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in said section, shall show the name or number of the district, ward, or precinct where the same is to be used, and if such name or number is not contained in the party vignette (as it must be if one is used), then the same shall be printed in capital letters, so as to take up not more than two inches of space, which in all cases shall be added to the lengths of the ticket as established by said section of the Political Code; provided, that the provision of this section shall not be compulsory except in the city and county of San Francisco.

See post, sec. 1227, and note.

1192. Ballots not to be given to any person within certain limits.

SEC. 1192. No ticket or ballot must, on the day of election, be given or delivered to or received by any person, except the inspector, or a judge acting as inspector, within one hundred feet of the polling-place.

See sec. 1199, post, and note.

1193. Tickets and ballots not to be folded or unfolded within certain limits.

SEC. 1193. No person must, on the day of election, fold any ticket or unfold any ballot which he intends to use in voting, within one hundred feet of the polling-place.

See note to sec. 1199, post.

1194. Contents of tickets or ballots not to be exhibited within certain limits.

SEC. 1194. No person must, on the day of election, within one hundred feet of the polling-place, exhibit to another, in any manner by which the contents thereof may become known, any ticket or ballot which he intends to use in voting.

See note to sec. 1199, post.

1195. Persons not to be asked to disclose contents of ticket or ballot.

SEC. 1195. No person must, on the day of election, within one hundred feet of the polling-place, request another person to exhibit or disclose the contents of any ticket or ballot which such other person intends to use in voting. See note to sec. 1199, post.

1196. Ballots to have no marks on outside.

SEC. 1196. No ballot must be used at any election, or circulated on the day of any election, having any mark or thing on the back or outside thereof whereby it might be distinguished from any other ballot legally used on the same day.

See sec. 1199, and note.

1197. Ballot to have no marks by which it can be told who voted it.

SEC. 1197. No ballot or ticket must be used or circulated on the day of any election, having any mark or thing thereon by or from which it can be ascertained what persons, or what class of persons, used or voted it, or at what time in the day such ballot was voted or used. [Amendment, approved March 26, 1874; Amendments, 1873-4, 73; took effect July 6, 1874.]

See sec. 1199, post, and note. Distinguishing marks.-The case of Coffey v. Edmonds, 58 Cal. 521, affords illustration of what the courts do not consider a violation of this section. At a recount of the ballots cast

for judge of the superior court, several ballots were objected to as having vignettes of a different character from the regular party tickets, and one on the ground that the words "For president, Hancock and English" were written in lead-pencil upon its face; but the court did not think these features to be a violation of the above provision, and ordered them to be counted. The fact of distinguishing marks on the inside of the ballot was not what the statute was designed to guard against. The act

was intended to secure a uniformity in external appearance: Druliner v. State, 29 Ind. 308 Stanley v. Manly, 35 Id. 275; Millholand v. Bryant, 39 Id. 362. If the elector uses ink to scratch names from the ballot, thereby discoloring it, such discoloration is not a mark upon the ballot which will authorize the judges of election to refuse to count the vote: Wyman v. Lemon, 51 Id. 273. In a recent Mississippi decision a literal construction of their code was indulged in. The section bearing upon the point in ques tion contained the words "all ballots shall be printed," without any device or mark by which distinguished from another, except the words at the head of the ticket. The ballots objected to contained

one ticket may be known or

*

mere printer's dashes between some of the names. Judge Campbell, in delivering the opinion of the court, remarked: "This statute does not condemn devices or inarks on the outside of a ballot merely, but it clearly embraces the face of the ballot as well. That is apparent from the exception contained in it, and a device or mark is as much within what we suppose to have been the object of this provision as one on the outside or back of it. The only safe guide as to what ballots are illegal because of devices or marks is the statute. It excludes any mark or device by which one ticket may be known or distinguished from another. A distinction between ballots by means of devices or marks, instead of by means of the names on them, is what the statute aims to prevent; and we are not at liberty to confine the broad language of the statute to any par. ticular description of devices or marks, for inge nuity would evade any such limit:" Oglesby v. Sigman, 58 Miss. 502.

The note of the code commissioners seems to require a more literal compliance with the language of this section than the California courts appear to have accorded to it: "If it were permissible to place a mark on the inside of a ticket to indicate the person or class of persons who voted it, then combinations of voters engaged in that greatest of all outrages against 1198. Tickets, how to be folded.

the elective franchise and free government, selling their votes, would be permitted to give indubitable proof of their perfidy, and receive the reward for their violation of the law which it is the express purpose of this article to prevent: See note to sec. 1199, post. This section has also the object of inducing inquiry on the part of the voter to the very purpose of the election, and by an examination of the entire ticket to see that his choice is expressed thereon without reference to devices. If such mark or thing is found on the ticket, it must of course violate either subdivisions 3 or 4 of section 1191, ante. And if written so as to indicate who or what class of persons voted it, it is to be rejected in the count in like manner as if it was so printed as to indicate the same. It will be observed that by the terms of this section and section 1191, ante, a ticket cannot have printed thereon any such device as 'republican ticket' or 'democratic ticket,' etc., as that would designate what class of persons voted the ticket, and such device might have the effect of leaving unequal margins, i. e., the names of the persons voted for would be either above or below the center of the ticket. Again, in the election for presidential electors, the names of the party nominees for president or vice-president cannot appear, for they are not the persons voted for.""

SEC. 1198. Every ticket, when used as a ballot, must be folded crosswise from the center, and as follows: If twelve inches long, four times; if eighteen inches long, five times; and if twenty-four inches long, five times, and must be pressed flat. [Amendment, approved March 30, 1874; Amendments 1873-4, 26; took effect July 6, 1874.]

See note to sec. 1199, post.

1199. Tickets not to be folded to indicate contents.

SEC. 1199. No ticket must be folded in a manner to indicate its contents when used as a ballot.

"The eight preceding sections are intended to prevent the distribution of tickets within one hundred feet of a polling place, and to give to the ballot that secrecy which is so necessary to its purity. It is perhaps impossible to afford sufficient guards to that end without building up a system that could not be conveniently carried into execution. Under the provisions of this title tickets will always be printed and distributed several days in advance, and interested parties will undoubtedly afford to every elector an opportunity to procure and fix his ticket to suit, days before the election, so that each elector may come to the polling place with a ballot already prepared; then if a ticket or ballot is delivered to him and coercion attempted, he is at least afforded some opportunity to vote his own choice, for no ticket can be delivered to him within one hun

dred feet of the polling-place, and he has that distance within which to change a ballot. de livered to him for one he has already prepared. Again, independent of the question of coercion, there is another consideration, founded upon the well-known fact that in cities clubs are organized for the express purpose of selling the votes of their members. If the vendor has one hundred feet in which to change his ballot, and no mark can be used on it, he will have no means of establishing the fact that he has voted for any given person, and when these means are taken from him his occupation would be gone, for none would buy and trust to the faith of one who would sell his birthright:" Commissioners' note.

Irregularities beyond the voter's control do not vitiate his ballot: Kirk v. Rhoads, 46 Cal. 404.

1200. Tickets folded together to be rejected.

SEC. 1200. If in the ballot-box two tickets are found folded together in the form of a ballot, they must both be rejected.

1201. Ballots not to be rejected for obscurity in name of person or office.

SEC. 1201. No ballot or part thereof must be rejected by reason of any obscurity therein in relation to the name of the person voted for or the designa

tion of the office, if the board, from an inspection of the ballot, can determine the person voted for and the office intended.

1202. When more persons designated than to be chosen.

SEC. 1202. If the names of more persons are designated on any ballot found in the ballot-box for the same office than are to be chosen for such office, then, except in the cases provided for in the next section, all the names designated for such offices must be rejected, and the fact of such rejection, and the reasons therefor, must at the time of such rejection be noted on the ballot and signed by a majority of the election board.

1203. Written and printed names for the same office, which to be rejected.

SEC. 1203. When upon a ballot found in any ballot-box a printed name and a name written with ink or with pencil appears, and there are not so many persons to be chosen for the office, the printed name must be rejected and the written one counted, and the fact must at the time be noted on the back of the ballot, and such note must be signed by a majority of the election board.

This is in conformity to a well-known principle of construing instruments partly written and partly printed: See Code Civ. Proc., sec. 1862.

1204. Printed tickets not to be erased but by lead-pencil or ink.

SEC. 1204. When upon a ballot found in any ballot-box a name has been erased and another substituted therefor, in any other manner than by the use of a lead-pencil or common writing-ink, the substituted name must be rejected, and the name erased, if it can be ascertained from an inspection of the ballot, must be counted, and the fact thereof must be noted upon the ballot, and such note must be signed by a majority of the election board.

"This section is intended to prevent the use of nitrate of silver, or any other chemical substance which may be written over a name and not be distinguishable until time brings out the

impression; also, to prevent the use of plasters, the use of which is subject to two objections: 1. Their liability to come off; 2. Their liability to be fraudulently taken off:" Commissioners' note.

1205. Two votes on same ballot for same person to be counted as one.

SEC. 1205. If a ballot is found in any ballot-box containing the name of the person and the office for which he is designated, or either, two or more times, it must not for that reason be rejected; it must be counted as one ballot. See People v. Holden, 28 Cal. 124.

1206. Marked ballots to be rejected.

SEC. 1206. When a ballot found in any ballot-box bears upon the outside thereof any impression, device, color, or thing, or is folded in a manner designed to distinguish such ballot from other legal ballots deposited therein, it must, with all its contents, be rejected.

1207. Same.

SEC. 1207. When a ballot found in any ballot-box bears upon it any impression, device, color, or thing, or is folded in a manner intended to designate or impart knowledge of the person who voted such ballot, it must, with all its contents, be rejected.

Handwriting intended to indicate the voter, a "thing," within this section: Commissioners' or class of voters casting the ballot, would be note.

1208. Ballots not conforming to requirements of law.

SEC. 1208. When a ballot found in any ballot-box does not conform to the requirements of section eleven hundred and ninety-one, it must, with all its contents, be rejected.

1209. Rejected ballots to be indorsed.

SEC. 1209. Whenever the board of election rejects a ballot, it must at the time of such rejection cause to be made thereon and signed by a majority of the board an indorsement of such rejection, and of the causes thereof.

1210. Rejected ballots to be preserved.

SEC. 1210. All rejected ballots must be preserved and returned in the same manner as other ballots.

"The indorsement and preservation of ballots rejected are provided for, to the end that if any doubts the correctness of the action of the

election board, that action may be reviewed in the courts upon the documentary evidence thus preserved: " Commissioners' note.

1211. Ballots not rejected, but objected to, must be indorsed.

SEC. 1211. Whenever a question arises in the board as to the legality of a ballot, or any part thereof, and the board decide in favor of the legality, such action, together with a concise statement of the facts that gave rise to the objection, must be indorsed upon the ballot, and signed by a majority of the board.

"This and the preceding section, it seems, would pretty effectually dispose of the practice of tampering with ballots after they are once

counted, for the record in each case is made in the presence of the by-standers at the time of counting:" Commissioners, in their note.

1212. Ballots not in compliance with law not to be received.

SEC. 1212. The board must refuse to receive, or to allow to be deposited in the ballot-box, any ballot offered if it is apparent that it is not in compliance with the provisions of this chapter.

The board should reject the irregular ballot, and "afford the party an opportunity to vote a legal ballot:" Commissioners' note.

CHAPTER IX.

VOTING AND CHALLENGES.

1224. Voting, when to commence and continue.

SEC. 1224.

Voting may commence as soon as the polls are opened, and may be continued during all the time the polls remain open.

1225. Manner of voting.

SEC. 1225.

The person offering to vote must hand his ballot to the inspector, or to one of the judges acting as inspector, and announce his name and the number affixed to it on the register in use at the precinct where he offers his vote; provided, that in incorporated cities and towns the said person shall also give the name of the street, avenue, or location of his residence, and the number thereof, if it be numbered, or such clear and definite description of the place of such residence as shall definitely fix the same. [Amendment, approved March 30, 1878; Amendments 1877-8, 26; took effect on sixtieth day after passage.] Register number: See sec. 1149, ante.

1226. Announcement of voter's name.

See statutes at end of sec. 1117, ante.

SEC. 1226. The inspector, or judge acting as such, must receive the ballot, and before depositing it in the ballot-box, must, in an audible tone of voice, announce the name and register number; provided, that in incorporated towns and cities the said inspector, or judge acting as such, shall also announce the residence of the person voting, and the same shall be recorded on the poll-list by the poll-clerk. [Amendment, approved March 30, 1878; Amendments 1877–8, 26; took effect on sixtieth day after passage.]

POL. CODE-16,

241

1227. Putting ballot in box. SEC. 1227. If the name be found on the register in use at the precinct where the vote is offered, and the vote is not rejected upon a challenge taken, the inspector or judge acting as such must, in the presence of the board of election, place the ballot, without opening or examining the same, in the ballot-box; and no person shall be allowed to vote whose name is not on said register in use at the precinct. [Amendment, approved March 30, 1878; Amendments 1877–8, 26; took effect on sixtieth day after passage.]

The act containing the last above three amendments provided that nothing therein contained should be construed to repeal any special election or registration law applicable to the city and county of San Francisco alone,

but should be construed as if it had been passed prior thereto.

See ante, sec. 1117, and statutes following; and sec. 1191, and statute. Challenge: See secs. 1230 et seq.

1228. Record that person has voted, how kept.

SEC. 1228. When the ballot has been placed in the box, one of the judges must write the word "Voted" opposite the number of the person on the printed copy of the register. [Amendment, approved April 16, 1880; Amendments 1880, 80 (Ban. ed. 370); took effect from passage.

In reference to record of voting in cases of special elections, see ante, sec. 1117.

1229. List of voters.

SEC. 1229. Each clerk must keep a list of persons voting, and the name of each person who votes must be entered thereon and numbered in the order of voting. "The list and register are both primary [prima facie] evidence of what persons voted at the election, for section 1726 of the Code of Civil Procedure makes an entry made by an officer, or under the directions and in the presence of any board, in the course of the duty of

1230. Grounds of challenge.

such officer or board, primary [prima facie evidence of the facts stated therein. The utility of this section will be apparent when the reader reaches subsequent sections of this title. See secs. 1253-1257, inclusive:" Commissioners' note.

SEC. 1230. A person offering to vote may be orally challenged by any elector of the county, upon either or all of the following grounds:

1. That he is not the person whose name appears on the register;

2. That he has not resided within the state one year next preceding the election; 3. That he has not been a naturalized citizen of the United States for ninety days prior to the election;

4. That he has not resided within the county for ninety days preceding the election;

5. That he has not resided within the precinct for thirty days next preceding the election;

6. That he has before voted that day;

7. That he has been convicted of an infamous crime;

8. That he has been convicted of the embezzlement or misappropriation of public money. [Amendment, approved April 16, 1880; Amendments 1880, 80 (Ban ed. 370); took effect from passage.]

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Subd. 6. Voting twice.-Intention must accompany the act to constitute the crime of voting twice: People v. Harris, 29 Cal. 678; People v. Holden, 28 Id. 123; Pen. Code, secs. 43, 45, 46.

1231. Proceedings on challenge for want of identity.

SEC. 1231. If the challenge is on the ground that he is not the person whose name appears on the great register, the inspector must tender him the following oath:

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