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CONTESTEE'S DEFENSE OR COUNTER-CLAIM.

The contestee attempts to meet the contention of contestant, if proved, by the claim that illegal votes were cast for contestant by convicts, minors, non-residents, and non-registered persons.

The claim as to minors and convicts appears by the following tables, and the evidence is referred to in the same:

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The claim as to non-residents hardly needs more particular reference. It is not sustained by proof.

Not finding either of the claims to be maintained by competent and credible evidence, I disallow them.

REGISTRATION.

Contestee does not set up a want of legal registration as vitiating the election in any precinct, but alleges that persons not registered had no right to vote, and that all votes cast by such were illegal, and must now be rejected. His claim and references for proofs appear in the following table, as presented by him in argument:

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Contestee's evidence does not show for whom many, if any, of the persons claimed to be non-registered voted. He has not called the persons themselves, but attempted, with little success, to prove it by third parties. The instances proved by any competent or sufficient evidence are very few and need not be stated, as they would not change the result on any hypothesis presented or contemplated.

If found that enough illegal votes were cast to change the result, and it not appearing for whom they voted, the question would be whether the election should be declared void, or the vote distributed among the candidates, under the rule laid down in McCrary, § 298.

Contestee, for aught that appears, could have taken the evidence of the witnesses themselves to establish their identity as the persons whose names appear on the poll-lists, and to prove for whom they voted. This he has not done, and no reason why not is shown.

Of course I do not hold as matter of law that such is the only mode of proof allowable, while generally it is quite satisfactory, as the voter usually best knows, and his evidence is direct.

The law of Alabama as to registration involved needs first to be stated, so far as deemed material.

By article 8 of the constitution, which will be found at page 142 of the Code of Alabama, the qualifications of the voter are prescribed as being a residence of one year in the State, of three months in the county, and thirty days in the precinct.

2. By section 5 of the same article it is provided in these words:

The general assembly may, when necessary, provide by law for the registration of electors throughout the State, or in any incorporated city or town thereof, and when it is so provided no person shall vote at any election unless he shall have registered as required by law.

Statutes passed in May, 1875, provided for registration in the whole State (code of 1876).

§ 227. Secretary of state superintends.—The secretary of state shall superintend the registration of electors in this State.

228. Registrars and assistant registrars.-The secretary of state, on or before the first Monday of May, 1875, or as soon thereafter as practicable, shall appoint one registrar in each county in this State, who shall appoint one assistant registrar for each voting precinct or ward in the county for which such registrars are respectively appointed; and such assistants shall, as soon as practicable after their several appointments, make a full registration list, as hereinafter provided, of all the electors in the precincts or wards for which such assistants are appointed respectively; and such registrars and assistants, before entering on their duties, shall take the oath of office as prescribed in section one, article fifteen, of the constitution of the State of Alabama, which oath may be administered by any officer authorized by law to administer oaths in this State, which must be filed in the office of the judge of probate of the county; and the assistant registrars are authorized to administer the registration oath, and it shall not be lawful for any other officer or person to administer the same. § 229. To return list of registered electors.-It shall be the duty of each assistant registrar to make a due and correct return of the list of registered electors made by him. § 230. Place and manner of registration.—It shall be the duty of such assistant registrars, within the several precincts or wards for which they are appointed respectively, to make registration of the electors residing in such precincts or wards upon blank forms provided for that purpose, and shall not register in any other way or on any other form than that prescribed.

$231. Oath of elector and how subscribed. Before registering electors, the assistant registrars shall cause each elector who is qualified to vote under the constitution and laws of the State of Alabama to take and subscribe an oath that he is a qualified elector under the constitution and laws of the State of Alabama, and the name of each elector must either be subscribed to such oath by the elector himself, or the same may be subscribed by the assistant registrar; but when signed by the assistant, it must be with the consent and direction of the elector so to do, which shall be evidenced by the attestation of the assistant registrar's name, written opposite to the name of the elector, under the appropriate head, on the prescribed form; and the oath shall be in the printed and written form at the head of the registration list prescribed by this chapter, and the names of the electors shall be subscribed to the same under the appropriate head prescribed for the same in such list.

232. Number and date of registration, residence, employment, color of elector, and name of employer. The assistant registrars shall write opposite to the name of each elector, under the appropriate head in such form, the number and date of registration, his place of residence, whether white or colored, his employment, and if he is in the employment of another, the name of such employer; and if the elector resides in any town or city, the street and number, or other mark or description by which his place of residence may be identified.

§ 233. Registration on election day, and certificate.-The assistant registrars shall be present at the voting precinct, or ward, for which they are respectively appointed, on the day of election, to register such electors as may have failed to register on any previous day in their precincts or wards, which registration must be done, in every respect, according to the form prescribed; and the assistant registrar shall furnish to each elector who may register on the day of election a certificate of registration, which shall be in the following form:

I, assistant registrar, do hereby certify that day registered before me as an elector.

(Signed)

has this

Registrar.

Which certificate, signed by the registrar, shall be sufficient evidence that such elector is registered; and in case such assistant registrar, for any cause, is unable to attend, or there be a vacancy in the office of assistant registrar for such precinct or ward, the county registrar shall appoint some competent person as assistant registrar for that day; and if no appointment be so made by 10 o'clock of that day, then the inspectors of election may appoint an assistant registrar, who may qualify and act as such for that day; but this section shall not apply to incorporated towns or citier having a population of more than five thousand inhabitants, except as is hereinaftes provided by this chapter.

$234. Copy of registration list delivered to judge of probate, and how bound; duplicate sent Secretary of State, and how bound; original registration books subject to inspection; additional registration; and supplemental returns.-Each assistant registrar, after having registered all the electors in his respective precinct or ward, as near as may be, and not more than three months after his appointment, shall make a true copy of same in the registration book furnished for the purpose under the provisions of this chapter, and shall also make a true copy or duplicate of the original registration list, which, together with the original, as soon as practicable after same is completed, shall be returned to the office of the judge of probate of the county in which such registration is made, and delivered to the judge of probate, who shall, as soon as the registration for all the precincts and wards in such county have been made, cause the original lists so returned to him to be securely bound in book form, in good substantial pasteboard binding, and preserve the same in his office for public inspection, keeping the several precincts and wards separate from each other in arranging same for binding, but binding the whole of the originals for the county in one volume, appropriately labeled; and the judges of probate of the several counties shall, as soon as such returns are fully made, return the duplicates to the Secretary of State, who shall arrange same by precincts, wards, and counties, and so cause the same to be bound in one or more volumes, and in such style as he may deem advisable for convenient reference and preservation; and the registration books made out by the assistant registrars in the several precincts and wards shall be kept by them, subject to the inspection of the public, and in which they shall make entry of all additional registrations made by them, respectively, from time to time, and shall, not less than fifteen days before any general or special election held in the county, make a supplemental return to the judge of probate in like manner as the first return.

$235. Duty of assistant registrars to revise lists; how prepared and delivered to judge of probate. It shall be the duty of such assistant registrars in each year to make a revised list of electors for their precincts or wards, showing the names of all such electors as shall be known to or be proven to them to have died or to have removed from the ward or precinct, or to have become disqualified as electors by the conviction of any felony, and also of all such as have registered at and since the last election; which list shall be prepared in the manner prescribed for the other lists, and shall be delivered to the judge of probate not less than fifteen days before any general or special election; and in incorporated towns or cities having a population of more than five thousand inhabitants not less than ten days before a general or special election.

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$236. Not lawful to register within twenty days before election; special registrations, how returned and treated.-It shall not be lawful to register any elector within twenty days before, nor in any incorporated town or city having a population of more than five thousand inhabitants within fifteen days before, any general or special election day; and all registrations made on the election day by any registrar appointed for that day only shall be returned to the assistant registrar for that precinct or ward properly certified, which shall be returned to, and be treated by, the judge of probate as if made by the regular assistant registrars." But in incorporated cities or towns having a population of more than five thousand inhabitants any person who may have attained the age of twenty-one within fifteen days next preceding any general or special election, and who is qualified to vote under the constitution and laws of the State of Alabama, may be registered by the probate judge of the county on the day of election in the same manner as is prescribed for the registration of electors; and such judge of probate shall cause the name of such elector to be entered upon the registration list of the ward in which such elector shall reside, and shall issue to such elector a certificate of registration as prescribed by section 233.

$238. Books and blanks furnished probate judges for assistant registrars.t-The secretary of state is authorized and directed to obtain and furnish to the probate judges of the several counties in the State the books and blanks necessary for the use of the sevaral assistant registrars; such blanks shall be printed and ruled on good paper. suitable for binding in book form, as may be directed by the secretary of state, one-third of which shall be securely bound in good paper pasteboard and leather binding, in sufficient numbers to furnish one book to each assistant registrar in the State, together with at least as many blanks unbound as are contained in such books; and each page of such books shall be in the following form:

STATE OF ALABAMA,

County of

We, the undersigned registered electors, each for himself, do solemnly swear (or affirm) that I will support and maintain the Constitution and laws of the United States, and the constitution and laws of the State of Alabama; that I am not excluded

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from registering or voting by any of the clauses in section three of article eight of the constitution of the State of Alabama, and that I am a qualified elector under the constitution and laws of this State.

No.

Date.

Name of elec-
tors.

White or col- Registrar's
ored.
attestation.

Residence, by Employer's
precinct or name and re-
ward.
marks.

I,

registrar for said precinct (or ward), in said county and city of do hereby certify that the above and foregoing names of registered voters, from number one to, inclusive, were duly registered by me according to law, between the dates of and -- in said precinct (or ward), and that each of said persons so registered took and subscribed before me the above and foregoing oath, on the days and dates set opposite to their several names respectively. Witness my hand this day of, 18—.

Registrar.

$239. Probate judges make out and file registration lists, furnish copies to inspectors, and post list."-Each probate judge of the several counties shall, from the registration list of electors returned to their several offices make a correct, alphabetical list of the qualified voters of such county, arranged by precincts and wards, correcting and completing the same from the supplemental and revised returns of assistant registrars, which list, when so completed, shall be certified by the probate judge officially to be a full and correct transcript of the list of registered electors as the same appears from the returns of the registrars in his office; one copy of which list the judge shall deliver to the inspectors of election in each precinct or ward immediately preceding every election, and one copy of the whole list of registered electors in the county shall be posted at the court-house of the county ten days, and in incorporated towns and cities having a population of more than five thousand inhabitants five days, before the election.

§ 241. Registration must be in precinct or ward.-It shall not be lawful to register any person except in the voting precinct or ward in which such person is entitled by law to vote; and the assistant registrars, when they have no personal knowledge of the identity or residence of an elector, shall examine him under oath touching the same, which oath shall be administered by the assistant registrars.

A right of challenge is given at the polls.

Section 278 of the Code of Alabama is in these words:

OATHS ADMINISTERED BY INSPECTORS IN CASE OF CHALLENGE.

When any person offering to vote is challenged by any qualified elector, before such person shall be allowed to vote he shall take and subscribe an oath, which one of the inspectors of such election shall tender and administer to him, and which shall be in the following form:

STATE OF ALABAMA,

County:

I, do solemnly swear (or affirm) that I am a duly qualified elector under the Constitution and laws of the United States, and the constitution and laws of the State of Alabama, and that I have resided in the State of Alabama one year next preceding this election, three months in this county, and have actually resided thirty days in this precinct or ward (as the case may be) next preceding this day, and that I am twenty-one years of age, or upwards, and that I have not voted before on this day at any general or special election, at the place of voting, and that I have not been convicted of treason, embezzlement of public funds, malfeasance in

*As amended Feb. 7, 1877, p. 116, sec. 1.

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