Evening star., 1894-03-26
PLANNING TROUBLE
House Elections Committee Sets a
Startling Precedent.
BALLOTS NOT THE BEST EVIDENCE
Opening a Wide Field for Re-
trying All Elections.
HILBORN VERSUS ENGLISH
BALLOTS NOT THE BEST EVIDENCE
HILBORN VERSUS ENGLISH

agt. Hilborn of the third congressional dis
uict of California is viewed in political
circles as of serious and unusual import
ance. owing to the fact that the report
of the majority of the committee on cleo
tions overrides the established proposition
that the ballots cast in an election are the
best evidence, and sets a precedent which
Is liable it is thought to seriously plague
the democrats of the south in the future
AS stated in the report, quoting from the
contestant In this case. the contestant
relies entirely upon the depositions; con-
testee entirely on ballots recounted." The
official returns of the election showed that
Mr.. Hilborn. the republican. was elected by
a plurality of %. A recount of the votes
in one Of the precincts showed that Mr..
Hilborn was elected by a plurality of 4.
Mr. English, the democrat, submitted the
affidavits of voters in this precinct con-
troverting, 1t Is claimed, the testimony of
the ballots, and the majority of the COM
mittee have accepted the affidavtts in pref
erence to the ballots as indicating the re-
suit. If this theory of the superiority of
subsequent testimony of voters being su-
perior to the testimony of the ballots were
accepted and generally applied there are
ve-y few districts in the south which the
House could not cause to be represented
in Congress by a republican. But the re-
port goes further than this and makes
statements which must spread consterna-
ton through southern districts, holding
substantially that the restrictive laws, such
as the Australian ballot, defining specific
ally how an illiterate voter may have his
ballot marked, discredit the ballots tes-
timony, and make it competent to show by
other testimony how the voter voted o.
intended to vote.
The majority report. which is signed by
the democrats, eliminates everything from
the contest except the dispute over the
ballots in the Altamont precinct, where
40 votes were cast
Ballots and Dispositions.
In discussing the relative value of the
testimony of depositions and the testimony
| of the ballots, the majority report says:
Long before the Australian system of
voting adopted it was we'll estab-
lished that where the election returns were
false or imperfect or for any reason they
could not be relied upon, that the ballots
cast at the election were the best evidence
OF how the electors voted; that the ballots
We're the primary and controlling evidence,
while the testimony of the voters was but
secondary. This was so because the ballots
were In writing, and formed a part of the
record of the election
But it is equally we'll settled that before
resort can be had to the ballots, as means
OF proof. absolute proof must be made that
the ballots offered are the Identical ballots
cast at the election that they had been
are In the same condition they were when
cast; that they had not been tampered
with; and that no opportunity had been
had TO tamper with them. The burden of
making this preliminary proof rests on the
party who seeks to use the ballots as cyl
testee."
1t is not alleged that the ballots in this
case were tampered with or that the seal
or the envelope was disturbed but there Is
lntlrnation OF carelessness and of opportu-
nifty for tampering.
Precautions Criticised.
Then proceeding, the report says that
the army of so-called deputy clerks who
testified that they watched the packages of
ballots until the packages We're placed in
the recorders safe 'swore too much"
Every man of common sense" says the
report knows that these packages, left
as the testimony shows they were, careless
ly and loosely for days and nights on the
foor of room of public office open to
the public were not safely and securely
Kept and were subject to being tampered
with In addition to the testimony of these
deputy clerks, the conteStee submitted the
testimony of all the members of the Alta
mont election board except Henry Udy the
republican clerk of the board. Why the
contestee did not call him TO the stand is
mystery past finding out. The contestee
mas offered no explanation. But all the
members of the Altamont election board
VINO did give evidence testified that the
sealed cover containing the ballots was in
the precise condition 1t was when the board
sealed 1t up at Altamont. They also tes-
titled that the ballots were the precise ones
cast by the electors of Altamont and in the
precise condition they We're when cast And
to make their testimony effective, they all
swore that they had voted for the con-
testant at said election"
The report then makes point of the bal
lots having been too carefully guarded for
Identification as a suspicious circumstance
The reason given by these members of the
election board that the ballots recounted
were the Identical ballots cast at the Alta
mont precinct was that two members of
the election board had placed their initials
on the ballots. There was too much meth
Cd, the report says, too much preparation
on the part of this election board, when
viewed in the light of subsequent events, to
entitle what it did on election day, or what
it afterward testified to in reference to the
election, to be of value or entitled to conf
Gence."
A Bad Precedent.
1t Is argued that because the returns
were incorrect that therefore the ballots are
subject to suspicion and are not good testi-
mony, the fact being ignored that the object
of the count of the ballots was 20 determine
the correctness or incorrectness of the re-
turns. The case is argued from surround
ing facts and circumstances and the posi-
bility of suspectng fraud is pointed out,
though fraud itself is not directly alleged.
The proposition laid down in the report
which is apt to prove most embarr assing to
the southern democrats a preced ant for
the future, is made in the statement that
the Australian ballot system destroys the
superior character of the ballots as evil
dence. The report says that before the
adoption of the Australian ballot system an
illiterate voter could get any one to prepare
his ballot for him; that this selection was
voluntary, and that upon such state of
facts and under such circumstances, it
could be we'll said that he had voluntarily
reduced his intention and his action to
writing and that his written expression of
what he did and intended, the ballot, was
the best evidence. 1t was under this sys-
TEN of voting that the rule of the ballot
being the best evidence grew up.
"A different system of voting exists now
almost everywhere" the report says, "and
especially in California. The political parties
no longer furnish their own ballots. An
official ballot is furnished. 1t is retained
inside the polling place; none are allowed
outside. The voter must pass inside of the
polling place and obtain his ballot from an
official of the election board If he is Hitter
ate, or from any cause he is unable to n; AXE
out his ballot, some member of the election
board makes it out for him. He may, or he
may not, have confidence in the official Who
prepares his ballot. The preparation OF his
ballot is NOT his free and voluntary