
    HOUSE —1895.
    
      Committee on Elections. — Messrs. Solon Bancroft of Beading, Theodore K. Parker of Winchendon, Henry C. Bliss of West Springfield, William W. Towle of Boston, George T. Sleeper of Winthrop, Eugene M. Moriarty of Worcester, Joseph J. Norton of Boston.
    Walter Adams v. E. Lewis Moore.
    House Document, No. 475.
    Report by Messrs. Towle, Sleeper, Bliss and Parker; Messrs. Bancroft, Chairman, Moriarty and Norton dissenting.
    
      Irregular Marking of Ballot. The provisions of the statute, section 162 of chapter 417 of the Acts of 1893, designating the place where the voter shall mark the cross are directory rather than mandatory; and even if the cross is not marked as directed, the vote will be counted if the intent of the voter can be ascertained.
    
      Same. It is not within the intent or meaning of the statute, except where expressly provided, that a voter may signify his intention to vote for more than one person by means of a single cross.
    
      Same. Vote not Counted,. Where two representatives are to be elected in a district, and the names of two of the candidates, Adams and Frost, appear one just below the other upon the ballot, a cross marked outside and to the right of squares opposite the names — the intersection of the cross being slightly below the line beneath the name of Adams and more nearly opposite the name of Frost — will not be counted as a vote for both or either of the candidates.
    EdgaR R. Champlin for sitting member.
    
    John D. Long for petitioner.
    
   The Committee on Elections, to whom was referred the petition of Walter Adams that he may be declared to be duly elected member of the House of Representatives for the twenty-eighth Middlesex representative district instead of the present sitting member, E. Lewis Moore, submits the following report: —

The above petition was received Jan. 8, 1895, and referred to this committee January 9, and the committee gave a hearing to all parties interested upon the 23d of January.

The twenty-eighth Middlesex representative district is composed of the towns of Framingham, Sherborn, Wayland and Holliston, and is entitled to two representatives.

The candidates other than the petitioner who received votes for representative were Thomas W. Frost, John Heffron, George A. Leach and E. Lewis Moore.

According to the official returns, on recount, the vote for representative was as follows : —

Adams, 1,175 ; Frost, 909; Heffron, 153; Leach, 1,185; Moore, 1,177.

The petitioner alleged “that at and during the recount of votes in the town of Sherborn, a certain ballot was counted as a vote for Moore and Leach whereon there was no cross or other mark sufficient to indicate the intention of the voter casting the same to vote for said Moore; ” and further, “ that at and during the recount in the town of Framingham, a certain ballot was thrown out, rejected and disallowed as to the petitioner whereon was a cross against the name of the petitioner, outside the box or square at the right of the name of the petitioner, as printed on such ballot.”

The powers of the House and of this committee are conferred by the Constitution of this Commonwealth, chapter 1, section 3, article 10, which provides that the House of Representatives shall be the judge of the returns, elections and qualifications of its own members, as pointed out by the Constitution.

It was agreed by counsel that the recount of votes in the various towns composing the district was in every way correct, with the exception of the counting of the ballot mentioned in the petition, in the town of Sherborn, and the rejection of the Framingham ballot.

Evidence was received establishing, in the opinion of the committee, a prima facie case sufficient to warrant the committee in recounting the two ballots above mentioned, which were then produced and duly identified. Upon inspection, the marks upon the Sherborn ballot so clearly indicated the intention of the voter to cast his ballot for the sitting member that counsel for the petitioner withdrew the objection to allowing the same, and the official returns, on recount, in the town of Sherborn were allowed to stand.

The question then remaining for the consideration of the committee was that of counting or rejecting the Framingham ballot, which, if allowed for the petitioner, would make the result in this district, as between the petitioner and sitting member, a tie.

The ballot in question was cast in Precinct 1 in the town of Framingham; and while in all other respects the voter, wherever he marked any crosses against the various names to be voted for, did so in a plain and intelligent manner, placing a distinct and well-defined cross in the squares at the right of such names, at that part of the ballot containing the names to be voted upon for representative there appeared a cross, which was marked at the right of the names of Adams and Frost, outside and to the right of the boxes or squares, the intersection of the cross being slightly below the line beneath the name of Adams, and more nearly opposite the name of Frost.

The following is a diagram of the portion of the ballot in question, showing the location of the cross : —

Section 162 of chapter 417 of the Acts of 1898 provides that “ the voter shall prepare his ballot by marking in the square a cross at the right of the name and designation, if any, of the candidate of his choice for each office to be filled, or by inserting the name of the candidate of his choice in the blank square provided therefor, and marking a cross in the square at the right of the same; and section 173 of the same chapter provides that “if a voter marks more names than there are persons to be elected to an office, or if for any reason it is impossible to determine the choice of the voter for any office to be filled, his ballot shall not be counted for such office.”

Your committee takes the view that the provision of section 162 is directory rather than mandatory ; and all authorities are agreed that the intent of the voter, when it can be ascertained, is supreme. But, in the opinion of your committee, it is not within the intent or meaning of the statute, except where expressly provided, that a voter may signify his intention tc vote for more than one person by means of a single cross.

Nor is the committee inclined, in the absence of statutory provision, to establish the precedent of irregularly counting a single cross for two candidates where there is doubt as to the one for whom the cross was intended ; and that, in the present case, from the location of the cross, and from all the circumstances, it is impossible to decide that the voter intended to cast his ballot for the petitioner, and therefore your committee recommend that the petitioner be given leave to withdraw.

Mr. Bancroft

dissented, and expressed his views as follows: —

I dissent from the report of the majority of the committee upon the question as to whether or not the Framingham ballot should be counted.

There can be no doubt that the mark or cross made in that part of the ballot containing the names of the candidates for representative was intended by the voter to indicate his choice for that office, and it should be counted unless there is some provision of the law which prevents it. The only portion of the statutes cited by the majority as furnishing a reason for rejecting the ballot is a clause from section 173 of chapter 417 of the Acts of 1893, which says : “ If a voter marks more names than there'are persons to be elected to an office, or if for any reason it is impossible to determine the choice of the voter for any office to be filled, his ballot shall not be counted for such office.” In this case he did not mark more names than there were persons to be elected to the office; and the only question open is, whether it is impossible to determine his choice. The ballot contains the names of all candidates nominated for the various offices to be filled, arranged in groups, the candidates for each office in a separate group, preceded by the name of the office and a direction as to the number to be voted for. With the exception of the candidates for representative, the direction was given, in each case, “ Mark one,” and the voter in every such case in which he voted made a cross in the prepared square opposite the name of a candidate. At the head of the list of candidates for representative was the direction, “ Mark two,” and the voter made a larger cross outside of, and at the right of, the squares, with its intersection as nearly opposite the line separating two names as could readily be made, except by an experienced artist. He had a right to vote for both of these candidates. The placing of the larger cross so that it would naturally designate both, when contrasted with his method of marking in all cases where he had a right to vote for only one, would seem to make it perfectly clear that it was his intention to vote for both.

Assuming that it appears clearly to be the intention of the voter to indicate his choice, by the one cross, of the two candidates he wished elected, there is nothing in the statutes which forbids its being counted for both. As the uniform rule in this Commonwealth, as laid down by the supreme judicial court and by previous legislatures, requires that effect be given to the intention of the voter, if possible, this vote should be counted.

Messrs. Moriarty and Norton

dissented, and expressed their views as follows : —

We dissent from the report of the majority because we are-clearly of the opinion that the vote in dispute was intended for Walter Adams. It is certain that the voter intended to vote for one or both of the Democratic candidates for representative; There can be no escape from that conclusion; no member of the committee undertakes to deny that fact.

If, then, the view of the chairman of the committee, that the voter intended to vote for the two Democrats, be correct, the ballot should be counted for Mr. Adams and for Mr. Frost.

While we admit that this is not an unreasonable view to take of the question, our conviction is that the man who cast the disputed ballot intended to vote for Walter Adams. It was cast in Mr. Adams’ precinct, and therefore may be fairly claimed to have been cast by one of his neighbors. This neighbor, who voted a Republican ticket generally, passed by the candidates for senator without voting for any of them. He came to the name of Mr. Adams, and instead of marking a cross (X) in the square opposite the name he marked the cross (x) on the margin of the ballot opposite the line upon which was printed Adams’ name. The voter took the line for his guide in marking the cross (X),— a very natural thing to do.

[Upon the report of the committee, Mr. Bancroft moved to substitute for the recommendation therein, leave to withdraw, a resolution providing for a new election in the district. After debate, the House refused to substitute the resolution upon a yea and nay vote of 39 yeas to 148 nays, and the report was accepted.]

It does seem to us that there is no sense in the argument that the voter intended to vote for Mr. Frost, and for Mr. Frost only, because the point of intersection of the cross is a hair’s breadth below the dividing line between the names of Adams and Frost. If the voter had any such intention as that he would not have begun his cross (X) away up in Mr. Adams’ box. People generally make a cross (X) by drawing the lines downward and not upward. Assuming this to be correct, the point at which the cross (X) was begun clearly disproves the theory of an intention to vote for Mr. Frost, and Mr. Frost only.

It seems to us clear, then, that if the voter did not intend to vote for the two Democratic candidates for representative he certainly intended to vote-for one of them, and that one was Walter Adams, in whose box the cross (X) was begun and opposite whose line the intersection of the cross (x) is. The vote should be counted for Walter Adams, unless the intention of the voter is to be ignored.  