concurring: Tbe plaintiffs' contend: 1. Tbat tbe statute violates -the Constitution, which contemplates a secret ballot. Tbe Constitution, Art. VI, sec. 6, in providing tbat all elections by tbe General Assembly shall be viva voce, and tbat all elections by tbe people shall be by ballot, intended tbat voting in tbe Legislature should be open and known to all men tbat tbe people might have a check upon tbe actions of their servants, and tbat voting by tbe people should be in secret, to tbe end tbat tbe humblest voter shall express bis will uninfluenced and unintimidated, for be is responsible only to himself, while *176the members of tbe Legislature are tbe agents of, and accountable to tbe people for tbe discharge of their duty in voting. Tbe secrecy of the-ballot, however, is a privilege that is entirely personal to tbe voter, wbieb be can waive. Boyer v. Teague, 106 N. C., 625; McCrary on Elections; (3 ed.), pp. 305, 306. The voter himself can voluntarily waive this, privilege. Cooley Cons. Lina. (7 ed.), p. 912.
Sending tbe ballot by mail is a waiver of this privilege. This is a matter for tbe voter, and tbe officer is authorized to receive it for the Rev., 4343, C. S., 5979, expressly provides, “Tbe ballot may be deposited for tbe voter by tbe registrar, or one of tbe judges of election, or tbe voter may deposit it himself if be chooses.”
2. Tbe plaintiffs also contend that the Constitution requires that tbe voter must be present in person when he “offers to vote.” The Legislature provides that this can be done by mail, and this is not forbidden by tbe Constitution, which requires that tbe voter must “present” himself, that is, bis personal attendance for registration, but does not require this for voting.
3. It was denied by President Jefferson, President Jackson, and those who have followed their views, that tbe Courts have tbe power to declare legislation invalid in any case except when, as is provided in tbe U. S. Constitution, Art. YI, cli. 12, State legislation conflicts with tbe supremacy of some provision of tbe Federal Constitution, or statutes enacted under tbe authority of tbe same. But even those who bold that there is an implied power of tbe Courts to bold any legislation unconstitutional, have always conceded that this power could not be exercised except where tbe unconstitutionality is “clear beyond a reasonable doubt.” Ogden v. Sanders, 12 Wheaton, 213; Cooley Cons. Lim. (7 ed.), 254.
This presumption of tbe constitutionality of this act cannot be overcome in view of tbe fact that in 43 of tbe States out of'tbe 48 there are statutes which in some form confer tbe right on absentees to vote.
In our own State, and in probably all tbe States, North and South, such right was conferred upon our soldiers during tbe Civil War, and it is a historical fact that by virtue of tbe vote thus cast by tbe -soldiers, Zebulon B. Nance was elected Governor of this State in 1862, and Abraham Lincoln was reelected President in 1864.
Tbe method of absentee voting enacted at that time by this State, and by most others, authorized tbe soldiers to cast their ballots out of tbe State, in elections to be held by officials who may or may not have been citizens of tbe State, and without tbe safeguards of registration or challenge, and tbe votes were sent usually to some State officer for distribution to tbe various precincts where tbe voters were entitled to vote. This gave wide latitude for abuse and irregularity, and as pointed out in tbe *177opinion of tbe Court in tbis case, tbe few opinions wbicb held sucb absentee voting invalid, were based upon sucb reasons.
Tbe statute of tbis State now in question, and probably all those in force in other States have avoided these objections by various requirements, sucb as tbe due registration of tbe voter and tbe authentication of bis ballot by a notary public, postmaster, or other officer, and tbe sending of bis ballot himself in a sealed envelope direct to tbe registrar' and tbe judges of election of tbe precinct where be is entitled to vote, to be opened by them at a given hour on tbe day of election (in tbis State at 3 p. m.), and to be placed by them in tbe ballot box as requested, wbicb last was authorized as long ago as Laws 1901, cb. 89, sec. 24; Bev., 4343, now C. S., 5979.
Tbe real gravamen and basis of tbis proceeding is tbe statement in tbe plaintiffs brief admitting that “Tbe absentee voters’ law was undoubtedly passed for tbe meritorious purpose of allowing our soldiers absent in tbe great war to vote. Tbe soldiers are at borne, and tbe meritorious purpose is past. Tbe statute remains, shorn of its meritorious features, and divested 'of every safeguard wbicb might prevent it from becoming an instrument in aid of fraud and illegal voting.”
In a country like ours, whose government is based avowedly upon tbe “consent of tbe governed,” a full and free declaration of that will, and its return as cast is of tbe utmost importance. Any tampering therewith by any method whatever, whether by bribery, intimidation, voting illegally, making fraudulent returns, or any other misconduct on tbe part of election officials, voters, or any others, is made punishable severely by our statutes, C. S. 4185-4199, some of these offenses being made felonies, and others misdemeanors, and tbe same is true in other States, some of wbicb have tbe further safeguards of voting machines and tbe Australian ballot.
Our statute, empowering absentees to vote, was first enacted, Laws 1917, cb. 23, to authorize “any elector who may be absent from tbe county in wbicb be is entitled to vote” to fill in bis ballot on blank certificates, and return in envelopes, furnished by tbe State Board of Elections to tbe county boards, and by tbe latter sent to tbe absent voter. Tbe statute was extended, Laws 1919, cb. 322, to include any elector who is “physically unable, for tbe purpose of voting in person, to attend, wbicb fact should be made to appear by certificate of a physician or by affidavit.”
All tbe provisions in regard to tbe voting of absent electors will be found in C. S., 5960-5969, wbicb throws around tbe exercise of tbe privilege every safeguard against fraudulent abuse by impersonation of voters or in any other manner. Even if the act.gave additional opportunity for fraud, tbis would not make it unconstitutional, but would *178address itself to tbe Legislature, either to make the legislations more strict, or to repeal the statute;, but it is not to be presumed that the General Assembly of this State would enact a statute calculated to increase the opportunities of fraud at elections, nor that such measure would so commend itself to the general intelligence that 43 States should have enacted similar legislation. In truth, it diminishes the opportunities for fraud, as the ballots are sent in by the absent voters and are subject to challenge, and are kept on file for six months. They are authenticated by the signatures of the voters, thus giving the fullest opportunity of indictment for any fraud.
While there are a few decisions against the legality of the acts passed during the Civil War, which restricted the voting of absentees to soldiers, and permitted polls to be opened in camp, the decisions as to the present method have been in favor of its constitutionality. Morrison v. Springer, 15 Iowa, 304; Lehman v. McBride, 15 Ohio State, 573; S. v. Main, 16 Wis., 398. Probably the only decision to the contrary has been in California, to cure which the Legislature has submitted an amendment to the Constitution, which will be voted On at the general election next month. The Federal House of Representatives has held these statutes constitutional so far as they affect the election of members of that body. Baldwin v. Trobridge, 2 Bartl. Cont. Election Cases, 46.
The ordinance allowing the North Carolina soldiers to vote in camp (which is a type of acts passed by the Southern States generally) was enacted in June, 1861, by'the State Convention, which was admittedly one of the ablest bodies ever assembled in the State, and contained many of the foremost lawyers of North Carolina. Its constitutionality was never questioned by any one, though the Constitution then in force required the elector “To vote in the county where he resides.”
The “absentee voters” statutes have been passed in this State (and in nearly all others), not for the purpose of giving opportunity for fraud in elections, which would be inconceivable, and to assert the contrary would be a libel on imblic opinion throughout the country, which demands fair elections and an honest return of the votes as cast. These statutes have been enacted for the purpose of procuring a fuller expression of the public will at the ballot box. In North Carolina we rarely have secured a vote cast of more than 70 per cent of the eligible white voters in the State, the other 30 out of every 100 eligible white voters being absent by reason of indifference, or detained by work, or business, or illness, or physical disability.
In Philadelphia 60 per cent of the possible vote is th'e average vote cast, which is about the average throughout the country. In Virginia 40 per cent of the possible total is the average vote east, and in Mississippi (where the primary is the real election), only 10 per cent of the *179full vote is cast. Tbe system of absentee voting wbicb originated in bebalf of tbe soldiers, wbo, it was felt, should not be disfranchised by reason of their absence in the discharge of duty, received a strong impulse from the action of the Travelers’ Protective Association, who urged that they should not be deprived of the franchise while traveling as commercial agents. Nor should any one be deprived of the franchise by reason of temporary or permanent physical disability.
This legislation, intended for fuller expression of public opinion at the ballot box, and carefully guarded in’ its exercise by statutes in all the States, should not be misconceived-as an invitation to fraud.
As a proof of the widespread demand and need for such legislation, the following memorandum of the statutes in the different states is appended.
States Having Absentee Noting Laws.
Alabama, 1919. Act 620.
Arkansas, 1917, Act 175; 1919, Act 403.
Arizona, 1918, Special Sess., ch. II.
California, 1917, 710; Ees. 64.
Colorado, 1915, ch. 76.
Connecticut, 1918, Special Sess., ch. 1 (Military).
Delaware, Special Sess., ch. 4 (Eegistration).
Florida, 1917, ch. 7380.
Georgia, 1918, No. 335 (Military).
Idaho, 1917, ch. 142.
Illinois, 1917, p. 434; 1917, p. 440 (Military).
Indiana, 1917, ch. 100; 1919, chs. 156-170 (counting ballots).
Iowa, 1915, Code Supp.’, eh. 3-b, tit. NT; Am. 1917, ch. 419.
Kansas, 1919, ch. 189; 1913, ch. 194 (Military).
Kentucky, 1915, Carroll’s Stat., 1456, etc.; 1918, ch. 37.
Louisiana, 1917, Act 34 (Military) ; 1918, 272, id., 264 (Eegistration). Maryland, 1918, ch. 20 (Const. Am.) ; id., ch. 78 (Military). Massachusetts, 1918, ch. 293, 295 (Military).
Michigan, 1915, Act 270; 1917, 203, ch. 12, p. 427; 1919, 45. Minnesota, 1916, Special Sess., ch. 2 (Military) ; 1917, 'chs. 68, 120. Mississippi, 1917, Ex. Chap. 35, Am; 1918, ch. 184.
Missouri, 1917, pp. 274, 276 (Military); 1917, p. 287; 1919, p. 763. Montana, 1917, ch. 155; 1918, ch. 18 (Military). .
Nebraska, 1913, ch. 200; 1917, ch. 177; 1918, ch. 1; 1919, ch. 7.
North Carolina, 1917, ch. 23; 1919, ch. 322.
North Dakota, 1913, ch. 155; 1918, ch. 6 (Military).
New Hampshire, 1917, ch. 95 (Military).
New Jersey, 1918, ch. 150.
*180New York, 1918, cb. 298; 1919, Con. Res., p. 1791 (Cons. Am.).
Obio, 1917, p. 52.
Oklahoma, 1916, cb. 25; Am. 1919, cb. 88; 1917, cb. 15.7; Am. 1919, cb. 65 (Military).
Oregon, 1919, cb. 361; id. S. J. R., No. 23, p. 835 (Cons. Am.).
Rhode Island, 1918, cb. 1610 (Registration), cb. 1657 (Military) ; Res. No. 1, p. 278 (Const. Am.).
South Carolina, 1918, No. 574 (Military).
South Dakota, 1913, cb. 200; 1917, cb. 233; 1918, Sp., cbs. 45, 46; 1919, cb. 189.
Tennessee, 1917, cb. 104; 1919, cb. 71 (Registration).
Utah, 1919, cb. 42, p. 102.
Vermont, 1919, No. 7 (Military).
Virginia, 1916, cb. 369.
Washington, 1917, eb. 159.
West Virginia, 1917, 2d Extra Sess., cb. 13 (Military) ; 1919, eb. 100.
Wisconsin, 1915, cb. 461; Am. 1915, cb. 604; 1916, Special Sess., cb. 1; 1918, Special Sess., cb. 16 (Military) ; 1917, cb. 570.
Wyoming, 1915, cb. 102.
In several of these States the electors can also register by mail.