180 N.C. 169 | N.C. | 1920
Lead Opinion
Tbe prayer of tbe complaint is tbat tbe defendants be enjoined from printing and distributing tbe forms required by the provisions of tbe acts of 1917 and 1919, and from carrying out any of tbe provisions of said acts upon tbe ground tbat they are unconstitutional and void. This legislation is known as tbe absentee voters law, being cb. 23, Public Laws 1917, reenacted and brought forward in Art. 8, cb. 95, of tbe Consolidated Statutes of North Carolina, as amended by cb. 322, Public Laws 1919. It is claimed tbat tbe law is unconstitutional because it is repugnant to Art. YI, sec. 2, and Art. YI, sec. 6, of tbe State Constitution.
Sec. 2 provides tbat the voters shall have resided in the State for 2 years, in the county 6 months, and in tbe precinct, ward, or other election district, in which he offers to vote, 4 months next preceding tbe election. Sec. 3 declares that every person offering to vote shall be at tbe time a legally registered voter. .
Sec. 6 declares tbat all elections by tbe people shall be by ballot, and all elections by tbe General Assembly shall be viva voce.
Tbe question presented and ably argued by tbe learned counsel on both sides is one of grave importance to tbe consideration of which we have given tbe most careful study. It is never wise for tbe judiciary to disregard tbe organic law -which tbe people in their sovereign capacity have seen fit to adopt for tbe security of public and private rights. No-rule of construction is better settled, both" upon principle and authority, than tbat legislative enactments are presumed to be constitutional until tbe contrary is shown. It is only when they plainly conflict with some provision of tbe Constitution tbat they should be declared void. Tbe power of declaring laws unconstitutional should always be exercised with extreme caution, and every doubt resolved in favor of tbe statute-As has been well said, these rules are founded on tbe best of reasons, because, while tbe supreme judicial power may interfere to prevent a legislative, and other departments, from exceeding their powers, no tribunal has yet been devised to check tbe encroachments of tbe judicial power itself. Twitchell v. Blodgett, 13 Mich., 151; Sharpless v. Mayor of Philadelphia, 21 Pa., 162.
Somewhat similar statutes, known as absent voters acts, have been enacted in some thirty-odd States of this Union. In some of the States the law applies only to those absent from their county or precinct, but still within the State. The laws of 21 States allow voting blanks to be filled out and mailed to the proper State officers from anywhere in the United States. It is needless to refer to the varying provisions of these statutes. They vary in the procedure prescribed, but in the main they provide for the pasting and reception of ballots at the places where the absent electors are, and for the return of the ballots to, and the counting and canvassing by the proper election officials of the respective counties of which they are residents. Some of these statutes refer exclusively to voters who are absent in the military or naval service of the United States. Some statutes have been held unconstitutional on the ground that they violate constitutional provisions designating the place -of holding elections and requiring an elector to vote in the district or precinct in which he resides. These statutes have been decided constitutional by the House of Eepresentatives of the Congress of the United States so far as they affect the election of members of that body. Baldwin v. Trobridge, 2 Bartl. Cont. Election Cases, 46.
It is held that it is clearly within the province of a State Legislature to enact statutes of this description if the State Constitution is silent on the place of voting. Morrison v. Springer, 15 Iowa, 304; Lehman v. McBride, 15 Ohio State, 573; State v. Main, 16 Wis., 398.
The plaintiff contends that the statute violates the provision of our Constitution which provides that elections by the people shall be by ballot, arguing that this means a secret ballot in all elections. We admit that voting by ballot, as distinguished from viva voce voting, means a secret voting, and that the elector in casting his ballot has the right to put it in the box and to refuse to disclose for whom he voted, and that he cannot be compelled to do so. But this privilege of voting a secret ballot has been held to be entirely'a personal one. The provision has been generally adopted in this, country for the protection of the voter, and for the preservation of his independence, in the exercise of this most important franchise. But he has the right to waive his privilege and testify to the contents of his ballot. The voter has the right at the time of voting voluntarily to make public his ballot, and its contents in such case may be proven by the testimony of those who are
A secret ballot is not compulsory so far as the voter is concerned, for our statute provides that the ballot may be deposited for the voter by the registrar, or by one of the judges of election, or by the voter himself if he so chooses. Con. Stat., 5979.
We think the position that the statute conflicts with sec. 6, Art. YI, is untenable.
We will consider.the other contention of the plaintiff that the statute is repugnant to see. 2 of the said article. The statute provides that in all primaries and elections that any elector who may be absent from the county in which he is entitled to vote, or physically unable to attend for the purpose of voting in person, etc., shall be allowed to vote as hereinafter provided. The statute then provides that no one shall vote who is not duly registered and qualified to vote under the laws of the State. It provides for sending out blank certificates and envelopes for absent voters. It also provides that the registrar shall hold the said letters unopened until 3 p. m. on the day of election, and that he shall then open the envelopes received from such absent voters, and that such votes, if found to be regular, shall be deposited and counted in the same manner as if the voter had been present in person. Sec. 5 of the act provides that:
“The right to vote of any absent voter shall be subject to challenge in the same manner as if the elector proposing to vote were present in person, and if found entitled to vote under the provisions of this act, and the laws of the State, every such vote so received shall be deposited and counted in the same manner as if the voter had been present and cast his vote in person.”
It is contended that the words, “in which he offers to vote,” in sec. 2, and the words, “every person offering to vote,” in sec. 3, necessarily implies that the voter must be present in person at the polls and tender his ballot. This position was maintained by counsel for plaintiff with much force, and we must admit that the question is perplexing and involved in doubt. But we think the language of the Constitution is susceptible of a fair interpretation which will sustain the statute, in which case it is our duty to uphold it and give to the law the benefit of the doubt. The party who undertakes to pronounce a law unconstitutional takes upon himself the burden of proving beyond any reasonable doubt that it is so. Nothing should have the effect of avoiding a statute duly enacted but a direct collision between its provisions and the Constitution. That collision is not so clear as to justify us in setting aside a statute, which
The statute was enacted in 1917, and its primary purpose was to enable our soldiers to cast their votes by mailing them to the proper officials. ' , -
The soldiers and sailors, who are absent from home in the country’s cause are not disfranchised citizens, and their right to exercise the elective franchise should be preserved and the ways and means provided.
"We admit this question has been decided against our view in the case of Twitchel v. Blodgett, 13 Mich., 127, and upon language similar to that used in our Constitution. But in that case there is a very powerful dissenting opinion by Chief Justice Martin, in which he holds that the words used do not require the personal presence of the elector at the polls. In that opinion the learned judge forcibly says: “Can we, upon any sound judicial opinion, hold that an election in the army is any’the less a legal one, or the soldiers less entitled to the .privilege of electors than persons remaining at their homes, if the Legislature is endowed with the power to fix the place and prescribe the manner of balloting and of canvassing votes — I think not.”
The judge again says: “If a viva voce vote were required, it would be impossible to avoid the conclusion that the framers of the Constitution intended that votes be cast personally, and not otherwise; but a ballot may be deposited as the Legislature sees fit to authorize.”
The fact that this law originated from extraordinary emergency, and was not contemplated by the framers of the Constitution, can make no' difference. If the power resides in the legislators, they may exercise it and apply it to all voters, whether soldiers or not. A power not limited or withheld abides in the people, and in such case the Legislature, like Parliament, is omnipotent.
The case of Bourland v. Hildreth, 26 California, 162, cited by plaintiff, is not a direct authority against our views. The Constitution of California, as held in that case, not only prescribes the qualifications of electors, but also the place within which the act of voting shall be performed, and it cannot be performed elsewhere. But the value of that case as an authority is greatly weakened by the strong dissenting opinion of Chief Justice Sanderson, generally acknowledged to be a very great judge.
The case of Chase v. Miller, 41 Pa. State, 404, differs very materially from the one under consideration. The substance of that decision, as we read it, was that under the Constitution of Pennsylvania the right of a soldier to vote is confined to, and must be exercised, in the election district where he resided when he entered the military service, and that
The election laws, which attempted to confer the right of suffrage upon Federal soldiers absent on military service, and which were passed upon in some of cases cited, are wholly unlike, in principle as well as in detail, the North Carolina absent voters act. Judge Woodard thus describes these laws in above cited case: “They permit the ballot box, according to the court below, to be opened anywhere, within or without our State, with no other guards than such as commanding officers, who may not themselves be voters nor subject to our jurisdiction, may choose to throw around it; and it invites soldiers to vote where the evidence of their qualifications is not at hand; and where our civil police cannot attend to protect the legal voter, to repel the rioter, and to guard the ballots after they have been cast.”
The Connecticut and New Hampshire cases, cited by plaintiff, plainly have no bearing on this controversy. Their Constitutions recognized, and we believe still recognize, the old New England electors’ meeting. The right of suffrage was conferred upon those present and voting at the meeting.
This meeting is commonly called a town meeting, and is a very ancient institution in some of the New England States.
The history of these meetings is given in 'the Connecticut case. Opinion of Judges, 30 Conn., 591, and 44 N. H., 633.
These cases all dealt with statutes of certain States of the United States engaged in the Civil "War conferring the privilege of voting upon their soldiers then absent Jin the army.
The votes were to be cast without any registration at the camps in which they were located; they were collected by certain designated officers to be sent to a State officer, and by him distributed among the various localities-of the State.
Our absentee voters act is a very different enactment. No one can vote under it unless he is registered, and is otherwise a qualified voter. The elector must select his ballots and fill up and sign the form sent him, and seal them up in an envelope sent for the purpose. It must be addressed to proper official, and opened by him at 3 p. m. of election day. Every safeguard is provided to prevent fraud or mistake.
These laws are a very’great public convenience, and serve a very useful purpose or they would not have been adopted in 33 States of the Union.
They have been sustained by the highest Courts of Iowa, 15 Iowa, 304; Ohio, 15 Ohio State, 573; and Wisconsin, 16 Wis., 398.
Passing to a consideration of the text of our Constitution, we think the context of Art. YI indicates that the personal presence of the voter is not required in order to cast his ballot.
Tbat tbe Constitution makers did not mean tbat tbe words “offer to vote” should necessarily imply thé personal presence of tbe voter is indicated by sec. 4. In tbat section tbe language is “every person presenting himself for registration!” Those words plainly require tbe personal presence of tbe voter. If tbe personal presence of tbe voter bad been required by sec. 2, those who framed tbe article could easily have used tbe words, “in which be presents himself to vote.” Such language would have put tbe meaning beyond doubt. At tbe time tbat section ■of tbe Constitution was ado.pted, in 1900, absentee voting laws bad been passed in many States, and in a few cases they bad been before tbe Courts for construction. Tbe convention doubtless bad knowledge of them, and did not deem it advisable to preclude tbe General Assembly in its discretion from enacting such statute whenever it was deemed wise to do so.
An act of tbe General Assembly should not be set aside by implication. A constitution should not receive a technical construction as if it were an ordinary instrument or statute. It should be interpreted so as to carry out tbe general principles of tbe Government, and not defeat them.
In tbe language of Chief Justice Gibson, cited in Twitchell v. Blodgett, supra, “When we construe a constitution by implication of such rigor and inflexibility as to defeat tbe legislative regulations, we not only violate accepted principles of interpretation, but we destroy tbe rights which tbe Constitution intended to guard.”
Affirmed.
Concurrence Opinion
concurring: Tbe plaintiffs' contend: 1. Tbat tbe statute violates -the Constitution, which contemplates a secret ballot. Tbe Constitution, Art. VI, sec. 6, in providing tbat all elections by tbe General Assembly shall be viva voce, and tbat all elections by tbe people shall be by ballot, intended tbat voting in tbe Legislature should be open and known to all men tbat tbe people might have a check upon tbe actions of their servants, and tbat voting by tbe people should be in secret, to tbe end tbat tbe humblest voter shall express bis will uninfluenced and unintimidated, for be is responsible only to himself, while
Sending tbe ballot by mail is a waiver of this privilege. This is a matter for tbe voter, and tbe officer is authorized to receive it for the Rev., 4343, C. S., 5979, expressly provides, “Tbe ballot may be deposited for tbe voter by tbe registrar, or one of tbe judges of election, or tbe voter may deposit it himself if be chooses.”
2. Tbe plaintiffs also contend that the Constitution requires that tbe voter must be present in person when he “offers to vote.” The Legislature provides that this can be done by mail, and this is not forbidden by tbe Constitution, which requires that tbe voter must “present” himself, that is, bis personal attendance for registration, but does not require this for voting.
3. It was denied by President Jefferson, President Jackson, and those who have followed their views, that tbe Courts have tbe power to declare legislation invalid in any case except when, as is provided in tbe U. S. Constitution, Art. YI, cli. 12, State legislation conflicts with tbe supremacy of some provision of tbe Federal Constitution, or statutes enacted under tbe authority of tbe same. But even those who bold that there is an implied power of tbe Courts to bold any legislation unconstitutional, have always conceded that this power could not be exercised except where tbe unconstitutionality is “clear beyond a reasonable doubt.” Ogden v. Sanders, 12 Wheaton, 213; Cooley Cons. Lim. (7 ed.), 254.
This presumption of tbe constitutionality of this act cannot be overcome in view of tbe fact that in 43 of tbe States out of'tbe 48 there are statutes which in some form confer tbe right on absentees to vote.
In our own State, and in probably all tbe States, North and South, such right was conferred upon our soldiers during tbe Civil War, and it is a historical fact that by virtue of tbe vote thus cast by tbe -soldiers, Zebulon B. Nance was elected Governor of this State in 1862, and Abraham Lincoln was reelected President in 1864.
Tbe method of absentee voting enacted at that time by this State, and by most others, authorized tbe soldiers to cast their ballots out of tbe State, in elections to be held by officials who may or may not have been citizens of tbe State, and without tbe safeguards of registration or challenge, and tbe votes were sent usually to some State officer for distribution to tbe various precincts where tbe voters were entitled to vote. This gave wide latitude for abuse and irregularity, and as pointed out in tbe
Tbe statute of tbis State now in question, and probably all those in force in other States have avoided these objections by various requirements, sucb as tbe due registration of tbe voter and tbe authentication of bis ballot by a notary public, postmaster, or other officer, and tbe sending of bis ballot himself in a sealed envelope direct to tbe registrar' and tbe judges of election of tbe precinct where be is entitled to vote, to be opened by them at a given hour on tbe day of election (in tbis State at 3 p. m.), and to be placed by them in tbe ballot box as requested, wbicb last was authorized as long ago as Laws 1901, cb. 89, sec. 24; Bev., 4343, now C. S., 5979.
Tbe real gravamen and basis of tbis proceeding is tbe statement in tbe plaintiffs brief admitting that “Tbe absentee voters’ law was undoubtedly passed for tbe meritorious purpose of allowing our soldiers absent in tbe great war to vote. Tbe soldiers are at borne, and tbe meritorious purpose is past. Tbe statute remains, shorn of its meritorious features, and divested 'of every safeguard wbicb might prevent it from becoming an instrument in aid of fraud and illegal voting.”
In a country like ours, whose government is based avowedly upon tbe “consent of tbe governed,” a full and free declaration of that will, and its return as cast is of tbe utmost importance. Any tampering therewith by any method whatever, whether by bribery, intimidation, voting illegally, making fraudulent returns, or any other misconduct on tbe part of election officials, voters, or any others, is made punishable severely by our statutes, C. S. 4185-4199, some of these offenses being made felonies, and others misdemeanors, and tbe same is true in other States, some of wbicb have tbe further safeguards of voting machines and tbe Australian ballot.
Our statute, empowering absentees to vote, was first enacted, Laws 1917, cb. 23, to authorize “any elector who may be absent from tbe county in wbicb be is entitled to vote” to fill in bis ballot on blank certificates, and return in envelopes, furnished by tbe State Board of Elections to tbe county boards, and by tbe latter sent to tbe absent voter. Tbe statute was extended, Laws 1919, cb. 322, to include any elector who is “physically unable, for tbe purpose of voting in person, to attend, wbicb fact should be made to appear by certificate of a physician or by affidavit.”
All tbe provisions in regard to tbe voting of absent electors will be found in C. S., 5960-5969, wbicb throws around tbe exercise of tbe privilege every safeguard against fraudulent abuse by impersonation of voters or in any other manner. Even if the act.gave additional opportunity for fraud, tbis would not make it unconstitutional, but would
While there are a few decisions against the legality of the acts passed during the Civil War, which restricted the voting of absentees to soldiers, and permitted polls to be opened in camp, the decisions as to the present method have been in favor of its constitutionality. Morrison v. Springer, 15 Iowa, 304; Lehman v. McBride, 15 Ohio State, 573; S. v. Main, 16 Wis., 398. Probably the only decision to the contrary has been in California, to cure which the Legislature has submitted an amendment to the Constitution, which will be voted On at the general election next month. The Federal House of Representatives has held these statutes constitutional so far as they affect the election of members of that body. Baldwin v. Trobridge, 2 Bartl. Cont. Election Cases, 46.
The ordinance allowing the North Carolina soldiers to vote in camp (which is a type of acts passed by the Southern States generally) was enacted in June, 1861, by'the State Convention, which was admittedly one of the ablest bodies ever assembled in the State, and contained many of the foremost lawyers of North Carolina. Its constitutionality was never questioned by any one, though the Constitution then in force required the elector “To vote in the county where he resides.”
The “absentee voters” statutes have been passed in this State (and in nearly all others), not for the purpose of giving opportunity for fraud in elections, which would be inconceivable, and to assert the contrary would be a libel on imblic opinion throughout the country, which demands fair elections and an honest return of the votes as cast. These statutes have been enacted for the purpose of procuring a fuller expression of the public will at the ballot box. In North Carolina we rarely have secured a vote cast of more than 70 per cent of the eligible white voters in the State, the other 30 out of every 100 eligible white voters being absent by reason of indifference, or detained by work, or business, or illness, or physical disability.
In Philadelphia 60 per cent of the possible vote is th'e average vote cast, which is about the average throughout the country. In Virginia 40 per cent of the possible total is the average vote east, and in Mississippi (where the primary is the real election), only 10 per cent of the
This legislation, intended for fuller expression of public opinion at the ballot box, and carefully guarded in’ its exercise by statutes in all the States, should not be misconceived-as an invitation to fraud.
As a proof of the widespread demand and need for such legislation, the following memorandum of the statutes in the different states is appended.
States Having Absentee Noting Laws.
Alabama, 1919. Act 620.
Arkansas, 1917, Act 175; 1919, Act 403.
Arizona, 1918, Special Sess., ch. II.
California, 1917, 710; Ees. 64.
Colorado, 1915, ch. 76.
Connecticut, 1918, Special Sess., ch. 1 (Military).
Delaware, Special Sess., ch. 4 (Eegistration).
Florida, 1917, ch. 7380.
Georgia, 1918, No. 335 (Military).
Idaho, 1917, ch. 142.
Illinois, 1917, p. 434; 1917, p. 440 (Military).
Indiana, 1917, ch. 100; 1919, chs. 156-170 (counting ballots).
Iowa, 1915, Code Supp.’, eh. 3-b, tit. NT; Am. 1917, ch. 419.
Kansas, 1919, ch. 189; 1913, ch. 194 (Military).
Kentucky, 1915, Carroll’s Stat., 1456, etc.; 1918, ch. 37.
Louisiana, 1917, Act 34 (Military) ; 1918, 272, id., 264 (Eegistration). Maryland, 1918, ch. 20 (Const. Am.) ; id., ch. 78 (Military). Massachusetts, 1918, ch. 293, 295 (Military).
Michigan, 1915, Act 270; 1917, 203, ch. 12, p. 427; 1919, 45. Minnesota, 1916, Special Sess., ch. 2 (Military) ; 1917, 'chs. 68, 120. Mississippi, 1917, Ex. Chap. 35, Am; 1918, ch. 184.
Missouri, 1917, pp. 274, 276 (Military); 1917, p. 287; 1919, p. 763. Montana, 1917, ch. 155; 1918, ch. 18 (Military). .
Nebraska, 1913, ch. 200; 1917, ch. 177; 1918, ch. 1; 1919, ch. 7.
North Carolina, 1917, ch. 23; 1919, ch. 322.
North Dakota, 1913, ch. 155; 1918, ch. 6 (Military).
New Hampshire, 1917, ch. 95 (Military).
New Jersey, 1918, ch. 150.
Obio, 1917, p. 52.
Oklahoma, 1916, cb. 25; Am. 1919, cb. 88; 1917, cb. 15.7; Am. 1919, cb. 65 (Military).
Oregon, 1919, cb. 361; id. S. J. R., No. 23, p. 835 (Cons. Am.).
Rhode Island, 1918, cb. 1610 (Registration), cb. 1657 (Military) ; Res. No. 1, p. 278 (Const. Am.).
South Carolina, 1918, No. 574 (Military).
South Dakota, 1913, cb. 200; 1917, cb. 233; 1918, Sp., cbs. 45, 46; 1919, cb. 189.
Tennessee, 1917, cb. 104; 1919, cb. 71 (Registration).
Utah, 1919, cb. 42, p. 102.
Vermont, 1919, No. 7 (Military).
Virginia, 1916, cb. 369.
Washington, 1917, eb. 159.
West Virginia, 1917, 2d Extra Sess., cb. 13 (Military) ; 1919, eb. 100.
Wisconsin, 1915, cb. 461; Am. 1915, cb. 604; 1916, Special Sess., cb. 1; 1918, Special Sess., cb. 16 (Military) ; 1917, cb. 570.
Wyoming, 1915, cb. 102.
In several of these States the electors can also register by mail.
