within the power of the legislature to grant or deny assistance to electors in marking their ballots? Are the devices for voting a straight ticket by a single mark valid? Can the legislature limit the choice of the electors to the candidates whose names are printed on the ballot?
Among the reasons advanced by Governor Hill, of New York, for vetoing the bill was that the Australian ballot destroyed the secrecy of the ballot for the blind and illiterate, and compelled an avowal of their votes as a condition of exercising the right. This was strongly urged against the ballot, and the claim was set up that such a provision was unconstitutional.[1] The Virginia Supreme Court in overruling this objection said:
The vote by ballot ex vi termini implies a secret ballot. The secrecy of the ballot is a right which inheres in the voter and of which he cannot be lawfully deprived. It must be, however, in some degree subordinate to the right to vote by ballot, of which it is but a part; and the main object, which is the right to vote, must not be defeated by a too rigid observance of the incidental right, which is that of secrecy. A blind man, or a man unable to read, must, in the nature of things, so far compromise the secrecy of his ballot as to invoke and obtain the aid of others in the preparation of his ballot.[2]
In Rogers v. Jacob[3] the question was squarely presented whether illiterate or ignorant electors can be denied assistance in preparing their ballots. The Kentucky Court of Appeals held that the provision of the Kentucky law of 1888 which required an elector to go to a booth and alone and unaided to mark his ballot violated the constitution requiring all elections to be free and equal, because it deprived a person unable to read and write of a free and intelligible choice, and made free suffrage as to them a matter of chance. This is the only case bearing directly on this point, so the law cannot be taken as settled.
As it was shown in discussing the form of the ballot,[4] a number of states have placed party circles or squares upon the ballot, and an elector can vote for all the candidates of a party by making a single cross (X), while another elector wishing to “split” his ticket may have to mark each candidate separately. Is this an unreasonable discrimination between voters? Upon this point the authorities are equally divided. In Eaton v. Brown[5] the California court held that the provisions of the law for straight party voting were unconstitutional, as
