voter without any disability whatsoever being claimed by the voter. There is in the city of Philadelphia a very large foreign population; many immigrants who have not had the advantage of an American education; many who can neither write nor read; many who though they could perhaps write a little nevertheless find it impossible to read a ballot understandingly. It is a well-known fact that numerous instances have occurred where well-educated American citizens have marked their ballots with the greatest of difficulty and have not felt sure after they had left the polling place that they had marked their ballot in accordance with their intentions. This is merely offered as an explanation of this charge and not as an answer. The charge requires no answer, for under the law of the State of Pennsylvania, as it was at the time this election was held, any voter, be he illiterate or educated, sound of body or suffering from physical disability of any kind had the right of assistance upon his mere request to the election board, and denying him such would have been ground for arrest and conviction and imprisonment. The markings could properly and legally have been all made by a single individual. It is unfair to state to this committee that it had notoriously been the custom in Philadelphia for organization political workers to encourage and compel voters who had no disability whatever to accept assistance with the result that scores of ballots in many divisions were not marked by the voter but simply by one individual or a group of individuals who did party work at the polls. That charge is made without any proof and indeed without knowledge. Some of those who were active in the preparation of the report for the committee did not reside in Philadelphia and could not state of their own knowledge that assistance was forced upon voters.

If this committee is to award to Mr. Vare fair and just consideration of the evidence, then it can not accept prejudiced opinion and statements made without evidence of the fact. It can not be honestly argued that the handwriting experts had handled ballots in any so-called typical election district. Any evidence of Mr. Melcher would be merely opinion evidence, and, as we have already argued, neither Mr. Melcher or any other expert can ascertain scientifically that mere cross marks were made by a single person. In the city of Philadelphia in 1926 there were 1,500 divisions and if there were found 1,500 ballots so marked it would only amount to one ballot to a division. It is an easy matter to call the election officers or committeemen "handy men" without any proof of their dexterity. Men seeking the truth will look only for the truth and not for opinions which find their source and nourishment in the diseased minds of political antagonists. We challenge the committee to show a single instance where any voter was compelled to have his ballot marked by another against his will.

In connection with the markings on ballots, some criticism has been made of marks other than those for United States Senator. It has been assumed that the mark for United States Senator was genuinely made, but contended that in some divisions other marks were placed upon the ballots not by the voter casting the ballot for United States Senator. For instance, in connection with a special election relative to a city loan. First, that mark has nothing whatsoever to do with this investigation, especially in view of the admitted genuineness of the vote for United States Senator, and because it is the opinion of some of the members of the staff of the special committee that the mark for the city loan was fraudulent, this committee is urged to consider also that the admittedly genuine mark for United States Senator is also fraudulent.

We, therefore, respectfully submit that this specification is entitled to no weight in the action of this committee.

SPECIFICATION NO. 17

"In many divisions the condition of the ballots indicated that groups of them had been torn from the stubs at one time and illegally placed in the box."

This specification is based on a presumption upon a presumption, which is never permissible in the law. It first presumes that the ballots had been illegally torn from stubs, and then, on that it presumes that those ballots were illegally placed in the box. It is possible that in many divisions ballots were torn off, or were partly torn from the stubs in numbers. As a matter of fact before the rush hours at the end of election day some judges tear a number of ballots from the stubs until there is just a very small portion not so torn. This makes it more convenient for the judge to tear the ballot off and hand it to the voter as he comes in. Some judges also cut a number of the ballots in advance until they are all but separated from the stubs and then tear the remaining portion off as the voter calls for the ballot. There is nothing fraudulent in so doing. There

can be no presumption that such ballots were illegally voted. Even if the ballots had been completely torn off in advance this would not invalidate the vote, assuming, as we must, that such ballots were properly marked and voted by the voters themselves. The voter can not be disfranchised by irregularity in the conduct of the election by election officers, and there being no evidence offered to this committee indicating that such ballots were illegally cast, it is submitted that they were legally cast. This is in accordance with the fundamental principle of law that every man is presumed to be innocent and every public officer is presumed to have performed his duty in accordance with the law. The Supreme Court of Pennsylvania has held that even though the election officers themselves have been guilty of irregularity and might even be guilty of misdemeanors their guilt can not invalidate the election.

It should also be borne in mind that all the ballots in that election were deposited in the ballot boxes at some time on November 2, 1926. These same ballots were removed from the ballot boxes when they were counted by the respective election officers on the night of November 2, 1926, and they were again placed back in the ballot box which box was carried from the respective polling places to the city hall and when arriving at city hall, they were placed in vaults and piled up on top of one another; and then when the request from this committee came, these ballot boxes were again moved and carried on trucks all the way to Washington and from the street into the basement of the Senate Office Building and again piled up one upon the other and subsequently taken out of the pile and carried to the room where the subcommittee of the Committee on Privileges and Elections were having the ballots counted. The boxes were then opened and the ballots again taken out and handed to persons to be counted. It seems a physical impossibility that the ballots found in the ballot boxes when opened in Washington were in exactly the same condition in which they were when placed in the ballot boxes on November 2, 1926. It may be true that some of them bore similar indentations, and it may be that the indentations were so similar that ballots when placed one upon the other would indicate that they had all been torn at the same time; and it can not with any degree of reason be argued that those ballots with similar indentations on their edges were deposited in the ballot box simultaneously and remained in that compact fashion from November, 1926, until some time in March of 1928 after having been carried and carted through the various channels and processes between the time of November 2, 1926, and the early part of 1928.

It is not a fair argument to contend that ballots in certain ballot boxes had characteristic creases so made that the ballots folded exactly within those creases. If every ballot cast in the city of Philadelphia had been cast in accordance with a strict and meticulous compliance of the law then this group of investigators would have complained because the creases were exactly alike. Every ballot is printed upon the same size sheet of paper and every endorsement on the ballot is found in the same position on the ballot, and if every ballot were folded and creased in order that nothing but the endorsement should appear, then every ballot would have been folded and creased in exactly the same manner and all the ballots would have fitted into the creases and folds of each other; and if the law had been so thoroughly complied with and the ballots had been found in the ballot boxes in piles in the folds and in the creases so made, the same investigators would have concluded that a 100 per cent adherence to the law was a 100 per cent violation. Furthermore, in the counting of ballots it became necessary to see each ballot, and even though the committee suspect that group ballots were not counted it is highly improbable that they would have continued to adhere to each other during the turmoil and excitement incident to the transfer of those boxes. Therefore, it is submitted that this charge is a preposterous assumption, and is it not insulting the intelligence of men of the intellectuality of United States Senators to ask them to find as a fact upon mere inference and presumption that ballots were stuffed in the ballot box in the fashion indicated in this specification?

Furthermore, this committee has not informed Mr. Vare of the number of ballots charged to have been so illegally cast. We call attention to the fact representatives of Mr. Wilson examined in great detail all of the ballots cast in this election and they have classified the ballots according to their theory of objection. They have protested ballots because of identical tear and double marking, but none seem to have appeared to them in Philadelphia; they have protested ballots for identical tear and similar marking, and their protests include 27 ballots; they have protested ballots for identical tear and impressions, but 9 in Philadelphia; they have protested ballots on the ground that they were folded separately and found together, but none in Philadelphia; they have pro

tested ballots for insufficient creases and identical tear, to the extent of 9 in Philadelphia; they have protested ballots for identical tear and group folding, to the extent of 24 in Philadelphia; and they have protested ballots because they had no crease and identical tear to the extent of 59 in Philadelphia; they have protested ballots for identical tear, similar marking and identical top crease, to the extent of 28 in Philadelphia; they have protested ballots for identical tear and top crease, to the extent of 21 in Philadelphia; and they have protested ballots for similar marking and identical tear to the extent of 14, and similar marking, identical tear and crease 35, making a total of 216 ballots protested by the representatives of Mr. Wilson upon classifications that include and comprehend the ballots complained of in this specification. Furthermore, out of a total of nearly 400,000 ballots cast in Philadelphia the total number of protested ballots in Philadelphia is slightly over 3,100.

SPECIFICATION NO. 18

"There were 18,954 ballots issued to the polling places and unaccounted for by the election officers and, on the other hand that 50 divisions made returns for 992 ballots more than the records show they received."

No oral testimony has been taken by this committee with regard to this specification. Testimony was taken by the subcommittee of the Committee on Privileges and Elections in the city of Philadelphia, the witnesses being subpoenaed at the request of counsel for William B. Wilson. These witnesses consisted

of the election officers of the various divisions in which it was claimed that all of the ballots were not returned and such witnesses included many of the minority inspectors as well as many of the minority clerks. Their testimony was positive and clear that all of the unused ballots were returned.

As to more ballots being returned than were issued, this has been explained by the printers who appeared before the same committee and testified that the printing machines many times turned up 51 or 52 ballots to a book instead of 50, that numbers were sometimes duplicated or skipped entirely and that the election officers would, therefore, sometimes receive 51 or 52 ballots in a book instead of the 50 which they receipted for. It frequently happened, according to the testimony taken before the contest committee, that the numbering machines failed to operate and were frequently exchanged which would account for the difference in the type in the numbers on the stubs and this happened frequently in the middle of a run.

It, of course, follows that they might just as readily have received less than they receipted for. It may be explained that the ballots are intended by the printers to be bound in books of 50 each, the stubs being numbered automatically as they are printed. The number of ballots required by law for each division, in books of supposedly 50 only, are counted out by the clerks in the printing shops, are placed in an envelope bearing the proper ward and division for those particular ballots, the envelope or folder is securely bound and sealed. It is delivered in that condition to the judge of election for that particular district, who receipts for the same. The judge merely counts the ballots by the number of books and not each individual ballot. It was testified by the printer that the clerk in placing the ballots in the envelopes may have made mistakes and in fact had made mistakes.

It would seem that the very fact that almost a thousand more ballots were returned by the election officers than had been received is conclusive evidence of the honesty of the election officers. If fraud had been intended is it not safe to assume these ballots would never have been accounted for?

It must be remembered that there were 863,200 ballots issued to the 1,500 election divisions and of this great number it is alleged that all but 18,954 were properly accounted for.

It was testified by a great number of election officers before the contest committee that they did return their unused ballots and the stubs but it is an admitted fact that a great number of election officers have never returned their unused ballots. The number of ballots delivered to some of the divisions is so great and so far in excess of the actual votes cast that the unused ballots make quite a large and heavy package and the election officers have declined to bring them in. In some instances the unused ballots amount to several hundred in a division and this would require some kind of a conveyance to bring them to the city hall probably from some far outlying district. The average election officer, being obliged to return to his work the day following election, will not take off any time for the purpose of returning the unused ballots and consequently they

have been permitted to remain about the polling places, in many instances without the seal having even been broken and the owners of the property in which the polling place is established evidently destroyed the unused ballots.

However, it is repeated that out of 863,200 delivered to 1,500 election officers the failure to return 18,954 is an extremely fine record and if all the conduct of men were of such character and so indicative of an honest attempt to comply with the law, there would be no use for lawyers and judges.

SPECIFICATION NO. 19

In eight divisions the ballot boxes contained no valid ballots whatsoever. This would lead the committee to believe that no ballots were found for these divisions and is intended, evidently, to intimate that the ballots were lost entirely or destroyed by the election officer, for the purpose of eradicating evidence of their fraud. It is lacking in frankness and might readily lead this committee and the public at large to believe the election in these districts was so fraudulent that the election officials had destroyed the ballots. If there had been a desire to inform this committee of the entire truth, why are they not told that all of these ballots were found intact in the judge's envelopes delivered by the election officers to the prothonotary for the courts of common pleas for Philadelphis County and these envelopes were opened and examined by the employees of the special committee.

We desire at this time to impress upon this committee that every ballot cast in this election, about 385,400, have been delivered to and are in the custody of this committee, and are physically here now in this very building.

SPECIFICATION NO. 20

"In 162 divisions some or all of the stubs and unused ballots were unlawfully returned in the ballot boxes."

This specification, as a basis for charging fraud, is just as unwarranted and unfair as specification No. 19. The stubs and unused ballots were placed in the ballot boxes by the election officers instead of being placed in the judges' envelopes and returned to the prothonotary's office. The very fact that they were returned and accounted for is conclusive evidence that there was no fraud of any kind whatsoever. It is to be noticed that in this specification no charge is made respecting the stubs and unused ballots themselves, and therefore the presumption is justified, especially in view of the unfair methods of the investigators for this committee, that all of the stubs and unused ballots were in accordance with what they should have been, and since they have all been accounted for and no criticism or complaint made against them, the charge should be forgotten.

SPECIFICATION NO. 21

Only 173 divisions were free from fraud upon the face of the records them

selves.

As before stated, we repeat that due to the very limited time permitted us to answer these specifications, it has not been possible to make a complete canvass of the entire 1,500 divisions and ascertain what, if anything, the investigators for the committee alleged was wrong in each particular division.

However, it may be that a careful investigation would show some mistakes, some errors, some erasures and possibly some misinterpretations.

The Supreme Court of Pennsylvania, however in Carbondale's election, 280 Pennsylvania State Reports, page 159, has this to say:

"Concerning the circumstances that there were four more ballots in the box than on the voters' check list, the court below determined that this discrepancy was explainable on the theory that such errors frequently arise by reason of omission to check or record the names of the voters who cast their ballots and concluded this would not warrant throwing out the vote of the entire district and thereby disfranchising 637 voters. We are not convinced there was error in thus deciding."

In our investigation so far made, we have proven that their examinations were not properly and thoroughly pursued and their deductions false in such an astonishing number of instances that we have every confidence of disproving this charge also. We have not been given the particular divisions to which they refer, or the character of the fraud alleged and it would appear that this committee has not been given that information. The committee should appreciate the

difficulty in making answer to charges of so general a nature. If there is evidence of fraud, why not inform us where it is and of what it consists?

The law has well said that it is very easy to allege fraud and that therefore he who does allege it should do so with great particularity. Since there is nothing given here in any degree of particularity, we are constrained to believe it must be based upon irregularities, mistakes, or errors of judgment committed by the election officers, which could doubtless readily be explained.

We now ask the committee to specify the 173 divisions, and we ask it quite confident that the committee can not give it to us. We ask the committee to state definitely the standard by which it was decided that 1,327 divisions out of 1,500 were tainted with fraud. In view of the successful and persuasive refutations of all the charges made in these specifications, we contend that this committee should do more than declare to the public that 173 divisions were the only ones free from fraud and that they should give to the persons against whom such serious charges have been made the opportunity for full and complete defense and answer. If this can not be done, then withdraw the charge.

SPECIFICATION NO. 22

"In 40 per cent of the 1,500 election districts the election board comprised only enrolled Republicans." This is positively denied. While it has not been possible to make a complete investigation of the entire 1,500 districts, we believe we will be able to show this committee that the statement contained in this specification is not correct. It may be true that in some few divisions election officers were entirely Republican because it may also be true that in such divisions there were no voters of any other political affiliation who would serve as election officers. But it is not true that such was the case in 40 per cent of the election districts of the city of Philadelphia. However, the law of Pennsylvania does not require the representative of any minority party among the five members of the election board. The judge and the two inspectors are the only elective officers, the clerks being appointed by the inspectors. Article 8, section 14, of the constitution of the State of Pennsylvania, provides:

"District election boards shall consist of a judge and two inspectors who shall be chosen biennually by the citizens. Each elector shall have the right to vote for the judge and one inspector and each inspector shall appoint one clerk."

What is the sinister motive lurking in the minds of the investigators for the committee which prompted such a charge? The specification does not charge a violation of the law. If the election boards had been composed in toto of reformers, they would even then have comprised only enrolled Republicans.

In conclusion we petition this committee for a thorough and impartial investigation of the facts. Many charges have been made in these specifications, and to the public and especially to the people of Philadelphia has been carried the message that Mr. Vare secured his election as United States Senator upon a corrupt and fraudulent election in his own city. Inaccuracies and honest mistakes have been cited as evidence of fraud and dishonesty. We appeal to this committee for an impartial and unprejudiced consideration.

The fact that tally sheets did not bear tally marks is of no consequence in this investigation because the ballot boxes have been opened and the ballots have been counted by a committee of the United States Senate, and the total of ballots in the ballot boxes have been compared with the returns and the difference in the entire city of Philadelphia, in comparison with the number of votes actually cast, becomes a matter of trifling influence.

No

When your committee served upon Mr. Vare the letter of January 14, 1929, containing 22 separate charges, and notifying him that he must be ready to offer evidence or argument on these charges by January 2, 1929, a letter was sent to the chairman of the committee on January 15, asking for a specification and identification of the divisions in which the alleged fraud was charged. such identification or specification has been furnished, and in the absence of such information Mr. Vare's fores were obliged to search through the records of 1,500 divisions in a period of eight days, in order to check up on the reports of the special committee, and in that eight days Mr. Vare's investigators have been able to achieve marvelous results. Not a single specification remains unanswered or unexplained. The great majority of the specifications have been proven to have been unfounded upon any fact; the comparison of the records of this election have shown that the investigations and examinations made by the employees of the special committee were not accurate and are not dependable.