Laird v. Williams

Carter, C. J., and Cartwright, J., dissenting:

We cannot concur with the reasoning of the foregoing opinion. Section 22 of the Australian Ballot law, quoted in the opinion, gives all that is required by law as to the endorsing of the initials of the judge upon the ballot. This .court has said that the object of requiring one of the judges to endorse his initials on the.ballot which is given the voter is to identify the ballot as one which had been cast at the election. (Perkins v. Bertrand, 192 Ill. 58 .) It was also held in that case that the endorsing of one initial of a judge was a substantial compliance with the statute and all that is required. It was further held in the same case that the endorsing of the full name of the judge was a substantial compliance with the statute and justified the counting of such a ballot. Of course, if this provision of the statute is considered mandatory in the full sense of that term, then, in order to comply, all of the initials of the judge who hands out the ballot must be endorsed thereon and not one initial, alone. Neither is the full name a compliance. The first time that this court ever squarely decided that a ballot without any initials of any of the judges could not be counted was in Slenker v. Engel, 250 Ill. 499 , and while that decision was by a divided court it is now the law in this State. In Gill v. Shurtleff, 183 Ill. 440 , this court held that where a legal voter properly prepares his ballot and the same is placed in the b.allot-box it should be counted, though some one of the election officials, without participation of the voter, made an endorsement on such ballot which might serve as a distinguishing mark. That rule has been sanctioned by this court in Perkins v. Bertrand, supra, (p. 64,) and Kerr v. Fleweiling, 235 Ill. 326 . Never before the foregoing opinion has the majority of this court held that, though the initials of one of the judges were endorsed on the ballot before it was given out, if the judge who gave out the ballot endorsed the initials of another judge instead of his own it could not be counted. While the point was raised in Winn v. Blackman, 229 Ill. 198 , it is clear from reading the opinions in that case that the majority of the court did not agree with the holding in the foregoing opinion. The doctrine laid down in this opinion makes, it possible for the voter to be disfranchised by the judges of election and gives no practical opportunity for the voter to prevent this. In a large city many voters frequently are personally unacquainted with some, if not all, of the judges, and while it is held a correct precaution to require the voter to see that a ballot when it is given him is endorsed with the initials of one of the judges, it is impossible, unless a votér knows personally each of the judges, to decide whether the judge who gives out the ballot has endorsed his own initials on the ballot. In our judgment it is most unwise to deprive a voter of his vote through the action, mistaken or otherwise, of the election officials where the voter himself is not at fault and the ballot itself shows that it is a genuine official ballot, delivered to the voter by one of the judges.

We do not think the argument of the opinion that a judge can more readily recognize his own handwriting when he writes his own initials than he can if he writes the initials of another judge should be controlling in the construction of this statute. It seems to us that argument has very little merit. If the purpose of the law in requiring these initials is to require the voter to be sure that the ballot is a genuine one by causing him to examine whether the initials of a judge are upon the back of the ballot before it is voted, that purpose is fully accomplished if one of the judges in his own handwriting places the initials of one of the other judges upon the back of the ballot. It seems to us that the ballot can be, for all practical purposes, as readily identified by the judge under such circumstances as it could if he wrote his own initials. Beyond question these ballots were genuine ballots, and we think they should be counted.

It was not the intention of the legislature to require the statute to be construed in the manner this opinion construes it, and a conclusion is reached not only unjust, but one that will, in our judgment, fail to aid in accomplishing the chief purpose intended by the Australian Ballot law,—that is, that the ballot should be absolutely secret and that every legal voter should have a right to cast his vote secretly and have it counted as it was cast.