The prevailing opinion emphasizes, by use of italics, that part of 20 of Act 123 of 1935 which makes it unlawful "to print or distribute any ballots, outside of those ballots ordered for use in the election, for the purpose of instructing voters how to vote."
Fundamental error of the opinion is that it treats as a ballot the mimeographed list of candidates used by appellant and those who were associated with him.
It must be remembered that the meeting of Negroes at which this so-called ballot was used occurred August 3d, and the election was not until the 10th — a full week later. A casual glance at the photographs is sufficient to show there was no attempt to reproduce a ballot in *Page 868 the sense that the term is ordinarily understood. I make no point of the fact that typographical arrangements of names and positions are not identical. Under rules of the Democratic Party the names of those seeking nomination were made public when the ticket closed. The list was available to newspapers, and it was generally and generously publicized.
[EDITORS' NOTE: ILLUSTRATION IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 869
There was nothing private or sacrosanct about the list, nor was there a patented process in the priority of listing. No one testified, nor did the information allege, that the mimeographed sheets were intended for corrupt purposes. They were so obviously not ballots that any election official would have observed their insufficiency.1
[EDITORS' NOTE: ILLUSTRATION IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 870 If purpose of the statute was to prevent an elector from making a list of candidates and arranging them in printed form showing the various offices sought (a construction I do not think was intended) then it would offend the Fourteenth Amendment to the Federal Constitution, and Art. II, Sec. 6, of our own Constitution.
I do not agree with the majority's definition of a "ballot". On the contrary, I heartily concur in the expression that the system of ballot-voting "rests upon the idea that every elector is to be entirely at his liberty to vote for whom he pleases and with what party he pleases." It is also essential that every election be kept "free of all the influences and surroundings which might bear improperly upon it, or might impel the electors to cast their suffrages otherwise than as their judgments would dictate". A lawyer's objection to discussions of those subjects here might well be that they are "immaterial and irrelevant". Nowhere is it hinted that the mimeographed lists (and bear in mind that they are not reproductions) were intended as ballots.
The defendant was entitled to an acquittal.
1 In the photostatic reproduction of the official ballot, the word "Signed" appears, with a blank line for the name. This was not on the original, but appears on the duplicate which was attached to the original, but perforated for convenient separation. The duplicate was slightly longer than the original, and the word "signed" extended below the original — a fact not recorded in photographing.