The Providence news. (Providence [R.I.]) 1891-1906, 1904-11-21


and conclusive should be compelled I
| give such a certificate 10 a candidat
whose plurality was To the certain know
| edge OF the board, made up OF illegs
votes.
NO PROVISION FOR COUNTING.
II is true that the law nowhere ex
| pressly says that illegal bapots shal
not be counted Doubtless the legisla
ture did not think IL necessary 10 so pro
vide. II probably never occurred 10 then
that any one would contend for con
struction OF an election law which woul'
compel the counting OF a ballot which I'M
same law made Il a crime for voter u
cast.
The petitioner misquotes Section ~ o
Chapter II and perverts its WHOLE mean
Ing by omitting the words which imme
Giately follow those which he does quote
viz: "but II shall be counted for all OF
ces properly marked" These words snow
that the purpose OF the section was not u
enumerate all the classes OF oaHot
which should not be counted but 10 pro
vide that where several different oni
cers were voted for on one ballot, a bal
lot properly and legally marked for on'
office might be included I'm the count
for that office although by reason OF i'm
proper or defective marking 10 might b'
rejected in the count for another ONCE.
Finally II is urged that II is not &c
he presumed that any voter has acted II
violation OF law, and that therefore, ever
II a ballot is found with a Distinguishing
mark upon II, that fact Is not evidence
that the voter made the distinguishing
mark, because some other person may
have made H. The only other person wnc
could make IL is an election officer be
cause no one but the voter and the cleo
ton officers have access 10 ballot until
II reaches the returning board.
BOARD CANNOT PRESUME VIOLA
TION.
But the election officers are sworn 10
a faithful discharge Of their duties. and
this board cannot presume in the alb
sence OF evidence that they have so
grossly violated their oaths as 20 tam
per with the ballots confded 10 their
care. The board must presume, In the
absence OF evidence 10 the contrary. that
the officers designated by law 10 pre-
pare and distribute the ballots and 10
receive, count and seal them and deliver
them 20 the board have been faithful 10
their trust and have not committed
crimes for which the law provides Sc
we're penalties.
And n this presumption Is permissi-
BILE, as II must be IN order 70 give an
election any semblance OF credit what
ever. the responsibility for any distin-
gushing mark upon a ballot must rest
upon the voter. II there is any such
mark upon the ballot when he receives
II. or n he makes such a mark by mis-
take. he can return the vitiated ballot
and receive another.
The effeot and apparent purpose of the
petitioners contention is 10 make this
board a merely clerical body to count
and tabulate the ballots returned 10 II
in whatever form they may be found
and with no power TO inquire into the
legality OF any ballot IL is clear. how
ever, that this board is not so restrict
ed in It's powers. The ample power given
II 10 administer oaths. to summons wit
nesses, to compel their attendance and
testimony. 10 call for the production of
books and papers, To issue subpoena
duces tecum, and To punish for contempt
are utterly inconsistent with any such
contention. Furthermore. the count of
the ballots made by the board is the
only official count for which the law pro-
vides or to which n gives any effect, and
the certificate which Il issues as the re-
suit OF this count Is. by law, made final
and conclusive evidence OF the title to Of
flee OF the person declared elected. The
count made by the modera tors and war
OF the election, except In cases OF loss
or destruction OF ballots. (Public Laws.
chapter 500. section So
These counts are required by law 10
be made Immediately upon the closing OF
the polls and as the wardens and modera
tors know that the ballots are 10 be re-
turned to the state returning board for
an official count and that their own count
Is Of no effect as evidence OF the re-
suit they have little incentive to accuracy
In making the count after n long and
arduous days labor. The general as
sembly has conferred upon this board slI
the powers which the assembly itself
formerly exercised In the counting OF
ballots and in declaring the results of the
election
As II is beyond question that the as
sembly had and exercised the power 10
pass upon the legality OF the ballots re-
turned TO II In making its count. II follows
that this board upon which the assembly
has now conferred all the power which n
formerly exercised itself, possesses the
same power II Is certain that no other
body has been authorized by our laws 10
exercise N. And unless this body does
possess the power there is nothing TO pre-
vent a candidate whose election Is ever
so clearly proved to be dependent upon
Illegal ballots from receiving n certificate
THE BOARDS DECISION.
The board believes that the plain IN
tent of the statute under which this eIec -
tion was conducted is to provide tha I
the only ballots which shall he given ef-
feet TN the election OF a candidate for
representative shall be those which bear
the marks prescribed by law, placed In
their appropriate places opposite the
names OF the candidates. and no other
marks whatsoever
That this was the clear understanding
OF all parties at the time when the law
was enacted Is shown by the rules above
quoted, adopted by the committees Of
the general assembly and approved nv the
general assembly itself almost mme-
diately after the law went into effect
II this board should assume To count
some ballots bearing marks other than
those authorized by law upon the ground
that such marks were placed upon the
ballot with innocent intent and 10 reject
other similar ballots on the ground that
the marks found upon them were placed
there with guilty intent its action in
every case might he open 10 challenge
~ tho ground ~