Page:Harvard Law Review Volume 2.djvu/391

 LEGAL ASPECT OF THB SOUTHERN QUESTION. 373

clerk of the House, who decides, on failure of the parties to come to an agreement, haw much shall be printed.* Briefs are then filed,* and the matter is referred to a committee, who make a report, which is either adopted or rejected by the House. Thus the case is disposed of ; but it is needless to say that the vote on the report is frequently a party one.

The principal grounds for setting aside an election are intimi- dation and fraud. If the true result of an election has been changed, or cannot be ascertained with certainty from the returns, because of violence or intimidation, the election should be set aside. Whether the contestant can be counted in is a difficult question. McCrary, in his work on elections,^ says : " It must, however, in the nature of things, be a rare case in which the votes of persons prevented from voting by violence or intimidation can be counted for one or the other candidate, as if actually cast. In order that a vote not cast shall be counted as if cast, it must appear that a legal voter offered to vote a particular ballot, and that he was prevented from doing so by fraud, violence, or an erroneous ruling of the election officers. Just what is to be understood by offer- ing to vote, is not, perhaps, perfectly well settled. If a voter approaches, or attempts to approach, the polls, for the purpose of depositing his ballot, and is driven away, or, by violence, intimi- dation, or threats, prevented from the actual presentation of his ballot to the proper officer, and if he used proper diligence in endeavoring to reach the polls and deposit his ballot, and was not intimidated without sufficient reason, the better opinion seems to be that his vote may be counted. But, of course, voters who do not present themselves at the polls and offer their ballots, or who do not attempt to go to the polls at all, or, attempting, fail, without reasonable cause, cannot, in any case, ask that their vote be counted."*

The employment of soldiers to keep order at the polls is always hazardous, because, if their presence causes a number of voters, sufficient to affect the result, or to render it doubtful, to abstain from voting from reasonable motives, the election ought to be set aside, although there is no actual violence.^

An election should be treated as a whole, in passing upon the

' Rev. St., §§ 106-127. « Acts ad Scss. 49th Cong. 445.


 * McCrary, Elections (3d ed.), § 523. * Newcom v. KirUey, 13 B. Monroe, 515.


 * Giddings v. CUrk, 42d Congress.