THE PEOPLE v. CICOTT. legally elected to the office in question,"— §§ 76, 132, 133. In case the state canvassers (who can only count the votes certified to them) find a tie vote, the Legislature have power to choose between the candidates.- Const. Art. 8, §5. In these cases there can be no further scrutiny, and in the case of state officers, if such a scrutiny were had, no end could be reached within any reasonable time, and there would be a practical impossibility in attempting to conduct it in any time within the official term, or to approach accuracy in a count of some thousand or more of ballot boxes before a jury. Yet state officers are not less important to the private elector, and, of course, are not to the community at large, than local. And the nearer a vote approaches a tie, the more likely it is that a rigid scrutiny might change its character. There is no more reason for preventing investigation behind the ballots in the one case than in the other. The statute also takes very efficient measures to prevent any needless litigation, by shutting out any preliminary resort to the means of information. If the officers do their duty, no one else can ever know whether their count is correct or not, until a suit is brought and issue joined upon it. The ballots are required to be sealed up, and not opened except for the inspection of the proper authorities in case of a contest.-§ 65. The only ballots open to public inspection are those which are rejected upon the canvass for defects apparent on their face.-§ 65. sealed up with the rest, but are filed. be determined by inspection whether votes which have been thrown out should have been counted, the law does not seem to favor any unnecessary disturbance of the official returns, and any one who assumes to dispute an election is compelled to begin his suit before he can have access to the means of proof. This is not the usual course of litigation, and the rule has a strong bearing upon the policy to be deduced from the law. These ballots are not While, therefore, it can THE PEOPLE V. CICOTT. Under our statutes there is no general provision which makes the canvass for local officers conclusive in all cases, and, therefore, the rule is recognized that the election usually depends upon the ballots, and not upon the returns. These being written and certain, the result of a recount involves no element of difficulty or ambiguity beyond the risk of mistakes in counting or footing up numbers, which may in some respects be more likely in examining the ballots of a whole county, than in telling off those of a town or ward; but which involves no great time or serious disadvantage. But the introduction of parol evidence concerning single voters in a considerable district can rarely reach all cases of illegality effectually, and must so multiply the issues as to seriously complicate the inquiry. And when we consider that for very many years legislation has been often modified for the very purpose of suppressing illegal voting, and when we know that hundreds of elections must have been turned by the ballots of unqualified voters, the absence of any body of decisions upon the subject is very strong proof that inquiry into private ballots is felt to be a violation of the constitutional safeguard on which we pride ourselves, as distinguishing our elections from those which we are wont to regard as conducted on unsafe principles. No system can be devised which will prevent all illegal voting. But it can not be said our legislation is not as likely to shut it out as any means open to judicial control would be. The registration law forbids the board from recording any name of which they have well-founded doubts, and it is practically impossible for any stranger to succeed in defrauding the law, with the publicity given to all the proceedings. Where a person applies for registration on election day, the inspectors act upon discretion, and are not compelled to admit a vote unless satisfied of its legality. The challengers on both sides, as we all know, canvass every district beforehand, and expect to challenge every one who is not known. While the inspectors can not reject a THE PEOPLE v. CICOTT. registered voter who takes the proper oath, yet the means of previous inquiry, and the imminent risk of detection and punishment, have reduced the dangers of illegal voting within very narrow limits. I do not see how the law could go further, and allow a scrutiny of single ballots, without violating the constitution, and I think no such intention is fairly deducible from any of our statutes. I am, therefore, of opinion that the election must be determined solely by the ballots received according to law; and that where the election proceedings are not irregular, and the law has been complied with in correcting the lists and preserving the ballots, the means of determining the result must be in the main arithmetical. The present case, however, presents some points arising out of an excess of ballots in some precincts, an alleged failure in one town to preserve the box in security, and questions concerning the propriety of counting some slips and imperfect tickets. The most important inquiry among these is what effect the excess of votes over the names of voters appearing on the poll lists has upon the election in the township, or ward, or in the county. This can only be determined by ascertaining what the statute has provided concerning the conclusiveness of these lists. Under the registration law, the inspectors of election are required to keep before them the registered list of voters, and not to receive the vote of any person not registered.- Laws, 1859, p. 488. This renders necessary some system of checking, to prevent double voting; and while the law does not prescribe it, the evidence shows it was resorted to in this case, and seems to be a practical necessity. Two clerks of election are also to be appointed, whose duty it is to keep separate and independent lists, in order that in case of doubt one may furnish the means of correcting the other. At each adjournment, as well as at the final closing of the polls, these lists are to be compared, and any THE PEOPLE v. CICOTT. mistakes in either corrected. by the decision of the board, so that they shall be made to agree, before any further business is done, and before the ballots are counted or examined. Comp. L. §§ 44, 53, 54, 59, 60. Before the election commences, the ballot-box is to be thoroughly examined, to be sure that nothing remains in it, and precautions are provided against any subsequent unauthorized opening-§§ 51, 55, 56. When the poll lists are made to correspond, the ballots are to be counted without opening, "except so far as may be necessary to ascertain whether each ballot is single: and if two or more ballots shall be found so folded together as to present the appearance of a single ballot, they shall be destroyed, when the number of ballots shall be found not to agree with the poll lists, as provided in the next section." This directs that, "if the ballots in the box shall be found to exceed in number the whole number of names of electors on the poll lists, they shall be replaced in the box, and one of the inspectors shall publicly draw out and destroy so many ballots therefrom, unopened, as shall be equal to such excess."-§§ 61, 62. "The ballots and poll lists agreeing, or being made to agree, the board shall then proceed to canvass and estimate the votes, and they shall draw up a statement of the result, and cause a duplicate thereof to be made, which statement and duplicate shall be certified by the inspectors to be correct, and shall be subscribed with their names." -§ 63. The statute contemplates that every ballot found in the box in excess of the number of names on the poll-lists, got there by fraud or accident, and does not represent a voter. The duty of the inspectors is peremptory, and unless they perform it, the consequence must be that the number of votes which belong to each candidate out of the only ballots which the statute regards as actually delivered in, must remain in uncertainty. And, inasmuch as no one can be considered elected who cannot be shown to have received a THE PEOPLE V. Сісотт. plurality of the statutory ballots, and as votes in excess of the poll - lists cannot be counted in favor of any one, and no process exists whereby it can be known for whom the fictitious tickets were intended, this uncertainty may lead to the most serious results. Various theories have been suggested as to the influence such excess should have upon the election. One is that it invalidates every election in which the vote of the precinct is to be counted. Another is that it annuls the vote of the precinct in which it occurs. And a third is that it only affects such elections as would be turned one way or the other by counting the excessive votes in favor of one or another candidate. There is no good reason for holding elections void for such excess, where it cannot affect the result. No voters who have honestly voted ought to lose their ballots, unless it is impossible to give them effect. And where there is such a plurality in favor of any candidate, that he could afford to allow these doubtful votes to his adversary, and still be in advance of him, there is no difficulty in perceiving that he must have been voted for by a plurality of all who cast their ballots, and his election should be established. But where the plurality is so small that the excess would turn the scale if allowed to the opposing party, it cannot be shown that either has a majority, because no one can tell what ballots were improperly introduced, and therefore it cannot be determined who would have been benefitted by their exclusion. An election cannot be allowed by law to depend on an uncertainty. The ma jority must be susceptible of proof. There is no room in such a case for the application of probabilities, for there is nothing whatever on which to base them. In State of Ohio v. Ritt, Am. L. R. Dec. 1867, p. 88, and in the Penn Dist. Elect. 2 Pars. (Pa.) R. 533, an unauthorized closing of the polls was held to avoid an election; and in the Locust Ward case 4 Pa. L. J. 341 - it was held that if polls were kept open too long, and the votes cast during the excessive period were enough to have possibly |