Q. What kind of a house was it?-A. It was a box (little), probably sixteen by eighteen. Q. And they were all sitting down, were they?-A. No, sir; they couldn't get seats to sit. Q. You think then it is probable there were sixty-five or seventy men in the room? -A. Yes, sir. Q. Who occupies that house?—A. Well, it has been occupied as a school-house for the last year. Q. Were there any tables in it?-A. A small table there they used for the secretary of the club. Q. You are a good judge of numbers, are you not, of men?-A. I don't know I have. I guess pretty well different times at a body of men. Q. Can you not swear there were thirty men there ?-A. I could do it, but I wouldn't do it from the simple fact that I didn't count the men, and I couldn't say positivelywell, I know there was that many. Q. If you know there was forty men there why are you unwilling to swear there were thirty men there?-A. Well, I gave you my reasons a few minutes ago. Q. Are you willing to swear there was twenty men there?-A. Yes, sir; I would be willing to do it, though in the mean time I don't want to do it. Q. Would you swear there was fifteen men there?-A. Yes, sir; I would; but I don't want to do it under the circumstances. Q. Would you swear there was ten men there?—A. I would, but then I don't want to do it. Q. How many men did you see put in Lowe votes at that box?-A. I don't know. Q. Did you see any men put in Lowe votes at that box?-A. Yes, sir. Q. How many ?—A. I don't know, I told you. Q. Did you see ten (10) men put in Lowe votes at that box?-A. I don't know. Q. Did you see five men put in Lowe votes at that box?-A. I don't know, sir, the number. I know I saw men vote there, though. Q. Could you read the tickets in their hands as they voted?-A. No, sir. Q. Could you read the ticket in any man's hand that he voted besides your own?— A. No, sir; I don't think I saw a man vote an open ticket there. The contestee has taken the trouble to impeach Blankenship (p. 517) But this is wholly unnecessary. He possesses an imagination which a Falstaff might envy. He sees 57 colored Republicans marching to the polls where only 30 are visible to other men. He sees 65 or 70 men assembled in a room which he says is 16 by 18, which another says is 14 feet square. The testimony of Walter Blankenship, on page 290, shows what kind of evidence the rest of these witnesses would have furnished, if the contestee had been permitted to cross-examine them. He says: Int. 25. For what offices were the persons to be elected who were on the ticket besides the county officers?-A. For our President and for our Senator. Int. 26. Who was to be elected President and who was to be elected Senator?—A. Mr. Hancock and Mr. Garfield was running for President's seat, and Mr. Wheeler and Lowe for Senator. Int. 27. What other officers were voted for besides Senator and President?-A. I was not particularly caring about the others, which one got it. Int. 28. You are perfectly certain, are you not, that Mr. Garfield's name for President and Mr. Lowe's name for Senator was on your ticket ?-A. I am certain it was, because I got it from a straight man. Int. 29. Is that the reason you know the above was on the ticket ?-A. Of course; I go by that; yes, sir. KINLOCK BOX. Page 1156. We find the following paper upon which the board of Lawrence County counted 16 votes for Wm. M. Lowe; Alex. Heflin was the returning officer of this county. There is not a particle of proof that any election was held at that place at all, and this paper is the only thing that indicates an election was held at KINLOCK BOX. We, the undersigned, judges and clerks, do certify that this is a true list of the voters polled at Kinlock, Lawrence County, Alabama: For President, State at Large: James M. Pickens, v, v, iiii. For Vice: Lalwer S. Beers, v, v, iiii. District electors: 1st District, C. C. McCall, v, v, iii. 2 Dc., J. B. Townsend, v, v, iii. 3 Dc., A. B. Griffin, v, v, iii. 4 Dc., Hilliard M. Judge, v, v, iii. Willard Wonern, ii. Winfield S. Bird, ii. Nicholas S. McOffee, ii. James S. Clarke, ii. The above is the only return received from the Kinlock box. The deposition of J. H. McDonald, page 1138, shows that upon this return the county officials estimated 16 votes for William M. Lowe, and none for Joseph Wheeler. It will require no argument or authority to show that these returns. cannot be received, and that 16 votes should be deducted from the votes returned for William M. Lowe from Lawrence County. THE UNREGISTERED VOTE. We now proceed to the consideration of that branch of this case which has relation to ballots that were illegal because the voters were not registered. The contestee gave notice to the contestant by his answer that he would insist upon the rejection of such ballots. By the constitution of Alabama the qualifications of voters are distinctly prescribed as follows: A residence of one year in the State, of three months in the county, and of thirty days in the precinct. See article 8, page 142 of the Code of Alabama. Section 5 of the same article is in the following language: 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. The legislature of Alabama passed a registration law in which provision was made for a complete registration of the voters. The substance of this law is that the secretary of state appoints a registrar in each county, and the county registrar appoints an assistant for each voting precinct or ward in the county. This assistant makes a full registration list of the voters in his precinct or ward, returns it to the judge of probate of the county, and the judge of probate furnishes to the inspectors of the election certified lists for each precinct, and these certified lists constitute the registration lists evidencing who are entitled to vote. In making up this registration list, the elector is required to make oath that he has the qualifications of a voter as prescribed by the constitution of Alabama above stated. The assistant registrars are required to be present on the day of election for the purpose of registering such persons as may not have registered prior to the election. The list of those registered on the day of the election is returned with the poll-lists, &c., kept on the day of the election, to the county canvassers, and this list kept on the day of the election is filed with the judge of probate and becomes a part of the records of his office, and thus the registration lists are kept complete, and constantly show who are entitled to vote in the various precincts and wards of the county. The contestee, as above stated, claims that a very large number of persons were permitted to vote in this district who had not been registered according to the provisions of this law, and the contestant endeavors to escape from this claim of the contestee, not by showing that the parties who voted were registered as the law requires, but by a construction of the constitution which we will here briefly state. The contestant claims that the provision of the constitution above quoted only means that a party shall not be permitted to vote when the act of the legislature in distinct terms provides that he shall not be permitted to vote unless he has been registered. Or, in other words, he claims that notwithstanding the fact that the constitution provides as already quoted, and notwithstanding the fact that a registration law has been enacted, still the party is entitled to vote unless the statute of Alabama expressly provides that he shall not be permitted to vote excepting when he is registered. Now we respectfully submit that this is a perversion of the plain language of the constitutional provision. It will be observed that the language of the constitution is that "the general assembly may, when necessary, provide by law for registration, and when it is 80 provided no person shall vote unless he shall have registered as required by law." * Now, what do these words, "so provided," refer to? Plainly to registration. That is to say, the general assembly was authorized to provide by law for registration; to determine the mode and requisites of regis tration generally and particularly. The registration had reference to persons who were entitled under the constitution to vote. It has nothing whatever to do with the qualifications of the voter, because those qualifications are fixed by the constitution itself, and could not be interfered with by any act of the legislature. And therefore the concluding words of this section are unmistakable in their meaning, "no person shall vote at any election unless he shall have registered as required by law"; and that meaning is that the constitution having fixed the qualifications of the voter, this registration law was intended to furnish the evidence of the right of the party to vote, to wit, his being registered as a voter according to the forms and requirements of this act of the legislature. This act of the legislature was provided for by the constitution, not to determine the qualifications of the voter, but to furnish the qualified voters with the evidence that they were qualified and entitled to cast their ballots; and the constitution simply provides, and no other rational meaning can be attributed to it, that registration, and that alone, shall be evidence of the fact that the party is a qualified voter, and therefore any person who is not registered is clearly an illegal voter under the constitution and laws of the State of Alabama. Registration is the act of the voter. If he fails to register it is his own fault, and he cannot complain, nor can any one else, if his right to vote is lost by reason of non-registration. After a careful examination of the testimony in this case, we believe that it conclusively shows that not less than 2,400 persons voted in this district who were not registered, and that not less than 1,000 of them voted for the contestant. We cannot here set out all the testimony on this subject, but submit a table, giving the precincts, the number of non-registered voters, names of witnesses, and pages of the record, for convenience of reference: TABLE NO. 2.-Unregistered and illegal voters who are proven to have voted for William M. Lowe for Congress, November 2, 1880. These illegal voters comprise a part of the 12,665 votes which were returned for Wm. L. Lowe. 18 12 16 11 180 55 16 69 441 Names of witnesses who prove the illegality of these voters, or that they voted for Wm. M. Lowe. son, p. 544. G. D. Miller, pp. 509, 510. Thomas B. Hopkins, pp. 511, 512. N. P. Taylor, p. 570. Thomas J. Taylor, p. 514. Wm. M. Douglass and G. W. Smith, pp. 540, 542. 189 Quintus Jones and John W. Battle, pp. 1081, 1127. Oliver H. Reid, p. 1131. J. Milton Gray, p. 1132. (W. J. Seamans & C. A. Crow, p. 1161. Robert Donnell, p. 819: Florentine Franklin J. Pepper, 855. 36 James O. Murphy, John S. Jenkins, Sam. Hughley, James P. Murdock, Thomas Clem, W. P. Stradford, John W. Brabson, from pp. 1049 to 1053. It will be seen by reference to the testimony that in a very large proportion of the cases where persons voted who were not registered the testimony is direct and positive that these non-registered persons voted for the contestant; but if it be conceded that there is doubt as to who they voted for, then the rule of law as to dealing with such cases is as follows (see McCrary on Elections, page 298, section 223, first edition): In purging the polls of illegal votes, the general rule is that, unless it be shown for which candidate they were cast, they are to be deducted from the whole vote of the election division, and not from the candidate having the largest number. (Shepherd v. Gibbons, 2 Brewst., 128; McDaniel's case, 3 Penn., L. F., 310; Cushing's Election Cases, 583.) Of course, in the application of this rule such illegal votes would be deducted proportionately from both candidates, according to the entire vote returned for each. Thus, we will suppose that John Doe and Richard Roe are competing candidates for an office, and that the official canvass shows: But there is proof that 120 illegal votes were cast, and no proof as to the person for whom they were cast. The illegal vote is 10 per cent. of the returned vote, and hence each candidate loses 10 per cent. of the vote certified to him. By this rule John Doe will lose 62 votes, and Richard Roe 574 votes, and the result, as thus reached, is as follows: Applying this principle, we here submit a table showing the number of votes cast for contestant and contestee at various precincts, the number of non-registered voters, and the pro rata of deductions from each party on account of the non-registered voters, and the pages of the record where the registration and the poll-lists will be found, &c. : |