Ex Parte Oppenstein

• Decision Date: 22 July 1921
• Docket Number: No. 22925.,22925.
• Citation: 289 Mo. 421,233 S.W. 440
• Parties: Ex parte OPPENSTEIN et al.
• Court: Missouri Supreme Court

233 S.W. 440

289 Mo. 421

Ex parte OPPENSTEIN et al.

No. 22925.

Supreme Court of Missouri, in Banc.

July 22, 1921.

Original petition in habeas corpus by Louis Oppenstein and others against John L. Miles, Marshal of Jackson County. Petitioners discharged from custody.

Frank W. McAllister, Chas. M. Blackmer, Armwell L. Cooper, and Edward J. Curtin, all of Kansas City, for petitioners.

Cameron L. Orr, of Kansas City, Pros. Atty., for marshal of Jackson county.

JAMES T. BLAIR, C. J.

Petitioners constitute the board of election commissioners of Kansas City. They have sued out a writ of habeas corpus to obtain their release from custody upon a commitment for contempt because of their refusal to obey a subpoena duces tecum which commanded them to produce in the criminal court of Jackson county the original ballots, poll books, register, and certificate of the result of the election in the Fifth precinct of the Second ward of Kansas City, used, made, and certified in that precinct at the municipal election in April, 1920.

The question presented by counsel is whether the Constitution of the state permits the ballots in question to be used in evidence in the manner in which it is attempted to use them in this case. An agreed statement of facts upon one phase of the case is referred to, as far as necessary, in the opinion. `

I. In cases of this kind it is usual for the argument to be made that unless this court holds that ballots, etc., may be freely used in evidence, frauds may go unproved, and election crooks go unpunished. This case is no exception to the rule. In his brief counsel says:

"We believe the time has come when this court should fearlessly announce that nothing shall be permitted to stand in the way of the prosecution of a crime against the ballot box. Unless we have honest elections, then government by the people is a farce, and it seems trite to say that no rights of an individual elector should be considered when the rights of the whole people are assailed by false ballots or by false count and returns on the part of election officials."

The question the parties present in this case is whether the Constitution of the state permits the use in evidence of the ballots, and the like, used in an election to which the Constitution applies. Counsel does not deny, nor could it be denied, that the people have power by constitutional provision to prohibit their use in the manner in which counsel seeks to use them. Of course, if the people have not prohibited such use, the quoted argument has little application to the question in this case. It is therefore clear that what the argument in fact invites this court to do is that, if it shall find the Constitution does prohibit such use, it shall "fearlessly announce" that it will not "support the Constitution of this state" (section 6, art. 14, Const. Mo.) in so far as concerns section 3 of article 8 of that instrument. That counsel really intends that the court shall yield to this argument is beyond belief. It was doubtless but a slip of the pen, which was, perhaps, induced by previous slips of other pens in like cases.

The question in this case is not what the people ought to have put into the Constitution. The question is, What does the provision mean which they did put into the Constitution?

II. When the constitutional convention came to the business of drafting the article on suffrage and elections, and the people came to the business of adopting the article the convention had drafted, then the question of policy was for consideration, and then the arguments, pro and con, were made and heard. The convention proposed the adoption of the policy provided in section 3 of article 8, and the people adopted that policy when they adopted the Constitution the convention had drafted. Good or bad, for better or for, worse, it was written into the Constitution, and this court has no power to change it. The court may decide what policy was adopted, but it may not displace the policy adopted and substitute one which it or counsel may deem to be better. It may not amend the Constitution. It must apply it as the people wrote it.

III. The history of the adoption of the ballot as a method of voting has often been written. Constant repetition `of arguments based upon the assumption that there can be no consideration of sound policy which could support a provision for an absolutely secret ballot, will excuse some reference to the conditions and arguments which confronted the constitutional convention and the people on this head. The method of voting viva voce once prevailed in this state and elsewhere. The literature of the times, both legal and other, demonstrates that this method had resulted in coercion, corruption, and intimidation, and was attended by rioting, violence and disorder. The bribe giver had certain means of determining whether the votes he bought were cast as agreed. Employers, creditors, landlords, organizations of all kinds, could and did require employees, debtors, tenants, members, and others to vote as directed, or suffer such punishment or inconvenience as the circumstances permitted. These were conditions and not theories. Discussions of them and references to literature on the subject can be found in the Ausstralian Ballot System, by Wigmore, published in 1889. Statesmen became much concerned. The system of election by ballot was designed to cure these evils. The heart of the system was secrecy. There was opposition to it. The arguments made now were made then, and others as well. The new system was rapidly adopted. At the time the convention of 1875 was held these arguments had been developed and amplified, pro and con. The fragments of the debates in the convention which are still available show they were considered in that body. With these arguments before it, the convention adopted section 3 of article 8.,

At that time it was already settled beyond doubt that election by ballot meant an election by secret voting. There is practically no difference of opinion as to that. The history of the origin of the system precludes any other view. Counsel does not deny this. Many of the decisions are collated in 6 C. J. pp. 1173, 1174, and 9 H. C. L. §§ 34, 85, pp. 1040, 1047. Among these are found decisions of this state which many years ago, construed the words "election by ballot" in entire harmony with the construction almost universally given them elsewhere.

The text-books have always announced the same doctrine. Judge Cooley, whose great ability is universally esteemed, expressed himself thus:

"The system of ballot voting rests upon the idea that every elector is to be entirely at liberty to vote for whom he pleases and with what party he pleases, and that no one is to have the right, or be in a position, to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in the cc se of a contested election, cannot be compelled to disclose for whom be voted; and for fie same reason we think others who may accidently, or by trick or artifice, have acquired knowledge on the subject, should not be allowed to testify to such knowledge, or to give any information in the courts on the subject. Public policy requires that the veil of secrecy should be impenetrable. Unless the voter himself voluntarily determines to limit it, his ballot is absolutely privileged; and to allow evidence of its contents when he has not waived the privilege is to encourage trickery and fraud, and would in effect establish this remarkable anomaly, that, while the law from motives of public policy establishes the secret ballot with a view to conceal the elector's actions, it at the same time encourages a system of espionage, by means of which the veil of secrecy may be penetrated and the voter's action disclosed to the public." Cooley on Constitutional Limitations (17th Ed.) pp. 912, 913.

Numerous decisions support this text. MIS language is quoted and approved in McCrary on Elections (4th Ed.) §§ 488, 480.

In People v. Cicott, 18 Mich. loc. cit. 312, 97 Am. Dec. 141, Christianey, J., with whom Cooley, C. J., and Graves, a., concurred, said:

"The object of this requirement [that all votes `be given by ballot'] when considered with reference to the history of our country and the whole theory of popular governments, * * * is too plain to be misunderstood. It was to secure the entire independence of the electors, to enable them to vote according to their own individual convictions of right and duty, without the fear of giving offense or exciting the hostility of others. And with this view the right is secured to every voter of concealing from all others, or from such of them as he may choose, the nature of his vote, or for what Person or party he may have voted. This important object, vital as I think it is in our system of government, would be substantially defeated if the voter could be compelled to disclose, even in a court of justice, how he has voted. The Constitution, and our statutes which have followed out its spirit, have thrown over the voter an impenetrable shield, under which he may keep the secret of his vote until he shall see fit to disclose it. * * *

"How an elector may have voted is, under the Constitution and the law, a fact which no man has a right to learn, in this or any other manner, till the elector himself may choose to make it public."

The proposition then, that a simple provision that "election shall be by ballot" introduces absolute secrecy is established by the decisions of the courts, the views of the text-writers, the history of the origin of voting by ballot, and the nature of the evils it was intended to remedy, and is not questioned by counsel for respondent, as we understand him. Further, as this court long ago pointed out, the people who adopted our Constitution and who have the power to amend or revise it, or adopt another in its stead, have not by any of these methods indicated...