<DOC>
[Hinds Precedents -- Volume II]
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[DOCID: f:hinds_xxxviii.wais]
Chapter XXXVIII.
GENERAL ELECTION CASES, 1895 TO 1897.
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1. Cases in the first session of the Fifty-fourth Congress.
Sections 1062-1094.\1\
2. Cases in the second session of the Fifty-fourth Congress.
Sections 1095, 1096.
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1062. The Missouri election case of Van Horn v. Tarsney, in the
Fifty-fourth Congress.
The returns and ballots of several precincts being tainted by a
general conspiracy of election officers, the House rejected the entire
returns of those precincts.
Discussion as to the wisdom of attempting to purge a poll whereof
both returns and ballots axe discredited by fraud of election officers.
Instance wherein a returned Member presented as a question of
privilege a proposition to reopen his election case for further
testimony.
When contestee submits an affidavit to justify his request that his
election case be reopened, the affidavit must be definite and specific.
Where a State law does not provide for reinspection of ballots, may
they be examined under authority of the law for taking testimony in
election cases?
Evidence of voters as to their votes is of doubtful validity if taken
several months after election.
On December 28, 1895,\2\ Mr. John C. Tarsney, of Missouri, presented
as a question of privilege a resolution authorizing the reopening of
the contested-election case of Van Horn v. Tarsney, so that additional
testimony might be taken
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\1\ The following cases during this session are classified elsewhere:
Benoit v. Boatner, Louisiana. (Vol. I, secs. 337, 339.)
Beattie, v. Price, Louisiana. (Vol. 1, sec. 341.)
McDonald v. Jones, Virginia. (Vol. I, sec. 436.)
Hoge v. Otey, Virginia. (Vol. 1, sec. 724.)
Rosenthal v. Crowley, Texas. (Vol. 1, sec. 684.)
Davis v. Culberson, Texas. (Vol. I, sec. 755.)
Goodwyn, v. Cobb, Alabama. (Vol. I, sec. 720.)
Chesebrough v. McClellan, New York. (Vol. I, sec. 723.)
Belknap v. McGann, Illinois. (Vol. I, sec. 744.)
Several Mississippi cases. (Vol. I, sec. 754.)
\2\ First session Fifty-fourth Congress, Journal, p. 83; Record, pp.
401, 402.
Sec. 1062
and made a part of the record in the case. Mr. Tarsney presented to the
House, to show the materiality of the additional testimony, an
affidavit, which was read.
Then, after debate, the resolution was referred to the Committee on
Elections No. 2.
The committee did not report directly on this resolution, but on
February 13, 1896,\1\ Mr. Henry U. Johnson, of Indiana, reported on the
whole case, and at the same time minority views were presented by
Messrs. R. W. Tayler, of Ohio, and James G. Maguire, of California,
wherein the real issue of the case was presented--whether or not
additional testimony should be taken.
Mr. Tarsney had been returned by an official plurality of 745 votes,
which the contestant attacked on the ground of fraud and illegality.
The majority of the committee analyzed the vote of only four
precincts of Kansas City, finding it so tainted with fraud that it
should be rejected entirely, thereby eliminating the plurality of the
sitting Member and giving to the contestant a plurality of 375 votes in
the district. The minority of the committee admitted fraud and
conspiracy in three of the four precincts and acknowledged that if the
vote of these precincts should be rejected the contestant would be
shown to be elected. But the minority urged that the case should be
reopened, and presented resolutions recommitting the case with
imstructions--
that additional evidence be taken in said case, under such rules and in
such manner as shall be adopted and prescribed therefor by the said
committee, such additional evidence to be confined to the condition and
custody of the ballots cast in the second, fifth, sixth, seventh,
twenty-seventh, and fifty-second precincts \2\ of Kansas City * * *; to
the segregation of the illegal from the legal ballots in such
precincts, and to the recount of the legal ballots cast in such
precincts for Representative in Congress, and to include also duly
certified copies of all poll books of such precincts not now in
evidence.
Therefore the issue was joined on the question whether the vote of
the four precincts should be entirely rejected or whether the ballots
should be examined and the vote purged.
As bearing upon this issue the committee give details of an evident
and acknowledged conspiracy to commit frauds led by an official known
as the recorder of votes and participated in by election officials. In
pursuance of this conspiracy the registration lists were padded with
fraudulent names; the recommendations of contestant's party for
representation on the election boards were disregarded so as to nullify
the law guaranteeing representation; the challengers and witnesses
which the law allowed to contestant's party were excluded from the
polls. By precincts the details of the conspiracy were worked out as
follows:
Fifty-second precinct: Here the returns gave Mr. Tarsney 363 votes
and Mr. Van Horn 183. The testimony showed that the windows of the
polling place were soaped to screen the manipulations of the election
officers; that 115 ballots that had been cast for contestant's party
were withdrawn and their registration and voting numbers were given to
straight tickets of sitting Member's party, which were counted; that
other ballots were taken from the box, and that others were burned. The
names of 90 persons were found on the poll books who could not
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\1\ House Report No. 355; Rowell's Digest, p. 515.
\2\ As reported in the minority views, this resolution included only
the four precincts discussed in the report of the majority. The
additional precincts were included afterwards. (Record, pp. 2131,
2234.)
Sec. 1062
be found in the precinct, and many of the names were registered from
vacant lots. A witness who cast his ballot early in the morning
nevertheless found that its consecutive number was 300. Another, who
got a view through a clear space in the window, saw one of the judges
putting votes into the ballot box when no one was voting. The committee
find that--
The poll was perfectly saturated with corruption. As a consequence of
this the returns and also the ballots, which passed through corrupt
hands, are so tainted with it as to be inadmissible as evidence and
unworthy of credit. They can not be looked to for the purpose of
purging the poll and ascertaining the honest vote cast. Indeed, the
ballots are not in the record at all, nor is there before the committee
any satisfactory testimony to which they can resort in order to find
out the true result. They therefore cast the entire precinct out of the
count.
Seventh precinct: In this precinct 270 registered persons, who were
marked as having voted, could not be found, and many were registered
from vacant lots, vacant houses, etc. The total vote also was swelled
beyond reasonable limits. Testimony showed that ballots cast by voters
were withheld by Judges and others substituted and placed in the box.
The law required each voter to be numbered on the poll book in the
order in which he voted, and the first 200 voters appeared to have
performed the astonishing feat of coming to the polls in the
alphabetical order of their names; and three men who voted immediately
after the polls were opened found themselves numbered, respectively,
205, 206, 207. Of these frauds the committee say:
Their extent baffles inquiry. It is not known at what point the
corrupt officers of election stopped short in their dishonest
practices. * * * The returns are tainted, the ballots are not in the
record, and even if they were could not be received as evidence
entitled to credit; nor is there any kind of evidence before the
committee by which the poll can be purged and the honest vote be
ascertained. It must therefore be thrown out entirely.
Sixth precinct: The testimony showed that 341 persons registered and
marked on the poll book as voting could not be found, and many were
registered from vacant lots. Persons who were marked as voting
testified that they did not vote; the first 200 voters appeared as
voting in alphabetical order, and the total vote of the precinct was
swelled beyond reasonable limits. There was nothing in the record
whereby the precinct could be purged.
Fifth precinct: The testimony showed that 400 of the persons
registered as voters could not be found, many being registered from
impossible places. Persons were recorded as voting in alphabetical
order. There was testimony to show that large numbers of fraudulent
ballots were put in the box on the night before election. The majority
of the committee in this as in other cases favor throwing out the
entire vote.
The entire committee substantially admitted the facts as to the
frauds, but not the conclusion that the entire votes should be
rejected.
The application of sitting Member for authorization to reopen the
case, and the status of the ballots as evidence should the request be
granted, were questions producing division.
The majority found that the affidavits of the sitting Member were too
indefinite and insufficient to authorize the reopening of the case. As
to the request that the ballots be inspected, the majority find that it
was made too late, and that the excuse as to lack of a law of Missouri
authorizing such inspection, the provisions of
Sec. 1062
State law being confined simply to inspection of ballots in contests
for local offices, was not well founded. ``He also cites,'' say the
committee, ``decision of the State court that even the grand jury could
not inspect them in the investigation of election frauds.'' The
Constitution of the United States, however, provides that each House
shall be the judge of the elections, returns, and qualifications of its
own Members, and to enable the House of Representatives the more
readily to exercise this prerogative Congress passed a statute
prescribing the methods to be observed in contests for a seat therein,
under which statute this contest was being conducted. The Constitution
and this statute enacted pursuant thereto are by the very provisions of
the Constitution the supreme law of the land, and the judges in every
State are bound thereby, anything in the constitution or the laws of
the State to the contrary notwithstanding. The minority of the
committee do not agree to this reasoning, and hold that the ballots
might not have been exhibited ``to any officer or commissioner other
than a duly authorized representative of either of the Houses of
Congress.''
The majority of the committee, construing Mr. Tarsney's application
for a recount to apply to 100 of the 200 alphabetical ballots in the
Fifth precinct, show that the result could not be changed whatever
might be shown by this limited recount. The minority deny that the
application was so limited, and declare that it contemplated a general
purging.
As to the admissibility of the ballots as evidence, the majority of
the committee say:
The proposition is to offer these alphabetical ballots in evidence,
or what is practically the same thing, prove their contents and
condition by witnesses who saw them at the time of this recount, in
October, 1895. Of course it is expected that such evidence will be
received and considered by the committee and the House when so taken.
It is submitted, however, that such evidence is not competent and
credible, and ought not to be regarded, as hereinbefore stated in this
report.
The ballots, like the returns, are tainted. They have passed through
the hands of fraudulent and corrupt officers of election, and thus
their credibility and integrity are destroyed.
This principle is one laid down in all the text-books on the subject,
and has found frequent recognition in the determination of contested-
election cases by the House, some of which authorities have been
heretofore cited in this report. Being founded in reason and
experience, this principle ought not to be disregarded in this
instance.
The majority further find that in addition to the original taint, the
ballots had been tampered with in the office of the corrupt recorder of
votes. The minority did not agree to this, but contended that the
testimony failed to show that the ballots preserved by the proper
officer were not the identical ballots cast and counted.
Mr. R. W. Tayler, of Ohio, who submitted individual views, showed
that by the law of Missouri the ballots were all preserved, each marked
with the voting number of the voter. An examination of the poll book
would reveal his voting number and his ballot would be found with the
corresponding number. [The majority combatted this in debate by showing
that the ballot offered by the voter was sometimes changed for a
different ballot, which took its number and went into the box.] But Mr.
Tayler contended that the precincts could be purged satisfactorily,
saying:
We can thus, with reasonable definiteness, appraise the fraud and be
relieved from the necessity of invoking the dangerous and mischievous
doctrine that a poll, tainted with fraud and not purged, must be
entirely disregarded. This drastic method is never to be resorted to
except in case of absolute and
Sec. 1063
unavoidable necessity. The disfranchisement of honest voters thereby
wrought is too grave a wrong to be permitted if, by any possibility, it
can be averted. * * *
I am therefore convinced that, under these circumstances, it was the
duty of the committee to take the testimony of the ballots and thereby,
if the contestant was honestly elected, to say so with certainty. His
title would no longer rest upon conjecture and inference, and the
committee and the House would be forever relieved from the imputation
of having acted in a partisan spirit.
The doctrine of throwing out entire returns by reason of fraud, while
tolerable in theory and sometimes essential in practice, is,
nevertheless, most vicious and unhappy in its application.
I doubt if a single instance will be found in a legislative
contested-election case where a proposition to strike out an entire
return, if of the substance of the case, was decided on any other than
party lines.
A principle thus fostered and thus abused is not a principle to be
invoked, except where the exigencies of the case absolutely demand it.
The minority report presented by Mr. Maguire conceded that the
returns werediscredited; but contended that the ballots were preserved
as they were cast; that it was possible to separate the legal from the
illegal, and purge instead of reject the votes of the precincts.
The majority of the committee also disapproved a proposition to take
the testimony of voters. It might have been done immediately after the
election, but ``now, after the lapse of sixteen months, under changed
circumstances, in a population shown to be shifting and migratory, when
the facts have faded from the memory of the people, under the
opportunity to commit perjury with immunity,'' the committee considered
it useless and unwise.
On February 25, 26, and 27 \1\ the report was debated at length, the
issue being joined principally on the question of a recount of the
ballots. On the latter day, by a vote of yeas 110, nays 163, the House
disagreed to the resolution of the minority proposing a reexamination
of the case; and then, without division, the resolutions of the
majority declaring contestee not entitled to the seat and that
contestant was elected were agreed to. Mr. Van Horn, the contestant,
was then sworn in.
1063. The New York election case of Campbell v. Xiner in the Fifty-
fourth Congress.
Testimony which merely raises a presumption that money was used for
bribery is not sufficient to affect the determination of an election
case.
The Elections Committee declined to recommend the reopening of a case
for further testimony on facts not set forth in the notice or
substantiated by testimony.
The ordinary provisions of the Australian ballot system for placing
names of candidates on the ticket is hardly a violation of section 1,
Article XIV of the Constitution., relating to equal protection of the
laws.
On January 22, 1896,\2\ Mr. Henry U. Johnson, of Indiana, from the
Committee on Elections No. 2, submitted a report on the case of
Campbell v. Miner, from New York.
The sitting Member received by the official returns a plurality of
954 votes, and the contestant sought to attack this plurality, alleging
bribery and intimidation.
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\1\ Journal, pp. 243, 247, 250; Record, pp. 2131, 2172, 2214--2235.
\2\ First session Fifty-fourth Congress, House Report No. 106;
Rowell's Digest, p. 514.
Sec. 1063
The committee, after a careful examination of the evidence by which
contestant sought to sustain the charges, found that while the
testimony ``raises a presumption that money was illegally used at this
election to bribe the voters at one of the precincts, yet there is not
sufficient evidence in the record to enable the committee to determine
that it was actually so applied, or the extent to which it affected the
result, and they are of the clear opinion that the contestant has
wholly failed to establish any of the grounds of contest which were set
out in the notice in the case.''
After the reference of the case to the committee, and before the
final hearing, the contestant moved the committee, under oath, for
leave to reopen the case and to take further testimony therein to prove
the matters alleged in his contest, and also to prove that by the act
of the police commissioners of New York supplemented by a mandamus from
Judge McAdams, his name had wrongfully been kept off the official
ballot, and he was thereby deprived of 5,214 votes which were cast for
John Simpson, whose name was placed on the ticket, and that he was
prevented from proving these facts while he was taking his testimony in
the case by reason of the misconduct of his attorney and his own arrest
for contempt by Judge McAdams, on account of things said by him while
testifying on his own behalf. This motion of the contestant was
resisted by the sitting Member, who filed his affidavit in opposition
thereto. The committee overruled this request, as the alleged facts
were not set forth in the notice of contest; they were not
substantiated by the testimony, which showed on the contrary that
contestant had not improved the time allowed him by the law, and that
his arrest was at a time not calculated to interfere with the
preparation of his case.
One other feature of the case is thus set forth by the committee:
The committee also report that on the final hearing of the case
before them the contestant urged that the election law of New York
under which said election was held was unconstitutional and void, for
the reason that the provision requiring the candidate for
Representative in Congress to be nominated for the office by a party
convention, or petitioned for by a certain per cent of the voters
before his name can be placed upon the ticket to be voted for,
constitutes an abridgment of the privileges and immunities of citizens
of the United States, and is a denial by the State to persons within
its jurisdiction of the equal protection of the laws, as guaranteed in
section I of Article XIV of the Federal Constitution. For this reason
he insisted that the election was a nullity, and that the seat in
controversy in this contest should be declared vacant.
This provision of the New York election law, whose
unconstitutionality is urged, is a conspicuous feature of what is known
as the Australian ballot system, which system has been in force in a
number of States of the Union for a considerable period of time, and
the constitutionality of this feature has never, to the knowledge of
your committee, been questioned in the courts. It is to them incredible
that it should have gone so long without having been challenged if it
is in contravention of the Constitution. If it is really open to this
objection a large per cent of the Members now holding seats in this
body are not entitled to retain the same. The committee themselves
entertain no doubt of the constitutionality of the provision, but do
not deem it advisable to prolong this report by giving the arguments in
support of their views.
On January 21 \1\ the question was considered in the House, and the
resolutions declaring contestant not elected and the sitting Member
entitled to the seat were agreed to without division.
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\1\ Journal, p. 137.
Sec. 1064
1064. The Alabama election case of Aldrich v. Robbins in the Fifty-
fourth Congress.
The specifications, of a notice of contest are required to give a
reasonable degree of information but not to have the precision of
pleadings in the courts.
A notary taking testimony in an election case under the Federal law
has jurisdiction within the district, although State law may restrict
his functions to a county.
On February 20, 1896,\1\ the Committee on Elections No. 1 reported in
the case of Aldrich v. Robbins, of Alabama. Besides the merits of the
case two preliminary questions were involved:
(1) The sitting Member objected that the notice of contest given by
the contestant was not a sufficient compliance with the law of 1851,
and the minority of the committee supported this objection on the
ground that the notice was too general, there not being ``the same
precision in averments as is required in other proceedings in which
courts decide as to law and the facts.'' It did not state how many
votes the contestant received nor how many the contestee received, and
was deficient in allegations as to conduct of election officers.
The majority of the committee considered the allegations in the
notice sufficient, citing the following as a fair sample of all:
At precinct No. 12 in said county, commonly called ``Old Town,''
there were actually cast at said election 35 votes. You were credited
with and allowed 278 votes, and myself with none. Of the 278 votes
allowed you at least 243 votes were in fact never cast, and of the 35
votes actually cast I claim and charge that I received a large portion
thereof.
The majority consider that this notice did ``specify particularly the
grounds'' even more amply than the statute required. What the law
requires,'' says the report, ``is a reasonable degree of information;
and that, as to this and the other precincts, was given.''
(2) The sitting Member also objected to the competency of the notary
who took the testimony in Dallas and Calhoun counties, claiming that,
as he was authorized by the laws of Alabama to act only in Shelby
County, he had no authority to act in any other county. The minority of
the committee argued in favor of this objection, denying the authority
of the precedent in the case of Washburn v. Voorhees, and quoting
decisions: American Land Company v. People et al. (102 Alabama), United
States v. Curtis (107 U. S.), United States v. Hall (15 U. S.).
The minority conclude:
The true test to apply to this question is: If a witness who had been
sworn before this notary public were indicted for perjury or false
swearing before him in this case where the oath was administered and
the testimony given in Dallas or Calhoun counties, could he be
convicted? He could not, in either State or Federal court.
The majority of the committee held as follows:
It was also objected for the contestee that the notary before whom
the evidence was taken was without authority to take that obtained out
of the county for which he had been appointed to act under the laws of
the State. But he was not acting within the restrictions imposed upon
him by the laws of
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\1\ First session Fifty-fourth Congress, House Report No. 572;
Rowell's Digest, p. 502.
Sec. 1065
the State of Alabama in taking this evidence. The laws of the United
States prescribed a special mode of proceeding for this class of cases,
and aside from this authority no evidence in a contested election could
be taken before the officers enumerated in the statute.
An object of the statute was to point out the persons who should be
empowered to take the evidence, not to exercise their functions as
State, city, or county officers, but to execute the full authority
created for this purpose by Congress. The notary is one of these
officers, selected, however, to act under Federal, not under State,
authority, and the power to act has been given to him commensurate with
the object to be attained.
By the language of the statute the contestant is empowered to apply
for a subpoena to any notary, etc., who may reside within the
Congressional district in which the election to be contested was held.
The officer is also required to issue subpoena directed to all such
persons as shall be named to him, requiring their attendance at some
time and place mentioned in the subpoena. And the only restriction
imposed is that the witness shall not be required to attend out of the
county of his residence.
As to the power of the officer, he may act anywhere within the
Congressional district. His authority has been restricted to no
subdivision of it whatever. He may issue subpoenas for all such
witnesses as shall be named to him, and the subpoenas must be
returnable before himself. As that is the mode of proceeding which has
been indicated, any officer mentioned in the statute may act, and in
acting has been given complete authority to act wholly and effectually.
The law further provides that the witnesses who attend shall be
examined on oath by the officer who issued the subpoena, unless he may
be absent, etc.
From the generality of these regulations it is clear that a single
officer has been empowered to issue all the subpoenas and take all the
evidence. They are quite explicit, and create a system in and of
themselves in no measure dependent on the laws of the State (U.S. Rev.
Stat., 19, 20, secs. 110, 115, 120), and this effect was accorded to
the statute in the contest of Washburn against Voorhees (2 Bartlett,
54).
1065. The case of Aldrich v. Robbins, continued.
Instance wherein the color of the voters was taken into account as
creating a presumption in relation to their votes.
Where testimony showed that fewer persons went to the polls than the
total of returned votes, the excess of votes was deducted from the
party profiting.
Discussion as to whether a poll should be purged or rejected when the
returns give the total of votes far beyond the number of voters
attending.
It not being shown that the ballots had been tampered with and State
law requiring their preservation, secondary evidence of the vote was
not considered.
Instance wherein evidence of declarations of voters and their
affidavits; as to their votes were not accepted as showing the state of
the poll.
The presumption in favor of the truthfulness of official returns
disappears on proof that the election officers violated the law.
As to the merits of the case, it appeared from the official returns
that the sitting Member received 10,492 votes and the contestant 6,756,
a majority of 3,736 for the sitting Member.
The minority of the committee conceded frauds enough proven to reduce
sitting Member's majority to 559 votes. A portion of the majority,
differing from their associates as to the amount to be deducted in
cases of fraud, found a majority of 601 votes for the contestant, while
a second portion of the majority conceived that the contestant should
be credited with a majority of 1,131 as a result of the purging of the
polls.
There were six counties in the district, of which the contestant
carried four. A fifth county, Calhoun, was carried by the sitting
Member by less than 400 majority,
Sec. 1065
far below the number necessary to overcome contestant's majority in the
other counties. But the sixth county, Dallas, returned for sitting
Member 5,462 votes, and for contestant 72, thus giving sitting Member a
majority of 3,736 in the district.
The voting population of Dallas County was shown to be about 10,000,
of which 7,500 were colored and 2,500 white. With rare exceptions the
colored voters were Republicans. The white voters were divided among
Democratic factions, which were not unanimous in support of the sitting
Member. The county contained 28 precincts. Of these, 13 returned 221
votes for Robbins and 42 for Aldrich. So it appeared that Mr. Robbins's
returned vote of 5,462 from Dallas County came largely from the other
15 precincts; and it was only in relation to these precincts that
evidence was taken in this county.
The supporters of contestant, who was a Republican, had feared that
their votes in this county would be counted for the Democratic party,
so they generally remained away from the polls. They generally kept
watch on the polls, however, and were able to afford testimony as to
the total number of voters who went to the polls in the various
precincts.
Thus, at the Summerfield precinct, where the official return gave
Robbins 160 votes and Aldrich 2, the testimony showed that only 31
persons went to the polls. This generally was the method adopted to
show the fraudulent nature of the return. As to the conclusions to be
derived from such a state of fact, there was a difference among the
majority members of the committee. The larger portion of them say:
The certificate of the inspectors, therefore, can not be relied on,
and since there is no evidence as to whether these persons voted after
entering the polling place, or for whom the votes were cast, we are
unable to count any for either candidate.
But two members considered it the safer practice to deduct from the
sitting Member only 129 votes, the surplus of the returned poll over
the actual number of voters who went to the polls.
This question of the amount of deduction is more fully considered in
connection with the vote of the city of Selma, which was polled at one
precinct. The official return gave Robbins 2,014 votes, Aldrich 5. The
testimony showed that less than 800 voters went into the voting place
during the election, and that there were not over 700 names on the poll
list that represented qualified voters of Selma. Four members of the
committee considered the return of Selma so saturated with fraud that
they should throw it all out except the votes of 4 men who swore how
they voted. It was urged that, although it might be shown that over 700
men entered the voting place, there was no testimony to show how many
of them voted; and even if it should be assumed that all of them voted,
there was no testimony to show for whom they voted. But five members of
the committee considered that 767 votes should be allowed as cast, and
that the surplus of 1,247 votes, evidently unlawfully added to the
honest vote, should be deducted from the vote returned for the sitting
Member.
As to the precincts of the Third Ward of Anniston and Montevallo,
contestant made an effort to correct the official returns by
introducing the testimony of citizens who swore that they voted for
Aldrich. In Montevallo the return gave Robbins 208 and Aldrich 199. A
witness swore that 273 persons publicly declared that they
Sec. 1066
voted for Aldrich, and the affidavits of 283 persons who swore that
they voted for Aldrich were read. In the Third Ward of Anniston 14
votes were returned for Aldrich and 42 for Robbins. A witness swore
that there were 85 colored voters in the ward, and that he recognized
23 of them on the poll list, all of whom were Republicans but 1. A
majority of the committee held that, as the State laws required the
preservation of the ballots, they should be resorted to in the first
instance, and that secondary evidence could not be offered of the
contents of the ballot boxes until it should be shown that they had
been so tampered with as not to speak the truth. Two members of the
committee, including the chairman, favored counting for the contestant
the votes sworn to by uncontradicted testimony.
The sitting Member relied for his defense only on the presumption in
favor of the truthfulness of the official returns. The majority say
that this is only a presumption and disappears at once on proof that
the election officers violated the law.
In the debate further facts in the record of the case were referred
to--that the requirements of the Alabama law in relation to
registration were violated; and that the contestant's party had not
been treated fairly in the appointment of election inspectors.
The majority of the committee concurred in presenting resolutions
declaring sitting Member not elected and the contestant elected and
entitled to the seat.
On March 12 and 13,\1\ the report was debated at length in the House,
and on the latter day a vote was taken on a proposition of the minority
to substitute resolutions declaring the sitting Member elected and
entitled to the seat. This substitute was decided in the negative, yeas
58, nays 173. Then the resolutions of the committee were agreed to
without division, and Mr. Aldrich was sworn in.
1066. The South Carolina election case of Moorman v. Latimer in the
Fifty-fourth Congress.
A ballot is not invalidated by reason of an abbreviated designation
of the office which omits the number of the Congress and the name of
the State.
Where many persons are disfranchised by an unconstitutional election
law, the House will not bring them into the account on the mere opinion
of witnesses as to the number.
On March 4, 1896 \2\ Mr. Charles K. Bell, of Texas, from the
Committee on Elections No. 3, submitted the report in the case of
Moorman v. Latimer, from South Carolina.
In the first place contestant alleged that the ballots cast for Mr.
Latimer were invalid. The committee say:
``The tickets voted for Latimer were printed thus: ``Representative
in Congress, third district, A.C. Latimer,'' and contestant claims that
they should not have been counted for him, because they did not state
that they were voted for a candidate for the third district of the
State of South Carolina, nor for a Representative to the Fifty-fourth
Congress. In the case of Blair v. Barrett a ballot headed ``For
Congress, Francis P. Blair,'' was held to have been properly counted
for him. We think the ballots complained of were clearly sufficient,
and that they were properly counted for contestee.
-----------------------------------------------------------------------
\1\ Record, pp. 2739, 2783-2800; Journal, p. 306.
\2\ First session Fifty-fourth Congress, House Report No. 626;
Rowell's Digest, p. 530.
Sec. 1067
Contestant alleged that at the various precincts in the district the
managers of election refused to allow from 6,000 to 7,000 voters of
contestant's party to cast their ballots because they did not have
registration certificates, as required by the laws of South Carolina,
which laws, he contended, were unconstitutional, because in conflict
with the Constitution of the United States and of said State. The
contestant also alleged that a number of properly registered voters,
who would have voted for him, were denied the privilege by the managers
of election for various reasons.
Adopting the most liberal construction of the evidence and conceding
the registration laws to be invalid the committee could find only 4,578
votes lost to the contestant for the above reasons, and the addition of
these to his poll would still leave the sitting Member a plurality of
215 votes.
The committee do not, however, approve the proof by which contestant
attempted to establish some of his allegations, and say:
Contestant has sought to introduce the testimony of witnesses who
give their opinion as to the number of persons who would have voted for
him at certain places without stating who they were or giving any other
particulars, but the committee is of opinion that testimony of this
character is not admissible.
The committee therefore recommended resolutions confirming the title
of sitting Member to the seat, and on April 15, 1896,\1\ the House
concurred in the report.
1067. The Maryland election case of Booze v. Rusk, in the Fifty-
fourth Congress.
The House counted the votes of persons who swore that they intended
and tried to vote for contestant but were prevented because other
persons had voted on their names.
The House declined to reject the poll of a precinct whereof the
registration was impeached by a police census of doubtful weight.
On March 18, 1896,\2\ Mr. George W. Prince, of Illinois, from the
Committee on Elections No. 2, submitted the report of the committee in
the case of Booze v. Rusk, of Maryland. On the face of the returns the
sitting Member had a majority of 518.
The contestant, seeking to attack this majority, charged first that
he was deprived of a large number of ballots cast for him at the
election and that a number of ballots were improperly counted for
sitting Member. The committee found, by a recount, a gain of 131 votes
for contestant.
Secondly, contestant charged that a number of legal bona fide voters
of the district who intended to vote for him at the election were
refused the right by officers of the election. The committee found from
the evidence of witnesses who testified that they were denied the right
to vote at their respective precincts simply because some one had
already voted on their names; that 40 persons were thus excluded and
that they would have voted the ticket of contestant's party. So the
committee credited 40 votes to him.
The committee, in respect to the third contention of the contestant,
that illegal and fraudulent votes were cast for the sitting Member,
found 161 such votes, and deducted them from his vote.
-----------------------------------------------------------------------
\1\ Journal, p. 399.
\2\ First session Fifty-fourth Congress, House Report No. 849:
Rowell's Digest, p. 519.
Sec. 1068
In respect to other charges of fraud and intimidation the committee
found the evidence too slight to sustain them.
As to the fact that there was a difference between the registration
in the fifth precinct of the Second Ward of Baltimore and the police
census, the committee found that under the law of Maryland the voter,
in order to be registered, had to appear before the registration board,
consisting of three members, two of the majority party and one of the
minority party, and make oath that he had been a resident of the State
for one year and of the voting district for six months, and that he had
attained the age of 21 years. There was ample opportunity, under the
law, to purge the registration list by applying, first, to the board of
registration; should they refuse, then to the Maryland court of
appeals. This court, in the case of Langhammer v. Munter, had decided:
The fact that a man's name does not appear upon the police census of
registered voters is too uncertain to be entitled to much weight.
The court declined to strike names from the registration list because
they did not appear on the police census returns. The committee did not
consider that the vote of this precinct (against which other
allegations were made but not sustained by the evidence) should be
thrown out.
On March 18 \1\ the House concurred with the committee that the
sitting Member was entitled to the seat, contestant not having proved
enough to overcome the returned majority.
1068. The Alabama election case of Robinson v. Harrison in the Fifty-
fourth Congress.
The House counted returns received by the State canvassers too late
to be included in their summary.
Disorder before the opening of the polls and for the purpose of
affecting the choice of election officers and not affecting the poll
itself Was disregarded by the House.
Participation by an election judge in bribery did not justify
rejection of the poll when the contaminated votes could be separated.
Friends of contestant not being represented on an election board and
there being evidence of fraud in the registration and voting, the poll
was rejected.
Although the boards of election officers may be constituted unfairly,
the House will yet give full effect to legal votes.
On April 4, 1896,\2\ Mr. Fred C. Leonard, of Pennsylvania, from the
Committee on Elections No. 1, submitted a report in the case of
Robinson v. Harrison, of Alabama. On the face of the official returns
Mr. Harrison had a majority of 5,006. The contestant, Mr. Robinson,
claimed that this majority was secured by intimidation of voters,
bribery, illegality, and fraud; and attempted to overcome the sitting
Member's majority by claiming the vote of Geneva County, which had not
been included in the official canvass; and by demanding that the vote
of certain precincts in other counties should be in whole or in part
rejected.
-----------------------------------------------------------------------
\1\ Journal, p. 320.
\2\ First session Fifty-fourth Congress, House Report No. 1121;
Rowell's Digest, p. 505.
Sec. 1068
As to Geneva County, it was not disputed that the returns were not
included in the official return of the Congressional district, for the
reason that they were received too late to be canvassed. From the
certificate of the probate judge the committee found that the county
gave contestant 687 votes, and the sitting Member 285, a majority of
402 votes for the contestant. The committee determined that these votes
should be allowed.
As to the precincts attacked by contestant, they were 10 in number,
generally in the counties where colored voters predominated.
Intimidation and bribery were alleged in Opelika precinct, where 505
votes were returned for the sitting Member and 318 for the contestant.
It was proved that there had been disorder at the polls, but the
evidence proved--
that this occurred in the morning before the voting commenced, and the
object of the disorderly demonstrations was to secure the proportionate
appointment of election officers suggested in behalf of the conteste in
place of those which had been selected under the authority of and by
the friends of the contestant. That was finally conceded, and the
disorder ceased, and the polls were opened and the election proceeded.
Therefore the committee did not find a case of loss of votes by
intimidation. It was proven in this precinct, however, that one of the
election officers so selected was engaged during part of the day in
bribing colored voters, by handing to each a slip of paper showing that
the bearer had voted as desired, and which, on presentation to a
confederate outside, insured a sum of money to the bearer. The evidence
showed about 25 votes bought in this way. The committee say:
It was a criminal proceeding, publicly and shamelessly carried on by
the friends of the contestee. But the votes of legal voters,
uninfluenced by mercenary motives, can not be lawfully sacrificed in
consequence of this misconduct. It had no effect upon them, and is in
no respect in conflict with their integrity. Their votes can be readily
separated from those that were purchased, and land where that can be
done the law demands that it shall be done.
The ballots appearing to have been counted as cast, the committee
deducted from the sitting Member's vote the 25 votes obtained by
bribery. With this correction the poll was counted.
In four precincts--Girard, Union Springs, Suspension, and Midway--the
friends of the contestant had no representation on the election board.
In two of them there was evidence of fraud, both in the registration
and the poll, so that no dependence could be placed on the returns.
Therefore, as no proof of votes actually given for the sitting Member
was produced, the committee rejected the returns from these two
precincts. In the other two precincts where the election officers were
wholly of sitting Member's party, a certain number of votes appeared to
have been legally thrown out, and the sitting Member was credited with
his proportion of the legal votes.
The other impeached precincts were purged to the extent of the frauds
shown by the testimony. But with all the purging made by the committee,
there still remained a majority for the sitting Member. ``It is true,''
say the committee, ``that the conduct of the election in the
controverted counties can not be otherwise than condemned, for frauds
were committed, arising probably out of the discrimination in the
personality of the election boards. That was a grave cause for
complaint, but as the legal votes can be separated from the frauds,
they are entitled to their full weight and effect.''
Sec. 1069
Therefore the committee unanimously reported resolutions declaring
contestant not elected and the sitting Member entitled to the seat.
On April 4 \1\ the report was agreed to by the House without division
or debate.
1069. The Illinois election case of Rinaker v. Downing in the Fifty-
fourth Congress.
Following the supreme court of the State the House counted a ballot
marked as to two party columns, one of which did not contain the name
of a candidate for Congress.
In construing a State ballot law the House followed the principle
enunciated by the State supreme court as to giving effect to the
voter's intent.
The House declined to count as cast the vote of a person kept from
the polls by a bogus telegram sent by persons unknown.
On April 21, 1896,\2\ Mr. Edward D. Cooke, of Illinois, from the
Committee on Elections No. 1, reported in the case of Rinaker v.
Downing, from Illinois. In this case the sitting Member had a plurality
of 40 votes. The contestant alleged errors in interpreting, counting,
refusing and rejecting ballots, and illegal votes.
In examining the case the committee passed on nine questions of law
and fact. On the conclusions as to six of these questions the minority
of the committee made no issue. On three questions, however, the
minority report, presented by Mr. William H. Moody, of Massachusetts,
joined issue with the majority, and to these three questions the first
hearing in the House was devoted.
For convenience the controverted questions will be examined first:
(1) The testimony showed that 30 of the Australian ballots (which had
party columns) were each marked with a cross in the Republican and
Independent Republican circles at the head of the party column. Upon
the latter ballot was the name of only one candidate, a candidate for
the office of State treasurer. The committee allowed these 30 votes to
the contestant, following the decision of the supreme court of Illinois
in the case of Parker v. Orr, wherein it was expressly decided that in
such cases it was proper and lawful under the election law of Illinois
``to count the ballots so cast for the person or candidate against whom
no candidate appears on the opposite ticket, thereby giving effect to
the obvious intention of the voters so marking their ballots.''
(2) The disposition of irregularly marked ballots: The committee in
performing this duty followed the precedents laid down in the case of
Parker v. Orr, wherein the supreme court of Illinois affirmed the
principle ``that if the intention of the voter can be fairly
ascertained from his ballot, though not in strict conformity with law,
effect will be given to that intention.'' In cases where the principles
of Parker v. Orr did not apply, the committee say that ``the language
of the statute is followed where its terms are clear and unmistakable,
and in all cases of doubt the ballots have been rejected entirely,
either as being probably marked contrary to law or as being cases in
which the intention of the voter could not be clearly ascertained.''
(3) The committee rejected certain votes ascertained to have been
cast illegally.
(4) Sitting Member demanded that he be credited with the vote of a
supporter who had been prevented from casting his vote by the receipt
of a false or bogus
-----------------------------------------------------------------------
\1\ Journal, p. 370; Record, p. 3574.
\2\ First session Fifty-fourth Congress, House Report No. 1400;
Rowell's Digest, p. 506.
Sec. 1070
telegram which summoned him to a distant place. The delivery of the
telegram was proven, but as there was no testimony or circumstances to
connect the act with the contestant or either political party, and as
testimony to show the true purpose of the delivery of the telegram
might easily have been obtained, the committee did not consider the
claim of sitting Member sustained.
(5) The sitting Member claimed that 14 votes should be credited to
his poll in Greene County, an error of that amount being alleged in the
official return. The testimony did not satisfy the committee that such
an error had been made.
1070. The case of Rinaker v. Downing, continued.
No fraud or harm being shown, the House, following the spirit of a
decision of the State court, declined to reject ballots irregularly
printed, although the law seemed mandatory.
May a notary, acting under the authority of the law of 1851, require
the production of ballots against the injunction of the State court?
In a case wherein an unofficial and ex parte recount was relied on,
because the ballots themselves could be reached officially only by the
House itself, the House reopened the case for examination of the
ballots.
The House declined to overrule the election officers who counted
votes of electors assisted in marking without taking the required
preliminary oath.
Form of resolution by which the House ordered the production of
ballots as evidence in an election case.
(6) The law of Illinois provided that on the ballots ``the party
appelation or title shall be printed in capital letters not less than
one-fourth of an inch in height,'' and also that ``none but ballots
provided in accordance with the provisions of this act shall be
counted.'' In Cass and Pike counties the word ``Independent'' in the
party designation ``Independent Republican'' was printed in letters
about an eighth of an inch in height, instead of the required quarter
of an inch. The throwing out of these counties would deprive sitting
Member of a total plurality of 340, and give the seat to contestant;
but the committee conclude, after examining the cases of Clark v.
Robinson (88 Ill., 500) and Parker v. Orr, that while the law seemed
not merely directory but rather mandatory, yet the court of Illinois
had laid down such a liberal rule of construction of the statute as to
lead the committee to conclude that--
The supreme court of Illinois, if called upon to construe the
misprinted ballots in Cass and Pike counties, would inquire whether the
evidence disclosed any intention to commit a fraud upon the electors,
and whether any fraudulent result would or did necessarily ensue from
the misprinting of the ballots contrary to the express provision of the
statute; and finding from the record in this case, as the undersigned
have done, that there is no reason to infer or believe that the ballots
in Cass and Pike counties were, by the officials, printed and provided
with any intent whatever to perpetrate a fraud or deception upon the
voters, or that any considerable number of Republican voters in this
instance, by mistaking, the heading of the ballot, made the cross in
the ``Independent Republican'' circle instead of in the ``Republican''
circle, that court would conclude, as the undersigned have concluded,
that the votes on all those ballots were properly counted as cast, and
should not now be rejected or thrown out. To now hold to the contrary
would operate to disfranchise all of the voters of Cass and Pike
counties, through no fault of theirs, but through the mere oversight
and error of the officials whose duty it was to follow the law exactly
or substantially in printing the ballots.
Sec. 1070
The correction of the returns in accordance with the decisions in the
six questions just considered, did not result in any such changes as to
overcome the plurality of the sitting Member; and the essential points
on which the decision of the case turned, were involved in three
additional questions:
(1) The law of Illinois had this provision:
In all cases of contested election the parties contesting the same
shall have the right to have the package of ballots cast at such
election opened, and to have all errors of the judges in counting or
refusing to count any ballot corrected by the court or body trying such
contest; but such ballots shall be opened only in open court, or in
open session of such body, and in the presence of the officer having
the custody thereof.
When subpoenas were served on behalf of the contestant on the county
clerks of the counties in the district, requiring the production of the
ballots voted, the clerks disobeyed the subpoenas because at the
instance of the sitting Member the Illinois court had issued an
injunction restraining the clerks--
from opening said ballots or permitting the same to be opened or
recounted, or from removing or permitting said ballots to be removed
from the place where they are now kept by the defendants until the same
is ordered to be opened and recounted by a court of competent
jurisdiction of the State of Illinois, or of the United States or by
the House of Representatives in Congress of the United States after the
3d day of March, A. D. 1895.
As the time for taking testimony under the laws of the United States
expired for the contestant on February 25, 1895, it is evident that the
injunction procured by the sitting Member prevented an examination of
the best possible evidence by the contestant.
Whether the subpoena of the notary acting under authority of a law of
Congress might be rendered futile by the law and court of Illinois is a
question discussed at length in this case. The minority of the
committee, while not deeming it material to pass on the merits of the
injunction, nevertheless quote Ex parte Siebolt (100 U. S., 371) as
authority for the position that--
the power of Congress is paramount in respect of the manner of holding
elections for Senators and Representatives where its power is exercised
by legislation, yet it is clear that under the Constitution where
national legislation is silent the State has the right to regulate such
elections at will. It may well be argued that as Congress has not seen
fit to pass any law with respect to the character of the ballot, its
custody and preservation, the whole subject is left within the control
of the States, and if the House of Representatives sees fit to seek the
evidence of ballots cast under the authority of the State, it can only
do so in accordance with the conditions prescribed in the laws of the
State. Unquestionably the State has a great interest in the ballots,
because they are the evidence not only of the election of
Representatives in Congress, but of many State officers.
The committee cite the case of Steward v. Childs where in a similar
case the refusal of an Illinois county clerk to produce the ballots had
not been referred to. The minority denied that the injunction had
suppressed the ballots as evidence, but that they were preserved intact
and the House might have had them months ago. The right of the
contestant to go to them was postponed, not denied.
The majority of the committee took the following view of the
relations of the injunction to the Federal law:
The contestee, by his bill in chancery seeking the injunction, by
direct language insists upon such a construction of the statute of
Illinois regulating and restraining the opening and counting of the
ballots as shall bring that statute in direct conflict with the statute
of the United States, and which
Sec. 1070
latter statute plainly and clearly gives to both parties to an election
contest over the seat of a Member of the House of Representatives the
right to select any one of the officers mentioned in the Federal
statute before whom to take the testimony, and clothes that officer,
when so selected, with the full power to require the production of any
paper or papers pertaining to the election, or to produce and deliver
up certified or sworn copies of the same in case they may be official
papers.
In view of the plenary and clear terms of the Federal statute it is
the opinion of the undersigned that the statute of Illinois should be
construed to mean that where the ballots cast at any election for
Member of the House of Representatives are called for by a subpoena
duces tecum issued by a notary public selected under sections 110, 111,
and 123 of the act of Congress regulating the contests of seats in the
House of Representatives the notary so selected fully represents the
House of Representatives and constitutes a tribunal or body for the
purpose and with the power of procuring and reducing to written form
such evidence as the ballots may contain, so as to comply with the
obvious intention of the State statute, inasmuch as it is obviously
impossible for the ballots in a contested election case in the House of
Representatives to be opened ``in open session of such body and in the
presence of the officer having the custody thereof.''
The powers conferred by the Federal statute upon the notary public or
other officers mentioned to call for and enforce the production of all
the papers pertaining to the election are full and complete and render
such officer to that extent a ``body trying such contest,'' to the
extent of his obtaining and recording the evidence in the case. That is
plainly and clearly the meaning and effect of the act of Congress, and
the State statute should be construed so as to be in harmony rather
than in conflict therewith.
To construe the State statute so as to prohibit the notary or other
officers taking the testimony in a Congressional election contest from
obtaining the evidence contained in the ballots would be to give to the
State statute the effect of repealing or nullifying the Federal law
regulating Congressional election contests. Congress has the power to
regulate the taking of testimony in case of the contest of the election
of any Member of the House of Representatives. That power has been
exercised by the enactment of the statute above quoted, and when in
conflict with its provisions all conflicting State statutes or
decisions to the extent to which they do conflict must be held to be
nugatory and void. * * *
In the opinion of the undersigned, Congress has by statute made ample
provision for an inspection, examination, and recount of the ballots
far in advance of the meeting of Congress, and that it is not intended
or to be tolerated that the time of the members of the Election
Committee shall be consumed in the recounting of ballots covering an
entire Congressional district during a session of Congress when each
Member has a duty to perform in the everyday course of its proceedings;
nor is it to be permitted that a device, such as that of obtaining an
injunction, contrary to the act of Congress, shall operate to prolong a
contest practically until near the end of the term for which the Member
was elected.
The conclusion and finding of the undersigned, therefore, is that the
injunction procured by the contestee prohibiting the opening and
counting of the ballots in this case was illegal and wrongful, and
that, as a consequence thereof, the contestant was at liberty to offer
such secondary evidence of the contents of the ballots and of the facts
shown by the evidence suppressed as would in a court of law be allowed
in a case in which one of the parties had concealed or refused to
produce legal and material evidence within his possession or control.
(2) The contestant, being kept from the best possible evidence by the
injunction, proceeded to take secondary evidence in the form of a
recount of the votes in Macoupin and Cass counties. In those counties
contests had arisen over county officers and incident to those contests
there was a recount of the votes before the county courts. During this
recount Mr. L. C. Murphy, representing the contestant, was present
unofficially and from a high seat overlooked the table at which the
official recount for county officers was made. In Cass County Mr. E. M.
Dale kept a similar tally of the Congressional vote. This unofficial
count was not complete for all the precincts in either county, but
showed as far as it went a deduction of 17 votes for the sitting Member
in Macoupin and Cass counties and an addition of 22 votes for
contestant in Macoupin County.
Sec. 1070
Both in the report and in the debate on the floor this unofficial
count was assailed by those representing the minority views. It was
contended that the result of the injunction did not authorize the
reception of this unofficial count; that the circumstances attending
the count showed that it could not have been accurate; that the ballots
were shown to be in existence and carefully preserved for the whole
district; that the unofficial count related to only two of the eight
counties of the district, and was ex parte, the sitting Member not
being represented. The minority quoted McCrary on elections to the
effect that ``the official acts of sworn officers are presumed to be
honest and correct until the contrary is made to appear. It has
accordingly been held that a return can not be set aside upon proof
that a recount made by unauthorized persons, sometime after the
official count has been made, showed a different result from the
official count,'' etc.
(3) A sharp difference also arose between the minority and majority
on the question of assisted voters. The law of Illinois provided:
Chapter 46, paragraph 311, section 14, Every voter who may declare
upon oath that he can not read the English language, or that by reason
of any physical disability he is unable to mark his ballot, shall, upon
request, be assisted in marking his ballot by two of the election
officers of different political parties to be selected from the judges
and clerks of the precincts in which they are to act, to be designated
by the judges of election of each precinct at the opening of the polls.
It appeared that 38 Republican votes and 6 Democratic votes were cast
by voters who were assisted without being sworn as the law provides.
The majority of the committee considered that the election officers had
acted correctly in counting these votes, thereby construing the statute
as directory merely, and not mandatory. The committee say that these
assisted voters were qualified voters, and it had not been attempted to
be shown that any fraud was perpetrated or attempted in this regard.
The minority of the committee held that the law was mandatory and that
the case was res adjudicata so far as the House was concerned. Little
light was thrown on the question by the older decisions, since the
recently introduced Australian ballot system not only permitted but
enforced secrecy. The minority then quoted decisions on similar
provisions of law: People v. Canvassers (129 N. Y., 345); Attorney-
General v. May (99 Mich., 538); State v. Gay (60 N. W. Rep. 676);
Parker v. Orr (Illinois). The minority also cite as a case directly in
point the decision of the House in the case of Steward v. Childs.
The majority of the committee denied the authority of these decisions
as bearing on the case under discussion.
The minority recommended the adoption of the following resolution:
Resolved, That the contested election case of John I. Rinaker v.
Finis E. Downing be recommitted to the committee on Elections No. 1,
with instructions either to recount such part of the vote for
Representative in the Fifty-fourth Congress from the Sixteenth
Congressional district of Illinois as they shall deem fairly in
dispute, or to permit the parties to this contest, under such rules as
the committee may prescribe, to recount such vote, and to take any
action in the premises, by way of resolution or resolutions, to be
reported to the House or otherwise, as they may deem necessary and
proper.
On May 12 and 13 \1\ the report was debated at length in the House,
the two points, as to the unofficial recount and as to the assisted
voters, being the only subjects. If the majority of the committee was
overruled as to either of these points, the contestant would fail to
overcome the sitting Member's plurality.
-----------------------------------------------------------------------
\1\ Journal pp. 484-488; Record pp. 5127, 5185-5208.
Sec. 1070
The question being taken to substitute the resolution of the minority
for those of the majority declaring the election of the contestant, the
substitute was agreed to, yeas 139, nays 35. Then the resolutions of
the majority as amended by the substitute were agreed to, yeas 137,
nays 13, and 33 present and not voting being noted by the Speaker to
form a quorum.
On May 19, 1896,\1\ the Committee on Elections No. 1 unanimously
reported the following resolution, which was agreed to by the House:
Resolved, That F. J. Robinson, county clerk of the county of Cass,
State of Illinois [here follows names of the other county clerks], be,
and they are hereby, each ordered to be and appear before Elections
Committee No. 1, of this House forthwith, then and there to testify
before said committee, or such commission as shall be appointed, and
the truth to speak touching any matters then to be inquired of them by
said committee in the contested election case of John I. Rinaker V.
Finis E. Downing, now before said committee for investigation and
report; and that they, and each of them, respectively, as such county
clerks, bring with them all the ballots and packages of ballots cast in
each of said counties at the general election held in said counties on
the 6th day of November, A. D. 1894, for the election, among other
officers, a Representative in the Fifty-fourth Congress from the
Sixteenth district of Illinois, now in their custody, respectively; and
that they each also bring with them, respectively, in addition to said
packages of ballots, all poll books and tally sheets, and such other
books and papers as relate to said election in their respective
counties now in their custody or under the control of either of them,
respectively; that said ballots be brought in the packages in which the
same now are; that said ballots, poll books, and tally sheets be
examined, and said ballots counted by or under the authority of said
committee on elections in said case; and to that end, that subpoenas be
issued to the Sergeant-at-Arms of this House, commanding him to summon
said persons to appear with said papers as witnesses in said case, and
that the expenses of executing such process, including necessary
subsistence and mileage of said witnesses and all other expenses of
this proceeding, be paid out of the contingent fund of this House; and
that said committee be, and hereby is, empowered to send for all other
persons and papers as it may find necessary to the proper determination
of said controversy; and also be, and it is, empowered to select one or
more competent committees to take the evidence and count said ballots
or votes, and report the same to this committee on elections, under
such regulations as shall be prescribed for that purpose; and that the
aforesaid expenses be paid on the requisition of the chairman of said
committee after the auditing and allowance thereof by the said
Elections Committee No. 1.
On June 4 \2\ the Committee on Elections No. 1, submitted a report
showing that the ballots of all the counties of the district had been
recounted, except the county of Morgan.'' ``In that county'' say the
committee, ``although the custody of the ballots has been such as to
prevent any unauthorized handling, they were returned and kept in so
slovenly a manner that the committee deemed it wise in that county to
accept the official returns instead of the recount, although the latter
differed only slightly from the returns, and not enough to affect the
result.''
The recount showed such gains for the contestant as to give him a
plurality of five votes, if the ballots of those voters, who were
assisted without taking the oath, should be counted. The report
submitted by Mr. Moody, who had submitted the minority views of the
first report, says:
The minority of the committee, while still adhering to the opinion that
the law requires the rejection of these ballots, which was fully
expressed in a former report to the House, yet believe that the House
would not adopt their opinion in that respect in the absence of a
controlling decision by the court of final resort in the State of
Illinois.
The majority of the committee, in this report as in the preceding
report, contended that the ballots of the assisted voters should be
counted.
-----------------------------------------------------------------------
\1\ Journal pp. 507, 508; Record p. 5416.
\2\ House Report No. 2247; Journal pp. 580-582; Record pp. 6168-6174.
Sec. 1071
The resolutions declaring the sitting Member not elected, and the
contestant elected and entitled to the seat, were agreed to, yeas 167,
nays 52.
Mr. Rinaker, the contestant, was sworn in the same day.
1071. The Virginia election case of Cornet v. Swanson in the Fifty-
Fourth Congress.
Where the notice of contest does not claim sufficient to change the
returns, the House does not think it necessary to examine the
testimony.
Ordinarily a decision of the State supreme court that the State
election law is constitutional is held conclusive by the House.
An argument that an election held under an unconstitutional State law
might yet be considered by the House as an election de facto.
An argument that under certain conditions the House might be
justified in overruling a State court's decision that a State election
law is constitutional.
The committee did not consider it necessary to pass on the form of a
notice of contest which did not relate to issues sufficient to change
the result
On April 24, 1896,\1\ Aft. William A. Jones, of Virginia, from the
Committee on Elections No. 3, submitted the report of the majority of
the committee in the case of Cornet v. Swanson, of Virginia. The
sitting Member was returned by an official majority of 2,333 votes over
the contestant.
Of the 144 precincts in the district the contestant took testimony in
only 12, and the report of the majority says:
If the contestant is given the full benefit of every claim that can
be made from the testimony in this case, as well as the benefit of
every doubt that can arise therefrom, and if every claim that he makes
or that may be made for him by the committee is conceded to him, he
will still lack more than 1,600 votes with which to overcome the
returned majority of the sitting Member. If he is given every vote
concerning which there is a particle of testimony, contradicted or
uncontradicted, in the record tending to prove that he received, or
that he would have received but for the alleged unjust law under which
the election was held, or that he was deprived of by reason of the
alleged improper or illegal conduct of the managers of the election or
the friends of the contestee, he will still fall far short of the
requisite number to overcome the contestee's majority.
Therefore it is unnecessary to go into the examination of the 12
precints, which the committee made perfunctorily. The minority of the
committee in their views make no mention of these precincts, confining
their arguments entirely to other questions.
These other questions were (1) as to the constitutionality of the
election law of Virginia, and (2) as to the sufficiency of the notice
of contest.
(1) As to the constitutionality of the election law:
The majority of the committee, after stating the fact that the
supreme court of Virginia had, by a unanimous decision, affirmed the
constitutionality of the law in every particular, declared that it was
not necessary to pass on the question in order to reach a just
conclusion in the case
But it is not deemed necessary, for the reason stated, to enter upon
any extended discussion of these legal and constitutional questions, or
to inquire to what extent the decisions of a State court should be
regarded by the House of Representatives or by this committee. It would
not necessarily follow,
-----------------------------------------------------------------------
\1\ First session Fifty-fourth Congress, House Report No. 1473;
Rowell's Digest, p. 534
Sec. 1071
in the opinion of the committee, were it conceded that the Walton
election law was unconstitutional, and therefore inoperative as to the
particular features of that law here assailed, that no valid election
had been held in the Fifth Congressional district of Virginia. The
sections which are assailed by reason of their alleged
unconstitutionality are not so essential to the operation of the law
under which this election was held, or so inseparably connected with
its other provisions and requirements, that even should they be thought
to be inoperative this committee would be justified upon that ground in
declaring that there had been no legal election.
In the course of the debate it was urged \1\ that the election having
been de facto, even conceding the law to be unconstitutional, the
contestant must still make out a case to enable the House to seat him;
and that to unseat the sitting Member would bring the House face to
face with the proposition that all the Virginia Members, including at
least one seated by the House, owed their seats to elections held under
that law. Mr. Samuel W. McCall, of Massachusetts, in debating the case,
admitted the power of the House to disregard the decision of the
Virginia court as to the constitutionality of the law, but questioned
the right of the House to do so.
The minority of the committee, in views presented by Mr. Henry F.
Thomas, of Michigan, and subscribed to by Messrs. James A. Walker, of
Virginia, and Jesse Overstreet, of Indiana, announced the following
principle:
The House of Representatives having original jurisdiction as to the
right of a person to a seat in its Chamber, and being a tribunal of
last resort, it undoubtedly has the power to pass upon any question
that it deems relevant to the issue. It has never been claimed by any
political party in the history of the Republic that the power to act
carries with it the right to act. On the other hand, it has been the
uniform practice of the House of Representatives to base its action in
all cases upon certain fundamental principles, and those principles
have, and ought to have, the binding force of law. Among those
principles is this:
That the decision of the supreme court of a State ought to govern in
all cases, unless the constitutional rights of the citizen are clearly
invaded. And it may be said that in all cases where the question is
local to the State and relates purely to its domestic affairs the House
of Representatives will always abide by the decision of its court of
last resort. But it is clear that questions might arise in which not
only the rights of the citizen but the interests of the nation at large
would be involved, and in such case the House of Representatives would
most certainly exercise its original jurisdiction.
For instance, suppose a State should, by its constitution, give to
all illiterate persons over 21 years of age the right to vote; and
suppose the legislature should provide that no elector should be
permitted to know, by all customary means, the contents of his ballot
(and that after it was handed to him no man should come near him, and
that if any one gave him any information, either by word or sign or
signal, it would be a crime), and that thereby all illiterate electors
were disfranchised; and suppose the supreme court of the State should
decide that such a law was constitutional, it would not, we think, be
denied by any one that it would be the duty of the House of
Representatives to declare such an election void, and to refuse to seat
the man who had been elected by those only who could read their
ballots. This would be a case of disfranchisement where an appeal would
lie, so to speak, from the supreme court of a State to the House of
Representatives.
The minority then proceeded to an examination of the law, concluding
first that the decision of the supreme court of Virginia, not an
entirely valid judgment, there being evidence that the case in issue
had been collusive, and that the question of constitutionality had been
incidental, and finally that the law itself was unconstitutional, for
reasons summarized as follows:
Your committee is therefore of the opinion that this law is
unreasonable, and therefore unconstitutional, because it withholds from
the voter a timely and necessary knowledge of the arrangement
-----------------------------------------------------------------------
\1\ By a member of the committee, Mr. John J. Jenkins, of Wisconsin,
Record, p. 1495.
Sec. 1072
of the names of candidates on a mixed and consolidated ballot. It is
void because it withholds from the voter all ordinary and customary
means of knowledge.
Therefore the minority recommended a resolution declaring the seat
vacant.
(2) As to the sufficiency of the notice:
The majority of the committee say:
The next question which presents itself for consideration is the
objection raised by the contestee to the notice of contest. Without
specifying the particulars in which it is insisted that this notice is
defective, and without expressing any opinion as to whether or not it
is wanting, as is alleged, in that particularity which is required by
statute, the committee think it is not necessary, in view of the
conclusion reached by them upon the merits of the case, to decide the
question.
The minority give in full the portions of the notice objected to at
length, and conclude that they were sufficient, saying:
While your committee recognize the rule of law that changes of fraud
should be specific and certain, yet they are not of the opinion that
any greater degree of certainty should be required than the nature of
the case will admit, and that where the evidence of the alleged fraud
is to be sought from those whose interests are adverse to the
contestant a much less degree of certainty should be insisted upon than
in other cases.
The case was debated at length in the House on February 3, 1897.\1\
On the question of substituting the minority proposition that the seat
be declared vacant, the substitute was rejected on viva voice vote, not
enough Members rising to order the yeas and nays.
The resolutions confirming the title of sitting Member to the seat
were then agreed to without division.
1072. The Virginia election case of Thorp v. McKenney, in the Fifty-
Fourth Congress.
A general conspiracy of election officers to violate a merely
directory law, combined with fraudulent acts in individual precincts,
justified rejection of a series of polls.
A general disregard of a directory law as to party representation
among election officers was held to constitute a reason for rejection
of a series of polls.
Ballots printed in unusual style confusing to the voter may
contribute to destroy confidence in the officers responsible therefore.
Instance wherein the returned Member in an election case took no
testimony.
On April 29, 1896,\2\ Mr. James A. Walker, of Virginia, from the
Committee on Elections No. 3, submitted the report of the majority of
the committee in the case of Thorp v. McKenney, of Virginia.
The sitting Member had received an official plurality of 864 votes;
but he admitted that one precinct improperly rejected should be
counted, and that the plurality should because of that be reduced to
785 votes.
In this case sitting Member took no testimony and the case was
decided by the evidence produced by the contestant.
-----------------------------------------------------------------------
\1\ Second session Fifty-fourth Congress, Record, pp. 1483-1501.
\2\ First session Fifty-fourth Congress, House Report No. 1531;
Rowell's Digest, p. 537.
Sec. 1072
The majority of the committee decided that the vote of ten election
precincts in the district should be rejected because of a conspiracy
``clearly and fully made out'' to deprive contestant of his rights. In
eight other precincts strong suspicion was raised.
The law of Virginia provided for an electoral board for each county
and city, and these boards had complete, entire, and unlimited control
of the elections and the election machinery in their respective
counties and cities. These boards had the appointment of three judges
of election for each voting precinct in their respective counties and
cities. The law of Virginia has only the limitation that the judges
thus appointed shall be competent citizens and qualified voters, who
``shall be chosen for each voting place from persons known to belong to
different political parties, each of whom shall be able to read and
write.'' As to this provision the committee say:
The provision of law requiring judges of election to be able to read
and write and selected from voters known to belong to different
political parties is wise and salutary, as evidenced by its being
recognized and incorporated in the election laws of all the States
which claim to have honest election laws. It is a provision intended as
a safeguard against fraud, and is in Virginia especially important to
that end, because in this State the judges of election, after the polls
are closed, and before any representatives of opposing candidates are
admitted into the election room, open the ballot boxes, count the
ballots to see whether they correspond with the number of names on the
poll books, and if they exceed the number of electors on the poll
books, withdraw enough ballots to reduce the number of ballots to the
number of electors, which affords to partisan and unscrupulous judges
the opportunity to substitute false ballots for true ballots.
This provision might ordinarily be considered as mandatory--it is
such an important safeguard against fraud--but the Virginia statute
further provides that ``no election shall be deemed invalid when the
judges shall not belong to different political parties, or who shall
not possess the above qualifications;'' i.e., as we understand it, an
election fairly conducted without any charge or taint of fraud shall be
valid though the judges do not belong to different political parties,
etc. It was intended to cover the cases of a few isolated precincts
where, by accident or otherwise, all the judges happened to belong to
the same political party, or a judge happened to be appointed who did
not possess the necessary qualificatons, but the will of the voter was
nevertheless fairly expressed and correctly and honestly returned. In
such a case, there being no bad faith or intentional wrong on the part
of the appointing power or the judges, the election ought to stand and
the return be accepted.
But this statute was not intended to apply to a case like the one
before the committee. It never was intended as a shield for fraud.
The charge here is that the election held at these 18 precincts by
judges all of the same party was dishonestly conducted, and the returns
made by these judges are false and utterly unreliable as evidence of
what was the true vote cast.
The Virginia statute does not say that the returns of an election
where the judges do not belong to different political parties, etc.,
shall be accepted, nor does it say what weight shall be given to this
failure to appoint such judges in considering the question of fraud;
but the report of the committee in the case of McDuffie v. Turpin
(Fifty-first Congress), quoted in the brief, does say that in itself it
raises a strong suspicion, if it does not fully prove, a conspiracy to
falsify the returns.
The failure to comply with the law in this respect was not in a few
isolated precincts.
It appeared that in 10 precincts the judges appointed were all
partisans of sitting Member, although perfectly competent partisans of
contestant were available to equalize the representation. In 8 other
precincts the election board appointed to represent contestant's party
were educationally, morally, and physically unfit to represent it or
men not regarded as representative of the party, when proper men were
available.
Sec. 1072
The law and decisions of Virginia further provide for a secret
ballot, printed officially, which is to contain the names of all the
candidates, printed in black ink, and is to be kept under seal and
secret as to form, style, arrangement, etc., until opened by the judges
at the voting place. But in the 18 precincts in question the tickets
were printed in an unusual style, some of them in script type and
others in type of different sizes and styles, so as to confuse the
voter.
The majority of the committee quote authorities to show that they
would be justified in holding that the election officers by these acts
had destroyed all confidence in their official acts. Such a view of the
case would cause the rejection of the 18 precincts and leave to
contestant a plurality of 1, 115.
The committee, however, defer to the possible contention ``that more
specific actual fraud and further acts of illegality on the part of
election officers must be shown,'' and review the precincts
individually, showing in each of 10 of them specific acts of fraud,
such as ejection of tally keepers and discrepancies in the count of
votes; fraudulent manipulation of ballots by a judge of election;
illegal entries on the poll books; names of persons proved to have
voted for contestant omitted from poll book; refusal of election
officers to assist illiterate voters, etc.
The committee therefore determined to reject entirely the vote of 10
precincts, where the election officers were all of sitting Member's
party, where the ballots were printed in a style apparently intended to
mislead, and where other specific acts of fraud occurred. These
rejections resulted in a plurality of 571 for contestant.
The committee reviewed other precincts which in their opinion might
be thrown out, but considered such action unnecessary.
In conclusion they say:
The refusal of the electoral boards in the several counties and
cities in this district to appoint Republican judges at precincts where
it was possible to do so; the alternation of the names of the
candidates upon the tickets, printing them in unusual type and in type
of different sizes and styles; the appointment of Democratic
officeholders as judges, constables, and clerks at many precincts; the
appointment of illiterate, incompetent Republican judges at other
precincts; the refusal of the special constables to assist illiterate
voters, as the law required them to do; the illegal and arbitrary
action of the judges and officers of election in driving away
Republican tally keepers from the vicinity of the polls with threats of
violence and imprisonment; refusing to permit a Republican to be
present at the counting of the votes, and placing the name of an
illiterate and obscure negro upon the tickets as a pretended candidate
for Congress furnish conclusive evidence of a conspiracy on the part of
the election officers to defraud the voters, which destroys the
integrity of their act and taints the returns so as to render them
wholly unreliable, and devolves upon the contestee the duty of proving
what was the true state of the poll, which, as we have seen, he has not
attempted to do.
Add to these evidences of fraud and conspiracy the many proofs of
error, fraud, and irregularity at the various precincts, as above set
forth in this report, and it is clear that the contestant was duly
elected by a majority of the legal voters cast at said election, and
that the contestee was not elected.
The minority views, submitted by Mr. David A. De Armond, of Missouri,
concur in the conclusion that contestant was elected, but that what is
considered wrong in the conduct of the election officers may be
attributed to erroneous views as to the requirements of the election
law.
On May 2 \1\ the House concurred in the report, and Mr. Thorp, the
contestant, took the oath.
-----------------------------------------------------------------------
\1\ Journal, p. 447.
1073
1073. The Colorado election case of Pearce v. Bell in the Fifty-
fourth Congress.
A contestant giving no notice of contest as required by law and
taking no testimony, the House without further examination confirmed
returned Member's title.
On April 29, 1896,\1\ Mr. James A. Walker, of Virginia, from the
Committee on Elections No. 3, submitted a brief report in the case of
Pearce v. Bell, from Colorado, accompanied by resolutions confirming
the title of sitting Member to the seat. The resolutions were agreed to
by the House on the same day.\2\ The report describes the case fully:
In this case the contestant gave no notice of contest, as required by
law, and has taken no evidence to sustain the allegations of fraud and
intimidation claimed by him to have been committed.
The official returns show that the contestee received 47,703 votes,
that Thomas M. Bowen received 42,369 votes, that W. A. Rice received
2,032 votes, and the contestant received 157 votes.
1074. The South Carolina election case of Murray v. Elliott in the)
Fifty-fourth Congress.
Specifications in the notice of contest being deemed sufficiently
clear and direct to put the sitting Member on a proper defense and
prevent surprise were upheld.
Voters may not be deprived of their ballots by the neglect of
regularly qualified managers to qualify and act.
Where a true expression of the intention of qualified voters is had
at an improvised poll the votes will be counted by the House.
A general conspiracy of registration and election officers to prevent
a class of electors from voting was held to justify rejection of
returns in a series of precincts.
Instance wherein the color of voters contributed to a presumption as
to their votes.
Conduct of unauthorized challengers supplemented by the acts of
partisan election officers may contribute to taint a return.
On May 1, 1896,\3\ Mr. Jesse Overstreet, of Indiana, from the
Committee on Elections No. 3, submitted the report of the majority of
the committee in the case of Murray v. Elliott, of South Carolina. The
sitting Member in this case was returned by an official majority of
1,737 votes. The contestant enumerated 19 specific claims and charges,
by which he sought to attack this plurality.
At the outset the sitting Member objected to certain of these
specifications because of uncertainty and insufficiency. But the
committee, referring to McCrary on elections, say:
It is the opinion of the committee that the objections to certain
specifications in the notice made by contestee are not well founded,
inasmuch as they are sufficiently clear and direct to put the sitting
Member upon a proper defense and prevent any surprise being practiced
upon him.
In considering the merits of the case the committee discuss only the
city of Charleston and a precinct called ``Haut Gap.''
-----------------------------------------------------------------------
\1\ First session Fifty-fourth Congress, House Report No. 1529;
Rowell's Digest, p. 540.
\2\ Journal, p. 438.
\3\ First session Fifty-fourth Congress, House Report No. 1567;
Rowell's Digest, p. 543.
Sec. 1074
(1) As to Haut Gap the report of the majority says:
It is admitted that at Haut Gap, Berkeley County, the Federal polls
were not opened by reason of the failure of the managers to qualify and
act. At this precinct the voters at the polls, on the morning of the
election, improvised an election board, following the rules of the
election law, and under the conduct of such board 217 ballots were cast
for George W. Murray and none for Elliott, and 156 ballots were offered
by voters qualified in all respects except they held no registration
certificates.
The committee is of the opinion that voters can not be deprived of
their ballots by the neglect or failure of regularly appointed managers
to qualify and act; and where a true expression of the intentions of
such voters can be had, and the fact of their qualifications is
undisputed, such ballots should be counted, and for that reason 217
votes should be added to the vote of George W. Murray.
The 156 ballots offered for Murray, and rejected because the voters
did not hold registration certificates, should be counted for Murray,
under the theory that the law of registration of the State of South
Carolina is unconstitutional; but as such question is not raised in
this case, the committee does not consider it, and therefore does not
count these 156 ballots.
The minority views, presented by Mr. W. A. Jones, of Virginia, say:
To the action of the committee in counting for Murray the 217 Haut
Gap votes there is no dissent by the undersigned.
(2) As to the returns from 24 precincts in the city of Charleston,
which together returned for Murray 359 votes, and for Elliott 2,720
votes, the issue arises in the case. The majority of the committee
concluded from the testimony that a conspiracy existed and was carried
out to commit frauds in behalf of the sitting Member in the 24 attacked
precincts of Charleston. According to the law in force in this district
no elector was allowed to vote until he had registered, and the
presentation of the registration certificate at the polls was
necessary. The testimony disclosed that impediments had been put in the
way of colored voters, who were supporters of contestant, when they
attempted to register; and that in many cases where such voters did
register the certificates issued to them contained errors. The
committee concluded from the evidence that there was no reason why
contestant should not have had the support of his party, and that this
party numbered in its ranks nearly all the colored voters. Discussing
this and other portions of the evidence the committee find the
following indications of a conspiracy:
In the absence of some reasonable explanation it would indeed be
strange that in a city of 65,000 population, with 8,000 colored voters
and 6,000 white voters, the proportion of white voters to colored
voters should be as 10 to 1.
But a study of the record discloses a reasonable explanation; and
that is that the board of supervisors fraudulently impeded and
prevented the registration of colored voters, and committed intentional
errors in the execution of registration certificates for illiterate
voters, and that challengers, unauthorized by law, and by the sanction
of the managers at the various precincts, arbitrarily passed upon the
qualifications of colored voters and directed who should vote and who
should not, and that in some of the precincts the dead and absent were
recorded as having voted.
The board of supervisors for the city of Charleston consisted of
three men, to whom each voter was required to apply for a certificate
of registration. This board was an arbitrary court, before which
illiterate and ignorant voters were compelled to go and in which they
had a right to place full confidence. If errors were made upon the
certificates, the illiterate voters would not be able to discover them,
and if an error proved fatal to his certificate the voter was helpless.
A common excuse for rejection of ballots was that certificates held
by the voter failed to give the number of the precinct, or the correct
number of the ward in which the voter lived, or the proper number of
his residence. The fact that these errors appeared always with
certificates held by colored voters is significant. That the voters
holding such certificates were illiterate was sufficient excuse for
their ignorance of the condition of the certificates, and plainly shows
that the errors were made by the super-
Sec. 1074
visor of registration, and whether intentional or not should not
operate against the voter. The common character of the apparent
mistakes, and their frequency, strongly and conclusively indicate that
they were intentional, and made for the purpose of depriving the
holders of the certificates of their ballots.
The evidence strongly shows that the supervisors of registration in
Charleston threw every possible obstacle in the way of a full and fair
registration. By delay in the issuing of certificates, by seeming
investigations, by excuses, by favoritism, and by discrimination
against the colored voters, unquestionably many hundreds were prevented
from registering.
There were also disclosed further instrumentalities of the alleged
conspiracy. Thus a Democratic challenger was on duty in every precinct,
a privileged character, although having no standing under the law. The
committee say:
In many instances the challenger was the authority of the board upon
the question of qualification, and in no case where the challenge was
exercised was the voter allowed a hearing or permitted to vote.
The familiarity of the challengers with the registration books and
the kind of certificates held by the voters evidenced their preparation
for their part in the plan, which was to point out the defects in the
certificates of registration because of which the election managers
rejected the ballots.
The election managers in each precinct in the city of Charleston were
Democrats. No other party was recognized upon the boards. And while the
law of the State is silent as to party representation, all sense of
justice and right, equity and fairness, would demand such recognition.
It is, of course, possible for a board composed wholly of men of one
party to properly and honestly discharge the duties of such board, and
the law presumes that their duties were so discharged; but in this case
the managers of election became the third side in the triangle of fraud
that controlled the election in the city of Charleston. By their
treatment of the Democratic challenger, whereby he was made the
authority upon the qualification of voters, by their refusal in many
cases to expose the inside of the box before the voting began, and the
conduct of a private count at the close, and in some cases by the
personal misconduct of the members of the board, the presumption of law
in their favor is overthrown; and, construing their action in the light
of the conduct of the supervisors of registration and Democratic
challengers, a conspiracy, involving them all, to defraud the colored
voters of their ballots in the interest of the contestee, is reasonably
inferred.
The majority further find in five precincts that certain dead or
absent voters appear on the poll lists. The number of these is not
large, however, but are introduced as incidents in support of the
majority's final conclusion.
These instances strengthen the claim that the entire election in the
city of Charleston was tainted with fraud, and that gross
irregularities occurred at nearly every precinct.
The conduct of the supervisors of registration and the managers of
election, and the practice of swelling poll lists with the names of the
dead and absent voters, was such as to cloud the result with
uncertainty and doubt.
The presence of the challenger and his conduct, although unauthorized
by law, would not in itself be sufficient to invalidate the election
where such officer acted, but, considered as a circumstance in
connection with the known misconduct of the supervisors of registration
and the manners of election and the swelling of poll lists, it becomes
of great importance in determining whether or not the will of the
majority of the voters at such precincts is expressed by the returns.
Fraud in the conduct of an election may be shown by circumstantial
evidence. (McCrary on Elections, 3d ed., sec. 540; English v. Peelle,
Forty-eighth Congress.)
It is not necessary, in order to set aside a return for fraud, that
the officers of election participated in the fraud. But if the unlawful
acts of third persons are connived at by the officers the effect is the
same. (McCrary on Elections, 3d ed., sec. 543.)
It is the opinion of the committee that the conduct of these officers
was such as to bear the badge of fraud at each of the election
precincts of Charleston, except Nos. 1 in Ward 2, 1 and 2 in Ward 6,
and 1 in Ward 10, and the question then arises whether the returns
shall be purged or rejected.
The authorities are clear and complete that where fraud taints a
return it can not be purged, but must be rejected; but a return can be
purged only by rejecting ballots illegally cast or wrongfully counted.
While in this case legal ballots were unquestionably kept from the box
by the illegal and
Sec. 1074
wrongful acts of persons connected with the machinery of the election,
it is impossible to determine the number of these ballots, and the only
logical and equitable result is to reject such returns.
In accordance with their conclusions, the majority find for the
contestant a plurality of 434 votes, and report resolutions declaring
him entitled to the seat.
The minority dissented entirely from these conclusions as to the
precincts in Charleston. They denied that the testimony showed the
alleged conspiracy, or that there was fraud either on the part of the
registration or election officers. The minority urge that the
testimony, when analyzed, shows that only 41 persons are shown to have
been rejected as voters, though properly registered. They also urge
that contestant was shown not to have been popular with his party, and
that he did not receive the party strength.
In conclusion the minority say:
So that taking the most extreme case against the contestee, there
were not in the entire city of Charleston more than 41 registered
voters who were refused the right to vote. It would require too much
space to set forth in detail the testimony as to each of the persons,
but the proof shows that the majority of them were not legally
registered, and that as to all persons rejected by the managers, there
was proof before the managers justifying them in rejecting the elector
under the law of South Carolina, although it since may have been proved
in this case that the elector had the right to vote.
A careful scrutiny of the whole evidence in this case convinces us
that the contestee received a substantial majority of the votes cast
for Representative in Congress, and that if every vote of those who
offered to vote, with or without certificates of registration, in the
city of Charleston, should be counted for the contestant the majority
of the contestee would not be materially reduced.
The law upon this subject is tersely stated in McCrary on Elections,
third edition, section 492:
``The fact that the right to register or to vote has been denied to
any person or persons duly qualified to vote, may always be shown in a
case of contested election whether such denial was fraudulent or not.
The effect upon the rights of electors and upon the result of the
election is the same whether such denial be the result of intentional
wrong on the part of the officers of the election, or of accident, or
an honest mistake as to the law. And if the number of voters whose
rights have thus been denied is large enough to materially affect the
result such denial will vitiate the election''
Upon the general subject of the impeachment of returns for fraud or
illegal voting, attention is called to the following passages, also
taken from McCrary on Elections:
``The return must stand until such facts are proven as to clearly
show that it is not true. When shown to be fraudulent or false it must
fall to the ground. This ruling is well settled by numerous
authorities, including the following: Blair v. Barrett, I Bart., 308;
Knox v. Blair, 1 Bart., 521; Howard v. Cooper, supra; Washburn v.
Voorhees, 2 Bart., 54; State v. Commissioners, 35 Kans., 640.''
The following remarks concerning the dangers which may attend the
application of this rule are here quoted, with emphatic approval, from
the report of the Committee on Elections in the House of
Representatives in Washburn v. Voorhees:
``In adopting this rule the committee do not lose sight, however, of
the danger which may attend its application. Wholesome and salutary,
not less than necessary in its proper use, it is extremely liable to
abuse. Heated partisanship and blind prejudice, as well as indifferent
investigation, May, under its cover, work great injustice. It is not to
be adopted if it can be avoided.
``No investigation should be spared that would reach the truth
without a resort to it, but it is not to be forgotten or omitted if the
case calls for its application. 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 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. (Sec. 536.)
``But misconduct which does not amount to fraud, and by which no one
is injured, does not vitiate the poll.'' (Sec. 540.)
Unless the presumption is indulged that every man who has a dark skin
is a Republican and votes the Republican ticket at all times and under
all conditions and circumstances, even when he swears that he voted
otherwise, it will be impossible to give to the contestant the seat
which he claims.
Sec. 1075
The case was debated on June 3,\1\ and on June 4 \2\ the substitute
resolution of the minority, declaring sitting Member entitled to the
seat was disagreed to, yeas 48, nays 144. The resolutions of the
majority, declaring contestant elected and entitled to the seat, were
then agreed to, yeas 153, nays 33.
Thereupon Mr. Murray, the contestant, appeared and took the oath.
1075. The South Carolina election case of Wilson v. McLaurin in the
Fifty-fourth Congress.
An intelligible written notice of contest, in the hands of returned
Member within the prescribed time, is sufficient, although served
informally.
The House will count the votes of electors denied their right of
suffrage by a registration law which it deems unconstitutional and not
passed on by the State courts.
Where an unconstitutional State law disfranchises a large class, the
House prefers to measure the wrong rather than declare a vacancy.
The House counts lists of wrongfully disfranchised qualified voters
when sustained by other evidence that the voters were present near the
polls to vote and would have voted for the party claiming had they not
been prevented.
On May 1, 1896,\3\ Mr. James H. Codding, of Pennsylvania, from the
Committee on Elections No. 3, submitted a report in the case of Wilson
v. McLaurin, from South Carolina.
A preliminary question was raised by the objections in the nature of
a demurrer of sitting Member to the service of the notice of contest.
The committee dispose of this objection as follows:
It is admitted that the notice was in writing and was addressed by
registered mail to the contestee, one copy to his ``home office'' at
Bennettsville, S. C., and the other copy to Washington, D. C. It is not
denied that both copies were received by Mr. McLaurin within the
statutory thirty days, nor is it alleged that he has been placed at any
disadvantage by the manner of service. That the notice was in writing
and that it reached the proper party are sufficient for this committee
to hold the contestee to the necessity of his answer and proofs. In all
such cases the rules as to service may naturally be somewhat flexible,
according to the circumstances, provided that no clear right be thereby
denied or infringed. An intelligent and intelligible notice in writing,
actually in the hands of a contestee within the thirty days established
by statute ought to be sufficient.
As to the merits of the case, the committee consider two charges made
by the contestant:
(1) That he had been deprived of a large number of votes by the
action of election officers in drawing votes cast for the contestant
from the boxes and destroying the same, under color of a section of the
election law relating to purging the boxes in cases where the number of
ballots found therein exceeded the number upon the poll lists. The
committee did not find that the ballots so withdrawn were in quantities
affecting the final result.
(2) Contestant in several specifications charged that voters were
prevented from casting their ballots for him. Several means were
alleged to have been
-----------------------------------------------------------------------
\1\ Record, pp. 6072-6078; Appendix, p. 445.
\2\ Journal, P. 571
\3\ First session Fifty-fourth Congress, House Report No. 1566;
Rowell's Digest, p. 541.
Sec. 1075
employed, but this was accomplished principally by the operation of a
so-called registration law of South Carolina passed in 1882, and in
force at the time of this election, whereby the various election
officers of the district were enabled to reject the votes of several
thousand voters.
The committee therefore proceed (a) to a consideration of the
constitutionality of the law and the attitude of the House toward it;
(b) to a determination of the method for correcting the wrong; and (c)
to the application of a rule of evidence to the testimony and the
ascertainment of a result. As follows:
(a) As to the registration law the report says:
A casual examination of the testimony discloses the fact that if the
contestant is to overcome the majority returned against him his chief
reliance must rest in being allowed to reverse the results of the
registration law of 1882 and to ally with his certified vote the
aggregate of such votes as were rejected under that law.
In taking up this question some surprise is not unnatural that during
its career of more than twelve years the constitutionality of this law
has not been urged to a decision before the highest tribunals.
Disfranchising, it is alleged, many thousands of voters, the law
appears before this House for construction at a period when it is
approaching, or has reached through other legislation, a practical
death in the State of its adoption. Under these circumstances no
labored or extended argument will be attempted in this report. That
law, by its specific terms, extended the period of residence required
by the constitution of South Carolina. It placed in the hands of a
supervisor of registration, an official holding by executive
appointment, a power practically absolute of judging the rights of
voters, and the testimony is abundant that the power was unsparingly
used for the exclusion of at least one class. It is equally true that
the same power so molded the details of many registration certificates
that officers conducting elections were able, or assumed to be, to
reject many voters on account of trivial or pretended defects in their
certificates. Against the sweeping disfranchisement of this law the
average voter was powerless when he tendered his ballot. Under color of
law his exclusion was complete.
A majority of this committee has reached the conclusion that the
voters of the district now in consideration who were qualified under
the constitution of South Carolina and who were rejected under color of
the enforcement of the registration law are entitled to be heard in
this contest.
In this conclusion no violence is done to the doctrine that ``where
the proper authorities of a State have given a construction to their
own statutes that construction will be followed by the Federal
authorities.'' While the supreme court of South Carolina has not passed
decisively upon the statute in question the people themselves, the
highest authority in that State, have decreed its disappearance from
the statute book.
(b) As to the correction of the wrong, the committee say:
From this standpoint we look for the course to be followed. Shall the
election be set aside and the seat in question vacated? Under the
authorities we think not.
Beyond doubt the usual formalities of an election were for the most
part observed. No substantial miscount of votes actually cast is
alleged. There are no charges of violence or intimidation seriously
affecting the result which have been verified. If fraud be alleged,
under sanction of legislative enactment, it was a general fraud, and
the returns are in general unchallenged for correctness. The votes
actually cast are not in controversy; the votes not cast are the ones
presented for computation.
The report then quotes McCrary on Elections as follows:
The election is only to be set aside when it is impossible from any
evidence within reach to ascertain the true result--when neither from
the returns, nor from other proof, nor from all together can the truth
be determined. * * * Nothing short of the impossibility of ascertaining
for whom the majority of votes were given ought to vacate an election.
The report then says:
It is a matter of serious import and precedent to introduce into an
election the count of a large disfranchised class. But if the principle
is good as to 4 or 40 or 400 it should certainly be no less available
for a larger number; or, briefly, the number is immaterial if capable
of correct computation.
Sec. 1075
Therefore the committee determine to follow the doctrine laid down in
the case of Waddill v. Wise: \1\
If the fraudulent exclusion of votes would, if successful, secure to
the party of the wrongdoer a temporary seat in Congress, and the only
penalty for detection in the wrong would be merely a new election,
giving another chance for the exercise of similar tactics, such
practices would be at a great premium and an election indefinitely
prevented. But if where such acts are done the votes are counted upon
clear proof aliunde the wrong is at once corrected in this House and no
encouragement is given to such dangerous and disgraceful methods.
(c) The contestant presented the names of several thousand alleged
voters, whose votes he claimed should be counted for him although they
were not actually cast. These names were generally presented in lists,
drawn up in the form of petitions made in most of the election
precincts on election day. One of these petitions would be addressed to
the Congress, would represent that each of the subscribers was a
citizen of South Carolina, over 21 years of age, a male resident of the
county and election precinct, and qualified to register and vote; that
on the election day in question the subscriber presented himself at the
voting precinct, desiring and intending to vote for Joshua E. Wilson
(the contestant) for Member of Congress, but that he was denied the
right to vote; and that he had made every reasonable effort to become
qualified to vote according to the registration law of the State, but
had been denied an equal chance and the same opportunity to register as
was accorded to other fellow-citizens.
These petitions were not generally verified by affidavit, but were
usually supplemented by testimony of those who had them in charge, with
such explanations and corroborations as the witnesses could give.
The report states the disposition made of these petitions:
It is considered by a majority of this committee that these lists are
not per se evidence in the pending contest. They are declarations,
important parts of which should be proven in accordance with usual
legal forms. It is not impossible so to do, and consequently we think
it is necessary for reaching trustworthy results.
Under the authority of Vallandigham v. Campbell (1 Bartlett, p. 31)
these declarations might serve a use beyond a mere list for
verification, for it was there held ``the law is settled that the
declaration of a voter as to how he voted or intended to vote, made at
the time, is competent testimony on the point.''
We propose to compute the ballots of those who were entitled to cast
them, and there is ample support in a line of authorities and
precedents. A few only are selected.
Delano v. Morgan (2 Bartlett, 170), Hogan v. Pile (2 Bartlett, 285),
Niblack v. Walls (Forty-second Congress, 104, January, 1873), Bell v.
Snyder (Smith's Rep., 251), are uniformly for ``the rule, which is well
settled, that where a legal voter offers to vote for a particular
candidate, and uses due diligence in endeavoring to do so, and is
prevented by fraud, violence, or intimidation from depositing his
ballot, his vote shall be counted.''
In Bisbee, Jr., v. Finley (Forty-seventh Congress) it was stated,
``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.''
In Waddill v. Wise (supra) the same doctrine was elaborately
discussed and a further step taken by holding ``that the ability to
reach the window and actually tender the ticket to the judges is not
essential in all cases to constitute a good offer to vote.''
Referring to the evidence given in connection with the lists in this
record, it seems proper to adopt some general principles as a standard
for the examination, and the following have been used as suitable and
in accord with the precedents quoted:
-----------------------------------------------------------------------
\1\ See section 1026 of this volume.
Sec. 1076
First. The evidence should establish that the persons named in the
lists as excluded voters were voters according to the requisites of the
constitution of South Carolina.
Second. The proof should show that said persons were present at or
near the Congressional voting place of their respective precincts, for
the purpose of voting, and would have voted but for unlawful rejection
or obstruction.
Third. That said excluded voters would have voted for the contestant.
Using the greatest liberality in computing according to the above
principles, the committee could find but 3,124 votes which should be
added to contestant's returned vote of 2,455. This would make a total
of 5,579 votes for contestant, not sufficient to overcome sitting
Member's certified vote of 8,171.
Therefore the committee reported resolutions confirming the title of
sitting Member to the seat, and the same were agreed to by the House on
May 1.\1\
1076. The Texas election case of Rearby v. Abbott, in the Fifty-
fourth Congress.
As to the use of red ink for writing a name on a ballot when a
mandatory State law requires black ink.
The mere fact of a slight discrepancy between the returns and the
check list does not, in the absence of fraud, invalidate the election.
Neglect of election officers to place ballots, poll lists, and tally
sheets in a fastened box, as required by law, does not, in the absence
of fraud, invalidate the return.
Returns of a precinct not being questioned, failure to carry out the
law as to preservation of other election papers does not justify
rejection of the returns.
Where State officers estimated a return from the tally sheets, there
being no formal returns, as required by a directory State law, the
House did not require a recount of the ballots, there being no charge
that the tally sheets were incorrect.
On May 4, 1896,\2\ Mr. Charles K. Bell, of Texas, from the Committee
on Elections No. 3, submitted a report in the case of Kearby v. Abbott,
of Texas. The official returns gave to sitting Member a plurality of
344 votes, which contestant attacked on the ground of various
illegalities and informalities. The examination and decision of the
committee touched the following questions:
(1) In Morgan precinct, where the ballots had been preserved-as
required by law, a recount showed that sitting Member had been credited
improperly with one vote, and that four ballots had been rejected by
the officers of election because the name of the contestant had been
written in red ink, while the law of the State required that the name
of the person voted for should be written or printed with black ink or
a black pencil. The committee say:
The law of the State provides that no ballots not in accordance with
the requirements of the statutes shall be counted, but as it is not
necessary to a correct decision of this case, the committee does not
decide the question as to whether the fact that this law is not
complied with would justify the managers of election in refusing to
count a ballot.
(2) In the county of Dallas, where the contestant had alleged that
the returns in several precincts did not represent the state of the
ballots, a recount was made, and
-----------------------------------------------------------------------
\1\ Journal, p. 443.
\2\ First session Fifty-fourth Congress, House Report No. 1596;
Rowell's Digest, p. 546.
Sec. 1076
the contestant, according to his contention, gained 139 votes. Some
questions arose as to this recount, but the committee did not consider
it necessary to go into them, and were willing to credit contestant
with the 139 votes plus 5 at Morgan precinct, or 144 votes in all.
(3) At Pleasant Valley precinct one vote more was found in the ballot
box than the poll list showed had been voted. The committee did not
conceive that this circumstance raised any suspicion of fraudulent
conduct on the part of the election officers, quoting Paine on
Elections:
The mere fact that the number of votes returned exceeds the number of
names checked on the voting list does not, in the absence of fraud or
of a change in the result, affect the validity of the election.
(4) ``As to contestant's complaint,'' says the report, ``that the
presiding officers at certain precincts in Kaufman County neglected to
place the ballots as voted at said precincts, together with the poll
lists and tally sheets, in a box, and securely fasten it as required by
law, we find that in the absence of fraud, or, for that matter, of
claim of injury, such failure, even if it had been established, would
constitute no ground for rejecting the votes cast.'' In fact, however,
the proof showed appearance of irregularity in only one precinct. About
two months after election an examination of the ballot boxes--then in
the custody of the county clerk--showed that the box of Pleasant Grove
precinct was not shut tight, it being in fact an old cigar box, and
that only one ballot remained in it. But the committee found that the
returns from this precinct had been signed by an election officer
representing contestant's party, that they were not in any way
questioned, and that no effort was made to show that the vote was not
actually as certified. The committee quote Paine:
Accidental loss of the ballots cast and affidavits used at a
particular precinct before the county canvass affords no ground for the
rejection of the entire returns of the precinct.
And McCrary:
The rule is that the evidence must stand until impeached, i. e.,
until shown to be worthless as evidence--so worthless that the truth
can not be deduced from it. * * * The return is only to be set aside,
as we have seen, when it is so tainted with fraud or misconduct of
election officers that the truth can not be deduced from it.
The committee therefore decline to reject the returns from this
precinct.
(5) At Terrell precinct some of the tickets of contestant's party
were destroyed before they were voted; but the testimony did not
disclose that contestant had been deprived of any votes thereby. In
fact it indicated the contrary. There was some testimony as to improper
influence at this precinct for sitting Member, but the committee
conclude that there was nothing in the evidence to warrant the
rejection of the returns, it not being contended that the election
officers were guilty of any breach of propriety or fraudulent conduct.
(6) From certain precincts--where the plurality of sitting Member was
about 300 votes and which if rejected would, with previous deductions,
be decisive in favor of contestant--no formal returns were made in
accordance with the statutes of the State of Texas, which required the
managers of election to make out triplicate returns of the same,
certified to be correct and signed by them officially, showing the
number of votes polled for each candidate, one of which returns,
together with the poll list and tally sheet, was required to be sealed
up in an envelope and
Sec. 1076
delivered by the managers of election to the county judge of the
county. Another similar package was required to be delivered to the
clerk of the county court, and a third to be kept by the presiding
officer of the election for twelve months.
But while the formal returns were not made, the poll lists and tally
sheets were returned as required by law, and from the poll lists and
tally sheets the county commissioners' court, which is a returning
board, estimated the vote of the precincts.
The contestant alleged that this action was erroneous, although he
did not allege and made no effort to show by evidence, that as a matter
fact the vote as estimated was not exactly in accordance with the vote
as cast.
The committee admit that the law of Texas provides that no election
returns shall be opened or estimated unless the same have been returned
in accordance with the provisions of the law. But they quote Fowler v.
State (68 Texas) to show that this statute is directory. ``It is
true,'' says the supreme court in that case, ``that our present statute
says that election returns shall not be opened or estimated unless the
same have been returned in accordance with its provisions (Article
1706), but this applies to the opening and estimate provided for in the
previous section to be made by the county judge. It does not prevent
the district court from arriving at the true sense of the electors in a
proceeding to test the title to an office. The county judge deals with
returns only, but in a suit for the recovery of the office the district
court may disregard any unimportant informality in making them, or set
them aside altogether when they do not speak the truth as to the state
of the ballot.''
The committee quote McCrary:
The election is only to be set aside when it is impossible from any
evidence within reach to ascertain the true result; when neither from
the returns, nor from other proof, nor from all together can the truth
be determined.
The committee then say:
The contestee took the testimony of one or more officers of each of
the election precincts from which no returns were made, and it was
proved that the failure to make the returns in each instance was
occasioned by the fact that no blanks upon which returns should have
been made were furnished; but as to each precinct proof was made from
the tally sheet and from the memory of the officers of election exactly
what the vote actually polled for each candidate was.
It was not contended by the contestant and no effort was made to
prove that the vote was in any instance different from that shown by
the tally sheet and as testified to by the witnesses. But he contends
that it was necessary that there should have been a recount of the
ballots cast at each of the voting precincts. Upon this point the
committee are agreed that if the contestant had alleged that the vote
at any of the precincts from which there were no formal returns was
different from that shown by the tally sheet, or if he had charged that
there was any fraud on the part of the election officers it would have
been necessary for the ballots cast at such precincts to have been
recounted, as they were in the precincts concerning which he made such
charges, but it is to be observed that no such contention was made by
the contestant, and no suspicion was raised as to the correctness of
the vote as estimated by the commissioner's courts of the different
counties and as proved by the contestee.
The committee quote Paine on Elections as to the application of the
general rule requiring the production of the best evidence, cite Howard
v. Shields (16 Ohio) to the effect that--
the tally sheet kept by the officers of the election was competent
evidence in an election contest to show the true state of the vote, and
that it was good until impeached,
Sec. 1077
with the explanation by McCrary that--
the rule stated presupposes that tally sheets are required to be kept
by law, and where they are not required by law to be kept by the
managers of the election they would not be admissible.
The committee call attention to the fact that in this case the tally
sheets were required to be kept by law.
The committee concluded, in accordance with the above decisions, that
the sitting Member was entitled to the seat, and reported resolutions
in accordance therewith.
On May 4 \1\ the House concurred in the report.
1077. The Virginia election case of Yost v. Tucker, in the Fifty-
fourth Congress.
Where the intention of the voter is clear the ballot will not be
rejected for faulty marking by the voter unless a law undoubtedly
mandatory so prescribes.
Where a voter inadvertently or ignorantly erases the designation of
the office in marking, the character of the ballot as an official
ballot is not destroyed.
Instance where blotted or blurred ballots were disposed of by
agreement of parties.
Although contestent claimed in his notice that blurred ballots should
not be counted for contestee, and did not ask that they be counted for
himself, the committee counted them for both.
On May 6, 1896,\2\ Mr. Samuel W. McCall, of Massachusetts, presented
the report of Elections Committee No. 3 in the case of Yost v. Tucker,
from Virginia. The sitting Member had been returned by an official
plurality of 892 votes over the contestant.
The case involved construction of the newly enacted Australian ballot
law of Virginia, and a review of the conduct of election officers under
it. This law, besides describing the ballot and providing for its
printing so that its form and arrangement should not be disclosed until
presented to the voter, has this provision:
Sec. 11. Every elector qualified to vote at a precinct shall, when he
so demands, be furnished with an official ballot by one of the judges
of election selected for that duty by a majority of the judges present.
The said elector shall then take the said official ballot and retire to
said voting booth. He shall then draw a line with a pen or pencil
through the names of the candidates he does not wish to vote for,
leaving the name or names of the candidate or candidates he does wish
to vote for unscratched. No name shall be considered scratched unless
the pen or pencil mark extend through three-fourths of the length of
said name; and no ballot save an official ballot above provided for
shall be counted for any person. When, as to any office, more than one
name remains unscratched, the ballot for that particular office shall
be void, but the ballot as to any other office for which only one name
remain unscratched shall be valid. He shall fold said ballot with the
names of the candidates on the inside and hand the same to the judge of
election, who shall place the same in the ballot box without any
inspection further than to assure himself that the ballot is a genuine
ballot, for which purpose he may, without looking at the printed inside
of said ballot, inspect the official seal upon the back thereof:
Provided, It shall be lawful for any voter to erase any or all names
printed upon said official ballot and substitute therein in writing the
name of any person or persons for any office for which he may desire to
vote.
-----------------------------------------------------------------------
\1\ Journal, p. 448.
\2\ First session Fifty-fourth Congress, House Report No. 1636;
Rowell's Digest, p. 547.
Sec. 1077
After the election, at the instance of the contestant, a recount of
the ballots was had in all the cities and counties of the district. It
also appeared that 1,021 ballots had been destroyed, and over these
ballots arose one of the principal issues of the case.
It will be convenient to notice, first, the questions arising over
the ballots recounted, and second, those arising over the destroyed
ballots.
(1) The questions arising over recounted ballots.
(a) The election law of Virginia provided:
Sec. 3. The ballot shall be a white paper ticket containing the names
of the persons who have complied with the provisions of this act, as
hereinafter provided, and the title of the office printed or written as
hereinafter provided. None other shall be a legal ballot.
At the election in question candidates for only one office were voted
for, and the following question arose:
Upon 1,169 ballots cast for Yost and 114 cast for Tucker the name of
the office as well as the names of all other candidates except Yost or
Tucker, respectively, were erased. What disposition shall be made of
these ballots? The general rule, doubtless, is to count those ballots
which clearly express the intention of the voter, but the intention
must be expressed as provided by law. We do not suppose it would be
contended, in view of the requirement of this statute for an official
ballot and an express prohibition against counting any other ballot,
that a ballot provided by the voter himself and deposited by him should
be counted, although it expressed his intention beyond all doubt. The
question here is not one which rests on a supposed ambiguity of the
ballot, but it is a question of what the laws of Virginia require.
The intention of the voter, if it can be clearly ascertained from the
ballot, will generally be given effect to, and when it is not expressed
according to the strict requirements of a statute, such requirements
will often be regarded as merely directory, unless a failure to comply
with them is declared to be fatal to the ballot. But where the statute
itself provides that a certain thing shall be done by the voter or his
vote shall not be counted, then there can be no question that a
provision of that character is Mandatory, and that a failure to comply
with it fatal to the ballot.
In the present case there is no question of the intention of the
voter. There was only one office to be filled, and it is hardly
conceivable that more than 1,200 voters in this district should have
left their homes, gone to the polls, entered the booths, and gone
through the act of voting with the intention of voting to fill no
office whatever. This was the first election at which the Walton law
was applied in Virginia, and undoubtedly the caption was marked out by
reason of the failure on the part of the voter to understand this novel
system. Unless clearly required to reject these ballots by the Virginia
laws, the committee believes they should be counted.
The words ``none other shall be a legal ballot'' in section 3 refer
to the Australian ballot provided for at the public expense, and the
words in section 11 of the act, ``no ballot save an official ballot
above provided for shall be counted for any person,'' were in the
opinion of the committee intended only as a prohibition of the counting
of any other than the ballot provided for by the first sections of the
act. The erasure of the caption did not destroy the character of the
ballot as an official ballot, and since there could be no ambiguity or
doubt as to what office the voter intended his candidate to fill, since
only one office was named on the ticket, the committee is of the
opinion that these so-called ``caption-marked'' ballots--114 for Tucker
and 1,169 for Yost--should be counted.
(b) Certain ballots were blotted or blurred. The most difficult
question was one of fact as to whether they were ``scratched'' within
the meaning of the law quoted above or simply ``blurred.'' The
committee say:
This question is settled by agreement of the contestant and
contestee. It is conceded that they were all properly marked, and in
folding them before the ink was dry an impression was made on the names
not marked. This is purely accidental, and not to be deemed the marking
or scratching contemplated by the statute, which is to be done by
drawing a line ``with a pen or pencil'' through the names of the
candidates for whom the voter does not wish to vote. The contestant's
notice of contest contends
Sec. 1078
that similar ballots cast for the contestee should not be counted, and
does not claim that such ballots should be counted for himself. The
committee are of opinion, however, that they should be counted--14 for
Tucker, and 54 for Yost--as appears by the record.
1078. The case of Yost v. Tucker, continued.
Where the State law specifically required rejection of a ballot
whereof the scratching of a name failed to mark two-thirds thereof, the
House approved rejection.
Although the intent of the voter be entirely plain the House will
follow a State law, arbitrary but mandatory, which requires rejection
of the ballot.
Is the House, in its function of judging elections, to be precluded
by an arbitrary State law from determining the intent of the voter?
Where the State prescribes the manner of election, may the House
disregard an arbitrary State law which denies expression to the voter's
intent?
Discussion of the distinction between directory and mandatory
election laws.
(c) As to imperfectly marked ballots a sharp division arose in the
committee and on the floor of the House. As shown by the extracts of
law already given no name was to be considered scratched unless the pen
or pencil mark extended through three-fourths of the length of the
name, and it was further provided that ``when, as to any office, more
than one name remains unscratched, the ballot for that particular
office shall be void.'' The majority of the committee say:
It appears very clear that unless a name is marked through three-
fourths of its length it is not, within the meaning of the law, to be
considered as scratched at all, and therefore more than one name in the
so-called ``imperfectly marked'' ballots remains unscratched upon the
ticket, and the law expressly provides that in such a case the ballot
shall be void. It is not for the committee to decide whether the
provision as to the marking of the ballot is a wise or reasonable one
or not. The voter has failed to express his will by the so-called
``imperfectly marked'' ballot, according to the requirement of the
statute, and, failing in that, the statute declares that the ballot is
void. In the judgment of the committee, therefore, these ``imperfectly
marked'' ballots can not be counted.
The minority \1\ contended strongly that these ballots, which if
counted would, the minority contended, give contestant a plurality of
22 votes, were marked sufficiently to show the intent of the voter, and
should be counted. The minority views cite legal authorities, including
the Illinois case of Parker v. Orr (41 N. E. Reporter), and express
surprise that there should be doubt as to so well an established
principle that a ballot should be counted if it expressed the intention
of the voter beyond a reasonable doubt.
In the debate this view was enforced on the floor, especially by the
argument \2\ of Mr. Charles Daniels, of New York, who contended that
the Constitution, in making the House the judge of the elections,
returns, and qualifications of its own Members, excluded any State from
tying the House down to any arbitrary principle or rule in determining
from the evidence the voter's intention. Mr. Daniels
-----------------------------------------------------------------------
\1\ Views presented by Mr. James A. Walker, of Virginia, and
concurred in by Mr. Henry F. Thomas, of Michigan.
\2\ Second session Fifty-fourth Congress, Record, pp. 998, 1000.
Sec. 1079
drew a distinction between this case, where the mark ``had a natural
and reasonable significance,'' and those cases where the law of the
State required what might be called an arbitrary mark, a cross before
or after the name, and not naturally of significance. In reply \1\ Mr.
David A. De Armond, of Missouri, called attention to the clause of the
Constitution under which the State prescribed the ``times, places, and
manner'' of holding elections, and held that the law of Virginia, as to
how the elections should be conducted, the returns ascertained, and the
result declared, was the law of Congress, which the House might not,
under the Constitution, disregard. The question was not as to the
intention of the voter, but whether in fact the name was scratched.
When a constitutional statute said that unless three-fourths of the
name was marked through it was not scratched, the question was not as
to what the voter intended, but as to what he did. And Mr. McCall, in
concluding the case, dwelt \2\ upon the fact--as he claimed--that the
Virginia statute (sec. 11, quoted above) was clearly mandatory, and
quoted McCrary and Paine on Elections, especially the following
paragraph from the latter:
Statutes expressly declaring specified acts or omissions fatal to the
validity of an election, or expressly prohibiting the performance or
omission of specified acts, are mandatory. While statutory provisions
prescribing acts which are in their nature absolutely essential to the
validity of the election may be mandatory, in whatever phraseology
expressed, the most unimportant requirements may be made mandatory by a
clear expression of the legislative will.
Referring to the case of Parker v. Orr, Mr. McCall noted the fact
that the court held, on the particular provision of the law it was
considering, that it was not intended by the legislature to be
mandatory, and he cited from that decision the following:
Wherever our statutes do not expressly declare that particular
informalities do not avoid the ballot, it would seem best to consider
their requirements as directory only.
1079. The election case of Yost v. Tucker, continued.
An illegal destruction of ballots, but apparently done in good faith,
was not held as evidence contributing to a charge of conspiracy.
Rejected ballots being illegally destroyed by election officers who
were partisans of contestee, and against protest, contestant was held
entitled to the advantage of every doubt.
Ballots improperly rejected by election officers, and then illegally
destroyed, were proven aliunde and counted.
Electors being at the polls a long time, and prevented from voting by
obstructive challenges of others, their votes were counted by the
House.
To count votes tendered but not cast, it is necessary to establish
obstruction by election officers and due diligence on part of the
elector.
Serious irregularities by election officers, the rejection of an
undue proportion of ballots for imperfect marking, and illegal
destruction of rejected ballots, vitiated the return.
(2) The questions arising over the 1,021 burned or otherwise
destroyed ballots: It appeared that a former law of Virginia had
provided for burning ballots, but that the law under which this
election was held--in use for the first time--had no
-----------------------------------------------------------------------
\1\ Record, p. 1020.
\2\ Record, pp. 1037, 1038.
Sec. 1079
provision authorizing the burning of rejected ballots. In debate Mr.
McCall stated that the precincts where the rejected ballots were burned
numbered about 15 out of 175 in the whole district.
At the outset an issue arose as to the burned ballots. The majority
or the committee took a view which allowed to be credited to contestant
only such of those ballots as he could prove to have been properly cast
for him and which threw out the entire vote of only such precincts as
could be successfully attacked individually. The majority say:
With reference to these ballots, generally, it may be said, in most
instances, that the Republican judges at the precincts where they were
cast concurred with the other judges in treating them as absolutely
void, and agreed that they should be burned or otherwise destroyed. At
a few precincts the Republican or Populist judges objected to their
destruction, but the record shows that in almost every case these
judges agreed to the count and concurred in the conclusion of the other
judges that these ballots were not marked, as required by the statute,
and could not be counted.
While the committee is of the opinion that in no case should the
defective ballots have been destroyed, yet it is of the opinion that in
nearly all of the precincts their destruction was made in entire good
faith, and that such destruction in most of the precincts does not
prove an intention to commit fraud on the part of the election judges.
The contestant attempts to prove that some of these ballots were
intended for him and as by their destruction he was prevented from
having a recount of them, it is clearly his right to prove by the
testimony of the judges, or of any witness, the exact condition of the
ballots, and he is entitled to the benefit of any that he can show were
cast for him.
The minority take issue with this position. They find 2,711 defective
ballots, burned and unburned, which could be counted for no one, and
declare that these defective ballots were ``the result of an illegal
and fraudulent conspiracy, entered into by sworn officers of the law
for the sole benefit of this contestee.'' The Minority say:
In violation of law, the election was practically in the hands of one
political party. It is shown by the record that only 15 per cent of the
election officers were Republicans. It is shown that at many precincts
Republican had no representation whatever among the election officers,
and that competent Republicans could have been appointed. It is
conceded that the defective ballots were cast by illiterate electors.
It is proven that in every instance the officer designated by law to
assist the illiterate was a Democrat, and in many instances so partisan
that no member of the opposite party had confidence in him. It is
proven that, in violation of law, as construed by the supreme court of
Virginia, special constables refused to mark the ballots for
illiterates who were opposed to them. A willing and cheerful service
was rendered to their political friends. To such an extent was this
carried that it was practically impossible for an illiterate Democrat,
with the eye of a jealous party friend upon him, to cast a defective
ballot, and it was almost impossible, at many precincts, for an
illiterate Republican to cast a perfect ballot.
It is proven that in order to qualify themselves for the discharge of
their duty as suffragans, the illiterate Republicans diligently sought
to familiarize themselves with the printed name of the candidate of
their choice--that many of them had so mastered the letters contained
in the name ``J. Yost'' as to enable them to recognize it when printed
in plain roman. That the Republican committee had widely circulated a
pamphlet giving extracts from the election laws and detailing the
method of voting. They advised that at each precinct an intelligent
Republican should vote early, carefully inspect the ballot, and after
voting explain to the illiterates who had not voted the location of
Yost's name on the ballot. With this information and his ability to
recognize the name of ``J. Yost,'' the illiterate voter could have
properly marked and cast his ballot. Knowing this, the Democratic
officials, in utter disregard of law, entered into a conspiracy to dupe
and deceive the opposing illiterate voter by alternating the names on
the official ballot, printing the ballot in German text and other type
illegible to a man who could only read plain roman, instructing special
constables not to assist the illiterates, a6nd in other ways sought to
so confuse and mystify the voter as to render his ballot defective.
Their object was accomplished. The fraud they planned and executed was
consummated.
Sec. 1079
Is it a wonder that under these circumstances thousands of ballots
cast by honest men were thrown out as defective? The very guardians of
the law became its violators; men sworn to render assistance to the
illiterates considered it their duty to defraud that voter of his
suffrage, and did defraud him. And this House is asked to put the seal
of its approval upon such work.
If this contestant were given the same proportion of these 2,711
unconsidered defective ballots as he received of the 1,086, which were
distributed upon recount and proof, his plurality would be over 2,000.
His proportion of the 1,086 was 669 on recount and 292 on burned
ballots proven, a total of 961, or over 88 per cent.
This proportionate distribution of the 2,711 ballots would give Yost
2,385; Tucker 326. Yost's plurality, 2,059.
The majority of the committee, proceeding on the basis announced,
examined the various precincts. In the following cases they took action
involving new principles:
(a) At Curdsville precinct there were returned 38 votes for Tucker,
54 for Yost, and 2 for Cocke, and 111 votes were rejected, of which 107
were destroyed. The testimony indicated that 90 destroyed ballots were
intended for Yost. The majority say:
The burning of the ballots was illegal. It was done by the act of
judges representing the contestee and against the protest of the judge
representing the contestant. In view of the great number of ballots
destroyed, of the clear proof that this number contained ballots which
were legal, and further, that the evidence was destroyed by partisans
of the contestee, the contestant is entitled to the benefit of every
doubt in the situation, and the committee is of opinion that the
contestant should be credited with his claim here of a gain of 90
votes.
Also at New Canton, under similar circumstances, the contestant
proved 100 votes by the best evidence the case would admit and was
credited with that number.
(b) At Court House precinct the contestant called 36 voters who
testified that they were in line waiting and desired to vote for
contestant and would have voted for him had they had the opportunity to
do so. No question was raised as to their qualification as voters, nor
as to their intention to vote for the contestant, but the testimony did
not show how long the voters were in line. The committee intimate that,
in view of the fact that the record did not show obstruction by
election officers or whether the voters stood in line a reasonable
time, there were doubts about counting the votes, and content
themselves with saying that these votes would not affect the final
result. But as to Jackson River precinct the majority say:
At this precinct 13 voters testify that they were at the polls during
a considerable portion of election day, were in line and desired to
vote, and would have voted for the contestant. There is also evidence
showing that a supporter of the contestee, a Federal officeholder, was
actively engaged in challenging Republican voters, and that he consumed
a large part of the day in asking questions, and thus delayed the
voting. It appears from the testimony of the contestee's witnesses that
there were not sufficient voting facilities for all who wished to vote.
According to the rule laid down in the case of Waddell v. Wise, and
McCrary on Elections (3d edition, sec. 523), the contestant should be
credited with 13 votes at this precinct.
At this precinct the contestant also proves (pp. 202 and 204 of the
record) that Thadeus Jones, a legally qualified voter, offered to vote
for him, but was illegally prevented by the judges of election. This
vote should be counted for the contestant.
(c) At Brown's Church precinct, where the returns gave Tucker 131
votes, Yost 51, and Cocke 13, it appeared that 234 ballots were
rejected and burned.
Sec. 1080
Two officers of elections were shown to have been drinking, and two
judges and a partisan of contestee, who was not an election officer,
kept account of the votes. The judges did not agree as to the result
reported. The report says:
1080. The case of Yost v. Tucker continued.
Misconduct of the officer who assists illiterates to mark their
ballots justifies correction but not rejection of the poll
The presumption arising from the fact of registration is not
overthrown by the simple proof that the voters are students.
The House favored purging rather than rejecting the return of an
entire county wherein a partisan county electoral board had so printed
the ballot as to confuse voters.
Because the officer who assists illiterates to mark their ballots
takes a narrow and technical view of his duties under the law does not
justify rejection of the poll.
B. W. L. Blanton, the Democratic precinct chairman, was present at
the count, and the judges apparently followed his directions as to
which ballots should be counted. Blanton was the one who suggested that
the ballots should be burned. He admits that the alternating of the
names upon the ballot was done at his order. He also admits that he
caused the initial ``J ``to be separated from the name ``Yost'' by a
blank space of 2 inches for the charitable purpose of giving Yost ``the
same rights and privileges on that ticket that the rest of the
candidates had.'' The irregularities at this precinct were of the most
serious character, and these irregularities, taken in connection with
the gross disproportion of the ballots rejected to the ballots counted
and their destruction, are sufficient to destroy all faith in the
official acts of the officers and to require the rejection of the
returns.
(d) As to Milner's precinct the majority find:
The evidence is pretty strong that the constable at this precinct did
not perform his full duty in aiding illiterate voters. He admitted that
the Democratic county chairman had instructed him as to his duty in
marking the ballots. Misconduct of this officer would not be sufficient
to warrant the rejection of the whole poll and the disfranchisement of
all the voters there, because its effect can reasonably be limited to
the number of illegally marked ballots, of which there were 23. The
evidence does not show such irregularity or fraudulent conduct on the
part of the judges as would destroy the value of the returns as
evidence. If the contestant were credited with the rejected ballots,
his vote at this precinct would be increased by 23.
(e) In Lexington precinct 11 students voted, and the contestant
claimed the deduction of these votes. The committee say:
These votes were cast by students of the university located there,
and the contestant contends that they were nonresidents. McCrary on
Elections, section 41, says:
``The question whether or not the student at college is a bona fide
resident of the place where the college is located must in each case
depend upon the facts. He may be a resident and he may not be; whether
he is not depends upon the answer which may be given to a variety of
questions, such as follows: Is he of age? Is he fully emancipated from
his parents' control? Does he regard the place where the college is
situated as his home, or has he a home elsewhere to which he expects to
go and at which he expects to reside?''
The contestant furnishes evidence upon few, if any, of these
important issues.
The presumption, from the fact of registration, is that these 11
students were voters at this precinct, and this presumption is not
overthrown by the simple proof that they were students. Moreover, there
is no evidence that they voted for the contestee. These votes,
therefore, should not be deducted from the vote of the contestee.
Sec. 1080
The minority say:
In regard to the 11 student votes at Lexington, the testimony of R.
A. Fulwider, a fellow student, shows:
``Q. 12. Are these students residents of Lexington in the Lexington
precinct, or are they merely here from other sections of the State as
students?--A. They are all entered upon the catalogue as being
residents of other States except the two Mitchells, who are from
Brownsburg, Rockbridge County, Va.
``Q. 13. Please state the politics of these students and for whom
they voted at the last election--A. They all claim to be Democrats, and
I know that personally, and I believe they cast their votes for Mr.
Tucker.''
Not one of these students was placed on the stand by the contestee.
The majority presumes ``from the fact of registration'' that these
students were voters at that precinct, and this presumption is supposed
to overweigh the positive testimony that these students appeared on the
college roll and were recognized as residents of other States. It would
have been an easy matter for contestee to have put these students on
the stand and thus met evidence with evidence.
A leading issue in this case arose over the claim of the contestant
that the entire votes of the counties of Amherst and Appomattox should
be rejected. The minority give as reasons for rejecting the vote of
Amherst County--
That the electoral board consisted entirely of members of sitting
member's party, and that one of them was also the chairman of the
county committee of the same party. This partisan, after appointing the
special constables for each of the precincts, called them together and,
as chairman of the county committee of his party, instructed them as to
their duties in assisting illiterate voters. The electoral board failed
to give contestant's party proper representation on the precinct
boards, although such representation might have been allowed. The
partisan chairman, who instructed the constables as to how to assist in
marking the ballots, also as member of the county electoral board, had
the official ballots printed, and he admitted that he alternated the
names and used different styles of type, producing about seventy-five
different kinds of ballots. In view of these facts the minority claim
that the entire vote of the county should be rejected, saying:
It would indeed be an unfortunate precedent to hold that the crooked
ways resorted to by the Democratic election officers in that county
were legal and valid. It is admitted that at nearly one-half of the
precincts in the county none of the judges were Republicans, contrary
to the express provision of the statute; that the ballots were printed
partly in German and partly in Roman text; that the names of the
candidates were alternated; that the secretary of the electoral board
instructed the special constables not to mark the ballots for the
illiterate voters unless they were blind or physically unable to mark
for themselves. It is proved that constables at many precincts in the
county refused to give aid to Republican voters who requested them to
do so.
For similar reasons the minority argued that the vote of Appomattox
County should be rejected.
The majority of the committee condemn the action of the county board,
but say:
If the officers guilty of such conduct had charge of the making up of
the returns in the various precincts they would need to be scrutinized
with the gravest suspicion, and they certainly would not be entitled to
that weight and effect as evidence which are due to uncontaminated
returns. But the elections were in charge of the election judges at the
different precincts and, while the fact that these judges were
appointed by the county electoral boards is a circumstance which would
invite the most careful scrutiny of their conduct, it would be a daring
conclusion to infer that the credibility of the returns at all the
precincts in this county was destroyed and that all the voters should
be disfranchised because the precinct officers had been appointed by a
central county board which alternated the names on the ballot. Such a
wholesale exclusion of votes would not be warranted; but the evidence
of each
Sec. 1080
precinct should be considered separately, as it has been by the
committee in the preceding portions of this report.
The committee is also under the necessity of considering whether and
how much the contestant's vote suffered on account of this method of
printing. There were 349 defective ballots in Amherst County out of a
total of 2,705 (p. 124 of the record), a percentage not materially
greater than the percentage of defective ballots throughout the whole
district; and the relative strength of the parties, as shown at
previous elections, appears to have been fairly maintained in this
election.
Substantially the same observations may be made as to Appomattox
County, where there were 153 defective ballots out of a total of 1,431,
and the contestee received a plurality of 49. The committee is of the
opinion that the evidence will not warrant the rejection of the votes
of these two counties.
The minority of the committee also contended that the entire vote of
the First Ward of Staunton should be rejected ``because of the
confessed violation of law by Constable J. Frank West.''
The law of Virginia as construed by the supreme court was:
It is the duty of the special constable to render him who is blind,
or unable by defective education to read, every assistance asked for
and required by the elector to aid him in preparing his ballot.
Constable West testified that he told the voters he did not want to
know how they intended to vote, but pointed out the names and let the
voters mark them. He declined to mark the ballots for the voters,
considering that he had no right to do so. The minority claimed that
West's illegal construction, and the illegal acts committed under cover
of that construction, rendered the returns from the precinct unworthy
of credit.
The majority concluded, however--
A careful examination of the evidence in this precinct fails signally
to show any actual fraud. One of the judges was a Republican, and he is
not called to testify by the contestant, and the only evidence tending
to show any misconduct is directed to the action of the special
constable. The evidence does not show that he committed any fraudulent
acts, but does show that he performed his duties, under the law, as he
understood it. The constable took a narrow and technical view of his
duty, but there is no primary or direct evidence to show that he failed
to sufficiently assist any voter. He himself declares:
``In no instance where in elector, whenever it was lawful for me to
assist, told me for whom he wanted to vote did I allow his ticket to be
deposited unless it properly registered his vote for the candidate he
had told me he wanted to vote for.''
As appears from the recount, out of a total of 663 ballots cast in
this ward, 76 were rejected as defective, which is a very little larger
percentage of the total votes cast than the rejected ballots of Ward 2
were of the total number of votes in that ward, where the returns are
not attacked; and doubtless a considerable number attempted to mark
their own ballots without asking assistance. The evidence fails to
disclose any ground for rejecting the whole vote of this poll and
throwing out the returns themselves, the reliability of which is not
assailed in the slightest degree. The principle on which returns are
usually rejected is that when the officers of election have been guilty
of such frauds or irregularities as to destroy the value of the returns
as evidence the returns can not be relied upon to prove the result and
must be disregarded. There is no evidence that the returns at this poll
did not correctly show the result, and to throw out the whole poll
would be to ruthlessly disfranchise honest voters. Including the so-
called ``caption-marked'' ballots, the committee finds, upon the basis
of the agreement between the parties, that the contestant received 227
votes at this precinct and the contestee 335.
In conclusion, the majority of the committee found that after all
deductions there remained to sitting Member 161 plurality. The minority
found for contestant 736 plurality.
Sec. 1081
On January 20 and 21 \1\ the report was debated in the House with
much learning and at great length. The question being taken, the
proposition of the minority, declaring contestant entitled to the seat,
was decided in the negative, yeas 119, nays 127. A motion to reconsider
this vote was laid on the table, yeas 120, nays 104. Then the question
recurred on agreeing to the resolutions of the majority of the
committee confirming the title of sitting Member to the seat, and there
appeared, yeas 119, nays 47, answering present 15. A quorum responding,
the resolutions of the majority of the committee were agreed to.
1081. The North Carolina election case of Thompson v. Shaw, in the
Fifty-fourth Congress.
Irregularities in the conduct of an election do not in themselves
justify rejection of a poll.
On May 6, 1896,\2\ Mr. Warren W. Miller, of West Virginia, submitted
the report of the Committee on Elections No. 2 in the case of Thompson
v. Shaw, of North Carolina. The sitting Member had on the face of the
returns a majority of 994 votes.
The county canvassers in three counties had rejected the vote of
certain precincts, which had given a total of 371 for contestant and
254 for sitting Member; it having been admitted by both parties to the
contest that the action of the canvassers was wrong, and therefore the
committee counted the rejected vote. This reduced the majority of
sitting Member to 877.
Contestant claimed that the whole vote of Cross Creek precinct, where
the return was 1,120 votes for sitting Member and 15 for contestant,
should be rejected for frauds committed and unlawful acts done by the
partisans of sitting Member. The committee, while believing that there
were irregularities in the conduct of the election and that perhaps
illegal votes were cast and counted for sitting Member, yet did not
feel warranted, upon the facts proved, in disregarding the whole of the
votes cast at the precinct.
In conclusion the committee found that, conceding to contestant the
benefit of every reasonable doubt and all legitimate presumptions, he
fell far short of a sufficient number to elect him legally.
Therefore the committee recommended resolutions declaring Mr.
Thompson not elected and Mr. Shaw entitled to the seat. On May
6,1896,\3\ the House concurred in the report of the committee.
1082. The Louisiana election case of Coleman v. Buck, in the Fifty-
Fourth Congress.
Although violence, intimidation, and fraud were extensive in a
district, yet, as it did not appear that the result was affected by
these means, the returned Member was confirmed.
On March 12, 1896,\4\ Mr. Warren W. Miller, of West Virginia, from
the Committee on Elections No. 2, submitted the report of that
committee on the case of Coleman v. Buck, of Louisiana. The sitting
Member received on the face of the official returns a majority of 7,653
over the contestant.
-----------------------------------------------------------------------
\1\ Second session Fifty-fourth Congress. Journal pp. 98, 100, 101;
Record pp. 980-1001, 1019-1042.
\2\ First session Fifty-fourth Congress, House Report No. 1636;
Rowell's Digest, p. 520.
\3\ Journal, p. 460.
\4\ First session Fifty-fourth Congress, House Report No. 758;
Rowell's Digest, p. 518.
Sec. 1082
The contestant attacked the returns from various precincts and
parishes, in substance as follows:
That the Democratic officials had violated the election law in the
appointment of election officers, registrars, and other persons; that
any legal voters, who would have voted for contestant, were prevented
from registering by acts of violence committed by Democrats; that
hundreds of Republican who were entitled to vote, and who would have
voted for contestant, were prevented from so doing by intimidation and
other unlawful means used by Democrats in the interest of the
contestee; that by means of murder, arson, false registration, the
issuance of thousands of fraudulent registration certificates, ballot-
box stuffing, forged returns, and destruction of ballots voted by
Republican for contestant, the Democrats, in the interest of contestee,
inaugurated and maintained before and at the time of said election such
a reign of terror and committed such acts of lawlessness, with the
knowledge and consent of the authorities, that no legal or fair
election could be or was held in said district.
The committee, after explaining the election law of Louisiana, thus
summarize their conclusions:
The record in this case shows a willful disregard by the Democratic
officers of every one of the provisions of the election law above cited
in the conduct of said election, except in the said parish of Orleans.
In Jefferson Pariah the watchers appointed by the Republicans were
refused admission to the polling places by the Democrats. Republicans,
mostly colored men and legal voters, who would have voted for
contestant, were refused the right of suffrage; tally sheets, lists of
voters, and poll books were altered and forged; ballot boxes were
stuffed with fraudulent ballots and many other illegal acts done in the
interest of contestee and against contestant.
For the foregoing reasons the vote of said parish of Jefferson must
be thrown out and wholly rejected.
For like reasons the vote returned from the First, Second, and Fifth
wards, respectively, of St. Charles Parish are also wholly rejected.
It is shown by the record that in the said wards in the city of New
Orleans, in the parish of Orleans, large numbers of Republican voters
were refused registration; that numerous unlawful assaults were made,
and acts of violence committed upon colored Republicans who attempted
to register as the law required; that mob violence prevailed in said
wards of said city and parish before and at the time of said election,
with the knowledge and, as the committee believe, with the assent of
the authorities; that much fraudulent voting was done in favor of
contestee, and that many of the colored Republicans were denied the
equal protection of the law on account of their race and political
opinions.
The committee is further of opinion that many Republicans who were
entitled to vote, and who would have voted for contestant, were
intimidated, and thus kept from voting; that some of the illegal votes
cast for contestee in said wards of said city could be segregated and
deducted from the number of votes returned and certified for him as
aforesaid; but it does not appear that a sufficient number of legal
voters who would have voted for contestant were refused the right of
suffrage to change the general result of such election, as certified,
after such correction should be made.
Neither is it shown that fraud, unfairness, violence, or intimidation
prevailed in said election to such an extent as would warrant the
committee in throwing out and rejecting the total vote of said wards in
said city and parish of Orleans.
Unless this be done the contestee yet has a majority after deducting
from his vote, as certified, the votes cast for him in the parish of
Jefferson and wards 1, 2, and 5 in the parish of St. Charles as
aforesaid, and any other illegal votes cast for him or legal votes
rejected in his interest in the said wards in the city and parish of
Orleans.
Therefore the committee reported resolutions declaring the sitting
Member entitled to his seat, and the contestant not elected. On March
12, 1896,\1\ the House concurred in the report without division.
-----------------------------------------------------------------------
\1\ Journal, p. 301.
Sec. 1083
1083. The North Carolina election case of Cheatham v. Woodard, in the
Fifty-fourth Congress.
A contestant must sustain by evidence his claim that he was elected.
On May 14, 1896,\1\ the Committee on Elections No. 2 submitted the
report in the case of Cheatham v. Woodard, from North Carolina. The
official returns from the district gave to Mr. Woodard 14,721 votes,
Mr. Cheatham 9,413, and Mr. H.F. Freeman 5,314. The contestant alleged
various objections to the returns, and contended that the colored
voters in the district were in the majority and were for him. The
committee did not find this or any of the other allegations sustained,
and reported resolutions confirming sitting Member in his seat. On May
14 \2\ the House concurred in the report of the committee.
1084. The Georgia election case of Felton v. Maddox, in the Fifty-
fourth Congress.
Where contestant's case did not overcome returned Member's majority
the House did not consider the returned Member's counter charges.
Failure of county officers to verify formally a registration list did
not invalidate the election, no voter being deprived of any right.
Where an unauthorized but not fraudulent erasure of names occurred on
a registration list the House counted votes of electors harmed by this
erasure.
Failure of registrar to appear when summoned to explain charges of
illegal registration does not prove the charges.
An election is not affected by the fact that the registration lists
are in writing when the law requires them to be in printing.
On May 11, 1896,\3\ Mr. Charles Daniels, of New York, from the
Committee on Elections No. 1, submitted the unanimous report of the
committee in the case of Felton v. Maddox, of Georgia. The contestant
challenged the election in three counties, and the sitting Member in
reply challenged the result in three other counties, which were
favorable to the contestant.
The official return gave the sitting Member a majority of 1,562
votes. As the committee found from contestant's testimony that this
majority could not be reduced by more than 350 votes, they did not find
it necessary to consider the counter charges by the sitting Member,
since the only effect would be to increase the sitting Member's
majority--an unnecessary result.
The charges of the contestant related to several features of the
election:
(1) Irregularities in the registration, whereby in some cases voters
were deprived of their votes:
(a) In Bartow County the law required the registry list to be
verified by the county commissioners. They failed as a board to verify
the list, allowing that to be done by one of the members. The committee
say:
This was an irregularity, but as long as it did not deprive the
voters of their right to vote it did not invalidate the election in
this county.
-----------------------------------------------------------------------
\1\ First session Fifty-fourth Congress, House Report No. 1809;
Rowell's Digest, p. 521.
\2\ Journal, p. 490.
\3\ First session Fifty-fourth Congress, House Report No. 1743;
Rowell's Digest, p. 510.
Sec. 1085
(b) In Bartow County, after the October election and before the
election in November, 1894--the election in question--the tax collector
erased, apparently without authority, 175 names from the registered
list of voters which he, under the law, had made as collector. The
committee found that they were made in good faith, and that it would be
sufficient to allow to contestant the votes of 9 of his supporters who
had in fact paid their taxes, but whose votes were refused because
their names had been erased.
(c) In Cobb County it was charged that the registration list
contained the names of fictitious and unqualified persons, and the
register, when subpoenaed to attend and give his evidence for the
contestant, failed to do so. But the committee found that his absence
did not prove the truth of the charge, and testimony given failed to
prove that names added were of unqualified persons.
(d) The law directed that the registration lists sent to the election
managers should be printed, but in Cobb County were written. The report
says:
This was an irregularity, but it was not proven to have influenced in
any manner the vote of any person or to have permitted any person to
vote who was not entitled to do so. Accordingly, under the well-settled
principle of the law, as well as of a positive enactment of the State
of Georgia, this omission to print the lists can not be allowed to
affect the result of the election, which seems to have been the same as
though the lists had been printed.
(e) In Floyd County three persons were irregularly registered by
their firm names, but as it did not appear for whom these persons
voted, no special consideration was given the matter.
1085. The election case of Felton v. Maddox continued.
Returns are not vitiated simply because election officers lack
certain qualifications required by law.
Failure of election officers to subscribe their names in full to
their affidavits and returns does not vitiate the returns.
Election officers who have not taken the required oath are still de
facto officers and their acts are valid.
It not being shown for whom a few paupers voted, the Elections
Committee did not give the charge consideration.
Ballots deposited by error in a ballot box other than the
Congressional box, and in charge of other officers, should be counted
as if deposited aright.
The election for Congressman, being lawfully held, is not vitiated by
another election on a local matter held unlawfully at the same place.
The entire poll may not be rejected because an unascertained number
of electors were corruptly influenced by tickets to a barbecue.
(2) Irregularities as to qualifications or acts of election officers
in these instances:
(a) In Cobb County the qualifications of certain superintendents of
elections were alleged not to be in accordance with the requirements of
the law of the State. It was also charged that they had failed to
subscribe their names in full to their affidavits and returns. The
committee found, however, that these were no more than
``irregularities, not in fact changing or affecting in the least degree
the election or its results, and the returns can not be set aside or
disregarded because of these defects. They were of no materiality, and
the statute prescribing them was in no respect mandatory.''
Sec. 1086
(b) In Livingston district the report says ``the managers may not
have taken the oath prescribed for them by law; but if they did not,
they were still de facto officers without taking the oath, and their
acts are legal,'' quoting Paine and McCrary on Elections in support of
this doctrine.
(3) As to illegal and informal votes in the following instances:
(a) In Floyd County 5 or 6 inmates of the almshouse were permitted to
vote; but as it did not appear for whom the votes were cast, the
committee gave the question no special consideration.
(b) In Livingston district a local county election was held at the
same time, there being two boxes differently labeled and different
election managers. At the close of the election a few Congressional
votes were found in the local issue box. ``But says the committee,
``the fact that they were mistakenly so deposited did not legally
deprive the candidate of those votes. They should still have been
counted as they appeared by the managers of the Congressional election.
But the failure to count them seems to have deprived the contestant of
no more than one vote over those in the same box for the contestee.''
(4) In Livingston precinct the committee found that ``the failure to
deliver a package of * * * votes, as they should have been, was a
breach of confidence, but there is no reliable evidence that the
contestant in the end lost any votes by that circumstance.''
(5) At the same time and places that the Congressional election was
held in Floyd County there was also an election to authorize an issue
of county bonds. For that reason the election in this county was
objected to as illegal. The committee say:
But as the election for Members of the Fifty-fourth Congress was most
certainly lawfully held it could not be deprived of that character
because another election for another object held at the same time and
place was held without authority. Each could well be held without the
one interfering in the least degree with the other. As a matter of fact
the bond (county) election was authorized by the law of the State, and
it was represented by a manager and box different from that of the
Congressional election box. the boxes were differently labeled and
voters were required to state for which election their votes were
offered.
(6) In Floyd County a barbecue was held to promote the county
election on the bond question, and contestant charged that tickets to
the barbecue were used to induce colored voters to vote for sitting
Member. The committee found no sure means of determining how many votes
were thus influenced, and that the evidence would in no way justify the
rejection of the entire vote of the county.
The committee, in accordance with their findings, reported
resolutions declaring contestant not elected and sitting Member
entitled to the seat.
On May 11 \1\ the resolutions were agreed to by the House without
debate or division.
1086. The New York election case of Mitchell v. Walsh in the Fifty-
fourth Congress.
Testimony in an election case being taken before a person who had
ceased to be a notary, but none of the parties or witnesses being aware
of this until nearly all the evidence was in, the House considered it.
As to the evidence required to show a conspiracy to bribe.
-----------------------------------------------------------------------
\1\ Journal, pp. 475, 476; Record, p. 5088.
Sec. 1086
Where a conspiracy to bribe is shown, and an indefinite number of
tainted votes are cast, the entire poll is rejected.
Where a conspiracy to bribe for the benefit of one party causes
rejection of the return, should the innocent opposing party be credited
with his unimpeached vote?
Discussion of the value in proving bribery of testimony as to
statements of voters after they have voted.
On May 15, 1896,\1\ Mr. Chester I. Long, of Kansas, from the
Committee on Elections No. 2, submitted the report of the majority of
the committee in the case of Mitchell v. Walsh, from New York.
At the outset of this case a preliminary question of importance was
passed upon. The law of Congress provides that a contestant may apply
for a subpoena to any notary public--among others--who may reside in
the Congressional district in which the contested election was held. It
is also provided that all witnesses who attend the examination shall be
examined under oath. William A. Hoar, the notary before whom the
testimony in this case was taken, was in 1893 a resident of Kings
County, N. Y., and, as a resident of that county, was appointed a
notary public. The statutes of New York provide that a notary public,
appointed for the county of Kings--as well as for some other counties--
upon filing a certified copy of his appointment, etc., in the clerk's
office of New York County, may exercise all the functions of his office
in that county, as well as in the ``county in which he resides and for
which he was appointed.'' In compliance with this provision Hoar filed
a certified copy of his appointment in the clerk's office of New York
County.
Prior to the taking of testimony in this case Hoar removed from Kings
County and took up his residence in the Congressional district in which
this contested election was held, which is in the city and county of
New York. The law of New York provided that an office shall become
vacant when an incumbent, if he is a local officer, ceases to be an
inhabitant of the political subdivision of which he is required to be a
resident when chosen. The courts of New York have held that a notary
public is an officer within the meaning of the statute. The sitting
Member made no objection to the qualifications of the notary until the
taking of testimony in rebuttal began. The majority of the committee
conclude as follows:
We are of opinion that the testimony taken before William A. Hoar
ought to be considered by the committee and the House, for the reasons
following:
1. Because it is too late for the contestee to be permitted to object
on this ground. He knew, or, what is the same in legal effect, he was
charged with knowledge of the fact as to whether Hoar was a notary
authorized to administer oaths. He knew that the notary was described
in the notice as residing in the Eighth Congressional district, and in
his signatures to the transcript of testimony as notary of Kings
County, with certificate filed in New York County. To say the least, he
was put upon inquiry.
The contestee is in the same position as if he and the contestant had
agreed that the testimony might be taken before a person who was not,
by any law, authorized to administer oaths. It is true that such an
agreement might not be recognized by the House of Representatives. It
might abrogate that, as it might any other agreement between parties.
But it does not lie in the mouth of either party who has, either in
fact or constructively, so agreed to object to the validity of
testimony so taken.
2. But we are constrained to put our conclusion on still broader
grounds. The House of Representatives, with its broad and, indeed,
limitless powers respecting the settlement of contested election cases,
-----------------------------------------------------------------------
\1\ First session Fifty-fourth Congress, House Report No. 1849;
Rowell's Digest, p. 521.
Sec. 1086
is only desirous of arriving at the truth. While it will not depart
from wise and well-settled rules of law, it will not hedge itself about
with technical rules which do manifest wrong.
In this case it is apparent that the parties to the contest, their
attorneys, and every witness who was summoned, supposed that Hoar was a
notary public, with full power to administer oaths, and that a
prosecution for perjury could as certainly be based upon a false
statement before him as upon a false statement made on oath in a court
of justice. We have therefore considered the evidence.
The minority did not dissent from the law and facts as stated by the
majority; but declined to assent ``to the proposition that, under any
circumstances, unsworn statements of persons called as witnesses can be
substituted for evidence taken under oath duly administered as required
by laws governing contested elections. Such a course of procedure,
whether agreed to by the parties or not, would reduce the taking of
testimony in contested election cases to a farce.'' The minority
further argue:
We can not assent to the proposition that, under any circumstances,
unsworn statements of persons called as witnesses can be substituted
for evidence taken under oath duly administered as required by laws
governing contested elections. Such a course of procedure, whether
agreed to by the parties or not, would reduce the taking of testimony
in contested election cases to a farce unworthy of a moment's
consideration in the determination of an election contest. * * *
We think the acceptance and consideration of testimony so taken
without the sanction of an oath would be an exceedingly dangerous
precedent in contested election cases. The temptation to perjury,
exaggeration, and evasion for partisan purposes, or through more
unworthy motives, is already great enough in such cases without adding
the encouragement of the assurance that Congress will accept and
consider testimony taken by persons not authorized to administer oaths,
in the giving of which the witnesses are assured of their absolute
immunity from punishment for perjury. If the contestant and his
witnesses, knowing, as stated, that Mr. Hoar was a notary public for
Kings County and that he had changed his residence from Kings County to
New York County, were ignorant of the legal effect of those facts, it
may be a hardship upon him to exclude from consideration the testimony
taken on his behalf before Mr. Hoar, but it is a misfortune for which
he alone is responsible, and it is a misfortune for which no relief can
be given at this time without causing a public injury infinitely
greater than the private injury which might thereby be avoided.
Contestant had a remedy for his mistake in taking the testimony in
question before an unauthorized person to which he might have resorted
after discovering Mr. Hoar's incapacity.
He might have applied to the House or to this committee for leave to
retake the testimony before an authorized person, and such a request,
if made in reasonable time and in apparent good faith, would certainly
have been granted.
The testimony being admitted, the merits of the case were considered.
The sitting Member had been returned by an official majority of 367.
All the portions of the Congressional district except the second
assembly district gave contestant a majority of 1,328, while the second
assembly district gave sitting Member 1,695 majority. Contestant
attacked five election districts in this second assembly district.
These five districts gave sitting Member 729 votes on the official
return, and 286 to contestant.
The majority of the committee were satisfied from the evidence that a
well organized system of bribery was carried on in the five districts
on behalf of the sitting Member by the Tammany organization (of which
sitting Member was a vice-president), in collusion with the keepers of
lodging houses. After quoting the testimony of certain witnesses, the
report says:
Contestee attempted to discredit the testimony of the above witnesses
by showing that they had been entertained by contestant and his
attorneys, and for this reason were unworthy of belief.
They were not impeached in any instance, and we believe that, taking
into consideration the surrounding circumstances, they are entitled to
credence.
Sec. 1086
Fraud can rarely, if ever, be proven by direct evidence, and the rule
is that whenever a sufficient number of independent circumstances which
point to its existence are clearly established a prima facie case of
its existence is made, and if this case is not met with explanation or
contradiction it becomes conclusive.
In Paine on Elections the following rule is announced: ``When
evidence of bribery by an active supporter of the respondent is shown,
the court will draw unfavorable conclusions from the neglect or refusal
of the person so charged to explain his conduct in the witness box.''
Contestee did not introduce any evidence to disprove the charges of
bribery. Not a Tammany captain on whom the bribery was fastented by the
testimony was put upon the stand to contradict the statements made by
the witnesses, nor to assert his innocence, nor to disprove what the
testimony so clearly proves--namely, the existence of a conspiracy to
procure votes by bribery.
The majority of the committee then go on to say that--
It is impossible to determine the number of bribed voters or the
names of the voters. These five election districts were thoroughly
saturated with fraud and corruption. The case of Platt v. Goode
furnishes the only rule that can safely be followed in this case. In
that case, where it was shown that 500 voters who had been bribed voted
in three precincts which polled in the aggregate 1,619 votes, the whole
returns of those precincts were rejected upon the ground that when the
record showed that illegal votes had been cast, and furnished no method
for their elimination, the vote of the entire precinct should be
rejected.
Contestant insists that only the vote of the contestee in these five
districts should be rejected, for the reason that there is no evidence
of bribery in the interest of contestant. This is true. It is not
necessary in the decision of this case to determine which rule should
be adopted, and we do not decide which is correct. The result is the
same whichever is followed. If the vote of contestee only in these five
districts is rejected, contestant will be elected by 362. If the entire
vote in these five districts is rejected contestant will be elected by
76.
Contestee insists that he should only lose those votes where
individual instances of bribery are proven. We can not accept this
theory of the law when the evidence shows the existence of a conspiracy
to corrupt voters by bribery. The case of Noyes v. Rockwell clearly
establishes the doctrine that where a conspiracy to corrupt voters by
bribery is shown to exist, and it is established that one voter of a
class was bribed, that the votes of all persons belonging to the class
who cast similar ballots should be rejected.
In this case the existence of the conspiracy is clearly shown in
these five election districts, and as it is impossible to determine the
number of votes affected, and also impossible to eliminate the bribed
votes from the legal, we have reached the conclusion that the vote from
these five districts should be eliminated from the count.
Therefore the majority submitted resolutions declaring that sitting
Member was not elected, and that contestant was elected.
The minority in views submitted by Mr. James G. Maguire, of
California, denied the sufficiency of the testimony to justify the
conclusions of the majority. They criticized the testimony as
insufficient, as corrupt, and as hearsay. In respect to the latter
class of testimony they say:
Nearly all of the testimony relied upon by contestant to prove
bribery and corruption * * * consists of statements made by alleged
voters to the witnesses after having voted. Such testimony is as
worthless in an election contest as in any other judicial proceeding,
and must be disregarded. In the case of Ingersoll v. Naylor, in which
extensive frauds were alleged to have been committed, the committee
refused to consider hearsay evidence much like that introduced in this
case.
The minority also quote on this point Dodge v. Brooks, Cessna v.
Myers, Gooding v. Wilson, and Littell v. Robbins.
On June 2, 1896,\1\ the report was debated in the House. Without
division the resolution of the minority declaring sitting Member
entitled to the seat was dis-
-----------------------------------------------------------------------
\1\ Journal, p. 563; Record, pp. 6012-6021.
Sec. 1087
agreed to. The question then recurring on the resolutions of the
majority, they were agreed to, yeas 162, nays 39. Thereupon Mr. John
Murray Mitchell, the contestant, appeared and took the oath.
1087. The Kentucky election case of Denny, jr., v. Owens, in the
Fifty-fourth Congress.
The House declined to count the votes of witnesses who failed to show
that they were illegally refused registration or that they had tried to
vote.
It is as important that the registration be kept free from
disqualified persons as that every legal voter shall be registered.
The House confirmed a canvass made by a local board later than the
date prescribed by law, the explanation of the delay being sufficient.
The House may canvass the returns and declare the result although the
required State canvass may not have been made.
On May 19,1896,\1\ Mr. S. S. Turner, of Virginia, from the Committee
on Elections No. 1, submitted the report of the committee in the case
of Denny, jr., v. Owens, of Kentucky. There were four candidates, two
of whom received small votes. Mr. Owens's plurality over Mr. Denny was
officially returned at 101 votes. The notice of contest and answer
thereto alleged frauds and irregularities.
The committee found considerable irregularity, but it appeared in
general to affect both parties so as not to influence the result. The
following questions were particularly considered:
(1) In Fayette County contestant alleged that he was deprived of
between 200 and 300 votes for the reason that voters to that number
were illegally refused registration. He produced 117 witnesses who
swore that they were refused registration, and that they were legal
voters and should have been registered. Another witness swore that 328
persons reported to him that they had been refused registration, and
that 212 of them gave their streets and the numbers of their homes. The
committee say:
There is no evidence, except in two or three instances, tending to
show that any of these persons went to the polls on election day and
offered to vote and were refused. In each instance when a person was
refused registration it was done so on the ground that the person
seeking to be registered was unknown to the registration officers or
for the reason that the registration officers entertained doubts as to
the right of such person to register. The person was required to
produce some one who could identify him and swear that he was a legal
voter of the precinct where he sought registration.
The report quotes the Kentucky statute:
If the officers of registration entertain any doubt as to whether or
not any person offering for registration is entitled to such
registration, or if anyone's right to register is challenged, citizens
may be called in not exceeding three in number, who shall be examined
touching the qualifications of such persons who offer to register.
``In no case where a person was refused registration'' say the
committee, ``did he offer to produce three citizens by which to
establish his right to register. Neither did the registration officers
refuse to hear such citizens if they were produced. It is not made
evident to us but what the officers refusing registration in each case
had doubts about the right of such person to register. It is impossible
for us to say,
-----------------------------------------------------------------------
\1\ First session Fifty-fourth Congress, House Report No. 1877;
Rowell's Digest, p. 511.
Sec. 1088
therefore, that these persons were wrongfully refused registration. The
officers of registration may have applied the rule very strictly in
many cases, but this alone would not be sufficient to establish a
wrongful refusal.'' The committee conclude:
It is just as important that the registration lists be kept free from
the names of persons which are not entitled to be there as it is that
every legal voter shall be registered when he makes such application.
In order that registration lists be kept pure the officers of
registration are required to take the precaution prescribed by these
sections, and they can not be charged with wrongdoing if they do this,
though it may put legal voters to inconvenience.
(2) Contestant asked the rejection of the entire returns of Franklin
County for the reason that they were not canvassed on the day
prescribed by law. The report explains that
Under the Kentucky statute, the judge of the county, the clerk
thereof, and the sheriff constitute the canvassing board. Any two of
them may constitute such board, but if either one of the three is a
candidate he shall have no voice in the decision of his case. If it
should happen that two of them can not act in whole or in part in such
canvass, their places shall be supplied by two justices of the peace,
who may reside near the county seat. It happened that in Franklin
County the judge, the clerk, and the sheriff were candidates for
election. They therefore were not authorized to canvass the returns.
Disregarding the provisions of the statute, these officers did canvass
the returns one day earlier than the law prescribed. A few days after
this two justices of the peace, residing nearest the county seat, also
canvassed the returns of the county, and the result of their canvass
was certified to the Secretary of State. This canvass, however, was had
some days later than the one designated by law.
It is admitted by both parties that the first board had no authority
to canvass the returns of the county.
Contestant, while admitting that the second board was properly
constituted, maintains that as its canvass was had on a day not
designated by law, it was illegal and void.
We can not agree with him in this contention. We think that the
proper board could be compelled to make this canvass by a mandate from
any court of competent jurisdiction. If this be true, then the board
may do the same thing without the mandate to a court. The mandate does
not give the right to canvass the returns, but requires it to be done;
because, as a matter of right, it ought to be done. Certainly it would
be a good return to the alternative writ if the board were to say they
had already done what the court was asking them to do.
Aside from this, we are of the opinion that we would have the right
to canvass the returns in this contest and declare the result, though
there had never been a canvass.
1088. The case of Denny, Jr., v. Owens, continued.
The House made no correction for a limited number of persons
registered at an illegal time, there being no proof of how they voted.
It being impossible to determine for whom informal ballots (issued
because the regular ones had failed) had been cast, the House did not
correct the return.
There being no evidence that either party had suffered especial harm,
the House did not count votes excluded by closing the polls, although
negligence of election officers was alleged.
The State law prohibiting rejection of a ballot for a technical error
which did not obscure voter's intent, the House counted ballots marked
with a pencil instead of a stencil.
The House rejected ballots marked publicly in presence of the
election officers.
Sec. 1089
(3) The committee found that in one precinct 15 persons were allowed
to vote who had registered on election day or the day prior. Such
registration was wholly unauthorized; but the proof did not satisfy the
committee as to how the unauthorized persons voted.
(4) In some precincts the ballots gave out before all persons had
voted. In some of these cases ballots from other precincts were
borrowed and used. In other cases blanks on which to make return of the
votes were used. The committee considered it unnecessary to determine
whether such devices were legal or otherwise, for the reason that they
could not tell for whom such irregular ballots were cast.
(5) In one precinct the hour for closing the election arrived before
all the voters had had an opportunity to cast their ballots. Contestant
claimed that this occurred on account of the negligence of the election
officers and that he lost many votes by reason of it. The committee
left the vote to stand, as the testimony did not indicate to them that
the contestant lost more votes for this reason than did the sitting
Member.
(6) Certain ballots were not counted by the canvassers for the reason
that the cross mark was made with a lead pencil instead of a stencil,
as the statute required. The committee say:
We are inclined to think, but without definitely deciding it, that
these ballots ought to have been counted, for in section 1471 of the
Kentucky statutes we find the following provision: ``No ballot shall be
rejected for any technical error which does not make it impossible to
determine the voter's choice.'' We have made a computation of these
ballots and find that 31 were rejected which should have been counted
for Mr. Denny, and 3 that should have been counted for Mr. Owens. The
committee accordingly made the correction.
(7) Two voters stamped their ballots publicly in the presence of the
election officers. They voted for Mr. Owens and the ballots were
deposited and counted for him The committee found that they should not
have been deposited or counted, and deducted them from Mr. Owens's
vote.
(8) Various other irregularities were found by the committee; but
they benefited both parties, and as they neutralized one another, were
not taken into account by the committee.
The result of the committee's conclusions were to reduce sitting
Member's plurality to 61 votes. So sitting Member was still entitled to
retain his seat, and the committee recommended resolutions to this
effect.
On May 19 \1\ the report of the committee was concurred in by the
House without debate or division.
1089. The North Carolina election case of Martin v. Lockhart, in the
Fifty-fourth Congress.
Both the registration and election being permeated with
irregularities, fraud, and intimidation, the returns of the precinct
affected were rejected.
A presumption arising from the previous good character of election
officers is destroyed by uncontradicted and positive testimony as to
their fraudulent conduct at the election.
-----------------------------------------------------------------------
\1\ Journal, p. 508; Record, p. 5416.
Sec. 1089
Where election officers purposely put ballots in the wrong box and
then rejected them, and did other illegal acts, the House rejected the
poll.
Where a voter offered his tickets in a bundle and lawfully requested
that the election officers deposit them in the proper boxes, the House
rejected the poll because the election officers declined so to do.
On May 26, 1896,\1\ Air. Jesse B. Strode, of Nebraska, from the
Committee on Elections No. 2, submitted the report of the majority of
the committee in the case of Martin v. Lockhart, of North Carolina. The
official returns showed a majority of 444 for the sitting Member. The
contestant's charges were summarized by the committee as follows:
That the contestant, Charles H. Martin, was unlawfully deprived of a
large number of votes to which he was entitled; that these votes were
fraudulently rejected upon the pretense of irregularities in the
registration; that the voters were not in fault with regard to such
irregularities, but that they were committed by the election officers;
that the votes of a large number of voters who would have voted for
contestant were rejected by the poll holders on frivolous challenges;
that the poll holders in many voting precincts purposely placed votes
cast for contestant in the wrong boxes and afterwards rejected them
because they were deposited in the wrong boxes; that poll holders in
many voting precincts refused to put the ballots of voters in the
ballot boxes, and that many voters who could not read and who cast
their votes for contestant were compelled to deposit their own ballots
and by mistake deposited them in the wrong boxes, and that they were
rejected by the poll holders, when counting the vote, because they were
found in the wrong boxes; that ballots for contestant were rejected
because they were not printed, the regularly printed tickets of
contestant having been stolen; that boxes were not used in some of the
precincts as repositories for the ballots, as the law required; that
the ballot boxes in some of the precincts were not labeled with roman
letters, as the law required; that poll holders in some of the
precincts purposely changed the positions of ballot boxes so as to
disarrange them in their order, in order to entrap unlettered
Republicans and Populists who desired to vote for contestant into
putting their tickets in the wrong boxes; that at one voting place the
election officers refused to count the ballots or make any returns of
the election, where the contestant claims to have received a large
majority of the votes cast; that many who were unlawful electors cast
their ballots and they were counted for contestee.
The sitting Member also alleged irregularities and illegalities by
which the official returns of contestant's vote had been increased.
Among these was the alleged erroneous rejection of votes cast for
sitting Member in the county of Columbus.
The committee examined the poll in the light of the evidences
rejecting the vote of certain precincts, and in others purging the
poll.
(1) Rejected precincts.
(a) Stewartsville precinct returned 295 votes for sitting Member and
14 for contestant. All the election officers but one were of sitting
Member's party, and that one was not of those recommended by the
opposition. The Constitution of the State provided that there should be
a registration of voters, and that ``no person shall be allowed to vote
without registration.'' And the law required the registration to
specify certain things in order to be valid. It was admitted by one of
the election officers in this precinct, a partisan of sitting Member,
that during the registration he allowed ignorant voters to give
defective particulars, not such as the law required, and wrote those
particulars as given, when he knew that by registering them in such a
way he was giving an excuse for the rejection of their votes when
challenged. Thus, an ignorant voter, when asked his residence, would
give the name of the plantation where he was employed instead of the
township.
-----------------------------------------------------------------------
\1\ First session Fifty-fourth Congress, House Report No. 2002;
Rowell's Digest, p. 524.
Sec. 1089
The registrar knowingly recorded this defective description. In this
precinct 307 white men and 414 colored men were registered, and of
these, the votes of 1 white man and 167 colored men were rejected, some
on grounds absolutely frivolous. According to the law and usage in
North Carolina there was a ballot box for each class of officers, and
the law provided that ``each box shall be labeled in plain and distinct
roman letters, with the name of the office or offices to be voted
for,'' etc. The evidence showed that the markings on the boxes were
changed from the plain letters required by law to indistinct letters.
The only election officer opposed to sitting Member's party was put in
charge of the box in which votes for constable were received. The room
where the boxes were placed was partitioned off into what was called a
``bull pen,'' and marshals, partisans of sitting Member, kept strict
guard and discouraged by intimidation those citizens who were disposed
to protest at the conduct of the election. There was evidence of other
intimidation, and also that bribery was carried on by partisans of
sitting Member in presence of the election officers. The majority of
the committee conclude:
It is impossible to ascertain what would have been the true vote of
this precinct had a fair and honest election been held. Contestee's
counsel, in their brief, call attention to the fact that the
contestant's witnesses testified to the good character of the registrar
and judges of election. But the past good character of these election
officers is not sufficient to overcome, wipe out, and destroy the
positive and uncontradicted testimony of numerous witnesses, which
shows that this election was barnacled with fraud and corruption. The
ballots were destroyed as soon as they were counted, so that no
examination of them could have been made after the returns were made
up. It is impossible to ascertain with certainty the true vote of this
precinct. The conduct of the election officers was such as to destroy
the integrity of their returns. The entire vote of this precinct should
be thrown out. This deducts 295 from contestee and 14 from contestant.
The minority views, presented by Mr. Joseph W. Bailey, of Texas, held
that the rejection of this vote was an injustice to more than 300
voters whose votes were properly cast and counted; that there was no
evidence of fraud and intimidation, and that the errors in registration
were not chargeable to the registrar.''The supreme court of North
Carolina, say the minority, ``has declared, in construing the law, that
if the registrar read over these headings [indicating questions to be
asked] in the form of an interrogatory to the candidate for
registration this was a sufficient compliance with the law, and if the
voter did not give the proper answers the fault was his, and if proper
answer was not given the person should not be allowed to vote.'' The
minority were convinced that the registrar went only so far as the
court allowed him to go. The minority also note that contestant did not
introduce the rejected voters to prove that they endeavored to register
properly, or to contradict the registrar, or to explain their conduct,
or show that they were entitled to vote.
(b) Alfordsville precinct, where the returns gave sitting Member 98
votes and contestant 44, was entirely rejected, because it was
impossible to ascertain with certainty the true vote, for the following
reasons: The election board was not satisfactory, one of the two
representatives of contestant's party being a person of doubtful
politics who had been once in the penitentiary and pardoned therefrom;
the undoubted representative of contestant's party was placed at the
box wherein were placed votes for constable, an office for which there
was but one candidate; poll holders of sitting Member's party placed
the tickets of a large number of con-
Sec. 1090
testant's party in wrong boxes and then for that reason refused to
count them; contestant's party kept a list of those who claimed to have
voted the ticket of that party, and there were 169 names on the list;
about 190 ballots were thrown out because in the wrong boxes, and no
ticket of sitting Member's party was among them; the name of contestant
appeared on all the tickets thrown out because deposited in wrong
ballot boxes; the poll book showed that 239 voted, while the return
accounted for only 142 of these. The majority of the committee
concluded that the conduct of the election officers was such as to
destroy the integrity of their returns.
(c) Maxton precinct, which returned 160 votes for sitting Member and
15 for contestant, was thrown out entirely. The election officers were
all of contestant's party, although the law of the State evidently
contemplated a representation of both parties; and no representative of
contestant's party was allowed to assist in the voting or the count.
The voting was done in a closely guarded room, with darkened windows.
Unsworn partisans of sitting Member assisted in the count. The voters
of contestant's party tendered their ballots to the poll holders and
requested that each ticket be deposited in the proper box. This request
being refused, because the voters would not select them and present
them one at a time, the ballots were laid on the table and afterwards
brushed to the floor. The law of the State provided that the voter
``shall hand in his ballot to the judges, who shall carefully deposit
the ballots in the ballot boxes,'' and again that the ballot ``shall be
put into the proper box or boxes by said voter or by the judges at the
request of the voter.'' The majority of the committee held that the
voters were not compelled to select and deliver their ballots to the
poll holders separately. The minority considered that the partisans of
contestant were unreasonable, and that the offering of the ballots in
bundles was not a proper tender of them. The partisans of contestant at
this polling place kept a list of those who took the tickets of their
party and went into the polling place to cast them. Most of these
persons afterwards returned and declared that they had voted the
tickets. The persons who issued the tickets and kept the lists were
sworn as witnesses, and their lists were produced, identified, and
incorporated in the evidence. More than 200 names appeared on the list.
About 25 of them appear to have been challenged; but there is nothing
to show how many challenges were sustained.
The majority of the committee concluded that the return from this
precinct was so tainted with fraud and the misconduct of the election
officers that the truth could not be deduced from it.
1090. The case of Martin v. Lockhart, continued.
The House counted lawful ballots rejected by election officers on
frivolous and technical challenges.
The House counted lawful votes rejected by election officers because
deposited in wrong boxes through confusion created by election
officers.
As to the use of tin buckets instead of the ``ballot boxes''
prescribed by law.
The House counted votes rejected by election officers because the
initials instead of the full name of the candidate were written
thereon, there being no doubt of the voter's intent.
Sec. 1090
Where the tally list was kept by an unsworn person not an election
officer and the poll list and testimony as to the tally list showed
discrepancies, the return was rejected.
(2) Precincts in which the returns were corrected.
(a) In Rockingham precinct contestant was credited with 70 votes
wrongfully rejected because of frivolous challenges, or challenges
based on technicalities arising from imperfect registration similar to
that described in Stewartsville precinct.
(b) In Lumberton precinct the contestant is credited with the
addition of 111 votes rejected by the election officers because
deposited in the wrong box. In this precinct there were six ballot
boxes, and the poll holders were two representing sitting Member's
party and two representing contestant's party. But the two latter (both
colored) were made to keep the constable's box, where only, one
candidate was voted for, while their associates managed the other
boxes. One of the colored poll holders refused to serve, and his place
was filled by a partisan of sitting Member. The poll holders refused to
receive the tickets of contestant's supporters and deposit them in the
proper boxes, unless the electors first selected the tickets and
designated the box into which each was to be put. But the votes of
partisans of sitting Member were taken and placed in the proper boxes
readily. No votes for sitting Member were rejected because placed in
the wrong box. The majority of the committee considered that the
fraudulent action of these election officers might justify the
rejection of this entire precinct; but that those who honestly cast
their ballots might not be disfranchised, recommended that the 111
votes definitely proven to have been cast for the contestant and
rejected be counted.
(c) In Lilesville precinct the majority of the committee increases
contestant's vote by adding 40 votes alleged to have been rejected
because not deposited in the right boxes. In this precinct contestant's
party was denied representation on the board of election officers. Tin
buckets were used instead of the ``ballot boxes'' specified in the law,
but it also appeared that buckets had been used for boxes for many
years in this precinct. They were not, however, labelled plainly as
directed by the law. The minority denied that the testimony warranted
the conclusion reached by the majority.
(d) In Ansonville precinct the majority of the committee add 53 votes
to the return of the contestant. The printed ballots for contestant
having disappeared, written ballots were used, and were written ``C. H.
Martin, for Congress,'' instead of ``Charles H. Martin, for Congress.''
These were rejected to the number of 53, although there was no other
man named Martin running for Congress. The law of the State provided
that ballots ``shall be on white paper, and may be printed or
written.'' The majority had no doubt that these votes were intended to
be cast for contestant and the minority conceded that they should be
counted for him.
(e) At Red Springs precinct the returns gave sitting Member 143 votes
and contestant 110. The majority of the committee considered that these
returns were impeached by the fact that the poll books showed that 275
persons voted, while the total for contestant and contestee was but
269; that two uncontradicted witnesses who counted and made a
memorandum of the Congressional tally sheet found it gave contestant
126 votes instead of 110; and that 143 voters were shown to have called
for the full ticket of contestant's party and to have entered the
polling
Sec. 1091
place. A regular election officer was poll holder at the Congressional
box, and he read the tickets as they were taken out of the box, while
the tally sheet was kept by one not an election officer and not sworn.
Therefore the majority of the committee found that the return could not
be said to have been made by an officer of election, and that it was
impeached. So they added 16 votes to contestant's returns.
(f) At Blue Springs, Lanesboro, and Wadesboro precincts there were
irregularities, but the proof was not of such a nature as to enable the
committee to make any substantial change in the official returns.
(3) At Thompson's Township, in Robeson County, the election officers,
after receiving votes all day, abandoned the count and the ballots and
refused to make any returns. The testimony indicated that the partisans
of contestant had carried the election, and although riotous conduct by
partisans of contestant was alleged, the majority of the committee
concluded that the count had been abandoned without sufficient reason.
``But,'' concludes the committee, ``as there is no way of ascertaining
the exact number of votes cast in this precinct for the parties to this
contest, and because it is not necessary to do so to determine this
contest, we do not make any finding as to the number of votes cast for
either of the parties at this township.''
As to the allegations of sitting Member in regard to the return of
Columbus County, the majority of the committee make no mention in their
return. The minority consider that 54 legal votes should be added to
sitting Member's return in this county.
In conclusion the majority found that as a result of the corrections
there was a majority of 330 for contestant, and accordingly reported
the resolutions to perfect his title to the seat.
The report was debated June 4 and 5,\1\ and on the latter day the
minority substitute declaring sitting Member elected was disagreed to,
yeas 57, nays 156. After a motion to recommit had been disagreed to the
resolutions of the majority were agreed to, ayes 113, noes 5.
Mr. Martin then appeared and took the oath.
1091. The Alabama election case of Aldrich v. Underwood, in the
Fifty-fourth Congress.
A report sustained by a vote of a majority of the committee is not
impeached by the fact that a less number sign it.
A contestant was found to be an actual inhabitant of the State and
district, although for sufficient reason his family resided in another
State.
Where the law required the voter's mark to be placed before the
candidate's name, the House sustained a rejection of ballots whereon it
was placed after.
A voter having written his own name under the name of the candidate
on the Australian ballot, the House counted the ballot in the absence
of a State law making it illegal.
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\1\ Journal, pp. 575, 579, 580; Record, pp. 6112, 6166-6168.
Sec. 1092
On May 26, 1896,\1\ Mr. Charles Daniels, of New York, from the
Committee on Elections No. 1, submitted a report in the case of Aldrich
v. Underwood, of Alabama.
The minority, in their views, called attention to the fact that the
report was signed by only four members of the committee, and that this
number was not a majority of the committee, which consisted of nine
members. In debate it was explained that four members voted for the
report in committee, and three against, while two did not vote. One of
these two, Mr. Romulus Z. Linney, of North Carolina, spoke for the
report in debate.
The majority, in their report, find this preliminary fact:
That the contestant at the time of the election on the 6th day of
November, 1894, was an actual inhabitant of the Ninth Congressional
district of the State of Alabama, although his family, on account of
the inability of his wife to reside in Alabama, resided in the State of
Ohio.
The official returns gave the sitting Member 1,166 votes. Frauds and
intimidation were alleged, and as a result of the examination of the
vote of 23 precincts, the majority so purged the poll as to leave a
majority of 220 votes for the contestant. The minority of the
committee, dissenting from the conclusions of the majority, found for
returned Member a majority of 1,038 votes, Mr. Charles L. Bartlett, of
Georgia, presenting the views.
Before proceeding to an examination of the ground on which the
sitting Member's vote was reduced, notice may be made of two precincts
in Blount County where votes for the contestant were wrongfully
rejected by the official canvassers. In Remlap, beat precinct the
returns were not canvassed, because the inspectors of election failed
to sign their certificate of the vote. Therefore the committee, credit
sitting Member with his majority of 15 in this precinct. In
Blountsville precinct certain votes improperly marked had been rejected
by the canvassers. As to 5 of these, where the voter placed his mark
after the name of the candidate the rejection was upheld, since the law
required the mark to be placed before the name. Other rejected ballots
were counted, one affording a case where the voter had written his own
name under the name of the candidate, which was properly marked.
``This, under the Alabama election law,'' says the report, ``did not
affect the legality of the ballot.''
1092. The case of Aldrich v. Underwood, continued.
Where returns showed a large vote for contestee and a merely nominal
vote for contestant, the House deducted from contestee where persons
recorded on the poll list testified that they did not vote.
Where many votes were returned for contestee and one or two for
contestant, and the total was larger than the number of persons shown
to have entered the polling place, the excess was deducted from
contestee.
Where election officers were all of contestee's party and certain
electors voted twice, the excess was deducted from contestee.
In a rural precinct from which one vote was returned for contestant,
and wherein names not known to old residents were found on the poll
list, deduction was made from contestee's poll.
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\1\ First session Fifty-fourth Congress, House Report No. 2006;
Rowell's Digest, p. 509.
Sec. 1093
The poll being virtually under control of contestee's friends, who
acted fraudulently, the committee rejected contestee's vote, but
apparently not contestant's.
In 21 precincts the report makes a reduction or completely throws out
the vote of the sitting Member, or increases the vote of the
contestant.
(1) As to precincts where the vote of sitting Member was reduced. In
twelve precincts the vote of the sitting Member was reduced for the
following causes:
(a) The poll lists of several precincts, Cunningham, Walthole,
Gallion, Pope's, etc., showed the names of men as voting who testified
that they did not vote at. all. In these precincts, as a general rule,
the returns showed a large vote for sitting Member and no votes, or a
merely nominal number, 1, 3, 5, etc., for contestant. The majority
report reduces the poll of sitting Member by the number of citizens
proven to have been recorded as voting when they did not vote.
(b) In certain precincts, as Greensboro, Gallion, Newbern, Evans,
Cedarville, etc., where the returns showed large votes for sitting
Member and few or none for contestant, witnesses testified that they
had watched the polls and counted the number of persons who entered the
polling places during the day. The majority of the committee deducted
from the poll of sitting Member all votes in excess of the number who
entered the polling places.
(c) In Havana precinct, where all the election inspectors belonged to
the party of the sitting Member, two persons were found recorded on the
poll list as having voted twice each. The majority of the committee
deducted 2 votes from poll of sitting Member on the ground that it was
not probable that the election officers would have allowed double
voting to the opposition.
(d) For the same reason, at Hollow Square precinct, where the
election board was similarly partisan, the votes of 2 strangers were
recorded on the poll. These 2 votes were deducted from the poll of
sitting Member.
(e) On the poll list of Whitsitt precinct, where sitting Member
received 70 votes and contestant 1 according to the return, and where 7
persons on the poll list swore that they did not vote, there were found
on the poll list 38 persons unknown to old residents who were
acquainted with the people of the precinct. One of the witnesses also
went through the precinct four times and could not find any of the 38
persons. The majority of the committee considered that these facts
justified a reduction of 45 votes from sitting Member's poll.
1093. The case of Aldrich v. Underwood, continued.
Testimony that a certain man belonged to a certain club and a certain
party was held insufficient proof aliunde of his vote.
The poll list containing the names of dead and absent persons, and
the returns not showing votes presumed to have been cast, the returns
were rejected.
The House added to contestant's return rejected lawful votes, on the
testimony of persons who saw the votes rejected and knew the political
preferences of the electors.
Where electors were intimidated by local officers, the House counted
votes thus prevented, on testimony establishing a ``strong
probability''as to the number.
Sec. 1094
(2) As to precincts where the vote of sitting Member was entirely
rejected.
(a) In Marion precinct, where the returned vote was 257 for sitting
Member and 45 for contestant the committee found that the election
officers had violated the law of Alabama by arranging the booths in one
room and the ballot box in another. The voter, after marking his
ballot, delivered it to an election officer who was supposed to place
it in the ballot box. But the voter could not see him do this, and
there was testimony impeaching the integrity of this officer, who did
not deny the impeachment. Contestant was allowed one inspector, an
ignorant man who was not the choice of contestant's friends. While
admitting that in all cases the presumption is against crime and
misconduct, yet the majority considered the infraction of law by the
election officers such that--
Both the secrecy and integrity of the ballots were so far impaired
that no one can certainly say that the ballots of the voters, unless it
may be the 45 just mentioned (for contestant) ever went into the ballot
box. The election and the returns in this precinct are beyond that
deprived of every source of confidence, and the 257 votes returned for
contestee must be deducted.
The sitting Member had endeavored to prove a portion of the returned
vote, but the majority of the committee did not consider the testimony
adequate, as it consisted of testimony that certain men belonged to a
certain club and a certain party.
(b) In Uniontown precinct, where the returned vote was 177 for
sitting Member and none for contestant, the majority of the committee
found the poll list false in several particulars. Persons dead, absent
and not known to reside in the precinct were recorded as voting. Twelve
colored persons, supposed to be friendly to contestant, entered the
voting place; but no votes were returned for contestant. The majority
of the committee concluded that no reliance could be placed on the poll
list, and rejected the entire vote.
(3) Votes added to the poll of the contestant.
(a) At Elyton precinct, where the returned vote was 190 for sitting
Member to 68 for contestant, the evidence convinced the majority of the
committee that votes of colored men who intended to vote for contestant
were refused unless voters were identified by white men or ``boss''
men, the law requiring no such identification. Testimony of each
individual whose vote was so refused was not resorted to; but sundry
persons who saw men refused testified as to the number of such men and
that they were supporters of contestant. The majority for the committee
considered that there was no justification for excluding the whole
vote; but added nineteen votes to the poll of the contestant.
(b) In two precincts of Birmingham the majority of the committee
found that deputy sheriffs intimidated colored voters by arrests not
justifiable. In one of these precincts there was not sufficient
testimony to show how many of contestant's voters were intimidated, but
in the other the majority of the committee considered that the
testimony established a ``strong probability'' (words emphasized by the
minority) that 69 voters were prevented from casting votes for
contestant, and so added that number to his vote.
1094. The case of Aldrich v. Underwood, continued.
Official ballots being destroyed in furtherance of a conspiracy of
election officers, the House corrected the return on testimony of
witnesses who estimated the amount of resulting injury.
Sec. 1094
Instance wherein the House took into account the votes of electors
not actually at the polls.
Official returns may be impeached successfully by testimony of voters
as to how they cast their ballots.
Where polls are not opened, even on frivolous excuses, it is
difficult to correct the wrong.
(c) In Bessemer the night before election all but 127 of the ballots
were stolen and burned. The election officers were of sitting Member's
party, except one, who was not the choice of friends of contestant. It
was also in evidence that the friends of sitting Member were notified
to be on hand early to vote and that when the ballots had given out a
deputy sheriff advised voters to go home. From 8.30 a. m. to 2.20 p. m.
there were no ballots. There were also causeless challenges of voters.
The majority of the committee were convinced that there was a
conspiracy on the part of friends of sitting Member to deprive friends
of contestant of their votes. The evidence satisfied the majority that
365 votes were in this manner kept from the contestant and added that
number to his poll. The testimony on this point was not of those
actually prevented from voting, but of various persons who saw and
heard the persons turned away.
(d) At Five-mile precinct, for some unexplained reason, the ballots
gave out at 1 p. m. The election officers were all of sitting Member's
party, and when the tickets gave out one of them announced that there
would be no more voting. The testimony convinced the majority of the
committee that 32 supporters of contestant were thus deprived of their
votes and added that number to contestant's poll. It does not appear
that all the 32 were actually at the polls. A portion appear to have
refrained from coming after starting, hearing that the ballots had
given out. Eight persons testified that they would have voted for
contestant.
(e) At Carthage the official return gave contestant 32 votes, but 76
witnesses testified that they voted for him. Therefore the majority of
the committee added 44 votes to contestant's poll. There was some
evidence that some of contestant's friends might have been misled into
marking their ballots wrong, but the committee did not consider that
this should reduce the allowance to contestant. Also at Dover precinct
the evidence proved that 4 votes were cast for contestant where only 2
were allowed him. Therefore 2 were added to contestant's poll.
Furthermore, at Hillman precinct the polls were not opened and no
election was held. The precinct, which had a small vote, usually gave a
majority for contestant's party. Although the only excuse for not
opening the polls was that the day was cold and there were no
facilities for a fire, the committee concluded that no addition to the
poll of contestant could be made, as they had no means of knowing what
his majority might have been.
The minority views declined to give credence to the testimony adduced
in the several precincts.
The report was debated at length on June 9 \1\ (legislative day of
June 6), and the resolution declaring sitting Member not elected was
agreed to, yeas 119, nays 98. The resolution declaring contestant
elected was then agreed to, yeas 116, nays 107; and then the
contestant, Mr. Trueman H. Aldrich, was sworn in.
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\1\ Journal, pp. 594-596; Record, pp. 6329-6354.
Sec. 1095
1095. The Kentucky election case of Hopkins v. Kendall in the Fifty-
fourth Congress.
Instance wherein the House extended the time of taking testimony in
an election case.
Form of resolution for extending the time of taking testimony in an
election case.
A county official having, with intent to deceive voters, changed the
party emblems on the official ballot, the House overruled its committee
and rejected the entire returns.
In estimating harm done by fraud of officers, judicial cognizance was
taken of the general prevalence of certain political sentiments.
The House, in judging the harm done by a fraudulent ballot, took
account of the opinions of witnesses.
Discussion as to the mandatory or directory nature of a law providing
that a ballot prepared in a certain way, and no other, shall be used.
The House purged the poll rather than to declare a vacancy when a
fraudulent ballot was used in a decisive county.
On June 6, 1896 \1\ (calendar day of June 10), Mr. William H. Moody,
of Massachusetts, from the Committee on Elections No. 1, reported the
following resolution relating to the Kentucky election case of Hopkins
v. Kendall:
Resolved, That the parties in the contested election case of N. T.
Hopkins v. J. M. Kendall be permitted to take additional testimony
touching the election in Clark County up to the 1st day of August,
1896, according to the rules for taking testimony in contested election
cases prescribed in the Statutes of the United States, said testimony
to be confined to the issues made by the notices of contest and the
answer thereto.
On June 11 \2\ the time was extended from August 1 to November 1,
1896, by resolution agreed to by the House.
On February 5, 1897,\3\ Mr. Charles Daniels, of New York, submitted
the report of the committee, and at the same time Mr. L. W. Royse, of
Indiana, on behalf of himself and Mr. Romulus Z. Linney, of North
Carolina, submitted minority views.
The statement of facts shows that the result of the election depended
on the disposition of illegal and fraudulent ballots used in Clark
County, which returned for the sitting Member a plurality of 253 votes.
In the other counties of the district, except Clark, the contestant had
a plurality of the votes.
The difference between the majority and minority of the committee
arose as to the effect which should be given to the fraudulent ballots;
whether the vote of the whole county should be rejected, or whether the
contestant should simply be credited with the number of votes actually
shown to have been lost to him by the fraud. The majority of the
committee found that 79 votes were lost to the contestant; and as this
number was not sufficient to overcome the returned plurality of the
sitting Member the majority concluded that the sitting Member was
entitled to his seat. The minority contended for the rejection of the
entire vote of the county.
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\1\ First session Fifty-fourth Congress, Journal, p. 600; Record, p.
6395.
\2\ Journal, p. 611; Record, pp. 6447, 6448.
\3\ Second session Fifty-fourth Congress, Howe Report No. 2809;
Rowell's Digest, p. 512.
Sec. 1095
The ballot for Clark County, as required by the law of Kentucky, was
prepared by the county clerk in the Australian form. By law the clerk
was required to place over each party column the party emblem
prescribed by the party convention. In Kentucky the Democratic
convention had selected as its emblem the rooster; the Republican
convention an eagle, described as ``the eagle about to fly.'' The clerk
of the county placed over the Democratic column the emblem required by
law, but willfully and knowingly placed over the Republican column the
picture of a raccoon. The eagle symbol was placed over an independent
ticket for local county officers, nominated by petition. The name of
the contestant did not appear on this ticket at all. The minority call
attention to the additional fact that this independent ticket was not
legally entitled to a place on the ballot at all, since it was a
requirement of law that no petitioner should be counted to make up the
required number of 100 unless his residence and post-office address
should be designated. Only 94 of the 104 petitioners for the
independent ticket were designated by residence or address.
Both majority and minority of the committee agreed that the action of
the county clerk in making up the ballot was illegal and fraudulent,
done with the motive of deceiving supporters of the contestant.
A difference of opinion arose as to the method of measuring the
extent of the wrong resulting from the fraud.
The majority of the committee found that there was no provision of
Kentucky law providing for the rejection of ballots because of the
displacement of party emblems; and that this displacement was the
extent of the wrong done. To rectify the act required no more than to
transpose the 79 votes under the device of the eagle to the ticket
headed by the raccoon. The majority found that this would correct the
fraud of the clerk, and that there was ``no justification in going
further, and by way of penalty on all the legal voters who voted the
first ticket [the rooster ticket] to deprive them of their votes. To do
that would be no less than to impose a punishment on innocent persons
for no wrong of theirs, but for the misconduct of the county
official.'' In the course of the debate \1\ Mr. Daniels cited in
support of this view the case of People v. Wood, 148 N. Y. The majority
were satisfied that beyond the 79 votes no votes were lost to the
contestant, this view being especially fortified by the fact that,
compared with other years, the vote for contestant, was the normal
Republican strength.
The minority of the committee dissented thus:
We do not think that the injuries which flow from a wrong of this
kind are capable of anything like an accurate measurement. Such
injuries are not capable of being weighed, and if they were we would
not feel justified in using apothecary's scales for such purpose. From
such a bold and unscrupulous transaction the presumption must flow that
a grievous wrong has been done, resulting in serious injury to
contestant.
Contestant is the innocent victim of this fraud of the clerk of Clark
County. We do not believe it right to throw upon him the burden of
making an accurate measurement of the extent of his injuries. Even if
we should require him to furnish any evidence upon this subject it
should only be slight, and then shift the burden of proof upon him who
has received the benefit of this fraud.
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\1\ Record, P. 1958.
Sec. 1095
The minority found that the corrected returns for Clark County gave
sitting Member only 203 plurality, not a large amount to overcome.
While not pretending to prove absolutely the loss of this number of
votes to the contestant as a result of the fraud, they found facts
indicating such an effect
1. An uncontradicted witness declared that contestant lost between
300 and 400 votes by the fraud, because Republicans left the polls
without voting when they found the ticket fraudulent. One party leader
testified that he so advised 75 or 100 voters. In a precinct where
there was a registration, only 64 out of 104 of contestant's party
voted.
2. In every county of the district except Clark the vote of
contestant's party increased in comparison with previous years; and had
the ratio of increase prevailed also in Clark contestant would
indisputably have been elected. Furthermore, the minority thought it
proper to take judicial cognizance of the fact that all over the
nation, except in Clark County, Ky., contestant's party was the
recipient of an increased vote.
The minority furthermore insisted that the clerk of the county had
violated a mandatory provision of the Kentucky ballot law, and
therefore that the vote of the county should be rejected. The Kentucky
constitution provided that ``all elections by the people shall be by
secret official ballot, furnished by public authorities to the voters
at the polls, and then and there deposited,'' and directed the
legislature to enact the necessary laws. Accordingly the legislature
enacted that ``the voting shall be by secret official ballots, printed
and distributed as hereinafter provided, and no other ballots shall be
used.'' The law then went on to provide how the ballots should be
prepared, and the county clerk had no authority outside that law. And
as he had willfully and corruptly disregarded that law the ticket he
produced was not legal and not the official ticket. It was not the
ticket prescribed by the constitution. Laws might be held merely
directory, but constitutional provisions were mandatory. But the
minority held also that the statute was mandatory, quoting Paine on
Elections.
Statutory provisions prescribing acts which are in their nature
absolutely essential to the validity of an election may be mandatory in
whatever language expressed. The language of the law was that ``no
other ballots shall be used.''
The counting of a ballot was as much its use as the casting of it.
The old law of Kentucky did not provide for voting by ballot. The new
statute was a remedial one, and it was well settled that such laws
should be construed broadly. The statute, also, in express language,
provided that ``this chapter shall be liberally construed, so as to
prevent any evasion of its prohibitions and penalties by shift or
device.'' The minority consider that this removes all doubt as to what
the construction of the law should be, and that the ballot voted in
Clark County was void and should be thrown out. The minority quoted
several authorities, including Field v. Osborn, 21 Atl. Rept. (Conn.),
1070.
Therefore the minority reported resolutions declaring Mr. Hopkins,
the contestant, elected and entitled to the seat.
The report was debated on February 17 and 18, 1897,\1\ and on the
latter date the resolutions of the minority were substituted for those
of the majority by a vote
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\1\ Journal, pp. 187, 191; Record, pp. 1956, 1969-1982.
Sec. 1096
of 197 yeas to 91 nays. Then the resolution of the majority as amended
was agreed to without division; and Mr. Hopkins, the contestant,
appeared at the bar and was sworn in.
1096. The Georgia election case of Watson v. Black, in the
Fiftyfourth Congress.
No law preventing the use of more than one ballot box at a precinct,
the use of several did not justify rejection of the poll in the absence
of proof of harm therefrom.
On December 8, 1896,\1\ the Clerk transmitted by letter to the House
the evidence in the contested election case of Watson v. Black, from
Georgia. The communication was referred to the Committee on Elections
No. 1, and on February 11, 1897,\2\ Mr. Charles L. Bartlett, of
Georgia, submitted the report of the committee.
In the election in question the sitting Member received on the face
of the returns a majority of 1,556 votes. Contestant alleged fraud in
both registration and voting in various portions of the district, but
his attorney admitted that he could not overcome sitting Member's
majority unless the entire vote of the city of Augusta and Richmond
County should be thrown out. Therefore the committee did not consider
at length the objections to other portions of the district. It did
appear, however, that both parties were represented on the registration
boards, and that there was not evidence to show the illegality charged.
As to Richmond County and the city of Augusta, on which the result
hinged, the committee failed to find evidence sufficient to justify the
throwing out of the whole vote. On the boards of election and
registration officers both parties were represented, and there was no
satisfactory evidence to sustain the contestant's charges of bribery,
fraudulent counting, and illegal registration and voting.
The claim of the contestant that the votes of four wards of Augusta
should be rejected because two ballot boxes were used at each voting
place, and of a fifth ward because three ballot boxes were used at a
voting place, was examined at greater length, and was settled on the
basis of the report on a contest between the same individuals in the
preceding congress.\3\ The committee found no evidence to show that
fraud resulted from the use of the additional boxes, and that such use
was not prohibited by law. Therefore they found that the vote of those
wards should not be rejected.
On March 2, 1897,\4\ the report favorable to the sitting Member was
agreed to by the House without division.
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\1\ Second session Fifty-fourth Congress, Journal, p. 15; Record, p.
35.
\2\ House Report, No. 2892; Rowell's Digest, p. 513.
\3\ See sections 1054, 1055 of this volume.
\4\ Journal, p. 234.