UNITED STATES v. SAYLOR ET AL.
NO. 716.
Supreme Court of the United States
Argued April 28, 1944. Decided May 22, 1944.
322 U.S. 385
Dismissed.
MR. JUSTICE DOUGLAS and MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
Mr. Paul A. Freund argued the cause, and Solicitor General Fahy, Assistant Attorney General Tom C. Clark, and Messrs. Chester T. Lane and Edward G. Jennings were on the brief, for the United States.
Mr. Harry B. Miller for respondents.
MR. JUSTICE ROBERTS delivered the opinion of the Court.
These cases come here under the Criminal Appeals Act. The District Court sustained demurrers to indictments
As the cases present identical questions it will suffice to state No. 716. The indictment charged that a general election was held November 3, 1942, in Harlan County, Kentucky, for the purpose of electing a Senator of the United States, at which election the defendants served as the duly qualified officers of election; that they conspired to injure and oppress divers citizens of the United States who were legally entitled to vote at the polling places where the defendants officiated, in the free exercise and enjoyment of the rights аnd privileges guaranteed to the citizens by the Constitution and laws of the United States, namely, the right and privilege to express by their votes their choice of a candidate for Senator and their right to have their expressions of choice given full value and effect by not having their votes impaired, lessened, diminished, diluted and destroyed by fictitious ballots fraudulently cast and counted, recorded, returned, and certified. The indictment charged that the defendants, pursuant to their plan, tore from the official ballot book and stub book furnished them, blank unvoted ballots and marked, forged, and voted the same for the candidate of a given party, opposing the candidate for whom the injured voters had voted, in order to deprive the latter of their rights to have their votes cast, counted, certified and recorded and given full value and effect; that the defеndants inserted the false ballots they had so prepared into the ballot box, and returned them, together with the other ballots lawfully cast, so as to create a false and fictitious return respecting the votes lawfully cast.
The appellees do not deny the power of Congress to punish the conspiracy described in the indictment. In the light of our decisions, they could not well advance such a contention.2 The inquiry is whether the provision of § 19 embraces a conspiracy by election officers to stuff a ballot box in an election at which a member of the Congress of the United States is to be elected.
In United States v. Mosley, 238 U. S. 383, this court reversed a judgment sustaining a demurrer to an indictment which charged a conspiracy of election оfficers to render false returns by disregarding certain precinct returns and thus falsifying the count of the vote cast. After stating that § 19 is constitutional and validly extends “some protection at least to the right to vote for Members of Congress,” the court added: “We regard it as equally unquestionable that the right to have one‘s vote counted is as open to protection by Congress as the right to put a ballot in a box.” The court then traced the history of § 19 from its origin as one section of the Enforcement Act of May 31, 1870,3 which contained other sections more specifically aimed at election frauds, and the survival of § 19 as a statute of the United States notwithstanding the repeal of those other sections. The conclusion was that § 19 protected personal rights of a citizen including the right to cast his ballot, and held that to re-
The decision was not reached without a strong dissent, which emphasized the probability that Congress did not intend to cover by § 6 of the Act (now § 19) the right to cast a ballot and to have it counted, but to deal with those rights in other sections of the act. And it was thought this view was strengthened by the repeal, February 8, 1894,4 of the sections which dealt with bribеry and other election frauds, including § 4, which, to some extent, overlapped § 6, if the latter were construed to comprehend the right to cast a ballot and to have it counted. Notwithstanding that dissent, the Mosley case has stood as authority to the present time.5
The court below thought the present cases controlled by United States v. Bathgate, 246 U. S. 220. That case involved an indictment charging persons with conspiring to deprive a candidate for office of rights secured to him by the Constitution and laws of the United States, in violation of § 19, and to deprive other voters of their rights, by the bribery of voters who participated in an election at which members of Congress were candidates. This court affirmed a decision of thе district court sustaining a demurrer to the indictment, and distinguished the Mosley case on several grounds: first, that, in the Enforcement Act, bribery of voters had been specifically made a criminal offense but the section so providing had been repealed; secondly, that the ground on which the Mosley case went
If the voters’ rights protected by § 19 are those defined by the Mosley case, the frustration charged to have been intended by the defendants in the present cases violates them. For election officers knowingly to prepare false ballots, place them in the box, and return them, is certainly to prevent an honest count by the return board of the votes lawfully cast. The mathematical result may not be the same as would ensue throwing out or frustrating the count of votes lawfully cast. But the action pursuant to the conspiracy here charged constitutes the rendering of a return which, to some extent, falsifies the count of votes legally cast. We are unable to distinguish a conspiracy so to act from that which was held a violation of § 19 in the Mosley case.
It is urged that any attempted distinction between the conduct described in the Bathgate case and that referred to in the Mosley case is illogical and insubstantial; that bribery of voters as badly distorts the result of an election and as effectively denies a free and fair choice by the voters as does ballot box stuffing or refusal to return or count the ballots. Much is to be said for this view. The legislative history does not clearly disclose the Congressional purpose in the repeal of the other sections of the Enforcement Act, while leaving § 6 (now § 19) in force. Section 19 can hаrdly have been inadvertently left on the statute books. Perhaps Congress thought it had an application other than that given it by this court in the Mosley case. On the other hand, Congress may have intended the result this court reached in the Mosley decision. We think it unprofitable to speculate upon the mаtter for Congress has not spoken since the decisions in question were an-
Our conclusion is contrary to that of the court below and requires that the judgments be reversed.
Reversed.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE REED concur, dissenting:
The question is not whether stuffing of the ballot box should be punished. Kentucky has made that reprehensible practice a crime. See
Under § 19 of the Enforcement Act of May 31, 1870 (16 Stat. 144) the stuffing of this ballot box would have been a federаl offense.1 That provision was a part of the compre-
“Let every trace of the reconstruction measures be wiped from the statute books; let the States of this great Union understand that the elections are in their own hands, and if there be fraud, coercion, or force used they will be the first to feel it. Responding to a universal sentiment throughout the country for greater purity in elections many of our States have enacted laws to protect the voter and to purify the ballot. These, under the guidance of State officers, have worked efficiently, satisfactorily, and beneficently; and if these Federаl statutes are repealed that sentiment will receive an impetus which, if the cause
still exists, will carry such enactments in every State in the Union.”
This Court now writes into the law what Congress struck out 50 years ago. The Court now restores federal control in a domain where Congress decided the States should have exclusive jurisdiction. I think if such an intrusion on historic states’ rights is to be made, it should be done by the legislative branch of government. I cannot believe that Congress intended to preserve by the general language of § 19 the same detailed federal controls over elections which were contained in the much despised “reconstruction” legislation.
The Court, of course, does not go quite that far. It recognizes that bribery of voters is not a federal offense. United States v. Bathgate, 246 U. S. 220. But he who bribes voters and purchases their votes corrupts the electoral process аnd dilutes my vote as much as he who stuffs the ballot box. If one is a federal crime under § 19, I fail to see why the other is not also.
Congress has ample power to legislate in this field and to protect the election of its members from fraud and corruption. United States v. Classic, 313 U. S. 299. I would leave to Congress any extension of federal control over elections. I would restrict § 19 to those cases where a voter is deprived of his right to cast a ballot or to have his ballot counted. United States v. Mosley, 238 U. S. 383. That is the “right or privilege” the “free exercise” of which is protected by § 19. If it is said that that distinction is not a logical one, my answer is that it is nevertheless a practical one. Once we go beyond that point, logic would require us to construe § 19 so as to make federal offenses out of all frauds which corrupt the electoral process, distort the count, or dilute the honest vote. The vast intеrests involved in that proposal emphasize the legislative quality of an expansive construction of § 19. We should leave that expansion to Congress.