Patterson v. Hanley

<p>Contest of Election—Identification Mark upon Ballots.—Upon a contest of election, ballots upon which the legal mark of the cross is placed opposite the words “No nomination,” which mark can by no possibility serve a legitimate purpose, must be regarded as having a distinguishing mark identifying the ballots, and must be rejected.</p> <p>Id.—Double Ballots upon Constitutional Amendment.—Ballots upon which a cross is placed after both “Yes” and “No” in voting upon a constitutional amendment do not have a distinguishing mark which renders them totally void. It only has the effect to nullify the vote upon such amendment; and the rule is similar to that applied where crosses are .stamped opposite the names of two or more rival candidates for the same office which are not to be counted as to that office, but may be valid in other particulars, and are to be counted as to other offices to which no objection applies.</p> <p>Id.—Other Identifying Marks.—Ballots upon which the cross was stamped twice in one or more voting-squares, or in which a round hole is burned, or which have a special number written on their face, contain identifying marks which render them invalid, and must be rejected.</p> <p>Id.—Name Written under Head of Electors—Presidential Electors —Judicial Notice.—A ballot on which the voter wrote the name “William McKinley” in the blank column under the title “Presidential Electors, ’ ’ bears a legal mark in a legal place and. should be counted. The court cannot take judicial notice that there was no person of that name, in the state of California eligible to the office of presidential elector.</p> <p>Id.—Bill of Exceptions—Ballots not Objected to.—Where the bill of exceptions upon the election contest contains ballots objected to by the plaintiff and others objected to by the defendant, which are serially numbered, and contains other ballots to which no objections are specified, only the ballots specially objected to can be considered upon appeal.</p> <p>Id.—Ballots of Assisted Voters—Absence of Oath and Affidavit.— Ballots of electors assisted by officers of election without the oath of any elector that he could not read, or that by reason of physical disability he was unable to mark his ballot, and without the affidavit of the officer of election required by law in' such cases, are illegal and must be rejected.</p> <p>Id.—Policy of Daw as to Secrecy.—The policy of the law to preserve secrecy of the ballot does not extend to illegal votes cast without the statutory safeguards of secrecy.</p> <p>Id.—Precinct Registers—Mistake op County Clerk—Omission of Names of Persons Voting—Illegal Ballots.—Notwithstanding the injustice that voters should be deprived of their franchise ‘ through the mistake or fault of the county clerk in binding their names in the wrong precinct book, yet, under the statute providing that no persons shall be allowed to vote whose names are not on the precinct register, the votes of such electors, though cast on production of certificates from the clerk showing their regular registration in the precinct of their residence, and that their names were on the great register, are illegal and must be rejected^</p> <p>lb,—List op Illegal Votes—Waiver of Objection—Offers of Proof. —Where no objection was made to offers of proof by the plaintiff as to illegal votes east by the defendant, on the ground that the plaintiff had failed to furnish lists of votes claimed to be illegal, prior to the trial, as provided by section 1116 of the Code of Civil Procedure, the failure to make such objection must be regarded as a waiver of compliance with the statute, or as an admission that it had been complied with; and an objection upon appeal that the ballots were properly refused for want of such lists is too late.</p> <p>Id.—Misconduct op Election Officers.—Misconduct of the election-officers in not complying with the provisions of the statute for the safeguarding and certifying of the returns and for the integrity of the ballot-boxes, though omitted seemingly through ignorance and without intentional fraud or actual wrong done, renders it a matter of grave doubt whether the ballots cast at the precinct should be counted; but it is sufficient to suggest such doubt where the vote of such precinct is immaterial to the result of the election.</p> <p>Id.—Mode of New Trial.—Upon a new trial ordered as the result of an appeal, the court need not recount ballots to which no objection was made at the first trial, but should take the results of such ballots as then ascertained; and election officers • should not be compelled to disclose the contents of ballots of assisted voters.</p>