Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-10-23


among other provisions Of which was sec
ton requiring the judges of election to
number every ticket offered with the CORES
pondine number set opposite every voters
name on the poll book. At the last spring
election Hon. j. 3. Brisbin offered his vote,
but declined to have it numbered as requir-
ed, thereupon the judges deprived him of the
right of franchise. He accordingly brought
suit against the judges for damages, to test
the validity of the law. The case was en-
titled, John B. Brisbin vs.. James Cleary ct
al. The cause came up for hearing on de-
murrer by defendant, that 70 cause for ac-
ton was had by plaintiff. The case was
argued by Messrs. Horn and Murray, for dc.
PENDANT, and j. B. Brisbin, for
plaintiff, before Judges Wilkin, Brill and
Simons, setting I'M bGnc, and the decision
was given yesterday in full as follows;
The point raised upon the complaint and de-
murrer in this cause Is the constitionality of
the act of March 18th, 1878, relating to cleo
tions, SO far it provides for the Identification
Of the ticket of the elector.
The constitution provides, section 6, article
e, all elections shall be by ballot except for
such town officers as may be directed by law to
be otherwise chosen"
The provision of the act Of 1873, complained
of is as follows: sThe Judges of election
shall endorse on the back of the ticket offered
the number corresponding with the number of
the voter on the poll book" section 8, chapter
81, general laws, 1873.
The plaintiff claims that the constitution
provides for a secret vote, and that the act de-
stroys the effect of that provision and hence
cannot be upheld.
l. What is the Specification of the word
ballot?
The origin of the vote by ballot as distin-
guished from other methods OF voting is well
understood and furnishes answer to the
question. The humble and dependent are in a
greater or less degree subject to the coercion of
the rich and powerful. Where any
matter is to be determined by the
will of the people it is of
the highest Importance that there be q full ex-
preston of that will, and in the desire to Sc
cure this end, the ballot originated. 1t has
been adapted, wherever used for the purpose
of securing the independence Of the individual
voter. 1t secures his independence because no
map other than himself may know how he
voted. 1t throws over him IAN impentrable
sn'eld, under which he may keep the secret of
his vote until he shall see tit to disclose it, 1t
IS a secret Uote and in no other way but the bal
lot accomplishes it's conceded purpose.
The courts whenever the question has been
raised have universally held that secrecy was
essential characteristic of the ballot. In
c'''S vi
1888 undo constitutional provision similar to
our own. Judge Christiancy uses the above
language quoted, and the court holds that the
secrect is SO we'll guarded by the constitutional
provision that the elector will not be COM
PEELED, will any other person, without the
electors consent, be permitted to disclose for
Whom the vote cast.
See also Respnb lca VS.. Ray 5 Yeatea (Pa.)
66; Reed Va. Kneass 2 Parsons pa 534
Temple vs.. Mead, Vermont 53S; State VS.
Hilmantle, q Wisconsin 422; People VS.. pease,
~ New York sd; NJ. Williams VS.. Stein, SO In
stitutional PROVISIONS which we have
the court says: THE ballot as used in our con-
stltution implies absolute and inalienable Sc
crecy.'
Judge Cooley in his Constitutional Limita-
tions, p. GOA, says: ''The distinguishing fea
ture OF this mode of voting is that every voter
Ia thus enabled to secure and preserve the most
lnviolablc secrecy in regard to the person for
whom he votes The statute of the Territory
on the subject Of elections in force at the time
OF the adoption of the constitutions clearly
recognizes the fact that the ballot is secret
vote. Section ID, chapter 5, statutes 1851, pro-
vldes that every elector shall vote by ballot
Section Is following permits electors to vote
Tor certain officers at any place within
the district, where such officers are to he
chosen, provided that an elector qualified to
vote Tor Q part and not all of the officers to be
chosen at any election shall vote an open
ticket Ii the vote provided for in the 18th
section was not to be secret, no provision FOR
an open ticket in the contingency mentioned
IN the 18th section would have been necessary
Without entering into an extended discus
sion OF the question, are Of opinion that the
constitution secures to the citizen the right of
lnviolable secrecy in the expression Of his
preference at the polls.
2. What is the effect of the act of 1873 upon
this constitutional right?
In Williams VS.. Stein, SuDy1. q nrovisioD of
this Indiana statute similar to that above
quoted from the act Of 1878 was under con-
slderation. The court says: THE act in
tended to and does clearly identify every mans
ticket and renders it easy to ascertain exactly
how he voted and for this reason it was held
to be in conflict with the constitution and
void.
The defendants counsel comedies what must
be apparent at glance, that the provision for
numbering the tickets, If unqualified, destroys
the result is avoided by other pro-
visions of the act, not contained in
the Indiana statute. Those provisions
are, that neither the judges of election, nor
any other person, shall wilfully corruptly
ascertain or reveal how any elector voted under
severe penalties; that the votes having been
counted shall be securely sealed and delivered
to the proper officer, and at the end of six
months, 1t no election contest is pending, shall
be destroyed without opening. In case of
contest the parties "have the right to have the
packages of ballots opened and the ballots re-
ferred to by witnesses for the purpose of such
contest
This law furnishes the means Of ascertaining
exactly how every eIector voted, that
is its acknowledged purpose. Every
man must, In effect, vote ticket
with his name Endorsed upon it, if he votes at
all, and in case of a contest the ticket is to be
produced from the records to become public
property. The doctrine is laid down in Reed
VS. Kneass, Respublica vs. Ray, People va.
Cicott, supra, and in Conley ON the
esnne BE- page som S that the f lss
for whom he voted. If this is correct. it would
seem to be decisive of the question under con-
slderation; The Lurpose and effect of the law
being to compel the elector to furnish the evi-
dence of his vote. But aside from this, under
this law, the elector Is compelled to commit to
the keeping OF others the secret of his vote-it
is not his will, but another's which determines
whether it shall be made public. Given a
sufficient Involvement, and the secret NAV he
laid open to all the world. 1t is true the law
will punish the ''willful aud corrupt" conduct
OF the officer, but the voters right has been
violated all the same. Besides, it is morally
impossible under the provisions of this law that
the judges and clerks of election should not in
the various necessary manipulations of the
tickets, 1r1adnertently discover how any electnr
voted. The law spreads the evidence before
not be avoided by a provision that thew shall
not "willfulIy and corruptly' look at it. The
act not only makes it possible to ascertain,
Contrary to his will, how every one voted in anv
case. but under its provisions it is certain that
secrecy as to all vo will not be maintained
and besides it in effect provides in cases of con-
test that the elector shall furnish record of
his vote. This is not inviolable secrecy.
It may be, as urged by counsel. that the
identification of the ticket will promote the
purity of the election, a very desirable end, but