Page:A History of the Australian Ballot System in the United States.djvu/76

injustice in depriving him of his vote; but if, on the other hand, he should in good faith comply with the law on his part, it would be a great hardship were he deprived of his ballot through some fault or mistake of an election officer in failing to comply with a provision of the law over which the voter had no control.^[1]

Secondly:

If the law itself declares a specified irregularity to be fatal, the courts will follow that command irrespective of their views of the importance of the requirement. In the absence of such declaration, judiciary endeavor as best they may to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a free and full expression of the popular will. If it had, the irregularity is held to vitiate the entire return; otherwise it is considered immaterial.^[2]

Nominations.–The courts have been frequently asked to interfere where there is a nomination contest, but they have shown a great reluctance to do so. That is due in part to a feeling that this is a political question and not one that the courts should handle.^[3] Secondly, the right of a candidate to have his name placed upon the ballot is entirely of legislative creation, and if the law subjects that right to the decision of a certain tribunal, that excludes the courts from jurisdiction except in the case of fraud.^[4] The tribunal given jurisdiction may be an administrative body, or the courts, or in the case of party candidates it may be the designated party authorities, as the state committee or state convention.^[5] Where an administrative officer is without authority to decide which of two rival factions rightfully represents the party, the courts have interfered to compel the secretary of state to certify both lists of nominees.^[6]

Form of the ballot.–While the use of the official ballot is mandatory, mistakes in the form or dimensions of the ballot will be considered directory, such provisions not being considered essential to the purity

1. Moyer v. Van De Vanter, 12 Wash. 377, at 383.
2. Bowers v. Smith, 11 Mo. 45: at 61; accord: Parvin v. Wimberg, 130 Ind. 561; Barnes v. Board, etc., 51 Miss. 305; Ledbetter v. Hall, 62 Mo. 422; Slaymaker v. Phillips, 5. Wyo. 453; Gilleland v. Schuler, 9 Kan. 569.
3. Phelps v. Peper, 48 Neb. 724.
4. Miller v. Clark, 62 Pac. 664; People v. Rose, 211 Ill. 249.
5. State v. Houser, 100 N. W. Rep. 964; People v. Dist. Ct., 74 Pac. 896; Moody v. Trimble, 58 S. W. 504; Burke v. Foster, 36 So. 32; Fernbacker v. Roosevelt, 90 Hun. 441; In re Fairchild, 151 N. Y. 359.
6. Shields v. Jacobs, 88 Mich. 164; People v. Dist. Ct., 18 Colo. 26.