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A History of the Australian Ballot System in the United States/Chapter III

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A History of the Australian Ballot System in the United States
by Eldon Cobb Evans
(Chapter III: The Development of the Australian Ballot System in the United States)
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2843347A History of the Australian Ballot System in the United States — (Chapter III: The Development of the Australian Ballot System in the United States)Eldon Cobb Evans
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CHAPTER III

THE DEVLOPMENT OF THE AUSTRALIAN BALLOT IN THE UNITED STATES

INTRODUCTORY

The movement for reform, which reaped its first fruits of victory in Louisville and Massachusetts, received great impetus by the unprecedented use of money in the election of 1888. The effect is easily seen in the record of legislation of the next four years. In 1889 seven states enacted reform laws based on the Australian ballot.[1] In the legislative sessions of the following year five states and one territory placed this law on their statute books.[2] Before the presidential election in 1892 thirty-two states and two territories had provided for the Australian ballot; and by 1896 seven other states were added to this list. In 1897 Missouri abandoned in part the Australian ballot, and adopted separate party ballots.[3] This is the only state which has given up the blanket form of the ballot after once adopting it. By 1916 Georgia and South Carolina remain the only states entirely unreformed. North Carolina has only a local act applying to New Hanover County.[4] New Mexico has a very unsatisfactory compromise law under which separate ballots are printed by the county recorders under the supervision of the chairmen of the county committees of each party; and the ballots are distributed by the parties in advance of the election.[5] Tennessee has applied the Australian-ballot law only to counties having fifty thousand population or over,[6] and to towns having a population of twenty-five hundred or more.[7] Missouri has all the features of the Australian ballot except that it has separate party ballots.[8] Delaware has taken a very reactionary step by permitting an elector to obtain a ballot in advance of the election from the chairmen of the various political ​organizations, and she has also introduced an element of danger by the use of envelopes.[9]

The important features of the Australian ballot may be discussed under the following heads: first, the printing and distribution of the ballots; secondly, the procedure for placing the names of candidates on the ballot; thirdly, the provisions for publicity; fourthly, the arrangement of the polling-place; fifthly, the form of the ballot; sixthly, the preparation of the ballot.

1. THE PRINTING AND DISTRIBUTION OF THE BALLOTS

In every state which has adopted the Australian system, the ballots are printed and distributed at public expense. The use of any ballot other than the official ballot is generally forbidden, but even where the statute is silent the use of such unofficial ballots would probably be held illegal.

In all of the eastern states except Connecticut, ballots for the election of municipal officers are prepared by the clerk of the city or town at the expense of the municipality. In Connecticut the secretary of the commonwealth provides the ballots for the city, town, or borough elections at the expense of the city, town, or borough for which the ballots are prepared.[10] For all officers other than municipal these states divide into two distinct groups. In the New England states the preparation of the ballots is done by the secretary of state, and the cost of printing the ballots and their delivery to the towns is borne by the state.[11] In the middle eastern states the ballots are made up and printed under the direction of some county officer, usually the county clerk, and the expense of their printing and distribution is a county charge.

The number of ballots required varies greatiy. Usually the law states that one hundred ballots shall be furnished for every fifty voters, or fraction of fifty, in each precinct. These ballots are sealed in packages and delivered to some local officer, usually the town or city clerk, at a certain time in advance of the election, and are sent to each polling-place on the day of election a short time before the opening of the polls. If the ballots are not received, or if, after being received, they are destroyed or stolen, Massachusetts, New Hampshire, Rhode Island, and New York make it the duty of the town or city clerk to prepare substitute ballots. In Vermont this duty is incumbent on the presiding election officer, and in West Virginia on the ballot commissioners. ​Massachusetts, New Hampshire, and Rhode Island require two sets of ballots to be prepared, and one set is held in reserve for an emergency.

In the north central states, with the exception of Indiana and Minnesota, the ballots are prepared and distributed by county and municipal officers. Minnesota and Indiana require all ballots for officers to be voted on by all the electors of the state to be furnished by central state officers.[12] The provisions of the law as to the number of ballots to be furnished each precinct, their distribution, and the procedure in case of their loss is the same as in the eastern states.

Of the southern states, Louisiana places the duty of furnishing ballots on the secretary of state, but elsewhere it is imposed on county and municipal officers.[13] Oklahoma is the only western state to depart from this rule by providing that state and county election boards shall furnish all ballots.[14]

The furnishing of the proper number of correct ballots is not only a ministerial act enforceable through mandamus, but severe penalties are imposed for the non-performance of such duty. This is a great advance over the old régime, where no person was obligated to supply correct ballots to the electors.

2. THE PROCEDURE FOR PLACING THE NAMES OF CANDIDATES ON THE BALLOT

Since it is impossible to print the name of every possible candidate on the ballot, the law restricts the nomination of candidates whose names are to be printed on the ballot to the nominees of political parties of a certain size and to independent candidates petitioned for by a certain number of electors.

All the states depart from the original Australian ballot act, and recognize the right of political parties to make nominations to public office. What constitutes a political party legally competent to nominate varies from state to state. Eight states[15] recognize as competent a party polling 1 per cent of the total vote cast in the state, electoral district or division thereof, or city for which the nomination is made. Colorado places the number at 10 per cent of the total vote in the state or division thereof.[16] Massachusetts requires the political party to poll, at the ​last preceding five elections, a number equal to the number required to nominate by petition a candidate for the office in question,[17] while New York and Texas demand that the political party cast 10,000 votes for its candidate for the office of governor at the last preceding election.[18] On the other hand, a number of states, as Connecticut or Arkansas, do not define a political party at all.

Before the introduction of the mandatory direct primary, a political party could generally nominate by one of several recognized ways. The provisions of the Illinois law of 1891 are typical of a large majority of the states. This statute provided that candidates could be nominated by a convention of delegates, a caucus, or a meeting of qualified voters representing a political party which at the last preceding election cast 2 per cent of the entire vote in the state, or in the electoral district or division or municipality for which the nomination is made.[19] Since 1900 the direct primary has in many states superseded the caucus or convention, and the latter exists in such states, if at all, only as supplemental to the primary law.

All but four states, Connecticut, Delaware, Michigan, and New Mexico, allow candidates to be nominated by petition of the electors.[20] This was in fact the only method provided in the Australian act. The number of petitioners deemed necessary varies, not only among the states, but from time to time within a single state. Mississippi is the most liberal of the states, requiring the petition of only fifteen electors for any beat or municipal office in a village or town containing less than three hundred inhabitants, and for any other office, fifty petitioners.[21] For any office to be voted on by all the qualified voters of the state South Dakota requires the petition of two hundred electors; Alabama, Idaho, and North Dakota require three hundred signatures; seven states require five hundred;[22] and nine states place the number at one thousand.[23] New York is the only state which requires a geographical ​distribution of the electors; six thousand petitioners are required to nominate, and of these fifty must be from each county.[24] Twelve states select a percentage of the total number of voters as the basis in determining the number necessary to nominate for an office voted for by all the electors of the state. Pennsylvania is the most liberal of these, selecting one-half of 1 per cent as the basis,[25] while Nevada is at the other extreme and requires 10 per cent.[26] The usual percentage demanded is either 1 or 2 per cent. Some states, as Missouri, qualify the percentage selected by the provision that the number of signatures for any office shall not be less than a certain minimum nor more than a certain maximum. For offices filled by the voters of a district less than the state, the laws in general follow the same rule as for the entire state. Frequently a fixed number will be selected for the entire state and a percentage for a district, or vice versa.

There are a number of restrictions added to the privilege of nominating by petition. The most common of these are: (a) The elector shall add to his signature his residence and place of business, with street and number, if any, and also the nature of his occupation.[27] (b) No certificate shall contain the names of more candidates for an office than there are persons to be elected to such office, and no person shall sign more than one certificate for each office.[28] (c) There is the implied qualification in all the laws that only qualified voters shall join in making a nomination or in signing a certificate. (d) Several states require a citizen to swear that he knows the contents of such petition and signs the same of his own free will,[29] and a few states require the voter to acknowledge his signature.[30] In Kentucky and Indiana the petition must recite the fact that the candidate petitioned for is qualified to hold such office, and that the subscribers desire and are qualified to vote for such candidate.[31] Texas disqualifies every person taking part in a primary from joining in the nomination by petition of a competing candidate.[32]

The names of the persons so nominated must be certified as follows: The certificate must be in writing and contain: (a) the name of each person nominated; (b) the title of the office to which he is nominated; (c) the name of the political party or principle such primary or convention ​(or group of petitioners) represents; (d) the names of candidates for president and vice-president may be added to the party appellation of presidential electors; (e) in the states permitting the use of party emblems a device may also be certified. The certificate must be signed by the chairman and secretary of the convention, who must add their addresses, and the contents of the certificate must be sworn to. In the case of a primary the certificate is signed by the canvassers. One of the signers of each separate "nomination paper" has to swear that the statements contained therein are true to the best of his knowledge and belief.[33]

The officer with whom the certificate shall be filed is in every state specified in the statute. The general rule is that nominations for offices to be voted for by the electors of the entire state or for a district larger than a county shall be filed with the secretary of state; for municipal offices, with the clerk of the city or town; and for all other offices, with the county clerk. These certificates must be filed in advance of the election. In Massachusetts the certificates of nomination of candidates for an office to be filled by all the voters of the commonwealth, except presidential electors, must be filled on or before the fifth Monday; and all other candidates for offices to be filed at a state election, including presidential electors, on or before the third Thursday; and nomination papers for candidates for offices filled at a state election, on or before the fourth Monday preceding the day of election. In towns, certificates of nomination for town offices must be filed on or before the second Wednesday, and nomination papers on or before the second Thursday, preceding the day of election.[34]

The requirement of filing nomination papers a certain time in advance of the election not only enables the officers charged with the printing of the ballots to do their duty, but serves notice on the public that these are the candidates for whom they will be called upon to vote. The amount of time deemed desirable varies in the respective states. There are two common principles, however: First, a longer period is required in states in which certificates are filed with the secretary of state than in those in which they are filed with a local officer. Secondly, frequently the names of candidates nominated by petition may be filed at a later date than certificates of nomination. The latter is a good provision, because it gives men dissatisfied with the party nominees time in which to combine and nominate desirable candidates by petition. ​In Connecticut, the only requirements are that parties or organizations nominate candidates at least three weeks prior to the day of election, and that the list certified by the chairman of the convention must be delivered by the chairman or secretary to the secretary of state at least eighteen days before election.[35]

Objection to the validity of certificates.—Certificates of nomination in apparent conformity to the law are considered prima facie valid unless objection in writing is filed within a certain niunber of days. In Ohio[36] objections must be filed within five days after the filing of the certificate of nomination. In case objections are filed, notice is at once mailed to all candidates affected. In one class of states, as Vermont, New York, and Nebraska, the officer with whom the certificate is filed passes upon the objection in the first instance, and this decision is final unless an order is obtained from a court of competent jurisdiction, or a judge thereof in vacation, before a certain date.[37] In Colorado and Utah the officer with whom the certificate is filed passes finally upon all alleged defects, and his decision must be given within forty-eight hours after the objection is filed.[38] This provision has fortunately not been copied. To vest in a single administrative official the power finally to decide issues which may affect the destinies of the state and require his decision in such a narrow limit of time is indefensible. In another group of states, of which Massachusetts is a good representative, the objection is considered and finally decided on by an administrative board. In the case of certificates filed with the secretary of the commonwealth, the board is composed of the secretary of the commonwealth, the attorney-general, and three unpaid commissioners. This ballot commission is granted power to summon witnesses and administer oaths.[39] Another excellent system was provided by the Pennsylvania act of 1891.[40] This statute declared that objections as to the form or apparent conformity or non-conformity to law should be considered by certain administrative officers named in the law. But objections to the validity of a certificate other than as to apparent conformity were decided by the court of common pleas or, if the court was not in session, by one or more judges in vacation. In the states in which the statute is silent as to objections to certificates an interested party could probably appeal to the court to ​secure an injunction against the acceptance for filing of an invalid certificate, just as errors in the printing of the ballot or the description of the candidates may be corrected by order of a court of competent jurisdiction.[41]

3. PROVISIONS FOR PUBLICITY AND INSTRUCTION OF VOTERS

Not only are all certificates of nomination open to public inspection under proper regulations,[42] but the state advertises the name of every candidate which is to appear upon the ballot. The Wisconsin law of 1889 is typical of the more complete acts.[43] This statute provided that the county clerk, at least seven days prior to the day of election, should publish the names of all candidates nominated to public office in the form, order, and arrangement of the ballot to be used on the day of election. The notice was to be inserted in not less than two nor more than four newspapers, if there were so many in the county. One of such newspapers was to represent the political party casting the largest number of votes, and one was to represent the political party casting the next largest number. Publication was to be daily, if there were daily newspapers; otherwise one publication was sufficient. Printed lists containing the name, residence, business, and political designation of each candidate were also posted in a conspicuous place in each ward.

The officers printing the ballots are also charged with the preparation of specimen ballots, which are facsimiles of the official ballots except that they lack the official indorsement and are printed on paper of a different color. They are posted about the polling-place and are usually obtainable by the voters. To enable the elector to indicate correctly his choice of candidates and measures, cards of instruction are always prepared and posted in the voting-booths and about the polling-place. These cards contain instruction on how to obtain ballots; the manner of preparing them; obtaining new ballots in place of those accidentally spoiled; obtaining assistance in marking the ballot; and usually there are appended certain penal sections of the law relating to the conduct of voters.[44]

These provisions are an advance over the unofficial ballot. It places, as far as possible, all candidates on an equality by advertising each man. It also serves notice on the electorate that these are the candidates they will be called upon to select from, and instructs them in the preparation of their ballot.

​

4. THE ARRANGEMENT OF THE POLLING-PLACE

The arrangement of the polling-place was also altered by the Australian ballot. Under the new law the officers charged with designating the polling-places are required to furnish a sufficient number of voting-booths or compartments. In the Massachusetts act of 1888 the number was placed at not less than one compartment for every seventy-five voters with a minimum of three in each town or precinct.[45] These compartments must be so constructed that an elector when marking his ballot will be screened from observation. The portion of the room in which the compartment and the ballot box are situated is separated from the remaining portion by a guard-rail so placed that only those inside the guard-rail can approach within a specified distance, usually six feet. But the arrangement must be such that neither the ballot box nor the compartments are hidden from the view of those outside the rail. In Massachusetts the person voting must also be in the sight of those outside the rail, but this rule has not been followed.[46] A much larger number of states, in fact, require the booth to have a curtain or door which conceals almost all of the elector's body when the door is closed.[47] Indiana tries to obtain additional security by providing for each precinct a chute or passage with a railing, rope, or wire on each side commencing fifty feet away from, and leading to, the polling-place. One challenger and one poll-book holder are allowed to stand at the sides of the chute near the challenge window, but no other person can remain within fifty feet of it except for the purpose of offering his vote.[48]

  1. ↑ Indiana, Minnesota, Missouri, Montana, Rhode Island, Wisconsin, and Tennessee for a part of the state.
  2. ↑ Maryland, Mississippi, Oklahoma, Vermont, Washington, and Wyoming.
  3. ↑ Missouri Laws, 1897, p. 107.
  4. ↑ North Carolina Laws, 1909, ch. 867.
  5. ↑ New Mexico, 1905, ch. 127.
  6. ↑ Tennessee, 1891, ch. 225.
  7. ↑ Tennessee, 1897, ch. 17. By special acts three other counties are also included.
  8. ↑ In 1913 the Missouri legislature passed an act providing for the blanket type, but because of constitutional objections the law was not put into effect.
  9. ↑ Delaware Laws, 1913, title 4, ch. 65.
  10. ↑ Connecticut, 1909, ch. 250.
  11. ↑ Until 1912 the ballots in Vermont were prepared by the county clerks.
  12. ↑ Minnesota, 1889, ch. 3; Indiana R.S., 1914, No. 6897.
  13. ↑ Louisiana, 1896, No. 137.
  14. ↑ Snyder, Compiled Laws (Oklahoma), 1909, secs. 3156-57.
  15. ↑ Maine, Vermont, Indiana, Ohio, Maryland, Kansas, Arizona, and Minnesota.
  16. ↑ Colorado, 1891, pp. 143-44.
  17. ↑ Massachusetts Laws, 1907, ch. 560.
  18. ↑ New York, 1896, ch. 909; Texas, 1905 (special session), ch. 11.
  19. ↑ Illinois, 1891, p. 107.
  20. ↑ South Carolina, North Carolina, and Georgia are not included. In Virginia any person may become an independent candidate by notifying the proper officer of such intention in writing, attested by two witnesses.
  21. ↑ Mississippi Code, 1906, sec. 4159.
  22. ↑ Rhode Island, 1889, ch. 731; Indiana, 1889, ch. 87; Maryland, 1890, ch. 538; Florida, 1895, ch. 4328; Iowa, 1892, ch. 33; Colorado, 1891, p. 144; Utah, 1896, ch. 69.
  23. ↑ Massachusetts, 1888, ch. 436; Maine, 1891, ch. 102; New Hampshire, 1897, ch. 78; Wisconsin, 1889, ch. 248; Illinois, 1891, p. 107; Kentucky, 1892, ch. 65; Louisiana, 1896, No. 137; Nebraska, 1891, ch. 24; Washington, 1895, ch. 156.
  24. ↑ New York, 1896, ch. 909.
  25. ↑ Pennsylvania, 1891, p. 349.
  26. ↑ Nevada, 1893, ch. 106.
  27. ↑ Pennsylvania, 1891, p. 349.
  28. ↑ New York, 1890, ch. 262.
  29. ↑ Minnesota, 1889, ch. 3.
  30. ↑ New York, 1890, ch. 262.
  31. ↑ Kentucky, 1892, ch. 65; Indiana, 1889, ch. 87.
  32. ↑ Texas, 1905, ch. 11.
  33. ↑ Massachusetts Laws, 1888, ch. 436.
  34. ↑ Massachusetts Acts and Resolves, 1912, ch. 446.
  35. ↑ Connecticut S.L., 1909, ch. 250.
  36. ↑ Ohio G.C., 1910, sec. 5005.
  37. ↑ Vermont, 1890, No. 9; New York, 1890, ch. 262; Nebraska, 1891, ch. 24.
  38. ↑ Colorado, 1891, p. 144; Utah, 1896, ch. 69.
  39. ↑ Massachusetts, 1890, ch. 436; 1894, ch. 343.
  40. ↑ Pennsylvania, 1891, p. 349.
  41. ↑ State v. Elliott, 17 Washington 18; State v. Ramsey Ca., Dist.Ct., 74 Minnesota 177.
  42. ↑ Massachusetts Acts and Resolves, 1888, ch. 436.
  43. ↑ Wisconsin, 1889, ch. 248.
  44. ↑ See, for example, Iowa Laws, 1892, ch. 33, or Kansas Laws, 1893, ch. 78.
  45. ↑ Massachusetts Acts and Res., 1888, ch. 436.
  46. ↑ Ibid, The same rule is followed in Texas and Oregon; see Texas R.S., 1895, sec. 1787; Oregon, 1891, p. 8.
  47. ↑ New York, 1890, ch. 262; North Carolina, 1909, ch. 867 (New Hanover County Act); Kentucky, 1892, ch. 65; Montana, 1901, p. 118.
  48. ↑ Indiana R.S., 1914, secs. 6922-23; Oklahoma, 1893, ch. 33, sec. 36.
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