Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1892-01-07

/. Following Is an extract from the de-
cision of the New York court of APP
peals, rendered ON Tuesday, which is
of special interest, both as the deliver
ance of high tribunal on what consti-
tutes legal secrecy of the ballot and in
view of the adoption in Delaware of the
Australian ballot system. The opinion
of the majority of the court on this
point, given below, was delivered by
Judge O'Brien. The court said:
1t appears from the record that GER
tain ballots we're cast al the election for
Rufus t. Peck for the office of senator
IN the first election district of the town
Of Camillus upon which was the follow
ing Endorsement, ,otficial ballot for
/ Second district poll, town of Camillus,
November Sd, 1884," followed by fac
Simile of the signature of the county
%Nerk OF Onondaga. In the first and
Iecond districts OF the town of Clay the
,allots were also transpossd. The same
tacts existed in regard TO the indorse-
ment of the ballots for member of as
semhly for the First assembly district of
Onondaga county. How the ballots be-
came transposed does not appear.
According to the record we are to
meet only the question whether upon
the facts the ballots in question can
, lawfully be counted for the candidate
TOR whom they were cast The ground
upon which the canvassers were directed
to exclude the ballots was that they
were not Endorsed with the number of
the election district in which they were
used by the electors, as required by the
statute, but were in fact Endorsed with
the number of another district.
WAS THE VOTERS WILL EXPRESSED?
The question now before US is whether
those citizens of Onondaga county who
used the ballots which the canyassers
in this case have been ordered by the
supreme court to reject have SO far me-
elected to observe the forms and regu-
lations prescribed by law for voting at
elections that their votes SO cast must be
held to be void.
The primary aim and object was to
enable the voter to cast ballot for the
candidates of his choice without the
possibility of revealing by the act of
voting the identity or political COM
plexion of the candidates voted for. II
Is reasonable, therefore, to assume that
any 10AotihCtlOu vi lnl5 BtdIult WHICH
would permit ballots to be cast and
counted that contained any caption or
word that would reveal the way the
voter using them voted should be
avoided as contrary to the true policy
and intent of the law. What Is called
in the law the official ballot Is the only
instrument by means of which the cleo.
tor can legally express his will at cleo
tions, save in the exceptional cases pro-
vided fer in section 81. These are cases
where the official ballots have not been
delivered at the time provided in the
statute to the town or city clerk, or shall
be destroyed or stolen after such de-
livery, or candidate for any office
whose name is printed on the official
ballot shall have died, shall be or be-
come ineligible, or shall have with
drawn before election day. In such
cases, unofficial ballots, to be prepared
/ and furnished under the conditions and
restrictions prescribed in the section
may be used by the voter.
/ PROVISIONS FOR SECRECY.
1t is obvious that this section has nc
application to this case, as none of the
events provided for therein have hap.
pened. So careful was the legislature
in providing for secrecy in voting that
II prohibited the voter in any way from
marking his ballot or showing it to any
one after it was prepared for voting III
such way as to reveal its contents. II
is also provided that ballot deposited
by voter in the ballot box upon which
or upon any paster affixed thereto a
writing or mark of any kind has been
placed by the voter or by any Other
person To his knowledge, with the in.
tent that such ballot shall afterward be
identified as the one voted by him, shall
be void and Of no effect
Most of these stringent provisions
would be little short OF absurd if it can
be supposed that ballots bearing an in.
dorsement which distinguishes then
from all others in use at the poll.
can be lawfully put into the ballot box
The Endorsement was TO be precisely tn,
same on all the ballots used at the same
polling place or election district A
different district or peculiar indorse
ment upon the ballots or any Of then
used by any party or candidates woulC
of course remove all secrecy from tn,
act OF voting as to the electors using
ballot with such an Endorsement.
IMPROPER ENDORSEMENT.
The provision of the law plainly re
quires that the designation or numbe
of the election district Endorsement shall
be precisely the same, and in all case
that designation or number shall be tina
of the polling place or election distric
where the vote is offered and no other
The ballots In question were cast il
uttor disregard Of this important pro
vision Of the statute. The endorsement
upon them differed from the regular in
dorsement on all the other ballots use,
or voted at the same polling place, an,
aethey were used or voted by but on
Of the parties that had made nomina
tons, or In sther words in behalf Of bu
enc candidate or set of candidates. til
tvoters who used them necessarily dis
closed to such hystanders as could o
desired to observe the candidates vote
for.
u is scarcely possible that this mean
OF Distinguishing the ballots from al
the other ballots used was not know
to the election officers who received an
many Of the voters who used them. but
however that may be, the importan
tfact remains that every elector VIII
voted one of the ballots thereby reyeale
his choice Of candidate. Ii this can b
held to be b legal exercise Of the RICH
OF suffrage, and that the ballots thu
cast are on the same footing as all til
other ballots, then It is manifest tia
the Legislature has utterly failed to Sc
cure secrecy in voting. II will be see
upon careful reading of the statut
that the legislature has carefully pre-
'vided for the exclusion of marked bal
lots from the ballot boxes from the fins
count and estimate of the actual legs
vote ln two cases First WHARF IN