Windham County reformer. (Brattleboro, Vt.) 1901-1906, 1906-03-16
CANNOT Be PROSECUTED
ACKNOWLEDGEMENT ON JUDGE
wHEELER's LAW BREAKING.

Did Not Violate Secrecy Of Ballot
Law Provides No Penalty for Any
thing Else-what State Papers Say
About Judge whoeler's Action.
Attorney. General Clarke q. Fits
gave 10 DIR. II. ID. Holton Monday, his
opinion on the question raised by Bal
lot Clerk John j. Eckels, rs to the le'
gality Of the method of Hoyt IL,
Wheeler, Judge of the United States
court for the district Of Vermont, in
marking his ballot at the recent Brat
tleboro town meeting Judge Wheeler
did not 90 into one Of the booths pro-
vided under the Australian ballot law,
but marked his ballot on the guard
rail outside, as he has done in previous
years. Mr.. Eekels protested to Mod
orator Holton, who referred the ques'
ton to the Encouragement. Follow
ing is the attorney'general's reply,
containing his opinion;
Dr. II. d. Holton.
Brattioboro. VT.
Dear Sir--I have your letter OF March 7.
1900, enclosing paper addressed to you az
moderator OF the Brattleboro town meeting,
signed by J. J. Eckels, making complaint
against Hon. II. II. Wheeler. relative to the
conduct Of Judge Wheeler in marking his bal
lot, as he voted in the Brattleboro town meet
ing held on March 0, 1905.
This complaint raises no question as TO
the result OF the election Mt which said bal
lot was cast and is not in the nature OF q
challenge OF Judge Wheeler's right TO vote,
so take Il that IL is intended to be com
plant against him charging him with viola
ton Of the law.
Mr.. Eckels the complainant, was one OF
the election officers at said town meeting.
Section III. Vermont Statutes,
II any violation Of law came to his atten'
ton It was his duty to prosecute 1t,
Section 6i2l. Vermont Statutes.
That duty required him to make complaint
either TO the town ,.rand juror or the state q
attorney not TO tie moderator, but as
am a prosecuting ohcer, and the complaint
has come into my hands, ] will take notice
Of II, and through you advise the complain
ant The complaint charges that Judge
Wheeler marked his ballot on the guard rail
rather than in one of the booths or com
partments which were provided according to
law. The law relative to preparing and
marking ballots is contained in Section 1875,
Vermont Statutes. Section l2s, Vermont
Statutes makes further provision as to what
a voter shall do with his ballot when 1t has
been properly marked Section l26. Vermont
Statutes reads:
''On receiving his ballot, the voter shall
forthwith and without leaving the polling
place, or going outside OF the guard rail, re-
tire alone to one of the booths not occupied
by any other person, and prepare his ballot.
etc"
Section 12s, Vermont Statutes provides;
Before leaving the booth, the voter shall
fold his ballot without displaying the marks
thereon, and deliver the same, so folded. to
the presiding officer, etc.
There are numerous other provisions In the
law as to conducting elections, which pro.
vide what shall be done by the voter and by
the officers.
Tn order to determine what Of these pro-
visions are directory and what are made
penal it is necessary to examine the statute
relative to offenses against the purity OF
elections.
Chapter 224, Vermont Statutes.
For all provisions of law as to penalties
for violating the election law are contained
in said chapter The penal statute relating
to the subject matter Of this complaint is;
This section was a part Of the original
ballot law of 1890, and of the law revising it,
Act No. j, Of 1899, but in the revision Of
the statutes this section was put in its prop.
err place in the chapter Of offenses against the
purity Of elections. Said Act No. /, Of 1892,
is entitled, IAN Act to Promote the Purity
of Elections Secure Secrecy of the Ballot,
and Provide Ballots at Public Expense. ETC."
Said section 512l. Vermont Statutes pro-
vides
IA voter who, except in case Of assistance,
allows his ballot to be seen by another per-
son with the apparent intention of letting 1t
be known how he is to vote, or makes
false statement to the presiding officer at the
meeting as TO his inability to mark his bal
lot, or a person who interferes with voter
when inside the guard rail, or who, within
the building in which the voting is proceed
ing, endeavors to induce a voter to vote for
a particular candidate, shall be fined fifty
dollars.
There is no provision OF law penalizing any
act relative to the conduct Of voter in
marking or folding his ballot. 1t will be
seen that the purpose aimed at is secrecy Of
the ballot and the penalty is imposed simply
for any act which violates that secrecy.
There is no penalty imposed for marking a
ballot on the guard rail or in ones hand or
anywhere else, so long as the voter doesn't
allow his ballot to be seen by another per-
son, with the apparent intention of letting
il be known how he is to vote. There is
no punishment provided for one who fails to
fold his ballot, or for one who makes mis-.
take in marking his ballot, nor for the num-
erous provisions of the law which direct what
shall be done by the voter is there any pen.
atty imposed except as provided in said Sec
ton 5121.
1t will be seen that there is no legal
ground for complaint against Judge Wheeler
in the premises
Respectfully submitted,
Clarke c. Fits,
Attorney General.
Concerning Judge Wheeler 8 action,
the Burlington News says:
The Hon. Hoyt H. Wheeler Of Brat
tleboro is man of set purpose and
mind. He does not be-
lieve in the secret ballot of this state,
known as the Australian ballot, and
makes it point at each election to
mark his ballot in public rather than
in the booth secretly. We rather ad-
mire Judge Wheeler's courage and in
but we cannot say so much
for his Judgment. The law provides
for secret ballot, and directs that it
shall be marked secretly. We think