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

The defendant claims that these
should not be counted because such
double marking constitute distinguish
ing marks, within the meaning of the
statute. And further because they are
vicious under the provisions of the
statute which provides that IF a voter
marks more names than there are per
sons to be elected to an office, his vote
shall not be counted for such office"
The court, however, is of the opinion
that neither of these claims are we'll
founded That in this case the voter did
not mark more names than there were
persons to be elected to an office. They
only marked the same name more times
than was necessary.
The majority of the court, while not
agreeing upon the reasons therefor, ar
rive at the same conclusion that this
class of ballots are not invalid because
of being double marked.
The chief justice and Mr.. Justice Pol
lock arrive at this conclusion from the
following reasoning: Section 25 of the
laws of 1897, specifically points out
certain ballots that shall not be counted
If found marked in the manner forbid
den. This list prohibits the use OF ink
or pencil of any other color than black
with which to mark the ballot, and re-
quires by reference to section p, that
the mark used to distinguish the voters
choice shall be a cross, and they think
that this list of acts so enumerated is
exclusive of all others. The express
mention of them for this purpose imply
the legislature intended that ballots
should be excluded for other reasons
than these mentioned and the voter thus
diSfranchiSed, it would have said SO
and not left it to inference. There be-
ing no statute requiring the rejection
of ballots because of distinguishing
marks, no ballot may be rejected be-
| cause of such marks True, section u
of this law makes the act of placing
such marks upon the ballot penal
one, and while the general law of the
20. S fT,r,A NIrat ton ~
a criminal sta tute is a nullity, this rule
does not here obtain for the reason that
| it is overcome by the stronger one, that
| the legislature having designated GER
| tain ballots that must be rejected, that
! those are the only ones that can be
rejected This view will be found well
| supported by the following authorities
| wherein the provisions of the Australian
| ballot system have been construed and
applied: Wigmore Australian ballot
system, End, Ed, 1913 ct sea-; People ex
| rel Fenny " Bd. of Canvassers, 156 N.
Y SO; Attorney General V. Glaser, 102
Mich. 406; Sawin V Pease, Wyo. 90;
| Orr V. Faucet, II Wash. 1873, 40 Pac. 349;
! Nichols VS.. Barrick, 1 Colo. Dec 1858; 62
Pac POP Clearly under this reasoning,
| the double marked ballots must be
counted.
Mr.. Justice Smith is of the opinion
| that no right to have the vote counted
| in a candidates favor ought to spring
| out of a criminal act on the part of the
voter, so that if it appears that mark
/ 4laS Dccn pldceQ upon a given
| the purpose of distinguishing it, that
such ballot cannot be counted. The
| placing of names or initials upon the
| ballot, the making of cross marks in
| the squares opposite the blank spaces
with no names written therein, both
| cited as instances of such distinguish
ing marks, these making it apparent
that the voter intended to violate the
law. But the double marking of the
same name, where that name has been
printed twice, and thereby an implied
l fn ha Trfn to co
mark, is not of itself such a distinguish
ing mark. While section 27, chapter 129
of the laws of 1897, makes it a penal act
for a voter to place on his ballot amy
character or mark for the purpose of
Identifying said ballot he feels sure
that court would sustain a convic-
ton under this provision of any one of
the 176 electors who voted these double
marked ballots, upon their admission of
the fact. So that because these voters
would not be liable to the punishment