Richmond daily Whig. [volume] (Richmond, Va.) 1842-1861, 1860-12-03
QUESTIONS SUBMITTED BY THE GOVERNOR TO
THE ATTORNEY GENERAL, UPON WHICH HE
REQUESTS HIS OPINION IN WRITING.

THE AIlOINLA AtEtSAlS oiSA' "AANA liz
REQUESTS HIS OPINION IN WRITING.
g NOVEMBER %, 1860. Z
lst Whether Il IS necessary % constitute good voter
that BE- should present. tekeapd write bis name on he
bacl or hava thesahe vritten The Commissioners re-
turn total 81 vOl1b cast for he Electors, specifying TIE
nurber aBthen add abofon OF these votes cast with
out tickets and the residue cast with tickets Ought
these votes 10 be received or rejectedy
ID The initial Of the middle name IN the return OF
Electors by the Commissioners being enormously given,
thus, IS" instead Of "Tn or the omission OF junior or
senior the end Of the name the case may be Ought
such return 70 received and counted in favor OF the
particular Eector.
Sd. In the case of the christian of the Eecor
beng enormously stated in the return example, An
hony cad OF AndreWshoud such returns be count
ed or excluded for the Elecorg ,,,.
Ih In the case OF the sif-name OF the Electors being
enormously stated In the return should such return DO
counted or excluded for that Elector! p.,,..
9Th Whether poll opened in the name OF the candi-
dates for tue President and Vice President and not for
the Electors should be received and counted It not APP
| pearing whether there were tickets or not -..
Answer is desired by Monday morning next r,,n
J.R TrckER, Attorney General. g. az +. -
5"-4 US 60 RIcnuoSp, Nov. each, 1860
1Sr:-Thave received your communication PROFOUND
ing several questions in respect to the electng Of Elec
tors for President and Vice President OF the United
States am compelled by reason Of your request for an
answer BY Monday morning, TO prepare my reply at
at once and state more succincly that would other
wise have DONE my reasons for the conclusions to which
have come, .... -. ID ID a. --..
LIST Whether it is necessary to constitute good yo-
ter that be should present ticket and write his name on
the back, or have the same written The Commissioners
return total Of votes cast for the Electors, specifying
the number and then add portion of these votes cast
without tickets and the residue cast with tickets Ought
these votes TO be received or rjectedy -. -.
This question Involves an inquiry into the real mode
In which Che law directs the voter TO cast his vote
whether the voter really expresses bis choice by ballot
The Consultation Of Virginia (art III, sec. ~ contains
this provision; ~ -... - ,..4 .s-..., ..... g.. 81.
0in al elections votes shall be given openly, or rsa
toes and not by ballot but dumb persons entitled TO
suffrage may vote by ballot" ~. a ,,.. ...- ....
This provision seems to settle the point as TO the mode
Of casting vote It must be given openly or uipa pocs
aud cannot be by ballot except in the single Of
vote cast By dumb person. ..5. ,.,.,,....5.. i.
It seems me Il would be incompetent for the Legs
laure to have Quired be cast by ballot
had it attempted TO do So Nor u my Judgement, has
the Legislature made such an attempt .. j
Sec II of chapter 20 Of the acts of 1878, provides
that uuder the superintendent and control OF the Com
mssioners" polls should be Opeu-tha he should pro-
claim and see the votes recorded-appont wrers-have
polbooks preparedand deliver TO each writer the book
be Is 70 keep The writer is required to write the names
ofvotefs In column headed with the words names Of
voters" "and opposite the name of the voter mark
Tue section then proceeds as follows "And in an cleo
ton for electors for President aud Vice President Of the
United States the said officer" Qhe Conductor) "shal
receive from each voter paper or ticket containing the
names OF as many persons for Electors the State may
be entitled TO- for the time being. The name Of the
Ter shall be written on the back Of the paper and he
shall also declare v0es for whom he votes Eec
tors either by repeating the Of each person voted
for or by any other dis;nc. designation OF them coeo
lively provided that " ne he dumb, he may vote By
ballot when the vote is received by the Commission
ers shall be recorded the poll book Aforesaid"
l. further provides that the correctness of the poll when
concluded by the conducting officer shall be certified by
the Commissioners aud Conductor, and requires the de-
livery Of he polls at precincts 10 the Commissioners at
the Court House. .-...
SEC Of the same act requires the Commissioners at
the Court House TO examine and compare the several polls
taken 10 the countystrike therefrom improper votes
attach list thereof TO the poll and the reason for so
striking them from the poll
SEc Al provides that 'tbe tickets handed in BY the
voters shah be kept by The Commissioners under their
seal"-hat they shall be preserved by Of the Commits
sionerS and De delivered to the Governor, If demanded
by him withih six months after the election It further
provides that the several polls when subscribed by the
Commissioners shall he delivered TO the Clerk o. tic
e.uatv "to be preserved ia the Clerks Office"
The sections cited are all that bear upon this question
t is obvious from the language OF the 18th section that
the law does prescribe vote by ballot but really for
bds t. except in the OF dumb person thus con-
forming 10 the provision Of the Constitution already cited
The whole law shows that polls are TO be opened and
kept and the therein recOrded-that upon these
the Commissioners to determine the resultant these
are TO be returned the Clerks Office to be preserved
~ perpetual evidence of the election; WHILE the
other hand the tickets 10 be kept by the Commits
soners only unless they be demanded by the Governor
What then, is the purpose of requiring the handing
in of the ticketsg Does that constitute the casting Of
~" s a o. opmon cast by the voter when
he declares "ViUG for whom he votes as Elector"
and that the must be evidenced according
the mode required by the law. The vote is cast
noe, and not by balo-aud this under the Constitution
and the law The law directs the officer TO receive a
ticket aud have the vote recorded on the poll These
are the modes of evidence which the law prescrbes
establish the fact that the vote has been cast: But the
absence OF the requisite evidence in all the modes
ouired cannot iuvadate the vote il proved by any
of the modes the law requires If writer records
the vote upon his poll book and the other fails to do So
presume the vote will be Ceced for the default Of
the writer II the ticket is furnished aud tie writer's
omit to record is not the vote TO be received when the
Commissioners certify il was castg
think the sound rule in such is this All favor
should be shown the right Of suffrage the forms pre-
scfbed TO protect should not be made instruments
defeat IT, and where there is legal Evidence that il has
been exercised in particular mode,t will not be defeat
cd because all the evidence possible has not been fur
nshed to prove it.
In the case stated in your question the Commissioners
certify that certain number OF votes cast for the Elec
tors; that portion Of them cast without tickets Still
thew wsre cast; and so the Commissioners certify How
castg Viva voce Il is be presumed and the evidence
of the fact must have been furnished by the record in
the poll books, from which the Commissioners
ouire1 by law 70 make their return. Why them should
the votes be rccedy Not because they not given
for the Commissioners certify they were; nor because
there was no legal evidence Of it, for must presume
from the certificates the legal evidence the poll
book The only for rejection must be, because
there were no tickets The question then Does
the ticket constitute the vote; such evidence of is
being cast as that without it, it cannot be proved to
have been gvenY think have shown il does not con-
sitiss the Uoie.
Is it evidence of the vote cast without which it can
not be esabshedg
answer Il Is only of several modes Of evidence
by which il may be established. Besides, it constitutes
evidence of less dignity than that OF the record upon the
poll books; for the latter only be obtained upon
vote UUa Uoes the constitutional mode Of voting; while
the former might be furnished in the absence of the viva
voee vote.
think the Law proposed to guard this election BY fur
nishpg two modes OF proof either of which might suf-
fee to establish the fact of the Both are
essential-cither will suffice Both should be required
By the officer, but if not required being required il
not furnished shall the vote when aud recorded by
the officer in the mode prescribed, be reectedy
/; to that such rule would operate q fraud
upon the right of the voter. Had the officer refused the
vote because Of the want of the ticket the voter could
have had opportunity to hsght BY procuring