The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1908-07-04
KFHOF WRITES ANOTHER LETTER
TO MAYS REGARDING THE PRIMARY

TALLY asceTtained, then the poll is too
large by exactly that number, and
they must be cast out. In casting
them out, the rule laid down by the
court below is sustained by McCrary,
Elections, 3rd Ed Par $50, where it
is said: "Of course, in the applica-
ton of this rule such Illegal votes
would be deducted PrOpOrtiOnately
from both candidates, according to the
entire vote returned for each In
Am. & Eng Encyclop. Law, p 353, il
is said: Where more ballots are
found in the ballot box than there are
names on the poll list, the statutes of
many of the states require the officers
of election to draw out enough ballots,
without seeing them, to make the
number equal to that of the voters.
And, where they have not done this,
| it is probable that no other mode
| would be preferable to that of deduct
| ing from each candidate a mum Der of
votes proportional to his total vote,
compared with the aggregate vote OF
the precinct and the following cases
are cited: Gibbons vs. Sheppard,
Brewst- Pa LIS; Finley VS. Walls,
Cong EIec. Cas-. 367; Platte VS. GoOde,
Id $50. Our statute How Stat. Par
174, provides: If the ballots in the
/
Der the whole number of names of
electors on the poll list, they shall be
replaced in the box, and one OF the
inspectors shall publicly draw out and
destroy so many ballots thereform as
/ shall be equal to such excess Mr.
Justice Cooley in speaking of this
provision of the statute in People vs.
Cicott, Is Mich. 322, 81 Am. Dec.
al. says: AS each ballot is usually
| one of a number designed to be al
lowed to particular candidates, and
| counted against others given to other
candidates, the drawing may Still
work no injustice, since each candi-
| date will probably lose by number
propOrtiOnate to- the relative number
Der of ballots appearing for him in
| the box. and thus the relative proper
| tions will be preserved. This rule,
he says. is based upon the doctrine
| of possibilities While We have no
statute directing the mode of appor-
tionment laid down by the court be-
low, yet the rule, We think, is one
which does no injustice to either can
didate, and in the end carries into
effect, as nearly as may be, the will of
the people expressed at the polls"
Another very modern and much
Iquoted authority used the following
language: In the absence of evil
dence that Illegal votes cast at an
detection were given for any particular
candidate it is not error to appOrtiOn
them among the several candidates.
and deduct them pro rata from their
respective scores
In connection with this, l may
quote from the statutes of our own
state, the following: The ballots
shall be first counted, and if the num-
Der of ballots shall exceed the num-
Der of persons who shall have voted,
as may appear by the poll list kept
hy tha-nInI-z-Gas ann one
OF the inspectors shall publicly draw
out and destroy unopened and unex-
ahmed as many of such ballots as
snail be equal to such excess"
in quoting from these authorities. if
Is not my purpose 10 present A brief.
this l shall leave to my ATTORNEYS.
nave referred to these authorities
merely for the purpose of showing
Ihat there Is no real reason for your
becoming so shocked and astonisbed
at my propositions, and that il is NOT
a crime to reject illegal votes i'm
the manner proposed, but that a. fail
@ure to do so is in violation of all the
law, as written both by Judges and
text writer's.
1t may be asked why it was Thought
necessary TO make these propositions:
the only reason for doing so is the
fact that the primary election law has.
Dy vestlng the committee with the ex-
elusive power of the courts in deter
mining contests, deprived the courts
or jurisdiction, and while the law has
vested In the committee the Jurfsdic-
tlon OF the courts, it has left the com
mlttee without power to issue legal
process to compel the production of
papers and the attendance of Witness
however. l have no doubt that
s s De aDle to furnish the commit
tee some of the evidence which 7 70
quested You to join me in procuring
Respectfully,
J. WALTER KEHnE