State v. Tucker

• Decision Date: 04 October 1932
• Court: Florida Supreme Court
• Parties: STATE ex rel. HUTCHINS v. TUCKER, Sup'r of Registration, et al.

143 So. 754

106 Fla. 905

STATE ex rel. HUTCHINS v. TUCKER, Sup'r of Registration, et al.

Florida Supreme Court

October 4, 1932

Alternative Writ Amended and Peremptory Writ Issued Oct. 8, 1932.

Original proceeding by the State of Florida, on the relation of Victor Hutchins, for a writ of mandamus to R. T. Tucker, Supervisor of Registration of Orange County, and another, as members of and constituting a majority of the County Canvassing Board of such county.

Peremptory writ denied, with leave to amend alternative writ.

COUNSEL

Pleus, Williams & Pleus and R. L. Williams, all of Orlando, for petitioner.

E. W Davis and Allison E. Palmer, both of Orlando, amici curiae.

OPINION

BUFORD C.J.

The relator filed petition for mandamus to compel the canvassing board of Orange county to canvass and include in their tabulation certain ballots alleged to have been cast by absent voters under the provisions of sections 368 et seq. Rev. Gen. St., section 429, Comp. Gen. Laws, et seq., which the said canvassing board had refused to canvass and include in their tabulation of results in the primary election for the nomination of a Democratic candidate for the office of county judge of Orange county. Alternative writ was issued. A return was filed by the respondents which admitted in effect the allegations of the petition. Thereupon motion was filed for the issuance of peremptory writ of mandamus. The cause came on to be heard on briefs and argument of counsel, as well as briefs and argument by Messrs. E. W. Davis and Allison E. Palmer as amici curiae.

First it is contended that the statute under which the absentee ballots were cast is in conflict with section 6 of article 6 of the Constitution, with section 9 of article 6, and with section 26 of article 3 of the Constitution. We find nothing in the act which could be construed to be in conflict with section 26 of article 3 or with section 9 of article 6 of the Constitution. Of course, the provisions of many statutes might be so perverted as to be used as the shield behind which the Constitution might be violated, but there is nothing in the statutes here under consideration which requires the violation of either of the sections of the Constitution above mentioned.

It is most earnestly contended that the sections under consideration violate section 6 of article 6 of the Constitution because by the use of the method therein provided for voting the secrecy of the ballot is destroyed, and this is true; but there is no provision of the statute which compels the voter to pursue that method of voting, and if the voter does pursue that method it is in the exercise of the free and voluntary choice of the voter. In other words, all people in this country, unless in the custody of the law or in the service of their country, have the right to go when they please and where they please on all lawful missions, and all electors not in custody of the law or in the service of their country have the right to be at their respective voting precincts on the day of the election and to there cast their secret ballots for the candidates of their choice, and they cannot be compelled to divulge the identity of such candidates. The statute here under consideration, however, has provided a method by which the elector may waive the privilege of the secrecy of his ballot and yet vote although his business, pleasure, or convenience may cause him to be at some other place than his voting precinct on the day of election. We can conceive of no method by which an absentee voter could cast his ballot without his identity with the ballot being provided for and being maintained from the time it is prepared by him until it reaches the canvassing board. Without the joinder of such identities there could be no way of determining the elector's right to vote. Therefore, the elector may choose whether he will suffer the necessary inconvenience occasioned by his remaining to vote in his precinct and preserve the secrecy of his ballot, or will move according to what he conceives to be the exigencies of his business or pleasure and waive the secrecy of his ballot.

We may say that it has been uniformly held that under such provisions as that contained in section 6 of article 6 of our Constitution the elector cannot be compelled to violate the right of secrecy of his ballot, but the great weight of authority is to the effect that such constitutional provision guarantees a personal privilege which may be waived. In State v. Anderson, 26 Fla. 240, 8 So. 1, 5, this court, speaking through Mr. Chief Justice Raney, said:

'The constitution provides (section 6, art. 6), that in all elections by the people the vote shall be by ballot, and in those by the legislature it shall be viva voce. The material guaranty of this constitutional mandate of vote by ballot is inviolable secrecy as to the person for whom an elector shall vote. The distinguishing theory of the ballot system is that every voter shall be permitted to vote for whom he pleases, and that no one else shall be in a position to know for whom he has voted, or shall know unless the voter shall, of his own free will, inform him.' Cooley's Constitutional Limitations, m. p. 604 et seq. (Italics ours.)

Mr. Cooley, in his excellent work on Constitutional Limitations (7th Ed.) p. 912, says:

'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 position to question his independent action, either then or at any subsequent time. The courts have held that a voter, even in case of a contested election, cannot be compelled to disclose for whom he voted; and for the 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 upon the subject. Public policy requires that the veil of secrecy should be impenetrable, unless the voter himself voluntarily determines to lift it; his ballot is absolutely privileged. * * *'

This enunciation was followed with approval in Jenkins v. State Board of Elections of North Carolina, 180 N.C. 169, 104 S.E. 346, 347, 14 A. L. R. 1247.

In the case of Jenkins v....