Page:A History of the Australian Ballot System in the United States.djvu/69

CHAPTER VI
THE ATTITUDE OF THE COURTS TOWARD THE AUSTRALIAN BALLOT

I. THE CONSTITUTIONALITY OF THE AUSTRALIAN BALLOT

Practically every reform statute has had to run the gantlet of constitutional objections, and the Australian ballot is no exception to this rule; for every important section of this act has been attacked in the courts as being unconstitutional. The state constitutions at the time of the introduction of the Australian ballot commonly had three provisions relating to the conduct of elections: that “elections should be free and equal,” that all votes should be by ballot,^[1] and that a definition be given of the qualifications of electors.

The term “ballot” or “written ballot” as used had been interpreted by the courts to mean secret ballot. This was the view taken in Vermont in 1832 in the case of Temple v. Mead.^[2] Justice Williams in delivering the opinion of the court said:

In this country, and indeed in every country where offices are elective, different modes have been adopted for the electors to signify their choice. The most common modes have been, either by voting viva voce, that is, by the elector openly naming the person he designates for the office, or by ballot, which is depositing in a box provided for that purpose a paper on which is the name of the person he intends for the office. The principal object of this last mode is to enable the elector to express his opinion secretly, without being subject to be overawed, or to any ill will or persecution on account of his vote for either of the candidates who may be before the public.^[3]

These constitutional provisions, while laying down these general principles of a free, equal, and secret election, are unworkable without legislative action. This was early pointed out by Justice Baldwin in delivering the opinion of the court in McKune v. Wheeler.^[4] “All the efficacy given to the act of casting a ballot is derived from the law-making

1. Kentucky until 1890 required viva voce voting at state elections.
2. Temple v. Mead, 4. Vt. 535.
3. Accord: People v. Pease, 27 New York 45 (decision in 1863); Williams v. Stein, 10 American Rep. 97 (decision in 1871, Indiana case). “The common understanding in this country certainly is, that the term ‘ballot’ implies secrecy. I have nowhere found a dictum to the contrary,” 10 American Rep. 99.
4. McKune v. Wheeler, 11 California 49.

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