feat the prime object of the law, the secrecy of the ballot. § 26. Recognition of political parties on official ballots. For many years political parties were entirely voluntary associations unknown to the law. The general adoption of the official ballot, however, compelled the recognition of parties by the officers charged with making up the ballots, and has resulted in many cases in the courts passing on the regularity of party nominations. The awkwardness of the position of the judges in deciding these cases will be seen from a controversy that arose in New York. In 1891 Hugh H. Woodworth and others brought an action to compel the clerk of Seneca county to print their names as the regular nominees of the Republican party on the ballots to be used at an approaching election. At the regular county convention the uncontested delegations from six out of ten towns were evenly divided between the Mongin and Patterson factions. The control of the convention, therefore, was to be determined by the regularity of the delegations from the remaining four towns. The county committee, with the exception of one member, was composed of persons in sympathy with the Mongin faction. They decided to recognize the Mongin delegates from three towns and to divide one delegation between the two factions. This program was carried through despite the protests of the Patterson faction, which then withdrew and organized another convention. This body was composed of at least thirty delegates who were fairly elected, while the other contained at most twenty whose election could be claimed as valid, and so

the order asked for (9), which was approved on appeal (10).

§ 26a. Same: Effect of decisions of party organizations. Two years later, however, in a subsequent election, a similar application was made to the same judge by a nominee of the Patterson faction. In the meantime every state convention, and every judicial, congressional and senatorial convention of the district in which Seneca county was situated, which had been held since the prior adjudication, had recognized the Mongin faction, and the Mongin county committee had been made custodian of the funds distributed by the state committee. Justice Adams said: "I still think, as already stated, that the title to regularity of the Patterson faction was pretty clearly established upon the original hearing, and that it would, in view of the provision of the statute which authorizes this proceeding, have been no more than courteous for the party conventions to have adopted the decision of the general term, which was deliberately made after a careful and impartial hearing, but there is no way in which they can be compelled to do so; and consequently it seems to me that the only rule for courts and judges to adopt in this and all other similar contests is that they will interfere only in cases where there has been no adjudication of the question of regularity by some division of the party which is conceded to be superior in point of authority to the one in which the contention arose, provided, of course, that the question of good faith in the making of such adjudication is not involved. The adoption of a dif(9) In re Woodworth, 16 N. Y. Supp. 147.

ferent rule will inevitably tend to bring party organizations and the courts into unseemly conflicts over questions which are peculiarly within the cognizance of the former tribunals, a result which most certainly ought, if possible, to be avoided" (11). This view was afterwards upheld by the court of appeals (12). When a similar question came before the supreme court of Michigan in 1898 it refused to decide between the contending factions and ordered both names to be placed on the ballot under the party name (13). Where the statutes expressly require the courts to pass on the right to a place on the ballot, however, the courts cannot escape the responsibility, however unpleasant it may be.

§ 27. Nominating petitions. petitions. Practical convenience makes it impossible that every combination of persons calling itself a political party should receive recognition as such on the official ballot. Accordingly provision is made that unless the party received a small (usually from one to five) per cent of the votes cast at the preceding election, it must present a petition signed by a small per cent of the qualified voters to entitle it to a place on the ballot. The names on the official ballot will thus be limited to the nominations of the regular parties and to those presenting proper petitions, but as long as the voter is not prevented from inserting on the ballot the name of anyone he chooses his constitutional rights are not impaired thereby (14).

(11) In re Pollard, 25 N. Y. Supp. 385.

(12) In re Fairchild, 151 N. Y. 359.

(13)

Stephenson v. Board of Election Commissioners, 118 Mich. 396.

§ 28. Primary laws. The early primary laws did little more than subject primaries to much the same rules as the general elections. Thus the New York law of 1882 merely declared certain acts committed at primaries crimes, such as the false personation of a voter, intentionally voting without right, prevention of others from voting, fraudulent concealment or destruction of ballots; required that officers at such elections take the usual oath of inspectors at general elections; and provided for the challenge of voters and the administration of an oath to a person so challenged. These laws proving inadequate, many of the states have proceeded to the regulation of nominations and party control in considerable detail. One of the steps taken has been to determine who shall vote at party primaries.

§ 29. Open and closed primaries. An Oregon act of 1901 provided for a closed primary; that is, confined the voting at a party primary to party members, and prescribed as a test of party membership that the elector "voted for a majority of the candidates of such party or association at the last election, or intends to do so at the next election." The constitutionality of this provision was questioned in Ladd v. Holmes (15), but the court said that if the test were a reasonable regulation by which to ascertain party affiliation, it lay within the power of the legislature and accordingly held the law constitutional. The open primary, in which any elector is allowed to vote irrespective of party affiliations, was provided for by a California statute, but it was declared unconstitutional.

Speaking of it the court said: "It provides that the primary elections of all political parties shall be held at the same time. To the intending voter at such primary one ticket is given. No question may be permitted touching his political affiliations, past, present, or future. The voter takes the ticket, retires into the privacy of the booth, and there, secretly-and not in violation of any law, but in strict accordance with the law-names such delegates as he desires to the political convention of one or another of the parties, whether he is a member of that party or not, whether he ever intends to become such a member or not. The control of the party and of its affairs, the promulgation and advocacy of its principles, are taken from the hands of its honest members and turned over to the venal and corrupt of other political parties, or of none at all. Masquerading thus under the name of one of the great political parties might be a convention of men authorized by this law to represent it and place upon the general election ballot as its candidates those whom they might select a body of men whose sole purpose might be the disruption and destruction of the party whose representatives this law declared them to be" (16).

§ 30. Direct primaries. In a large number of states there has been an attempt to remedy the evils of party government by the direct primary. An instance of advanced legislation of this kind is that of Minnesota. Places on the official ballot are given only to those nominated at a direct primary or presenting a petition signed by the requisite number of voters. At the time the voter