(after deducting 1 "repeater"), 6 of which were of persons not registered; 216 votes were returned for Senator, and 29 voters were listed alphabetically.

Fifth ward, thirteenth division.-In the thirteenth division of this ward the voters' list contained seven "repeaters" and two names not found in the register. Nine ballots were so creased that they could not have passed into the ballot box through the slot. The net number of names in the voters' list was 238, eight less than the number of votes marked for Senator on the ballots found in the box, and the list of voters contained 42 names in alphabetical order.

Sixth ward, first division.—In the first division of the sixth ward the box contained 10 more ballots than could be accounted for on the basis of the stubs returned. Nine of the ballots in the box-eight of which bore indications of having been detached from the stubs in one handful-lacked creases to evidence their lawful deposit in the box, and 50 names were inserted in the list of voters in alphabetical order. Three of the names in the list were those of persons not registered, and two were "repeaters."

Eighth ward, twelfth division.-In the twelfth division of the eighth ward the total registration was 149, and the number of stubs returned was exactly the same. Five detached unused ballots accounted for five of these stubs and the remaining 144 ballots were found in the box. Of these, 22 showed that they had been unlawfully deposited, and 10 contained erasures. Twenty-four names were inserted in the voters' list in alphabetical order, and two of the names in the list were of persons not registered.

Tenth ward, twenty-third division.-In the twenty-third division of the tenth ward the recount showed that Vare had been credited with 30 votes more than he was entitled to and Wilson with 24 votes less. There were only 38 stubs returned, together with 12 detached unused ballots, leaving 26 stubs to account for the 125 ballots which the box contained. The list of voters in this division contained 11 surnames inserted over erasures.

Twenty-first ward, seventh division.-In the seventh division of the twenty-first ward the ballot box contained 14 ballots, 13 of which were found together in the box and all except possibly 1 marked by the same person. All of these ballots had evidently been stuffed in the box, since they contained none of the creases which would have been made had they been inserted through the slot, and an alphabetical group of 14 names-exactly the same number-was found in the list of voters. The total number of names in the list of voters was, however, three less than the number of ballots in the box, and the number of ballots in the box was one more than the total registration in the division.

The divisions of this ward generally reveal a thoroughly fraudulent condition. In four divisions ballots had been stuffed in the boxes and in three others a total of 61 ballots bore erasures. As a result of the recount of the vote, Vare lost 67 votes originally credited to him on the returns, and Wilson gained 73. In four divisions no stubs were returned by the election officers, and in eight other divisions a total of 38 unused ballots had been detached from the stubs and not voted. A total of 40 names was arranged in alphabetical order in the voting lists, and the voting throughout the ward so closely approximated the total registration as to be in itself a suspicious circumstance.

ANNEX C

In re investigation of election held in Pennsylvania, November, 1926, for the office of United States Senator, in pursuance of Senate resolutions 195 and 324 of the Sixty-ninth Congress, and Senate Resolutions 2, 10, and 68 of the Seventieth Congress, first session.

MEMORANDUM OF COUNSEL FOR WILLIAM S. VARE, IN ANSWER TO THE Report OF EXAMINERS EMPLOYED BY THE SPECIAL COMMITTEE OF THE UNITED STATES SENATE UNDER THE ABOVE RESOLUTIONS AND THE CHARGES BASED THEREON

To the Special Committee of the United States Senate:

It is respectfully submitted that the charges contained in the letter of the special committee bearing date of January 14, 1929, are of an extremely general character, and by reason of such characteristic, counsel for the Hon. William S. Vare requested information which would specify the election districts in which it was charged that the irregularities and illegalities were practiced. Had counsel for Mr. Vare been given that information it is very probable that complete answer and refutation could have been made to each and all of the charges.

It is further submitted that any conclusions or opinions of the committee are necessarily based upon examination of most of the records by clerks, some of whom had for some time been in the employ of an antagonistic and prejudiced organization in Philadelphia; others were examining the records under the supervision, direction, and control of these men and they were not permitted to give any information to the one representative of Mr. Vare permitted in the room where the examinations were being made. These examiners informed the Vare representative that they were not even allowed to converse with any representative of Mr. Vare. Apparently from the results of their investigation these examiners were guided into one path which prevented them from seeing anything, or trying to see anything, which might be explanatory of a condition which standing alone would appear inaccurate, erroneous, or suspicious, and indeed they did not examine and compare all the records. We submit, therefore, that any and all conditions alleged to have existed were apparently reported under the influence of prejudice and every little inaccuracy was seized upon to influence this committee against a man who has not been shown to have ever violated a single law in his whole life.

We therefore approach the consideration of very general charges with due deference and respect for this committee and any criticism of the charges and methods are not directed at this committee, and, indeed, are hereby expressly disavowed. We realize that this committee could not, of themselves, have made personal examination of these documents and records and were, of necessity, obliged to depend on clerks and assistants. These clerks have had ample time to check up on every detail but they have failed to make such check. They would discover what appeared at first blush to be an inaccuracy or even something of an apparently fraudulent nature but failing to make a proper check up conIcluded and so declared that there was fraud.

In the notice to Mr. Vare from this committee, 22 alleged specifications are noted they are not specifications, they are an accumulation of general charges without specification. On receipt of, this notice we asked for a specification of the divisions in which such alleged violations of the law occurred and we are still waiting for such specifications. Consequently, in the short period of eight days we have been endeavoring to examine the great mass of records with the hope of being able to locate the divisions in which the violations are said to have been perpetrated and to check up with all the records to determine the truth or falsity of the charge. In eight days we have endevored to check on the work of the examiners who consumed months and months in garnering information upon which these charges are based. And after such extended and extensive examination said examiners have not been able to establish in a legal way one fact to prove fraud excepting in one division in the fourth ward where men pleaded guilty to fraudulent registration. And surely the proof of a single act in one division out of 1,500 could not be said to establish any general scheme of fraud.

In the very limited time permitted us, however, we have been able to obtain specific evidence to contradict practically all of the charges. This committee can not, upon an unbiased examination of the records, conclude that there was any conspiracy or that fraud was committed wholesale in the election. Indeed,

the facts will argue of themelves in favor of a humanly practical, honest election.

A brief reference to the methods of conducting elections, the constituency of the election boards and their duties might assist this committee in determining whether the election was fraught with fraud or whether there were mere inaccuracies due to the imperfections from which all men suffer.

As a part of the election machinery of the State of Pennsylvania, there has been created by acts of assembly a board known as the registration commission, all of the members of which are appointed by the governor of the State, and the governor is required to appoint upon the commission members of minority parties. The law requires that the governor shall appoint five members of such commission, not more than three of whom shall be members of the dominant party. This commission in turn appoints what are known as registrars, and is directed to appoint four registrars for each election district in cities like Philadelphia and Pittsburgh. Since the criticisms and charges have been confined to Philadelphia there is no necessity for discussing what is known as an enrollment process in the smaller municipalities and districts. Each set of registrars is divided between the political parties so that where possible not more than two of the board of registrars belong to the same party. It is the duty of the commssion to furnish to the registrars in each division or election district two books, one of which is called the ballot check list and the other is entitled the voting check list. There are three registration days prior to the election and the electors are required to appear in their respective polling places and personally be registered in order to be entitled to vote at the immediate subsequent election. When a voter appears to be registered he must be sworn or affirmed and answer the questions of the registrars, which questions are provided in the aforesaid ballot check list and voting check list. He must also be able to produce evidence that he has within two years last paid a State or county tax, and if he has not paid a State or county tax he is required to pay a poll tax. Having answered the questions propounded to him by the registrars, he is then required to sign his name on the voting check list but no signature is made in the ballot check list. At the end of each registration day the registrars write their initials in the two books and keep them in their possession until the next registration day; and when the last registration day has expired, the registrars are required to sign their names at the end of each book. These books are then retained by the registration commission which grants additional opportunity for registration to those who by reason of illness or absence from the city were unable to be registered on the regular registration days. These registrations when ultimately completed contain the names of all the persons entitled to vote in the coming election.

These books remain in the custody and control of the registration commission from the last registration day until election day when the books, namely, ballot check list and voting check list, are delivered to the election officers of the several districts in the city.

The election is conducted by an election board consisting of a judge and two inspectors who are elected by the voters of the particular election district. The impression that the inspectors are elected by the respective parties is erroneous. The law simply provides that a voter may cast his ballot for a judge of election and one inspector without requiring that the inspector be of any particular political faith. The inspectors so elected appoint clerks. On election day the judge is sworn by one of the inspectors and then the judge swears the inspectors and the clerks. In the conduct of election the inspectors take charge of the registration books and ordinarily the clerks take charge of the books called list of voters. As a voter appears to vote he is required to announce his name and address. The inspectors by examination of the registration books determine whether he is entitled to vote. If he appears on the registration books as having been duly registered he is handed a ballot by the judge and the ballot check list is checked, indicating that a ballot had been delivered to him and the voting check list is checked, indicating that he has voted and the clerks write his name in the list of voters.

In addition to actually receiving the votes from the voters, these election boards are required to make up return sheets, including what is known as a general return sheet, and triplicate return sheets, tally sheets, and frequently many affidavits. All of these sheets must be made up in accordance with the law and all of them must be signed by each one of the election officers. Some of the papers must be put in an envelope and sealed, some must remain in the ballot box. The election officers are required to return the ballot box and the sealed envelopes to the proper offices in the City Hall.

The mere recitation of the process might give rise to the inference that it is a simple precedure. Perhaps it might be for persons trained in bookkeeping or persons of more than average intelligence; but to the great majority of election officers it is a very complicated and intricate process. Election boards are constituted in the main of men who are unaccustomed to earning their living solely by their mental powers. Most of them perform manual labor, and the writing and checking, reporting and differentiating of sheets and ballots and votes becomes to them in many instances quite a task. The polls are opened at 7 o'clock in the morning and are kept continuously open until 7 p. m., or 12 hours. It is after 12 hours of such service that the election officers are then required to count the ballots and make the necessary returns, and in many instances this will take from 2 to 3 more hours. So it is not at all surprising or astonishing that frequently errors and inaccuracies will appear in the returns made by such election boards. Indeed the fact that such errors and inaccuracies occur is rather indicative of absence of any organized plan to defeat the purpose of election. Were the 1,500 divisions in a city to make thoroughly accurate returns and computations, it would argue more forcibly in support of an organized scheme than the conditions which will always be found, namely, the slight and immaterial errors and inaccuracies.

It is further submitted that the list of charges contained in the aforesaid letter of January 14, 1929, are based upon assumptions, suspicions, and prospects, but practically nothing upon actual fact. The various charges are stated as facts and it is most respectfully contended that these alleged facts have not been proven by any competent evidence. It is almost impossible to disprove such allegations without being able to attack the evidence upon which such conclusions have been based. In the short period of approximately eight days, however, and after considerable effort on the part of representatives of Mr. Vare, it is submitted that we have obtained sufficient information to flatly contradict the charges made.

We shall endeavor to argue each specification as presented, but before doing so it is submitted that a few general observations might not be out of place at this time, and especially relative to some of the more serious charges made.

To guess or surmise that fraud or forgery might be committed is proof of nothing but the antagonistic attitude of the charger. Because registrars might have misunderstood the meaning of complicated laws, or acted sometimes in the interest of expedition, does not prove any fraud, especially in the absence of proof that the electors whose names are in the books did not actually appear and register.

A complete examination of the 1926 registration could have been made since the election of 1926 even though such an examination could not have been made between October 3 and October 23, 1926. However, quite a large examination could have been made in the time, but no effort was made.

Extreme lack of time and the limited source of funds have prevented Mr. Vare and his representatives from making a complete check on the handwriting experts. Bank clerks are not strictly speaking handwriting experts-true, they may be qualified in court to identify certain specific signatures; they are experienced in comparing admittedly genuine signatures on two separate documents; e. g., signature card and check. Their entire process is one of comparison and only letter for letter and it may have happened in some instances in this investigation that the names compared did not have similar letters.

The handwriting expert is worthless without a proven standard-that is, in a court of law. Frequently experts have made mistakes-Melcher, the infallible, has made mistakes. Sometimes the theory upon which they proceed is faulty. It is not safe to accuse a person of being a party to a forgery upon the mere ex parte examination made by a handwriting expert.

Evidence of handwriting experts has been denominated by appellate courts as the poorest kind of evidence and is accepted because frequently it is the only evidence that can be produced on the subject matter before the court.

To say that 167 divisions were selected at random is open to much doubt. We assert that they were not selected at random but that work sheets were so prepared as to provide information on this subject, and after a careful examination of all the registers only 167 were found which justified suspicion and were therefore referred to handwriting experts.

Evidence of the data having been written in by persons other than registrars does not prove fraud.

You can not charge fraud in this election because sometime in the past fraud was committed, because it has been charged dead people and children were

registered in the past is not proof of fraud in 1926. How lame is the complaint if similar conditions in 1926 can not be proved. Because there was a conviction in Commonwealth v. Di Natale, sixteenth division, fourth ward, certainly is no evidence of the guilt of 600-odd other persons acting as registrars. Therefore the committee can not assume anything-there should be proof.

If any portion of the committee's conclusion or beliefs is based on a presumption-especially by bank clerks it has no place in a fair and impartial report and in the administration of justice.

SPECIFICATION NO. 1

"That in 674 divisions there was a total of 21,572 tax receipts illegally issued in 1926."

The first question which occurs to the mind is, what evidence has the committee obtained in order to state such a proposition as a fact. No witness was called before the special committee, but a great number of witnesses were called before the subcommittee of the Committee on Privileges and Elections; and at least 90 per cent of those witnesses testified that they had no knowledge whatsoever of any marks on the stubs of the tax receipts which had been issued; no explanation could be given by any of those witnesses of any cross marks, letters, or other insignia. Some witnesses attempted to make some explanation of marks contained on the stubs-for example, that the mark was placed to indicate where the collector left off at the time of going to lunch or leaving the room for some other reason. One or two testified that they were just passing away the time. However, practically all of the witnesses called by the counsel for William B. Wilson, the contestant, testified that they never issued a poll-tax receipt without having received the tax from the voter and that no one other than the voters paid for the tax receipts; and there was no evidence to the contrary.

The evidence of one witness, Penczak, was contradicted emphatically by James Morrow, and the examination of Penczak indicates that his testimony could not be relied upon. Furthermore, in that division there were no marks of any kind whatever on the poll-tax stubs. Consequently, if the allegation of the special committee is based upon the markings as indicative of a system, then the testimony of Penczak fails because there is no evidence of the operation of the system in that division, and if the allegation of the special committee, based upon the report of its investigators, is found on the marks upon the stubs and the evidence produced by the lawyers for Mr. Wilson there is no justification for the conclusion, and it is submitted to this committee, sitting as lawyers and judges, and requiring even ordinary evidence of a fact, even though the committee may not require technical proof, the fair conclusion on this specification should be, and is, that no evidence much less proof exists for the charge; and in all cases it has been held fraud must be proven by evidence which is clear, precise, and indubitable. Witnesses further testified that there were no marks on the poll-tax books when they received them and no marks on the books when they returned them to the tax office. No trial body will deprive a man of any property or other legal right upon mere suspicion. It is suggested that there never has been an election held in the United States during its entire history which would be absolutely free of circumstances and conditions and factors indicative of error and misinterpretation.

Elections as conducted in Pennsylvania make it almost impossible as a practical matter to obtain thoroughly accurate returns. One of the strongest arguments advanced in favor of voting machines was to relieve men of the arduous duties and tasks incident to the conduct of elections in Pennsylvania.

In the limited time that has been permitted us to answer the specifications it has been, of course, impossible to make a complete examination of the records; but the examination of a few scattered divisions throughout the city of Philadelphia has disclosed some very interesting facts, facts which not only contradict the theory that the marks on the stubs are an indication that the voters did not personally pay for their tax receipts, but are conclusive evidence that they did. We have found that in several divisions every tax stub had a check mark of some character on it. An examination of the records discloses that in such divisions some of the voters were Democrats; some of the voters were Independents; some may have been Socialists or belonged to the Labor Party or other organizations. Men well known in Philadelphia for their wealth, influence, and position; men never allied with the Republican organization; men of various professions-doctors, lawyers, dentists, and others-residents of the Union League and the Manufacturers Club, have upon their tax stubs checks or marks as