In re Opinion of the Justices | Cases | Westlaw

The pending bill which is submitted for our consideration appears to be modeled upon a recent Massachusetts statute. Laws Mass. 1919, c. 289. The Massachusetts act seems to have been adopted under a recent amendment of the Constitution of that state:

The purpose of the proposed legislation is to authorize the exercise of the right of suffrage at our biennial elections by electors who are not present at the polls either because of absence from the municipality in which the election is held or because of physical disability. In the latter provision the bill goes beyond the Massachusetts act or the constitutional amendment by which the legislation of that commonwealth is authorized.

In June, 1863, an act was pending in the Legislature entitled “An act to secure the right of suffrage to the qualified voters of this state engaged in the military or naval service of their country,” and the opinions of the justices were required as to its constitutionality. This act is identical in principle with the law now proposed. It authorized the exercise of the right of suffrage by electors who are not present at the polls; provided for prior preparation of the ballot by the voter and the presentation of the ballot to the moderator in the meeting by an attorney duly appointed by the voter, while the proposed act requires the ballot similarly previously prepared by the voter to be presented to the moderator by the town clerk to whom the ballots are to be transmitted by the voters. This law, the justices advised, was beyond the power of the Legislature because the Constitution as they construed it required “that the right of voting shall be exercised by the voter in person at the meeting duly held for the purpose in the places of the state pointed out by the Constitution, and at times in accordance with its provisions.” Opinion of Justices, 44 N. H. 633, 636. For other authorities reaching the same result, see Opinion of Justices 30 Conn. 591; Opinion of the Judges, 37 Vt. 665; Chase v. Miller, 41 Pa. 403; Day v. Jones, 31 Cal. 261; Bourland v. Hildreth, 26 Cal. 161; People v. Blodgett, 13 Mich. 127. In Morrison v. Springer, 15 Iowa, 304, sustaining a statute for the same purpose, but with different provisions, the court expressly approve the opinions expressed by the justices of this court. Since 1863 it had been understood (as said by Ladd, J., in Copp v. Henniker, 53 N. H. 179, 193), “that the right of suffrage established by the Constitution could not be exercised by proxy.” We are not able to answer the considerations by which the conclusions of the justices were supported in 1863. Counsel who have appeared before us in behalf of the proponents of the bill concede that it is beyond legislative power as to state officers. We therefore are constrained to advise the House of Representatives that the right of suffrage given by the Constitution cannot be exercised by proxy; i. e., by electors not present at the meeting. The occasion for legislation of this character in 1863 was the absence of many voters in the service of the army or navy of the United States during the Civil War. The difficulty was met in some states by constitutional amendment. Similar amendments have since been adopted in other states. Bulletin *298 Mass. Const. Convention, vol. 2, pp. 212, 214, 219–223.

Most of the statutes adopted during the war, instead of providing for voting by proxy at the place where the election was regularly held, provided for special elections at the places where the electors in the service of the federal government might be. Such a law was here adopted in 1864, applicable, however, only to presidential electors and representatives in Congress. Laws 1864, c. 4030. The reasoning of justices in 1863 in some portions of their opinion is apparently fatal to this law also, but with the statement that the election of federal officers was not called to their attention the justices upon inquiry from the Senate expressed opinions in favor of the validity of the law of 1864. Opinion of Justices, 45 N. H. 595; Opinion of the Judges, 37 Vt. 665. There is nothing in the opinion, however, expressing doubt as to the view previously expressed as to the constitutional requirements for the election of state officers. The question was as to the place where the election must be held, not whether the elector's vote could be cast in his absence.

As to Representatives and Senators in Congress the question is not so clear.

The advice given in 1864 (45 N. H. 595) that voting for Representatives in Congress could be authorized at places other than those in which the voter was by the state Constitution qualified to vote was based upon the proposition that the place where a voter was qualified to vote was no part of his qualifications as an elector. Giving a narrow construction to the term “qualification,” it might be concluded that the requirement of the state Constitution that the voter should present his vote in person related merely to the manner of voting, and not to the qualifications of a voter. But the elector is not capable of voting for members of the most numerous branch of our Legislature unless he is physically capable of attending the meeting and is there present in person. The requirement of the federal Constitution that the electors of Senators and Representatives should possess the qualifications of electors of a class of legislators in the state would seem to imply that only those who by state law were permitted to vote for such legislators should have the right to vote for candidates for the federal offices. The statute quoted requires Representatives in Congress to be elected by ballot. “A ballot may be defined to be a piece of paper, or other suitable material, with the name written or printed upon it of the person to be voted for; and where the suffrages are given in this form, each of the electors, in person, deposits such a vote in a box or other receptacle provided for the purpose and kept in the custody of the proper officers.” Cush. Leg. Ass. § 103; quoted with approval, Cooley's Const. Lim. *604. That at common law in all elections of a public nature every vote must be personally given is a proposition upon which the authorities are uniform. Authorities cited; 44 N. H. 635; Morawetz, Private Corp. § 486; McCrary, Elections, § 48; Paine on Election, § 462; Richards Case, Clark & Hall: Cong. El. Cases, 95, 99. Congress has also fixed the day for the election of Senators *299 and Representatives. R. S. U. S. § 25 (U. S. Comp. St. § 21); Act June 4, 1914, c. 103, § 1; Comp. St. § 14a.

To restate our conclusions: The manner of voting prescribed by the bill is contrary to the state Constitution, and its provisions would be invalid as to the election of all state officers; they would be valid as to the election of presidential electors; we are unable to say the provisions would be held valid as to the election of Senators and Representatives in Congress.

March 29, 1921.