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diligence on their part, been denied the privilege of registration. In such a case, if the voter was otherwise qualified, and is clearly shown to have performed all the acts required of him by the law, and to have been denied registration, by the wrongful act of the registering officer, it would seem a very unjust thing to deny him the right to vote. In elections for State officers, however, under a constitution or statute, which imperatively requires registration as a qualification for voting, it may be that the voter's only remedy would be found in an action against the registering officer for damages. People vs. Kopplekam, 16 Mich. 342. State vs. Stumpf, 23 Wis. 630. State vs. Helmantel, 21 Wis. 566.
Where, however, a portion of the voters of a given precinct are thus unjustly denied the privilege of registration, and another portion, are duly registered, and permitted to vote, no doubt is entertained but that the entire poll should be rejected, if the votes of the former class cannot be counted, and if they are sufficiently numerous to affect the result.
§ 11. In the absence of any positive law making registration, imperative, as a qualification for voting, it is a very plain proposition that the wrongful refusal of a registering officer to register a legal voter, who has complied with the law, and applies for registration, ought not to disfranchise such voter. The offer to register in such a case is equivalent to registration. This would be held to be the law upon the well settled principle, that the offer to perform an act which depends for its performance upon the action of another person, who wrongfully refuses to act, is equivalent to its performance. The Congress of the United States has, however, provided against injustice of this kind by a positive statute, which must, of course, (if held valid,) control all federal elections. By the 3d Section of the Act of May 31st, 1870, (16 Stat. at Large, p. 140,) it is provided as follows:
“ That whenever, by or under the authority of the constitution or laws of any State, or the laws of any territory, any act is, or shall be required to be done by any citizen as a pre-requisite to qualify or entitle him to vote, the offer of any such citizen to perform the act required to be done as aforesaid, shall, if it fail to be carried into execution by reason of the wrongful act or omission of the person or officer charged with the duty of receiving or permitting such performance, or offer to perform, or acting thereon, be deemed and held as a performance in law of such act, and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner, and to the same extent as if he had in fact performed such act.”
It is undoubtedly necessary that a person who, having been refused registration, seeks to have his vote counted under this statute, should prove that he actually and personally applied to the proper board or officer for registration, and offered to make such proof, or perform such acts as the law required of him ; that he was in fact legally qualified to vote and entitled to registration, and that registration was refused. In other words, it must appear that the voter did, or offered to do, all that the law required at his hands, and that his failure to be registered was the fault of the board or officer of registration. Nor is it enough that he demanded registration of the proper officer or board, and was refused. It must also appear, before his vote can be counted as if cast, that he offered his vote at the proper time and place, or used proper diligence in endeavoring to
§ 12. It has been held that the aforesaid act of Congress of 31st May, 1870, does not interfere with the laws of the several States, which prescribe the qualifications of voters, except so far as they are founded upon the distinction of race, color or previous condition of servitude. (Exparte McIllwee, 3 American Law Times, 251, Brightley's Lead. Cases on Elections, 65.) And the same doctrine was laid down by the District Court U. S. for District of Oregon, in the case of McKay vs. Campbell, 2 Abbott U. S. Rep. 120. It was determined in this latter case that in a proceeding to recover the penalty provided by the second section of said act, it must be averred among other things, that the denial of right was on account of the race, color or previous condition of servitude of the plaintiff
. § 13. It is still, however, a disputed question, whether the act aforesaid should be so construed as not to afford relief to a citizen, who is deprived of his right to vote or to be registered, for a cause other than race, color or previous condition of servitude. Judge Jackson, of the District Court of the U. S. for the District of West Virginia, took the ground that said act was designed to protect all citizens without distinction in the right of suffrage, and he enforced this view as follows:
“The last clause of the 14th amendment to the
Constitution of the United States, provides that no one shall be denied the equal protection of the laws. In framing this act, Congress must have had this . provision of the Constitution in view. It cannot be supposed that it would escape their attention; it must therefore be conceded, that all citizens are, under the fundamental law of the land, entitled to equal privileges, and the equal protection of the law; the latter right is embraced in the very words of the amendment. It is incredible to suppose that Congress intended, by the passage of this act, to do so vain a thing as to enact a law purely for the benefit of one class of citizens, to the manifest neglect and prejudice of another, thus attempting by legislation to deprive them of the equal privileges and the equal protection of the law, as guaranteed by the Fourteenth Amendment.” (3 Am. Law Times, 254-5.)
§ 14. And this view is strengthened by an examination of the act itself. It would seem that its aim and purpose is to do more than protect persons of color, alone, in their right to vote. Thus by section 2 it is provided that, when "any act is required to be done as a pre-requisite or qualification for voting" the proper person or officer “shall give to all citizens of the United States the same and equal opportunity to perform such pre-requisite, and to become qualified to vote.” This could hardly have been framed with a view to the protection of one class of citizens above another. The recent decision of the Supreme Court of the United States, in the Slaughter House cases, (16 Wallace,) is not necessarily in conflict with this view. This latter case presented the question whether an act of the legislature of Louisiana, to regulate the business of slaughtering animals in and near the city of New Orleans, was in conflict with the 14th Amendment to the Constitution, because of the creation thereby of a monopoly. It is true that in the opinion of the Court delivered by Mr. Justice Miller, it is shown that the recent amendments to the constitution were intended especially, if not exclusively, for the protection of the rights of the freedmen, and doubt is expressed as to whether "any action of a State not directed by way of discrimination against the negroes on account of their race, will ever be held to come within the purview of this provision.” It is also said that “the Fourteenth Amendment is so clearly a provision for the colored race, that a strong case would be necessary for its application to any other."
The point decided, however, was as to the power of the State Legislature to pass the act under discussion, and the question of the power of Congress to pass laws to protect the citizen in his right to vote, was of course not touched, because no such question arose in the case.
§ 15. The Fourteenth Amendment to the Constitution declares that "no State shall deny to any person the equal protection of the laws,” and gives Congress power to enforce this provision by appropriate legislation. It is yet an open question how far Congress may go in the enforcement of this provision, and any extended discussion of the subject in advance of its settlement by the Supreme Court, is perhaps not desirable. Very much will depend upon the meaning of the word “State," as used in the clause above quoted.