Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-08-15
THE SECRET BALLOT.


II. j. Horn, ESD, In the Affirmative.
Before the Hon. Judges Wilkin, Simons
and Brill. yesterday, Mr.. Brisbin's suit was
brought against the defendants, who were
election officers in the Fourth ward, for in
sist.ng upon numbering the plaintiffs vote
offered at the last spring election under the
new election law Mr.. Brisbin claimed that
this provision Of the law for numbering the
ballots nterfered with the secrecy
Of the voter which was guaranteed
by that part of the State constitution which
provides that the vote at elections by the
people shall be i'by ballot" That vote shy
ballot was secret vote.
The defendants demurred to Mr.. Brisbins
complaint and the case was heard before
q full bench. manly upon the constitution
+ality of the new election law Mr.. Brisbin,
appearing for himself and Messrs. Murray
and Horn for the defendants.
On the part of the defendants the argu-
ment was opened and conducted by Mr..
Horn.
ARGUMENT OF H. J. HORN.
Mr.. Horn, after explaining the nature OF the
case and the important question involved gave
U history of the act of 1878, or new election
iaw-showing that it was suggested by
the election law of Illinois of 1872,
and of Missouri of 1868. which contain similar
features. The constitutions Of these States
also require vote by the people to be by bal
lnt--the supreme court in those States, al
though not directly, have by repeated deci-
iions implicitly recognized the constitutionuli-
ty of the Illinois anu Missouri law. In 1878
the State of Pennsylvania incorporated this
feature of the election law in the constitu-
tion OF that State. The State of Colorado has
similar provision in its constitution.
The legislature of the State of Indiana, in
1869, passed an act providing for the number-
ing of ballots by election officers so as to cor
respond with the numbers of the voters on the
poll list, but did not provide
the safe guards for the production of the
secrecy OF the legal voter which are found in
the Illinois law and in this Minnesota law and
which distinguish the Indiana law essentially
from cur law. The supreme court of Indiana
in 1871 held this act to be repugnant to the
constitution of TINT State providing for vote
by ballot" civilians vs. Stein SO In.
diana, s9.> This kind of legisla.
ton originated in the difficulties courts have
repeatedly encountered in casrs of contest, in
identifying the votes of illegal or fraudulent
voters so that the illegal votes may be thrown
unt. and courts, in consequence, have been
obliged to resort to many shifts in the way ue
circumstantial evidence, mere declarations and
other uncertain and unsatisfactory evi.
Ihe object of the legislation in question was
SO put within the reach of courts reliable evil
dence on this point. by providing {. means by
which votes could lie identified in the records
Of the election.
The act in question: like the laws of the
States from which it modelled. aimed al
the detection of fraud in elections and the
purging Of the election of illegal votes in
manner which would be ut once effective, mex
pensive and convenient. and at the same time
would not substantially interfere with thu
secrecy of the ballot Of the qualified elector.
Mr.. Horn took the position that the doctlin,
OF the secrecy of the ballot had never been ex
tended SO far as to prevent an inquiry into the
votes of illegal voters That illegal voters hao
no claim to The privilege of the secrecy of thu
ballot; and cited large array of authorities
upon this point.
And this position in relation to illegal voter.
conceded afterwards by Mr.. Brisbin.
Mr.. Horn then made an anal, sis of the act o
1878 for the purpose of showing that it did no
prejudice the privilege of the legal voter at al
an this respect, but was confined in Its opera
zion to the illegal voter. The act denounced
severe penalties by fine and imprisonment
against election officers attempting to ascertain
by comparison with the poll-books or othe
means, the identity of the vote with the voter
and also against any attempt BY such officer
OF hers TO reveal or discover he contents o
the ballot Of any voter; and it provided effec
lively for keeping the votes secret during tn
election and until they were finally de
stroyed, rs provided by the act, il
SIX months after the election, when Their
was no contes, and where there was q contes
the right of the legal voters to secrecy was IN
der the protection Of the court, ard the inves
tigation affected only the illegal votes, whic
were no shielded by the secre y of the ballot
Mr. Horn claimed that the constitutional bal
a design to furnish reliable evidenc
shreugh printed or written votes, which coul
be resorted to in an election contest. That til
policy of the law in allowing an examination
into, and providing effective means of detect
lng fraud in elections. and of purging the pol
OF illegal votes, was imperative and as i'm
portant as the policy of the secret ballot.
MIR. Horn also claimed that the ballot of on
constitution should not be construed to impl
1nviolahte secrecy or at least not such secrec
as should obstrnct conrs in their investigation
of election frauds and illegal votes.
That the legislation of Minnesota territor
in force at the time the State constitution wa
adopted, required, in the interests 9
the public that in certain case
the ballot OF the voter should be presente
Notwithstanding the vote at all election
by the people We're by ballot. and that Their,
lore 1t could not be claimed that the under
stood meaning of the word ballot in Minnesot
was secret vote exclusively ut the time thu
item was incorporated in the constitution.
Dir. Horn claimed that the word 'spe1, sc" di
ang was unknown to the English common Law
and was not employed in England until 1877
and then it owed lis element of secrecy not
the meaning of the word but to special regul;
lions in the act of parliament.
1t was an ancient device originating i
Greece. derived from the Greek wor
'Ballein." to throw cast. The voter cas-
pebble or little ba in an urn, to signify b
choice. A white ball meant an atiirmati,
vote a black one a negative one. SO tt
American citizen to-day Is said, in imitation ,
tn ancient Athenans, to cast his vote Tn
ballot was not secret vote in Greece, 1t wa
on the contrary, open and public.
Inc only secret vote III Greece was bv 'ostr
olsm' (votlng by shels). In modern times I'll
vote by ballot has been indifferently secret ,
open. according to statute regulations.
In Germany it is open---our German friend
like our sturdy Saxon ancestry do not fav.
secrecy In the exercise OF such a franchise
In the United States. where the element ,
secrecy is associated with the ballot, the theo,
OF Judicial investigation for the purpose ,
purglng the poll of illegal votes is also ass
cated with the ballot; and the ballot in tn
country is not to be held secret to the exte,
OF frustrating the efforts of courts of Justice
indicating the purity of the ballot.
MR.. BRIsBIN's ARGUMENT.
The following is the brief of Mr.. Brisbin
argument:
All elections shall be by ballot excent Fl
such town officers as may by law be directed +,
De otherwise chosen. Art.
Sec. 6.
What is q ballot? It is secret vote.
First-A little ball slip of paper, or an
ehlnS which Is used in givin, u secret vote.'
Sa.ond-A secret method of voting at ele
america. where the ballot is practiced. -
Worcester Unabridged. title ballot citing; ais
Brande; Webster same; Bonvier's law dictio,
airy. same title.
=. Ill