by the imposition of a test-oath, on account of a crime such as treason, which was not so punishable at the time of its commission, is a bill of attainder or ex post facto law, and consequently void.5 Others support the position that the elective franchise is not a privilege, but rather a duty imposed for the benefit of the community, not the voter; that consequently it may be withdrawn in a State's discretion for any reason, and that such withdrawal from a class cannot be considered as in the nature of a punishment. The subject became of importance at the close of the Civil War, when some of the loyal States, as well as those which had seceded, imposed test-oaths of past loyalty designed to withdraw the right of suffrage from those who had sympathized with the Confederacy. Congress imposed similar disabilities in its Reconstruction legislation; and a few words in the Fourteenth Amendment gave some slight color to the contention that the validity of such disfranchisement was therein recognized.8 In the opinion of the writer, those who contend that such a disfranchisement is unconstitutional have the better of the argument. During recent years the question has been considered in the legislation against the Mormons; but the constitutional objections were obviated by disfranchisement for membership in an association which continued to teach the morality of polygamy and for continuing to treat as a member of the voter's family a polygamous wife, although sexual relations with her had been abandoned.10 In New York the requirement from a voter of an oath that he has not previously committed a crime, has been attacked as an infringement of the provision of the State Constitution, which ordains that "no member of this State shall be disfranchised, or See the opinion of Miller, J., in Green v. Shumway, 39 N. Y., 418, 426; and the cases cited infra, note 12. See also Ex parte Garland, 4 Wall., 333; Cummings v. Missouri, 4 Wall., 277; supra, § 53, and infra under Bills of Attainder and Ex post Facto Laws. Anderson v. Baker, 23 Md., 531; Blair v. Rigley, 41 Mo., 63; State v. Neal, 42 Mo., 119; Randolph v. Good, 3 West Va., 551; Burch v. Van Horn, 3 Bart. Election Cases, 405; Innis v. 9 deprived of any of the rights or privileges secured to any citizens thereof, unless by the law of the land, or the judgment of his peers." 11 In that and other States such test-oaths have been held invalid as adding to the qualifications for voting prescribed by their respective constitutions.12 Provided that no discrimination is made on account of race, color, or previous condition of servitude,13 the right of suffrage is exclusively within the control of the individual States, and may be extended or abridged by any one of them to any extent not prohibited by the terms of its own constitution, without any infringement of the Constitution of the United States, unless the abridgment is so made as to constitute a bill of attainder, or ex post facto law, or to make the government no longer republican in form. The right of suffrage is not conferred by the United States except in those cases where a discrimination by reason of race, color, or previous condition of servitude was abolished by the Fifteenth Amendment.15 The right of suffrage is not a privilege or immunity of a citizen of the United States, which is protected by the Fourteenth Amendment; 16 and a State legislature, unless prohibited by the State constitution, can consequently deny the right of suffrage to minors, lunatics,17 paupers, 18 women, 19 persons not possessing a certain property or educational qualification, or non-taxpayers.20 Constitutional and statutory provisions for the exclusion from the right of suffrage of persons who have been guilty of specified crimes, have been so construed as to re 17 Thompson v. Ewing, 1 Brewster (Pa.), 68, 69; Clark v. Robinson, 88 Illinois, 498; McCrary on Elections (3d ed.), § 80. 18 Opinions of Justices, 124 Mass., 196. 19 Minor v. Happersett, 21 Wall., 162; Van Valkenburg v. Brown, 43 California, 43; Rohrbacher v. Mayor of Jackson, 51 Miss., 735; Spencer v. Board of Registration, 1 MacArthur (D. C.), 169; Bloomer v. Todd, Washington Territory, 19 Pac. Rep., 135; Opinions of Justices, 62 Maine, 596. 20 Buckner v. Gordon, 81 Ky., 665. quire a conviction of such crime in a court of justice before the disqualification becomes operative, and not to allow the rejection by the election officer of a vote upon such a ground before conviction.21 An express provision giving to the election officers such right of exclusion before conviction would be of very doubtful constitutionality, inasmuch as it might be claimed to amount to the imposition of a penalty or infliction of a punishment without due process of law.22 Where the State constitution authorizes the legislature to exclude from the right of suffrage persons convicted of infamous crimes, the legislature cannot enact a disqualification for conviction of a crime such as duelling, which is not infamous.23 In the absence of express language a constitutional 24 or statutory 25 disqualification by a State for the conviction of a felony or infamous crime does not apply to the conviction of a mere statutory offense against the United States. Where a State constitution provided that an elector should forfeit his right of suffrage by "a conviction of any crime which is punishable by imprisonment in the penitentiary," it was held that a person who had been convicted of a crime punishable by fine or such imprisonment, but who had been punished by a mere fine, did not forfeit his franchise.26 A pardon, when not limited, restores the right of suffrage which has been lost by the commission of a disqualifying crime.27 21 Huber v. Reilly, 53 Pa. St., 112; s. c. Brightly's Election Cases, 69; State v. Symonds, 57 Maine 148; Commonwealth v. Jones, 10 Bush (Ky.), 725; s. c. 14 American Law Register, N.S., 374; see also Burkett v. McCarty, 10 Bush (Ky.), 758; McCrary on Elections (3d ed.), §§ 87, 88, 89, 309, 310. 22 Huber v. Reilly, 53 Pa. St., 112; State v. Symonds, 57 Maine, 148; Commonwealth v. Jones, 10 Bush (Ky.), 725; s. c. 14 American Law Register, N. S., 374. See also Burkett v. McCarty, 10 Bush (Ky.), 758; McCrary on Elections (3d ed.), §§ 87, 88, 89, 309, 310. 23 Barker v. People, 20 Johnson (N. Y.), 457; McCrary on Elections (3d ed.), § 84. 24 Gandy v. State, 10 Neb., 243. 25 United States v. Barnabo, 14 Blatchford, 74. 26 Gandy v. State, 10 Nebraska, 243; People v. Cornell, 16 California, 187; contra, U. S. v. Watkins, 7 Sawyer, 85. See McCrary on Elections (3d ed.), $ 85. 27 Wood v. Fitzgerald, 3 Oregon, 569; Ex parte Garland, 4 Wall., 333; infra. § 55. Usual Provisions of State Constitutions as to the Right of Suffrage. Although the power of a State over the right of suffrage within its jurisdiction is very broad, that of a State legislature is not. All the State constitutions contain provisions which establish the qualifications of voters and restrictions upon the right of suffrage. In the absence of language which grants the power, either expressly or by clear implication, neither the State legislature nor any board of local government can add to the qualifications of voters at the election of a State officer, or member of the legislature, or any other election which affects the State at large. The better opinion would seem to be that in such a case they have no power to add to the constitutional qualifications of voters at elections which are purely local, such as the choice of a county-seat; but express power upon the subject of local elections is conferred by a few State constitutions, and less explicit language might be required to grant such authority over them than over general elections. It has been held in Kentucky that the legislature may restrict to tax-payers the right to vote for municipal officers.3 Inasmuch as the Constitution directs that the State legislatures shall prescribe the time, place and manner of the election of representatives in Congress, subject to alteration by Congress, and shall direct the manner of electing presidential electors, it was the opinion of the Supreme Courts of two different States that the provisions of their constitutions which required voters to cast their § 55. 1 Rison v. Farr, 24 Ark., 161: State ex rel. Knowlton v. Williams, 5 Wis., 308; State v. Baker, 38 Wis., 71; Monroe v. Collins, 17 Ohio St., 665; State v. Symonds, 57 Me., 148; State v. Staten, 6 Cold. (Tenn.), 233; Davies v. McKeeby, 5 Nev., 369; Clayton v. Harris, 7 Nev., 64; McCafferty v. Guyer, 59 Pa. St., 109; Huber v. Reilly, 53 Pa. St., 112; Quinn v. State, 35 Ind., 485; Randolph v. Good, 3 W. Va., 551; Green v. Shumway, 39 N. Y., 418; Quinn v. State, 35 Ind., 485; People v. Canaday, 73 N.C., 198; State v. Tuttle, 53 Wis., 45. Cooley's Constitutional Limitations, 6th ed., pp. 79, 753; 2 State v. Williams, 5 Wis., 308; 3 Buckner v. Gordon, 81 Ky., 665. See State v. Dillon, 32 Florida, 545; s. c. 14 Southern Rep., 383; Mayor of Town of Valverde v. Shattuck, Colorado, 34 Pac. Rep., 947; contra, People v. Canaday, 73 N. C., 198. * Constitution, Article I, Section 4. 5 Ibid., Article II, Section 1. ballots in the localities where they resided, could not prevent the legislatures from passing laws which allowed soldiers in active service to vote in their camps at the seat of war without the State. Special constitutional provisions in several States authorize soldiers thus to vote in time of war. The State legislatures cannot, however, grant the right to vote at a Congressional election to any except the electors of the most numerous branch of the State legislature, or take from any of such electors the right to vote for members of the national House of Representatives. The power to regulate the manner of an election does not include the power to impose qualifications upon voters different from those contained in a State Constitution.9 The State constitutions usually grant the right to vote to all male citizens of the United States, and residents of the State, who are of sound mind, have not been convicted of certain specified crimes, and are not inmates of poorhouses or similar asylums. Two States Colorado and Wyoming - allow female suffrage at all elections; 10 Montana upon all questions submitted to taxpayers; Kansas at municipal elections; the last and a number of others at school elections. Where the State constitution is silent upon the subject, the legislature has the power to withhold the right of suffrage from women, or to confer it upon them, either wholly or in part; as, for example, in local school elections, which are sometimes held to be impliedly excepted from the constitutional provisions as to the qualifications of voters.12 Where female suffrage was authorized, it was held Opinions of Justices, 45 N. H., 595; Opinions of Judges, 37 Vt., 665. 7 Cooley, Constitutional Limitations, 6th ed., p. 754. Soldiers may so vote in Ohio, ibid., citing Lehman v. McBride, 15 Ohio (N. S.), 573. The statutes authorizing them so to vote were held invalid under the former constitutions of California and Michigan. Day v. Jones, 31 Cal., 261; Twitchell v. Blodgett, 13 Mich., 127. 8 Constitution, Article I, Section 2. 9 Coffin v. Board of Elections Commissioners of Detroit, 97 Mich., 188. 10 The proposed constitution of Utah does the same. See also the Constitution of North Dakota, § 122. 11 Minor v. Happersett, 21 Wall., 162. 12 Wheeler v. Brady, 15 Kansas, 26; Brown v. Phillips, 71 Wis., 239; State v. Cones, 15 Neb., 444; Belles v. Bur, 76 Mich., 1; State v. Crosby, 15 Neb., 444; Opinion of the Judges, 115 Mass., 602. But see Coffin v. Board of Election Commissioners, 97 Mich., 188; Matter of Gage, 141 N. Y., 112; Winans v. Williams, 5 Kansas, 227. |