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(States' rights to regulate the elective franchise.)

necessary sequence, perhaps, of the civil war, but none the less a radical change in the established theory of our government.*

In Huber . Reily, 53 Penn. St. R. 115, it is said by Mr. Justice Strong, now of the supreme court of the United States, that "the constitution of the United States confers no authority upon congress to prescribe the qualifications of electors, within the several states that compose the federal union; congress is, indeed, empowered to make regulations for the time, place and manner of holding elections for senators and representatives (except those in relation to the places of choosing senators), but here its power stops; the right of suffrage at a state election is a state right, a franchise conferrable only by the state, which congress can neither give nor take away; if, therefore, the act now under consideration is, in truth, an attempt to regulate the right of suffrage in the state, or to prescribe the conditions upon which that right may be exercised, it must be held unwarranted by the constitution."

In Tennessee, it has been determined, that the elective franchise being a political right, each state may define it by its own constitution, or empower its legislature to do so; that the right of suffrage once granted, may be taken away by the exercise of the sovereign power, or forfeited for crime, under the laws of the state; and that the state having disfranchised those citizens who had engaged in armed rebellion against the general government, it was not in the power of the president of the United States, by a pardon, to restore their political rights under the state laws. The people of the state alone have the right to determine who shall exercise the right of suffrage. Ridley v. Sherbrook, 3 Cold. 569. And see State v. Staten, 6 Cold. 234; Pomeroy's Const. Law, § 207-9; Fed. No. 51.

* Let it not be supposed from these remarks that the author is one of those impracticable politicians, who deny the validity of the 15th amendment; it is an accomplished fact, and therefore, having been passed by the forms of law, however much influenced by fraud or force, is now a part of the fundamental law, and binds the whole community. The question of duress has no place, when considering the effect of a change in a people's form of government; many acts which cannot be defended on moral grounds, when fully carried into execution, are binding upon a nation; the American revolution was wholly indefensible on theological grounds, and yet, when successful, it effected an entire change in the form of our government, and the new order of things bound the people to obedience, not only in fact, but in conscience also. So it is with the recent great changes in our constitution, they are accomplished facts, and as much a part of the organic law, as the original articles.


In the Supreme Court of Pennsylvania.

MAY TERM 1868.


[Constitutional rights of electors.]

The legislature cannot add to the constitutional qualifications of electors; one who is a qualified voter, under the constitution, cannot be deprived of the elective franchise, by a legislative enactment.

Error to the Common Pleas of Huntingdon. Action on the case by Edward McCafferty against George Guyer and others. In the court below, a case stated was agreed upon, from which the following facts appeared:

The plaintiff resided in Huntingdon county, and was liable to military service in the army of the United States; on the 30th May 1864, he was regularly drafted into the service, was duly served with notice, but refused to report; and was registered by the provost-marshal as a deserter. The plaintiff was an elector in the township of Warrior's Mark, Huntingdon county; the defendants were the judge and inspectors of the general election held on the 9th October 1866; on which day the plaintiff tendered his ballot to the defendants; and at the same time, there was produced to them, a duly certified copy of the rolls, showing that the plaintiff had been registered as a deserter; the defendants refused to receive the plaintiff's vote, on the ground that he had been disfranchised by the act of congress of 3d March 1865, and the act of assembly of Pennsylvania of 4th June 1866. It was agreed that, if the court should be of opinion that the plaintiff was a duly qualified elector, judgment should be entered in his favor for one dollar; otherwise, judgment to be entered for the de

(Constitutional rights of electors.)

fendants. The court below entered judgment for the defendants, which was assigned for error.

R. B. Petriken and G. W. Biddle, for plaintiff in error.

J. Scott, for defendants in error.

STRONG, J., delivered the opinion of the court. The first section of the third article of the constitution determines, affirmatively, who shall have the rights of an elector; it ordains as follows: "In elections by the citizens every white freeman, of the age of twenty-one years, having resided in this state one year, and in the election district where he offers to vote, ten days immediately preceding such election, and within two years, paid a state or county tax, which shall have been assessed at least ten days before the election, shall enjoy the rights of an elector." The section also ordains that a citizen of the United States, who had previously been a qualified voter of this state, and removed therefrom and returned, and who shall have resided in the election district and paid taxes as aforesaid, shall be entitled to vote, after residing in the state six months; and also that white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having resided in the state one year, and in the election district ten days, as aforesaid, shall be entitled to vote, although they shall not have paid taxes.

By this charter, the plaintiff in the case stated had the rights of an elector, when he offered to vote; he had every qualification required by the constitution. It is true, he had been drafted into the military service of the United States, had failed to report after notice of the draft, and he was registered as a deserter; but not having been tried and convicted of desertion, he had not lost his citizenship, under the act of congress of 3d March 1865; this was decided in Huber v. Reily, 53 Penn. St. R. 112. He was

(Constitutional rights of electors.)

then entitled to vote, unless disqualified by the act of assembly of 4th June 1866. The first section of that act enacts that, in all elections, it shall be unlawful for the judge or inspectors of the election to receive any ballot or ballots, from any person or persons embraced in the provisions and subject to the disabilities imposed by the act of congress of 3d March 1865, and that it shall be unlawful for any such person or persons to offer to vote. The second and third sections impose penalties upon election officers for receiving such votes, and upon those disqualified as aforesaid for voting or offering to vote. The fifth and sixth sections prescribe what shall be evidence of desertion and consequent disqualification, declaring it to be, not the record of conviction and sentence, but certified copies of rolls and records, containing official evidence of the fact of the desertion of all persons who were citizens of the commonwealth, and who were deprived of citizenship and disqualified by the said act of congress. The act thus denies the rights of an elector to all who, under the act of congress, have been registered as deserters from the military service of the United States, even though they have not been tried, convicted and sentenced for the offence. It attempts to disfranchise those who are enfranchised by the fundamental law of the commonwealth, and it enacts what shall be the evidence of disfranchisement. It is not, it does not profess to be, a regulation of the mode of exercise of the right to an elective franchise; it is a deprivation of the right itself.

Can, then, the legislature take away from an elector his right to vote, while he possesses all the qualifications required by the constitution? This is the question now before us. When a citizen goes to the polls on an election day, with the constitution in his hand, and presents it as giving him a right to vote, can he be told-"true, you have every qualification that instrument requires; it declares you entitled to the rights of an elector; but an act of assembly forbids your vote, and therefore, it cannot be

(Constitutional rights of electors.)

received." If so, the legislative power is superior to the organic law of the state, and the legislature, instead of being controlled by it, may mould the constitution at their pleasure. Such is not the law; a right conferred by the constitution is beyond the reach of legislative interference; if it were not so, there would be nothing stable; there would be no security for any right; it is in the nature of a constitutional grant of power or of privileges, that cannot be taken away by any authority known to the government; it involves a prohibition of interference with it. Thus, it has been held, that the bestowal of judicial power upon courts, implies that the legislature shall not exercise it; so, the gift of a right to grant pardons, vested in the executive, is a denial of the possibility of granting pardons by any other branch of the government. It has always been understood, that the legislature has no power to confer the elective franchise upon other classes than those to whom it is given by the constitution, for the description of those entitled is regarded as excluding all others.

All these are only implied prohibitions; but the third article of the constitution is positive and affirmative; it declares that the persons described shall have the rights of an elector; an act of assembly that enacts that they shall not is, therefore, directly in conflict with it. It is plain, then, that the third article of the constitution is not, as it has been argued, merely a general provision defining the indispensable requisites to the rights of an elector, leaving to the legislature to determine who may be excluded; on the contrary, it is a description of those who shall not be excluded. Undoubtedly, power might have been conferred upon the legislature to restrict the right of suffrage; such power has been given by the constitutions of some other states, and the debates in the convention that formed that under which we now live, show that it was contemplated by some of the members, to introduce such a provision into ours; but it was not done, and therefore, the right of suffrage is, with us, indefeasible.

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