Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1912-03-23
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Dear SIT. we nave your ldVOi VI
March 18th, relative to chapter 213
of the laws of 1871. You cal! our at
tention to paragraph l of this act,
wherein electors are required to sub
scribe an affidavit which must have
attached to it or exhibited to the as
SCISSOR at the time of registration, the
naturalization papers of the elector,
,, if he has been naturalized.
1 have had this act under careful
consideration and study for some
time, and have come to the conclu-
sion that it is unconstitutional and
! void, with possible exception of
| section thereof. No request has
been made of the Attorney General
to render an official opinion as to
the constitutionality of this statute,
but we have had it under considerar
ton, expecting that it would be
called in question.
Under the constitution of California
when it was substantially like ours
as to the qualifications Of electors,
acts in a degree similar to this one.
but not nearly so burdensome and
discriminatory against certain class
es, we're held unconstitutional.
See Marsh vs.. Supervisors, Ill Cal.
1858; 49 Pac. 975; Spier vs.. Baker, 120
Cal. $40; 50 Pac. $50; Al i. H. A. 1856.
Also Britton vs.. Board of Election
Commissioners 1919 Cal. 337; 81 Pac.
11l5;51 L. r.. "A. us.
Thereafter they amended the con-
stitution of California by adopting
section 26, which is as follows:
"Sec. ~. The legislature shall
have the power to enact laws relative
to the election OF delegates to conven'
lions of political parties at elections
known and designated as primary
elections. Also to determine the tests
and conditions upon which electors,
political parties, or organizations OF
voters, may participate in any such
primary election, which tests or con-
ditions may he different from the
tests and conditions required and per-
mitted at other elections authorized
by law; or the legislature may dele
gate the power to determine such
tests or conditions. at primary cleo
tons, to the various political parties
participating therein. 1t shall also
be lawful for the legislature to pre-.
scribe that any such primary election
law shall be obligatory and manda-
tory in any city, or any city and coun-
ty, or in any county, or in any politi.
cal subdivision, OF a designated popu-
lation, and that such law shall be
optional in any city,, city and county,
county, or political subdivision of a
lessor population, and for such pur.
pose such law may declare the popu'
lation Of any city, city and county,
county, or political subdivision, and
may also provide that. If any compen-
sation primary election officers in de-
fined places or political subdivisions
may receive, without making compen-
sation either general or uniform"
You will see that that this section
gives extraordinary power to the
legislature in regulating primary cleo
tions and the qualifications of cleo.
tors thereat. We have no such pro-
vision as that, but our constitution Is
like the constitution of California at
the time of the cases above cited.
Under section ~, just quoted, was
decided the case OF Schostag vs.. Gator
ISL Cal. 900, and perhaps other cases.
For fear that you may not have this
later case, which shows that before
any such an act as our chapter 215
can be upheld there must be a radi-
cal change in the constitution de-
filming the qualifications of electors.
l copy in this letter the syllabus. as
follows:
primary Elections.-Section 21a Of
Article IL of Constitution-Tests for
Electors.-Section 2A of article II of
the constitution, which empowers the
legislature to provide for and regu-
late primary elections, and to pre-.
scribe tests Of the rights Of elecors
to vote at primary elections by direct
enactment, or to delegate to the
/ governing bodies of the respective
parties the power to prescribe such
tests, authorizes it to exercise and
partly delegate such power.
dd-Sections 1854 and 1861A Of
Political Code Not Conflicting.-Sec-
ton 1864 Of the Political Code, pro-
viding that in all places where the
primary election law is in force each
elector at the time of registering or
of transferring registration, shall de-
clare the name Of the political party
with which h intends to affiliate at
the ensuing primary election or elec-
tons, that such name shall then be
stated in his affidavit Of registration,
and that he shall not be allowed to
vote on behalf of any other party, or
for delegates to the convention Of any
party. by virtue of that registration,
unless before the close of registration
ne announces and has recorded
change of his party allegiance, and If
he refuses to so give the name Of his
party, that fact is to be stated in the
record, and he shall not be per.
mitted to vote at all at the ensuing
primary, unless before the close of
registration he declares his party al
legiance by affidavit; and section
1S61a of the same code, empowering
tho several political parties to pre-
scribe additional teRfa n thew desire