ELECTION LAWS. 



323 



absence, physical disability, or non-age, and an 

 elector can lose his vote without his own de- 

 fault or negligence in these particulars. The 

 law disfranchises a constitutionally qualified 

 elector without his default or negligence, and 

 makes no exception in his favor, and provides 

 no method, chance, or opportunity for him to 

 make proof of his qualifications on the day of 

 election, the only time, perchance, when he 

 could possibly do so. This law undertakes to 

 do what no law can do, and that is, to deprive 

 a person of an absolute right without his laches, 

 default, negligence, or consent ; and, in order 

 to exercise and enjoy it, to require him to ac- 

 complish an impossibility. No registry law can 

 be sustained which prescribes qualifications of 

 an elector additional to those named in the 

 Constitution, and a registry law can be sustained 

 only, if at all, as providing a reasonable mode 

 or method by which the constitutional qualifi- 

 cations of an elector may be ascertained and 

 determined, or as regulating reasonably the 

 exercise of the constitutional right to vote at 

 an election." 



Judge Taylor wrote an elaborate dissenting 

 opinion. He pointed out that the registry law 

 of 1864 (the one now under consideration was 

 enacted in 1879) had been passed upon by the 

 Court in three cases, and in each one held con- 

 stitutional. "The object of all registry laws," 

 he said, "is to ascertain before the election- 

 day who are the qualified electors in each elec- 

 tion district, and to do away with the neces- 

 sity, as far as possible, of investigating as to the 

 qualifications of electors on the day of election, 

 and to prevent fraudulent voting by giving 

 publicity beforehand to the names of all per- 

 sons who claim the right to vote at the coining 

 election. The right of the Legislature to re- 

 quire this to be done, and the propriety of do- 

 ing it, have been approved by this Court in the 

 cases above cited. ... To my mind it seems 

 very clear that if the Legislature has any power 

 to require a registration of the electors to be 

 made previous to the day of election, and to 

 compel the non-registered elector to give some 

 good reason for his failing to procure himself 

 to be registered before he shall be allowed to 

 vote on the day of election, it has the same 

 power to enforce the registration by depriving 

 the elector of the right to vote unless he be- 

 comes registered as required by law. If the 

 . Legislature may compel the elector to give a 

 reason for not registering, it may declare what 

 shall be a sufficient reason, and permit only 

 such excuse for not registering as in its discre- 

 tion it may deem a valid excuse." 



The constitutionality of a registration law 



was affirmed as early as 1832 by the Massachn- 



I setts Supreme Court (Capen vs. Foster, 12 Pick- 



f ering's Reports). No person was allowed to 



vote without being registered, but it seems 

 that the selectmen or assessors were required 



:, to be in session immediately before or on the 



day of election, so as to give every voter 

 ' an opportunity to know whether his name 



was on the list, and to put it there if it was 

 omitted. 



Where the Constitution (said Chief-Justice Shaw) 

 has conferred a political right or privilege, and where 

 the Constitution has not particularly designated the 

 manner in which that right is to be exercised, it is clear- 

 ly within the just and constitutional limits of the 

 legislative power to adopt any reasonable and uniform 

 regulations in regard to the time and mode of exer- 

 cising that right, which are designed to secure and 

 facilitate the exercise of such right in a prompt, order- 

 ly, and decent manner. Such a construction would 

 afford no warrant for such an exercise of legislative 

 power as under the pretense and color of regulatino- 

 should subvert or injuriously restrain the rio-ht itself 

 . . . The right of any individual person, claiming the 

 privilege of voting, may involve an inquiry into the 

 fact of citizenship, sex, age ; domicile within the Com- 

 monwealth, town, or district, the payment of taxes, 

 exemption by law from the payment of taxes, and the 

 fact of his being a pauper, or under guardianship or 

 Otherwise. All these are questions of fact, open to 

 proof of various kinds, and sometimes, though rarely, 

 requiring considerable research and investigation. Is 

 there anything in the above - recited provision of 

 the Constitution which requires the selectmen to go 

 through this investigation during the progress of the 

 polling, and while many other citizens, whose right is 

 unquestioned, and proved by their names being pre- 

 viously entered on the list, are waiting to give in their 

 ballots and retire ? The Constitution, by carefully 

 prescribing the qualifications of voters, necessarily 

 requires that an examination of the claims of persons 

 to vote, on the ground of possessing these qualifica- 

 tions, must at some time be had by those who are to 

 decide on them. The time and labor necessary to 

 complete these investigations must increase in pro- 

 portion to the increased number of voters ; and, in- 

 deed, in a still greater ratio in populous commercial 

 and manufacturing towns, in which the inhabitants 

 are frequently changing, and where, of necessity, many 

 of the qualified voters are strangers to the selectmen. 

 If, then, the Constitution has made no provision in 

 regard to the time, place, and manner in which such 

 examination shall be had, and yet such an examina- 

 tion is necessarily incident to the actual enjoyment ot' 

 the right of voting, it constitutes one of those subjects 

 respecting the mode of exercising the right, in rela- 

 tion to which it is competent to the Legislature to 

 make suitable and reasonable regulations not calcu- 

 lated to defeat or impair the right of voting, but rather 

 to facilitate and secure the exercise of that right. This 

 Court is of opinion that the provisions in the general 

 law regulating elections, and that in the act incorpo- 

 rating the city, which require that the qualifications of 

 voters shall be previously offered and proved, in order 

 to entitle them to vote, that their names shall be en- 

 tered upon an alphabetical register or list of voters, is 

 highly reasonable and useful, calculated to promote 

 peace, order, and celerity in the conduct of elections, 

 and as such to facilitate and secure this most precious 

 right to those who are by the Constitution entitled to 

 enjoy it ; that it can not be justly regarded as adding 

 a new qualification to those prescribed by the Consti- 

 tution, but as a reasonable and convenient regulation 

 of the mode of examining the right of voting which it 

 was competent to the Legislature to make. 



The objection was raised that the law made 

 no provision for " the publication of the lists 

 of voters prior to each election, so that it is 

 impossible for a voter to know whether his 

 name is on the list or not, and that without 

 any neglect of his own his right of voting may 

 be defeated." On this point the Court said : 

 "If the provision of this law is such as to af- 

 ford the voter no opportunity to know seasona- 

 bly whether his name is on the list or not, and 



