(dissenting):
1. Bight of Secrecy.
In State, ex rel., v. Beggs, 126 Kan. 811, 271 Pac. 400, it was held as stated in the syllabus:
“Whatever secrecy may be guaranteed a voter by the constitution in that the voting shall be by ballot (art. 4, sec. 1) is as to the vote actually cast by him, and does not apply to or include his prior political leaning or party affiliation nor the inference that may be drawn from his expressed party affiliation.” (Syl. ¶ 3.)
I agree with the evident view of the majority in that case that the constitution requires secrecy of the ballot. Secrecy is implied from the express provisions in the constitution.
In Lemons v. Noller, 144 Kan. 813, 63 P. 2d 177, as I construe the decision, it was held that even though it be conceded that election by ballot means a secret ballot, yet the out-of-state voter, by the very act of voting, waived the right of secrecy. I think it is a fair conclusion that the waiver was out and out. I find no limitations, express or implied, in the opinion.
In the Lemons case the constitutionality of the absentee ballot statute was challenged on the ground it did not preserve the secrecy of the ballot. It was held as stated in the syllabus:
“Such right of secrecy as may be granted or preserved under article 4, section 1, reading: ‘All elections by the people shall be by ballot,’ is a right per*841sonal to the elector and may be waived by him where such waiver is not prohibited by statutory enactment.” (Syl. ¶ 5.)
In the opinion it was said:
“It is also argued that the statutes under consideration cannot be upheld because they do not preserve the secrecy of the ballot. It should be observed that the requirement of article 4, section 1, of our constitution is that ‘all elections by the people shall be by ballot,’ and not by secret ballot, and the matter of secrecy is one for legislative determination. The securing of secrecy in voting has been the result of gradual growth in the statutes, even though it be conceded that an election by ballot means a secret ballot.... In the act permitting absentee voting within the state, it is provided that ‘the board of county commissioners and the county clerk of each county wherein any vote of any absent voter is received as herein provided shall keep the fact of such vote and the person for whom the same is recorded and contents thereof secret and shall not reveal or divulge the same.’ (R. S. 25-1005.)
“In the act permitting absentee voting without the state, there is no provision with respect to secrecy.
“From the above it is clear that the terms ‘secrecy’ and ‘absolute secrecy,’ as applied to voting, must be considered not alone as being included in the constitutional provision for voting by ballot, but in view of statutory provisions subsequently enacted. It would seem the first election laws went no further than to secure to the voter a right of secrecy — it was not until the enactment of the Australian ballot law that extensive measures were taken to prevent the voter from voting openly as distinguished from secretly or that tended to prevent his waiving his right to secrecy. ... If it be said that the constitutional provision of vote by ballot means a secret ballot, does that mean that any ballot not cast in absolute secrecy is void? If so, what of our statutes with reference to preserving identity of challenged votes? And what of our statutes with reference to the physically disabled voter? And of what effect is article 5, section 4, conferring on the legislature the right to pass laws for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage? Or is it a more rational conclusion to say that the secrecy is a right granted to the citizen, which, like many other rights, may be waived? If the latter be true, then it was within the legislative power to provide that certain classes of voters, by the mere act of voting, could waive their right of secrecy. We are aware that courts of other states have arrived at contrary conclusions, but at least in some cases it is because of constitutional provisions. . . . We are of opinion that the constitutional right of a voter to east his vote in secrecy is a right which, where he is not prevented therefrom by positive statutory enactment, he may waive, and that provisions of statutes for absentee voting by certain classes of voters may not be stricken down as unconstitutional if, by fair interpretation, it may be said the voter, in casting his ballot under them, has waived his right of secrecy. So considered, the provisions of our absentee-voters laws are not unconstitutional.” (pp. 828, 830, 832.)
The court directs attention to the provision preserving secrecy of the ballot as to the absentee voter within the state, and then states *842that: “In the act permitting voting without the state, there is no provision with respect to secrecy.” The opinion then declares that it is within the legislative power to provide that certain classes of voters “by the mere act of voting, could waive their right of secrecy.” Why was the act not declared unconstitutional? The answer is found in the last paragraph of the opinion above quoted^-that the statutes for absentee voting by certain classes of voters “may not be stricken down as unconstitutional if, by fair interpretation, it may be said the voter, in casting his ballot under them, has waived his right of secrecy. So considered, the provisions of our absentee voters’ laws are not unconstitutional.” (Italics inserted.)
I submit that this is a clear and plain declaration that the out-of-state voter by the very act of voting waived his right of secrecy.
That freedom of ballot is just as essential to the perpetuity of our institutions as freedom of speech, freedom of the press and freedom of religion, few will deny.
Secrecy of the ballot must be kept inviolate — otherwise, the elector will not express his choice between candidates; otherwise, personal, political and economic pressure will corrupt the election.
In the present case it is held, as stated in the syllabus:
“The affidavit form attached to the ballot when sent out by the secretary of state, and executed, detached and placed in the identification envelope, and returned with the ballot to the secretary of state, is for the purpose of identifying the voter as being the same person who was certified by the county clerk to the secretary of state and is not for the purpose of showing the voter’s qualifications otherwise.” (Syl. ¶[ 4.)
It seems fair, then, to state that in the Beggs case a majority of this court held the opinion that secrecy of the ballot was protected by the constitution; that in the Lemons case we held secrecy was not within the shield of the constitution, but that by the exercise of the right to vote, the out-of-state voter waived the right of secrecy, and that in the present case the court has determined the waiver is only partial and not absolute.
With deference I think the absentee ballot statute violates the letter and spirit of’ the constitution, and that we should at this time so declare.
2. The Privilege to Challenge.
Secrecy of the ballot only applies to those persons qualified to vote. The disqualified have no such claim.
To protect the ballot and to insure honest-elections there must be an opportunity to challenge the unqualified- voter. -
*843The constitution of the state of Kansas specifies the qualification of voters:
“Every citizen of the United States of the age of twenty-one years and upwards — who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he or she offers to vote, at least thirty days next preceding such election — shall be deemed a qualified elector.” (Art. 5, sec. 1.)
Our statute, G. S. 1935, 25-407, provides:
“The judges of election, in determining the residence of a person offering to vote, shall be governed by the following rules, so far as they may be applicable :
“First. That place shall be considered and held to be the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.
“Second. A person shall not be considered or held to have lost his residence who shall leave his home and go into another state or territory, or county of this state, for temporary purposes merely, with an intention of returning.
“Third. A person shall not be considered or held to have gained a residence in any county of this state, into which he shall have come for temporary purposes merely, without the intention of making said county his home, but with the intention of leaving the same when he shall have accomplished the business that brought him into it.
“Fourth. If a person remove to any other state, or to any of the territories, with the intention of making it his permanent residence, he shall be considered and held to have lost his residence in this state.
“Fijth. The place where a married man’s family resides shall be considered and held to be his residence.
“Sixth. If a person shall go into another state or territory, and while there exercise the light of suffrage, he shall be considered and held to have lost his residence in this state.”
This statute was passed in 1868. For more than seventy years it has stood as the legislative standard by which to determine and protect the qualified voter, and to detect and exclude those not qualified. If this court lays down a rule whereby it becomes impossible to determine the fact of residence of the proposed voter, what becomes of this statute and the above provision of the constitution? If the privilege of challenge is gone, is there any virtue in the constitutional provision which specifies the residential qualification of the voter, or in the statute which declares who is, and who is not a resident?
Such is the grave question with which we are confronted.
The question here presented is whether a candidate or his authorized representative has the right to examine the identifying affidavit *844accompanying the ballot for the purpose of challenging the qualification of the person offering to vote.
The facts are' not in dispute. The secretary of state on application mailed to persons claiming to be electors of Kansas ballots and identifying affidavits, and about 7,000 of these ballots and affidavits have been returned to his office. The canvassing board has convened and opened the envelopes, examined the identification affidavits and segregated them from the ballots. The plaintiff, through his authorized representatives, has demanded the right to inspect these affidavits for the purpose of determining whether the voter is a qualified elector of the state. The canvassing board has refused to permit such examination, and the plaintiff has brought this action asking the court to issue a writ directing the board to permit such examination under reasonable rules and regulations.
To answer the question here presented it is necessary to read the general election laws in connection with the absentee-voter statute.
In our statute, G. S. 1935, 25-1113, it is provided that the provisions of the general election laws of this state which are in their nature applicable, shall apply to all transactions under this act.
The general election laws provide that when a voter presents himself at the voting place, that any member of the board or any elector shall have the right to challenge the qualification of such voter to cast his ballot (§ 25-408), and that upon such challenge the judges of the election, under certain procedure, shall determine his right to vote. (§ 25-411.) The statute also provides that the candidates, or their friends, may be present during the time of receiving and counting of the votes. (§ 25-421.) This is regarded as a sacred right and the court in commenting on this right guaranteed by the statute, in State, ex rel., v. Malo, 42 Kan. 54, 22 Pac. 349, said:
“The refusal of an election board, composed exclusively of the partisans of one town, in a county-seat election, to permit representatives of the opposing town to be present in the polling room during the reception of the vote, is evidence of a corrupt and dishonest purpose in the conduct and result of the election.” (Syl. ¶ 1.)
In the opinion the court said:
“It seems clearly established, also, that the refusal of the Cimarron people to allow Ingalls, and the candidates for county offices on the Ingalls ticket, to have representative friends in the polling rooms of Foote and Cimarron precincts, was because they intended to conduct the election in these townships in a corrupt and fraudulent manner. They denied to all those inter*845ested in Ingalls, and to all others who thought that for any reason the permanent county seat of Gray county ought to be located in that town, and to all those persons who were candidates for office on what was known as the ‘Ingalls ticket,’ a right clearly given them by the statutes of this state. We. consider this denial as a strong circumstance clearly indicating a fraudulent intent on the part of the Cimarron managers to dishonestly and corruptly conduct the election. And if there were no other facts pointing in the same direction, and this fact stood alone, we should require a strong showing to relieve it of that irresistible inference of bad faith and dishonest conduct that is inseparable from a refusal to let all see what was going on in the polling room. If an honest election was intended, the adverse party would be invited to inspect every act. It is an unmistakable badge of fraud, and stamps every election board that refuses inspection, with a flagrant violation of the law at the threshold of its duty, and I believe ought of itself to be sufficient to cause the rejection' of the returns of any township whose board of election pays no regard to the mandates of a law framed and passed for the express purpose of preventing and exposing dishonest practices at an election.” (p. 61.)
This case has been consistently followed in this court. (State, ex rel., v. Comm’rs of Kearny Co., 42 Kan. 739, 749, 22 Pac. 735; State, ex rel., v. Fulton, 42 Kan. 164, 22 Pac. 378.)
It has always been a fundamental principle of the election laws of this state that voting, receiving and counting ballots and all incidents in connection therewith shall be public and that the candidate, or any elector, shall have the right to challenge the qualification of any person presenting himself to vote or the correctness of the counting of any ballot. Under the Lemons case the elector has the right only to secrecy in the marking of his ballot and, as shown above, this is a right that he may waive.
In .other words, underlying the principle of free elections is the right of the candidate or any elector to challenge the qualification of another to vote and the burden is on the person offering to vote to meet the constitution and statute. When the question of the right to vote arises upon a challenge duly made, secrecy vanishes, and the least that the board can do when challenge is made is to identify the ballot and permit the elector to vote. (§ 25-413.)
With these fundamental principles in mind, the absentee statute must be examined.
The legislature conferred upon the qualified electors of the state who are actually absent from the state on election day the right to vote under certain well-defined procedure. (§ 25-1101.) If such elector finds that he will be actually absent from the state on election day he must, between and including thirty days and two days *846preceding such election, make an application to the county clerk of the county in which he is an elector for a ballot to be mailed to him at the post-office address at which he expects to be on election day. Such application shall be in the form of an affidavit and shall state the precinct in which such person is an elector, his correct post-office address and that he will be necessarily absent from the state on election day. Upon the receipt of such application it is the duty of the county clerk to determine whether such person is a qualified elector of such county and entitled to receive the ballot. If he finds that the applicant is entitled to receive the ballot he certifies that fact to the secretary of state and the secretary of state is authorized to mail to such elector, at the address given, a ballot, together with an identification affidavit. (§ 25-1104.)
The city clerk follows the same procedure in certifying to the election boards the registration record. (§ 12-913.) This, however, is not conclusive.
Our statute, G. S. 1935,12-909, provides:
“No person shall be entitled to vote at any election in any such city who is not registered according to the provisions of this act. The registration shall not be conclusive evidence of the right of any registered person to vote, but said person may be challenged and required to establish his right at the polls in the manner now required by law.”.
Upon the receipt of the ballot and identification affidavit attached thereto in the form of a stub, the elector shall on election day prepare his ballot and affidavit in accordance with the following procedure :
(а) He shall place his cross mark with ink or black pencil in the square opposite the name of each person for whom he desires to vote. He shall make no other mark and shall allow no other person to make any mark upon such ballot. (§ 25-1106.)
(б) He shall then fill out in full the affidavit upon the stub attached to such ballot, sign the same in the presence of an officer authorized by the laws of Kansas or of the United States to administer oaths and swear to the same in the presence of such officer, who shall attach thereto his certificate in due form as required by law. (§ 25-1106.)
(c) The affidavit attached to the ballot, as aforesaid, shall state clearly the place of his residence, including the election precinct and place of residence therein, and whether or not he has been duly registered, his post-office address at the time of the election, and that he personally has marked the ballot to which the stub was *847attached, and personally removed the stub after marking such ballot, and that no other person has placed any mark on such ballot. (§ 25-1102.)
(d) The voter shall then personally remove said stub from said ballot and place the same in the identification envelope bearing the same number as the ballot and stub and seal said identification envelope and enclose the same, together with the ballot, in an envelope duly sealed, addressed to the secretary of state. (§ 25-1106.)
(e) Such ballot shall be marked and mailed on election day and shall reach the secretary of state on or before ten days following such election. (§ 25-1106.)
All ballots transmitted to the secretary of state under the provisions of the act shall be canvassed by the state board of canvassers at their first regular session following such general election. “No ballot shall be counted unless marked and transmitted as required by this act.” (§ 25-1109.) This is mandatory. The board has no discretion. (Hooper v. McNaughton, 113 Kan. 405, 214 Pac. 613.)
It will be observed that there is no provision in this statute for the secrecy of the ballot and this court so stated in the Lemons case, supra, where it said:
“In the act permitting absentee voting without the state, there is no provision with respect to secrecy.” (p. 830.)
The only suggestion of secrecy in the statute is the requirement that the identification affidavit shall be put in a separate envelope. This implies that when the canvassing board canvasses the ballot they shall first examine the identification’affidavit. This affidavit is the constructive appearance of the elector offering to cast his ballot. From this affidavit the canvassing board must determine whether the person making the same is a qualified elector. It stands in the same position as does the person when he presents himself to the election board in his precinct.
In Lemons v. Noller, supra, the court had before it the question of the constitutional requirement that the elector vote in the township or ward in which he resides, and said:
“That it was within its constitutional power for the legislature to provide that an offer to vote in the township or ward in which the elector resides, could be made by subscribing to the affidavit prescribed in the statutes.” (p. 827.)
Under these circumstances, the identification affidavit being a constructive appearance of the voter, the general election laws must *848necessarily apply and any elector, candidate or friend of the candidate has the right to examine the affidavit and challenge the right of the person making the affidavit to vote. If the affidavit should show that the elector has ceased to be a resident of the state of Kansas or the ward or precinct in which he is registered, then in that case he has no. greater right to vote than if he appeared in person in such ward or precinct, and it is the duty of the board to reject his ballot. This procedure in no sense disturbs the secrecy of the ballot. The objector bases his objection upon the affidavit or such other information as he may have and in making such challenge he does not know for what persons the ballot is cast. His objection goes to the qualification of the person appearing constructively to vote.
The facts in this case are undisputed. The affidavits which plaintiff desires to examine have been and'are segregated from the ballots. An examination of those affidavits will in no manner violate the secrecy of the ballot, if under the Lemons case it can be said that an absentee out-state ballot is a secret ballot. If, upon examination of-an affidavit, objection is made to the qualifications of an elector, that objection will necessarily be made without knowledge of what the ballot discloses.
It would seem that the constitutionality of the absentee-voter law in this state was decided by this court in the Lemons case on the theory that the affidavit which accompanies the absentee ballot was the constructive appearance of that voter in the voting precinct and before the election officials. A candidate or his representative certainly has the legal right to challenge the qualifications of an elector when he thus appears, whether such appearance be actual or constructive.
This question was before this court in our recent case of Hansen v. Lindley, 152 Kan. 63, 102 P. 2d 1058. In the syllabus of that case it was stated:
“In an election contest the contestor contended that the ballots of certain voters who were outside of the state on election day, voted outside the state and mailed their ballots to the county clerk, should not be counted on account of certain defects appearing on the face of the accompanying affidavits. The ballots and accompanying affidavits were introduced in evidence before the trial court and are before us. They are examined, and it is held that where the irregularities were mere clerical errors or' formal mistakes they were not sufficient to render the ballots invalid.” (Syl. ¶ 2.)
*849In the opinion it was said:
“The objection of Hansen to the group of ballots we are now considering is that the persons who cast them were not actually residents of the state, hence could not be qualified electors of the state. The qualifications for electors are fixed by article 5 of the state constitution.” (p. 67.)
After quoting section 1, article 5 of the constitution, also section 25-407 (hereinabove quoted), the opinion then stated:
“The above section refers to the judges of election when a vote is challenged and was intended as a guide for them. The first opportunity a candidate has to challenge a mailed-in vote, however, is when the fooard oj canvassers is considering it. Hence, there is no reason why the above section should not be a guide to the board of canvassers, to■ the contest court, and on appeal to the district court and to this court. After all these provisions are examined, it becomes clear that the question of whether a particular person is resident so as to make him a qualified elector is one of fact. It was so treated in this case. As has been pointed out heretofore, the trial court heard evidence on this question as to each of the ballots about which this argument is made. The court found in effect that the persons who cast these ballots were residents of the precincts of which they claimed to be residents. We have examined the record, including the transcript, and have concluded that the above finding of fact was proved by substantial, competent evidence in regard to each ballot about which the question is raised.” (Italics inserted.) (p. 68.)
In'the majority opinion in the present case, it is stated that the affidavit is “for the purpose of identifying the voter, as being the same person who was certified by the county clerk.”
But identification is not the test of the right to vote. Under the constitution the qualified voter must have lived in the state six months and in the township or ward at least thirty days next preceding the election. Identification is important in determining the question of residence, but does not qualify the person identified to vote. The candidates for governor may be known to every election judge and voter in the state, but can vote only at their place of residence. It would seem, therefore, that if the only office or function of the affidavit is to identify the voter, the requirement of the affidavit is void of meaning.
It is submitted that under this ruling the privilege to challenge the unqualified voter ceases to exist. American democracy has developed under a two-party system. When at an election the watchful eye of the opposite party is averted either by force, by fraud or by rule of law, freedom of election is destroyed.
I think the writ should be allowed.