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direct, a number of electors equal to the whole number of Senators and Representatives, to which the State may be entitled in the Congress.”
Inasmuch as Representatives in Congress, and Presidential electors, are the only Federal officers to be chosen by popular ballot, it is manifest that all controversies concerning the right of individuals to vote, whether at a State or a Federal election, must be determined by reference to the local or State law
upon this subject, provided, of course, that such local or State law is not in conflict with any provision of the Constitution of the United States.
§ 2. As already intimated, the power of the State government to prescribe the qualifications of voters, is limited by the terms of the Fifteenth Amendment to the Constitution of the United States, which provides as follows:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color or previous condition of servitude.
“The Congress shall have power to enforce this article by appropriate legislation."
The effect of this constitutional provision most clearly is to render absolutely null and void all provisions of a State constitution or State law, which come in conflict with the amendment itself, or with any statute passed by Congress to enforce it, and which is appropriate for that purpose. In point of fact the adoption of this amendment abrogated certain provisions found in the constitutions and laws of most of the States, which provided, among other things, that all voters should be white male citizens. In pursuance of the power conferred upon Congress by the latter clause of the Fifteenth Amendment, that body has enacted certain laws to protect the newly enfranchised voter in the exercise of his rights. These acts of Congress will be found in full in the appendix to this volume.
§ 3. The right of suffrage is not a natural right, nor is it an absolute, unqualified personal right. It is a right derived in this country from constitutions and statutes. It is regulated by the States, and their power to fix the qualifications of voters, is limited only by the provisions of the Fifteenth Amendment to the Constitution, which forbids any distinction on account of “race, color, or previous condition of servitude.” Huber vs. Reily, 53 Penn. State R. 115. Ridley vs. Sherbrook, 3 Cold, 569. Anderson vs. Baker, 23 Md. 531. Brightley's Election Cases, 27. See also 1 Story Const. Ch. 9, Sec. 581, 582.
§ 4. The qualifications of voters are not uniform in all the States, but they are similar. Among those which are generally required, are the following:
1. Citizenship, either by birth or naturalization.
2. Residence for a given period of time in the State, County, and voting precinct.
3. Age. In all the States it is required that a voter shall have reached the age of twenty-one years.
4. In some States the payment of taxes, and in many States registration.
5. Freedom from the infamy of having been convicted of an infamous crime.
6. That no idiot or lunatic shall vote. § 5. The Legislature of a State cannot add to the
qualifications of an elector, as prescribed by the State constitution. Where the constitution prescribes the qualifications, whoever possesses them, has a constitutional right to vote, and of this right he cannot be deprived by legislative enactment. This rule has been applied in the construction of the constitution of Pennsylvania, which declares affirmatively that all persons possessing certain qualifications shall be entitled to vote. The Legislature of that State, in 1866, passed an Act, declaring, in substance, that no person should be permitted to vote, who, having been drafted into the Military Service, and duly notified, had failed to report for duty. But it was held by the Supreme Court of that State, that this was an attempt of the Legislature to disfranchise those to whom the constitution had given the rights of electors, and that the act was therefore unconstitutional and void. McCafferty vs. Guyer, 59 Pa. State R. 109, Brightley's Election Cases, 44.
§ 6. While the Legislature cannot add to, abridge or alter the constitutional qualifications of voters, it may, and should, prescribe proper and necessary rules for the orderly exercise of the right resulting from these qualifications. The Legislature must prescribe the necessary regulations as to place, mode, manner, &c. But such regulations are to be subordinated to the enjoyment of the right itself, Page vs. Allen, 58 Pa. State R, 338, 347, vide also Patterson vs. Barlow, 60 do 54.
It has been held under the authority of the rule in McCafferty vs. Guyer, that an act of the legislature declaring that a voter who has removed from his district within ten days of the election may vote in the district rernoved from, is unconstitutional and void. This, for the reason that the constitution requires, that the voter should have resided in the election district “ten days immediately preceding the election.” Thompson vs. Ewing, 1 Brewst. 103. And in State vs. Adams, 2 Stewart 239, the Supreme Court of Alabama held that no department of the government, nor all of them combined, have the power to divest an individual of his constitutional right of suffrage.
§ 7. The power to provide for the orderly exercise of the right of suffrage, which we have seen belongs to the State legislature, includes the power to enact registry laws, and to prohibit from voting, persons not registered. It is now generally admitted that these laws do not add to the constitutional qualifications of voters, and are therefore not invalid. Capen vs. Foster, 12 Pick 485, Brightley's Election Cases, 51.
§ 8. But it is manifest, that under color of regulating the mode of exercising the elective franchise, it is quite possible to subvert or injuriously restrain the right itself. And a statute which clearly does either of these things, must of course be held invalid, on the ground that it seeks to deprive the citizen of his constitutional right.
For example, a registry act which should undertake to require a longer residence, prior to the time of voting, than that required by the constitution, or which should require the payment of taxes not required to be paid by constitutional provision, or which should impose upon a particular class of citizens, conditions and requirements not required of all others, would be void. The right to vote must not be impaired by the regulation. It must be regulation purely, and not destruction.
§ 9. It being conceded that the power to enact a registry law, is within the power to regulate the exercise of the elective franchise, and preserve the purity of the ballot, it follows that an election held in disregard of the provisions of a registry law must be held void. In Ensworth vs. Albin et. al., 44 Mo. 347, an election was set aside upon the ground that there was no registration whatever, although the statute required registration as an indispensable pre-requisite to an election. It has been suggested, that this doctrine puts it in the power of the board of registration to defeat an election, by failing to meet, and refusing altogether to discharge their official duties. But it is hardly safe to attempt to test the validity of a statute by presupposing a case so extreme and so improbable as the refusal of a sworn officer of the law to act. Should such a case occur, of course a mandamus would lie to compel the recusant officer to discharge his duties, and severe penalties ought to, and it is believed generally do, follow any such failure to discharge an official duty so grave and important.
Upon this point the Supreme Court of Missouri, in Ensworth vs. Albin et. al., say: "We are referred to no case where a law has been held unconstitutional for the reason that the officers required to execute it, had neglected their duty, or abused their trust, nor are we aware of any principle on which to base such a decision."
§ 10. A case may occur where a portion of the legal voters have, without their fault, and in spite of due