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

by Eldon Cobb Evans

CHAPTER V
THE DEVELOPMENT OF THE AUSTRALIAN BALLOT IN THE UNITED STATES; THE MANNER OF VOTING; PENAL SANCTIONS

The greatest weakness of the unofficial ballot was its failure to secure a secret vote. The Australian ballot remedies this fault, first, by providing for the securing of ballots by the electors only on election day, within the polling-place, and from the regular election officers; and secondly, by providing absolute secrecy in the marking of the ballots.

I. OBTAINING THE BALLOTS

Instead of distributing the ballots in advance of the election, or by ticket peddlers at each polling-place on the day of election, as under the unofficial ballot system, the Australian ballots are distributed only within the polling-place to electors who have proved their qualifications. The New Hampshire law of 1891^[1] is typical of the procedure required for obtaining the ballots.

Any person desiring to vote shall, before being admitted within the guard-rail, give his name in a loud and distinct tone of voice to one of the ballot clerks, who shall thereupon likewise announce the same, and if such name is found upon the check-list by said ballot clerk, he shall put a check mark against it and again repeat the said name. The voter, unless challenged, shall then be allowed to enter the space inclosed by the guard-rail as above provided. If his vote is challenged, he must not enter until he makes the affidavit now required by law. After he enters the inclosed space, the ballot clerk shall give him one ballot only.

Before the ballot is given to the elector, nineteen^[2] states require the election officers to write their names or initials upon the back of the ballot in such a place that it will be seen when the ballot is folded. The usual provision is to require the initials of the judge or clerk having charge of the ballot,^[3] but some of the states, as Minnesota^[4] or Missouri,^[5] require the initials of one judge of each party. In Alabama, Florida, Arizona, Colorado, and Utah the initials are placed upon the stub.^[6] In sixteen states the same number is recorded on the poll-book and stub, and when the elector returns his ballot to be deposited in the ballot box, the number on the stub is compared with the number in the poll-book, and if it corresponds the stub is removed and the ballot voted. The stub is always so placed on the ballot that it can be removed without exposing the marks upon the ballot.^[7] Ten states, Massachusetts, Maine, New Hampshire, Vermont, Pennsylvania, Mississippi, Louisiana, Virginia, South Dakota, and New Mexico, make no provision for numbering or initialing the ballot or stub before it is delivered to the voter, but each of these ten states indicates the official character of the ballot by a printed or stamped indorsement upon the back. In Idaho, South Dakota, North Dakota, Montana, and Wyoming the official indorsement is stamped upon the back of the ballot before it is given to the voter.

The requirement of the printed, stamped, or written indorsement serves two purposes: first, it enables the elector to tell at a glance that this is an official ballot; secondly, it guards against the elector returning another ballot than the one given to him, and enables the election officers to detect any attempt to cast an unofficial ballot. If, through the collusion of an election officer, an indorsed ballot is removed from the polls, a vote-buyer can defeat the purpose of the law by marking this ballot and giving it to a bribed elector who votes that ballot and returns unmarked the one given to him by the ballot clerk. This scheme, which is known as the "endless chain" or "Tasmanian dodge," has been used a number of times; but if an official indorsement is required, particularly initialing or numbering the ballot, it is impossible to work this plan except through the collusion of corrupt election officials; for under no circumstances can an official ballot be legally taken from the polling-place before the closing of the polls.

The electors are admitted inside the railing as rapidly as the voters can mark and deposit their ballots. In the interest of secrecy and order, it has been considered necessary to limit the number of persons inside the rail. While the number varies, it is never more than two or three in excess of the number of booths or compartments. Thus New Hampshire^[8] will permit, besides the election officers and persons admitted inside the rail by the election officers to keep order, no more voters at a time than there are compartments. Idaho^[9] will allow one voter in excess of the number of booths. North Carolina^[10] will permit an excess of two voters. Since the elector is limited in the time which he can take to mark his ballot, and as he must quit the inclosed space as soon as he deposits his vote, this provision causes practically no delay or inconvenience to the electors.

2. MARKING THE BALLOTS

Upon receiving his ballot, the elector, without leaving the inclosed space, must retire alone to one of the unoccupied election booths to mark his ballot. The procedure in marking the ballot differs as much as the form of the ballot, but is along the same general lines. In the office-group states, excluding Nebraska and Pennsylvania, which have added a method of voting a straight ticket by a single operation, each candidate must be separately considered in marking the ballot, except presidential electors, who can be voted for by groups.^[11] In Arkansas^[12] and Virginia^[13] the voter indicates his choice by striking out, erasing, or drawing a line through the names of all candidates not voted for. All the other office-group states require the elector to mark the name of every candidate voted for by making a cross (X) opposite his name. Three of the party-column states have also adopted the office-group method of marking each individual candidate.^[14] In these states the same procedure is followed in voting either a “straight” or a “split” ticket.

In the larger number of states there is a decided difference in the minimum amount of labor required in voting a “straight party” and a “split” ticket. In the twenty-three states which use the party circle or square, an elector can vote for all the party candidates by making a cross in the party circle.^[15] In Texas^[16] and West Virginia^[17] the elector can vote a straight ticket by marking out or defacing the tickets not voted for.

Each of these twenty-four states penalizes independent voting. Thirteen^[18] of these are fairly liberal, and permit an elector who wishes to “split” his vote to make a cross (X) in the party circle and a cross opposite the name of any candidate desired on another party ticket, in which case the candidates individually marked prevail over the opposing candidates on the party ticket. But in North Dakota, Utah, and Idaho the contrary rule prevails; so in these three states he must also erase all names under the party circle for which he does not desire to vote. In West Virginia, Texas, and Maine the elector may strike out the names of candidates under his party circle and insert other names in their places. In nine states^[19] the independent voter must mark every name, while his partisan neighbor votes for all of the nominees of his party with a single stroke. There is certainly a strong inducement to party regularity in these states. In Missouri the voter is given separate ballots of every political party. He takes these tickets to the booth, and if he wishes to vote a straight Democratic ticket he selects and folds this one and hands it to the receiving judge. The rejected tickets are also folded and returned to another judge. If the elector desires to vote for a candidate not on his ticket, he must erase the name on his ticket and insert the name of the candidate desired.^[20]

In all but six states the elector may vote for any person whose name does not appear on the ballot by writing the name in the appropriate space. In Nevada, Oklahoma, New Mexico, and South Dakota there is no provision for voting for a man whose name does not appear on the ballot; and in Delaware^[21] and Indiana^[22] writing in any name on the ballot is prohibited. In Indiana,^[23] Maine,^[24] North Dakota,^[25] and Washington^[26] such names may be placed on the ballot by the use of pasters.

The instrument used for marking the ballot is generally a pencil, or pen and ink. In Nevada,^[27] Oklahoma,^[28] California,^[29] and Louisiana^[30] a stamp is used. The reasons for using the stamp are to have a uniform mark, and to avoid any peculiarities which might be resorted to in an attempt to identify the ballot. The uniform mark required to be made is the cross (X). In Louisiana the elector in voting for individual candidates obliterates the white square at the right of such candidate’s name.^[31] This is the Belgian plan and probably gives less opportunity for distinguishing marks than any other. While the scheme of striking out all names not voted for has a certain psychological value, yet, because of the additional marks, it gives greater opportunity for fraud and identification. The Wisconsin coupon ballot does away with all marks made by the voter upon the ballot.

If a voter accidentally or inadvertently spoils a ballot, he may upon returning it receive another. Most of the states limit the number he may successively receive to three,^[32] but Arizona^[33] places the number at five. The ballot so returned is required to be canceled and preserved, and returned with the unused ballots.^[34] The limit on the number of ballots an elector can possibly obtain is to prevent electors from exhausting the supply of ballots by a process of deliberate mutilation.

3. ASSISTING THE VOTERS

There are considerable differences of opinion as to whether or not illiterate voters should receive assistance in marking their ballots. Mr. Dutton, the father of the Australian ballot, disapproved of aiding the illiterate voter.^[35] The usual arguments against aiding the illiterate voter are:^[36] first, that a man who is too ignorant to vote correctly is not worthy of the right to vote, because he cannot form that intelligent opinion essential to good government; secondly, that by assisting an ignorant voter you may make it possible to know how an elector votes and so open the door to corruption; thirdly, that the desire to vote will act as an incentive to acquire an education.^[37] Those in favor of helping the ignorant elector declare, first, that he has as much interest in voicing his needs by means of the ballot as the educated, and to deny him assistance is to disfranchise him; secondly, that if he votes without assistance, he has to do so in a haphazard way and may vote for the wrong candidates; thirdly, that there is little danger of corruption, as the election officers are bound to secrecy.

The first Australian-ballot act passed in the United States, the Louisville act,^[38] made no provision for aiding illiterates, and required every voter to retire alone to one of the compartments and, unaided, to mark his ballot. The Kentucky Court of Appeals in the case of Rogers v. Jacob^[39] declared that this provision violated the section of the constitution requiring all elections to be free and equal. "It practically operates to deprive a person who is unable to read or write of a free and intelligible choice of those he may desire to vote for, and in fact makes free suffrage as to them a matter of chance or accident." The influence of this decision was far-reaching in determining the case in favor of assisting the illiterates.

At the present time voters unable to read the English language are denied assistance in ten states.^[40] In Massachusetts an illiterate can obtain assistance in preparing his ballot if he was a voter on May 1, 1857.^[41] Wyoming^[42] has a similar provision for men or women who were voters on July 10, 1890; and Virginia^[43] also permits illiterates to be helped if they were registered by 1904. North Carolina^[44] in the New Hanover County act grants assistance to voters registered under the “Grandfather Clause” or those physically disabled.

The case in favor of disabled voters is much stronger, although the argument that you may make it possible to know how an elector votes, and so open the door to fraud, applies as well to disabled persons as it does to illiterates. It is true that a disabled person can exercise an intelligent choice, and so he should not be disfranchised. In every state disabled voters are allowed to be assisted.^[45] The question might be raised as to what constitutes a physical disability sufficient to entitle a man to assistance. Most of the states are silent on this point. Five states^[46] provide that intoxication is not such a physical disability. Alabama^[47] limits physical disability to blindness or loss of the use of the hands; Ohio,^[48] to blindness, paralysis, extreme old age, or other physical infirmity. In most states it is a question of fact to be decided in the first instance by the election judges.

The majority of states require such illiterate or disabled voter to be placed under oath before he is given assistance. Eight^[49] states place the administering of an oath at the discretion of the election officer. Thirteen states^[50] make no provision for swearing the elector desiring help. This assistance should in every case be given by sworn officers, and this is the rule. In Minnesota, Nevada, and Pennsylvania an elector instead of an officer marks the ballots. In Minnesota and Nevada the number of ballots one elector may mark for another is limited to three and one, respectively, but in Pennsylvania there is no limit to the number one man may prepare.

Before the voter leaves the booth or compartment where he prepares his ballot he is required to fold it so as to conceal its face, and in Delaware^[51] he is required to fold it and place it in an envelope. This is the only state that now retains the use of the envelope. The ballot must be so folded as to show the official indorsement on the back and outside of the ballot, and the ballot must be deposited with this indorsement uppermost, so that it may be seen by the judges. Three states^[52] number the ballot, when it is presented for voting, with the voter’s number on the poll-book. In Colorado a black square is placed in the upper left-hand comer below the perforated line, and it is made the duty of the judges or clerks to write the number on the opposite side and paste down the comer which, except in a contested election, is not broken.

4. PENAL SANCTIONS

Various penal sanctions have been added to safeguard the purity of the ballot. These special safeguards usually provide for the punishment of any person who falsely makes, or wilfully alters, multilates, or destroys a certificate of nomination, or a nomination paper, or letter of withdrawal; of the printer or any person preparing the ballots who delivers such ballots to any person other than the officers lawfully entitled to receive the same; of any person who destroys or tears down or removes any nomination list, card of instruction, or specimen ballot; of any person who destroys or removes any supplies or conveniences for the marking of the ballot; of an elector who tries to remove the official ballot from the polling-place before the closing of the polls, or allows his ballot to be seen after he has marked it, or places any distinguishing marks on the ballot, or makes any false statement of his inability to vote; of any person who forges the official indorsement; of any election officer who reveals how an elector votes, or tries to influence him in his decision; or of any person who electioneers within a designated distance of the polling-place.^[53]

1. New Hampshire Laws, 1891, ch. 49, sec. 22.
2. Illinois, Indiana, Wisconsin, Michigan, Minnesota, Arkansas, Florida, North Carolina (New Hanover County), Kentucky, Maryland, Missouri, West Virginia, Delaware, North Dakota, Oklahoma, Wyoming, Nebraska, Texas, Iowa.
3. See Hurd, R. S. (Illinois), 1913, ch. 36, sec. 309.
4. Minnesota R. L., 1905, ch. 6.
5. Missouri R. S., 1909.
6. Alabama, 1893, No. 377; Florida, 1895, ch. 4328; Arizona R.S., 1901, secs. 2330, 2338; Utah C.L., 1907, secs. 839, 846; Colorado, 1908, ch. 43.
7. New Jersey, 1911, ch. 183; Howell, Statutes (Michigan), 1913, sec. 236; Connecticut, 1911, ch. 263. Other states following this rule are Ohio, Tennessee, Kentucky, Maryland, North Carolina, New York, Arizona, California, Montana, Nevada, Washington, Oregon, and Utah.
8. New Hampshire Laws, 1891, ch. 49.
9. Idaho, 1891, p. 57.
10. North Carolina (New Hanover County), 1909, ch. 867.
11. No special provision is made for voting for presidential electors as a group in Mississippi, Florida, Tennessee, Maryland (in counties where there are no party designations), Oregon, and Nevada.
12. Arkansas, 1891, act 30.
13. Virginia, 1894, ch. 746.
14. Iowa, 1902, ch. 33; South Dakota, 1913, ch. 198; Montana, 1901, p. 117; Wyoming, 1911, ch. 51.
15. See Table I, p. 46.
16. Texas, 1905, ch. 11 (extra session).
17. West Virginia, Code, 1891, ch. 3. The law also allows the use of the party circle.
18. Delaware, Vermont, Illinois, Ohio, Michigan, Oklahoma, Kentucky, Alabama, Idaho, Colorado, Utah, Rhode Island, and North Dakota.
19. Connecticut, Pennsylvania, Indiana, Wisconsin, Louisiana, Arizona, Nebraska, North Carolina, and Washington.
20. Missouri R. S., 1909, sec. 5900. In New Mexico there is not provision for marking the ballots.
21. Delaware, 1913, ch. 65.
22. Indiana R. S., 1914, sec. 6927.
23. Indiana R. S., 1914, sec. 6927.
24. Maine, 1893, ch. 267.
25. North Dakota C. L., 1913, sec. 958.
26. Remington and Ballinger, Codes and Statutes (Washington), sec. 4891.
27. Nevada, 1913, p. 554.
28. Oklahoma, 1910, ch. 111.
29. California, 1911, p. 409.
30. Wolf, Louisiana, R. L., 1904, p. 714. The stamp was authorized in Massachusetts in 1896, and its use placed at the discretion of the town or city clerks. The stamp was formerly used in Indiana, Michigan, Delaware, and Maryland.
31. Ibid.
32. See Vermont, 1890, No. 9; Massachusetts, 1888, ch. 436; Maine, 1891, ch. 102.
33. Arizona, 1891, No. 64.
34. Idaho, 1891, p. 57. Maine, 1891, ch. 102. In a few states, as Florida and Indiana, the mutilated ballots have to be destroyed, and a record is kept of the number so destroyed.
35. "I cannot say that I have very much sympathy for those who lose their votes because they cannot read."–Parliamentary Papers, VIII, Question 9352.
36. Buxton, Handbook to Political Questions, pp. 113-15.
37. American Law Review, XXIII, 729.
38. Kentucky, 1888, ch. 266.
39. II S.W. Rep. 513; American Law Review, XXIII, 719.
40. Nevada, Arizona, South Dakota, Tennessee, Florida, Maryland, Ohio, Delaware, Connecticut, and Vermont. There are no provisions in New Mexico or in the two states which have not adopted the Australian ballot.
41. Massachusetts, 1888, ch. 436.
42. Wyoming, 1895, ch. 48.
43. Virginia, Code, 1904, sec. 122k.
44. North Carolina Laws, 1909, ch. 867.
45. No provision in New Mexico, South Carolina, or Georgia.
46. Minnesota R. L., 1905, sec. 281; Iowa, 1892, ch. 33; Hurd, R. S. (Illinois), 1913, p. 1124; Wisconsin, 1911; North Carolina, 1909, ch. 867.
47. Alabama, 1893, No. 377.
48. Ohio, 1894, p. 148.
49. Wyoming, Washington, Oregon, North Dakota, Wisconsin, Maine, Rhode Island, Ohio.
50. Arizona, Florida, Mississippi, Arkansas, Louisiana, Tennessee, Indiana, Pennsylvania, Connecticut, West Virginia, Vermont, Delaware, Idaho.
51. Delaware, 1913, ch. 65.
52. Texas, 1905, ch. 11 (extra session); Missouri, R. S. of 1909, sec. 5904; Colorado, 1901, ch. 72.
53. For typical penal provisions see the West Virginia, Code, 1891, ch. 3; Indiana R. S., 1914; Massachusetts, 1907, ch. 560. A complete list of these safeguards would include the corrupt-practice acts, which are beyond the scope of this thesis.