In my opinion the added provisions incorporated in section 190 by the framers of the Constitution of 1901 define and specify the laws to regulate and govern elections which the Legislature shall enact under the mandate of the same section requiring all such laws to be uniform throughout the state.
Elections in Alabama was the matter of first concern in that convention. This is history.
The qualification of voters was prescribed by self-executing provisions of the Constitution, uniform throughout the state. The manner of holding elections and ascertaining the result was not only left to the Legislature, but says section 190 the Legislature shall enact such laws, and this mandate is incorporated in the uniformity section of the Constitution.
The Constitution provided a temporary system for the registration of voters, uniform throughout the state. And, in like manner, declared in this uniformity section that the Legislature shall enact general registration laws effective after the temporary system ended, all in harmony with the new Constitution.
That the Douglass Act, Gen.Acts 1935, p. 679, undertakes to empower the governing body of one county to put into effect in such county a law essentially and substantially different from that prevailing in other counties with respect to the manner of holding elections and ascertaining the result, as declared in the main opinion, is quite obvious.
One illustration will suffice.
Under the prevailing law the managers of elections are required to keep a poll list showing the number and name of each voter, and to identify his ballot by a corresponding number thereon. By this means there is provided record evidence, official written evidence, whereby, on a contest of the election, it may be ascertained for what candidate or measure illegal votes, if any, have been cast. Sartain v. Shepherd, 173 Ala. 474, 55 So. 919.
Admittedly the machine method provided under the Douglass Act nowhere records any evidence as to how or for whom any voter cast his vote.
Thus one of the principal safeguards of existing law against fraudulent elections by illegal voting is absent in voting under the Douglass Law. *Page 14
True, our laws look to the secrecy of the ballot, and provide safeguards to secure that right. But this does not prevent the use of the ballot and the poll list on a contest of the election. Sertain v. Shepherd, supra.
The protection of the voter from intimidation is no more sacred than the right to have his vote counted, and not nullified by illegal voting. The prostitution of the ballot by illegal voting is as destructive of democratic government as the sale and purchase of votes, or the coercion of voters.
The provision for numbering ballots, like many others in our election laws, are declared directory in the sense that a noncompliance on the part of election officers, while rendering them guilty of a misdemeanor, will not deprive the legal voter of the right to have his ballot counted on a contest. All this is expressive of a policy to give effect to the choice of the legal voters; that democratic government shall not fail because some people violate the law. Montgomery v. Henry, 144 Ala. 629,39 So. 507, 1 L.R.A., N.S., 656, 6 Ann.Cas. 965.
But any system which strikes down one of the chief safeguards for honest elections is not substantially the same as one which provides such safeguards.
This is no matter of mere form.
Other illustrations could be given.
To amend and modernize our Constitution is a function reserved to the people themselves. It is not a function of the Legislature or the courts.
THOMAS, J., concurs in the foregoing.