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the day of election, and, as the act requires that the elector must have actually resided in the precinct two days before his name can be entered on the registry book, this act, in the years of general registration, will disfranchise every voter who has not resided sixteen or more days in the precinct before election day, whenever the month of October begins on either one of these three days. For instance, in 1888, October began on Monday. The fourth Monday was the 22d. The general election day was November 6, leaving 14 full days between the last day of registration and election; and, adding the two days, every elector not residing within the precinct for 16 full days before the day of election, under this act, would have been deprived of his vote. This would be in direct conflict with the constitution, which makes him an elector upon a residence of 10 days. No such regulation as this is reasonable. There is no good reason why the boards of registration cannot sit within the ten days before election, and thereby preserve to each elector his constitutional right. Nor is this all. If the legislature can make the residence 12 or 16 days, it can make it a month, three months, one year. This, in my opinion, cannot be done indirectly, under the guise of regulation, any more than it can be done directly, as a mere exercise of the legislative will. And no one will contend that the legislature could prescribe by statute that a resident of the City of Detroit must reside in a precinct 12 days, 16 days, or a month, before his ballot could legally be taken on election day, in the face of the constitution, which provides that he need reside therein but ten days.
But more unreasonable yet is this act in that it contains no provision by which a person who is sick or absent on the days of registration can vote on election day. It may be said, with some show of reason, perhaps, that a person who is absent on the registration days is himself in fault, in not returning to his home, and complying with the regulations which the legislature have a right to prescribe; but the man who is ill and unable to attend the meetings of the board, but who is able to be out on the day of election, is deprived of his ballot, and for no good reason, that I can see. And neither do I think there is any necessity of disfranchising a large number of business men, who will be disfranchised unless they drop important business, and travel many miles to be registered, some seven or more days before election. There are, under this law, but five days in the whole year that an elector can cause his name to be placed on the registry list; and this, unmistakably, by the provisions of the act, he must do personally.
There is no state in the union that has ever sustained law like this, except Illinois. All of the registration laws that have been upheld by the courts of other states have contained some provision by which a sick or absent voter might not necessarily be disfranchised, excepting the law of 1885 in Illinois. See People v. Hoffman, 116 Ill. 587, 5 N. E. Rep. 596 and 8 id. 788.
In our own state the provision as to sick and absent voters is well known; and so far no great abuse of the elective franchise has been developed from the exercise of the privilege therein granted, of registering on election day. How. Stat. Par. 93.
The object of a registry law, or of any law to preserve the purity of the ballot-box, and to guard against the abuses of the elective franchise, is not to prevent any qualified elector from voting, or unnecessarily to hinder or impair his privilege.
It is for the purpose of preventing fraudulent voting. In order to prevent fraud at the ballot-box, it is proper and legal that all needful rules and regulations be made to that end; but it is not necessary that such rules and regulations shall be so unreasonable and restrictive as to exclude a large number of legal voters from exercising their franchise. Nor can the legislature, in attempting, ostensibly, to prevent fraud, disfranchise legal voters without their own fault or negligence. The power of the legislature in such cases is limited to laws regulating the enjoyment of the right, by facilitating its lawful exercise, and by preventing its abuse. The right to vote must not be impaired by the regulation. It must be regulation not destruction. Page v. Allen, 58 Penn. St. 338; Dells v. Kennedy, 49 Wis. 555; Edmonds v. Banbury, 28 Iowa 267; Monroe v. Collins, 17 Ohio St. 665, 685; Daggett v. Hudson, 43 id. 561; State v. Baker, 38 Wis. 71; State v. Butts, 31 Kan. 554.
These authorities all tend in one direction. They hold that the legislature has a right to reasonably regulate the right of suffrage, as to the manner and time and place of voting and to provide all necessary and reasonable rules to establish and ascer. tain by proper proof the right to vote of any person offering his ballot, but has no power to restrain or abridge the right, or unnecessarily to impede its free exercise. This law before us disfranchises every person too ill to attend the board of registration, and unreasonably and unnecessarily requires persons whose business duties, public or private, are outside of Detroit, to return home to register as well as to vote, making two trips when only one ought to be required.
Section 13, in reference to removals from one precinct to another, and the necessary steps to become registered in such cases, seems to me most unreasonable and unnecessary; but perhaps this is within the power of the legislature, as it is not absolutely impossible to comply with it.
In my opinion, no registry law is valid which deprives an elector of his constitutional right to vote by any regulation with which it is impossible for him to comply. No elector can lose his right to vote, the highest exercise of the freeman's will, except by his own fault or negligence. If the legislature, under the pretext of regulation, can destroy this constitutional right by annexing an additional qualification as to the number of days such voter must reside within a precinct before he can vote therein, or any other requisite, in direct opposition to any of the constitutional requirements, then it can as well require of the elector entirely new qualifications, independent of the constitution, before the right of suffrage can be exercised. If the exigencies of the times are such, which I do not believe, that a fair and honest election cannot be held in Detroit, or in any other place in our state, without other qualifications and restrictions upon both native-born and naturalized citizens than those now found in or authorized by the constitution, then the remedy is with the people to alter such constitution by the lawful methods pointed out and permitted by that instrument.
This law being, in the respects pointed out, both unreasonable and in conflict with the constitution, and it being apparent that the legislature would not have enacted the other portions of the act had it foreseen that the courts would declare these parts unconstitutional, the whole act must fall and be held unconstitutional and void.
Dells v. Kennedy, 49 Wis. 560, and cases cited; Daggett v. Hudson, 43 Ohio St. 561; Brooks v. Hydorn, 76 Mich. 273; 42 N. W. Rep. 1122.
The other justices concurred.
MAYNARD V. BOARD OF CANVASSERS.
Supreme Court of Michigan. October, 1890.
84 Mich. 228.
CHAMPLIN, C. J. The legislature, at its biennial session of 1889, passed an act numbered 254 (3 How. Stat. 2835).
Section 1 of said act reads as follows:
“Sec. 1. The people of the State of Michigan enact, That, in all elections of representatives to the state legislature in districts where more than one is to be elected, each qualified elector may cast as many votes for one candidate as there are representatives to be elected, or may distribute the same among the candidates as he may see fit, and the candidates highest in votes shall be declared elected.
The city of Grand Rapids comprises one election district, and is entitled to elect two representatives to the state legislature. It is known as “The First Representative District.” Fred A. May
. nard, the relator, is an elector residing in that district, and in his petition duly verified, in which he prays for a mandamus, states
that the inspectors in several of the precincts counted and returned the cumulative votes for relator as single votes only; that the board of district canvassers met, and from the returns made a statement that, for said office of representative, White received 7,258 votes; Hayward 7,074 votes; Maynard, the relator, 5,374 votes; Thaw, 623 votes; and Belden, 1 vote, and determined that White and Hayward were elected; that relator had the greatest number of votes, and was duly elected representative; that he bases his claim to election upon the legality of said cumulative votes, and avers that if every ballot having his name only for representative as aforesaid, with the statement "two votes” opposite the name as aforesaid, shall be counted as two votes, then he received more than 10,000 votes for said office, and this exceeded the votes given for any other candidate. He admits that, if said votes cannot be counted for him cumulatively,—that is, if every ballot having the statement "two votes," as aforesaid, for him is legal only as one vote, and must be so counted, then the said White and Hayward received a greater number of votes for representative at said election than the relator. He prays for a mandamus to compel the board of district canvassers to declare him elected, and that the chairman and clerk certify the same.
There has been in the latter half of the present century a growing desire to secure to minorities a proportionate representation in legislative and corporate bodies, and from time to time schemes have been advocated by those who have desired to bring about what they claim as a reform in existing modes of election to secure to the minority a just and proportionate representation. These schemes may be reduced to four well recognized classes, viz.:
1. The “restrictive,” which requires a certain number to be elected on one ticket, and prohibits any elector from voting for the whole number to be elected. Thus, if four are to be elected, no one can vote for more than two.
2. The "cumulative,” which requires three or more to be elected and permits the elector to cast as many votes as there are persons to be elected, and to distribute such votes among the candidates as the elector may choose. 3. The “Geneva," "free vote" or "Gilpin" plan. By this
" plan the districts are required to be large, and each party puts in nomination a full ticket, and each voter casts a single ballot. The whole number of ballots having been ascertained the sum is divided by the number of places to be filled, and each ticket is entitled to the places in proportion to the number of votes cast by it, taking the persons elected from the head of the tickets. This plan doubtless comes nearest to a proportional representation of the minority of any plan devised which is practical for popular elections. It was originated by Mr. Gilpin in 1844, who advocated it in a pamphlet published in Philadelphia. It has never been adopted in this country, but has become the liste libre of Geneva, and is said to work well in Switzerland.
4. The “Hare” plan, or “single vote.” This method is too intricate and tedious ever to be adopted for popular elections by the people. It requires successive counts and redistribution of the votes until an election is reached.
The effort to realize minority representation by the use of the restrictive method was tried in Ohio, under an act passed in that state. The law was declared unconstitutional by the supreme court. State v. Constantine, 42 Ohio St., 437. That court held that it was the right of every elector to vote for every candidate or person to fill the offices provided by law to be elected by vote of electors, and a law which said that no person could vote for more than two of the four persons to be elected took away from the elector a substantial right guaranteed to him by the constitution.
In Pennsylvania, Mr. Buckalewe for many years advocated the