Jenkins v. State Board of Elections of North Carolina | Cases | Westlaw

The prayer of the complaint is that the defendants be enjoined from printing and distributing the forms required by the provisions of the Act of 1917 and 1919, and from carrying out any of the provisions of said acts upon the ground that they are unconstitutional and void. This legislation is known as the Absentee Voters Law, being chapter 23, Public Laws 1917, re–enacted and brought forward in article 8, c. 95, of the Consolidated Statutes of North Carolina as amended by chapter 322, Public Laws 1919. It is claimed that the law is unconstitutional because it is repugnant to art. 6, sec. 2, and art. 6, sec. 6, of the state Constitution.

Section 2 provides that the voters shall have resided in the state for two years, in the county six months, and in the precinct, ward, or other election district, in which he offers to vote, four months next preceding the election. Section 3 declares that every person offering to vote shall be at the time a legally registered voter.

Section 6 declares that all elections by the people shall be by ballot and all elections by the General Assembly shall be viva voce.

It is not contended that there is any provision of the federal Constitution which in any way interferes with the power of the Legislature of this state to enact the laws which are attacked by the plaintiff. Therefore it is properly conceded that the acts in question constitute a valid exercise of legislative power unless they contravene our state Constitution.

Somewhat similar statutes, known as Absent Voters Acts, have been enacted in some 30–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 casting 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 Representatives 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 St. 573; State v. Main, 16 Wis. 398.

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 will consider the other contention of the plaintiff that the statute is repugnant to section 2 of the said article. The statute provides that in all primaries and elections, 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. Section 5 of the act provides that––

The statute was enacted in 1917, and its primary purpose was to enable our soldiers to case 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 Twitchell 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:

The judge again says:

The case of Bourland v. Hildreth, 26 Cal. 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 *349 Justice Sanderson, generally acknowledged to be a very great judge.

The case of Chase v. Miller, 41 Pa. 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 Legislature could not authorize a military commander to form an election district and hold an election therein.

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 Woodward thus describes these laws in above–cited case:

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; Opinion of Justices, 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 in 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 reg istered 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).

That the Constitution makers did not mean that the words “offer to vote” should necessarily imply the personal presence of the voter is indicated by section 4. In that section the language is “every person presenting himself for registration.” Those words plainly require the personal presence of the voter. If the personal presence of the voter had been required by section 2, those who framed the article could easily have used the words “in which he presents himself to vote.” Such language would have put the meaning beyond doubt. At the time that section of the Constitution was adopted in 1900, absentee voting laws had been passed in many states, and in a few cases they had been before the courts for construction. The convention doubtless had knowledge of them, and did not deem it advisable to preclude the General Assembly in its discretion from enacting such statute whenever it was deemed wise to do so.

Affirmed.

The plaintiffs contend:

I. That the statute violates the Constitution, which contemplates a secret ballot. *350 The Constitution (article 6, § 6), in providing that all elections by the General Assembly shall be viva voce, and that all elections by the people shall be by ballot, intended that voting in the Legislature should be open and known to all men that the people might have a check upon the actions of their servants, and that voting by the people should be in secret, to the end that the humblest voter shall express his will uninfluenced and unintimidated, for he is responsible only to himself, while the members of the Legislature are the agents of, and accountable to, the people for the discharge of their duty in voting. The secrecy of the ballot, however, is a privilege that is entirely personal to the voter, which he can waive. Boyer v. Teague, 106 N. C. 625, 11 S. E. 665, 19 Am. St. Rep. 547; McRary on Elections (3d Ed.) pp. 305, 306. The voter himself can voluntarily waive this privilege. Cooley, Cons. Lim. (7th Ed.) p. 912. Sending the ballot by mail is a waiver of this privilege. This is a matter for the voter, and the officer is authorized to receive it for Rev. § 4343 (C. S. § 5979), expressly provides:

II. The plaintiffs also contend that the Constitution requires that the 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 the Constitution, which requires that the voter must “present” himself, that is, his personal attendance for registration, but does not require this for voting.

III. It was denied by President Jefferson, President Jackson, and those who have followed their views that the courts have the power to declare legislation invalid in any case except when, as is provided in the United States Constitution, art. 6, § 12, state legislation conflicts with the supremacy of some provision of the federal Constitution, or statutes enacted under the authority of the same. But even those who hold that there is an implied power of the courts to hold any legislation unconstitutional, have always conceded that this power could not be exercised except where the unconstitutionality is “clear beyond a reasonable doubt.” Ogden v. Sanders, 12 Wheat. 213, 6 L. Ed. 606; Cooley, Cons. Lim. (7th Ed.) 254.

This presumption of the constitutionality of this act cannot be overcome, in view of the fact that in 43 of the states out of the 48 there are statutes which in some form confer the right on absentees to vote. In our own state, and in probably all the states, north and south, such right was conferred upon our soldiers during the Civil War, and it is a historical fact that by virtue of the vote thus cast by the soldiers, Zebulon B. Vance was elected Governor of this state in 1862 and Abraham Lincoln was re–elected President in 1864. The method of absentee voting enacted at that time by this state, and by most others, authorized the soldiers to cast their ballots out of the state, in elections to be held by officials who may or may not have been citizens of the state, and without the safeguards of registration or challenge, and the votes were sent usually to some state officer for distribution to the various precincts where the voters were entitled to vote. This gave wide latitude for abuse and irregularity; and, as pointed out in the opinion of the court in this case, the few opinions which held such absentee voting invalid were based upon such reasons.

The statute of the state now in question, and probably all those in force in other states, have avoided these objections by various requirements, such as the due registration of the voter and the authentication of his ballot by a notary public, postmaster, or other officer and the sending of his ballot himself in a sealed envelope direct to the registrar and the judges of election of the precinct where he is entitled to vote, to be opened by them at a given hour on the day of election (in this state at 3 p. m.), and to be placed by them in the ballot box as requested, which last was authorized as long ago as Laws 1901, c. 89, § 24. Rev. § 4343, now C. S. § 5979.

The real gravamen and basis of this proceeding is the statement in the plaintiff's brief, admitting that––

In a country like ours, whose government is based avowedly upon the “consent of the governed,” a full and free declaration of that will, and its return as cast, is of the utmost importance. Any tampering therewith by any method whatever, whether by bribery, intimidation, voting illegally, making fraudulent returns, or any other misconduct on the 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 the same is true in other states, some of which have the further safeguards of voting machines and the Australian ballot.

Our statute empowering absentees to vote was first enacted (Laws 1917, c. 23) to authorize “any elector who may be absent from the county in which he is entitled to vote” to fill in his ballot on blank certificates, and *351 return in envelopes, furnished by the state board of elections to the county boards, and by the latter sent to the absent voter. The statute was extended (Laws 1919, c. 322), to include any elector who is “physically unable, for the purpose of voting in person, to attend, which fact should be made to appear by certificate of a physician or by affidavit.”

All the provisions in regard to the voting of absent electors will be found in C. S. §§ 5960–5969, which throws around the exercise of the privilege every safeguard against fraudulent abuse by impersonation of voters or in any other manner. Even if the act gave additional opportunity for fraud, this would not make it unconstitutional, but would address itself to the Legislature, either to make the legislations more strict, or to repeal the statute; but it is not to be presumed that the General Assembly of this state would enact a statute calculated to increase the opportunities of fraud at elections, nor that such measure would so commend itself to the general intelligence that 43 states should have enacted similar legislation. In truth, it diminishes the opportunities for fraud, as the ballots are sent in by the absent voters, and are subject to challenge, and are kept on file for six months. They are authenticated by the signatures of the voters, thus giving the fullest opportunity of indictment for any fraud.

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 St. 573; State 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 public 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 the average vote cast, which is about the average throughout the country. In Virginia 40 per cent. of the possible total is the average vote cast, and in Mississippi (where the primary is the real election) only 10 per cent. of the full vote is cast. The system of absentee voting which originated in behalf of the soldiers who it was felt should not be disfranchised by reason of their absence in the discharge of duty, received a strong impulse from the action of the Travelers' Protective Association, who urged that they should not be deprived of the franchise while traveling as commercial agents. Nor should any one be deprived of the franchise by reason of temporary or permanent physical disability. 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 voting laws: Alabama––1919, Act 620. Arkansas––1917, Act 175; 1919, Act 403. Arizona––1918, Sp. Sess. c. 11. California––1917, c. 710; Res. 64. Colorado––1915, c. 76. Connecticut––1918, Sp. Sess. c. 1 (military). Delaware––Sp. Sess. 1919, c. 4 (registration). Florida––1917, c. 7380. Georgia––1918, No. 335 (military). Idaho––1917, c. 142. Illinois––1917, p. 434; 1917, p. 440 (military). Indiana––1917, c. 100; 1919, cc. 156, 170 (counting ballots). Iowa––1915, Code Supp. c. 3b, tit. 6, amended 1917, c. 419. Kansas––1919, c. 189; 1913, c. 194 (military). Kentucky––1915, Carroll's St. § 1456 et seq.; 1918, c. 37. Louisiana––1917, Act 34 (military); 1918, Act 272; Id. Act 264 (registration). Maryland––1918, c. 20 (Const. Amend.); Id. c. 78 (military). Massachusetts––1918, cc. 293, 295 (military). Michigan––1915, Act 270; 1917, Act 203, c. 12, p. 427; 1919, Act 45. Minnesota––1916, Sp. Sess. c. 2 (military), Gen. St. Supp. 1917, §§ 536––14 to 536––27; 1917, cc. 68, 120 (Gen. St. Supp. 1917, §§ 536––1 to 536––13). Mississippi––1917, Ex. Sess. c. 35, amended 1918, c. 184. Missouri––1917, pp. 274, 276 (military); 1917, p. 287; *352 1919, p. 763. Montana––1917, c. 155; 1918, c. 18 (military). Nebraska––1913, c. 200; 1917, c. 177; 1918, c. 1; 1919, c. 7. North Carolina––1917, c. 23; 1919, c. 322. North Dakota––1913, c. 155; 1918, Sp. Sess. c. 6 (military). New Hampshire––1917, c. 95 (military). New Jersey––1918, c. 150. New York––1918, c. 298; 1919, Con. Res. p. 1791 (Const. Amend.). Ohio––1917, p. 52. Oklahoma––1916, c. 25, amended 1919, c. 88; 1917, c. 157, amended 1919, c. 65 (military). Oregon––1919, c. 361; Id. S. J. R. No. 23, p. 835 (Const. Amend.) Rhode Island––1918, c. 1610 (registration); chapter 1657 (military). Res. No. I, p. 278. (Const. Am.); South Carolina––1918, No. 574 (military). South Dakota––1913, c. 200; 1917, c. 233; 1918, Sp. Sess. cc. 45, 46; 1919, c. 189. Tennessee––Pub. Laws 1917, c. 104; Pub. Laws 1919, c. 71 (registration). Utah––1919, c. 42, p. 102; Vermont––1919, No. 7 (military). Virginia––1916, c. 369. Washington––1917, c. 159. West Virginia––1917, 2d Ex. Sess. c. 13, Code Supp. 1918, c. 3, being sections 138a–138o (military); 1919, c. 100. Wisconsin––1915, c. 461; Amended 1915, c. 604; 1916, Sp. Sess. c. 1; 1918, Sp. Sess. c. 16 (military); 1917, c. 570. Wyoming––1915, c. 102. In several of these states the electors can also register by mail.