State v. Harrington

• Decision Date: 22 February 1943
• Citation: 42 Del. 246,30 A.2d 688
• Court: United States State Supreme Court of Delaware
• Parties: THE STATE OF DELAWARE, upon the relation of Frank P. Walker, v. WILLIAM WATSON HARRINGTON, Chancellor of the State of Delaware, and CHARLES L. TERRY, JR., Associate Judge of the State of Delaware, Resident in Kent County, constituting the Superior Court of the State of Delaware, in and for Kent County, pursuant to Section 6 of Article V of the Constitution of the State of Delaware, and as such the Board of Canvass in and for Kent County, State of Delaware

30 A.2d 688

42 Del. 246

THE STATE OF DELAWARE, upon the relation of Frank P. Walker, v. WILLIAM WATSON HARRINGTON, Chancellor of the State of Delaware, and CHARLES L. TERRY, JR., Associate Judge of the State of Delaware, Resident in Kent County, constituting the Superior Court of the State of Delaware, in and for Kent County, pursuant to Section 6 of Article V of the Constitution of the State of Delaware, and as such the Board of Canvass in and for Kent County, State of Delaware

Supreme Court of Delaware

February 22, 1943

Supreme Court, No. 1, January Term, 1942.

Petition for a writ of mandamus directed to the defendants commanding them to reconvene the Superior Court for Kent County, and as such the Board of Canvass for such county, and publicly ascertain the state of the election throughout such county as the result of the General Election held November 5, 1940 especially for the office of County Comptroller.

The question before the court is the constitutionality of an Act passed in 1898, as amended.

The pertinent provisions in the Constitution of 1897, as amended are contained in Article V, and are set out in the footnote. ^[1]

William J. Storey and P. Warren Green for the relator.

Howard E. Lynch, Jr., Josiah O. Wolcott, Jr., and Stewart Lynch, amici curiae.

LAYTON C. J., RICHARDS, RODNEY and SPEAKMAN, J. J., sitting.

OPINION

SPEAKMAN, J.

This case was before the Court at a prior stage on suggestions by the amici curiae that the Court lacked jurisdiction to review the acts of the Superior Court for Kent County, sitting as a Board of Canvass for such county. It was the opinion of the Court that it had the jurisdiction to hear and dispose of the relator's petition on its merits. See State v. Harrington, 3 Terry (42 Del.) 14, 27 A.2d 67. Reference to the statement of facts preceding the opinion will disclose the nature of the proceeding. It is not deemed necessary to restate or elaborate in detail what is there stated.

The question now before the Court is the constitutionality of the Act of 1898, as amended, and now found in Article 4, Chapter 60, Revised Code of 1935, enabling qualified voters of this State, in the military or naval service of this State or of the United States, to exercise the right of suffrage. By its provisions those in such service and absent on the day of election from the hundred, election district or ward of their residence, are authorized to cast their votes at their place of encampment. For convenience, this Act will be hereinafter referred to as the "Soldiers' Vote Act."

In 1923 another Act was passed which was much broader in scope. Art. 5, Chap. 60, Revised Code of 1935. It provided for the casting of ballots by mail by persons unable to be personally present at the polling places in their districts on election day.

The constitutionality of the Act of 1923 was considered by the Court of General Sessions in the case of State v. Lyons, 1 Terry (40 Del.) 77, 5 A.2d 495, 502. In that case the defendant contended that the Act was unconstitutional in that it was in conflict with the provisions of Article V of the Constitution of 1897. The Court considered two matters which seemed to indicate the meaning of the constitutional provisions, and which were determinative of the question under consideration.

(a) Absentee voting as considered in connection with the debates of the Delaware Constitutional Convention in 1897.

(b) Absentee voting as affected by Article V, Sec. 3, concerning challenge of voters.

The Court said: "In the Constitutional debates there are many statements indicating the clear understanding that the casting of a ballot was to be effected by the personal presence of the voter at the polls. * * * From a very thorough study of the problem we are convinced that the Constitution as it exists at present contemplates and requires the personal attendance of the voter at the polls, and no power now exists in the Legislature to provide for absentee voting. We are led to this conclusion both from the express provisions of the Constitution and the plain inference drawn therefrom."

The correctness of the Court's conclusion in the Lyons case has not been challenged in the present case. Amici curiae suggest that the Lyons case "made no ruling that the Constitution requires the voter when offering his vote, to stand on the soil embraced within the boundary lines of the district," and that "the question to be determined here is whether the Constitution requires that the polling places for the reception of ballots be located within the geographical and territorial confines of the State of Delaware."

In the Lyons case the Court gave much consideration to Section 2 of Article V of the Constitution, and was of the opinion that the critical words and those most requiring consideration are "in which he may offer to vote" as indicating the action of the elector, and "shall be entitled to vote at such election in the hundred or election district of which he shall at the time be a resident, and in which he shall be registered," as indicating the place where the election is to be held. We do not disagree with anything the Court said concerning the language of this Section, yet here, as there, the question before the Court can only be determined by a consideration of all the material and pertinent provisions of the Constitution.

There the Court referred to the fact that Section 3 of Article V of the Constitution "has been explicit in its attempt to frustrate bribery," and was of the opinion that no voter could meet the challenge for bribery without his personal presence at the polls. The amici curiae suggest that under the "Soldiers' Vote Act" the voter is personally present at the polls and can be there challenged. But it must be observed, that under the "Soldiers' Vote Act," if he is duly registered, he may appear at any one of a number of places and there offer to vote. The Constitution, by Section 4 of Article V, has prescribed for uniform laws for registration of voters for the purpose of determining that prospective voters duly possess the necessary and prescribed qualifications. This section provides that all questions of the qualifications of voters should be determined before election day, and on that day, beyond the fact of the identity of the persons, the sole ground of challenge should be the violation of said Section 3 of Article V.

Now if polling places for the several hundreds or election districts can be located outside of the territorial limits of such hundred and election districts in the manner provided in the "Soldiers' Vote Act," then whenever any of the qualified voters of this State shall be engaged in the military or naval service of this State, and, as such, absent from the election district of their residence on the days appointed for the holding of the general elections in this State, there would be (a) polling places for each hundred or election district of the State located within its territorial limits, and (b) polling places, not for the respective hundreds or election districts, but for the entire State, located at each place of encampment. At the polling place in each hundred or election district, there would be the registration books containing the names of all the electors qualified to vote thereat, as required by the Constitution and the laws passed pursuant thereto, and at the polling place in each place of encampment there would be composite lists of the names of citizens in such military and naval service who have been registered as qualified voters for the succeeding general election of each county, and also complete registration lists of each county, as provided by Section 130 of the "Soldiers' Vote Act," Rev. Code 1935, § 1939.

From the above, it is apparent that a person in such military or naval service, if duly registered, has the unqualified right under the Constitution to appear and offer to vote at the polling place within the territorial limits of the hundred or election district in which he is registered. Under the revisions of the Soldiers' Vote Act, if absent on the day of the election from the hundred, election district or ward of his residence, he may appear and offer to vote, if within two miles thereof, at the polling place at the place of his encampment, or if detached or absent from his company on duty which will not permit him to return to his company's encampment, he may vote at such polls as may be most convenient to him opened at any other encampment. Sec. 118 of Chap. 60. On the other hand, if he is so disposed and is physically able, he may appear and offer to vote at all of said places and his ballot could not be rejected at any of said places, unless he was challenged for bribery; and if so challenged, and he met the challenge by taking the Constitutional oath, his ballot could not then be rejected by the election officers.

It is due to those in service who voted at the election in question at their place of encampment, to add that there is no thought or suggestion that they knowingly violated any of the provisions of our Constitution or laws in so voting.

Regardless of all that might be said of the right of every elector of a district to be present at the polling place in his district to witness the voting of all the qualified voters of his district desiring to vote, and to cause to be challenged any person suspected of bribery or impersonation, we think the right of challenge would be unduly restricted if an elector is authorized to vote, as occasion might permit, at any one of a number of polling places, without notice to those who possessed the right or authority to challenge or to cause him to be challenged for bribery. However, there is one matter that we consider of importance. When an elector is...