^. OREGON ElfCnON
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES
 
 
 V 
 
 Oregon Election. 
 
 EFFECT OF A MAJORITY OF VOTES CAST 
 
 FOR A CANDIDATE 
 
 CONSTITUTIOMLLY DISQUALIFIED. 
 
 SAN FRANCISCO: 
 
 JoSEPn WiNTEUBURN & Co., PeISTEES AND ElECTROTYPERS. \ 
 
 417 Clay Street, between Sansome and Batterj-. ' ;' 
 
 C J't^^X 1876. ^'^S V 
 
 ■•^^. o 
 
 'V
 
 p 
 
 CX3 
 
 Hon. JAxMES K. KKLLY, 
 
 Dear Sir : — I have examined the question 
 presented under the Constitution of the United 
 States, and the Constitution and laws of Oregon 
 as to votes cast for the office of Elector of Presi- 
 dent, in favor of persons holding office under the 
 general government, with the following result. 
 
 1. The Constitution of the United States pro- 
 ^ vides for the appointment of Presidential Electors 
 - by the several States. The appointment is to be 
 made in such manner as the State Legislatures may 
 ^ direct, '' But no person holding any office of trust or 
 profit under the United States shall be appointed an 
 Elector y The Legislature of Oregon has devolved 
 the appointment of Electors on the people, and 
 declared that those having the highest number of 
 votes, at an election held for the p.urpose, shall be 
 the Electors for the State. But as that Legisla- 
 ture had neither the intention nor the power to 
 override the Constitution of the United States, 
 this legal provision must be understood to refer to 
 persons competent to be chosen as Electors ; and 
 to enact that the persons, not disqualified, who re- 
 ceive the highest number of votes, shall be deemed 
 to be chosen. So far it seems to me there is no 
 room for doubt. 
 
 THE LIBRARY^- 
 UNIVERSITY OF CALIFORNIA 
 XOS ANGELES
 
 2 
 
 2. What then is the effect of votes cast for a Fed- 
 eral officer for the position in question ? It seems 
 to ine that such votes, which are merely an at- 
 tempt by individuals to override the Constitution 
 of the United States, are simply void. The per- 
 sons who have engaged in such unconstitutional 
 attempt have, in effect, thrown away their votes, 
 just as if they had voted for a dead man, or a fic- 
 titious person, or voted a blank. Hence the only 
 efficient votes are those cast lor persons capable 
 of being chosen; and, of them, the requisite num- 
 ber, highest on the poll, are those appointed. 
 
 3. The next question is how and by whom is 
 this disqualifying fact to be ascertained, for it is evi- 
 dent that it mast be ascertained, in some official and 
 authoritative manner. To answer this question 
 we must examine the election law of the State of 
 Oregon, to see on whom it has devolved the duty 
 of passing on the legal effect of the votes cast, and 
 pronouncing judgment as to who is chosen. 
 
 The mode of canvassing the votes at an election, 
 as regulated by the laws of Oregon, is quite sim- 
 ple. The officers of election in the several pre- 
 cincts certify and return to the County Clerk, the 
 number of votes cast in the several precincts, the 
 names of the persons voted for, and the number 
 of votes cast for each."'^' The County Clerk calls to 
 his assistance two Justices of the Peace, as official 
 witnesses, and from the various precinct returns 
 filed in his office computes the whole vote of the 
 
 General Laws: Chap. XIV, Tit. II, pp. 570, 571.
 
 County; makes lists of the persons voted for, and 
 the number of votes cast for each, and transmits 
 them to the Secretary of State; and this last 
 named officer, in the presence of the Governor, 
 compiles from the several County returns before 
 him the votes of the whole State. t So far, the 
 work is purely arithmetical, and is confined to 
 subordinate and merely ministerial officers. The 
 Governor is then directed to " grant a certificate 
 of election " to the persons having the highest 
 number of votes, and to " issue a proclamation de- 
 claring the election of such peisons.^'X It seems to me 
 plain that here is the point at which any disqual- 
 ification against a person voted for must be 
 alleged and shown. The Governor is not only re- 
 quired to be a witness to the canvassing by the 
 Secretary of State, so as to guard against mistake 
 or malfeasance, but he is to declare officiall}^, as the 
 chief magistrate of the commonwealth, and on its 
 behalf, the legal result of the voting. He is to make 
 known in the most formal and solemn manner, by 
 certificate of election, under the great seal and by 
 public proclamation, the names of the persons 
 whom the State has appointed to be her Electors. 
 He can not be called on to certify and proclaim 
 that the State has appointed one whom the Con- 
 stitution of the United States has forbidden her 
 to appoint, and whom, therefore, in law she has not 
 appointed. His oath of office as Governor expressly 
 forbids him. .(See Const. Oregon, Art. XV, Sec. 3.) 
 
 t General Laws: Chap. XIV, Tit. Ill, p- 573. 
 t Id. ib, Sec. 37.
 
 It is for him, therefore, when the arithmetical com- 
 putations have been completed, to ascertain 
 whether any, of thoseVoted for, are constitutionally 
 disqualified, and, if he finds such to be the fact, to 
 disregard such unconstitutional votes, just as if 
 they had not been cast. 
 
 4. This view, the natural and logical result of the 
 constitutional and legal provisions bearing directly 
 on the subject, is confirmed by the absence of any 
 provision whatever, for ascertaining the qualifica- 
 tions of persons, voted for as Electors, by any 
 other authority than the Governor; so that in 
 fact, unless the duty in question devolves on him, 
 it cannot be discharged at all. And here it may 
 be laid down, as an axiom, that all inhibitory 
 provisions of the Constitution of the United 
 States are self -enforcing, and need no State legis- 
 lation for that purpose; for, otherwise, it would be 
 in the power of the States, by mere failure to legis- 
 late, to nullify or frustrate the fundamental law. 
 Hence it follows that, in the absence of any pro- 
 vision of law in Oregon for ascertaining the dis- 
 qualification of Electors, such duty devolves by 
 force of the Constitution of the United States on 
 the officer who has to ascertain and promulgate 
 the legal result of the election. 
 
 It derives additional confirmation from the pro- 
 visions of Art. XII of the Constitution of the 
 United States, which directs the Electors of Presi- 
 dent and Vice President to meet in their respect- 
 ive states, and vote for those officers by ballot, and
 
 that the lists transmitted to the seat of govern- 
 ment shall contain onlij the names of the persons voted 
 for and the number of votes cast for each. Tliis pro- 
 vision puts it out of the power of the houses of 
 Congress, when they assemble to count the votes, 
 to ascertain for whom a disqualified Elector cast 
 his vote. It is clear therefore that disqualifica- 
 tion must be ascertained before the certificate of 
 election is granted, and that the Governor of the 
 State is the person to perform that duty. 
 
 5. The course usually pursued in cases of elec- 
 tion to the ordinary offices of government, of giving 
 the certificate of election to the person having the 
 highest number of votes, and leaving the title to 
 the office to be tried in the Courts, on a writ of 
 quo ivarranto, is inapplicable to Presidential Elec- 
 tors. In case of ordinary offices, all citizens are 
 eligible, and a question which goes behind the 
 election returns and involves the determination of 
 facts dependent on the testimony of witnesses, as 
 ex.gr., double voting, bribery, intimidation, etc., can 
 only be tried by a court having the power to com- 
 pel the attendance of witnesses, and the other 
 judicial means of ascertaining truth. Such ques- 
 tions have accordingly been so tried from time 
 immemorial. But where, by the fundamental law, 
 the existence of a particular fact, which all per- 
 sons are bound to take notice of, constitutes an 
 absolute disqualification against being chosen, 
 there is no power in the State to choose such a 
 person, and every attempt to do it is wholly 
 void — a mere nullity.
 
 6 
 
 Another conclusive reason against a trial by 
 qao warranto is that, from the peculiar character 
 of the office, the writ could not possibly afford a 
 remedy. The Electors are chosen within the first 
 eight days of November; thirty days thereafter 
 are allowed by law for transmitting the returns 
 and completing the canvass, by the Secretary of 
 State; yet, on the first Wednesday of December, 
 twenty-nine days after the election, at most, the 
 Electors are to meet, and cast their votes. A few 
 hours, a day or two at most, can elapse between 
 the issuance of the proclamation and certificate of 
 election, and the completion of the only duty to 
 be discharged by the Electors. To say that a pro- 
 vision of the Constitution of the United States is 
 to be set at naught, unless within those few hours 
 an action of quo luarranto can be commenced and 
 brought to a final determination, is to propose a 
 mere mockery of the fundamental law. 
 
 Evidently there not only is no legal mode of 
 trying, judicially, the title to the office of Elector 
 of President, but it is impossible to provide one. 
 No legal proceeding involving judicial determina- 
 tion of such right, by a Court, could possibly be 
 completed between the conclusion of the canvass 
 of the popular vote and the discharge of their sin- 
 gle official duty, by the Electors commissioned. 
 Hence no other construction consistent with the 
 supremacy of the Constitution of the United States 
 can be given to the election law of Oregon than 
 that above indicated.
 
 It is objected that the duty of determinii)g, ou 
 a given state of the poll, who is entitled t(j the 
 office, is judicial in its character, and can not be 
 devolved on an executive officer; but this is 
 clearly a mistake. Such determination, like ev- 
 ery other which has to be made by an executive 
 officer, before acting, in a contingency contempla- 
 ted by law, involves the exercise of judgment as 
 to whether the contingency has arisen or not; and 
 such judgment must follow legal rules. In this 
 sense, therefore, it may be said to be quasi j\id\<i'ui\ 
 in character; but it is one of a large class of du- 
 ties of that character which are constantly de- 
 volved on executive officers —sheriffs, clerks, dis- 
 trict attorneys, supervisors, heads of executive 
 departments, etc. — and which the courts iiave 
 uniformly sustained. For a similar case see Gu- 
 lick vs. New (14 Indiana R. 93). 
 
 6 . I have heard it suggested that the difficulty 
 may be overcome by the disqualified candidate's 
 resigning his Federal ofiice before accepting that 
 of Elector. But there is no warrant for such a 
 supposition. 
 
 An election is complete at the moment of closing 
 the polls. Electors have then boen chosen The 
 subsequent canvassing of the votes is merely the 
 ascertainment, by arithmetical ('oin[)ntation, of 
 the results of what has been done ; votes which 
 were invalid when deposited in the ballot-box 
 cannot be rendered valid by any subsequent act or 
 occurrence. Nor is there any room for the sug-
 
 8 
 
 gestion that a majority of votes being cast for a 
 Federal officer creates a vacancy in the Electoral 
 College. The votes for such an individual are 
 simply void, and the persons casting them have in 
 fact refrained from voting. If a vote for a dis- 
 qualified person were efficient to create a vacancy 
 in the College, a majority of the voters, by voting 
 for a whole ticket of Federal officers, might de- 
 prive the State of its Presidential vote, and nullify 
 the Constitution of the United States. 
 
 7. I am aware that there are reported cases 
 wherein it has been held that the casting of a major- 
 ityofvotesfor an ineligible candidatedoes not neces- 
 sarily result in the choice of the person next 
 highest on the poll. It is said in them, that where 
 the votes so cast have been given, hy mistake of lavj 
 or fact, the election results in no choice. These 
 adjudications, even if sound, can, for obvious 
 reasons, have no application to votes for Presiden- 
 tial Electors, given in favor of persons constitu- 
 tionally disqualified from being such ; but as they 
 are often quoted and are in conflict with other 
 American decisions, as well as with the current of 
 English authority, it is proper to examine the rea- 
 soning by which they are supported. To my 
 mind, it is wholly unsound. 
 
 The argument is given in the case of People ex 
 rel. Furman vs. Clute (50 X. Y., 451), more in 
 extenso than in any other case I have met with, 
 and 1 therefore proceed to examine that opinion. 
 
 Preliminarily, it may be observed that prece-
 
 9 
 
 dents taken from cases of private corporations or 
 municipal bodies, of practically analogous charac- 
 ter, can have but little weight in determining a 
 question of political law under our system. In 
 them the right to vote is limited to a small number 
 of privileged persons, and usually exercised viva 
 voce^ so that how each elector voted, and why he 
 so voted, can be ascertained. With us, suffrage 
 is exercised by secret ballot, and is practically 
 universal. To ascertain by whom, with what 
 amount of knowledge or intelligence, and from 
 what motives, the votes for a particular person 
 were cast, is impossible, even if it be conceded 
 that a secret ballot is legally compatible with 
 such inquiry. Hence, the suggestion that tho 
 effect of votes for a particular candidate depends 
 upon whether they were given with or without 
 the knowledge of his - ineligibility, or upon 
 whether the voters giving them deliberately in- 
 tended to throw away their votes, is wholly un- 
 tenable. When the law gives a secret ballot, surely 
 no court has a right to inquire of any citizen how 
 he voted, or what private intent he had when 
 casting his vote.. And as to indulging presump- 
 tions with respect to the knowledge or the intent 
 of many thousand persons, where there is no 
 power to conqiel evidence of the lact itself, from 
 any one of them, it is at variance with every prin- 
 ciple of judicial investigation. Yet this is precisely 
 the point on which the decision in Furman vs. 
 Clute is made to turn. Judge Folger says (p. 
 461) : '■ They who, knowing that a person is inel-
 
 10 
 
 igible to olfice hy r.3cisoii of any disqualification, 
 persistently give their ballots for him, do throw 
 away their votes, and are to be held as not mean- 
 ing to vote for any one for that office." But what 
 is it to persistently give their ballots for a particular 
 candidate ? No voter can give more than one bal- 
 lot, nor that more than once at the same election. 
 Once given, too, it is irrevocable. To persistently 
 give their ballots for a particular person, must 
 therefore mean, if it means anything, to give their 
 ballots for him at several successive elections — to 
 repeat the act of voting for him so frequently as 
 to force the Court to conclude, contrary to the 
 natural presumption, stated in another part of the 
 opinion, that they intended to throw away their 
 votes: and the context shows that this was, in 
 fact, the idea in the learned judge's mind. But 
 surely such a theory needs only to be plainly 
 stated to expose its fallacy. It assumes, without 
 any warrant, that disqualification for office is 
 something permanent in its character, and that 
 the particular persons voting for the disqualified 
 candidate at each successive election, are necessa- 
 rily the same individuals, for otherwise there 
 is no persistence. Both these assumptions 
 are clearly erroneous; for,- with rare excep- 
 tions, such as in the case of the Presidency of the 
 United States, all disqualifications are with us 
 accidental and temporary in their character (so 
 that their existence at any particular moment 
 raises no presumption of their continuance, or of 
 a belief in their continuance, at a subsequent
 
 11 
 
 time), and there are no means of ascertaining 
 whether the votes given for a {)articuhir candidate 
 at any number of successive elections do or do 
 not come from the same voters. The question of 
 persistency, therefore, would have to be settled by 
 pure guesswork. 
 
 These considerations make it clear that persist- 
 ency in voting for a candidate (on which however 
 the whole strain of the sentence rests) can have 
 no place in determining the question, for the fact 
 of ''persistence " is absolutely unascertainable by 
 law, and hence no legal consequences can attach 
 to it. The word "persistently" then must be 
 omitted from the sentence, as inadvertently used, 
 and the proposition will then read thus: "They 
 who knowing that a person is ineligible to office, 
 by reason of any disqualification, give their ballots 
 for him do throw away their votes and are to be 
 held as meaning not to vote for any one for that 
 office." So stated, the proposition is unobjection- 
 able, because it should be understood in connect- 
 ion with the fundamental maxim of all civilized 
 governments, that every man is held to know the 
 law of the land, and to know who are the officers 
 of government. But as the learned Judge does 
 not mean it to be so understood, and in that case 
 even indulges a presumption that a majority of 
 the voters were ignorant both of the law and the 
 fact, we must follow him further. 
 
 It may be assumed that the law will not allow 
 the validity of a legal act to depend on facts which
 
 T2 
 
 are perfectly capable of proof, but which the Courts 
 have no meaus of ascertaining; for that would be 
 to lodge with those tribunals the power of deter- 
 mining controversies arbitrarily. Now if there is 
 an}^ one thing w^hich transcends the physical power 
 of a Court of Justice to do (even assuming that it 
 has the legal right to inquire) it is to ascertain liow 
 many of the electors who, at a State election, cast 
 their ballots for a particular candidate di8(iualified 
 by law for the office, did so with knowdedge of the 
 disqualifying facts. It is simply a physical impos- 
 sibility, for it involves the examination of every 
 voter throughout the State, and the ascertaiament 
 from him (the only person who can have knowl- 
 edge of the fact) of what ticket he voted and what 
 the state of his knowledge was at the time he cast 
 his ballot. Fancy for a moment such an inquiry 
 instituted in New York, where at the last election 
 over a million votes w^ere polled. Even with the 
 limited vote of the smallest State it would be a 
 physical impossibility; the offer of such evidence 
 in Court would alone point out to any Judge the 
 absurdity of an inquiry wdiich a lifetime would 
 not suffice to conduct. Yet, if the validity of the 
 vote is to depend on the existence of such knowl- 
 edge, that knowledge becomes the very fact to be 
 inquired into, and the best and only reliable evi- 
 dence of it is the testimon}'- of the voter himself. 
 As to determining it on presumptions, while the 
 best evidence of the fact itself is excluded, that is 
 simply to refer it to the arbitrary determination 
 of the Judges.
 
 13 
 
 What possible facts can exist or be shown to 
 guide a Judge in ascribing, by presumption, a par- 
 ticukir intent of thousands of voters which intent 
 they have never disclosed and he has no means of 
 discovering? Most of tlie facts likely to have 
 weight, with one accustomed to the study of politi- 
 cal statistics, would in all probability be excluded 
 as incompetent evidence; and indeed all testimony 
 on the subject, except that of each individual as to 
 his own state of mind, must necessarily be of the 
 most unsatisfactor}^ character. 
 
 Nor is there any safety in permitting the results 
 of a popular election to be determined by anything 
 else than a count of the votes lawfully cast. Is it 
 not evident that iCa Court is at liberty out of the 
 same election returns to spell out two contrary 
 results, dependent upon what, in the absence of all 
 evidence, it shall presume the facts to be, the 
 power of election is taken from the people and is 
 confided to the arbitrary discretion of the Judges? 
 
 These and many like considerations, make it; as 
 I think, clear that the amount of knowledge 
 possessed by the voter, and his secret intent in 
 casting his ballot, are matters with which neither 
 Courts nor returning officers have anything to do. 
 The result of the election depends on the votes 
 lawfully cast, and on them alone, and there can be 
 but one rule for ascertaining it. The law in such 
 cases deals simply with the act and can know 
 nothing of any intent save what the act itself in- 
 dicates. Suppose a voter writes on his ballot a
 
 14 
 
 declaration that ho intends to throw away bis 
 vote; is it for that reason not to bo counted in 
 favor of the candidate' whose name is inscribed on 
 it ? Suppose he heads his ticket with the declara- 
 tion that it is the regular Democratic ticket, 3'^et 
 the names on it are those of the candidates of the 
 opposite party; are the returning officers, or is a 
 Court, authorized to amend the ballot so as to 
 conform to the intent of the voter ? There can 
 be but one answer to these questions; yet in both 
 these cases the amendment would be made con- 
 formably to the intent of the voter, as shown by 
 the ballot itself. In the case we are considering, 
 the proposition is that the Court may amend, not 
 one, but many thousand ballots, by indulging a 
 legal presumption that more than half the voters 
 in the State were ignorant of what every man, 
 woman and child in the state is bound by law to 
 know. Surely if there is any room for presump- 
 tion in such a case, it must be a presumption of 
 knowledge, not of ignorance. 
 
 " There may be," continues Judge Folger, " a 
 disqualifying fact so patent, or notorious as that 
 knowledge ii\ the elector may be presumed as mat- 
 ter of law." And then he quotes a suggestion of 
 C. J. Denman's that "no one can doubt that if an 
 " electorwould nominate and vote only for a woman 
 ' to fill the office of Mayor, or Burgess in Parlia- 
 '' ment, his vote would be thrown away; then the 
 " fact would be notorious, and every man ivould be
 
 15 
 
 " presumed to hioio the law upon that fad!''^' But 
 does not this dictum imply of necessity a pre- 
 sumption that every voter personally knows the 
 individual for whom he gives his vote, or at least 
 knows icho and what he is? Otherwise there is 
 nothing but the name to indicate the sex of the can- 
 didate, and names often fail to do so. Not to refer to 
 the numerous instances in which our population of 
 Spanish descent use such names as "Jesus Maria," 
 
 'The quotation is from the opinion of C. J. Denmau in Gosling vs. 
 Veley, 7Adol Sc EL, N. S., pp. 438-9. The words of the Chief Justice 
 are as follows: 
 
 "He is present as an Elector; his presence counts as such to make np 
 " the requisite numberof Electors, where a certain number is necessary; 
 ' ' but he attends only as an Elector, to perform the duty which is cast 
 " on him, by the franchise he enjoys as Elector; he can speak only in a 
 '* particular language; he can do only certain acts; any other language 
 "means nolhimj; any other act is merely null; his duty is to assist in mak- 
 «' ing an election. If he dissents from the choice of A, who is qualified, 
 "he must say so by looting for some other, aho qnnlitied; he has no right 
 " to employ his franchise merely in preventing an election, and so de- 
 " feating the object for which he is empowered and bound to attend. And 
 " this is a wise and just rule in the law. It is r.ccessiiry that an election 
 "should be duly made and at the lawful time; the electoral meeting is 
 "held for that purpose only; and, but for this rule, the interest of the 
 " public and the purpose of the meeting might both be defeated by the 
 " perverseness or the corruption of electors who mav seek some*uufair 
 " advantage, by postponement. If then the Elector will not oppose the 
 " election ot A, in the only legal way, he throws away his vote, by direct- 
 " ing it whore it has no legal force; and in so doing, he voluntarily leaves 
 " unopposed, i.e , assents to the voices of the other Electors. 
 
 " Where the disqualification depends upon a fact which may be un- 
 " known to the elector, he is entitled to notice; for without that the 
 " inference of assent could not be fairly drawn, nor would the conse- 
 " quences as to the vote be just. But, if the (Usqualificationbe of a sort, 
 " lo^'firenf notice is to he prcsum<'(l, mme need expressly he ijiren: no one can 
 " doubt, that if an elector would nominate and vote only for a woman, 
 "to fill the office of Mayor, or Burgess in Parliament, his vote would 
 " be thrown away; there the fact would be notorious; and every man 
 "would be pi-esumed to know the law upon that fact."
 
 16 
 
 "Dolores," "Concepcion/' " Buenaventura," etc., 
 indiscriminately for persons of both sexes, the 
 English-speaking race affords many similar cases. 
 " Preserved Fish" was a prominent citizen of New 
 York, and often ran for office; yet I defy any one 
 to find any indication of sex in his name any more 
 than si'.cli names as ''Desire," "Truth," "Hope," 
 "Patience," "Thankful," by which New Eng- 
 landers of both sexes are often called. The 
 names of Brigham Young, Shirley Brooks, Sid- 
 ney Morgan, Currer Bell, Acton Bell, Boston Cor- 
 bet, Milton Latham, Leland Stanford, Leslie 
 Coombs, and numerous others well known in lit- 
 erature or politics, might be given equally unin- 
 dicative of sex. 
 
 8. I have dwelt upon the case in 50 New York 
 because in it the learned Judge has given us his 
 reasoning at length, and its fallacy can be shown. 
 The other American cases may be more briefly 
 disposed of. In the State vs. Giles (1 Wis., 112), 
 the opinion of the Court on the point is clearly 
 cjratis dictum, for the candidate in that case was 
 held to be eligible. No reasoning or authority is 
 given, but merely the opinion of the Judges on 
 a question not involved in the case. In Off vs. 
 Smith (14 Wis., 497), the point was dismissed in 
 three lines, on the assumed authority of State vs. 
 Giles, which, as just shown, was and is no author- 
 ity at all. The opinion in 38 Maine, 597, does 
 not appear to touch the question; there was no 
 case at bar and no argument; the Governor*
 
 17 
 
 merely consulted the Judges us to his powers, an<l 
 they advised hiin. 
 
 The opinion of Baldwin, J., in Siiunders vs. 
 Haynes (13 Cal., 145), pixxMjeds mainly on the 
 authority of these cases. The brief reasoning- of 
 the Judge assumes, as of course, that tlie votes for 
 the ineligible candidate were given by a mistake 
 of law or fact; and that, though they cannot be 
 counted in favor of the person for whom they 
 were given, they can be counted against his oppo- 
 nent. The learned Judge in that case having 
 
 ^been of counsel for the respondent in Melony vs. 
 Whitman (10 Cal., 38), and urged that doctrine 
 in argument, was perhaps influenced, as Judge, by 
 his former views as counsel. He does not explain 
 how a vote can be given against any person 
 except by giving it in favor of some one else. Nor 
 does he give any intimation whether the pre- 
 sumption he indulged was of ignorance of the law 
 or of the fact; nor what reasoning led him to 
 such presumption. He merely says: " //' a 
 majority of those voting, hy a mistake of law or 
 
 fact, happen to cast their votes upon an ineligible 
 candidate, it by no means follows that the next to 
 him on the poll should receive the office;" and on 
 that suggestion alone he disposes of the point. 
 But\ evidently the question still remains — Weie 
 they so cast hy mistake of lain or fact? How is that 
 to be ascertained ? Is eacii individual voter to be 
 called to testify how he voted, and whether, when 
 he cast his ballot, he knew of the law declaring 
 the disqualitication and of the existence of the
 
 18 
 
 disqualifying fact? Are the intrigues, secret 
 influences and caucus deliberations of local politi- 
 cal managers to be examined into in Coui't, with 
 a view of ascertaining the influences that proba- 
 bly controlled each local vote? How. if the dis- 
 qualification be declared by the Constitution of 
 the State or the United States ? Is Ihe voter 
 to be permitted to allege his ignorance of the pro- 
 vision; or is evidence of the general character 
 and education of the inhabitants of a particular 
 locality to be admitted, as tending to guide a 
 Court in presuming their knowledge or ignorance 
 of the fundamental law ? How many elections 
 held in States or districts where a majority of the 
 voters is composed of the lately enfranchised col- 
 ored population could resist such a test? 
 
 The decision in Saunders vs. Haynes throws no 
 light on any of these pertinent inquiries. In fact, 
 an examination of that case .will show that Haynes' 
 claim to the office was contested and adjudged in- 
 valid by, reason of the misconduct of the officers 
 conducting the election. Such misconduct was 
 alleged and shown. The effect of the votes cast 
 for Turner, the ineligible candidate, was consid- 
 ered in discussing a demurrer to Haynes' s an- 
 swer, which set up that disqualification as a bar 
 to the action. The Court decided the demurrer well 
 taken; but that was a result which necessarily 
 flowed from the fact that any citizen was author- 
 ized to contest the election, and that the canvass- 
 ing officers had no jurisdiction to decide on the 
 qualification of candidates, but were merely to
 
 19 
 
 return the votes actually cast. Hence, the opin- 
 ion in that case is not authority, because the point 
 was not necessarily involved. 
 
 The other California cases are Melony vs. Whit- 
 man, supra, where Field, C. J., expresses his views 
 on it obiter in a dissenting o[)ini()n, and Crawford 
 vs. Dunbar, recently decided, ])ut now under 
 reconsideration by the same Court. 
 
 The English cases quoted in support of the doc- 
 trine do not sustain it. A leading one is Reg. vs. 
 Mayor of Tewksbury (3 Q. B., 620). In it the 
 Judges conced(^d that the voter is hound to know that 
 the candidate held the office which disqualified him; but 
 as the disqualification was matter, not of statute 
 law, but of recent judicial decision on a //oint pre- 
 viously obscure, they questioned whether th a 
 decision had come to the knowledge of the voters, 
 and thought that notice of it should have been 
 brought home to them. (See opinion of Blackburn, 
 J., 3 Q. B.. 635 & secj., and of Lush, J., on page 
 638.) I need scarce advert to the wide differ- 
 ence between a presumption of ignorance of a dis- 
 qualification resting on a judicial decision a month 
 or two old, and of one established by the Consti- 
 tution at the foundation of our Government. 
 
 The idea that votes cast for a disqualified per 
 son, though inefficient to elect him, are yet good 
 as against his opponent, appears at first sight 
 plausible; but it will not bear examination. 
 It assumes two opposing candidates for tlie 
 place, between whom the choice of the voters is
 
 20 
 
 limited, ami that every vote cast for either of them 
 affirms, in judgment of law, two distinct things, 
 viz. First, I am in favor of electing Mr. A to this 
 office; second, I am opposed to electing Mr. B to 
 it. It is only by so construing the ballot that it 
 can be deemed invalid as to the person in whose 
 favor it is cast; yet good as against the other can- 
 didate. But I submit confidently that this is an 
 erroneous construction. It is true that in common 
 parlance we speak of voting against a man, but 
 the expression is merely a popular, not a legal one. 
 The law does not invite or permit voting against 
 any candidate. It does not know such an act as 
 voting against any man.* It gives each voter the 
 right to vote in favor of whomsoever he prefers; 
 but, save by voting in favor of one who is quali- 
 lied, there is no legal way in which he can vote 
 against another. Suppose him, if you please, so 
 disgusted with all the nominations made, as to be 
 unwilling to support any of them. Has he a right 
 to inscribe on his ballot a vote in opposition to all 
 or any one of them, and could his vote, if he did 
 so, be comited for any purpose? Surelj^not; for 
 the question is not taken — Those in fav^or of Mr. 
 A will vote "aye"; those oppbsed to him, "no." 
 If a l)allot in favor of one candidate is to be 
 deemed a vote against another, and held efficient 
 in tlie latter aspect, what becomes of the law that 
 a plurality of votes is sufficient to elect? A has 
 500 votes; B, 475; and C, 475. Five hundred 
 
 * See opinion of C. J. Denman in Gosling vs. Veley, cited ante in 
 note.
 
 21 
 
 in favor of A, and 950 against him! Yet he is 
 elected, although the majority against him (popu- 
 larly speaking) is nearly two to one. If the votes 
 of the 950 supporters of B and C could be counted 
 as votes against A, he would be defeated. 
 
 In many instan(3es several persons are voted for 
 on the same ticket for the same ofHce (as mem- 
 bers of the Legislature, Presidential Electors, etc.), 
 so that no one man can, even in popular language, 
 be said to be running against a particular opponent. 
 How count these supposed negative votes, or votes 
 against an opponent in such a' case? Suppose the 
 case of Presidential Electors, six to be chosen and 
 100,000 the total number of votes cast. Mr. A, a 
 federal officer, disqualified by the Constitution of 
 the United States, is so general a favorite as to be 
 put on all the tickets and receive a unanimous vote, 
 suppose the votes as to the other five to be 
 divided substantially in tlie proportion of fifty-one 
 and forty-nine per cent. When counted, the bal- 
 lots turn out as follows: 
 
 Mr. A (a Federal officer).. has 100,000 votes. 
 
 Mr. B ■. .. ' 51,000 " 
 
 Mr. C '= 51,000 " 
 
 Mr. D " 51,000 " 
 
 Mr. E " 51,000- " 
 
 Mr. F ... " 50,900 '• 
 
 Mr. G " 40,100 " 
 
 Mr. H " 49,000 " 
 
 Mr. I " 49,000 " 
 
 Mr. K " 49,000 " 
 
 Mr. L " 49,000 " 
 
 Who are tlu> persons chosen? Against ichom
 
 22 
 
 are the 100,000 votes cast for Mr. A to be 
 counted ? Counted against any one of the other 
 ten, they will defeat him, yet he had no oppo- 
 nent, and so, in common parlance, in voting for 
 him you did not vote against any one. Further 
 illustration may be had by varying the case, and 
 supposing the Federal officer, though on all the 
 tickets, to be scratched by individuals to the ex- 
 tent of three, ten, thirty, forty thousand votes. 
 Whatever way it is put it serves to render more 
 plain the falsity of the doctrine that under our 
 system there is any such thing (legally speaking) 
 as voting against any one. 
 
 9. Stress is sometimes laid on the idea that by 
 holding votes for an ineligible candidate to be 
 void, you defeat the popular will; and Judge 
 Baldwin, in Saunders vs. Haynes, speaks of the 
 hardship of a man's being elected by a minority 
 of the voters. But this is to lose sight of the rule 
 that the popular will to he legally efficient must 
 he expressed hy legal means, and that the consti- 
 tution and the laAVs allow a minority of all the 
 voters to elect, by declaring a mere plurality to be 
 sufficient for the purpose. 
 
 Again, if it be true, that the casting of a ma- 
 jority of the votes for a disqualified person leaves 
 a Court at liberty to declare the next on the poll 
 elected, or to determine that there was no choice, 
 it would seem that the Court should have the 
 power to order a new election, for that would be 
 the natural result of the latter decision. The fact
 
 23 
 
 that no SLicli power is given to courts anywhere, 
 is. therefore, some argument against the position. 
 
 On the whole, I am convinced that the safer and 
 more reasonable rule in such cases is that laid 
 down in Hatcheson vs. Tilden and Borcly {4 H. 
 & McH 279); and in Gulick vs. New (14 Indiana, 
 93). In the latter case, the Court intimated that 
 a distinction might exist between constitutional 
 disqualifications and others, but refrained from 
 any opinion on the point; thus carefully limiting 
 its decision to the case actually before it. 
 
 The general current of the English decisions is 
 the same way. See the cases collected in Bright- 
 ley's contested election cases page 150. It is to be 
 observed hero that disqualification for office is so 
 exceptional under our (jovernment that questions 
 arising on it have rarely arisen and been but 
 loosely considered. None of the adjudged cases, 
 that I am aware of, have involved any office of 
 great public importance, or elicited a thorough dis- 
 cussion on principles of political law. 
 
 Looked at from that point of view, it will be 
 found that there is an insuperable objection to 
 entertaining any i)resumption or permitting any 
 evidence, as to knowledge, ignorance or intent on 
 the part of the voter, for the purpose of ascertain- 
 ing the result of the election. The proposal to do 
 so loses sight of the distinction between civil and 
 political acts. As to the former it is true that an 
 act done in ignorance of material facts, or with in- 
 tent to do another and dilTerent one is voidable
 
 24 
 
 and may be con-ectecl to conform to the intent of 
 the parties. If, intending to execute a deed in 
 favor of A, I sign one in favor of B, a Court can 
 reform the instrument and make it what it was 
 intended to be. If I am induced to make a deed 
 or enter into a contract, by misrepresentations or 
 concealment of material facts, the same power can 
 set aside the instrument and restore me to my 
 former right. If my agent is induced by a bribe 
 or other personal consideration to convey or lease 
 my property, I can repudiate the act and have it 
 annulled. These are cases of civil acts. But with 
 respect to political acts the rule is widely different. 
 If I am induced to vote for a particular candidate, 
 by misrepresentations, no matter how false, as to 
 his fitness for the office and the unfitness of his 
 opponent, or as to the political opinions of either, 
 the act is irrevocable, and the election valid. An 
 act of the legislature procured by direct bribery 
 of the members voting for it, is not the less a valid 
 law, and if it involves a contract, it is irrepealable 
 (Fletcher vs. Peck, 6 Cranch, 87). A pardon pro- 
 cured from the Executive by misrepresentation or 
 bribery is nevertheless unimpeachable. These are 
 instances of political acts. 
 
 If ignorance, or presumed ignorance, of a partic- 
 ular fact can invalidate a vote or change its charac- 
 ter, it is difficult to see why ignorance or misin- 
 formation on another fact, equally material in the 
 estimation of the voter, should not have the same 
 effect.' If rightly applied where the candidate was 
 an office holder, and the voter unaware of the fact.
 
 25 
 
 why not in other cases ? How if he was nominated 
 and supported on the supposition that he was a 
 member of a total abstinence society or of some 
 christian church, and represented to be such by his 
 advocates, yet it afterwards turned out that he was 
 not? And, as the act of voting usually consists 
 in a choice between opposing candidates, what 
 effect on the validity of the vote is to be attributed 
 to misrepresentations of the character or opinions 
 of the opposing candidate ? It was charged in 
 the Senate of the United States, and admitted, 
 that in 1844 Polk and Dallas were supported in 
 Pennsylvania distinctly as Protectionists. " Polk 
 and Dallas and the tariff of 1842'' were, it was 
 agreed, inscribed on every Polk and Dallas elec- 
 tion banner in that State. The majority of votes 
 in Pennsylvania which determined that Presiden- 
 tial election was, if this be true, won by direct 
 misrepresentations as to the political opinions of 
 the opposing candidates. Was any suggestion 
 heard that the election was therefore invalid ? 
 It has been alleged that the distribution of 
 Credit Mobilier Stock among members of con- 
 gress secured the passage of certain Pacific R. R. 
 legislation. If so, the persons accepting such 
 bribes could be punished criminally, but the legis- 
 lation is not the less valid. 
 
 The reason of this distinction between civil and 
 political acts is to be found in the very necessities 
 of Government, which could not be carried on for 
 a day if the validity of the latter class of acts was 
 allowed to depend on any such conditions as may
 
 26 
 
 affect the former. Hence the law presumes abso- 
 lutely, on the part of ever}^ one charged with the 
 performance of any political duty, all the knowl- 
 edge and mental capacity necessary for its complete 
 and intelligent discharge, and such presumption 
 cannot be rebutted. It is even most necessary in 
 communities of the least instruction and lowest 
 intelligence, for there controversies based on mis- 
 •representations to, imposition on, or misunder- 
 standing by the voters, would be most frequent 
 and least capable of satisfactory solution. 
 
 10. But whatever may be the rule as to minor 
 officers, or in the case of disqualifications created by 
 statute, it is certain that it can have no application 
 to a disqualification created by the Constitution of 
 the Uijited States as to any of the high officers of 
 Government. The President of the United States 
 is required to be a native born citizen. Suppose 
 some of the Presidential Electors cast their ballots 
 for Carl Schurz or some other eminent adopted 
 citizen, what becomes of such votes? Can they be 
 counted ? Evidently not. So it requires the 
 Electors, in voting for President and Vice Presi- 
 dent, to select at least one who is not a citizen 
 of the same State with themselves. Suppose the 
 New York Electors, in violation of this provision, 
 should vote, "For President, Samuel J. Tilden; 
 for Vice President, Lucius Robinson " — is the 
 country to be vexed, on this doctrine of presump- 
 tive ignorance, with an absurd discussion as to 
 whether they know that Messrs. Tilden and Robin- 
 son were both citizens of Xew York, or were aware
 
 27 
 
 of the constitutional provision on the subject ? 
 At the last presidential election votes were cast 
 in the Electoral College for Horace Greeley, who 
 was dead. No inc^uiry was made as to the knowl- 
 edge or intention of the Electors; the votes were 
 simply thrown out, and not counted in any way. 
 
 Presidential Electors are chosGn a very brief 
 time before they are to exercise the single duty 
 of their office by voting for President and Vice 
 President, There is no time 'to hold a second 
 election if the first one fails, nor any even to 
 submit to a court the question of what presump- 
 tion shall be entertained as to how many of the 
 voters whose ballots were cast for a disqualified 
 person knew the disqualifying fact, and therefore 
 intended to throw away their votes. There is 
 therefore no room for presumption upon the sub- 
 ject, and the conclusion is inevitable that votes 
 cast for the office in favor of a person disqualified 
 by the Constitution are thrown away, and that 
 the next highest candidate who is eligible is 
 elected. 
 
 Yours respectfully, 
 
 JOHN T. DOYLE. 
 
 San Francisco. Dec. 1st. 187t). 
 
 a9U91.'5
 
 28 
 
 The undersigned concur in the foregoing opin- 
 ion. 
 
 San Francisco, December 2d, 1876. 
 
 Delos Lake, Eugene Oasserly, 
 
 John S. Eager, John R. Jarboe, 
 
 Edmund L. Guold, Harry I. Thornton, 
 
 Philip G. &alpin, Edward J. Pringle, 
 
 Sydney L. Johnson, John Garber. 
 
 I think the foregoing opinion is a sound expo- 
 sition of the law applicable to the choice of 
 Electors. 
 
 Henry H. Haight.
 
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