Official vote of Virginia in the Presidential election.
opinion of the Attorney General on the returns.

The result of the recent election in this State for President and Vice President is without precedent, we believe. The vote of Virginia since the adoption of the general ticket system, has always been cast entire for one Presidential nominee. The circumstances which have led to the remarkable result are matters of such general interest that we publish this morning the interrogatories of Gov. Letcher relative to the questions affecting the result, addressed to Attorney General Tucker, and his response to the same. We also give, in another column, the official vote uncertain according to the opinion of the Attorney General:

November 24, 1860
questions submitted by the Governor to the Attorney General, upon which he requests his opinion in writing:

  1. 1st Whether is it necessary to constitute a good voter that he should present a ticket and write his name on the back, or have the same written. The Commissioners return a total of votes cast for the Electors, specifying the number, and then add a portion of these votes cast without tickets, and the residue cast with tickets. Ought these votes to be received or rejected?
  2. 2d. The initial of the middle name in the return of Electors by the Commissioners being erroneously given, thus, >"S" instead of "T," or the commission of junior or senior at the end of the name, as the case may be: Ought such return to be received and counted in favor of the particular Elector?
  3. 3d. In the case of the Christian name of the Elector being erroneously stated in the return — for example, Anthony instead of Andrew — should such returns be counted or excluded for the Elector?
  4. 4th. In the case of the sir-name of the Elector being erroneously stated in the return, should such return be counted or excluded for that Elector?
  5. 5th. Whether a poll opened in the name of the candidates for the President and Vice President, and not for the Electors, should be received and counted, not appearing whether there were tickets or not?
Answer is desired by Monday morning next

John Letcher. J. R. Tucker, Esq., Attorney General

Richmond Nov. 24th, 1860.
--I have received your communication, propounding several questions in respect to the electing of Electors for President and Vice President of the United States. I am compelled, by reason of your request for an answer by Monday morning, to prepare my reply at once; and to state more succinctly than I would otherwise have done, my reasons for the conclusions to which I have time.

1st. Whether it is necessary to constitute a good voter that he should present a ticket, and write his name on the back, or have the same written? The Commissioners return a total of votes cast for the Electors, specifying the number, and then add a portion of these votes cast without tickets, and the residue cast with tickets. Ought these votes to be received or rejected?

This question involves an inquiry into the real mode in which the law directs the voter to cast his vote; whether the voter really expresses his choice by ballot or viva voce.

The Constitution of Virginia (Art. III, Sec. 4) contains this provision:

‘"In all elections votes shall be given openly, or viva voce, and not by ballot; but dumb persons entitled to suffrage may vote by ballot."’

This provision seems to settle the point as to the mode of casting a vote; it must be given openly or viva voce, and cannot be by ballot, except in the single case of a vote cast by a dumb person.

It seems to me it would be incompetent for the Legislature to have required a vote to be cast by ballot, even had it attempted to do so. Nor, in my judgment, has the Legislature made such an attempt.

Sec. 14 of chapter 20 of the acts of 1857-'8, provides that ‘"under the superintendence and control of the Commissioners."’ polis should be open — that he should proclaim and see the votes recorded — appoint writers — have poll books prepared — and deliver to each writer the book he is to keep. The writer is required to write the names of voters in a column headed with the words ‘"names of voters;"’ and opposite the name of the voter, a mark under the name of each person for whom viva voce." The section then proceeds as follows: ‘"And in an election for Electors for President and Vice President of the United States, the said officer."’ (the Conductor,) ‘"shall receive from each voter a paper or ticket containing the names of as many persons for Electors as the State may be entitled to, for the time being. The name of the voter shall be written on the back of the paper, and he shall also declare viva voce for whom he votes as Electors, either by repeating the name of each person voted for, or by any other distinct designation of them collectively: provided, that if it be dumb he may vote by ballot. When the vote is received by the Commissioners it shall be recorded on the poll book as aforesaid."’ It further provides, that the correctness of the poll when concluded by the conducting officer, shall be certified by the Commissioners and Conductor; and requires the delivery of the polls at precincts to the Commissioners at the Court-House.

Sec. 31 of the same act requires the Commissioners at the Court House to examine and compare the several polls taken to the county — strike therefrom improper votes — attach a list thereof to the poll, and the reason for so striking them from the poll.

Sec. 41 provides that ‘"the tickets handed in by the voters shall be kept by the Commissioners under their seal"’--that they shall be preserved by one of the Commissioners, and be delivered to the Governor, if demanded by him within six months after the election. It further provides, that the several polls, when subscribed by the Commissioners, shall be delivered to the Clerk of the county, ‘"to be preserved in the Clerk's office."’

The sections cited are all that bear upon this question. It is obvious from the language of the 44th section, that the law does not prescribe a vote by ballot, but really forbids it, except in the case of a dumb person; thus conforming to the provision of the Constitution already cited. The whole law shows that polls are to be opened and kept, and the votes therein recorded — that upon these the Commissioners are to determine the result — that these are to be returned to the Clerk's office, to be preserved as a perpetual evidence of the election; while on the other hand, the tickets are to be kept by the Commissioner only, unless they be demanded by the Governor.

What, then, is the purpose of requiring the handing in of the tickets? Does that constitute the casting of the vote?

I am of opinion that the vote is cast by the voter when he declares ‘" viva voce for whom he votes as Electors."’ and that the vote so cast must be evidenced according to the mode required by the law. The vote is cast viva voce, and not by ballot — and this under the Constitution and the law. The law directs the officer to receive a ticket, and to have the vote recorded on the poll. These are the modes of evidence which the law prescribes, to establish the fact that the vote has been cast. But the absence of the requisite evidence in all the modes required cannot in validate the vote, if proved by any one of the modes the law requires. If one writer records the vote upon his poll book, and the other falls to do so, I presume the vote will not be rejected for the default of the writer. --If the ticket is furnished and the writers omit to record, is not the vote to be received, when the Commissioners certify it was cast?

I think the sound rule in such cases is this: All favor should be shown to the right of suffrage, the forms prescribed to protect it should not be made instruments to defeat it, and where there is legal evidence that it has been exercised in a particular mode, it will not be defeated, because all the evidence possible has not been furnished to prove it.

In the case stated in your question, the Commissioners certify, that a certain number of votes were cast for the Electors — that a portion of them were cast without tickets. Still they were cast; and so the Commissioners certify. How cast? Viva voce, it is to be presumed; and the evidence of the fact must have been furnished by the record on the poll books, from which the Commissioners are required by law to make their return. Why, then, should the votes be rejected? Not because they were not given, for the Commissioners certify they were; nor because there was no legal evidence of it, for we must presume from the certificates the legal evidence was on the poll book. The only reason for rejection must be, because there were no tickets. The question then recurs: Does the ticket constitute the vote; or such evidence of its being cast, as that, without it, it cannot be proved to have been given? I think I have shown it does not constitute the vote.

Is it evidence of the vote cast, without which it cannot be established?

I answer: It is only one of several modes of evidence by which it may be established. Besides, it constitutes evidence of less dignity than that of the record upon the poll books; for the latter can only be obtained upon a vote viva voce, the constitutional mode of voting; while the former might be furnished in the absence of the viva voce vote.

I think the law proposed to guard this election by furnishing two modes of proof, either of which might suffice to establish the fact of the vote cast. Both are not essential — either will suffice. Both should be required by the officer; but, if not required, or, being required, if not furnished, shall the vote, when cast and recorded by the officer in the one mode prescribed, be rejected?

It seems to me that such a rule would operate a fraud upon the right of the voter. Had the officer refused the vote because the want of the ticket, the voter could have had an opportunity to secure his right by procuring the

ticket. But when he receives and records the vote without a ticket being furnished, is it just to the voter, when the day is passed for the exercise of his right — which he supposed he had exercised — to defeat it for the want of a ticket, not made essential at the time?

I am, therefore, of opinion that the votes should be received referred to in your first question.

A case somewhat similar, from Loudon county, I was telegraphed to express an opinion upon to the Commissioners at the late election. In that case tickets were furnished; but, though the names of the voters were recorded, no mark was put under the Electors voted for, whose names, however, were on the tickets.

In that case the evidence by tickets was complete — that by the poll book was wanting. I decided the votes were good, upon the legal evidence furnished by the tickets. The votes were not bad because though one proof was furnished another was wanting. So in this case, I say, though the proof by tickets be wanting, yet the other mode of proof is furnished — and it is what the law has made one of the modes by which votes are to be authenticated.

2d, 3d, 4th Questions.

These questions present cases of hardship, which I fear there may be no time to relieve. --When the Commissioners returned that certain persons were voted for as Electors, and as a matter of notoriety some of those voted for were not candidates, (there being slight variations in the name) the only mode of rectifying the mistake would be to call for the tickets. --They might do so. It is now, perhaps, too late to obtain them.

We must lean strongly in favor of the right of the voter to vote. We must strive not to defeat it by technical or formal objections.--But, where he has voted, and for a man bearing a name which the voter designates, the question you propound is, shall we presume he did not mean to vote for a man bearing the name he designated, but for another person bearing a slightly different name? I may, by changing his vote thus promote his real purpose; but might I not thus, defeat his right, and usurp it to myself? I am of opinion, that when the Commissioners certify that a person by one name was voted for, it is not competent for the officer appointed to decide to declare a person of another name was voted for, or to declare otherwise than the certificate warrants. The law declares:

Sec. 40. ‘"From the returns so made out, and transmitted to him, the Governor shall ascertain what persons are elected, and make proclamation of the fact. "’

This law shuts up the Governor to the returns, and he cannot go beyond the returns, so made out, to presume a mistake in them, to help what all may really believe was the purpose of the voter.

For example, a certificate states that John Stiles received so many votes. The Governor knows James Stiles was a candidate, while no one ever heard that John Stiles was. But non constat the voter may have intended to vote for John Stiles. Who can take the liberty, after the poll is closed and certified by the proper officer, of changing it — of making the voter vote for a man he did not vote for, upon a presumption that he must have so intended?

Upon this view I think the votes certified must be counted only for the person whose name is recorded as having received them.

If it be said that some name was voted for which is borne by no person known to the Governor, still it does not follow that such a person does not exist. But if no such person does exist, then the vote is void.

Where the initial of the middle name is not that of an Elector on either ticket usually voted for, the question is solved by asking, is the name voted for that of the name most like it on the ticket? Is-A. B. Smith, A. C. Smith? Can the latter claim a vote cast for the former? He can only do so by showing the voter meant to vote for him, and how can that be done now?

I think such a vote cannot be counted, except for a man answering to the name designated; and not for one whose middle initial is different.

I think, however, the addition of junior or senior is no part of the name, is different, and that the vote may be counted for a man who is a candidate who bears the name designated by the voter.

When the christian or sir-name is stated differently from that upon either ticket, I do not see how it can be counted for the candidate on the ticket.

5th question.

If I understand the case intended by this question, it is this: It not appearing whether tickets were used or not, can a poll opened for candidates for President and Vice President be received, in determining who have been elected Electors to vote for persons to fill those offices?

I answer in the negative. The polls are to be opened for Electors for President. Electors are to be voted for. If it does not appear that Electors were voted for, the poll is of no validity, and cannot be counted, because it shows no legal votes for persons to be elected.

I have thus hastily stated my opinion upon the questions presented, and regret that a want of time compels me to do so more hurriedly than I could have desired.

I am, respectfully, your obedient serv't.
J. R.Tucker.

Gov. Letcher. November 27, 1860.
Where the caption of a return certifies that the election was held on the 6th of December, 1860, and in the conclusion the paper bears date the 10th of November, 1860, ought the poll to be rejected or admitted?

John Letcher. J. R. Tucker, Esq., Attorney General.

November 27, 1860.
I am of opinion it should be admitted. It is an obvious mistake, and the presumption should be, the election was held on the day required by law, unless the contrary appears.--The contrary does not appear — for it is impossible a return of an election should be made Nov. 10, 1860, held on Dec. 6, 1860, especially when we are considering the return before the day stated therein as the day of election. It is a mistake, and is as if the month was blank.--If it was blank, the legal inference would prevail.

J. R. Tucker. For the Governor.

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