Election Reforms: the Trend Toward Democracy

• Author: J.C. Ruppenthal
• DOI: 10.1177/000271620602800305
• Published date: 01 November 1906
• Date: 01 November 1906
• Subject Matter: Articles

ELECTION REFORMS: THE TREND TOWARD
DEMOCRACY
BY J. C. RUPPENTHAL
[Address delivered before the Bar Association of Kansas. Printed from the report
of the Association with the consent of the author.]
]
Broadly speaking, election is simply choice. In a narrower
sense, the term is limited to the choice of persons for political offices,
or for nomination to such offices, by the people, or by a somewhat
numerous body as distinguished from appointment by a single per-
son ; or the determination of other questions submitted by law to
popular vote.’
This paper seeks to present the general features of American
laws in the nature of election reform, in the narrower sense, with
especial reference to the decisions of the highest courts thereon.
When the thirteen original American colonies revolted against
the mother country, their government was essentially that which
had been evolved in a thousand years of struggle and conflict in
England. But in details, there was as wide divergence as could
well be imagined among people of practically common origin, race,
religion and language. With the more permanent union under the
federal constitution came an impulse to conform much govern-
mental procedure to a common standard. Especially was this true
in the matter of elections.2 After one hundred and thirty years of
trial and change, nearly all of the states vote on the same day,
choose representatives in Congress, and presidential electors, as well
as most other officers in the same manner, and do not differ very
widely in methods of voting. The qualifications of electors are
somewhat diverse, though probably less so than at the beginning,
and everywhere the right of suffrage has been widely extended.
The period of active assimilation to common standards lasted to the
1
See 10 Amer. and Eng. Encyc. Law, p. 562.
2
The people have no inherent power to hold elections. 10 A. and E. Enc. Law,
p. 563; State v. Robinson, 1 Kansas 17 ; Jones v. State, 1 Kan. 273 ; State v.
Thoman, 10 Kan. 191; Matthews v. Shawnee. Co., 34 Kansas 606.

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54
time of the civil war. Then the universal, extended and heated dis-
cussion of human rights, the fury of partisanship, the passions
engendered in the great internecine conflict, the adoption of the
thirteenth, fourteenth and fifteenth amendments, and following all
this, the expansion of the nation in wealth and power, together
with the accumulation of colossal fortunes and the growth of cor-
porate importance and influence-all led to the trial and testing of
the most fundamental and long-established rights of man, while
every new measure in law, has had to run the gauntlet from the
preliminary proposal in caucus, convention, primary, or elsewhere
to the final decision thereon in the highest judicial tribunal. There
was no final judicial inquiry into the right of suffrage until in
1857 in New York, and in 1859 in North Carolina; but such became
numerous in the reconstruction period.
From questioning new
rights of black men, it was a short step to attacking old rights of
white men.
How the matter of popular elections has grown in importance
may in a degree be illustrated by the court decisions. The syllabi
up to September I, 1896, in all state and federal cases affecting
elections, occupy 553 columns of a digest; and for the eight and a
half years immediately following, up to April 1, 1905, 396 columns
are so filled.3
Seemingly nearly four-fifths as many points relative
to the elective franchise have been passed on in less than a decade,
as in the earlier one hundred and twenty years of free government.
Except in one instance,’ no question reached a court of last resort
prior to i8go on such matters, as the Australian ballot, factional
nominations, and nomination papers, while in that year four such
cases. were decided in the New York court of appeals alone, and
others in Montana and Missouri.
In the earlier, simpler, primitive days, an important aim was
the securing to each state its rights, real or fancied; latterly more
attention has been given to the rights of the individual to an
effective share in government from its beginning in primary elec-
tion, caucus, convention, or otherwise, within a party or without it,
and continuing until his wishes are at last crystallized in the form
of laws, and to protection against fraud, violence and intimidation
while exercising the prerogatives of an enfranchised citizen. Not
3
American Digest.
4 Kentucky, 1889, on the Australian ballot for City of Louisville.

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55
unknown are instances of denying rights already possessed, and
restricting privileges long exercised.5 There has been tyrannical
suppression of individuals and classes. But the sweep of the years,
though slow-moving, has been in consonance with the Declaration
of Independence-&dquo;to secure these rights (to life, liberty and the
pursuit of happiness), governments are instituted among men,
deriving their just powers from the consent of the governed.&dquo;
In the recent movement for election reforms, four lines of
advance are marked: First. To secure the voter, by protecting him
from evil influences, as is the object of the various &dquo;corrupt prac-
tices acts,&dquo; and kindred laws, or by guarding him against fraud,
intimidation and overawing, by means of an absolutely secret ballot,
as under the Australian system; and by preventing as with voting-
machines, any manipulation of ballots or count.6 Second. To extend
the franchise by reducing the qualifications of electors, and so mak-
ing suffrage more nearly universal, as in the fifteenth amendment,
and the laws enabling women to vote. Third. To increase popular
control over officials and their acts, and over law-making, and over
the initial steps in making nominations, as in making offices elective
instead of appointive, in adopting the initiative and the referendum,
and the recall, and in prescribing legal forms for primary elections
and making nominations. Fourth. To secure more equitable repre-
sentation of every individual, class, party or interest; to avoid the
despotism of a majority, or, worse yet, a plurality; and to prevent
the practical effacement of minorities.
I. To preserve the purity of elections, many states have &dquo;cor-
rupt practices acts&dquo; forbidding the purchase of votes, directly or
indirectly, by candidates, committees or others, with money, intoxi-
cating liquors, cigars, promise of offices, or otherwise. Some limit
the amount of expenditures of candidates,’ others require detailed
sworn statements of campaign outlays to be publicly fired.8 Presi-
dent Roosevelt in at least his last two messages urged Congress to
enact stringent laws to prevent bribery and corruption in federal
5
In 1835 North Carolina adopted a new constitution which took from free
negroes the right to vote, which they had enjoyed from 1776.
6 Incidentally venality is much discouraged by the uncertainty whether the vote-
seller carries out his promise to "deliver the goods."
7
Kansas Laws 1903, ch. 230, emasculated its corrupt practices law of the power
to require sworn statements of expenses.
8
Campaign expenses before the primaries are limited in Ohio and California.

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56
elections, and to secure publicity of the expenses of candidates, par-
ties and committees, and of the sources of contributions.9
Voting was doubtless at first viva voce. In some states, par-
ticularly in the South, elections were so conducted for many years,
and in Kentucky this was in accordance with a constitutional pro-
vision.~° For a number of reasons, however, voting by ballot was
adopted in all the states, either originally, or superseding the viva
voce method.~l
The written or printed ballot was gradually perverted to such
degree that in 1857 the legislature of South Australia adopted an
ofhcial secret ballot, printed and paid for by the public, and wholly
controlled and handled by public officers,. The idea was speedily
carried to England, spread over continental Europe, and at a some-
what later date reached the United States, where in some form,
almost everywhere modified, it has become part of the electoral
machinery in every state under the name of Australian ballot. 12 On
9In England and Canada similar laws have been enforced with great strictness,
but in the United States, they are, in no inconsiderable degree, dead letters. A
prosecution in North Carolina under Code, sec. 2715, which makes it a misdemeanor
to injure, threaten, oppress or attempt to intimidate a voter at any election, was
held properly quashed, where it appeared that the defendants expelled a voter from
the church of which they were members, because he voted the Democratic ticket
at a certain election.
The court said that the voter had suffered no pecuniary
loss, personal injury, or physical restraint by his expulsion. (1901) State v. Rogers,
128 N. C. 576; 38 S. E. 34. It can scarcely be doubted that in some denominations
where membership is very highly regarded, excommunication for political reasons
might become a potent engine of oppression and intimidation.
10
Const. Ky. art. 8, sec. 15: "viva voce vote in all elections." Viva voçe vote is
common in legislative assemblies.
In Michigan and elsewhere, recent laws govern-
ing political conventions, require viva voce vote by delegates to make sure that they
vote as instructed.
Kentucky Stat. 1899, sec. 4467, provides for a vote on graded
common school tax, which has been construed (1903) to require a viva voce vote.
Sisk v. Gardiner, 74 S. W. 686. Voting in town meetings is often by the voice,
and also...