People ex rel. Williams v. Cicott

Campbell J.

The jury sworn to try this cause have found a verdict that defendant received the greatest number of votes for the office of sheriff of Wayne County. A motion is now made for a new trial, based on legal rulings complained of, and on the ground that the verdict was against evidence.

The chief controversy upon the trial, as well as on this motion, has arisen out of the alleged reception on either side of votes from unqualified persons. These voters are alleged to have been disqualified respectively by non-age, non-residence, or mental incapacity. Other controversies also arise which will be referred to in their place.

The first inquiry, therefore, is, whether an election can be defeated as to any candidate by showing him to have received illegal votes.

The authorities upon election questions are in this country neither numerous nor satisfactory. In England, where votes are given viva voce, it is always easy to determine how any voter has given his voice. And in some states of the ITnion, a system seems to prevail of numbering each ballot as given, and also numbering the'voter’s name on' the poll *295 list, so as to furnish means of verification when necessary. It has always been held and is not disputed, that illegal votes do not avoid an election, unless it can be shown that their reception affects the result. And where the illegality consists in the casting of votes by persons unqualified, unless it is shown for whom they voted, it cannot be allowed to change the result.

The question of the power of courts to inquire into the action of the authorities in receiving or rejecting votes is, therefore, very closely connected with the power of inquiring what persons were voted for by those whose qualifications are denied. It is argued for the relator that neither of these inquiries can be made.

No use can fairly be made in such a controversy as the present, of decisions or practice arising out of any system of open voting. The ballot system was designed to prevent such publicity, and not to encourage it. And the course adopted by legislative bodies can not be regarded as a safe guide for courts of justice. There is little uniformity in it, and much of it is based on English precedents, belonging to a different practice. The view taken of contested elections by these popular bodies, is not always accurate or consistent with any settled principles.

There is no case, .so far as I have been able to discover, under any system of voting by closed ballot, which has held that any account could be taken of rejected votes, in a suit to try title for office. The statutes here, and probably elsewhere, require the election to be made out by the votes given. But it is plain enough that in most cases it would be quite as easy to determine for whom a rejected voter would have voted, as for whom any other actually did vote. In many cases it would be easier, because the vote is always ready and tendered, with better opportunities of observation than are given where it is received and deposited. But the element of uncertainty has been regarded as sufficient to cause the rejection of any *296 such, inquiry, and in most cases, probably, it would not be admissible under the statutes. But the policy which leads to this result must have some bearing upon the construction of the whole system.

So far as I have been able to discover, by means of the somewhat imperfect indexes on this head, there is but one case in which the decision has turned upon the propriety of allowing inquiry into the qualifications of voters, and the identification of their tickets when claimed to be disqualified. That case was the case of People v. Pease, 27 N. Y. 45. In the Supreme Court the judges, although arriving at a general result, were equally divided on this point. In the Court of Appeals the judges elected to that tribunal were also equally divided, and a majority of the Supreme Court judges belonging to it by rotation turned the scale, and decided that the inquiry was proper. The decision was based chiefly upon English authorities, the previous New York decisions having turned principally on other errors, which rest upon somewhat different grounds.

New York, so far as may be inferred from the absence of decisions elsewhere, seems until recently to have been the only state, preserving the ballot system, in which the right to office by election is open to examination on the merits to any considerable extent. The courts of that state have gone further than any others in opening the door to parol proof. Some of the western states have, upon the authority of the New York ca'ses, permitted some of these matters to be litigated, but they are not in any majority. And it is quite manifest that the decisions have not in general acted upon any careful consideration of the important questions of public policy underlying the ballot system, which are so forcibly explained by Denio, O. J. in his opinion in People v. Pease. And it is a little remarkable that in New York, while so many doors have been opened by the decisions, the law requires all the ballots, except a single specimen of each kind, to be destroyed; thus leaving *297 the number of votes of each kind, in all cases, to be determined by the inspectors, and rendering any correction impossible. I think the weight of reasoning is in favor of the view of Judge Denio, that no inquiry can be made into the legality of votes actually deposited by a' voter, upon any ground of personal, right as an elector.

The reasons why such an inquiry should be prevented do not necessarily rest on any assumption that the inspectors act throughout judicially, although under our registration system that objection has a force which would not otherwise be so obvious. Neither do they rest in any degree upon the assumption that one rule or another is most likely to induce perjury — as very hastily intimated in People v. Ferguson, 8 Cow. 102. But a very strong ground for them is found in the fact that our whole ballot system is based upon the idea that unless inviolable secrecy is preserved concerning every voter’s action, there can be no safety against those personal or political influences which destroy individual freedom of choice.

It is altogether idle to expect that there can be any such protection where the voter is only allowed to withhold his own oath concerning the ticket he has voted, while any other prying meddler can be permitted in a court of justice to guess under oath at its contents. If the law could permit an inquiry at all, there is no reason whatever for preventing, an inquiry from the voter himself, who alone can actually know how he voted, and who can suffer no more by being compelled to answer, than by having the fact established otherwise. The reason why the ballot is made obligatory by our constitution is to secure every one the right of preventing any one else from knowing how he voted; and there is no propriety in any rule which renders such a safeguard valueless.

It has always been the case that the rules of evidence have, on grounds of public policy, excluded proof tending to explain how individuals have acted, in positions where *298 secresy was designed for their protection or that of the public. No grand juror could be permitted to disclose as a' witness the ballots given by himself or others upon investigations of crime; informers can not be compelled to disclose to whom they have given their information; and many official facts are denied publicity. In all of these cases, the rule is not confined to one person any more than to another, for public policy is against publication from any source. And if, as is clear, a man is entitled to keep his vote secret, it is difficult to see how any testimony whatever can be allowed, from any source, to identify and explain it.

The statutes contain some provisions bearing upon these topics with considerable force. By section 47 of the Oomp. L. every voter is compelled to deliver his ballot folded, and by section 52 the inspector is prohibited from either opening or permitting it to be opened. .

The devices adopted for creating different appearances in the ballots of different parties are. such palpable evasions of the spirit of the law, as to go very far towards destroying the immunity of the voter, and in some states it has been found desirable to attempt, by statute, the prevention of such tricks; but the difficulty of doing this effectually is exemplified in People v. Kilduff, 15 Ill. 492, where the evidence seems to have shown that a uniform variation may be entirely accidental. Unless some such difference exists, it would be idle to attempt any proof how a person voted; and it would be better to do away at once with the whole ballot, than to have legal tribunals give any aid or countenance to indirect violations of its security. And the evidence received in the present case exemplifies the impropriety of such investigations. In some instances, at least, the only proof that a voter, complained of as illegal, cast his ballot for one or the other of these candidates, was that he voted a ticket externally appearing to belong to one of two political parties, and containing *299 names of both state and county officers. To allow such proof to be received in favor of or against any particular candidate on the ticket, is to allow very remote circumstances indeed to assume the name of evidence. And the necessity for resorting to such out of the way proofs, only puts in a clearer light the impropriety and illegality of entering upon any such inquiry, when the law sedulously destroys the only real proofs, and will not tolerate a resort to them. And the whole state is much more interested than any single citizen can be, in emancipating elections from- all those sinister influences which have so great a tendency to coerce or deceive electors into becoming the mere instruments of others.

But there are further provisions bearing more directly on the propriety and necessity of allowing no inquisition into individual votes.

County officers are among those included under section 31 of the compiled laws, which declares that “the persons having the greatest number of votes shall be deemed to have been duly elected.” The law does not confine this to votes cast by authorized voters, and can only be applied to votes cast and recorded in the manner provided by law. And although this section, standing alone, might be open to construction, yet, when the whole law is taken together, there are provisions not to be reconciled with any rule allowing single voters and their votes to be made the subjects of inquiry. It will not be denied that any inquiry into the legality of a particular voter’s qualifications, after his vote has been cast, is of a strictly judicial nature. And it can not be proper or legal to allow such an inquiry in one case and not in another. But it will be found not only that the rejection of votes from the count is required to be in such a way as to preclude any consideration of the person giving .or putting them in, but that there are cases where even a legal inqrdry into the ballots themselves is prevented.

*300 In the first place, when two or more ballots are so folded together as- to present the appearance of one, and if counted will make the ballots exceed the names on the poll list, they are to be destroyed. — See. 61. And whenever, for any other reason, the number of ballots found in the box exceeds the number of names on the corrected poll lists, the inspectors are required to draw out and destroy unopened a number equal to the excess. — Sec. 62-This is, of course, upon the .assumption that the excess has probably been caused by fraud, -and assumes that no man’s vote ought to be counted unless the testimony of the poll lists shows that he actually handed in his ballot.

It is, therefore, altogether likely, upon any theory of probabilities, that in drawing out these extra ballots they will really be ballots lawfully put in, and this probability is in the ratio furnished by a comparison of numbers between lawful and unlawful votes. In other words, it is more than likely to punish the innocent instead of the guilty. The true method of arriving at the truth would be to inquire what vote each voter on the list actually cast, and destroy the remainder. The absurdity of this process upon such a large scale is such as to need no pointing out. But unless something-very like it is done in such a case as the present, the result obtained by any partial inquiry will be no better than guesswork. Where votes are thrown out, no one can tell whether the illegal voter whose vote is sought to be assailed has not already had his vote cancelled. The adoption of the principle of allotment is the most sensible and practical measure which could be devised, and I can not conceive how it can be improved upon by any subsequent search.

But when the inspectors have made their returns to the the county canvassers, and by those returns, a tie vote appears between two or more candidates who are highest on the list, their right to the office is to be determined by lot, and the person drawing the successful slip is to be “deemed *301 legally elected to the office in question,”— §§ 76, 132, 133. In case tlie state canvassers (who can only count the votes certified to them) find a tie vote, the Legislature have power to choose between the candidates.— Const. Art. 8, § 5. In these cases there can be no further scrutiny, and in the case of state officers, if such a scrutiny were had, no end could be reached within any reasonable time, and there would be a practical impossibility in attempting to conduct it in any time within the official term, or to approach accuracy in a count of some thousand or more of ballot boxes before a jury. Yet state officers are not less important to the private elector, and, of course, are not to the community at large, than local. And the nearer a vote approaches a tie, the more likely it is that a rigid scrutiny might change its character. There is no more reason for preventing investigation behind the ballots in the one case than in the other.

The statute also takes very efficient measures to prevent any needless litigation, by shutting out any preliminary resort to the means of information. If the officers do their duty, no one else can ever know whether their count is correct or not, until a suit is brought and issue joined upon it. The ballots are required to be sealed up, and not opened except for the inspection of the proper authorities in case of a contest. — § 65. The only ballots open to public inspection are those which are rejected upon the canvass for defects apparent on their face.— § 65. These ballots are not sealed up with the rest, but are filed. While, therefore, it can be determined by inspection whether votes which have been thrown out should have been counted, the law does not seem to favor any unnecessary disturbance of the official returns, and any one who assumes to dispute an election is compelled to begin his suit before he can have access to the means of proof. This is not the usual course of litigation, and the rule has a strong bearing upon the policy to be deduced from the law.

*302 Under our statutes there is no general 'provision which makes the canvass for local officers conclusive in all cases, and, therefore, the rule is recognized that the election usually depends upon the ballots, and not upon the returns-These being written and certain, the result of a recount involves no element of difficulty or ambiguity beyond the risk of mistakes in counting or footing up numbers, which may in some respects be more likely in examining the ballots of a whole county, than in telling off those of a town or ward; but which involves no great time or serious disadvantage. But the introduction of parol evidence concerning single voters in a considerable district can rarely reach all cases of illegality effectually, and must so multiply the issues as to seriously complicate the inquiry. And when we consider that for very many years legislation has been often modified for the very purpose of suppressing illegal voting, and when we know that hundreds of elections must have been turned by the ballots of unqualified voters, the absence of any body of decisions upon the subject is very strong proof that inquiry into private ballots is felt to be a violation of the constitutional safeguard on which we pride ourselves, as distinguishing our elections from those which we are wont to regard as conducted on unsafe principles.

No system can be devised which will prevent all illegal voting. But it can not be said our legislation is not as likely to shut it out as any means open to judicial control would be. The registration law forbids the board from recording any name of which they have well-founded doubts, and it is practically impossible for any stranger to succeed in defrauding the law, with the publicity given to all the proceedings. "Where a person - applies for registration on election day, the inspectors act upon discretion, and are not compelled to admit a vote unless satisfied of its legality. The challengers on both sides, as we all know, canvass every district beforehand, and expect to challenge every one who is not known. While the inspectors can not reject a *303 registered voter who takes the proper oath, yet the means of previous inquiry, and the imminent risk of detection and punishment, have reduced the dangers of illegal voting within very narrow limits. I do not see bow the law could go further, and allow a scrutiny of single ballots, without violating the constitution, and I think no such intention is fairly deducible from any of our statutes.

I am, therefore, of opinion that the election must be determined solely by the ballots received according to law; and that where the election proceedings are not irregular, and the law has been complied with in correcting the lists and preserving the ballots, the means of determining the result must be in the main arithmetical. The present case, however, presents some points arising out of an excess of ballots in some precincts, an alleged failure in one town to preserve the box in security, and questions concerning the propriety of counting some slips and imperfect tickets.

The most important inquiry among these is what effect the excess of votes over the names of voters appearing on the poll lists has upon the election in the township, or ward, or in the county. v

This can only be determined by ascertaining what the statute has provided concerning the conclusiveness of these lists.

Under the registration law, the inspectors of election are required to keep before them the registered list of voters, and not to receive the vote of any person not registered.— Laws, 1859, p. 488. This renders necessary some system of checking, to prevent double voting; and while the law does not prescribe it, the evidence shows it was resorted to in this case, and seems to be a practical necessity. Two clerks of election are also to be appointed, whose duty it is to keep separate and independent lists, in order that in case of doubt one may furnish the means of correcting the other. At each adjournment, as well as at the final closing of the polls, these lists are to be compared, and any *304 mistakes in either corrected by the decision of the board, so that they shall be made to agree, before any further business is done, and before the ballots are counted or examined.— Comp. L. §§ 44, 53, 54, 59, 60.

Before the election commences, the ballot-box is to be thoroughly examined, to be sure that nothing remains in it, and precautions are provided against any subsequent unauthorized opening' — ■ § § 51, 55, 56.

When the poll lists are made to correspond, the ballots are to be counted without opening, “ except so far as may be necessary to ascertain whether each ballot is single: and if two or more ballots shall be found so folded together as to present the appearance of a single ballot, they shall be destroyed, when the number of ballots shall be found not to agree with the poll lists, as provided in the next section.” This directs that, “if the ballots in the box shall be found to exceed in number the whole number of names of electors on the poll lists, they shall be replaced in the box, and one of the inspectors shall publicly draw out and destroy so many ballots therefrom, unopened, as shall be equal to such excess.” — § § 61, 62.

“The ballots and poll lists agreeing, or being made to agree, the board shall then proceed to canvass and estimate the votes, and they shall draw up a statement of the result, and cause a duplicate thereof to be made, which statement and duplicate shall be certified by the' inspectors to be correct, and shall be subscribed with their names.” —§ 63.

The statute contemplates that every ballot found in the box in excess of the number of names on the poll-lists, got there by fraud or accident, and does not represent a voter. The duty of the inspectors is peremptory, and unless they perform it, the consequence must be that the number of votes which belong to each candidate out of the only ballots which the statute regards as actually delivered in, must remain in uncertainty. And, inasmuch as no one can be considered elected who cannot be shown to have received a *305 plurality of the statutory ballots, and as votes in excess of the poll-lists cannot be counted in favor of any one, and no process exists whereby it can be known for whom the fictitious tickets were intended, this uncertainty may lead to the most serious results. Various theories have been suggested as to the influence such excess should have upon the election. One is that it invalidates every election in which the vote of the precinct is to be counted. Another is that it annuls the vote of the precinct in which it occurs. And a third is that it only affects such elections as would be turned one way or the other by counting the excessive votes in favor of one or another candidate. There is no good reason for holding elections void for such excess, where it cannot affect the result. No voters who have honestly voted ought to lose their ballots, unless it is impossible to give them effect. And where there is such a plurality in favor of any candidate, that he could afford to allow these doubtful votes to his adversary, and still be in advance of him* there is no difficulty in perceiving that he must have been voted for by a plurality of all who east their ballots, and his election should be established. But where the plurality is so small that the excess would turn the scale if allowed to the opposing party, it cannot be shown that either has a majority, because no one can tell what ballots were improperly introduced, and therefore it cannot be determined who would have been benefitted by their exclusion. An election cannot be allowed by law to depend on an uncertainty. The majority must be susceptible of-proof.

There is no room in such a case for the application of probabilities, for there is nothing whatever on which to base them. In State of Ohio v. Ritt, Am. L. R. Dec. 1867, p. 88, and in the Penn Dist. Elect. 2 Pars. (Pa.) R. 533, an unauthorized closing of the polls was held to avoid an election; and in the Locust Ward case — 4 Pa. L. J. 341 — it was held that if polls were kept open too long, and the votes cast during the excessive period were enough to have possibly *306 changed the result, the election must fail, because no inquiry could be allowed into the individual votes.

If in the present case any such' uncertainty exists, the election must be deemed to-have miscarried, and must have the same result as if there had been no election. As the case was presented on the trial, this consequence would follow. In the Sixth Ward, it appears by the count that nine votes were found in excess of the poll lists. In the Seventh Ward there were seven. Thus, as now appearing, there are sixteen votes which cannot be counted; and this number would, as the case now stands, turn the election. But, as upon a new trial, it is impossible for us to determine how the facts may appear, it will become necessary to consider some further questions which will "then be presented.

In the town of Dearborn, the comparison of ballots upon the trial showed a different result from the original return of the inspectors. Instead of sealing up the ballots, as required by law’ (§ 65 ), they were thrown back, open, into the box, which was also left unguarded except by an ordinary lock. The Court charged the jury that inasmuch as the ballots had not been preserved in the manner required by law, there was not the same certainty of their correctness which the law would have otherwise presumed, and it was, therefore, left to them, as a matter of fact, whether they would rely on the count or on the inspectors’ return as most reliable. This course was the proper one under the circumstances. The original count by the inspectors is open and public, and made in the performance of a sworn duty. It furnishes presumptive evidence, until rebutted by a new count upon a legal investigation. The sealing and securing of the ballots is deemed essential by the statute to prevent fraud; and while we held, in People v. Sackett, 14 Mich. 320, that such a neglect would not avoid an election, yet it throws enough suspicion upon it to render it subject to a close scrutiny, and the jury must, therefore, determine the matter. In regard to the slips concerning which a controversy *307 has. arisen, I think that unless a person has so pasted on his slip as to show beyond question for whom his vote is cast for a particular office, it cannot be counted. Where it is so placed as to show upon the face of the ballot two distinct names for the same office, it comes, I think, within the express provision of the statute concerning double votes, which can seldom be given except by this mode ( § 48). But if the name is placed above the name of another candidate for the same office, so as to partially obliterate it, I think that would be sufficient to show an intent to vote against the one and for the other. And the omission of the word “for” before the office cannot be material, as the description of the office, even in an abbreviated form, if unequivocal, must be held sufficient. — People v. Matteson, 17 Ill. 167. Upon this principle, the slip in Monguagon should not be counted, but if found attached to the edge of a ballot would make it bad for duplicity. So slips containing only certain parts of a surname should in like manner not be counted as if they had been perfect. The voter’s intention must be expressed in favor of some -one, and half or two-thirds of a name cannot, unless idem sonans, represent the whole.

But a more important inquiry arises concerning the allowance of testimony to show that votes cast for E. V. Cicott, E. B. Cicott, and G. O. Williams, were designed for Edward Y. Cicott, and Gurdon O. Williams. It was held by this Court in People v. Tisdale, 1 Doug. R. 59, that votes cast for persons by their initials could not be counted as if giving the full name. In People v. Higgins, 3 Mich. 233, a similar ruling was made. Between those decisions the election laws were twice revised, and no change was made on this subject. The law has been acquiesced in. In New York the acquiescence of the Legislature in the opposite rule was considerably relied on in People v. Cook, 8 N. Y. 67. This would seem to render it improper to disturb the rule unless upon the most urgent grounds, and unless *308 it is one leading to very bad consequences. It is not claimed that the inspectors or canvassers can make any inquiry into the identity of initials with full names. If this is done at all it must be done in courts. The effect of such a doctrine would be that the statements and canvass which the law designs shall be the evidence of all elections, except where there has been some blunder or fraud on the part of the inspectors, may be changed by means not in the power of those officers, who would be compelled to put a man in office, and who would be guilty of a crime in deliberately refusing to do it, and yet he would be liable to ouster by ballots which they could not count. I cannot conceive it possible that the law can contemplate a case where a person cannot lawfully obtain the evidence of title to office except by litigation. The statements of every board of inspectors and canvassers are required to give the names of all candidates “ written out in words at length.”— (§ 64). In tie votes, and in cases where votes are canvassed by state canvassers, these are conclusive as already shown. In registering voters their Christian names are required to be given in full.— (L. 1859, p. 483 ). And in the way in which our elections are conducted, a person cannot, without the grossest carelessness, fail to be informed of the full name of each candidate.

In popular business transactions, the use of initials, or even of a surname alone, may suffice, because evidence is easily found to prove identity by various means. And had the election law not designed to make the ballot the final test of the elector’s will, such looseness would not be so material. But in solemn legal proceedings in courts of justice, it has always been customary to use the full name, and the reasons for requiring it in elections are quite as forcible. The elector’s own oath, which is the best means of explanation, can not be required, nor, in my judgment, permitted. The doctrine allowing names to be made out from initials has, in New York, been supplemented by allowing the *309 names actually given to be contradicted. — People v. Cook, supra. This doctrine was connected originally with its necessary supplement, that the voter could swear to his intention. But this is now repudiated.— People v. Saxton, 22 N. Y. 309; People v. Pease, 27 N. Y. p. 45, 85. The New York decisions are the sole foundation for those in "Wisconsin, which accept the rule but deny the right of proof by the intention of the voter himself. On the other hand, it was held in Ohio that when the Legislature held an election, and the journal of one house described the candidate as “Lemuel,” and that of the other as “Samuel,” no evidence could be received to identify them.- — State v. Moffitt, 5 Ham. 358. So when Abel C. Dinsloio was in Maine declared elected, and no such person could be found, it was held that Abel E. Dinsloio could not receive the office.— Opinion of Judges, 38 Me. 597.

The election laws contain so many evidences of a design to require great accuracy in all proceedings, that it would not, I think, carry out public policy to recede from the rules formerly held by this court, until the Legislature see fit to open the door. Thus far there has been great solicitude to prevent uncertainties and frauds. "Until the inspectors or canvassers are permitted to inquire into identity, I can see no propriety in permitting such inquiries by courts. An investigation into the systems of the various states, shows a general disinclination to allow offices to be -subject at all to judicial inquiry. It certainly is not desirable to furnish any more room for parol evidence than is absolutely unavoidable.

I think the ballots with initials can not be allowed.