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New York, Massachusetts, Vermont, Nevada, Tennessee, Connecticut, Louisiana, Mississippi, Ohio and Wisconsin.)

433. In some of the States it is provided by statute that the militia shall not be called out for exercise or drill on the day of election, and it has been held in New York that a defendant, sued under an act of this character, cannot plead in justification that he acted under the orders of his superior officer. Nor is it any defense that defendant was ignorant of the existence of the law. (Hyde vs. Malone, 11 Johnson, 520.)

§ 434. It is clear that fraud, violence or intimidation committed against the purity or freedom of an election for representative or delegate in Congress may be prohibited and punished by act of Congress. And it is competent for Congress to provide by law for the punishment of persons who at such an election violate a State law, regulating either such election, or the registration of voters preceding it. Congress may, under the constitution, declare fraudulent registration, for the purpose of voting for a representative or delegate in Congress, or fraudulent voting for such delegate or representative, to be a crime against the United States. (The U. S. vs. Quinn, Brightley's Election Cases, 592. Ante, Sec. 309.)

§ 435. The act of Congress of 31st May, 1870, Sec. 19, provides, among other things, for the punishment of any person or persons who "by violence or any unlawful means hinders, delays, prevents or obstructs any citizen from doing any act required to be done to qualify him to vote, or from voting at any

election," &c. It has been held that an indictment under this act can be sustained by proof; that the defendant and others attacked a number of voters waiting in line for their turn to cast their ballots, and expelled them from the room, though they afterwards returned and actually voted. The offense was complete by the expulsion of the voters from the polls. [United States vs. Louders, 2 Abbot, U.S. Rep., 456.] It is not necessary that the attempt to deprive a voter of his rights, by violent or unlawful means, shall have been successful; the offence is complete if the attempt be made with an unlawful or criminal intent.

CHAPTER IX.

FRAUD AND ILLEGAL VOTING.

§ 436. Although the return of the vote of a given precinct, made in due form, and signed by the proper officers, is the best evidence as to the state of the vote, yet it may be impeached, on the ground of fraud or misconduct on the part of the officers of the election themselves, or on the part of others. In election cases, however, before a return can be set aside, there must be proof that the proceedings in the conduct of the election, or in the return of the vote, were so tainted with fraud, that the truth cannot be deduced from the returns. The rule is thus stated in Howard vs. Cooper, (1 Bartlett, p. 275.)

"When the result in any precinct has been shown to be so tainted with fraud that the truth cannot be deducible therefrom, then it should never be permitted to form a part of the canvass. The precedents, as well as the evident requirements of truth, not only sanction, but call for, the rejection of the entire poll, when stamped with the characteristics here shown."

§ 437. The rule just stated needs the following explanation, in order that it may be correctly understood. The committee, no doubt, meant to say that if the result, as shown by the returns, is tainted with fraud, the returns are to be rejected as false, and worthless. But, as we have elsewhere seen, the question whether the entire vote of the precinct shall be rejected for fraud, depends upon another question, viz: Whether from any evidence it is possible to ascertain the true result. The returns may be rejected as fraudulent, and yet the true vote may, in some cases, be ascertained, and where it can be ascertained, independently of the rejected returns, the law requires that it be respected and enforced. Where the true vote cannot be ascertained either from the returns, or from evidence aliunde, the vote of the precinct is to be rejected.

§ 438. The return must stand until such facts are proven as to clearly show that it is not true. When shown to be fraudulent or false, it must fall to the ground. This ruling is well settled by numerous authorities, including the following. (Blair vs. Barrett, 1 Bartlett, 308. Knox vs. Blair, 1 Bartlett, 520. Howard vs. Cooper, supra. Washburn vs. Voorhies, 2 Bartlett, 54.) The following remarks concerning the dangers which may attend the application of

this rule, are here quoted with emphatic approval, from the report of the committee of elections, in the House of Representatives, in Washburn vs. Voorhies (supra.)

"In adopting this rule the committee do not lose sight, however, of the danger which may attend its application. Wholesome and salutary, not less than necessary, in its proper use, it is extremely liable to abuse. Heated partisanship, and blind prejudice, as well as indifferent investigation, may, under its cover, work great injustice. It is not to be adopted if it can be avoided. No investigation should be spared that would reach the truth without a resort to it. But it is not to be forgotten or omitted, if the case calls for its application. If the fraud be clearly shown to exist to such an extent as to satisfy the mind that the return does not show the truth, and no evidence is furnished by either party to a contest, and no investigation of the committee enable them to deduce the truth therefrom, then no alternative is left but to reject such a return. To use it under such a state of facts, is to use as true what is shown to be false."

§ 439. Where the return showed that Geo. W. Julian, had received at a given precinct, only one hundred and forty-three votes, parol proof was admitted to prove that the return was false, and that in fact he had received a larger number of votes than said return allowed him. [Reid vs. Julian, 2 Bartlett, 822.] In this case one hundred and seventy legal voters of the precinct were called, and were permitted to testify that they had each voted for Mr. Julian. It was objected that the proof was not competent because

the ballots were the best evidence; but this objection was very properly overruled. The allegation was, that the ballots had been tampered with; that a fraud had been committed, by which a number of ballots legally cast had not been fairly deposited in the box and honestly counted out and returned. Of course, in such a case the ballot might sustain the fraud. The ballots are the best evidence, when it is shown or conceded that they are the identical ballots and all the ballots deposited by legal voters; but when the question is whether fraudulent ballots have been deposited, or honest ballots abstracted, the ballots in the box are by no means the best evidence. Fraud of this character may, therefore, always be proven by parol. [And see also Washburn vs. Voorhies, 2 Bartlett, 54.]

§ 440. But of course the parol evidence offered to set aside a return upon the ground of fraud, must be such as to establish the fraud or mistake in the reception and deposit, or in the count or return of the votes. The official acts of sworn officers are presumed to be honest and correct until the contrary is made to appear. It has accordingly been held that a return cannot be set aside upon proof that a recount made by unauthorized persons some time after the official count has been made, showed a different result from the official count. This was upon the ground that the count made by sworn officers immediately upon the closing of the polls, was better evidence of the true result than a count made by interested parties not sworn, at a subsequent period, and after the result of the official count had been made known, such evidence comes far short of establishing either fraud

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