The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-10-08
FASTER BALLOTS LEGAL.
DECIs ION OF TIE APPELLATH COURT
At RoCHHsTEh
The Court Holds That the Primary Eleo-
N ton Law Does Net Prob ibit the Use Of
tho Faster Ballot Unless by Its Use the
Rnllot Ii Marked for Idantihc ntinn.


tho Faster Ballot Unless by Its Use the
Ballot 10 Marked for Identification.
ROCHESTER,. Oct. THE expected decision
OF the Appellate Division Of the Supreme Court
In the matter OF the contest over the
i've paster ballots cast in the recent
Democratic primary election In the Second
district Of the Ninth ward was handed dowrA
to-day. The decision 10 against POLICE Justice
Ernst. This means that Ernst's opponent
for the Mayoralty nomination. Mayor George
E. Warner. will have eleven delegates In the
city convention, asI against nine for Ernst
Had tho decision been in Ernst's favor he
would have carried the Ninth Ward and each
candidate would have had ten delegates.
But the ost i'm portant effect Of the decision
from a legal point OF view 10 the construction it
places upon a section OF the new primary law
relating to paster ballots. by declaring that they
are legal. The Ernst mon protested several
pastors that were cast for Mayor Warner and
Justice Davy made an order rejecting them.
From this decision Warner appealed The
opinion OF four justices OF tho court 10 written
by Justice McLennan. After reciting the
grounds OF the application and the sections OF
the primary law governing 1t. Justice MoLen-
nan says that II a voter at q primary is not al
lowed to put paster on a ballot 1t amounts
to disfranchisine many ilterate voters. Con-
tinuing. he says:
The law 10 well settled that a statute
which restricts or impnirs the right OF an
elector in the exercise OF the cleo
tive franchise should be strictly con-
strued 10 favor Of the elector. and in such
manner as to secure to him. II possible. the
right Of suffrage 1t is concluded that by tho
provisions OF the primary election law the use OF
pastors is not prohibited, unless by their use the
ballot Is marked for Identification 1t is nm
hat m
o' section seven OF the act. which
provides that no ballet shall be In
any way marked for Identification the
use OF pastors may render the ballots on
which they are placed illegal. Ifit should ap-
pear that a paster OF any kind or mark OF
any kind was put upon ballot for the purpose
OF identifying the Same. clearly such ballot
would fall within the prohibition. 1t would
be OF no siRnifcancs. however. that such iden-
tincation was by paster rather than by the use
OF any other device. II an elector should write
the names OF candidates upon the ballot
and should spell the name OF par.
ticular person wrong for the purpose Of
having such ballot identified. 1t would rendsr
1t void. so If the names written upon ballot
should be arranged In a particular order
for the purpose OF identifying II. that
would be a violation of the statute.
In short. It may be said that any
device adopted for the purpose OF Identifying
ballots casts at a primary election. whether
such device consists of writing. printing.
spelling or In using pastsrs. will render such
ballots Illegal. 1t Is believed. however. that
such purpose must be proven as any other
question Of fact the use Ola pastsr ballot 10
not OF itself sufficient proof Of the fact"
Justice McLenan finds that the inspectors
or watchers did not protest the pastsr
ballot because they were marked for
identification. lut they were protested on
account Of pastors" consequently that these
particular ballots were not marked for identi"'
cation. lie also finds that the paster ballots
coplormed in size. color. weight and texture to
the requirements Of Section u OF the act
A dissenting opinion ia written by Presiding
Justice Harding. who hold that 1T needs no
argument TO demonstrats that a ballot. tho
face OF which has once been printed
upon and covered with names OF
candidates for Office or for delegates.
If covered by means OF n paster. can be iden-
tiGci AMI distinguished from one not 80
made TO carry pastcr. and 1t 10 not
TINT hnIIOt that has once been
use TO carry tho names in print OF one set OF
delegates. which is subject to the further III
cumbrance ~ cArry ng names printed upon .
paster. md that panter attached 10 the ballot.
has been marked FOR Identification"
1t Is probable that the case vii! be taken 10
the Court of Appeals. aud an extraordinary re-
quest made to have It heard out Of
order. 40 that the question may bs
settled once f,r al IN rh!s State. The caucus
Of tho democratic party is to be held next
WcNnPS hay, aud q final decision must he ren-
dcIei before that time.