power, and through legal enactments; and indeed, the Legislature must provide for and regulate the conduct of elections or there can be none.” The legislature can accordingly enact laws to make the elective franchise effective, but all regulations so made must be reasonable, uniform, and impartial, and must not subvert or injuriously restrain the right. In Capen v. Foster[1] Chief Justice Shaw said:
And this court is of the opinion, that in all cases, where the constitution has conferred a political right or privilege, and where the constitution has not particularly designated the manner in which that right is to be exercised, it is dearly within the just and constitutional limits of the legislative power to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right, in a prompt, orderly, and convenient manner. Such a construction would afford no warrant for such an exercise of legislative power, as, under the pretence and color of regulating, should subvert or injuriously restrain the right itself.
The enemies of the Australian ballot contended that this statute was not a reasonable regulation of the right to vote, but on the contrary embarrassed, hindered, and impeded the electors in exercising their constitutional right of suffrage, that it established physical and educational qualifications for voting in violation of the Constitution, and prescribed restrictions upon the eligibility to office.[2] The courts took a very liberal view and held that the Australian-ballot law carried out and made the franchise more effective, and by protecting the voter against bribery or intimidation gave each vote its proper weight and influence. In State v. Dillon[3] (1893) the court in sustaining the Australian ballot said: “There is no doubt in our minds about the right of the legislature to prescribe an official ballot and to prohibit the use of any other.” The same view was expressed by the Kansas court in Taylor v. Bleakley[4] (1895): “The legislature, within the terms of the constitution, may adopt such reasonable regulations and restrictions for the exercise of the elective franchise as may be deemed necessary to prevent intimidation, bribery, and fraud, providing the voting be by ballot, and the person casting the ballot may do so in secrecy.” The courts denied that the Australian act hindered or impeded the exercise of the right of suffrage, or added to the constitutional qualifications for
