crawford
and Mr. Skipwith, in the presence of Mr. Baker, chairman of the
Democratic county central committee, that ``they might have the right
to do so, but they did not have the might,'' and to prevent a bloody
collision, they abandoned it.
The minority found 11,715 votes which they considered so tainted as
to justify setting aside the whole election.
The majority found only 1,994 votes for sitting Member and 1,455 for
contestant cast in polls which ought to be rejected. So they recommend
the adoption of the following resolution:
Resolved, That the contestant have leave to withdraw his papers
without prejudice.
On March 2,\1\ after brief debate and the reading of the report, the
resolution of the majority was agreed to without division.
975. The Missouri election case of Sessinghaus v. Frost in the Forty-
seventh Congress.
The House counted the ballots of qualified voters who were prevented
from voting by conditions arising from a registration established by a
city government.
May the State delegate to a municipality the power to regulate the
manner of holding an election?
Officers of election having wrongfully denied qualified voters the
right to vote, the House counts the rejected votes.
On February 17, 1883,\2\ Mr. Samuel H. Miller, of Pennsylvania, from
the Committee on Elections, submitted the report of the majority of the
committee in the Missouri case of Sessinghaus v. Frost. The sitting
Member had received a plurality of 197 votes on the face of the
returns.
The objections of contestant involved two leading questions:
(1) A number of persons--155 in all--who were shown to have all been
qualified voters under the laws of the State of Missouri, and who
tendered votes for contestant, were refused the right to vote because
their names had been stricken from the registration lists under the
provisions of an ordinance of the city of St. Louis, which provided for
a board of registration to be appointed by the mayor, and--
whose duty it shall be to meet with the recorder of voters, at his
office, twenty days before each general, State, or municipal election,
for the purpose of examining the registration, and making and noting
corrections therein as may be rendered necessary by their knowledge of
errors committed, or by competent testimony heard before the board; a
majority of said board shall be necessary to do business, and the mayor
shall be ex officio president thereof. They shall strike from the
registration, by a majority vote, names of persons who have removed
from the election district for which they registered, or who have died,
and shall note the fact opposite the name of any person charged with
having registered in a wrong name, or who for any reason is not
entitled to registration under the provisions of this ordinance, which
person shall be challenged by the judges of election when presenting
himself to vote, and rejected
-----------------------------------------------------------------------
\1\ Journal, p. 545; Record, pp. 3590, 3593-3606.
\2\ Second session Forty-seventh Congress, House Report No. 1959; 2
Ellsworth, p. 381.
Sec. 975
unless he satisfy said judges that he was entitled to register, and
said board shall also place on said books the names of such persons as
in their judgment have been improperly rejected by the recorder of
voters.
After a discussion of the terms of the constitution and laws of
Missouri, the majority of the committee found that the ordinance was of
no binding effect:
The Constitution of the United States having declared that the
legislatures of the several States shall provide for choosing Members
of Congress, and the constitution of Missouri having authorized the
general assembly, and that alone, to enact a registration law, we hold
that the above ordinance has no binding force or effect, and is
invalid.
We therefore rely upon the language of McCrary, section 11, that--
``In the absence of any positive law making registration imperative
as a qualification for voting, it is a very plain proposition that the
wrongful refusal of a registering officer to register a legal voter who
has complied with the law and applies for registration ought not to
disfranchise such voter. The offer to register in such a case is
equivalent to registration. This would be held to be the law upon the
well-settled principle that the offer to perform an act which depends
for its performance upon the action of another person, who wrongfully
refuses to act, is equivalent to its performance.
Mr. A. A. Ranney, of Massachusetts, a member of the committee
concurring in the majority report, filed views which discussed the
point more fully:
I should ordinarily hesitate long and deliberate with care, lest I
might be mistaken, before I could decide against the validity of the
city ordinances in question and under which the board of registration
seem to have acted and which have been apparently in force and acted
upon in the city and State so long. But the question is raised and
argued on both sides with great ability. And I am forced to the
conclusion that the acts of the board in striking off the names of the
parties in question was unauthorized, illegal, and void; that under the
Constitution of the United States, article 1, section 4, the State
legislature alone had power to prescribe the manner of holding
elections, subject to alteration and regulations made by Congress. That
this power includes the whole machinery of elections, registration
laws, etc., is too well settled to require argument.
I am unable to find any act of the legislature of Missouri which
prescribes registration as a qualification or regulation and which was
in force at the time in question and applicable to the city of St.
Louis. Apparently the legislature recognized this as the state of the
law and accordingly, as appears in the argument, passed an act to
remedy the defect and provide for it in the year 1881. The charter of
the city of St. Louis must be confined in its provisions to matters
municipal, and it would be a great stretch of language and principles
of law to hold that it extended beyond that and embraced authority to
regulate the manner of holding elections in matters of State and
Federal officers, so the city authorities could establish registration
laws and prescribe the qualifications of voters and limit the right of
exercising the elective franchise. It is more than doubtful whether the
legislature, which is alone invested with authority of this kind, could
thus delegate it any way.
The minority contended that the St. Louis ordinance was framed in
conformity with the constitution and laws of Missouri and was valid.\1\
The majority further found:
But conceding (which we do not in this case) that the city ordinance
relative to registration was constitutionally and legally enacted, and
its provisions applicable to this election, we contend that these 155
votes should still be counted, and for the following reasons:
The oath prescribed for and taken by the judges of election precluded
them from hearing or determining the case of any voter whose name is
not on their list; therefore as to that class of voters they are not
really judges of election. The law in that case has provided another
set of judges, whose duty it is to hear competent testimony concerning
the case of each and every man whose name is suggested by anyone should
be stricken off, and after judicially hearing the case they shall by a
majority vote determine whether that man is a voter or not.
-----------------------------------------------------------------------
\1\ Minority views filed by Mr. Samuel W. Moulton, of Illinois.
Sec. 975
So we say that if the judges of election could not receive the votes
of these men they are not the judges of their qualifications to vote in
any sense, their place for that purpose being filled by the board of
revision. We hence conclude that if the only officers recognized by the
city charter who had a right to judge of the qualifications of these
155 men have improperly, wrongfully, and fraudulently denied them the
right to vote, that this House should remedy that wrong and count their
votes for him whose name was on their ballots.
As to the propriety of counting these votes, the majority say:
The testimony shows that all of the above 155 men were legal and
qualified voters, many of them being old residents, and that they did
all in their power to entitle them to vote.
We hold that their votes should now be counted by the House. The said
voters had done everything the law required of them; they had exhausted
their remedy; they had registered and gone to the polls and offered to
vote, but their names having been stricken off they were not allowed to
vote.
The principle is well established and was adopted by this committee
in the case of Bisbee v. Finley (present Congress) that where judges of
election improperly refuse a qualified voter the right to vote his vote
will be counted here. We submit the reason of that rule will apply as
well to this case where the voter has done everything in his power and
the primary wrongful act was committed by the registration officers.
McCrary on Elections, sections 10, 11, and 383, fully sustains this
view in the following language:
``A case may occur where a portion of the legal voters have, without
their fault and in spite of due diligence on their part, been denied
the privilege of registration. In such a case if the voter was
otherwise qualified and is clearly shown to have performed all the acts
required of him by the law, and to have been denied registration by the
wrongful act of the registering officer, it would seem a very unjust
thing to deny him the right to vote. In elections for State officers,
however, under a constitution or statute which imperatively requires
registration as a qualification for voting, it may be that the voter's
only remedy would be found in an action against the registration
officer for damages.'' (See also secs. 11 and 383.)
It will be observed that Judge McCrary, after stating the general
doctrine, says that--
``In elections for State officers, however, under a constitution or
statute which imperatively requires registration as a qualification for
voting, it may be that the voter's only remedy would be found in an
action against the registration officer.''
This refers exclusively to State officers, while the office for which
it is intended to count these votes is not a State office, that the
United States Constitution has given this body full control over the
question as to who are its Members; and in the State of Missouri
neither the constitution nor any statute in force in St. Louis makes
registration an imperative prerequisite or qualification.
Also the majority find another reason:
Furthermore, these votes should be counted on another ground,
following a well-established principle of law.
The proof in this case shows that the board of revision by whom the
above voters were disfranchised acted at the outset and throughout
their entire proceedings in absolute violation of not only the spirit
but the letter of the law which gave them authority. The ordinance
explicitly says that this board shall meet--
``For the purpose of examining the registration and making and noting
corrections therein as may be rendered necessary by either their
knowledge of errors committed or by competent testimony heard before
the board, a majority of said board shall be necessary to do
business.''
By a resolution adopted at the beginning (heretofore cited) they
declared they would neither hear testimony nor act upon the knowledge
of the board. Thereafter names of voters were stricken off the list
without even being read to the board, and merely upon the
recommendation of an individual member, who, in many cases, as the
proof shows, adopted without question, knowledge, or examination the
reports of his unsworn and unauthorized deputies.
Sec. 976
976. The case of Sessinghaus, v. Frost, continued.
As to what constitutes on a ballot a caption designed to deceive the
voter.
The House counted ballots rejected by election officers under an
erroneous construction of the law.
The intent of the voter being certain, the omission of a candidate's
given name does not vitiate the ballot.
A small number of voters being driven from the polls by intimidation,
the House counted their votes but declined to reject the whole poll.
(2) The majority determined to count certain votes for contestant for
the following reason:
There were 23 ballots cast for contestant, but not counted, having
this caption, viz, ``Chronicle Selected Ticket,'' a ticket made up of
names of persons on both the Republican and Democratic regular tickets.
It was not, in the language of the law (see p. 1681), a ticket designed
to deceive the voter. It showed plainly what it was, viz, a ticket
selected by the Chronicle, an independent daily newspaper published in
St. Louis. (See pp. 945-946.) This ticket had contestant's name on it
for Congress from this district, and was, in some of the precincts,
thrown out by the judges and not counted.
The supreme court of Missouri, in the case of Turner v. Drake (71
Mo., 285), construed this statute as follows:
``This is a proceeding instituted in the county court of Carroll
County, contesting the election of defendant as recorder of deeds of
said county. The county court quashed the notice of contest on the
motion of defendant, from which action plaintiff appealed to the
circuit court, where, upon a trial de novo, judgment was rendered for
defendant, the notice of contest quashed, and the proceedings
dismissed, from which plaintiff has appealed to this court.
``The only ground for contest alleged in the notice is that all the
ballots cast for defendant, at the election which was held on the 5th
day of November, 1878, were fraudulent and void because the caption of
said ballots contained the words, `Republican, Independent, Greenback.'
The following is the form of the ballot as to State and county
officers: `Republican, Independent, Greenback; supreme judge, Alexander
F. Denney,' etc.
``The claim that the ballots cast for defendant, of which the
foregoing is a type, were fraudulent and void, is based upon section 1,
acts of 1875, page 15, which is as follows:
``Each ballot may bear a plain written or printed caption thereon,
composed of not more than three words, expressing its political
character, but on all such ballots the said caption or headlines shall
not in any manner be designed to mislead the voter as to the name or
names thereunder. Any ballot not conforming to the provisions of this
act shall be considered fraudulent, and the same shall not be counted.'
``We cannot, from the mere face of the ballot, declare, as a matter
of law, that the words used in the caption were, in any manner,
designed to mislead the voter as to the name or names thereunder. The
words employed would indicate to the voter that he would find among
those to be voted for Republicans, Greenbackers, and Independents, or
persons who were candidates without party indorsement. We think the
evident purpose of the legislature in the above enactment was to
prevent one political party from using, as a caption to its ballots,
the name of any other political party from that mentioned in the
caption. A ballot with a caption using the words `The Republican
Ticket' which contains only the names of persons who represented the
Democratic ticket would fall within the class of ballots interdicted by
the law.
``The design of the statute is to prohibit the use of any words in
the caption to a ballot which do not truly indicate the political
character or party affiliation of the persons to be voted for, and any
ballot which represents by the words used in the caption that it is the
ticket of one party when in truth and in fact the persons whose names
are contained in the body of the ballot represent another and different
party is under the statute fraudulent and void.''
Under this and similar decisions, it seems to us there can be no
doubt that contestant is entitled to have counted for him these 23
votes.
Sec. 977
(3) The majority also ruled as follows:
Evidence on pages 952 and 897 of the Record, which is uncontradicted,
will be found showing that 10 votes cast for contestant were thrown out
and not counted by the judges, merely upon the ground that the
contestant's given name was not on the ballots. The proof shows that no
other man by the name of Sessinghaus was a candidate at that election
in that district for any office.
Hence we follow the unbroken chain of authorities as cited by McCrary
and hold that these 10 votes should be counted for contestant.
(4) As to intimidation, the majority report that 20 votes should be
counted for contestant for this reason:
As to precinct No. 39, the contestant urged persistently * * * that
this precinct should be thrown out, but we are constrained to differ
with him. We find that the evidence of intimidation hardly comes up to
the standard provided by the precedents cited by McCrary, and hence we
conclude that it must stand. We find, however, that 20 men (all
colored) who were qualified and legal voters and duly registered, and
who had done all that the law required of them, who were entitled to
vote at that poll, went there and offered to vote, but were refused for
various trivial reasons, many of them being frightened by abuse and
driven from the poll.
(5) On questions of fact certain votes are counted for contestant
because wrongfully excluded by election officers.
In conclusion, as a result of their decisions, the majority find a
plurality of 172 for contestant, and report resolutions for seating
him.
The minority concluded that sitting Member was entitled to retain the
seat.
The report was debated in the House on March 2,\1\ and on that day
the resolutions of the majority were agreed to,\2\ yeas 126, nays 110.
Accordingly Mr. Sessinghaus appeared and took the oath.
977. The Florida election case of Bisbee, jr., v. Finley in the
Forty-seventh Congress.
Contestant's testimony being delayed by dilatory action and
intimidation, the House considered a portion taken after the legal
limit.
Discussion as to certain testimony alleged not to be strictly in
rebuttal.
On February 19, 1883,\3\ Mr. Ambrose A. Ranney, of Massachusetts,
from the Committee on Elections, submitted the report of the majority
of that committee in the Florida case of Bisbee, jr., v. Finley.
At the outset consideration may properly be given to a preliminary
question concerning the taking of evidence. Contestee claimed before
the committee that a portion of the contestant's evidence was taken
after the expiration of the first forty of the ninety days allowed by
statute for the taking of testimony, and that some of that which was
taken during the ten days allowed for rebuttal was not strictly in
rebuttal, and that all such should be rejected and not considered by
the committee. The majority report finds that during the first forty
days contestant took testimony as fast as he could, but that much time
was consumed on the part of sitting Member by useless and dilatory
cross-examination. Also violence and disorder prevented contestant's
attorney from going into some parts of the district.
-----------------------------------------------------------------------
\1\ Record, pp. 3616, 3627-3631.
\2\ Journal, pp. 551, 552.
\3\ Second session Forty-seventh Congress, House Report No. 1066; 2
Ellsworth, p. 172.
Sec. 977
Therefore contestant, without prejudice to sitting Member, continued to
take testimony after the expiration of the forty days. But sitting
Member's counsel would not remain during the talking of this testimony,
although contestant offered to give his opponent all the time he wanted
for answering the testimony objected to. The majority report further
says of sitting Member's attitude:
He knew of the other facts stated and of the illness of counsel which
had delayed the taking of the evidence entirely within the first forty
days. And the committee think that a fair-minded man would have been
most likely to enter into an agreement allowing further time, and he
must be presumed to know the previous practice of the Committee on
Elections to exercise discretion in such matters.
It is also evident that most and probably all of the evidence to
which he now objects did not admit of an answer, as his attempt to
answer other evidence of the same kind to which he does not object
proved ineffectual. That taken during the last ten days was such from
its nature that it could not be contradicted or its force impaired by
any counter evidence.
It is Manifest, therefore, that contestee did not suffer and was not
prejudiced by any delay or the acts complained of.
No complaint is made or pretense set up that the evidence was not
fairly taken and accurately reported. He had full opportunity to cross-
examine if he desired to do it, and also to answer it after the same
was taken. But he did not choose to do so and preferred to take the
risk of its being considered. After the case was referred to the
committee and printed he did not appear or make any motion to strike
out the evidence objected to, so that it might be supplied if the
motion was granted, but took the objection for the first time at the
argument.
The committee are clearly of the opinion that the evidence taken
after the expiration of the forty days should be received and
considered, and they have considered it; that the evidence taken in
rebuttal should also be considered. All of the evidence was taken
within the ninety days allowed by statute, so that in that respect the
statute was literally complied with, and the forty days allowed
contestee was more than sufficient for his purposes, as he did not
begin until about two weeks after contestant had finished, and then
occupied but sixteen days, while he had the offer of all the more time
which he desired.
It is manifest that contestee did not believe he could answer the
evidence and, in the spirit manifested by his cross-examination,
designed apparently to use up the time, so as to get beyond the forty
days, and by leaving when the forty days were up, and when he knew
contestant was going on to finish his list of witnesses, he was seeking
some technical advantage if he could get it. The testimony in rebuttal,
also taken within the ten days, appears to have been proper and
competent, and should be, and has been, considered. The course of the
committee seems fully justified by good precedents.
No statute can tie the House down to any rules of procedure.
Its provisions are directory, constituting only convenient rules of
practice, and the House is at liberty, in its discretion, to determine
that the ends of justice require a different course. (McCrary, pp. 353,
358, 359.)
In 1 Bartlett (Rep., 223, 224), a Democratic committee held that if
either party desired further time to take testimony after the time had
expired, it was his duty to give notice to his opponent and proceed and
take it and present it to the committee, which would, on good reasons
being shown, receive and consider it.
So, too, in regard to rebutting evidence; that rests in the
discretion of a court always, even if not strictly in rebuttal. (Reed
v. Kneeas, Brightley's Election Cases, 416; Richardson v. Stewart, 4
Birney, 197.)
The minority say:
The record shows that all the evidence taken in the counties
mentioned below by contestant was taken as rebutting testimony, after
the expiration of the time allowed by law for taking original
testimony; that neither contestant nor contestee had taken any
testimony in any of these counties during the forty days allowed to
each, and that consequently there was nothing to rebut; that the
contestant disregarded the act of Congress, which says that ``the
contestant shall take testimony during the first forty days, the
returned member during the succeeding forty days, and the contestant
may take testimony in rebuttal only during the remaining ten days of
said period'' (of ninety days).
Sec. 978
The following are the counties where contestant took such original
testimony in the ten days allowed him for rebutting testimony only, and
where contestee had taken no testimony; and where there could not
therefore possibly have been anything to rebut, viz: Brevard, Bradford,
Columbia, Hamilton, Putnam, Orange, St. Johns, Suwanee, and Volusia
counties.
The record shows that no evidence in chief was taken in or concerning
the election in any of these counties, and none whatever by the
contestee during his forty days, and that all of contestant's testimony
therein was taken after contestee's time had elapsed and after the
contestant's time for rebuttal had commenced. See Vallandigham v.
Campbell (1 Bartlett, p. 223); Brooks v. Davis (1 Bartlett, 244;
McCrary on Elec., secs. 347, 348); Bromberg v. Haralson (first session
Forty-fourth Congress, vol. 5, Index to Miscellaneous Documents Digest
of Election Cases, p. 364).
It is claimed that all this testimony should be rejected.
Against all the evidence taken by the contestant in the above-
mentioned counties the unanimous report of the Committee on Elections
in case of Bromberg v. Haralson, first session Forty-fourth Congress,
is cited. It appeared in that case that in Wilcox County the
contestant, Bromberg, the Democratic candidate, undertook to violate
the election law, just as the contestant in this case has done, and
that his testimony so taken was rejected. (See Bromberg v. Haralson,
supra.)
All the testimony in the above counties is ex parte in behalf of
contestant. The notices served by contestant on contestee for taking
this testimony in all those counties informed contestee that contestant
would proceed to take testimony in rebuttal. The contestee, knowing
that no original testimony had been taken in any of these counties, and
that there could be nothing to rebut, declined to attend such
examinations of witnesses. The contestant, instead of taking rebutting
testimony, proceeded to take original testimony.
The minority quote McCrary, with comment:
The statute as it now stands (see sec. 108, Rev. Stat.) affords an
opportunity for investigation, so ample and complete that it is
believed that it will seldom happen that the House will find it
necessary to depart from its provision in order to do the most complete
and perfect justice, and it will no doubt be adhered to as furnishing
the best possible guide for instituting and carrying forward inquiries
of this character.
We have considered almost all the testimony thus irregularly and
illegally taken, but we earnestly protest against the admission of such
evidence unless great injustice would be done by rejecting it. We
prefer to adhere to the law. The above-mentioned counties should stand
as returned, however, both from the fact that all the testimony taken
by contestant to assail them is unwarranted and because the testimony
itself, as shown by the record, is insufficient to warrant the
committee in rejecting the official returns and thereby disfranchising
hundreds of legal voters.
978. The case of Bisbee, Jr., v. Finley, continued.
A vote offered by an elector and illegally rejected should be counted
as if cast.
Electors having made affidavit of their qualifications and as to the
ballots they intended to cast and the same being corroborated orally,
the House counted the rejected votes.
As to the evidence which should be produced at the poll to justify
rejection of a vote tendered by alleged convict.
As to the merits of the case, it appeared that sitting Member had a
majority of 1,003 votes on the face of the official returns.
The examination of the objection raised by contestant involved a
discussion of several questions of law:
(1) A question as to the counting of votes tendered but not received
by the officers of election. The majority report holds:
The contestant avers and claims that many electors duly offered to
vote for him, and their votes were illegally rejected, and insists that
all such votes so tendered and refused shall be counted as if cast.
Sec. 978
As a question of law we do not understand it to be controverted that
a vote offered by an elector and illegally rejected should be counted
as if cast. It was so held in the case of Niblack v. Walls (Smith's
Reports, p. 104, reported by McCrary, who was then chairman of the
Committee on Elections); again, in Bell v. Snyder (Smith's Reports,
251, 252, and in Martin v. Yates (Forty-sixth Congress). McCrary, in
his work on contested elections, regards it as a settled principle
(sec. 423), and your committee have so regarded it in this controversy.
In the appendix to this report, Exhibit A, will be found the name of
every voter whose vote was tendered for contestant and rejected which
we have allowed and counted for him, except a few votes in Madison
County. This exhibit gives not only the name of the voter, but the page
of the record where the testimony will be found establishing his right
to vote and that his vote was tendered and rejected.
In the county of Marion, in which a large number of electors were
deprived of the right to vote without any fault or neglect on their
part, the electors in many instances, after being denied the right to
vote, went before a United States commissioner and made an affidavit to
the fact of their qualifications as electors and of their offering to
vote, to which they attached the identical ballot which they tendered
to the election officers. The figures in the column of Exhibit A headed
``Affidavit'' refer to the pages of the record containing such
affidavits. In the case of Bell v. Snyder (Smith's Reports, pp. 251,
252) such affidavits were considered sufficient evidence of the voters'
intention to vote for the officers whose names were on the ballot
attached to the affidavit, and on such evidence their votes were
counted.
But contestant has not only put in evidence the affidavit of the
voters with their ballots attached, but has in most instances taken the
testimony of the voter whose vote was refused, and where the voter is
not called as a witness it is shown by the testimony of other
witnesses, officers of the election and other persons at the polls,
that his vote was tendered and refused.
Your committee find from the evidence that there should be added to
contestant's vote 268 votes on the ground that they were tendered for
him and illegally rejected, and should now be counted.
The minority views, presented by Mr. Frank E. Beltzhoover, of
Pennsylvania, say on this question:
The contestee's counsel denies that these votes should be added to
the contestant's majority in this county, and states the law on the
subject to be as follows, viz:
``In order that a vote not cast shall be counted as if cast it must
appear that a legal voter offered to vote a particular ballot, and that
he was prevented from doing so by fraud, violence, or an erroneous
ruling of the election officers.''
The burden of proof of all these facts is upon the party who seeks to
have the votes not cast counted for him. It devolves upon the
contestant, therefore, to prove that each one of these voters was a
legal voter, and that his vote was illegally rejected.
The ground upon which it is claimed and admitted that these 122 votes
not cast were rejected was because they had not registered, or their
names were not found on the registration list.
The election law of Florida requires registration at least ten days
before the election. The law is as follows:
``No person shall be entitled to vote at any election unless he shall
have been duly registered at least ten days previous to the day of said
election, nor shall any one be permitted to vote at any other voting
place or precinct than that of the election district stated opposite
his name on the county registration list.'' (See act of legislature of
Florida, 1877, pam., p. 69, sec. 3.)
Prima facie, all persons whose names are not found on the
registration list are not legal voters, and in order to entitle them to
vote, their names not being on the list of registration, it is
incumbent on them to make every preliminary proof which the statute
requires.
But whether these votes were rejected properly or improperly, it is
very plain that, having been rejected, under the law they can not be
counted unless each voter has adduced in the contest the same proof in
every respect which would have entitled him to vote at the polls on the
day of election. What, then, would have been required of each one of
these voters whose names did not appear on the registry list? The law
says that each one ``shall, on offering to vote at the voting place or
precinct in such election precinct, be required to state under oath:
(1) That he is 21 years of age; (2) that he has resided in the State of
Florida one year; (3) and in the county six months, (4) that he was
duly registered at least ten days before the election; (5) and that he
has not changed his place of residence to any district other than the
one in which he was living when registered, (6) or if he has changed
his place of residence
Sec. 979
since such registration that he has notified the clerk of the circuit
court of the fact of such change. These are six requirements which are
necessary and indispensable to the legal qualification of any person
whose name is not on the registration list. The testimony is not very
clear what the rejected voters in this instance offered to do at the
time they proposed to vote on the day of election. If they were ready
and willing to swear to all these six matters, then they should have
been allowed to vote. There is no doubt about this. But having been
refused by the election board, although wrongfully, can they be counted
now unless they have subsequently made the same proof during the
contest and have it now before the committee? We think not. The proof
which has been offered in all the various cases does not in any case,
so far as we have been able to discover, come up to the requirements of
the law. These votes, therefore, although it is possible they may have
been and are now legal votes, must be rejected. We can not ignore any
one of the muniments of the electoral privilege, which should be
guarded as well to keep out illegal votes as to insure the right to
those who are entitled to vote under the law.
(2) As to the proof required to refuse a vote where there is a
disqualification because of conviction for crime, the majority report
says:
It is urged by contestee that the votes of some of the persons named
had been disfranchised by conviction of crime.
It appears to have been a rule with the election officers, not only
in this but in other counties, to refuse to receive the vote of any
person whose name was on a list--called by some of the witnesses a
convicts' list--which had been prepared by the political associates of
contestee and placed in the hands of the officer of election. It
further appears that the votes of such persons on the said list were
refused, without evidence of indentity, and without the production of
any record of conviction, at the polls.
We have excluded from our count the votes of all persons where the
evidence is satisfactory that the person alleged to have been convicted
is the same person whose vote was offered and refused, though the
record of conviction is not in evidence, and to designate them have
placed the letter C opposite their names on said exhibit.
We do not mean to be understood, however, as holding that the record
of conviction in such cases should not be produced as the proper
evidence of disqualification. The question is an immaterial one in this
case.
979. The case of Bisbee, jr., v. Finley, continued.
Where the law requires a citizen of foreign birth to produce his
naturalization papers at the time of voting, a failure so to do
destroys the vote even after it has been received.
A vote admitted without presentation of required evidence at the
polls is not validated by production of the evidence during the
investigation.
(3) The constitution of Florida provided:
At any election at which a citizen or subject of any foreign country
shall offer to vote, under the provisions of this constitution, he
shall present to the persons lawfully authorized to conduct and
supervise such election a duly sealed and certified copy of his
declaration of intention, otherwise he shall not be allowed to vote,
and any naturalized citizen offering to vote shall produce before said
persons, lawfully authorized to conduct and supervise the election, the
certificate of naturalization or a duly sealed and certified copy
thereof; otherwise he shall not be allowed to vote.
The majority report contends that the production of the evidence when
the vote is offered is peremptorily enjoined, and cites the case of
State v. Hilmontel (21 Wis. R., 574-578) and the Congressional cases of
Myers v. Moffett, Weaver v. Given, and Covode v. Foster, etc., and
continues:
Here the constitution of the State makes every voter of this class an
agent to execute it, and places the burden upon him to furnish the
prerequisite evidence of his right to vote. The constitution does not
say that he shall be required to produce his naturalization papers only
when his vote is challenged. By that instrument he is informed and
challenged in advance of the election itself, and he must approach
Sec. 980
the polls armed with such evidence as the supreme law commands him to
produce as a condition precedent of his right to exercise the franchise
of an elector. Our attention has not been directed to any judicial
authority in conflict with the authorities cited. On the other hand, we
find the principle to have been uniformly applied, and we are therefore
of the opinion that it should be applied to this case.
The principle must likewise be maintained that the production of this
evidence at the trial will not change the legal status of the voter and
thus make these votes in question legal votes. Such a decision would be
at variance with a well-established principle of law which forbids the
making of an act valid at a subsequent period which at the time of its
commission was void because prohibited by law.
Votes illegal when received can not be made legal by evidence offered
at the trial which should have been produced before the vote was cast.
(Shepperd v. Gibbons, 2 Brewster, p. 129; Myers v. Moffett, I id., p.
230.) The principle is again established in the following:
``If election officers receive a vote without preliminary proof which
the law makes an essential prerequisite to its reception, such vote is
as much an illegal one as if the voter had none of the qualifications
required by law.'' (Brightly's Law Cases, 453-492, notes; also, 21st
Wisconsin, 566; 23d Wisconsin, 630; 16th Michigan, 342.)
The principle is self-evident. Voting is a single act commanded to be
performed within a particular time, on a particular day, and in
conformity with law. There can not therefore be a valid performance of
the requirements of the law at a period subsequent to the day on which
alone the law commanded the act to be performed. The question at issue
is not whether such evidence as required by law to establish their
right to vote could have been furnished, but whether such evidence was
furnished. If they did not produce it, the supreme law prohibited their
voting, and an act prohibited by law can not be valid.
The committee being of the opinion that all votes cast by persons of
foreign birth who failed to produce their naturalization papers or
papers declaring their intention to become citizens, as required by the
constitution of Florida, are illegal and void. We proceed to state the
number of such votes which from the testimony should be deducted from
the count.
The evidence introduced and to be relied upon is, first, the
testimony of the voter himself that he did so vote without producing
such evidence of his right to vote; secondly, his own admission, under
oath, that he voted for contestee; and, thirdly, where the voter
refuses to testify for whom he voted when called and sworn by the
contestant, the testimony of other witnesses that he adhered to and
supported the principles of the Democratic party and was a Democrat.
This is a well-settled principle: ``When a voter refuses to testify for
whom he voted it is competent to resort to circumstantial evidence,
such as that he was an active member of a particular political party.''
(McCrary, sec. 293.)
We find from the evidence that 74 votes should be deducted from
contestee's vote on the ground that they were cast by persons of this
class.
The minority oppose this contention, citing the case of Finley v.
Bisbee, in the Forty-fifth Congress, and Curtin v. Yocum, in the Forty-
sixth Congress, and a decision by Judge Briggs (Leg. Int., July 19,
1878), holding in the case of Gillin v. Armstrong:
That unregistered voters having voted without making the affidavits,
the law presumes that they are legal, and it can not be permitted to
show that they were not so legal.
980. The case of Bisbee, jr., v. Finley, continued.
An election held without proper registration., under laws requiring
registration, was held to be illegal.
The honesty of election officers being impeached, the testimony of
the voters as to their own votes was admitted to destroy the return and
prove the vote aliunde.
The ballot box not having been kept inviolate, an unofficial recount
is of little value to substantiate impeached returns.
As to the weight of testimony required to overturn the presumption
that sworn agents of the law have acted rightly.
Sec. 980
(4) The laws of Florida required a registration of the electors, and
the constitution of the State commanded:
That no person not duly registered according to law shall be allowed
to vote.
Because of disregard of this provision the majority of the committee
rejected the returns of the entire county of Brevard:
The law requires one general registration book for each county, and
also another registration book for each election district into which
the county is divided; and these district books are the original books
of registration, in which each voter must write his name, or have it
written by the registrating officers, and take the oath of allegiance
to the State and to the United States, which oath is to be printed or
written at the commencement of the book. Opposite the voter's name must
appear, in proper order, the number of the election district in which
the voter resides, and the day, month, and year of his registration.
The law provides for copying by the clerk of the circuit court the
names on the district books into the general registration book. This
clerk is the registrating officer for the election district in which
his office is located, and he appoints a registrating officer for each
of the election districts of the county.
The registration must be closed ten days before the day of election,
and a certified copy of the district book is to be delivered by the
sheriff to the election officers, which copy is the legal evidence to
the officers of the election of the fact of registration, and of the
qualification of the electors whose names are on such copy.
The contestant asks that the entire election be set aside in this
county, and that no votes shall be counted for either party, on the
ground that the election was held without any registration in
conforming to the law.
The evidence relied upon consists of the testimony of one James A.
McCrory, the deputy clerk of court, who had charge of the clerk's
office, and who performed, as it appears, such duties as were performed
in this county preparatory to the election. (Record, pp. 403-405.)
This deputy clerk was a Democrat, and was examined as a witness on
behalf of contestant. It is proven by his testimony that no
registration books were provided or used in this county, and that the
only semblance or pretense of registration of the electors consists of
``loose sheets of paper'' containing the names of citizens, which were
brought into the clerk's office by the registrating officers from eight
election districts.
The whole number of such districts was twelve, and from the other
four this deputy clerk testifies that even such lists of names ``on
loose sheets of paper'' were not made and brought to the clerk's
office. McCrory can only name one district from which such irregular
lists of names were returned that contained oaths required by the law
to be taken and subscribed by the elector and registration officers.
(Record, p. 405.)
It has been called to the attention of your committee that it was
proven by the clerk of the court, and other witnesses, in the contested
election ease of Bisbee v. Hull, that there were no registration books
provided or used in this county at the election of 1878.
It also appears that by a statute of Florida, passed in 1879, a
considerable portion of the territory of the adjoining county of
Volusia was added to this county, Brevard, consequently it can not be
claimed that any of the citizens residing within this portion of the
county had the right to vote by reason of any prior registration. And
this new part of the county is included in that containing the eight
election districts in which these lists of names ``on loose sheets of
paper'' were made and delivered.
The registration books, under the laws of Florida, are public
records, and the clerk of the court is the legal custodian of them.
This deputy, who had charge of the office, could not well be ignorant
in regard to the subject-matter of his testimony, and he evidently
testified with some reluctance, which may be accounted for from the
fact that he was a political associate of contestee,
According to this testimony it is manifest that the entire foundation
for a legal election in this county was wanting. As to the four
districts in which not even the irregular lists of names ``on loose
sheets of paper'' were made, there can be no pretense that there was
any registration of any kind whatever. From these four districts 63
votes were returned for contestee and 12 for contestant.
As to the other eight election districts, it can hardly be claimed
that ``loose sheets of paper'' are registration books such as the law
requires. They could be manufactured, abstracted, and substituted at
pleasure, with slight risk of detection.
Sec. 980
To sustain this as a legal registration would do violence to the
provision of the constitution and laws of Florida, would destroy all
the safeguards against the frauds at elections which the registration
laws are intended to prevent, and would, we think, furnish greater
facilities for fraud than the absence of any registration at all.
Your committee therefore hold that the election in this county must
be set aside as illegal and void.
The principle is so well settled that an election held without
registration, under laws requiring registration, is illegal, that the
citation of authorities is deemed unnecessary.
The returns from this county give the sitting Member 222 votes and
the contestant 74 votes, which are excluded from the count.
The minority contend that the evidence does not establish the claim
of the majority, and say:
It shows that there was a substantial compliance with the registry
law, and that the voters should not, therefore, be disfranchised,
because of the neglect of the officers who may have failed to furnish
in all cases the proper registration lists. This is the law plainly
laid down in Wheelock's case (1 Norris, 297), which was decided in
Pennsylvania under a statute like the one in Florida. In Wheelock's
case it appears that the general registration list had been made, and
was on file in the commissioner's office, but there was no registration
list at all at the polls. In that case the supreme court say:
``To disfranchise all the voters of a township, as we are asked to do
in this petition, the facts on which we are required to act should show
a case free from legal doubt. If we, by our decision, should permit the
carelessness or even the fraud of officers whose duty it is to furnish
a list of voters at the elections to defeat the election and deprive
the people of the county of the officer who was elected by a majority
of their votes, we would thus make the people suffer for an act in
which they did not participate and which they did not sanction. In so
doing, instead of punishing an officer for the violation of the
election law we practically punish the voters of the county by
defeating their choice of a county officer as declared at the election.
A decision of this kind would be fraught with danger by inciting
unprincipled or unscrupulous persons on the eve of an important
election to recreate or destroy the list of voters or other important
papers in a township in which the majority may determine the result in
the county. Rules applicable to contested elections, like other legal
rules, must be uniform, and the results and consequences of decisions
therefore determine their correctness.''
(5) Over Arredonda, poll, in Alachua County, a sharp division arose.
The returns from this poll gave Finley 172 votes and Bisbee 69.
The majority report shows that in former years the vote of this
precinct had shown a vastly different party division, and says:
The return is impeached and destroyed as evidence by the testimony of
the electors themselves. Contestant has called and sworn as witnesses
259 voters, each of whom testifies unreservedly that he voted for
contestant, and it is established by other evidence that another
elector, deceased before the testimony was taken, voted for contestant,
making 260 votes cast for him at this poll, instead of 69 given him by
the returns.
The testimony of these electors will be found in the record, pages 68
to 218, inclusive. Their names are on the poll list made and returned
by the election officers (all of whom were the partisan friends of the
sitting Member but one, who was under the influence of liquor on
election day), and it can not therefore be disputed that the 260 shown
to have voted for contestant were legal electors, nor have your
committee any doubt they voted for contestant.
As to the testimony of some of these voters, the criticism is made
that they could not remember the names of all the candidates, State and
national, for whom they voted.
We do not consider it remarkable that five months after the election
an elector could not name all the candidates he voted for out of a
dozen or more on his ballot, while he would be likely to remember the
name of his candidate for Congress who had been his candidate for
Congress for three elections in succession.
Any considerable number of voters proven for one candidate in excess
of the number returned for him has always been regarded as evidence of
fraud and a legitimate method of impeaching the return.
Sec. 980
Here it is established that 191 more votes were actually cast for
contestant than were returned for him. We think it is sufficient to
exclude the return from the count, without further evidence.
One provision of the statute is that ``the ballot box shall not be
concealed from the public,'' and section 21 (of pamphlet compilation
furnished the committee at the argument of the case) reads as follows:
``As soon as the polls of an election shall be finally closed the
inspectors shall proceed to canvass the votes cast at such election,
and the canvass shall be public and continued without adjournment until
completed.''
Your committee find from the evidence that these provisions of the
statute were violated, and without any reason being assigned for so
doing.
Both the witnesses for contestant and contestee testify that after
the polls were closed the officers of the election took the ballot box
away from the polling room to a house in which they took supper, two or
three hundred yards distant from the building in which the election was
held, and the ballot box was carried inside of the supper house.
The report further holds that the ballot box was not kept with the
security demanded by the law during this adjournment, and that it was
surrounded by suspicious circumstances, impeaching the integrity of the
election officers, and says:
Without any further statement of the evidence touching the action of
the election officers on this branch of the case, your committee are of
opinion that the disregard of the mandatory provisions of the election
laws was willful and with a dishonest purpose of securing an
opportunity to commit fraud, which such laws were intended to prevent,
and that the conduct of these officers was such as to render their acts
unworthy of credit and to entirely destroy the prima facie character of
their return as evidence of the result of the election at this poll.
For this reason, as well as for the reason that the return is
impeached and destroyed by the testimony of the electors, your
committee have excluded this return from the count. The testimony with
regard to this poll taken in behalf of the sitting Member will be found
in the record, pages 378 to 394, inclusive, and the testimony in behalf
of contestant other than that of the voters from pages 186 to 196.
The precedents for excluding a return in such a case as this are
numerous, and the principles of law which we have followed are well
settled. We refer, however, to McCrary on Elections, sections 302, 303;
Brightly's Leading Cases, page 493; 1st Brewster's Reports, pages 66,
107; Washburn v. Voorhies (2d Bartlett, 54); Reed v. Julian (2d
Bartlett, 822); Finley v. Walls (Smith).
The sitting Member took the testimony of the clerk of the circuit
court of this county, to whom the ballot boxes were delivered after the
election.
This clerk, nearly six months after the election, produces the box,
opens it, examines the ballots in it, and testified that there were in
the box 85 Republican ballots, counting no name for Member of Congress;
that there were but 68 ballots for contestant, though the return gives
him 69; 148 ballots for Republican Presidential electors, whereas the
return gives them 150; and that there were but 140 ballots for
Republican candidate for governor, though the return gives him 143.
(Record, p. 399.)
It is claimed that these ballots in the box are better evidence of
the result than the testimony of the voters.
As to the testimony of this clerk, it is sufficient to say that there
is no law in Florida providing for the preservation of the ballots for
the purpose of being used as evidence; the ballots are not evidence
sufficient to overcome the testimony of the voters where the question
of fraud and tampering with the ballot box is raised. (McCrary on
Elections, sec. 276; id., 439; Washburn v. Voorhies, 2d Bartlett, 54.)
McCrary says in ``such a case the ballots might sustain the fraud.''
(McCrary, sec. 439; also Reed v. Julian, 2 Balt., 822.)
These ballots can not be entitled to much weight as evidence of the
result of the election, where it has been shown that the acts and
conduct of the election officers are unworthy of credit and their
returns set aside and regarded as unreliable. Having created for
themselves, in violation of law and their official oaths, opportunities
for tampering with the box, it is legitimate to infer that they would
endeavor to put ballots in the box that would support the return.
Sec. 981
Finally the majority conclude:
Your committee decide that the contestant is entitled to have 260
votes counted for him at this poll, or 191 in addition to his returned
vote; and as contestee has not proven any votes for himself, none can
be counted for him.
The minority analyze the evidence and conclude that, while the
adjournment was irregular, yet no chance for fraud was shown, and cite
evidence to show that there were divisions in contestant's party to
explain the increase in the vote for sitting Member. As to the proof of
the vote the minority say:
But there is a grave objection to the testimony of voters to show the
true state of a poll in such a case as this, and surrounded by such
circumstances. The voters were mostly illiterate and could not read
their tickets, and the Dennis Republican ticket did not have Mr.
Bisbee's name on it. How could they say any more than that they voted
the Republican ticket? Besides, not only are political leaders liable
to conceal their cutting a party ticket, but ignorant voters, who would
incur the odium of their neighbors for admitting a deviation from the
party paths, are also likely to deny the fact, and particularly when
they have the additional shield for their consciences that they may not
and perhaps can not know certainly how they voted.
The views also quote McCrary and other authorities to show that the
rejection of a poll is a last resort:
The case of Biddle and Richard v. Wing, supra, is also cited as
giving the correct doctrine, which holds: ``Indeed nothing short of the
impossibility of ascertaining for whom the majority of votes were given
ought to vacate an election.'' (See also McCrary, pp. 436, 437, 438.)
Under the law, as laid down in these citations, does the evidence
justify the rejection of this poll? Have all the provisions of the
election law been entirely disregarded by the election officers; and
are the returns utterly unworthy of credit? Is it impossible to
ascertain with reasonable certainty what the true vote is, and is it
necessary to exercise the dangerous power of rejecting the poll, which
the law says should only be done in extreme cases? We think not. But in
addition to the provisions of the law, which declare what kind and
amount of proof of fraud and illegality are required to reject a poll,
the contestee very properly refers also to those presumptions which the
law always throws around sworn officers, and those equally important
presumptions of law, which are always in favor of innocence and right
and against fraud and wrong. It is a well-settled and fundamental
principle of law that in all cases and at all times all presumptions
are against fraud and in favor of fairness. Fraud is never presumed,
even from suspicious circumstances. When charged it must be proved. It
is unnecessary to cite authorities in support of this. What is done by
sworn officers in the pursuit and discharge of their duties is always
presumed to be rightly done, and nothing but clear and convincing and
unequivocal proof can destroy the credit and validity of their official
acts. (See McCrary, sec. 87, etc.; see also Skerrett's case,
Brightley's Leading Cases on Elections, p. 820 and p. 333, where the
court holds this language: ``What has been done by the sworn agents of
the law is always to be presumed rightly done; and those who seek to
impeach the acts of these functionaries must not expect to be
entertained if, instead of bringing positive, tangible, and direct
changes, they content themselves with general, argumentative, and
theoretic imputations.'')
981. The case of Bisbee, jr., v. Finley, continued.
Returns of a poll being rejected, the vote proven aliunde by one
party is counted and nothing is credited to the other party unless he
also prove aliunde.
The ballots in the box exceeding the names on the poll list, and the
returns being impeached by the testimony of voters, the poll was
rejected.
Instance wherein the House purged and did not reject a poll whereof
the election officers had acted unfairly in drawing out of the box
excess ballots.
Sec. 981
Instance of the rejection of a poll for intimidation participated in
by an election officer and general disorder.
The House deducted on account of an uncertified precinct return,
although only the parol evidence of a single witness showed that it was
included in the county canvass.
The House, on the testimony of one witness, assumed that county
canvassers had improperly included an uncertified return.
(6) As to Newtonsville poll the majority report says:
The charge is made that fraud was committed at this poll by stuffing
the ballot box with Democratic ballots. Two hundred and ninety-six
votes were returned, 150 for Bisbee and 146 for Finley. (Record, p.
19.)
By the electors called and sworn as witnesses it is proven that 168
votes were cast for contestant; 18 in excess of the number returned.
(Record, pp. 23-65 and pp. 296-313.)
It is also clearly proven that when the polls closed there were 29
more ballots in the box than names of electors on the poll list, which
excess was drawn out and destroyed (Record, pp. 31, 182, 185); that
Democratic ballots were found in the box folded together, which were
counted; that before the ballots were counted a Democratic officer
stirred or mixed the ballots up with his hand (Record, p. 183); and,
after drawing out and destroying 21 ballots, on a second count 8 more
in excess of the poll list was discovered, which were drawn out by the
Republican inspector.
It is proven that 5 of the 8 so destroyed were Republican ballots,
and that the greater portion of the other 21 were also Republican
ballots. We conclude from the evidence that this excess was caused by
the voting of two or more ballots by one voter, and that this was done
by the supporters of contestee.
The report concludes:
On the part of contestant it is insisted that the return should be
rejected, and only the votes otherwise proven counted. And our
attention is called to the case of Washburn v. Voorhees (2d Bartlett's
Reports, p. 54), where returns were rejected on proof of an excess of
votes proven for one candidate over his returned votes of about 8 per
cent, and at one poll of 4 per cent of the total vote returned.
McCrary says (sec. 371), ``It is very clear that if the returns are
set aside no votes not otherwise proven can be counted.'' The supreme
court of New York, in 7 Lansing, 274, and other authorities, have
declared and applied this as a settled principle, which we do not
propose to overrule.
Another well-settled principle is that no poll shall be entirely set
aside if the return can be corrected with reasonable certainty. The
only correction of the return which, from the evidence, could possibly
be made would be to count 174 votes for contestant and 121 votes for
contestee. While we think this would approximate the probable true
state of the vote at this poll we can not say from the evidence that
such a result is reliably proven. The only other disposition that can
be made of this poll is the rejection of the returns and count no votes
save the 168 proven for the contestant, and from the views we have
taken of the whole case it is not material to the final result which
alternative is adopted.
The minority challenge the competency of the evidence and fall back
on the presumption that the sworn officers have done their duty. It was
also argued in the debate that, as the law provided for drawing out the
excess of ballots, the proceedings were regular.
The majority also set aside the Parker's store poll:
There were but 306 votes returned for Representative in Congress, 151
for Bisbee and 155 for Finley. (Record, p. 262.) There are 336 names on
the poll list. (Record, p. 374.)
It is satisfactorily proven by the electors sworn as witnesses for
contestant that 179 votes were cast for him instead of 151 returned, an
excess of 28 votes. (Record, pp. 323-371.) There were ballots in the
box at the close of the election in excess of the poll list to the
number of 6 or 7 (Record, p. 355), and 5 votes tendered by Republicans
and rejected, which are included in Exhibit A of the appendix.
Sec. 981
This excess of 28 votes proven for contestant over the number
returned for him is not explained in any manner by the testimony.
Whether it is the result of fraud in the officers of election or of
gross carelessness in the count there is no proof to show, but upon the
testimony adduced it must have been one or the other. In counting so
small a number of votes it is wholly improbable that the election
officers innocently made the mistake of suppressing 28 votes for
contestant--nearly one-sixth of the total vote cast for him. Contestee
has not taken any testimony with respect to this poll, and we are
required to dispose of this question upon the evidence in the record.
There is no evidence by which the return can be corrected. The return
is proven to be unreliable as evidence of the true vote, and the latter
can not be ascertained by any other evidence.
``We think, therefore, that this return should be set aside and that
no votes not otherwise proven should be counted.
It may be claimed that it would be proper to credit contestee with
the difference between the returned total vote and the number proven
for contestee, but this would be an assumption without evidence and an
evasion of the rule that when a return is rejected each candidate must
prove his vote by other evidence.
If legal votes were cast for contestee he had an opportunity to prove
them, but he neglected to do so.
(7) In Madison County the majority report finds evidence of wholesale
fraud, whereby excess of ballots over the poll lists were created, and
then in the drawing out the ballots for contestant were deducted. But
violence in this county prevented the contestant taking testimony
fully. The report says:
To detail at length all the occurrences in this county as disclosed
by the evidence would enlarge the report beyond proper limits, and
therefore the statement will be condensed as much as possible.
It is in evidence that the Democratic ballots voted in this county
were not more than half the size of and of finer quality of paper than
the Republican ballots, and could be readily distinguished from the
latter by even the sense of touch. This fact is established by the
testimony of the witnesses of both contestant and contestee, and by
specimens of ballots in evidence, and it is unnecessary to further
allude to the evidence on this point. Likewise, upon the question of an
excess of ballots, and of two or more having been folded so that one
would be partially inclosed in another, and in such manner as when
handled or shaken they would separate, there is no disagreement between
the witnesses of the contestant and contestee.
The committee find that the sitting Member did not examine any
witnesses with regard to any of the polls in this county except polls
Nos. 1 and 2 in the town of Madison, and that his witnesses support the
testimony adduced by contestant concerning difference in ballots,
excess over poll lists, and the folding together of the same; that the
contestee did not interrogate any of his witnesses as to the character
of ballots drawn out and destroyed, whether they were Democratic or
Republican; and as it was a very material thing to be established, the
inference to be drawn is, that the contestee's attorney was aware of
the fact that in the main they were Republican ballots, and that the
testimony on behalf of contestant, taken before contestee examined his
witnesses, establishes the fact that they were Republican ballots thus
drawn out and destroyed. From this evidence the committee concludes
that the following Republican ballots were drawn from the ballot boxes
and destroyed, to wit: At the Greenville poll, 52; at the Madison poll
No. 1, 52; at Madison poll No. 2, 14 votes, and that 20 more in excess
on the second count were counted, which added that number illegally to
contestee's vote; at Cherry Lake poll, 14 votes, and at Mosely Hall,
No. 4 poll, not less than 10 votes.
The committee are therefore of the opinion that the fraud thus
committed at the five polls last mentioned should be corrected by
adding 142 votes to the contestant's vote and deducting 162 votes from
contestee's vote. By thus correcting and purging the polls in question
the contestant's majority at the five polls will be increased 304
votes.
The minority views say:
It is contended in behalf of contestant in regard to the Newnansville
poll, in Alachua County, that the following language (quoted from
McCrary) gives the true rule of law, viz:
``It is very clear that if the returns are set aside no votes not
otherwise proven can be counted.'
This we admit is the true rule of law, and it is a gross
inconsistency that would apply it to Alachua
Sec. 981
County and would wholly depart from it in Madison County and attempt to
set up an entirely new rule for which there is not an authority or
precedent in the books.
The only way known to the law of disposing of such a case is either
to accept the returns or to reject them in toto and put both parties
upon the proof of their respective vote aliunde. But the contestant
seeks to establish an entirely new rule, unknown to the law.
The law can not bend to suit the purposes of either party to the
contest.
There is no principle of law more clearly established, says McCrary.
``And the safe rule probably is that when an election board are
proved to have willfully and deliberately committed a fraud, even
though it affect a number of votes too small to change the result, it
is sufficient to destroy all confidence in their official acts and to
put the party claiming anything under the election conducted by them to
the proof of his votes by evidence other than the return.'' (See
McCrary on Elec., p. 174.)
McCrary, on page 372, says:
``If the fraud be clearly shown to exist to such an extent as to
satisfy the mind that the return does not show the truth, and no
evidence is furnished by either party to a contest, and no
investigation of the committee to enable them to deduce the truth
therefrom, then no alternative is left but to reject such a return.
``To use it under such a state of facts is to use as true what is
shown to be false.'' (See Washburn v. Voorhees, 2 Bartlett, 54.)
This statement of the law is peculiarly applicable to all the
precincts attacked in Madison County.
There are but two ways known to the law of disposing of Madison
County--either to let the returns stand as officially made or to
discredit them altogether. For if they are false they can not be used
for any purpose.
(8) Contestant impeached poll No. 3 in Hamilton County because of
violence and disorder. The report finds:
Your committee find from the evidence that these charges are
substantially sustained, and that the election at this poll was not, in
any just sense, a free and fair election.
It is proven by a number of witnesses that the political supporters
of contestee in several instances led colored men to the polls in a
state of intoxication, which they had designedly, produced, and forced
them to vote a Democratic ticket; and that from the efforts of
Republicans to prevent such conduct and to secure the right of each
elector to vote a free ballot violent quarrels ensued in front of the
polling window, and that the immediate vicinity of the polls was a
scene of disorder, lawlessness, and threats of personal violence,
continuing a considerable portion of the day, and that by such means
the result of the election at this poll was effected.
It was also proven that the officer of election who received the
ballots sat in the window of the poll with a revolver exposed on his
person, and that he rejected votes illegally. The deputy marshal was
compelled to abandon efforts to maintain order, and several witnesses
testified that in their opinion twenty or thirty votes were changed
from contestant to sitting Member by the methods used. The committee
conclude the poll should be set aside.
(9) The return from Fort Christmas was not signed by the election
officers, and the report holds such return illegal and rejects it.
The minority say:
It is claimed that the whole vote of this poll should be rejected on
the ground that the precinct return does not show that it was signed by
the inspectors of this poll. There is no fraud alleged as to this
omission.
The contestant makes the proof by the parol evidence of a single
witness that the returns from this poll were included in the county
canvass. This is not the best evidence, yet, if we take it as
admissible evidence, the presumption of law is that the county
canvassers properly and legally admitted the returns from this poll in
the absence of proof to the contrary. The election laws of Florida
require that the poll list, the oaths of the inspectors and clerk, and
the registration list of the precinct be returned,
Sec. 982
as well as the certificate of the vote, by the precinct officers. From
some or all of these papers it might well appear to the board of county
canvassers that the returns from any given precinct were authentic.
It would be against the well-established law to reject this poll on
that ground. Nothing can be more familiar than the rule laid down by
McCrary, sections 87 and 91:
``It is well settled that the acts of public officers within the
sphere of their duties must be presumed to be correct until the
contrary is shown.''
It is presumed that the county canvassing board properly canvassed
the vote of this poll, no evidence to the contrary being produced.
(10) Other irregularities were discussed and decision reached on
questions of fact largely.
In conclusion, the report summarizes and concludes:
Which deducted from the last stated result gives for Finley 12,309;
Bisbee, 12,954, and a majority for Bisbee of 645.
Now, concede to contestee at the two polls of Newnansville and
Parker's Store, Alachua County, the difference between the total
returned vote for Representative and the votes proven for contestant,
and 255 votes would be deducted from Bisbee's majority, leaving him 390
majority. And even if the polls in Brevard County No. 3, Hamilton
County, and Fort Christmas poll, Orange County, were not rejected,
contestant would still have a majority of 147 votes.
In any view to the case founded upon the law and the evidence, the
contestant has a majority of the legal votes cast.
Accordingly the majority reported resolutions declaring contestant
elected and entitled to the seat. The minority found sitting Member
elected.
The report was debated at length on June 1,\1\ and on that day the
resolutions of the majority were agreed to, yeas 141, nays 9, the
minority refraining generally from voting for obstructive purposes.
Mr. Bisbee then appeared and took the oath.
982. The South Carolina election case of Lee v. Richardson, in the
Forty-seventh Congress.
Discussion as to the degree of intimidation which will justify the
rejection of an entire poll.
The House expressed the opinion that the storing of guns adjacent to
the polls and the presence of disorderly persons who might naturally
use them constituted effective intimidation.
Instance wherein the Committee on Elections purged and did not reject
a poll whereof the election officers had withdrawn excess ballots
unfairly.
On February 24, 1883,\2\ Mr. William H. Calkins, of Indiana, from the
Committee on Elections, presented the report of the majority of the
committee in the South Carolina case of Lee v. Richardson. On the face
of the returns sitting Member had a majority of 8,468 votes, but
contestant alleged in substance that this was a dishonest majority,
obtained by fraud and intimidation.
The committee examined the charges, precinct by precinct, and a
minority of seven members of the committee, headed by Mr. A. H.
Pettibone, of Tennessee, found enough changes justified, in their
opinion, to create a majority of 284 votes for contestant. In reaching
this conclusion the minority rejected the returns of
-----------------------------------------------------------------------
\1\ Record, pp. 4421-4445; Journal, pp. 1388, 1389.
\2\ Second session Forty-seventh Congress, House Report No. 1983; 2
Ellsworth, p. 520.
Sec. 982
Darlington precinct, where 1,271 votes were returned for Richardson and
117 votes for Lee.
Mr. Calkins, in the report, states that in the main he agrees with
the minority views, but differs as to Darlington, which is decisive,
for unless it be rejected the contestant can not overcome sitting
Member's majority:
The main difference of opinion is with reference to Darlington
precinct. At that precinct Richardson received 1,271 votes and Lee
received 117. I do not think the evidence is sufficient to reject this
return; it is purely a question of evidence, and I can not bring myself
to believe that the evidence is sufficient to justify its rejection.
There is no evidence in the record tending to prove how the vote would
stand on the theory of contestant, if the return was rejected. I think
the evidence with reference to this precinct fairly establishes two
propositions, viz: First, that the colored voters, on the morning of
election, in large numbers, took possession of the market house where
the elections were usually held. For some reason, not apparent, the
poll was opened at the court-house, instead of the market house, and
the white voters at the opening took possession of it. Attempts were
made by the colored voters, early in the day, to force their way to the
box to vote, which seems to have been prevented by the white voters
crowding the stairs leading to the box. This led to crimination and
recrimination and considerable confusion and excitement, and a rumor
seems to have prevailed among the colored voters that several stands of
arms had been brought to the town the night before the election by the
white Democrats, and that they were concealed in the courthouse and in
Early's store. Whether this was so or not is immaterial in the view
which I have taken of the testimony. There was no physical display of
the guns on the day of election, and I find as a matter of fact that
probably as early as 10 o'clock, and certainly not later than 11
o'clock on the day of election, the colored voters, under the advice of
one Smith, who was a leader and man of influence among them, dispersed
and did not attempt again to vote on that day at that poll. The danger
of bodily harm was not sufficiently imminent to warrant this course,
and there was an entire lack of diligence on the part of these voters
to maintain their right to vote. As a matter of law these voters had a
right to vote at any precinct in the county; there was another voting
precinct not many miles from Darlington, and there is no reason given
why they might not have voted at that precinct if they were driven away
from Darlington. For these and other reasons I am persuaded that
Darlington should remain, and therefore submit the following
resolutions, in which a majority of the committee concur:
Resolved, That Samuel Lee have leave to withdraw his papers, and this
case is dismissed without prejudice.
The minority say:
But it is very evident from the testimony that intense excitement
prevailed at Darlington on the day of the election. The polls were held
at a different place from the usual one.
The witness McCall, a county commissioner of election (Record, p.
111), admits that the place was less convenient. It was up in the
second story of the court-house, 15 feet above the ground, with two
stairways leading up to the ballot box.
It appears from all the testimony that the Democrats, dressed in red
shirts and caps, took possession of the polls from the outset.
J. A. Smith (Record, p. 106) states that from 700 to 800 Republican
were prevented from casting their votes by reason of intimidation. He
says:
``I made three attempts to reach the ballot box-myself and others; I
found it impossible to do so without a collision with the Democrats and
red-shirts, who had the steps packed from bottom to top.''
Aimwell Western, Jr. (Record, p. 92), states that from 800 to 1,000
Republicans left the polls without voting. He also states that on the
night before the election two wagons loaded with guns came on the back
street and they were carried down the street next to the court-house. A
portion was placed in a store of one Early and ``some were put in the
court-house where the ballot box was.''
On Record, page 94, he gives the names of the men who unloaded those
wagons: Moses Bishop, Sam Hinds, Rosser Hart, and Charlie Bishop. He
states that Moses Bishop and Sam Hinds carried a portion of those guns
upstairs where the ballot box was. It appears from his testimony that
guns were
Sec. 982
brought on the train about 12 o'clock at night, which train neither
blew a whistle nor rung a bell. The guns were tied up in blankets in
large bales.
None of the persons who handled the guns were called as witnesses to
deny the statement. A great many witnesses were called by Mr.
Richardson who did not see any guns and did not see any intimidation.
After quoting from testimony, the minority continue:
The depositions of 240 witnesses appear in the Record, who swear they
were present at the Darlington poll and desired to vote for Mr. Lee,
but were prevented from so doing by threats or intimidation. Convinced
they could not vote without danger of riot and bloodshed, hundreds
withdrew from the poll. There is counter testimony in the Record, but
it is from the very parties complained of, and from comparatively few
other witnesses.
Your committee are compelled to say, from all the evidence, that the
case of Darlington poll falls within the principle laid down by
McCrary, as follows:
``Sec. 416. The true rule is this: The violence or intimidation
should be shown to have been sufficient either to change the result or
that by reason of it the true result can not be ascertained with
certainty from the returns. To vacate an election on this ground, if
the election were not in fact arrested, it must clearly appear that
there was such a display of force as ought to have intimidated men of
ordinary firmness.''
Here it is proper to remark that up to 1878 Darlington precinct
always was largely Republican.
A few years ago the Republicans used to poll 1,200 to 1,300 votes at
that poll. See testimony of John G. Gatlin (Record, p. 79), John Lunney
(Record, p. 81), Jordan Lang (Record, p. 95).
At the election in 1880 Mr. Richardson is credited by the schedule,
which purports to be certified to by the clerk, Garner, but which he
testifies he did not certify, as having received 1,271 votes to 117
votes for Mr. Lee; and from the impossibility of ascertaining how the
actual vote stood at Darlington poll, by the disregard on the part of
the county commissioners to forward the returns and Poll list to the
secretary of state, in violation of a plain provision of law, and from
the fact that intimidation and violence prevented hundreds from voting,
your committee reject Darlington poll from the count.
The only issue joined in the report or in the debate is as to
Darlington precinct. As to the ruling in the minority views, relating
to other precincts, whereby such reductions were made as to enable
Darlington to be decisive, it is to be inferred, perhaps, that a
majority of the committee might have approved them had it been
necessary. They involve the treatment of fraud and irregularities, of
which a few sample cases are:
(1) Santee, Sampit, and other polls, at some of which honest
elections were held, and at all of which it was possible to reach a
true result, and where contestant had large majorities, were thrown out
by the county commissioners because the boxes were ``sent without a
written certificate authorizing the bearer to deliver it.'' The
minority views held this reason flimsy and counted the polls.
(2) At Upper Waccamau the minority disposed of a question which is
typical of a class in this contest:
This precinct was rejected by the Democratic county commissioners for
the same reasons--purely technical. The managers who held the election
were all Democrats (Record, p. 810). They were Mr. Richardson's
political friends, and ought to have seen that no fraud was
perpetrated, as against him at least. But Bently Weston and R. F.
Johnson, the two supervisors, one a Democrat and one a Republican,
reported (Record, p. 814) and Johnson swears that there were 432 names
on the poll list; that an excess of 50 ballots were found in the box.
This excess was drawn out and destroyed by a Democratic manager, but by
a singular perversity of fate 48 of the ballots were Republican and
only two Democratic. And, as a specimen, let the following testimony of
R. F. Johnson show:
Question. How many, if any, Democratic ballots were found together in
one at the counting of the ballots at the close of the poll?--Answer.
Twelve in one.''
Sec. 983
After this manipulation the Democratic managers gave to Mr. Lee 341
votes and to Mr. Richardson 90, which gave Mr. Lee 251 majority, and
this was rejected by the Democratic county commissioners and utterly
cast away.
Reversing this process of gross and palpable fraud, even the
Democratic managers, whose business it was to see justice done,
admitted and certified to a majority for Mr. Lee of 251, and
remembering that 48 honest votes given to Mr. Lee were drawn out and 48
votes not honestly given to Mr. Richardson were left in the box, thus
taking from Lee 48 votes which belonged to him and adding to Mr.
Richardson's vote 48 votes which did not belong to him, Mr. Lee's vote
is swelled to 341 plus 48, which makes 389, and Mr. Richardson's is 90
less 48, which gives him 42 votes; and this clearly gives Mr. Lee at
this poll a majority of 347 votes, instead of 251.
983. The case of Lee v. Richardson, continued.
The Elections Committee reversed the action of local canvassers who
had rejected returns transmitted by an election officer of doubtful
appointment.
The Elections Committee declined to ratify the rejection of a poll
because it had been closed too early, no injury being shown.
The resolution before the House providing that a contestant have
leave to withdraw, the mere adoption of an amendment to seat contestant
does not thereby decide the case.
After an amendment in the nature of a substitute is agreed to, the
question must then be taken on the original proposition as amended.
(3) As to Rafting Creek precinct the minority made this ruling:
Here, as usual, all the managers appointed by the county
commissioners were Democrats. One of them, however, Mr. McLeod, did not
serve by reason of a broken arm. (See Record, p. 34.) Prince A. James,
a colored am, was chosen by the other two managers, both Democrats, to
fill his place. (See Record, p. 15.) A fair election appears to have
been held, by all the testimony given in evidence. The result was that
for Lee were cast 313 votes, and for Richardson, 51 votes. This gave to
Mr. Lee 9, majority of 262 votes. (See Record, pp. 33 and 249.)
The returns and ballot box were placed by the managers in the hands
of Prince A. James to be delivered to the county commissioners. But on
the pretext that James had not been appointed by them as one of the
managers, these sternly righteous commissioners refused to count the
vote at all, and threw out the entire poll. (See testimony of D. J.
Winn, pp. 7 and 8, and E. P. Ricker, pp. 47 and 48.)
Your committee believe that an immense majority of all honest
American would say at once, since no one questioned the integrity of
the election at Rafting Creek poll, Mr. Lee's majority ought to be
counted for him. Your committee feel that they are compelled so to
count the vote; and Mr. Lee's majority of the honest votes, honestly
cast, honestly counted, honestly returned, but rejected by the county
commissioners, was 262 votes.
(4) As to the rejection of the poll of Midway precinct by the county
commissioners, the minority ruled:
The only objection to this poll is that the managers, all politically
opposed to Mr. Lee, closed the polls at too early an hour.
J. J. Morris, one of these managers, swears that this was done on the
suggestion of Mr. Mouzon (Record, p. 717), while Mr. Mouzon swears
(Record, p. 493) that it was done ``at the suggestion of some of the
managers.'' Your committee thinks that even if Mouzon gave bad advice
the managers were not bound to take it, and since the contestee does
not even pretend that anyone was deprived of voting at this poll by
reason of its too early closing, your committee can not agree on such a
technicality that the poll should be thrown out and Mr. Lee deprived of
his majority of 83 votes. It is true that one witness, R. K. Hurst,
swears (Record, p. 717) that Henry Williams, a colored man, told him he
intended
Sec. 983
to vote the Democratic ticket, but after Hurst voted and left he voted
the other way. As Williams was not called, and the testimony is purely
hearsay, your committee can not agree that this poll should be thrown
out.
The minority, as the result of their conclusions, recommended the
following:
I. Resolved, That John S. Richardson was not elected as a
Representative to the Forty-seventh Congress of the United States from
the First Congressional district of South Carolina, and is not entitled
to occupy a seat in this House as such.
II. Resolved, That Samuel Lee was duly elected as a Representative
from the First Congressional district of South Carolina to the Forty-
seventh Congress of the United States, and is entitled to his seat as
such.
The report was debated on March 3, 1883,\1\ and on that date the
question was taken \2\ on a motion to substitute the minority
resolutions for those of the majority; and there appeared, yeas 124,
nays 111. So the motion was agreed to.
The question then recurred on agreeing to the resolution of the
majority as amended by the minority substitute, and there appeared,
yeas 128, nays 6--not a quorum voting.
Two other roll calls resulted the same way. Then a motion was made to
reconsider the vote by which the previous question was ordered on the
pending resolution as amended, and another motion to lay the first
motion on the table. On the latter motion no quorum voted, although
five roll calls were had.
And this was the state of the question when the House adjourned sine
die.\3\
-----------------------------------------------------------------------
\1\ Record, pp. 3745-3752.
\2\ Journal, pp. 621, 625, 632, 640, 642, 646.
\3\ Mr. Lee in later years had before Congress a claim for salary on
the ground that really, although not technically, the House decided in
his favor.