Scribner v. Sachs

Mr. Justice Schaefer, dissenting:

“The whole purpose of the ballot as an institution is to obtain a correct expression of intention, and if in a given case the intention is clear, it is an entire misconception of the purpose of the requirements to treat them as essentials, — that is, as objects in themselves, and not merely as means.” Wigmore, Australian Ballot System, 2d ed., p. 195.

The opinion of the court concedes (1) that the check marks and the “yes” votes in this case clearly show the intention of the voters, and (2.) that they are not identifying marks. Nevertheless the court holds that they are not to be counted. That result appears to be based upon a fear that if these clear indications of intention are counted, “thousands of election officials” will be confronted with the task of interpreting “numberless possible symbols” that might be used by “millions of voters.”

There have been problems of interpretation in the past. Ballots marked with an “irregularly-shaped mark, similar in form to the letter T,” have been counted, (Slenker v. Engel, 250 Ill. 499 ; Brents v. Smith, 250 Ill. 521 ; Arnold v. Keil, 252 Ill. 340, 344 ,) as has a ballot marked with a character “something like the letter A.” (Hennessy v. Porch, 247 Ill. 388, 391 .) In Hogdson v. Knoblauch, 268 Ill. 315 , a ballot was counted on which in “several instances the voter brought the lines together practically at right angles, but one line did not cross the other.” A St. Andrew’s cross has been counted, (Isenberg v. Martin, 293 Ill. 408, 413 ); so have ballots marked (||) and (Winn v. Blackman, 229 Ill. 198, 210 .) Problems of interpretation like these, and the many others that have arisen, will arise in the future. They can not be wished away by failing to count the simple and straightforward expressions of intention that are now before us.

I would reverse and remand so that the ballots in question can be counted and the will of -.the people ascertained.