In re Supervisors of Election

• Decision Date: 24 January 1880
• Citation: 1 F. 1
• Parties: In re APPOINTMENT OF 'SUPERVISORS OF ELECTION' IN THE STATE OF DELAWARE.
• Court: U.S. District Court — District of Delaware

1 F. 1

In re APPOINTMENT OF 'SUPERVISORS OF ELECTION' IN THE STATE OF DELAWARE.

United States Circuit Court, D. Delaware.

January 24, 1880

Anthony Higgins, for the motion.

George H. Baker and George Gray, Attorney General, contra.

HON EDWARD G. BRADFORD, U.S. District Judge, assigned by the circuit judge, (Hon. Wm. McKennan,) to perform and discharge the duties devolving upon him, presiding.

BRADFORD J.

The provisions of the United States laws which it is supposed covers this case are found in sections 2011, 2012, 2013, 1024 and 2015 of the Revised Statutes of the United States, and in these words:

'Section 2011. Whenever, in any city or town having upwards of 20,000 inhabitants, there are two citizens thereof, or whenever, in any county or parish, in any congressional district, there are ten citizens thereof, of good standing who, prior to any registration of voters for an election for representative or delegate in the congress of the United States, or prior to any election at which a representative or delegate in congress is to be voted for may make known, in writing, to the judge of the circuit court of the United States for the circuit wherein such city or town, county or parish is situated, their desire to have such registration, or such election, or both, guarded and scrutinized, the judge, within not less than ten days prior to the registration, if one there be, or, if no registration be required, within not less than ten days prior to the election, shall open the circuit court at the most convenient point in the circuit.

'Sec. 2012. The court, when so opened by the judge, shall proceed to appoint and commission, from day to day and from time to time, and under the hand of the judge, and under the seal of the court, for each election district or voting precinct in such city or town, or for such election or voting precinct in the congressional district, as may have applied in the manner herein prescribed, and to revoke, change or renew such appointment from time to time, two citizens, residents of the city or town, or of the election district or voting precinct in the county or parish, who shall be of different political parties, and able to read and write the English language, and who shall be known and designated as supervisors of election.

'Sec. 2013. The circuit court, when opened by the judge, as required in the two preceding sections, shall therefrom and thereafter, and up to and including the day following the day of election, be always open for the transaction of business under this title, and the powers and jurisdiction hereby granted and conferred shall be exercised as well in vacation as in term time; and a judge, sitting at chambers, shall have the same powers and jurisdiction, including the power of keeping order and of punishing any contempt of his authority, as when sitting in court.

'Sec. 2014. Whenever, from any cause, the judge of the circuit court, in any judicial circuit, is unable to perform and discharge the duties herein imposed, he is required to select and assign to the performance thereof, in his place, such one of the judges of the district courts within his circuit as he may deem best; and, upon such selection and assignment being made, the district judge so designated shall perform and discharge, in place of the circuit judge, all the duties, powers and obligations imposed and conferred upon the circuit judge by the provisions hereof.

'Sec. 2015. The preceding section shall be construed to authorize each of the judges of the circuit courts of the United States to designate one or more of the judges of the district courts within his circuit to discharge the duties arising under this title.'

There is no question raised now as to the appointment of supervisors of election to guard and scrutinize the elections. But it is denied that there is any registration of voters within the meaning of the act of congress, and that therefore the appointment of supervisors of election, with power to guard and scrutinize the assessment lists in the hands of the assessors and in the hands of the levy court, and the list of voters furnished by the clerks of the peace in the respective counties of the state for the use of the inspectors of election, is not warranted by law.

As this law, leaving out the question of constitutionality, is meant to be fair and impartial in its operation, and as its object and purpose is the protection to each citizen of the right of the elective franchise, both by securing his own vote and preventing the illegal votes of others, the construction of the act should be a liberal one, and such as to carry into effect the manifest intention of the framers of the law. And, while the fact of penalties attached to the violation of the law should, as in every case demanding serious investigation, make more imperative the necessity for the judge to give a careful investigation to the case, I know of no rule of interpretation arising from that fact which should require a narrow and technical construction to such a statute-- a statute which is eminently an enabling one.

We are then brought to the consideration of the question, what was the manifest intention of congress in the use of the words 'registration of voters?'

It will hardly be denied that, if these lists made by the assessors and the levy courts are lists of such a character that to be placed on them is a prerequisite to the right to vote, the guarding and scrutinizing such lists give the means of remedying the evil which congress designed to be remedied. And if it is a sound rule of interpretation or construction of a law that such a construction or interpretation should be given as will remove the evil sought to be removed, and protect the rights sought to be protected, then, unless there is something on the fact of the acts of congress which in terms denies the applicability of the registration of voters therein named to the assessment lists under the laws of Delaware, an adherence to this rule would compel the court to give to such a system the substantial character of a registration of voters.

It is admitted in argument that if there was a system of registration of voters eo nomine, in this state, then the statute would apply, and the supervisors could guard and scrutinize such lists.

Now such registry lists, eo nomine, are imperfect; they only make a prima facie case. No voter's right is extinguished by being omitted from that list, and no voter's right is secured by being illegally placed on it. The wrong done can be remedied at any time prior to the election; and yet such imperfect lists as these, under the name of registration of voters, congress, in the interests of the purity of the elective franchise, has ordered to be guarded and scrutinized. Now suppose, under the system of laws of the state of Delaware, the assessor makes list of persons owning and not owning property, above the age of 21 years, and is required by law under severe penalties to place on that list every freeman in his hundred above the age of 21 years; and suppose, after the list is completed and corrected by the levy court in the latter part of March of every year, it is found that citizens qualified in every other respect to vote have, through inadvertence or corruption, been omitted from the lists; and suppose that omission is fatal, beyond the possibility of correction-- an actual and utter extinguishment of such a citizen's right to vote-- can it be held with any reason that such a state of facts does not constitute a registration of voters within the true meaning and intent of congress? It is admitted by counsel for the objectors that the law will apply to imperfect and inconclusive lists of voters, provided they are called by law 'registration of voters;' but to apply that law, when the necessity of guarding and scrutinizing is vastly increased, from the fact that the omission of the name from the assessment list is absolutely without remedy, is held by them to be unwarranted.

Now, what is there in the words 'registration of voters' that should require such a construction of the law as to defeat the manifest intention of congress? It will be borne in mind that there is no such expression as 'system of registration' or 'registry laws,' and the only words to have a construction given to them are 'registration, of one there be.' What is registration? It is the act of making a list, or catalogue, or schedule, or register. The word 'registration' is an ordinary one; it is used in a generic sense, not technical; and, when applied to voters, unless there is a system of registration described by act of congress as such, and applied by the act as the only registration of voters under the law, it is any list, or register, or schedule containing names, the being on which lists, registers, or schedules constitutes a prerequisite to voting. Any other construction would utterly defeat the purpose and intent of congress.

It is manifest that, under the construction contended for by the objectors, any state having in substance such a registration of voters could avoid the operation of the act by altering the name of the fact of registration, or altering the state laws in such a manner as to create a system of registration different from that contemplated by the act of congress, as likely to be most prevalent in the majority of the states. The registration of voters must be widely variant in different states of the Union, and because there are some acts which, under our system, supervisors may not be able to perform, but which, in the contemplation of congress, might be performed in some other states, it does not follow that the former states have no such registration of voters as was contemplated by the act of congress. Is...