The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-11-22
WHlTTEMORE'S OPINION
On the Validity of the Late
Election.
ATTORNEY ALLEN T. SANFORD
TAKES ISSUE WITH HIM.
Was Ii n secret BaIIot:-sOme Deci-
sions Bearing on the Case-A Dis
cussion of Interest to the People
Generally.


The question Oh the NdHully VI tiiS
late election has been much discussed
Both laymen and lawyers seem to diff
fer, the difference in opinion frequently
coinciding with their different political
views. The contention that the election
was illegal has crystallized in the opin-
ion of County Attorney Whittemore
pronouncing the election law invalid
and the election held under it of no
force
1 believe that e careful examination
of the authorities shows that Mr.
Whittemore is wrong in his premises
and in his conclusions.
rs this a secret 6allot?" is the ques-
ton that naturally presents itself.
Section &c, chapter So, laws of Titan,
1886, after giving instructions for Vot-
ing, marking ballots, ETC., provides that
the corner shall be sealed down so the
number shall not be visible, and such
seal shall be broken only in case of
contested election. Thus it is seen that
a contested election is condition
precedent 70 examining the numbers.
In the event of a contested election,
how are the numbers and ballots TO be
examined? Are the ballots to be
opened pronliscuously and shall it be
publicly announced how every person
voted?
It is an universal principle that a
statute is to be construed in the light
Of common law-the dictionary Of stat
utory construction.
Al common law it is q well-settled
doctrine that no legal voter can be
compelled to divulge how he voted But
it is also an universal principle that
person who voted illegally has no right
of secrecy, so the courts have in con-
tested election cases, after 1t has been
voted, compelled him TO tell on the Wit
ness stand how he voted.
Valiier VS.. Brake, 81 n. w. $50.
McCrary's Law of Election, S. 1876.
People VS.. Pease, q n. Y As
1t is a fact well known that the class
of people who make a business of vot-
ing Illegally are unreliable and likely
to perjure themselves by swearing their
vote falsely. In order to obvlate the
danger of officers being elected by such
false swearing, in case OF close cleo
tions. the statute has wisely provided
a scheme of numbering every ballot,
so that it may be known to a certainty
how every illegal voter voted and yet
the secrecy of the legal voter is not in
fringed upon.
Inasmuch as there is a great deal of
talk about this not being a secret bal
lot, it is pertinent to ask those who
prcclaim that it is not, if they can tell
from the ballots how a single person
voted. If they cannot do this now, how
are they going to find out, without
committing a crime in wrongfully
breaking the seals.
In light of the common law, 1 do not
see how there can be any question as
to the secrecy of the ballot, because 1t
cannot be lawfully ascertained how
anyone voted, unless it first be proven
that he voted illegally, and such a
voter has no rights to secret ballot;
public policy and the law unite IN de-
claring that it is everyone's right TO
know now he voted so that the result
OF the legal voters may not be jeopar-
died by his Illegal ballot.
Although Mr. Whittemore has in
volxed to his aid the decision
several courts OF high stand
ing. [ submit that a careful eX-
animation OF the cases cited DO not
SUPPORT his contention. The cases of
Rrisbin VS.. Cleary, 26 Mimi and Will
Jams VS.. Stein, IS Ind. SO, are not in
point, because in each case the ballot
was numbered on the back, so the
number was in no wise concealed.
Thus the election judges could easily
tell how everyone voted. The con-
stitution in these states Indiana and
Minnesota) provided that the cleo
ton shall be by ballot" and the courts
construed this as meaning secret bal
lot: so the provision for a secret ballot
in our constitution is simply an en-
bodiment of the common law inter-
probation of ballot" as interpreted by
the courts in these TWO cases. On the
question Of secrecy il must be admitted
that there is a distinction between our
method of numbering and the method
that the supreme courts of Indiana
and Minnesota declared was not secret
Assuming the premises that this is
not a secret ballot, yet Mr.. White
more's conclusion that the election is
therefore invalid and of no force, is
erroneous A secret ballot is a right
voter. and. like most other constitu-
tional rights. may be waived. If the
numbering of the ballots destroys the
secrecy, the voter may insist upon the
election officers depositing his ballot in
the box without numbering, and if
they refuse to do this. he may get al
order from court compelling them to,
or recover damages for depriving him
os the constitutional right of a secret
ballot. The Indiana and Minnesota
cases cited by Mr.. Whittemore were
cases in which a voter sought to re-
cover damages against the election Of
fscers for not depositing his ballos
without mum bering on the back The
courts say that this system of num-
bering makes ii easy to ascertain ex-
actly how anyone voted, and they hold
that a recovery is proper But no
where in the cases is it intimated that
the election is invalid. Nowhere is it
intimated that the individual citizen
may not waive this privilege of Sc
crecy. and, further, the American
cases cited by Mr.. Whittemore simply
hold that the statutory provision in
those cases, in regard to numbering
the ballots, violates a constitutional
right personal to the voter but does
not vitiate the election.
II has been repeatedly held in the
United States that numbering the bal
lots does not invalidate the election. In
Virginia the election officers of some
precincts numbered the ballots with
out any statutory authority Upon a
contest before the committee on cleo
tons in the house of representatives
the committee. with Mr.. McCrary. au-
thor of "McCrary on Election" as
chairman, unanimously reported in
favor of admitting the vote of these
precincts. Tho report says: I'VE are
further of the opinion that the num-
Boring of the ballots cast at an cleo
ton. in the absence of a statute ex-
pressly so declaring, does not of itself
invalidate an election, unless some in
Jury is shown to have resulted to the
party complaining. Although it would
be possible, from the numbering of the
Ballots to ascertain how each person
voted, it is not claimed in this case
that this was done, or that the tickets
were numbered for any such purpose.