The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1912-08-02
Supreme Court Justices Refuse
to Issue an Order
Removing Roosevelt Electors
From the Primary Ballot.
THEIR ACTION IS NOT FINAL
Case VIII Come Up Again Be-
fore Full Court
In Time to Settle 1t Before the
November Election.

New York, Aug. 2.-The action OF
the Kansas state courts in refusing to
order the names of eight Roosevelt
candidates for presidential electors
stricken from the primary ballot was
partly reversed by Justices Vandevan-
ter and Pitney of the United States
supreme court. While these justices
granted the application of the Taft
men for writ of error directed to
the Kansas supreme court, their de-
cision does not constitute final vic
tory for the regular Republican organ
ization. Under it's terms the right or
the Roosevelt candidates to have
places on the primary ballot will be
decided by the full bench of the su"
preme court when that tribunal holds
its next regular session in October.
Meanwhile, the names of the Roose-
welt men will appear on the ballots at
the Kansas primaries next Tuesday.
The effect of the decision is to leave
the whole Kansas controversy suspeno-
ed until October, when it is expected
tLe highest court will settle it before
the national election.
The proceedings before Justices
vandevanter and Pitney assumed ma
tionaI Importance in view of the ques-
ton involved. This went outside state
political issues and involved federa1
and states rights. Speaking broadly,
this question was whether the choice
of presidential electors was purely a
state matter or could be supervised by
the federal courts. in other WORDS
whether electors were state officers or
The original action was brought by
r. A. Marks and twelve other Kansas
citizens to prevent the names or eight
candidates for presidential electors.
who said that If elected they would
vote in the electoral college for Theo-
dore Roosevelt, from being printed on
the Republican primary ballot MARKS
hi aCGnniqfRG declared tneV
the petition for the designation or the
eight candidates under the impression
that if chosen they would stand oy the
decision of the Republican natlonai
convention. When the eight declared
themselves for Colonel Roosevelt, the
regular Republican organization set
about having them debarred from
| places on the Republican primary pal
| lot on the ground that they had ob-
tanned their places by fraud and mis-
representation.
Issue Purely Political.
The Kansas courts decided that they
had no jurisdiction in this case, since
the dispute was purely political one,
and made no attempts to pass on the
merits of the allegations of fraud.
Neither were these charges considered
by the two supreme court justices IN
their decision. In making their ap-
plication for writ of error, the Tart
men declared that the federal courts
had jurisdiction to prevent the state or
Kansas from depriving any of the citi-
zens of the free right to express their
choice at the polls. They contended
that in case the eight Roosevelt can
didates were chosen, the Taft men who
had signed their petition lost their
right to vote for their choice for presi-
dent.
While this contention formed the
basis of the argument, the success OF
the eight Roosevelt candidates at the
primary would put the regular Repub-
licans, they say, in an embarrassing
situation and endanger the chances OF
their candidates for Ctate Offices by di-
viding the Republican votes between
the Columns headed respectively by the
Roosevelt and the Taft electors.
In deciding not to interfere with the
state primaries, Justices Vandevan-
ter and Pitney declared that the only
way not to injure either party was to
let the. primaries proceed with the
Roosevelt candidates on the ticket and
await the action of the full court It
is understood the court will decide the
case in time to keep the Roosevelt elec-
tors off the ballots in the NovembeE
election in case the latter are defeated
in the litigation. The only possibility
that the court will not have to decide
the case IS that none of the eight
Roosevelt candidates is successful in
the primaries August 6. In all there
are 20 candidates for electors and 1e
will be chosen. Twelve are declared
Taft men. In their memorandum ac-
companying their decision Justices VAN
devanter and Pitney said:
What the Court says.
whether the rights asserted have q
real basis in the constitution or In laws
of the United States, is the criterion By
which we must determine whether the
writ of error shall be allowed. Under
the settled practice, if the justices ia
whom the application is made believe
that the existence or nonexistence of
the rights asserted is involved in seri.
Gus doubt, the writ of error should
be allowed We think that is the situ-
alton here.
The questions raised do not seem To
be determined or settled by any previ-
Gus decision of the United States su-
preTne court. Some of the opinions OF
the court contain expressions which
tend to sustain the contentious of tha
plaintiffs. Whether in view of tha
facts in the cases in which these eXs
pressions occur they should be regard.
ed as deliberate and controlling ought
not to be determined otherwise thar
by the court itself. 1t is conceded thai
the questions are important and o1
large public concern. and we have con.
cluded that those who present theu
are fairly entitled to the judgment q
the court which by the constitution Il
made the final arbiter of all controver-
sizes arising under that instrument. II
this situation we think the writ of e=.
ror should be allowed.
But as courts are reluctant to in.
terfere with the ordinary course d
elections, whether primary or otherwise
as the rights asserted are not clear bui
doubtful and the injury and public in,
convenience which would result from
suparsedpaS or anV Ike order a