ABSENT VOTING. I. ABSENT VOTING IN NEW ENGLAND. Absent voting, or voting by proxy, is not a novel feature in American law. As early as 1635 it was provided in the Colony of Massachusetts Bay that certain towns whose safety would be endangered if all their electors should go to Boston to attend the General Court might detain such as they deemed necessary, and such electors were to be permitted to send their votes by proxy. In 1636 this provision, which was apparently designed to meet a temporary emergency, was embodied in a permanent statute in these words: This Courte, takeing into serious consideration the greate danger & damage that may accrue to the state by all the freemens leaveing their plantations to come to the place of elections, have therefore ordered it, that it shalbee free & lawfull for all freemen to send their votes for elections by proxie the next Generall Courte in May, & so for hereafter, wch shalbee done in this manner: The deputies wch shalbee chosen shall cause the freemen of their townes to bee assembled, & then to take such freemens votes as please to send by proxie for every magistrate, & seale them vp, severally subscribing the magistrates name on the backside, & soe to bring them to the Courte sealed, wth an open roule of the names of the freemen that so send by proxie.1 A law enacted in 1663 shows that the personal presence of the voter was not required even at the town meetings at which the proxies were collected. This act contained this provision: The constable of each toune shall, some convenjent tjme before the day of election, giue due notice to all the freemen of that toune to meete together to giue their votes for elections, and that none shall be admitted to giue votes for any other, unlesse the person voteing be also present, or send his vote, sealed vp, in a note directed to the deputy or tounesmen mett together for that worke.2 1 Records of Massachusetts, I, 188. It should be understood that the term "proxy" as used in these acts meant merely that the voter's ballot might be transmitted by messenger, and not that the absentee could authorize another person to vote for him according to his own discretion. Records of Massachusetts, IV, Pt. 2, 86. The charter of William and Mary, granted in 1691, required that the Governor and Council and representatives should be elected "by the major part of the freeholders and other inhabitants of the respective towns or places, who shall be present at such elections." This restrictive clause put an end to voting by proxy. The Civil War brought the subject again into view because of the necessary absence at the front of so many thousands of voters. Many States were so much impressed by the injustice of disfranchising men whose absence was entirely due to the fact that they were engaged in the public service that provision was made whereby soldiers in the field could vote. Whether or not such legislation was valid depended upon the provisions of the constitution of the State concerned.1 The constitutions of the three New England States, Connecticut, Massachusetts and Vermont, in each of which the laws providing for absent voting were held to be invalid, are alike, in that they speak of elections as being held in "meetings" (Massachusetts), "meetings of the electors" (Connecticut), or "freemen's meeting" (Vermont). Even as late as 1885, an amendment to the Constitution of Massachusetts refers to a "public meeting" for the election of officers. These terms seem to imply the personal presence of the voter at an assembly called for the purpose of electing officers. It was upon this ground that the Judges of the Supreme Court of Connecticut held the absent-voting law of that State to be unconstitutional. The court said: The convention found the "freemen's meeting" a distinct and peculiar feature in the political system of the State, as old as its history. It originated in 1639, in the compact or Constitution formed by the towns of Hartford, Windsor and Wethersfield, in a provision for the warning of a "freemen's meeting" to elect deputies (representatives) from each town to the General Court (Assembly). From that year, and after the merger of the New Haven colony under the charter of Charles, there has never been an election, by the people, of representatives or state officers, in any other manner or place. The convention adopted this 1 Such legislation was sustained in Bourland v. Hildreth, 26 Cal. 161, and Lehman v. McBride, 15 Ohio State, 573. It was declared unconstitutional in Opinion of the Judges, 30 Conn. 591; Opinion of the Justices, 37 Vt. 665; Opinion of the Justices, 44 N. H. 633; Morrison v. Springer, 15 Iowa, 304; Twichell v. Blodgett, 13 Mich. 127; Chase . Miller, 41 Pa. St. 403; State er rel. Chandler v. Main, 16 Wis. 422. feature, as they did in the main the other institutions of the state, changing its name to "electors' meeting." And then, in pursuance of one of their leading purposes, they directed, in as clear and explicit language as they could command, and specifically, and with repetition as to each of the officers, that they should be successively voted for and chosen "at," or "in," that electors' meeting. There the Constitution directs that the votes of the electors shall be offered and received; that is the only place contemplated or in any way alluded to in that instrument where they may be offered and received; and there only, we are satisfied, they must be offered and received, or they can have no constitutional operation in the election for which they are cast.1 The Constitution of Massachusetts as it now stands provides that the members of the House of Representatives "shall be chosen by written votes," but that the Senators are to be chosen at a "meeting" and that "the selectmen of the several towns shall preside at such meetings impartially; and shall receive the votes of all the inhabitants of such towns present and qualified to vote for Senators." The Governor and all other State officers elected under the Constitution are to be elected at a "meeting" where the voters shall "give in their votes for a Governor, to the selectmen, who shall preside at such meetings." 2 The language of the Constitution is explicit as to the election of Senators by voters who are "present," and the provision for the election of the Governor and other State officers seems also to imply the presence of the voter. It seems probable, therefore, that the General Court is not authorized to enact a general law providing for absent voting. This was apparently the view taken by the Legislature of 1916, which made provision whereby the Massachusetts troops on the Mexican border could vote for Presidential electors, United States Senators and members of the Federal House of Representatives, but not for any State officers.3 II. THE EXTENT OF THE PROBLEM. It has been seen that absent voting was first introduced into the laws of Massachusetts in order to allow electors living in towns exposed to Indian attacks to remain at home and protect 1 Opinion of the Judges, 30 Conn. 591. ? Since this statement was prepared, a constitutional amendment conferring upon the General Court full power to deal with the subject of absent voting has been adopted. It is printed in the Appendix. 1 General Acts, 1916, chap. 312. A similar law was enacted in Vermont. See Laws of Vermont, 1915. |