454

DIGEST OF ELECTION CASES.

The bribed votes should not be counted. The record furnishes no method for their elimination. Their acceptance can only be avoided by applying the rule of law, so well known and of such general adoption that it need scarcely be repeated here, that when illegal and fraudulent votes have been proven, and the poll cannot be purged with reasonable certainty, the whole vote must be rejected.

But your committee do not think it necessary to rest the decision of this case upon this principle of law, although they believe that the evidence shows conclusively not only that bribery was committed in a multitude of instances, but that a great number of these cases were traced home to the sitting member. They are of the opinion that the evidence shows that the contestant had a majority of the legal votes cast and returned.

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INTIMIDATION.

It appears that many of the voters who cast their votes in favor of the sitting member were intimidated and coerced into doing so. The testimony of Albert Church, (pages 224, 227) shows that the railroad hands who voted for Washburn, at Crookston, told him that they were compelled "to vote the way their boss, the railroad company, told them to; they had to vote the ticket of their own boss." They were led up in a body to the polls (page 226) by their foreman, Jacobus, and he gave them the tickets they were to vote. Many of these men were Democrats (page 224), and would probably have voted the Democratic ticket if they had been free from the coercion of the railroad company.

In Minneapolis this system of coercion and intimidation was carried out systematically. The testimony shows that the employers of labor in that city united to raise money to buy votes for Washburn (page 23); a circular was issued by the chairman of the Republican county committee, urging business men to lay aside their business and devote one day at the polls (page 106); large numbers of employers of labor, including many who usually took no part in such work, were at the polls working for Washburn (page 106); the workmen were sent for and brought to the polls by their employers and ballots were there placed in their hands, folded, and voted by the employés without being opened (page 108), the employer or his foreman following them to the polls to see that they deposited them (page 97); many of the employés declared that they believed they would lose their means of subsistence if they did not vote for Washburn (page 110); the employés of the North Star Woolen Mill were brought to the polls in squads by the son of the proprietor, Philip Gibson; when a friend of contestant tried to give these men ballots, Gibson jumped between them and tried to force the canvasser away, declaring that he had brought the men there himself, and that most of the workmen voted as their employers wanted them to (page 96). The foreman of this mill told one of the workmen (page 97) that an employé of the mill had, at a previons election, voted in opposition to his wishes, and that he would take the same man to the polls the next day, to wit, to the Congressional election in question, and if he did not vote as he wanted him to he would discharge him. When witnesses were called by contestant from among the employés of this mill to testify in this case, the said foreman followed them to the notary's office and remained there while they were testifying (page 98).

The workmen in the Minneapolis Harvester Works who were known to be Washburn men were carried to the polls and returned; while those who could not be induced to vote for Washburn were not allowed to go, unless by losing their day's work, and probably their situations. (Page 98.)

In one case a witness, a workman in a furniture shop, swears that he was suspended from work the day after election because had he voted for

Donnelly, and because it was reported to his employer that he had expressed the belief that if Donnelly was elected the workmen would get better wages; ten days after election he was finally discharged. (See pages 101-2). It appears

The vote of the city was very light. A large number of workmen did not vote at all. They were afraid of losing their jobs if they voted for Donnelly, and they would not vote for Washburn. (Page 113.)

In seven precincts of Minneapolis the judges of election placed a number on the back of each ballot to correspond with the number of the voter on the poll-list. Let us consider the purpose of this numbering of the ballots.

At the session of the legislature of Minnesota in January and February, 1878, a special law had been enacted, providing that in cities containing more than 12,000 inhabitants the ballots should be numbered. This law applied, and was intended to apply, only to the cities of Saint Paul and Minneapolis, where the workingmen were very numerous, and where alone the required population existed. It was felt by many that this provision of law was oppressive and unconstitutional, and at the spring election in Saint Paul, held immediately after the law was passed, a party offered to vote without having his ballot numbered; he was refused, and he brought an action at once in the district court of Ramsey County, in which Saint Paul is situated, to test the validity of the act. The court decided (see Brisbin rs. Cleary et al., printed testimony, page 74) that the act was unconstitutional, inasmuch as the constitution of Minnesota, section 6, article VII, provides that "all elections shall be by ballot"; that the ballot implies secrecy, and that this law requires every man "to vote, in effect, a ticket with his name indorsed on it"; and in case of a contest the ballots are to be made public. "This law," says the court, "furnishes the means of ascertaining exactly how every elector voted; that is its acknowledged purpose.”

This decision of the district court of Ramsey County was the unanimous decision of a full bench of three judges; it was appealed to the supreme court, and was affirmed by the supreme court subsequently to the election. (See Northwestern Reporter, vol. 1, page 75, foot page 825, Brisbin es. Cleary et al., being an appeal from the district court of Ramsey County, in the same case referred to above.) The supreme court sustain the decision of the district court of Ramsey County, and say:

The statutory provision with regard to the numbering of tickets, above quoted clearly interferes with and violates the voter's constitutional privilege of secrecy. It is therefore an unconstitutional provision. The voter cannot be required to submit to its application the ticket offered by him. The defendant's demurrer was properly overruled, and the order overruling the same is accordingly affirmed. This decision was made subsequently to the election in controversy, but is it not retroactive in its effect upon this case ?

It declares that the word "ballot" means secrecy and absence of every external mark whereby the elector who has cast the same can be identified. A ticket identified by placing the voter's name, or a number indicative of his name upon it, is not a "ballot" in the sense of the constitution; and has, therefore, no right to be placed in the ballot-box. When the court decided that such identified tickets were not "ballots” it certainly follows that they are not entitled to be counted as "ballots.” Briefly stated, the argument may be thus summed up:

1. Members of Congress can only be elected in the State of Minnesota by "ballots."

2. A numbered ticket is not a "ballot."

3. Such numbered tickets, therefore, cannot be counted.

They are simply attempts to vote, but are by election officers deprived of that constitutional element of secrecy which is necessary to enable them to be counted as "ballots."

But it is not necessary to rest the decision of this case alone upon this ground. The conclusion we have reached is based on broader foundations, which reach the bona fides of the election in the precincts where those ballots were numbered. Not only were the numbered votes cast in those precincts unconstitutional and void, but they were so numbered for a corrupt and dishonest purpose, and were incompatible with an honest, fair, and free election.

All lawyers will concur that the decision of the district court was highly persuasive of, if not sufficient to control, the judgment of election officers in their action touching the validity of the statute in question. And we accordingly find (see Daily Globe, November 5, 1878, report of proceedings, offered in evidence) that in the city of Saint Paul the judges of election met the day before election, took counsel with the law officer of the city, and decided not to number the ballots. They took this course under the advice of the attorney-general of the State (as ap pears by said paper), of the county attorney of Ramsey County, of the city attorney of Saint Paul, and even of the counsel who had defended the law before the district court. These parties, the attorneys for the city and county, and the attorney defending the act, united in a card to the public advising election officers not to number the ballots. (See Saint Paul Pioneer Press, October 27, 1879.)

A similar meeting of the judges of election was held the day before the election in the city of Minneapolis (see page 134). They called upon the city attorney for his opinion on the question of numbering the ballots. He told them that the district court of Ramsey County had decided that the law was unconstitutional, and that it was his opinion, also, that such numbering destroyed the secrecy of the ballot and was unconstitutional. "They finally took a vote as to how they would conduct the election in that particular," and "decided in favor of disregarding the law," and that they would not number the ballots. The vote stood thirteen or fifteen against eight or ten (page 143).

It was thus resolved in both the cities to which alone the law applied that the ballots should not be numbered. This was considered a triumph for the supporters of Mr. Donnelly, and accordingly, the Saint Paul Daily Globe, the Democratic paper of that city, which was supporting Mr. Donnelly, announced this action in its issue of the next morning, which was the morning of election, in these words:

[From the Saint Paul Daily Globe, November 5, 1878, Exhibit B. E. A. H., on file in office of clerk of Committee on Elections.]

MINNEAPOLIS NEWS.

NO NUMBERING.

DEMOCRATS, WORKINGMEN, AND NATIONALS.

THERE IS NO FEAR OF LOSING YOUR SITUATIONS. GIVE WASHBURN A BLACK EYE. YOUR EMPLOYERS CANNOT FIND OUT HOW YOU VOTE.

The judges of election met at the council chamber at 3 o'clock yesterday afternoon to consult as to whether it would be legal, after the recent decision of the Ramsey County Court, to number the ballots. After consulting the best legal talent of the city, it was determined to receive the votes as of old, and deposit without placing the numbers opposite the different names.

This makes the thing all secure! Now, boys, go to the polls and vote as you please! The bulldozers can't rob you of your places.

Vote for Donnelly, and down with all rings.

In Saint Paul the same paper announces the resolution of the judges not to number the ballots under a head-line, "NO NUMBERS-A FREE, UNTRAMMELED BALLOT!”

This, it will be remembered, was contemporaneous history; it shows that it was understood at that time, before any contest could have been contemplated by contestant, that the numbering of the ballots would result in the intimidation of the workingmen who were in favor of Donnelly; and that if the ballots were not numbered Donnelly would secure a larger vote among the workingmen.

This newspaper, it is shown, reached Minneapolis before 7 o'clock on the morning of the election, and it had a large circulation in that city (see page 46, questions 9, 10, 11, 12). It, doubtless, aroused the friends of the sitting member to action; for we find that by 9 o'clock, the hour at which the polls opened, a decision had been reached to number the ballots in seven out of fifteen election precincts of Minneapolis. It is charged by contestant in his brief that these precincts were largely inhabited by workingmen; and this statement was not denied by the counsel for the contestee in his brief. It appears (page 181) that in one · precinct (second, of the fourth ward), all the voters were workingmen; and the returns of the votes of previous elections show that a large Democratic vote was cast in these precincts.

If the numbering of the ballots had been the result of an innocent mistake on the part of the judges of these seven precincts; if they had been ignorant of the decision of the district court of Ramsey County declaring such numbering unconstitutional; if there was no evidence to show fraud or intimidation, we should not be in favor of casting out the votes of these precincts simply for the reason that the ballots had been numbered. This was the view taken by the election committee in the case of McKenzie vs. Braxton, seventh district Virginia (Contested Elections, 1871-76, page 20). The committee (McCrary, chairman),

says:

Although it would be possible, from the numbering of the ballots, to ascertain how each person voted, it is not claimed in this case that this was done, or that the tickets were voted for any such purpose, or for any improper or unlawful purpose whatever. The question of intent, therefore, is the true question at issue, and all the circumstances in the case under consideration point to a corrupt intent:

1. A cloud of bribery surrounds the vote of the whole city, which the contestee has made no effort to dissipate.

2. There is evidence showing a widespread conspiracy among the employers of labor to corrupt and, where they could not corrupt, to intimidate their workmen.

3. The testimony shows that the workmen were intimidated, and that they believed that they would lose their means of subsistence if they voted against Washburn.

4. The judges of election knew that the numbering of the ballots had been declared unconstitutional by a court of record second only to the supreme court in dignity; by the attorney-general of the State; by the city attorney of Saint Paul; and by the county attorney of Ramsey County; and that even the attorney who had defended the constitutionality of the law in the district court had advised judges of election not to number the ballots.

5. They had been told by their own law officer, whose opinion they had requested, that it would be unconstitutional to number the ballots, inasmuch as it violated the secrecy of the ballot.

6. They knew that the supporters of Mr. Donnelly believed that the

numbering of the ballots would prevent a free and fair election, and would result in the intimidation of the workmen.

7. They had deliberately voted by a large majority not to number the ballots.

There can be but one explanation of the intent with which they reversed this deliberate action. It was done to prevent a fair election, and to give the employers of workingmen an opportunity to still further intimidate them by preserving a record of how the men voted whose means of life depended upon the good-will of those who employed them; the workingmen well knew that the ballot-boxes could be opened at any time in any real or pretended contest and the character of their votes revealed.

Only bold and reckless men would have dared to set their private judgment, as laymen, against the judgment of the district court of Ramsey County, against the judgment of the attorney-general and of the law offices of their own city, upon a question of law, and against the opinions of two-thirds of the judges of election as expressed at the meeting of judges the day before. In doing so they ran counter to and de- · fied the settled opinion upon the question. These seven precincts were the only precincts in the two cities Saint Paul and Minneapolis-where there were over thirty precincts-in which the ballots were numbered in the year 1878.

It must be remembered that the testimony shows that among the twenty-one judges of election of these seven precincts, who thus reversed the action of all the judges of the city of the day before, there was but one judge who was a friend of Mr. Donnelly (see pages 195197); and even he did not swear that he was a supporter of Mr. Donnelly, but only that he was "understood" to be such (see page 136). By law Mr. Donnelly, as the candidate of two political parties, should have had fourteen supporters among these twenty-one judges; in effect, he had not one. (See section 1 act of March 12, 1878.) This extraordinary action was therefore taken by twenty-one judges who were the political partisans of Mr. Washburn; and no explanation is offered by Mr. Washburn or themselves for their course.

The very fact that in these seven precincts Mr. Donnelly had been deprived by the city council of Minneapolis of all representation among the officers conducting the election is, in itself, a very strong proof of conspiracy and fraud.

It appears by the testimony of one witness, a Democrat (page 137), that he offered his ballot at one of these precincts and requested that it be placed in the ballot box without being numbered; this was refused; the judges refused to permit him to vote unless he voted a numbered ballot; this he declined to do, and he did not vote. It appears that large numbers of workmen did not vote for fear of losing their places (p. 113). It is an established principle of law that where voters are kept from voting by an illegal requirement of the election officers, it voids the election at such polls. (See McCrary's Amer. Law Elections, section 89; Scranton Borough Election, Brightly's Election Cases, page 455.) It is evident that large numbers of Democrats, from some cause, did not vote at all at said election in that city.

Two years previously, at the Presidential election of 1876, the vote of Minneapolis stood as follows (see Saint Paul Pioneer-Press, November 9, 1876, in Congressional Library):

Hayes
Tilden

Total

4, 0903 3,743

7,841