CHAPTER V.

THE CONDUCT OF ELECTIONS.

Official Irregularities.

3

1

It has been very generally held that a mere unintentional irregularity in holding an election, where no fraud is committed or made possible,2 or right infringed, affecting the result, does not invalidate the election. But if it appears that the irregularity was such that the result was rendered by it different from what it might otherwise have been, or that it was wilful, the poll will be set aside. The examples are quite numerous, and some of the cases show that the disposition of the courts is to go very far in giving effect to the popular vote in preference to invalidating it for mere informalities. Thus, in regard to the time of opening and closing the polls, it is held that the failure to do either at the precise time prescribed, is not a sufficient ground, in itself, for

1. Barnes v. Board of Supervisors, 51 Miss., 305; Gilleland v. Schuyler, 9 Kansas, 569.

2. Dale v. Irwin, 78 Illinois, 170.

3. Whipley v. McKune, 12 Cal., 352.

setting aside an election.1 But there are cases holding that where the polls are closed within the time prescribed by law, and before the expiration of that time votes are offered and rejected, the proceedings are invalid.2 Of course, the day fixed by law cannot be changed even by consent of all the voters. A few moments delay in opening the polls is not material, but a delay of hours may render an election void, and will certainly have that effect if it be shown that anyone was injuriously affected by it.4

So it has been held that where a certain place has been designated by the proper authorities for the holding of an election, and it is found necessary on the day of election to hold it at another place, this circumstance does not, in the absence of fraud, or improper motive, or complaint that the change had deprived anyone of his vote, invalidate the election.5 But the removal must be from necessity and not to an unreasonable distance. The Supreme Court of Pennsylvania has decided that to remove the place of election three miles from that fixed by law, or from a village to a place across a considerable

1. Cleland v. Porter, 74 Ill., 76. Held that merely closing the polls an hour before the legal time does not invalidate the election, unless it be shown that voters were deprived of their right to vote.

2. State v. Wollem, 37 Iowa, 131; Wood v. Fitzgerald, 3 Oregon, 568. 3. McCrary on Elections, sec. 114.

4. Ibid; quoting Chadwick v. Melvin, Brightly's Election Cases, 251; 68 Pa. State, 333; Juker v. Commonwealth, 20 Pa. State R., 484; Dickey v. Hurburt, 5 Cal., 343; People v. Murray, 15 Cal., 321; Knowles v. Yates, 31 Cal., 82.

5. Dale v. Irwin, 78 Ill., 170, supra.

stream a half mile away, without some controlling circumstance, must, in the absence of authority, invalidate an election. "A fixed place," said Chief Justice Thomson, "it seems to me is as absolutely requisite, according to the election laws, as is the time of voting. The holding of elections at the places fixed by law is not directory; it is mandatory and cannot be omitted without error. I will not say that, in the case of the destruction of a designated building on the eve of an election, the election might not be held on the same or contiguous ground as a matter of necessity-necessitas non habet legem. But then the necessity must be absolute, discarding all mere ideas of convenience."1

The case of Gilleland v. Schuyler, is to the effect that omission or neglect to observe some merely directory provision of the statute does not vitiate an election. So irregularities in the manner of taking the registry are not sufficient for excluding the ballots of those whose names are on the registry list.2 In short, the broad principle has been laid down that courts will not regard an election as void unless clearly illegal; they will rather give effect to it if possible.3

1. Chadmunk v. Melvin, supra.; Miller v. English, 1 Zab. N. J., 317 ; Commonwealth v. Commissioners, 5 Rawle, 75; Foster v. Scarff, 15 Ohio State, 535.

2. State v. Baker, 38 Wisconsin, 71. In this case it was held that irregularities in the taking of the registry cannot affect the right of those whose names are registered to vote. Voters, therefore, whose names are on a registry de facto, used by the inspectors of an election as official and valid, need not enquire whether such register was made in the manner prescribed by law.

3. State v. Board of Freeholders, 35 N. J. Law Rep., 269.

In

In pursuance of this doctrine, the New York courts have decided that neither the failure of the election officers to qualify before entering upon their duties, nor the actual incapacity of one of them to serve, in consequence of some disqualification notwithstanding which he acts, renders the election void. Thus it has been held in certain cases that the mere failure of officers conducting an election to be sworn does not affect the validity of an election where it does not appear that such failure has affected the result, and, in case of a contest, under such circumstances, the contestant must show that there were irregularities and that they affected the result. Whipley v. McKune, 12 Cal., 352, the facts were that in the first district of Sacramento City, where 309 votes were polled, neither the inspector, judge nor clerk was sworn as the law required. There was no allegation of fraud, nor that anything happened affecting the result. The court said: "The naked question presented is whether the failure of the officers, conducting an election in a given district, to be sworn, of itself invalidates the entire election, without reference to its influence on the result. This proposition cannot for a moment be entertained. * * * The rule is well settled that the mere receiving and counting of votes, improperly given, does not invalidate an election. This has been held in New York, in Massachusetts, Pennsylvania, and many other States. The universal rule is that an act, however erroneous,

which does no injury to a party, cannot be the subject of legal complaint on his part."1

It has also been held that a failure of the officer whose duty it is to make proclamation of the election does not, in the case of a general election, fixed by law, vitiate the election.2

In two cases in Massachusetts it was held that it is no objection to an election that illegal votes were received, or legal votes rejected, unless the majority is thereby changed. 3

In a New York case, The People v. McManus, where it was shown that one of the members of the board of election was disqualified by reason of being a candidate at that election, but that he, nevertheless, acted as a member of the board, it was decided that, as two could conduct the election, the participation of the third did not invalidate the election.4

So in a case where it appeared that no board of regis tration was appointed according to law, and that the clerk who acted at the election was improperly ap

1. 31 Cal., 173, Sprague v. Norway; Keller v. Chapman, 34 Cal., 635; Piatt v. The People, 29 Illinois, 54; Dishon v. Smith, 10 Iowa, 212; Augustine v. Eggleston, 12 Louisiana Ann., 366; Third School Dis. v. Gibbs, 2 Cush. (Mass.), 39; Sudbury v. Stearns, 21 Pick. (Mass.), 148; 10 Minnesota (Taylor v. Taylor), 107; People v. Cook, 8 N. Y. (4 Seld.), 67; Same, 14 Barb. (N. Y.), 259; People v. McManus, 34 Barbour (N. Y.), 620; Carpenter v. Ely, 4 Wis., 420; Hardenburg v. Bank, 2 Green, N. J., 68.

2. Canon v. Macpherson, 15 Ind., 327.

3. Third School Dis., &c., v. Gibbs, 2 Cushing (Mass.), 39; Sudbury v. Stearns, 21 Pick. (Mass.), 148.

4. People v. McManus, 34 Barb. (N. Y.), 629.