Parker v. Orr

Mr. Justice Wilkin delivered the opinion of the court: This is a proceeding begun in the court below by the appellant, to contest the election of appellee to the office of superintendent of schools for Christian county. It appears from the petition filed that at the November election, 1894, Robert W. Orr was the nominee of the democratic party, Nina S. White of the republican party and Eugene E. Chumley of the people’s party; that by the canvass of the votes cast for these candidates, Orr received 3215, White 3195 and Chumley 489, whereupon a certificate of election was duly issued to Orr, who qualified and entered upon the duties of the office. Other tickets on the ballot had no candidate for that office. It is insisted by petitioner that Miss White was in fact legally elected. The grounds of the contest are, that in each voting precinct of the county the judges failed to count a certain number of votes cast for either of the candidates, which should have been counted for White; that they counted for Orr votes which should have been counted for White, and counted votes for Orr not legally cast for him. The answer denies these grounds, and avers that in each of the precincts votes were cast for Orr which should have been, but were not, counted for him; that votes cast for him were counted for White, and that votes were counted for White which were not legally cast for her. On a re-count of the ballots the court found that White received 3168 votes and Orr 3160, to which no objection was made. There were counted to Ohumley 488, and 75 by agreement rejected, as being votes for neither party, leaving 111 in c|ispute. Of these the court counted 35 to White, 44 to Orr and rejected the remaining 32 altogether, thus giving Orr a total of 3204 and White 3203, and declaring Orr duly elected by a majority of one vote. It is contended by counsel for appellant, that under our statute only a cross can be used upon the ballots to indicate the voter’s choice of candidates,* which cross must be in the form indicated in the statute and placed in the circle or square, and unless the elector so marks his ballot it must be rejected. In other words, they insist that the language of section 23 of the Ballot law of this State, (3 Starr & Curtis, chap. 46, p. 570,) which says the voter “shall prepare his ballot by making in the appropriate margin or place a cross (X) opposite the name of the candidate of his choice for each office to be filled,” etc., is mandatory, and must be strictly complied with, else the ballot is void. They also insist that every mark upon a ballot cast, not necessary to indicate the voter’s choice of candidates, as indicated in said section 23, should be treated as a distinguishing mark, and render the whole ballot void. In support of these positions several decisions of the courts of other States are cited, but in view of the language of the statutes under which those cases were decided we do not regard them as in point here. For instance, the case of Parvin v. Wmiberg, 130 Ind. 561, much relied upon by counsel for appellant, was decided upon a statute of that State, section 45 of which provides that in indicating the voter’s choice of candidates a stamp shall be used, by stamping the square immediately preceding their names, and it was held the use of the stamp and the placing it in and upon the square were mandatory. Section 23 of our statute does not say with what the cross shall be made, neither does it mention squares or circles opposite the names of candidates, but requires the cross to be made “in the appropriate margin or place opposite the name,” etc. If the desire is to vote for all the candidates of a party, the cross is to be placed at the “appropriate place preceding the appellation or title of such party,” etc., nothing being said about a circle. It is true, that by construing section 14, prescribing the form of the ballot, with section 23, it appears that by “appropriate margin or place” is meant the circle or square on the ballot; but there is not, as in the Indiana statute, a direct command that the cross shall be made in a square or circle. Neither does our statute, as we construe it, prescribe the form of the cross to be used. It provides that it shall be “by making * * a cross (X) opposite the name,” etc. Manifestly, placing the capital X in parentheses was merely to indicate to the voter how the cross might be made, and it cannot be seriously insisted that the statute commands the cross to be so made. That is to say, even if it were held that the statute is mandatory, its requirements would be satisfied by complying with the language, “by making a cross” in either of three forms, viz., in the form of a capital X, as indicated in the statute; in a form similar to a capital y, or by crossing two lines thus, -/-. (See Webster’s International Dictionary, defining “cross.”) There is therefore a manifest difference in the requirement that a voter shall use a stamp, furnished for that purpose, to indicate his choice of candidates, and that he shall make a cross. A failure to use the stamp is a positive violation of the law; a failure to make a distinct, well-formed cross may be the- result of inability or inadvertence. It would be impracticable, therefore, to give effect to our statute construed to be mandatory as to the form of the cross to be made to indicate the voter’s choice. It has always been held in this State 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 other words, that the voter shall not be disfranchised or deprived of his right to vote through mere inadvertence, mistake or ignorance, if an honest intention can be ascertained from his ballot. (See McKinnon v. People ex rel. 110 Ill. 305; Behrensmeyer v. Kreitz, 135 id. 591.) The ballot law of 1891 does not, in our opinion, change the rule in this regard, unless to give effect to such intention would tend to destroy the secrecy of the ballot. On the contrary, section 26 expressly provides: “If the voter marks more names than there are persons to be elected to an office, or if, for any reason, it is impossible to determine the voter’s choice for any office to be filled, his ballot shall not be counted for such office,”—plainly meaning that if the voter’s choice can be ascertained from his ballot it shall be counted, if it can be done consistently with other provisions and the object of the act. It was the intention of this amendment, as expressed in its title, to provide for the printing and distribution of ballots at public expense, for the nomination of candidates for public offices, to regulate the manner of holding elections and to enforce the secrecy of the ballot. “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. The whole purpose of the ballot as an institution is to obtain a correct expression of intention, and if in a given case the intention is clear, it is an entire misconception of the purpose of the requirements to treat ^them as essentials,—that is, as objects in themselves, and not merely as means.” (Wigmore on Australian Ballot System—2d ed.—p. 195.) To say that any mark on a ballot other than a cross in the proper place makes it void, is to go beyond the language of the statute and in direct conflict with section 26, supra. The statute being directory, and not mandatory, as to the manner of voting prescribed in section 23, it remains to be determined what is its proper construction. In settling this question two objects must be kept in view, viz., the secrecy of the ballot, and the intention of the voter. It was evidently the intention of the legislature to declare what should absolutely destroy a ballot or prevent its being counted, by section 26, supra: “If the voter marks more names than there are persons to be elected to an office, or if, for any reason, it is impossible to determine the voter’s choice for any office to be filled, his ballot shall not be counted for such office. No ballot without the official indorsement shall be allowed to be ■deposited in the ballot box, and none but ballots provided in accordance with the provisions of this act shall be counted.” Observing this mandatory language, if a voter’s intention can be gathered from his ballot, without laying down a rule which may lead to a destruction ■of its secrecy, that intention should be given effect. Nothing is said in the act about distinguishing marks, but if a mark or character is used which, though indicating an intention to vote a particular party ticket or for certain candidates, at the same time serves the purpose of indicating who voted it, thereby furnishing the means to designing persons of evading the law as to secrecy, the ballot should be rejected. It logically follows that the voter’s intention must be manifested by a cross, substantially in the place designated, which the judges of elections, or the court on a re-count, can see was an honest attempt to follow the directions of the law. For instance, on one of the ballots cast at this election the "voter simply wrote at the head of the democratic ticket the word “Democratic.” On others a single mark was made across or through the circle or square. On others •a circle within the circle or square was made, and on .still others irregular characters were so used. On one ballot crosses were made opposite the names of candidates, but entirely outside of the squares. In those there was no attempt by the voter to indicate his choice by making a cross in the appropriate place. On another, seemingly regular in other respects, the name “Martin Lynch” is signed at the bottom. These marks and names may tend to show an intention on the part of the voter to vote tickets so marked, but they disregard the plain directions of the law, and furnish the means whereby the secrecy of the ballot could be destroyed. Therefore we think all such ballots were properly rejected by the court below. On the other hand, ballots appear in the record on which it is clear that the voter attempted to-make a cross in the proper place to indicate his choice of candidates, but succeeded more or less imperfectly. It being clear, in such cases, that the intention was to conform to the statute, and not to distinguish the ballot, they were properly counted. On one of the ballots, opposite the word “yes,” on the proposed constitutional amendment submitted, the word “get,” as read by counsel for appellant, was written in the square, opposing counsel insisting that the word was meant for “yes.” It is insisted by counsel for appellant that this word, as used, is as much a distinguishing mark as is the name “Martin Lynch” to the ballot above referred to. We do not think so. The name signed to the ballot could serve but one purpose, viz., to indicate who voted the ballot; the word “yes” or “get” tended to indicate the voter’s choice upon the proposition submitted; and that it served the further purpose of distinguishing the ballot, is, to say the least, a very remote conjecture. On several of the ballots counted for either candidate, names of candidates were erased by drawing a pencil through them, and these, it is insisted, are invalid because of distinguishing marks. What we have already said referring to section 26 is a sufficient answer to this contention. Applying the rules indicated to the ballots in this record, we find that of the thirty-two rejected all were properly excluded except eight, four of which should have been counted for each of these candidates. In these the voters made a well-defined cross in the democratic or republican circle at the head of the ticket, (four in each,} but also made a cross in another circle opposite a party-name on which there was no candidate for superintendent of schools. While such ballots could not be counted for candidates upon both tickets, because the voter in that case marked more names than there were persons to be elected to the office, that rule cannot apply to these candidates,—that is to say, where a voter made a cross in the republican circle and did the same in the independent republican circle, on which last named ticket there was. no candidate for superintendent of schools, he did not mark more names than there were persons to be elected to that office, but expressed his choice for Miss White. And so where a voter made a cross in the democratic circle but did the same in the people’s silver circle, on which there was no candidate for the office, the vote should have been counted for Orr. Of the disputed votes counted for Orr, one was marked in the democratic circle with a character like this, and had no other marks upon it.* We are unable to discover in the mark any resemblance to a cross, or see wherein the voter attempted to make a cross of any kind, and therefore, under the rule laid down, the ballot should have been rejected. It is earnestly insisted that another ballot counted for Orr, marked in the democratic circle in this way, should have been rejected. The marks were made with ink, and while it is somewhat blurred, and cannot, be said to be a cross, strictly speaking, still we think it shows an attempt on the part of the voter to make such-a mark, and was therefore properly counted. But if it were otherwise, the result which we reach upou the whole-record would not be changed, because on one of those counted for Miss White the mark in the republican cir-for saying that one of these characters was intended for Certainly there is no more reason a cross than the other. We think they were both properly counted. On three of the tickets counted for Miss White a cross was made in the republican circle, but on one of "them "the name “R. W. Orr” and on the other two “Robert W. Orr” was written under the name “Nina S. White,” and a -cross made in the square opposite, but extending somewhat below her name. It would seem that the voter, "in each of these cases, intended to vote the republican ticket, except for Miss White, but to vote for Orr as ■against her. If the cross in the square opposite the name “White” had been made directly opposite that of Orr, the vote would, under the provisions of the statute ■and our recent decision in Sanner v. Patton, 155 Ill. 553, have been a regular vote for Orr. We are, however, of "the opinion that it is, to say the least, uncertain from these ballots which of the candidates the voter intended 'to vote for, and therefore, under section 26, supra, they should not have been counted for either. Our conclusion then is, that, in any view of the case presented, appellee was entitled to his certificate of election, having at least a majority of three votes. The judgment of the county court must therefore be affirmed. . It may properly be added that it is the duty of every voter, under this law, to ascertain and follow the provisions of the statute and the directions of the Secretary of State in his instructions sent out with the ballots, and "that .whenever, either through negligence or willfulness, he disregards that duty, he does so at the peril of losing his vote. Judgment affirmed. Footnotes [*] The above characters are/ac similes of the marks on the original ballots.