The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1897-01-12

language of the law, Such ballot shall
then be returned to the voter, 9vho
shall thereupOn deposit the
same in the ballot box with the official
Endorsement of the ballot uppermost"
Sec. &C.
The ballot to be used by the voter
is the one prescribed by this law. none
other could be received deposited or
counted. Sec. %, To be such bal
lot, when it is deposited in the box.
| 1t must have the poll list number of
I the voter written On the corner err
Unless it is so numbered, it is not the
ballot prescribed by the statute and
the judges. may not receive it, The
command Of the act is. 1T shall he the
duty of each and all of the judges OF
/ election to secure the observance Of
/ the provisions of this section and other
sections relative TO the duties of judges
and clerks of election" Sec % And
penalties for a failure to perform their
I duties are imposed. Sec. &C.
The law lays its mandate upon. the
voter also, as follows: Every voter
/ who does not vote or deliver in the
/ manner hereinbefore provided, the bal
! lots received by him from the election
officers, SHALL before leaving the poll
! ing place or going outside the guard
rail. return each such ballot TO the
officer from whom he received the
same. Whoever shall violate any pro-
vision of this section shall be deemed
guilty of misdemeanor." Sec. 81.
In case of the failure to deliver or
distribute the official ballots, or of
their destruction or loss, provision is
made for the use of substitute and I'M
official ballots.-Sec %
Thus it APPEARS that this Official
ballot is an inseparable part of the
scheme of election devised by the leg
lslature 1t must be presumed the leg
fslature intended to provide a secret
ballot, and in its endeaVor to obey the
mandate of the constitution this par
tcular ballot was devised. The pro-
vision Tor mum bering of the ballot is as
much substantial part of the system
as any other of its provisions and
manifestly indicates the intent of tho
legislature to guard against fraud. The
pallot as whole was devised for the
specific purpose in view. and if will
not DO for the court to say that any of
the forms prescribed may be ignored.
II the ballot is not secret it is an I'M
constitutional ballot, and unless the
Illegal feature of the law is so sonar
ated and disconnected from the other
provisions, that with its elimination
1ull effect can be given to the intent
OF the legislature, the whole must fall
IN me, the conclusion is, that the bal
lot contemplated by the election law is
an unconstitutional ballot, under the
decision OF the court, and since if is
impossible to determine that the leg
lslature would have provided this of
nclal ballot without the provision for |
numbering, the ballot must fail. The
ballot is the very foundation of tho /
law OF necessity it is a prerequisite /
10 any lawful election scheme. and all /
the machinery of law designed for
conducting and canvasSing of elections !
are bullded and dependent upon if. If |
IL snail fail for illegalitv then the !
law becomes imperative. and can only |
ne made effective by restoring it to a |
constitutional ballot which shall serve /
TO put in motion and sustain its ma
chinery.
Passing this, however, we are con-
fronted with still another question. The
ballot which is held to be unconstitrJ-
tlonal, was the ballot of the voters of
the state at the election. 1t was the
only vehicle through which the popu-
lar VIII was expressed. None other
was proVlded-none other was used |
Every officer in the state was elected.
every candidate voted for with this
ballot. The constitution saws: All
elections shall be by secret ballot"
rms election was not by secret ballot.
Hence the election was unlawful and
IN effect no election. And this. it is
submitted, is true without reference to
an illegal provision.
MAY BE VALUABLE IN THE FU-
TURE.
Inc decision may be valua BILE in the
uture so as to enable the people to
lold valid elections under the law. by
uniting the numbering of the ballots.
sui what mas that to do with the past
lection? 1t was held under the stat
lite as it is and in compliance with all
u Its requirements. Manifestly under ,
ne decision of the court, the election ,
vas illegal, having been conducted lin
llrect violation of the constitution.
ct, when a citizen whose rights are (
ilrectly involved pointing to the con- I
tuition appeals to the court for re-
Iress, he is answered, 1T is true the :
institution has been violated, but the
aW IN violation can be made effective :
y Judlclal excelsior of some of its q
arts, and your prayer must be denied" d
'ut petitioner was not seeking to pre- +
ent possible attractions of the consti- +
ution IN the future. He was COM q
lalning of past violation of consti- L
utional rights, and when the court :
hlrmed his contention that the ballot t
roVlded by the statute and used in I
ne election was an unconstitutional 2
alot. 1t would seem that the logical C
nd necessary result must be to avoid ?
ne erection me chief justice, ap- i
arently with some hesitation reached i
ne conclusion that the ballot pre- Il
erVed legal secrecy and therefore g
)mplled with the constitution. thus s.
voldlng the complication in which
lie majority is involved. The majority n
fter deciding that the ballot lis not u
scret within the meaning and intent -
the constitution" proceed to say N
hat circumstance should not have the
'rce TO void the act and overturn the "
ectlon. This statement, it seems to o.
e, involves the whole question in N
ter confusion. The court has already ~
ven construction which saves the =.
t and enables valid elections to be HI
ald in the future. To do this. it of al
ecessity decided that 1.-The construction al
1t upon the law by the election Of tt
'ers in accordance with which the a.
ectlon was held. was erroneous and .,
validated portion of the act as W
ing In conflict with the constitu- Ct
)n- mat the ballot was cast honestly oS
beside the question. Suppose the if
atute had provided for viva .voce ea
Jung and the election had proceeded -
that way? This seems to be an eX- ~
eme illustration, but there are no M
Srees of secrecy. The ballot is either ch
cret or 1t is not. If it is not. the ia
Institution is violated and ii is i'm t.
aterlal how or to what extent the c
sclosure proceeds. In the supposed III
Sc would not the suggestion in the 10
lnlon be fully met with the state no
eht, that the intent or bona fides of ad
e voter1ln exercising a constitutional co
lvllege, could not be permitted to in
N