DeWalt v. Bartley

146 Pa. 529 | Pennsylvania Court of Common Pleas, Philadelphia County | 1892

Opinion,

Mr. Chief Justice Paxson:

Each of the above cases is an appeal from the refusal of the learned judge below to grant a preliminary injunction. The object of the respective bills was to test the constitutionality of the act of assembly, approved June 19, 1891, entitled: “An Act to regulate the nomination and election of public officers; requiring certain expenses incident thereto to be paid by the several counties and certain other expenses to be paid by the commonwealth, and punishing certain offences in regard to such elections.”

The effect of these proceedings, commenced in different sections of the state, is to seriously embarrass those persons whose duty it is to make the necessary preparations for holding the next general’ election under said act. It is therefore more important that the cases should be disposed of promptly, than that we should elaborate our reasons for our decision. This opinion will be limited to the announcement of our conclusions, with such brief comments only as the occasion requires.

It is proper to observe, at'this point, that the bill in each case asks us to declare the entire act unconstitutional. While certain sections of it have been especially criticised, the litigation is directed against the act as a whole. Were we to declare the sections thus criticised unconstitutional, the act thus emasculated would be of little use even if the remainder of it could be enforced.

There is no doubt of the power of the legislature to regulate elections. It was said in the recent case of Cusick’s Election, 136 Pa. 467: “ The legislature has, from time to time, passed various laws to regulate elections.- The object has always been to protect the purity of the ballot. It is too late to question the constitutionality of such legislation, so long as it merely regulates the exercise of the elective franchise, and does not deny the franchise itself.” See, also, Patterson v. Barlow, 60 Pa. 54. Abundance of authority might be cited were it necessary. The test is, whether such legislation denies f the franchise, or renders its exercise so difficult and incon-j venient as to amount to a denial.

" The act provides for a secret ballot. That is manifestly its main purpose, and it is in entire ha free and equal.” This means that every citizen shall have an equal right to cast a free ballot. This is the letter of the constitution, and it is a right which no legislature can interfere with. The spirit of the constitution requires that each voter shall be permitted to cast a free and unintimidated ballot. This the act of 1891 was intended to secure. An election to be free must be without coercion of every description. An election may be held in strict accordance with every legal requirement as to form, yet, if in point of fact the voter casts the ballot as the result of intimidation; if he is deterred from the exercise of his free will by means of any influence whatever, although there be neither violence nor physical coercion, it is not a free and equal election within the spirit of of the constitution, which declares the constitution. The framers of the act in question have evidently reached the conclusion that the only adequate guaranty of free and equal elections, within the letter and spirit of the constitution, is absolute secrecy. They therefore have provided a secret ballot.

The provisions of the act have been summarized as follows:

1. The exclusive use of uniform official ballots, printed at tbe costs of the counties, containing the names of all candidates nominated, and space for the insertion of other names.

2. The legal nomination of the candidates whose names are to appear on the official ballots, such nomination to be made either: (a) By certificates, signed by the presiding officer and Í secretaries of the authorized nominating body of the political party, which, at the preceding election, polled three per cent' of the largest vote cast for any office in the state, or in thatj portion of it for which the nomination is made; or, (5) By papers signed by qualified electors to the number of one half of one per cent of the largest vote cast at the preceding election for any officer elected for the state at large, if the nomination is for the state at large, otherwise to the number of three per cent of the largest vote cast the preceding election for any officer elected in that portion of the state for which the nomination is made ; the signatures and the qualifications of the signers of every such paper to be vouched for by five of the, signers.

8. The free posting and publication of the candidates’ names before election.

4. The voting in a room where electioneering and solicitation of votes is forbidden, each voter indicating his choice by either secretly marking the names of certain candidates, singly or altogether, or by inserting other names.

5. The voting, in like manner, upon any question which may be submitted to the people, at an election for public officers.

6. The use of licensed and certified watchers, to represent their parties at the polls, thus preventing voters from interference by irresponsible persons.

7. The covering up of the numbers on the ballots, and the sealing up of the lists to which these numbers refer, thereby preventing election officers from learning who has cast any given ballot, and removing the temptations to violate their oaths of secrecy.

8. The punishment of violations of the various provisions of the act.

It will be noticed that the act recognizes the machinery of politics, such as political parties, nominating conventions, and other matters by means of which effect is given to the popular will. This is not the first instance in which these subjects have been recognized and regulated by the legislature. In Leonard v. Commonwealth, 112 Pa. 607, it was held that, “ the act of June 8, 1881, P. L. 70, entitled, ‘An Act to prevent bribery and fraud at nominating elections, nominating conventions, returning boards, county or executive committees, and at the election of delegates to nominating conventions, in the several counties of the commonwealth,’ is a lawful exercise of legislative power, and is an election law within the meaning of § 9, article VIII. of the constitution.”

The ground of complaint, as set forth in DeWalt’s Appeal, is, not that it denies the right of suffrage, but that it abridges the freedom of voting, and, in its practical operation, it destroys the constitutional equality and uniformity in voting, by discrimination against some voters and in favor of others, notwithstanding that all of them are alike qualified under the constitution ; that, instead of dealing with the electors in the relation in which each stands to the state, and, collectively, as members of one body and that body the state, the act treats of the voters as they are divided into political parties by their voluntary choice; and it then confers upon the voters of some political parties favors and immunities based exclusively on numbers in party associations or groups, which it absolutely denies, under the prohibition and penalties of the act, to the A'oters of other political parties which in .voters are less numerous, thus making numbers in political association the basis for conferring on some voters the freedom, the equality, and the uniformity assured to every qualified elector of the state by the constitution, and for denying them to others.

To illustrate this position, our attention was called to the fact that at the last general election the highest vote polled in this state was 790,040, and that the vote cast for the Prohibition candidate was 18,429 ; that the vote so cast for the Prohibition candidate was less than three per cent of the entire vote cast, and that, under the provisions of the act, a candidate nominated by the Prohibition party would not be entitled to have its ticket printed at the public expense, as in the case of the other two parties. It was contended that the provision or discrimination against the Prohibition party is in violation of that clause of the constitution which declares that elections shall be free and equal, and also § 7, article VIII., which declares that all laws regulating the holding of elections by the citizens shall be uniform throughout the state; that these constitutional provisions were intended to secure to every citizen equality in the manner of voting, and to prohibit the legislature from passing any law which shall give, directly or indirectly, an advantage to some voters which will not equally apply to all voters.

This contention is plausible but unsound. The act does not deny to any voter the exercise of the elective franchise because he happens to be a member of a party which at the last general election polled less than three per cent of the entire vote cast. The provision referred to is but a regulation, and we think a reasonable one, in regard to the printing of tickets. The use of official ballots renders it absolutely necessary to make some regulations in regard to nominations, in order to ascertain what names shall be printed on the ballot. The right to vote can only be exercised by the individual voter. The right to nominate, flowing necessarily from the right to vote, can only be exercised by a number of voters acting together. Three persons may claim to be a political party, just as the three tailors of Tooley street assumed to be “ the people of England.” ^* It follows, if an official ballot is to be used, nominations must be regulated in some way, otherwise the scheme would be impracticable, and the official ballot become the size of a blanket. While so regulating it, the act carefully preserves the right of every citizen to vote for any candidate whose name is not on the official ballot, and this is done in a manner which does not impose any unnecessary inconvenience upon the voter.

It was urged, however, that when an elector desires to vote for a candidate whose name is not on the official ballot, he can only do so by writing the name of the candidate upon the ballot; and that this provision, in view of the limited time allowed the elector for this purpose, renders a compliance with it practically impossible, and in many instances would be a denial of the franchise. This is merely the argumentum ab inconvenienti. We cannot say, as a matter of law, that it would be practically impossible to insert the name by writing. The actual enforcement of the act will test fhis as well as many other matters connected with its operation. It is at least probable that when tested by experience it will be found to contain many features that will need revision and amendment. This can be safely left to the legislature, and is no reason why we should declare the act unconstitutional. Aside from this, we see nothing in it to prevent the elector from inserting the name of his candidate by the use of a “ sticker ” as is now practiced. The twenty-third section of the act provides that: “ On receipt of his ballot, the voter shall, forthwith and without leaving the space enclosed by the guard-rail, retire to one of the voting shelves or compartments, and shall prepare his ballot by marking in the appropriate margin or place a cross (X) opposite the party name or political designation of a group of candidates, or opposite the name of the candidate of his choice, for each office to be filled, or by inserting in the blank space provided therefor any name not already on the ballot.” It would be a strained construction to hold that the word “ inserting,” as used in the act, means inserting by writing. It certainly does not say so, and we see no reason why we should place this construction upon it. The fact, that by § 12, the name of a substituted candidate, is authorized to be placed upon the ballot by the use of what is commonly known as a “ sticker,” furnishes no sufficient reason why the name of a candidate, not on the official ballot, should not be inserted in the same way. On the contrary, it recognizes the convenience and the propri-' ety of this mode of insertion.

The only specification of error in Ripple’s Appeal is, that the court below erred in refusing the preliminary injunction asked for. The principal ground of contention in this, as in Meredith’s Appeal, is that the act in question is a local and special law, and therefore in contravention of the constitution. It was alleged to be special and local legislation, because it does not apply to any one of the cities of the commonwealth whose boundaries are not co-extensive with the county. If the fact were as alleged, we would be compelled to declare the act unconstitutional. An examination of it, however, does not satisfy us that it does not apply to every portion of the state. Its language is general and applies to all public offices, whether in counties, cities, boroughs or townships. It contains a vast amount of detail, and there may be inconsistencies in some of its provisions. There are others which are not free from criticism, and as before suggested, its practical working may disclose omissions and defects which will be doubtless corrected by the legislature in the future. The law itself may be regarded in the light of an attempt on the part of the people to secure a pure, free, and unintimidated ballot. Every presumption is in favor of the constitutionality of the law, and it would require a very clear case to justify us in striking it down on the ground of its unconstitutionality.

It is impracticable, at this time, for us to consider and discuss all the details of the act, or all the reasons and arguments urged against its constitutionality by the learned counsel representing the respective appellants. As we view the act there is nothing in it which is so clearly a violation of the constitution as to justify this court in striking it down. It would be out of place at this time to discuss its wisdom. If it shall prove beneficial, the people will probably retain it, with such amendments as the future may show to be wise. If it does not meet with the expectation of the people, they will sweep it away.

The decree is affirmed in each case, and the appeal dismissed at the costs of the respective appellants.