Miner v. Olin | Cases | Westlaw

These petitions—one against the ballot law commissioners, and the other against the secretary of the commonwealth—are brought for the purpose of compelling the secretary of the commonwealth to put on the official ballot to be used at the next annual state election the name of the petitioner as a candidate of the Prohibition party for the office of senator from the seventh Suffolk senatorial district. The Prohibition party did not cast 3 per centum of the entire vote cast for governor at the last annual election, and there were not 25 legal voters participating and voting in the caucuses which elected the delegates who composed the convention that nominated the petitioner for said office. Under St.1893, c. 417, in order to nominate by a caucus, or by a convention of delegates chosen by caucuses, a candidate whose name shall be put on the official ballot, the presence of 25 qualified voters, participating and voting, is required only in the caucuses of a party which polled less than 3 per centum of the entire vote cast for governor at the preceding annual election. The other provisions in the statute concerning caucuses require that each caucus shall have a chairman and secretary, *488 but it is said that the presence of no more voters is required, and that two or more voters of any political party polling 3 per centum, or more, of the entire vote cast for governor, can hold caucuses which can make nominations, or select delegates to a convention which can make nominations, which must be put on the official ballot. The contention is that, by section 71 of the statute, a distinction is made between the qualified voters of a political party which at the preceding annual election “polled for governor at least three per centum of the entire vote cast in the state for that office,” and the qualified voters of a political party which polled less than 3 per centum of such vote, and that the effect of this is to impair the rights of the voters of small political parties, and of the candidates of such parties. If nominations entitled to be put on the official ballot are not made at a caucus or convention, they may be made by nomination papers, under section 77 of the statute; but the nomination paper, in the case of a state senator, must be signed by qualified voters of the district or division “not less in number than one for every one hundred persons who voted for governor, at the preceding annual state election, in such district or division, but in no case less than fifty.” It is argued that under these provisions it is practically impossible for a political party which at the last annual election polled less than 3 per centum of the vote cast for governor to nominate, in many representative and senatorial districts, any candidate for senator or representative, whose name can be put on the official ballot. Section 130 of the statute provides that “there shall be left at the end of the list of candidates for each different office, as many blank spaces as there are persons to be elected to such office, in which the voter may insert the name of any person not printed on the ballot, for whom he desires to vote for such office.” If a voter spoil a ballot, he may successively obtain two others, but there is no provision for obtaining more. Section 166, Id. The voter is permitted to remain in the inclosed space where the marking compartments are not more than ten minutes; and, in a compartment, not more than five minutes, if all the compartments are in use, and other voters are waiting to occupy them. Section 167, Id. It is argued that the effect of all these provisions is that voters generally will not take pains to write or insert *489 names in the blank spaces, to any great extent; that they are not allowed time to do it properly, when many blanks are to be filled; that as it is not required, in the qualifications of voters, that they should be able to write the names of other persons than themselves, the provisions of section 164 for aiding such voters as declare “that by blindness or other physical disability” they are unable to mark their ballot, are not adequate; and that under the statute the rights of all qualified persons to elect officers, and to be elected to office, are not equal, and the privileges of some are abridged, in violation of article 6 and article 9 of the declaration of rights. It is argued **722 on the other hand that the intent of the statute was, and that in practice the effect of it is, to render elections more free than they were before, and that under the statute a reasonable opportunity is afforded to every voter to vote for whom he pleases, with the least chance for any improper interference with the expression of his will.

We have not found it necessary to express any opinion upon many of the questions argued. The statute of 1893, c. 417, is an attempt to regulate, in the most minute way, the whole conduct of elections. It provides for an official ballot to be prepared by public officers at public expense, which the voter is required to use, and he is no longer permitted to prepare his own ballot, except by inserting names in the blank spaces of the official ballot. Section 145, indeed, provides that if the ballots to be furnished to any polling place in a city or town shall fail to be delivered, or if, after delivery, they shall be destroyed or stolen, “it shall be the duty of the clerk of such city or town to cause other ballots to be prepared substantially in the form of the ballots so to be furnished and wanting,” and these may be used; but there is no provision in the statute that in any event the voter may use a ballot prepared by himself. The whole scheme involves the use of an official ballot, which is to be the same for all voters in a voting precinct, and on which the choice of the voters is generally to be indicated by a mark. It is plain that such a ballot cannot contain the printed names of everybody who may desire to be a candidate, or whom a few persons may desire to be a candidate, for office. If such a ballot is to be used, there must be restrictions with reference to the number of the names of candidates to be printed on it. The petitioner in these cases does not contend that the provisions of the act requiring an official ballot are unconstitutional. He does not bring these petitions in his capacity as a voter, and complain that his rights as a voter are impaired by the statute. His whole purpose is to compel the secretary of the commonwealth to print his name on the official ballot as a candidate of his party for senator. He desires to avail himself generally of the provisions of the statute. He wishes only that the particular provisions shall be declared void which require the caucuses of a party which did not poll at least 3 per cent. of the vote cast for governor at the preceding election to be composed of at least 25 voters. It is plainly impracticable to permit on an official ballot the names of every candidate for office which caucuses composed of two or more voters may nominate; and the limitations upon the right of nomination by caucus contained in the statute cannot be considered unreasonable, if the provisions of the statute generally are such as the legislature can constitutionally enact. If the provisions of the statute requiring an official ballot to be prepared and used are unconstitutional, the secretary of the commonwealth cannot be compelled to prepare any official ballot, and therefore cannot be compelled to print the petitioner's name on the official ballot. If these provisions a constitutional, the clauses under which the petitioner's name has been excluded are incidental to the main provisions the statute, and are not unreasonable and some such restrictions are necessary to carry into effect the main purpose the statute. Petitions dismissed.