I am unable to agree that sec. 3, chap. 2151, P.L. 1948, is constitutional. That section restricts the use in an election of the party lever on voting machines to members of certain political parties only.
The following well-known rules of construction, so fully stated and supported by authority in the foregoing opinion, are admitted. The wisdom of a particular statute is not a question for the court so long as it is within the constitutional power of the legislature, and no motive or purpose, other than appears upon the face of the statute, can or should be imputed to the legislature. Also, the courts approach constitutional questions with great caution and they will not declare a statute unconstitutional unless, in their judgment, its invalidity on such ground is established beyond reasonable doubt. But, notwithstanding these general rules of construction, the constitution is above a statute and if the two are in conflict it is the duty of the court to declare the statute unconstitutional, however reluctant it may be to so declare.
It is stated in the main opinion that these cases have aroused considerable public interest because, as the court there interprets petitioners' contention, the law is harsh and unwise. I agree that the cases have aroused public interest but I disagree with the ground that is assigned therefor. In my judgment the public is vitally interested in the question at issue because the provision under examination is a discriminatory invasion of the elective franchise, and not because such provision is merely harsh and unwise.
These cases do not concern a claim of right to a party lever by a single candidate, nor are they concerned with *Page 196 the difficulty that a voter, unaffiliated with any party, may encounter in selecting candidates of his choice and thus make up a personal ticket of his own. The question at issue here is whether the legislature has the power to grant the use of a party lever on voting machines to members of a political party as defined in the statute, hereinafter called a recognized party, so that such members can vote a straight party ticket by merely operating that lever, and to deny the same or substantially equal facility to the members of an independent political party, organization, or group of electors, hereinafter called a minority party, which does not come within such definition but whose ticket is entitled as of right to be upon the official ballot. Since no candidate for federal office was here involved, I agree that article XIV, section 1, of the amendments to the United States constitution does not apply in the instant cases. The question at issue here is controlled solely by article II, sec. 6, of the constitution of this state.
Section 1, chap. 2151, P.L. 1948, is as follows: "The term `party' or `political party' shall mean any political organization which at the preceding general election polled at least 5 per centum of the entire vote cast in the state for governor." Section 3 of that chapter, which raises the question in these cases, provides that in the preparation of the voting machines for use in every election or primary the board of elections shall cause the devices, commonly referred to as party levers, over each of the columns containing candidates of political parties, as defined in section 1. "to be adjusted so asto permit any voter to vote for all candidates of the respective party whose names appear in said column by means of a single operation." (italics ours) It then proceeds to provide that all such devices over columns which do not contain candidates of political parties as defined in section 1 "shall belocked in such manner as to prevent voting by use of such party devices." (italics ours)
The language of the two sections just mentioned is clear. The legislative intent and purpose as therein expressed is *Page 197 to confer a special privilege in the manner of voting to voters desiring to vote the straight ticket of a recognized party and to deny the same or similar privilege to voters of a minority party who intend to vote the straight ticket of that party. The petitioners contend that legislation leading to such a situation is pure discrimination, in that its direct and inescapable result is to interfere with free elections by unnecessarily abridging or impeding the constitutional right of a voter to cast his vote on a substantially equal basis with every other voter.
Article II, sec. 6, of our constitution, entitled "Of the Qualifications of Electors," provides that "The general assembly shall have full power to * * * prescribe the manner of conducting the elections * * * and generally to enact all laws necessary to carry this article into effect, and to prevent abuse, corruption and fraud in voting." In my opinion the ultimate object of this provision, like all constitutional provisions of a similar nature in this country, is to guarantee to our citizens a democratic form of government, as we understand it, through an equal opportunity and with the same facilities, in so far as reasonably possible, to cast their respective votes for a party ticket lawfully before them for election. It is inconceivable to me that the framers of our constitution intended to give the legislature power to extend special facilities in voting for a straight ticket to members of one party and to deny the same or equal facilities to the members of a minority party which did not meet the changeable legislative definition of a political party. Whether a party is a recognized or minority party, the constitution demands equality of treatment in the facilities that are afforded to members of both parties in the matter of straight party voting. To hold otherwise tends insidiously to subvert our time-honored belief in free elections with equal opportunity for equally qualified electors to express their will without discrimination under substantially the same conditions. *Page 198
This fundamental principle of our political life permeates innumerable decisions of our courts and the writings of eminent authors on constitutional matters. In 2 Cooley's Const. Limit. (8th ed.) 1370, we read as follows: "All regulations of the elective franchise, however, must be reasonable, uniform, and impartial; they must not have for their purpose directly or indirectly to deny or abridge the constitutional right of citizens to vote, or unnecessarily to impede its exercise; if they do, they must be declared void." In Matter of Callaghan v.Voorhis, 252 N.Y. 14, where a question involving voting machines was at issue, the court at page 17 said: "The whole purpose of the Election Law and of the Constitution under which it is enacted, is that, within reasonable bounds and regulations, all voters shall, so far as the law provides, have equal, easy and unrestricted opportunities to declare their choice for each office. Section 249 of the Election Law is constitutional except in those instances when to apply it would be unfair and prejudicial to a particular class of voters."
In Matter of Crane v. Voorhis, 257 N.Y. 298, the court, again speaking with reference to the use of voting machines, at pages 303 and 304, said: "The Election Law is aimed to afford facility for ready voting as well as to guard against illegal and dishonest practices. All voters within reasonable regulation must have the same opportunity or else they are disenfranchised within the spirit and meaning of the Constitution. Provided all have anequal start and fair opportunity to make their independent choice, irrespective of what that choice may be, we must abide under our form of government by the result of the election. The choice, however, of our representatives who rule us must at least, so far as the law itself can make it, be free, open andunrestricted to all. Regulations and restrictions there must be, but these must apply to all alike and not create conditions which make it easy for one but difficult and confusing for another." (italics ours) *Page 199
As a matter of fact there is no need to go outside our own state for authority on the point under discussion as in the recent past we have expressed ourselves substantially to the same effect, though not so fully as the New York court did in the above-cited cases. In Cahir v. Cote, 72 R.I. 188, this court granted the petitioner the right to have the ticket of a minority party aligned in one column on the voting machine for voting that ticket by use of the party lever. Although the decision in that case preceded the enactment of chap. 2151 now under consideration, yet what we there said concerning the intent and purpose of the election laws is just as sound today as it was then. At page 192 of that opinion this court said: "The spirit of the election laws requires that a political party that complies with the law in making its nominations of candidates is entitled to receive from the secretary of state, so far as reasonably practicable, the same general treatment that is given by him to other political parties in the matter of making up the diagram and ballot labels for use in the voting machines." This same principle of equality between recognized and minority parties was expressly reaffirmed in Cahir v. Lamarre, 72 R.I. 193, 195;Moses v. Cote, 72 R.I. 196; Fleischer v. Cote,74 R.I. 68.
One of the arguments advanced in the main opinion to support the constitutionality of sec. 3, chap. 2151, is that the legislature may require as a condition precedent "to appearing on the official ballot as a political party" that a group of candidates shall have secured at the preceding election a reasonable percentage of the total vote cast for governor. From such premise it is concluded that a fortiori the legislature may restrict the use of master levers and emblems to a political party which had polled the prescribed percentage of the vote cast for governor, "so long as reasonable facilities to vote for other groups of candidates on the ballot were not denied." In plain language such an argument begs the very question in issue in these cases. A voter belonging to a group of electors or a political *Page 200 organization which does not qualify as above stated is not to be subjected to discrimination in the facilities offered him for casting his vote. Within the limits of reasonable possibility, every voter is entitled to the same or equal facilities in theactual casting of his vote. To restrict one group of voters merely to "reasonable facilities to vote," whatever such phrase may mean, and to grant greater facilities in that respect to another group on the sole ground of the numerical strength of their respective parties is an invasion of the elective franchise.
Our constitution undoubtedly gives the legislature power to prescribe the manner of "conducting" the elections, but to say that under such provision it has by implication the power to impede a voter in the actual exercise of the franchise through the medium of a legislative definition of what shall constitute a "political party" is beyond a fair interpretation of that language. The legislature may designate, among other things and within the bounds of reasonable discretion, what position a recognized party shall have on the official ballot, the place and hours for voting, who shall act as officials at the polls, how and to whom the returns shall be made, and other matters of a similar nature, all of which are in furtherance of holding orderly elections and thus "prevent abuse, corruption and fraud in voting," as the constitution prescribes. Section 3, chap. 2151, goes far beyond the scope of legitimate and reasonable regulation in the manner of conducting elections and instead of preventing abuse in voting it strongly tends otherwise.
Furthermore the proposition under discussion is in our opinion inconsistent with the whole course of our political life. In this country the right of voters holding common political beliefs to advocate their views through party groups or organizations for peaceful determination by the electorate in an election has never been questioned to my knowledge. A two-party system may be envisioned by those so minded, but it does not follow that such result may be accomplished by legislative fiat through discrimination *Page 201 between equally qualified voters in the exercise of the franchise. The electorate itself must ultimately determine that question. In the meantime a minority party should not in effect be legislated out of existence by a law that discriminates in favor of a recognized party.
Another reason advanced in the main opinion to support the constitutionality of sec. 3 is that the legislature may have enacted that section in contemplation of some imaginary future situation wherein voting machines might prove inadequate to furnish a party lever to all political parties entitled to appear upon the official ballot. In the absence of circumstances fairly open to such an assumption, considerations of that character amount to nothing more than pure speculation. The statute itself makes no mention of the existence of any such condition, nor was any claim of that nature advanced in the argument to us in these cases. In fact it was then conceded that the voting machines had more party levers than were required for use by recognized parties and all these petitioners.
Assuming, however, that the voting machines were inadequate as suggested, the situation thus raised should not be solved by imposing restrictions upon one class of voters to the advantage of another such class. There are means, unnecessary to mention now, by which every voter may be given the same or similar facilities in casting a straight vote for a party ticket. Mere inconvenience in providing substantially equal facilities for voters of all parties to vote a straight party ticket furnishes no ground for discrimination between voters of the various parties respecting the facilities accorded them for party voting.
Before concluding this dissent it is well to note here that the cases of Todd v. Boards of Election Comm'rs, 104 Mich. 474, Oughton v. Black, 212 Pa. 1, and People ex rel. v.Hoffman, 116 Ill. 587, upon which the main opinion strongly relies and quotes extensively therefrom, are clearly distinguishable in their facts from the instant cases and are therefore of doubtful value in determining the issue at bar. It *Page 202 is unnecessary to mention the precise question before the court in the above-cited cases as it is sufficient to point out that a close reading of those cases will disclose that in each of them the voters of all parties had an equal opportunity to vote a straight party ticket under the same conditions.
Special attention is here directed to Matter of Hopper v.Britt, 203 N.Y. 144, where, at page 152, the court said: "While the Constitution does not guarantee that the elector shall be allowed to express his vote by a single mark, our position is that he is guaranteed the right to express his will by a single mark if other voters are given the right to express theirs by a single mark and there is no difficulty in according the right to all." In that case the court refused to follow the reasoning inTodd v. Boards of Election Comm'rs, supra, and at page 155 further intimated that the Michigan court itself had apparently modified its views as expressed in the Todd case when it used the following language in the later case of Dapper v. Smith,138 Mich. 104: "`The authority of the legislature to enact laws for the purpose of securing purity in elections does not include the right to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise.'"
In my opinion sec. 3 of chap. 2151, which grants a party lever to voters of a recognized party and denies it to the voters of a minority party properly on the ballot, is not, as stated in the main opinion, "an indirect regulation upon the manner of holding elections," but rather plain discrimination between equally qualified voters in the actual exercise of their elective franchise. Such legislation instead of preventing abuse in voting, as the constitution commands, clearly violates that mandate. I am therefore constrained to hold that sec. 3, chap. 2151, P.L. 1948, is unconstitutional in that it is inconsistent with and violative of article II, sec. 6, of the constitution of this state.
BAKER, J. concurs in the dissenting opinion of Mr. Justice Capotosto. *Page 203