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clude unqualified persons and to shield the legal voter from the influences of coercion and corruption. The discovery of a scheme of voting which would the best secure these objects, has long been in the thoughts of statesmen and reformers. The ballot itself became the method of registering the will of the voter in Great Britain only after a long period of agitation. The advantage of a system of secret voting was stirred by the Benthamites as early as 1817. Encl. Brit. tit. "Ballot." In 1835 the judges of the court of King's Bench doubted whether by ballot was a legal mode of holding an election in a parish to fill a vacant curacy, under a custom that the parishioners should elect a successor to a deceased curate. Faulker v. Elger, 4 Barn. & C. 449.
The objection of the judges to the ballot was mainly that if a person voted who was afterwards ascertained to have been disqualified, there was no way of telling how he had voted.
After years of discussion the ballot was adopted in local elections in Manchester and Stafford in 1869, and was in 1872, by the passage of Mr. Foster's ballot act (55 and 56 Vict. c. 33), introduced in all parliamentary and municipal elections, except parliamentary elections for universities.
But the mere use of the ballot has been shown by experience to be ineffectual to prevent coercion and corruption. The factor of supreme importance calculated to bring about this result is an enforced secrecy respecting the choice of the voter. So long as the ballot can be marked for identification, or the vote of the citizen can be disclosed in any way, the voter is liable to be called to an account for his conduct. The coercionist will treat his refusal to vote a marked ballot as an adverse vote. The corruptionist will have the means of assuring himself that the vote he has purchased will be delivered. The thoughts of those interested in pure elections were turned by these considerations to the device of some scheme for voting which would secure compulsory secrecy, and, at the same time, provide for an orderly, equal and convenient exercise of the right of suffrage. The honor of first devising such a plan belongs to the government of the province of South Australia. In 1856 a constitution was adopted by that colony granting popular representation and manhood suffrage. In 1857-8 the election acts were passed, which typifies the system which has spread to two other continents under the name of the Australian Ballot System. The practical results of the introduction of this system is shown by the testimony of Sir Robert Richard Totten, who, as a member of the government of South Australia, had opposed the
introduction of the secret ballot. His testimony, however, is that rioting and disorder had disappeared. Intimidation by landlords and trades unions had alike disappeared entirely, and the very notion of coercion or improper influences had died out. more's Australian Ballot.
The good results of the Australian system induced the passage of the act of 1872 in England, already mentioned, which is based substantially on the South Australian method. Wherever similar election acts have been put in operation, the sentiment of the community has been generally favorable. While they do not accomplish all that is desirable in the way of extirpating corrupt practices, their effect has undoubtedly been to secure quieter elections, to greatly reduce corruption, and almost entirely destroy coercive influences.
Now, I think, this recapitulation of the purpose and results of the class of acts of which our own is a specimen, has a pertinency to the question mooted in this case, for I think any provision in such an act which is likely to bring about a result which conduces to the purity of popular elections, should receive a favorable consideration. It is, of course, true, that if the effect of any provision is to shut off a voter from the ballot box, such provision must fall before the constitutional guaranty of the right to vote.
But in measuring cases of mere inconvenience, expense or sentiment, the existence of a salutary purpose and the likelihood of the provision tending to accomplish that purpose must weigh greatly in determining the reasonableness of the statutory regulation.
With these remarks let us look to the several points made against the constitutionality of the present act.
The first ground of complaint is, that no electioneering is permitted on election day within one hundred feet of any polling place.
The regulation is a proper one to avoid disturbance and disorder immediately about the polls.
The second point of attack is the part of section 63 which prohibits any person from putting a mark upon the face or back of a ballot or envelope by which the ballot or envelope may afterwards be identified by any other person as the one voted by him; and section 30, which provides, that if any ballot shall have thereon any mark, sign, designation or device other than permitted by the
act, whereby the said ballot may be identified or distinguished from other ballots cast at such elections such ballot shall be absolutely void. The point made against these provisions of the act is, that the voter has no hand in the preparation of the ballot, but that a mark of irregularity may get on the ballot in its preparation which might prevent its being counted. It is, therefore, argued that a voter, through no fault of his own, may be deprived of his vote. This criticism is grounded upon a presumed fraud or neglect of duty by the persons upon whom the duty of preparing the ballots is imposed. It is, of course, entirely true, that it is possible for a vote to be rejected because of the fraud or carelessness of such person or persons. But the same remark is true under any scheme which may be devised. Votes have been suppressed, and are constantly miscounted, in making up the results of elections.
An admission of the soundness of the present criticism would destroy the entire scheme of securing a secret ballot. Secrecy is impossible without uniformity in the appearance of the tickets and envelopes. That uniformity cannot be obtained unless the preparation of the ballot is put in the hands of some specified person or persons. The guards and restrictions placed around the preparations of the ballots are of the most explicit and stringent kind.
The law presumes that these prescriptions of duty will be performed. It never presumes a neglect of official duty. I can perceive no substance in the objection raised against this feature of the act.
The third and fourth grounds of attack upon the act may be considered together. They are directed against the provisions of section 28, providing for the nomination of candidates by petition, and of section 33, regulating the printing of official ballots.
The first of the complaints against this legislation is that the voter who is not a member of a party which cast five percent of the entire vote cast at the preceding election is subjected to hardships from which the other voters are free. To apprehend the force of this complaint, it is necessary to observe that, by the terms of section 28, any political party, which at the preceding election, polled not less than five per cent of the votes cast in the election district, may nominate and certify the names of candidates to the secretary of state (in case they are state officers), or to the county clerk if they are county officers, or to municipal clerks if
the officers are municipal. These names are printed, without further party action or expense, upon an official ballot. But voters who are members of a party which cast less than this five per cent of votes, or voters who desire to organize a new party, can only obtain an official ballot by a petition. This petition must be signed, in case of a state officer, by qualified voters in number not less than one per cent. of the votes cast at the precedíng election for members of assembly; and in case of district, county, city or township office, by not less than five per cent of such vote. The numbers of signers, however, need not exceed two hundred altogether.
It is insisted that the labor of gathering signatures and putting this petition into legal shape thus entailed upon a class of voters, is an unconstitutional discrimination against it in favor of the members of the older and larger parties.
The second complaint is, that there is further discrimination in printing tickets. By directions contained in section 33, the county or municipal clerk is to provide for each election district two hundred and fifty ballots for every fifty or fraction thereof of votes cast therein by such party at the last preceding election for members of the general assembly, except in case of nominations by petition by any party that cast no votes for any candidate or candidates at the last preceding election for members of the general assembly. In such case the ballots furnished at public expense shall be equal in numbers to one-half of the total number of votes cast in the election district at such last preceding election. It may be observed in passing, that this provision places no obstacle in the way of any party obtaining all the ballots it may wish. It only prescribes what number of said ballots shall be printed at public expense. The number of ballots printed for each party at the public expense bears relation to the number of votes of that party, so far as that number can be approximated by the result of the preceding election. When an entirely new party puts candidates in nomination, this method of calculation is of course impracticable, and the rule adopted seems reasonable. It may give to the new party more or less ballots than to some of the parties entitled to make nominations by convention.
Now, in passing upon the validity of both of these provisions, it is to be noted that they in no way impede the voter in exercising his right to vote for any particular person or persons for office. He is at liberty to vote for any person by simply erasing a name from, and writing the name of the favored person upon any official ballot. It is, therefore, apparent that the right, in the exer
cise of which it is claimed the voter is embarrassed, is not the right to vote, but the right to form a party and vote as one of that party. By the very frame of the complaint, the existence of parties is recognized as a part of the practical machinery for conducting elections.
Now, the plan of providing official ballots, which plan is the keystone of the secret ballot system, involves necessarily some limitation upon the number of party tickets and the number of party candidates. Of all the acts which have been passed to bring about this system of voting, I am sure none can be found which does not in some way circumscribe the privilege of demanding a place upon the official ballot as a party, or as a candidate of a party. If it was left in the power of each voter, or each coterie of three voters, to adopt a party name and demand that an official ballot should be printed at public expense, and distributed to each voter at the polls, the polls would probably be littered with ballots "thick as autumnal leaves that strew the brooks in Vallombrosa.” Great expense, labor and inconvenience would result, without any appreciable benefit to the voter or to society. These regulations may not be the wisest that could have been adopted, still they are regulations which do not seriously impair the right of any citizen to vote. They are intended to restrict the number of party tickets within reasonable limits, while, at the same time, permitting any body of citizens whose number is sufficient to give importance to a concerted political movement to organize as a party.
The last ground of complaint which I shall consider is the following: That a voter whose sentiments are not in accord with the principles of any party having an official ticket, is practically deprived of his vote, because he cannot vote unless he votes a ticket having upon it the name of a party of whose principles he disapproves.
I have, upon reflection, concluded that the obstruction put in the way of the voter is sentimental rather than substantial. We must view the question in a practical aspect.
Many features of the act may offend a voter of sensitive feelings and peculiar views. Some voters have sulked and refused to vote because of the compelled seclusion in preparing the ballot and like requirements. But these exceptional instances cannot create a standard of what should be regarded as an unconstitutional deprivation of the right to vote.