Page:A History of the Australian Ballot System in the United States.djvu/75

attacked as unconstitutional. The Supreme Court of Texas, in a case decided in 1893,^[1] held the provision to be valid, the court being of the opinion that it protected the public against fraud. The opposite view has prevailed in Indiana, Minnesota, Utah, and Idaho, where it was held that such a provision enabled the ballots to be identified and so violated the secrecy of the ballot.^[2] The latter view appears the more convincing and is more in harmony with the spirit of the Australian ballot.

In a number of states there is the provision that ballots not indorsed with the initials of the election officers shall not be deposited in the ballot box or counted. In Washington^[3] it was held that this was unconstitutional, since the effect of such a provision would be to debar voters from their constitutional right to vote without fault on their part, but because of the negligence of the election officers. This opinion was denied and clearly refuted by the Nebraska court in the case of Orr v. Bailey,^[4] the court pointing out that the law presumed that the election officers would follow directions. The elector is also charged with a knowledge of the law, and he can see whether the signatures are on the back when he folds the ballot, and that it is or is not an official ballot.

2. THE POLICY OF THE COURTS IN INTERPRETING THE BALLOT LAWS

While it is impossible to reconcile the decisions of the courts in the various states, as a general rule they have liberally construed the election laws in aid of the right of suffrage, and have respected the choice of the electors unless expressed in disregard of mandatory safeguards.^[5] In determining whether a provision should be held to be mandatory or directory, two rules have been followed: First, there is a tendency to regard as mandatory acts demanded of the elector, but to view with greater leniency acts wholly required of the election officers unless they are essential to the purity of election. This rule was stated by the Washington court as follows:

The individual may well be called upon to see that the requirements of the law applying to himself are complied with before casting his ballot, and if he should wilfully or carelessly violate the same, there would be no hardship or

1. State v. Connor, 86 Tex. 133.
2. Williams v. Stein, 38 Ind. 89; Brisbin v. Cleary, 26 Minn. 107; Ritchie v. Richards, 14 Utah 345; McGrane v. County of Nez Perces, 18 Idaho 714.
3. Moyer v. Van De Vanter, 12 Wash. 377.
4. Orr v. Bailey, 80 N. W. 495; Lorin v. Seitz, 8 N. D. 404; Miller v. Schallern, 8 N. D. 395; Kirkpatrick v. Deegan, 53 W. Va. 275.
5. Nance v. Kearbey, 251 Mo. 374.