The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-01-11

that the ballot shall not be counted if
marked as therein forbidden. AS to the
so-called distinguishing marks men
toned in section 81, the majority say
they are just as fatal if they are dis
tinguishing marks, but to be distinguish
ing marks that shall be obnoxious to
the law, our brethren, Justices Smith
and Ellis, say they must not only be
marks that distinguish, but that the
judges by looking at them must in some
unexplained and occult manner be able
to decide therefrom the intent of the
voter, by the use of such distinguishing
marks to distinguish. This interpreted
it is not eonsonant with the language of
the statute. The inhibition by the
statute is against the counting of the
ballot when any person shall mark or
fold his ballot so that il can be dis
tinguished.' If the marking or folding
is of such a character that from it the
ballot could be distinguished, then it
may not be counted. The ban of the
law is upon the ballot if it is marl0
or folded so that it can be distinguish
ed: second, with this Interpretation the
law is entirely without force and can
not be administered with certainty. One
judge may look at ballot on which
are distinguishing marks and say,
do not think that the voter intended by
this mark to distinguish the ballet, an
other judge looking at the same ballot
may come to a contrary conclusion.
such variance.
THE voters intention in this matter
must be gathered from what he does.
If the mark is one so that it can be
distinguished, then it is a distinguish
ing mark. If the voter does not know
how to mark his ballot. sworn assist
ants are provided. If he spoil his ballot,
another can be obtained. How small a
percentage of voters there are who do
not know how to vote under this sys-
TEN, is shown by the fact. that in the
about per cent of the votes cast are
involved in this controversy. This
per cent of voters better be disfranchis-
ed than that the ballot law be despoiled
of its safeguards
Our brethren have brought the prin-
efple for which they stand-that of ar
irving at the intention of the voter
from the old methods. Before the en-
actment of the reformed methods of
voting, commonly called the Australian
ballot laws, the intention of the voter
was the solvent which was applied to
all difficult questions. unutterable con-
fusion was the result Under the new
law the intention may be found only
in the voters act.
ballots are SO marked that they can be
distinguished. That there are 176 of
them rather than one does not change
their character. They should not be
counted because the law forbids the
counting of ballots with distinguishing
marks. That in this case there ara so
many does not matter. In some other
election there might not be so many
1t is a rule which is being established
and not particular application"
Justice Cunningham quotes the fol-
lowing decisions of other courts in sup
port of his contention: Attorney Gen
eraI VS.. CHASER, 102 Mich. 406 and 400;
Franham ks. Boland, sc Pac. 201; and
the minority in the New York case,
vassers. He then continues:
THE difficulties with which our
brethren have struggled in the applica-
ton of their intention of the voter
Nv frof a7 he
character of that theory. BY way of IL
lustration We cite few noticed as the
count proceeded in this case:
"A cross mark after the name of
either Hughes or Parker, and also one
in the square on the independent ticket
without name, was thought to indicate
purpose to distinguish, while a cross
after the name of Parker wherever 1T
appeared on the ballot did not. A cross
partially obliterated by scratching with
black lead pencil Is held not to be a
distinguishing mark, still further
scratched so that the cross is entirely
obliterated and the ballot indicates to
the discerning mind bad purpose. If
the scratching still further proceeds
a knife, so that a hole is left in the
paper where the black spot had been,
we are able to declare-by seeing
through it-that the ballot was not
thereby intended to be distinguished. A
cross mark to the left of a name par
TALLY era sed distinguishes a ballot, but
d ike marx IN one OF the squares 10
the right of Parker's name does not.
A single stroke in the square after
Hughes name makes a bad ballot, but
a like stroke in one Of the squares after
Parker's name does not, providing a
good cross IS found in the other square.
The intention of the voter is found
to be bad If he makes a cross outside
of the printed square, the statute not
specifically requiring 1t to be made in
the square. name or initial written
on the ballot causes it to be rejected,
unless by a comparison with other ini-
tails on the ballot, supposed to be those
of an election judge. and by looking at
the words sworn ballot also written
thereon 1t shall be decided that prob
ably the name was written there by the
election judge. II is decided that the in
tention of the voter who deposited this
ballot
Alb ert Parkerzcn
was all right; while the voter who de-
rosite6 this one
O.WF. Huohesm