As held in Buckner v. Lynip, 22 Nev. 426, the spirit and purpose of the ballot law was to exclude only ballots bearing distinguishing names, words, or marks, and not those where it satisfactorily appears that the marks were not intended for distinguishing marks and were not placed thereon *Page 458 with the knowledge or consent of the voter. Doubtless, in the first instance, the presumption should be that all marks not authorized by law were placed thereon for the purpose of identification, and, in the absence of satisfactory evidence to the contrary, should exclude the ballot from the count. But clearly it was not the intent of the lawmakers that marks that do not identify the particular ballot, or that clearly appear to have been accidental or inadvertent, as where made by the slip of a pencil, by soiled fingers, through awkwardness in making the cross, or by other unintentional means, and that are not such as to be readily used for purposes of identification, should cause the rejection of the entire ticket.
On the other hand, where the marks were apparently made intentionally, and are such as to readily distinguish the ticket, and such as may have been made for the purpose of distinguishing it, it should not be counted.
Of course, this rule calls for the exercise of some discretion in the canvassers, and is not so simple as it would be to follow the letter of the law, and reject all ballots upon which any unauthorized mark appears; but we believe it to be more in consonance with the spirit of the statute and with the genius of our institutions. Our government is founded upon manhood suffrage, and in the effort to prevent intimidation and corruption in the elections, although a most commendable purpose, and one we would encourage by every means possible, it will not do to adopt rules so strict as to practically disfranchise a considerable number of innocent voters. This would be too heroic a remedy. If the sole, or even the main, purpose be to prevent fraud in the elections, this could be best accomplished by permitting no one to vote.
The marking upon a ballot may be such as to prevent its being counted for a particular candidate upon two grounds: Where it is not so marked as to indicate the voter's choice as to that office, and where it bears distinguishing marks. Upon the first ground, no other mark than that of a cross or X, placed after the candidate's name, will suffice; but a failure to mark upon some office, or a defective marking, should not usually be classed as a distinguishing mark. Probably a cross or an X could be so made as to constitute an identifying *Page 459 mark, but we should be very certain that such was the purpose before we would be justified in rejecting the ballot on that ground. The statute recognizes that there may be defective marking upon some particular office that is still not sufficient to reject the entire ballot, by providing that when, for any reason, it is impossible to determine the voter's choice for any office, his vote for that office shall not be counted. All men do not make crosses and X's alike, nor do all possess the same degree of skill in making them. It would seem that any honest attempt to make the proper mark, and nothing else, even if insufficient to authorize counting the vote for that candidate, should not be treated as sufficient to cause the ballot's rejection.
The following examples will illustrate the distinctions we think should be drawn: Ballot No. 27 has a faint cross, very nearly erased, opposite the name of McNees, another candidate for the same office. It was evident that this mark was made inadvertently, and that the voter sought to change his vote from McNees to Hayes. It is perfectly clear for whom he wished to vote, and, as the faint outline of the cross does not constitute a distinguishing mark, no reason appears why it should not be counted as intended. No. 49 has a mark opposite the name of a state candidate intended for an X, but the second stroke only comes down to, but does not cross, the first. While this was a failure to make a cross, so that probably the vote should not have been counted for that candidate, it was clearly unintentional. Had the second stroke been extended the thirty-secondth part of an inch, it would have been a cross. No. 50 has a light third line across the X opposite the name of a state candidate, doubtless made through accident or carelessness. No. 53 has a light mark, apparently made by a dirty finger, or in an attempt to erase a cross in a square, but which was again made and allowed to remain. No. 73 has crosses made with lines across the top and the bottom of the X's, intended to be the same as the X is made in the statute. As the act does not provide how the cross shall be made, we do not see why that is not as correct as one made simply with two straight lines crossing. We think that such ballots as these, and similar ones, should be counted. *Page 460
On the other hand, No. 35 has in two places a number of crisscrossed lines nearly filling a square. No. 37 has the printed word "No" crossed out with a pencil. No. 38 has crosses not opposite the name of any candidate. No. 39 has a heavy round spot, made with, a pencil, apparently for the purpose of covering up or blotting out a cross in a square opposite the name of a candidate. Very likely in all these instances, the marks were made innocently, and not for the purpose of distinguishing the tickets; but they were made intentionally, and not by accident or inadvertence, and are such as might have been placed there for identification. They were, therefore, properly rejected.
All questions concerning the manner of making a cross, or of where it shall be placed, can be avoided, and an advantageous change made in the law, by the legislature adopting an amendment providing for the use of a rubber stamp instead of a lead pencil, as is directed by the statutes of Indiana and some other states.
I concur in the conclusions announced by Justice BELKNAP as to the ballots that should or should not be counted.
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