Summary
applying liberal construction "in aid of the right of suffrage" in concluding that state constitution's absentee ballot clause did not require "mere physical presence within the state on the day of election as a condition of eligibility to vote a civilian absentee ballot"
Summary of this case from Fay v. MerrillOpinion
No. 39378.
March 5, 1945.
ELECTIONS: Constitutional Law: Actions: Absentee Voting: Presence in State on Election Day Not Required: Declaratory Judgment Ordered. The constitutional provision as to absentee voting being ambiguous, a study is made of its legislative history. It was adopted in 1924 as a constitutional amendment substituted for a provision that granted the right to vote both within and without the State. It was not the intent of the 1924 amendment to require that the voter be physically present within the State on election day. The statute adopted pursuant to such constitutional provision should be construed in like manner. A declaratory judgment should be entered that the absentee ballots were valid.
Appeal from Sullivan Circuit Court. — Hon. G. Derk Green, Judge.
REVERSED AND REMANDED ( with directions).
P.M. Marr, L.E. Atherton and M.E. Montgomery for appellants.
(1) Where an elector has cast his absentee ballot within the State of Missouri as provided by law, it is not a lawful ground for challenge that such elector was not within the territorial limits of the state on the day of the election, and the court erred in holding otherwise because neither Section 9 of Article VIII of the Constitution of Missouri, nor Section 11470, Laws of Missouri, 1944, Extraordinary Session, page 19, provided that an elector who casts an absentee ballot within the state must in addition be actually present within the state on the day of the election. (2) Section 9 of Article VIII of the Constitution of Missouri means that the elector casting an absentee ballot is limited to casting same within the state; there is no constitutional provision that such elector must in addition be in the state on the day of election. (3) Section 11470, Laws of Missouri, 1944, page 19, Extraordinary Session, makes the right of a qualified elector to cast an absentee ballot rest upon what such elector "expects"; it provides that if he "expects to be within the State of Missouri but absent from the county" of his residence he "may vote." (4) The affidavits required by Sections 11473 and 11474, pages 20 and 21, Extraordinary Session, Laws of 1944, of an elector casting an absentee ballot shall be made before an officer authorized by law to administer oaths in this state, which provisions thereof compel the casting of the absentee ballot within the state as contemplated by said Section 9 of Article VIII of the Constitution. (5) The only grounds for challenging absentee ballots are set out by statute and the ground herein contended for is not one of them. Sec. 11479, R.S. 1939 (Death prior to election day); Sec. 11477, R.S. 1939 (For "good cause"). The latter section means challenges based on lack of qualifications required in Section 11469, Revised Statutes of Missouri, 1939. (6) The board of canvassers of the absentee ballots are a body of limited powers and have power only to question whether or not the voter who cast an absentee ballot was a legal voter of the precinct in which he offers to vote. Sec. 11475, R.S. 1939; State ex rel. Averill v. Baird, 278 S.W. 416, 217 Mo. App. 462. (7) Section 11470, Laws of Missouri, 1944, page 19, Extraordinary Session, does not enlarge or extend Section 9 of Article VIII of the Constitution of Missouri, and is in harmony with said constitutional provision because neither provide for the casting of an absentee ballot outside the state, and both contemplate the casting of such a ballot within the State. This court will construe the constitutional and statutory provisions to be in harmony, if possible. Straughan v. Meyers, 187 S.W. 1159, 268 Mo. 580. (8) Prior to 1933 the laws of Missouri required an absentee voter to cast his vote on election day at some place within the State. Laws 1913, p. 324; Laws 1917, p. 274. (9) Neither the Constitution since 1924 nor statutes since 1933 relating to absentee voting have required that the voter be within the territorial limits of the State on election day, but have merely required that he be within such territorial limits of the State at the time he casts his vote. Mo. Constitution, Sec. 9, Art. VIII; Laws 1933, p. 218; Laws 1935, p. 264; Laws 1943, p. 527; Laws 1944, Extraordinary Sess., pp. 19, 20, 21, secs. 11470, 11472, 11473, 11474. (10) The converse of the proposition involved here is found in a recent Texas Supreme Court case regarding the construction of a statute providing that an elector could cast an absentee ballot if he "expects to be absent," the elector not being actually absent on the day of election. Wood v. State, 126 S.W.2d 4, 121 A.L.R. 931. (11) The voter's expectation at the time of casting the ballot governs, and his vote is to be counted regardless of his presence or absence on the day of the election. Wood v. State, 126 S.W.2d 4, 121 A.L.R. 931. Charles E. Rendlen, Alvin B. Walker and Arthur D. Campbell for respondents.
(1) The right to cast an absentee vote is a special privilege and not an absolute right, and laws conferring and regulating such privilege receive a strict construction. 29 C.J.S., pp. 297, 298; Straughan v. Meyers, 268 Mo. 580, 187 S.W. 1159; Smith v. Haworth, 53 Mo. l.c. 89; In re Baker, 213 N.Y. 524; Bullington v. Grable, 88 Colo. 561, 298 P. 1059; Wichelman v. Glencoe, 200 Minn. 62, 273 N.W. 638; Portman v. Board of El. of Stark Co., 60 Ohio App. 54, 19 N.E.2d 531; State ex rel. Whitley v. Rinehart, 140 Fla. 649, 192 So. 819. (2) Absentee voters statutes or laws are invalid unless they conform to the applicable constitutional provisions. 29 C.J.S. 300, and cases cited in notes. (3) If the Constitution requires personal presence of the voter at the polls, statute authorizing absentee voting is invalid. 29 C.J.S. 300; In re: Opinion of the Justices, 80 N.H. 595, 113 A. 293. (4) A stream cannot rise above its source, and no statute can rise above or give a right greater in the matter of voting than is provided by the Constitution of Missouri. State ex rel. Whitley v. Rinehart, 192 So. 819, 140 Fla. 649. (5) Where the Constitution defines the qualifications of voters, such qualifications cannot be changed by the Legislature. State v. Shanks, 178 Ind. 330, 99 N.E. 481; Coggeshall v. City of Des Moines, 117 N.W. 309, 138 Iowa 730, 128 Am. St. Rep. 221. (6) The construction of Sec. 11470 Laws of Missouri for 1944, Extraordinary Session, p. 19, contended for herein by appellant, would conflict with Sec. 9, Art. VIII of the Constitution of Missouri. Where there is a conflict between the Constitution and a statute, the statute yields. State ex rel. Blades v. Wabash R., 158 S.W. 26, 251 Mo. 134. (7) Right of suffrage is not a natural or inherent right, but is purely conventional. It is not conferred by the Legislature but by the Constitution of our State. State ex rel. Ellis v. Brown, 33 S.W.2d 104; Blair v. Ridgley, 41 Mo. 63; State ex rel. v. Whitley, 192 So. 819, 140 Fla. 649. (8) There have been times that only those possessing certain property could vote. In many states payment of poll tax is a prerequisite to voting. Women and negroes have in our history not been permitted to vote. Their exclusion was purely arbitrary, fixed by our Constitution. Blair v. Ridgley, 41 Mo. l.c. 177. (9) Sec. 9, Article VIII of the Missouri Constitution requires that a qualified civilian absentee voter be "within the State" on election day to "be enabled by law to vote." This was adopted February 26, 1924; there was no such provision in the Constitutions of 1865 or 1875. In the proposed constitution which is being submitted to the people on February 27, 1945 for their adoption or rejection, Art. VIII, Sec. 7 thereof as set forth at page 54 of the proposed new constitution, provides as follows: "Qualified electors of the State who are absent, whether within or without the State, may be enabled by general law to vote at all elections by the people." In the address to the people by the Constitutional Convention, at page 11 thereof, with respect to this proposed constitution, it is stated as follows: "Suffrage and elections." "The important change in this article grants absentee voting privileges to qualified voters of Missouri who are absent from the State on election day." This proposed constitutional change and enlargement, solemnly and with great deliberation now being submitted to the people, "indicates that the (Convention), the Legislature and the people assumed that absentee voting (by one out of the State on election day) was prohibited by the (present) Constitution." Thompson v. Scheiner, 40 N.M. 293, 57 P.2d 293. (10) The statutes granting the special privilege of absentee voting must be read and construed in the light of provisions and restrictions of our Constitution. State ex rel. Whitley v. Rinehart, 192 So. 819, 140 Fla. 649. (11) Sec. 11470, Laws of Missouri 1944, Extraordinary Session 19, requires that before a civilian absentee may vote at an election, he must be a "qualified voter on the day of holding (such) election" and also that he "be within the State of Missouri but absent from the county . . . on the day of holding (such) election." (12) Vote of any absentee voter may be challenged and the judges and canvassers of absentee votes may decide the challenge. They "have all the power and authority given by law to regular judges of election to hear and determine the legality of such ballot." The provisions of the general election law "apply and govern" therein. Secs. 11476, and 11477, R.S. 1939; 29 C.J.S., pp. 298, 299. (13) The law imposes upon these election judges the duty of passing on the qualifications of voters and of deciding whether a voter is entitled to vote. In so doing, the election judge acts in a judicial or quasi-judicial capacity. State ex rel. Wahl v. Speer, 284 Mo. 45, 223 S.W. 655; State ex rel. Richardson v. Baldry, 56 S.W.2d 67. (14) The Missouri absentee voting law makes no provision for examination and protest of ballots before election day or before the canvassing of absentee ballots. The only place and time for challenge is before the canvassers and judges of the absentee votes. They are then and there subject to challenge. Secs. 11476, 11477, R.S. 1939; 29 C.J.S., pp. 298, 299; Jenkins v. State Board of Elections, 180 N.C. 169, 104 S.E. 346. (15) Appellants are estopped to assert or say that judges and canvassers of absentee ballots have no right to challenge or consider and determine challenges of absentee ballots. They have done that and have asked the court to declare whether the very challenge they themselves have made, viz., that the vote of a civilian absentee voter out of the State for the entire day of election is not a qualified absentee voter. Appellants also are estopped by their conduct and such challenge so made to assert that such a challenge is not a valid challenge.
This is a suit for a declaratory judgment brought by the judges and canvassers of absentee ballots cast in the General Election in Sullivan County, November 7, 1944. Its purpose is to determine the validity of certain absentee ballots, 59 in number, "respectively applied for and respectively cast by legally qualified electors [not in military or naval service] of the precinct, county and state while within the State of Missouri," but which were challenged for the sole reason "that such respective voters were not within the State of Missouri on the day of the General Election." The judgment of the trial court, now before us on this appeal, was: "The law is declared to be that it is a lawful ground of challenge that a civilian absentee voter was out of the state on the day of election, to-wit, November 7, 1944, for the entire day."
The applicable constitutional and statutory provisions are, respectively, Sec. 9, Art. VIII, Mo. Const., and Sec. 11470 R.S. '39, as amended, Laws 1944, Ex. Sess., p. 19, Sec. 11470 Mo. R.S.A. Art. VIII of the constitution, of which the provision in question forms a part, was submitted by the Constitutional Convention of 1922-23 as a revised and amended substitute for the then existing article on "Suffrage Elections." It was adopted at the special election held February 26, 1924.
"Qualified electors, absent from the state on military or naval service shall, and qualified electors absent from their counties but within the estate may, be enabled by law to vote at general or special elections." [Sec. 9, Art. VIII, Const. of Mo.]
"Any person being a duly qualified elector of the State of Missouri, other than a person in military or naval service, who expects to be within the State of Missouri but absent from the county in which he is a qualified elector on the day of holding any special, general or primary election at which any presidential preference is indicated or any candidates are chosen or elected, for any congressional, state, district, county, town, city, village, precinct or judicial offices or at which questions of public policy are submitted, may vote at such election as hereinafter provided." [Sec. 11470 R.S. '39, as amended, Laws 1944, Ex. Sess., p. 19, Sec. 11470 Mo. R.S.A.]
The case turns upon the meaning of that portion of said constitutional provision which authorizes the legislature to make provision for absentee voting by "qualified electors absent from their counties but within the state . . ." Respondents [819] contend it "requires that a qualified civilian absentee voter be 'within the state' on election day to 'be enabled by law to vote.'" Appellants say that said "section contains no requirement that such an elector must be in the state on the day of election;" that it simply provides that the legislature may pass a law enabling an absent qualified voter to cast his ballot anywhere within the state." We think that, standing alone, the language in question is so uncertain, and of such doubtful import as to be susceptible to either of these divergent interpretations. In this situation we turn to extrinsic aids of construction.
Looking to the previous state of the organic and statutory law, and the objects and purposes of the amendment in question, we find that the first constitutional provision in relation to absentee voting was submitted by the 50th General Assembly [Laws 1919, p. 763], and adopted in the 1920 General Election [Laws 1921, p. 710], the text of which is set forth in the margin. But the legislature had theretofore provided for absentee voting (Sec. 4751 R.S. '19; Laws 1913, p. 323, as amended Laws 1917, p. 274) under which the absent elector was required to present himself, during voting hours, "at the polls in any precinct in the state where he may be on such election day." He was there given a blank ballot which, after being marked by the voter, the election officials were required to return to the proper county. Thus, by the statutory scheme then in existence, the voter was, of necessity, required to be within the state on election day, and this had been so some nine years before the Constitutional Convention convened May 15, 1922. At the ensuing November election of that year, the people adopted another amendment which greatly broadened the 1920 amendment (which had been limited to those in military service) by providing as follows: "The legislature is hereby authorized and directed to enact proper and suitable laws, providing the means and method by which any absent qualified elector may vote an absentee ballot at all elections by the people, whether such absent voter be within or without this state." [Laws 1923, p. 392.] So that at the time of the framing, submission and adoption of the provision now under scrutiny, there was a constitutional mandate to the legislature to provide for voting by absent electors "whether . . . within or without this state." This meant, of course, that the marking of the ballot — the manual act of voting — might be done as well without as within the borders of the state. There was never any statutory implementation of this provision other than the earlier enacted statute, which continued to remain unchanged until 1933. With these matters in mind, the inquiry is whether the change wrought by the 1924 amendment was directed at the matter of physical presence of the voter within the state on the very day of election, or was it intended to do away with authorization of what might be called out-of-state voting? We think the latter is clearly evident upon a consideration of the history of the constitutional and statutory sanctions of the practice of absentee voting. To hold otherwise would be to say that the then existing statutory requirement of presence within the state, as an incident of the process of voting, was merely continued without change. Such, we think, was not the case.
Section 1. That section 11 of article 8 of the Constitution of Missouri, reading as follows: 'No officer, soldier or marine in the regular army or navy of the United States shall be entitled to vote at any election in this state,' is hereby repealed.
"Sec. 2. That in lieu of section 11, article 8 of the Constitution of Missouri, hereby repealed, there is enacted the following new section to be known as section 11, article 8, viz.: The legislature shall, by general law, make provision enabling qualified electors of this state, absent from the state on acount of military service, to vote at general and special elections."
Pursuant to the 1924 amendment, the legislature in 1933, by the adaptation of an Illinois statute [now Sec. 462, et seq., Ill. Rev. Stat. 1939] provided for absentee voting by any qualified elector "who expects in the course of his business or duties to be absent from the county" on election day. [Laws 1933, p. 218.] Under it (as well as the present statute, Sec. 11470), an absentee ballot could be applied for and cast as much as 30 days prior to the date of election. The affidavit was (and is) required to be executed before an officer authorized by law to administer oaths in Missouri. In 1944 the legislature enacted the present statute (same section number) which bases the right of civilian absentee voting on the expectation of the elector that he will be "within the State of Missouri but absent from the county" on election day. Under the present [820] scheme, if such a voter casts his absentee ballot, say ten days before the date of election, and is thereafter unexpectedly called out of the state and actually absent therefrom during the whole day of election, he loses his vote, if the interpretation contended for by respondents is correct. Whereas, the same individual might give validity to his said ballot by the mere act of returning within the borders of the state, for any length of time, however short, on the day of election. Such resulting anomalies are not within the spirit of the amendment, not do we think they are compelled by the letter thereof, and should be avoided. Our view is that it was not the purpose of the amendment to require mere physical presence within the state on the day of election as a condition of eligibility to vote a civilian absentee ballot. This accords with that well-recognized and wholesome rule in Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629: "Election laws must be liberally construed in aid of the right of suffrage." For the reasons noted, the judgment is reversed, and the cause remanded with directions to enter a new judgment in conformity with the views herein expressed. All concur, except Gantt, J., absent.