Page:A History of the Australian Ballot System in the United States.djvu/78

Rh place is directory. It has also been held that the provision requiring the initials of two judges of opposite parties is directory only, and in the absence of fraud a ballot may be counted although the initials indorsed thereon were those of two judges of the same party. The indorsement must be made by the judge’s own hand. He can neither authorize others to sign his name, nor can he use a rubber stamp. If the statute requires the initials of two judges, ballots bearing only one judge’s signature must be rejected. Where the law provides that all ballots shall be numbered, such a provision is mandatory and ballots not so numbered cannot be counted.

Marking the ballot.–The provisions of the law relating to the marking of the ballot are generally held to be mandatory, because to permit any other mark than the one provided by law would make possible the use of distinguishing marks, and thus rob the ballot of its secrecy. Under this rule the question “whether a ballot should be counted does not depend solely upon the power to ascertain and declare the choice of the voter, but also upon the expression of that choice in the manner provided by statute.” Ballots have been declared void in whole or part if the cross was placed on the wrong side of the name of a candidate; or if the cross was placed above or below the candidate’s name instead of in the appropriate square; or where the cross did not touch the circle or square.

In some jurisdictions the courts feel that this rule should be relaxed in order not to disfranchise innocent voters. In Mauck v. Brown the Nebraska court held that it was not essential to a valid ballot that the cross be in the circle or square. If the cross is either to the right or