Law Lib T Schl48p 1908 in nog I8AIUQ UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY WISCONSIN LIBRARY COMMISSION 'LEGISLATIVE REFERENCE DEPARTMENT COMPARATIVE LEGISLATION BULLETIN No u PRIMARY ELECTIONS THE TEST OF PARTY AFFILIATION MARGARET A. SCHAFFNER MADISON WISCONSIN DECEMBER iw8 PRIMARY ELECTIONS THE TEST OF PARTY AFFILIATION MARGARET A. SCHAFFNER COMPARATIVE LEGISLATION BULLETIN No. 13 AUGUST. 190S Prepared with the cooperation of the Political Science Department of the University of Wisconsin WISCONSIN LIBRARY COMMISSION LEGISLATIVE REFERENCE DEP'T MADISON Wis 1908 CONTEXTS PAGE REFERENCES 3 NATURE OF THE TEST 5 Open Primary 5 Closed Primary 6 Authority Prescribing Test 6 Voter's Declaration 7 Record of Declaration 9 What Constitutes a Reasonable Test 10 LAWS AND JUDICIAL DECISIONS 11 United States 11 REFERENCES. COMMONS, JOHN II. Address before the National Conference on Practical Reform of Primary Elections, held in New York City, Jan. 20-21, 1898, Proceedings, Chicago, 1898, p. 18-23. Advises the use of the blanket ballot at primary elections and ad- vocates dispensing with all declarations or oaths of party affilia- tion, p. 22. CRAFTS, CLAYTON E. Primary laws should be improved. Pub- lic Policy, July 5, 1902, vol.7, no. 1, p. 14-10. Advocates the use of the Australian ballot at primary elections, but provides that the voter may vote only for names on one party list. DEMING, HORACE E. Municipal nomination reform. Publica- tions of the National Municipal League, 1905, pam. no. 14. (Also in Annals of the American Academy of Political and Social Science, Mar. 1905, vol. 25, p. 20:5-17.) Argument against the closed primary. FREVND, ERNST. The police power: public policy and consti- tutional rights. Chicago, 1904. Considers fundamental questions involved in the right to vote at primary elections, sec. 483. MECHEM, FLOYD R. Constitutional limitations on primary elec- tion legislation. Publications of (he Michigan Political Science Association, Mar. 1905, vol. 0, no. 1, p. 125-49. Parts t>. ~. and 8 deal particularly with the test of party affilia- tion. MERRIAM, CHARLES E. Some disputed points in primary elec- tion legislation. American Political Science Association, Proceedings, 1907, Baltimore, 1908, p. 179-88. A critical discussion of provisions relating- to the test of party al- legiance. METCALF, RALPH. Direct Primary Legislation: A brief sketch of its progress in the various states. Tacoma, 1907, pam. Presents arguments in favor of the closed primary, p. 9-10. 4 PRIMARY ELECTIONS MEYKU, KKNST CHRISTOPHKK. Nominating systems: direct pri- maries versus conventions in the I'nilcd States. Madisou, \Vis. 1902., Gives an admirable summary of arguments fur and against the closed primary, in ch. <>. Who shall vote at the primary? p. Xto ~>1. KEMSKN. DANIKI. S. Primary elections: A study of methods for improving the basis of partv orirani/ation. 2nd ed., New York, 15)05. Calls attention to tests of party allegiance imimsed liy party au- thorities, p. 21 and 4!. SIMPSON, DAVID F. Direct primaries in Minnesota. Publica- tions of the Michigan Political Science Association. Mar. 1905, vol. rience of Minnesota Allows that votei-s from one political party may vote the ticket of another political party in spite of the fact that the law provide* a rijrid test of party allegiance, p. t>o and IB. TUTTLE, Ai,ox/.o H. Limitations upon the power of the legis- lature to control political parties and their primaries. Michigan Law Review, March. ]!<>:;. vol. 1. no. (5, p. 466-95. Reviews court decisions relating to the test of party allegiance, p. 478-80. VEKPLANK, .1. DKLANCEY. A problem of primaries. Annals of the American Academy of Political and Social Science, Nov. 1900, vol. 28. no. :J, p. SI !)l. Points out the several classes of voters who are excluded from participating in primaries under the test recniirinir declaration of past party affiliation, p. Sti-s. NATURE OF THE TEST Primary election- laws deal with the question of party allegiance from the two standpoints of the open, and the closed primary. OPEN PRIMARY Secrecy in voting. Under the open primary the use- of the Australian ballot enables an elector to vote a, party primary ticket without disclosing his party affilia- tion. See Wisconsin Laws, 1903, c. 451 under which absolute- secrery in voting is secured. Party affiliation. Electors are prevented from vot- ing for more than one party at any primary by the method of counting the votes under the open primary laws which generally provide that ballots are to be counted for any person only as a candidate of the party upon whose ticket his name is written. The Missouri law (1907, p. 263, sec, 18) follows the Wiscon- sin plan (Laws, 1903, c. 451) by providing that if any elector write upon his ticket the name of any person who is a candi- date for the same office upon some other ticket than that upon which his name is so written, this ballot is to be counted for the person only as a candidate of the party upon whose ticket his name is written and is in no case to be counted for the person as a candidate upon any other ticket. In Oklahoma under the law approved May 29, 1908, anjr ^ PRIMARY ELECTIONS qualified elector offering to .vote at a primary is to designate the party ticket he desires to vote and is to receive the ticket called for. Non-partisan municipal primaries. A tendency to- ward non-partisan primaries for municipalities is shown in recent legislation. Compare the laws of In. 1907. c. 18 and Wis. 1907. c. 070. CLOSED PRIMARY Under the closed primary the nature of the test may be considered: 1st. from the standpoint of the authority prescribing the test, 2nd. from the stand- point of the voter subscribing to the test of party al- legiance. From both standpoints the nature of the record which is kept of the voter's declaration of affil- iation is significant. Authority prescribing test Party authority. Quite frequently the prescription of the test for participation in primary elections is left to the party authorities. This is particularly true in many of the Southern states where direct primaries are more generally optional or permissive rather than compulsory. However a number of compulsory di- rect primary laws also leave the prescription of the test to the governing authority of the party. For typical laws which leave the prescription of the test to the party authorities compare the provisions of: Ala. Laws, 1908, No. 417: Ark. Dir. of St., 1904, sec. 2802-4: Fla. Laws. 1901, c. 5014. as amend, bv Laws, 1903, c. 5218. as amend, by Laws. 1905. c. 5471: Ga.'Laws. 1890-1. p. 210: Tenn. Laws. 1901. c. 12 and c. 39 and Laws, 1907. c. 422: and Va. Pollard's Code. 1904. sec. 122o. PRIMARY ELECTIONS 7 Legislature. In a number of states the test of party affiliation is entirely prescribed by the legislature. Compare the laws of: Ariz. Laws, 1905, c. 68: 111. Laws. 1908, p. : Intl. L.HWS, 1907. c. 282; la. Laws, 1907, c. 51: Kan. Laws, 1908, (Extra Sess.) c. 54: Md. Code of Pub. Gen. Laws. 1904 (new section added, Sess. of 1908), sec. 100 G; Mich. Laws, Ex. Sess. 1907, Xo. 4; Minn. Rev. Laws, 1905, sec. 192; Neb. Laws, 1907, c. 52; N. J. Laws, 1898, c. 139 as amend, by Laws, 1908, c. 248, as amend, by Laws, 1900, c, 235; X. li Laws, 1907, c. 109; Ore. Laws, 1905, c. 1: Pa, Laws, 1906, Xo. 10; S. D. Laws, 1907, c. 139; Tex. Laws, 1905, 1st, Called Sess. c. 11, as amend, by Laws, 1907, c. 177, sec. 114 a: and Wash. Laws 1907, c. 209. Party authority and legislature. Quite generally the legislature prescribes only a part of the test and permits the party authorities to impose additional re- quirements. For typical laws see: Cal. Const. (Amend. 1900) art. 2, sec. 2i Laws, 1907, c. 340 and c. 352: Del. Laws. 1897, c. 893, as amend, by Laws, 1903, c. 285: La. Laws, 1900. Xo. 49: Mass, Laws, 1907. c. 560; Miss. Code. 1900, sec. 3717: and K. I. Laws, 1902. c. 1078. Voter's declaration The voter's declaration of party affiliation may re- late to past allegiance, to present affiliation, to future intention, or to some combination of past, present, or future action. The laws for the different states vary greatly on this point. Past allegiance. Some of the laws require a decla- ration of past affiliation only, on the part of the voter. For typical provisions compare the laws of Ohio. 1908, (ap- proved Apr. 28) and of Pa. Laws. 1900, Xo. 10. In Ohio the voter's affiliation is determined by his vote at the last general election "held in even numbered years." In Pa. he must have voted for a majority of the candidates of the party at the last general election at which lie voted. 8 PRIMARY ELECTIONS Present affiliation. Other laws " provide that the voter declare only his present allegiance. Compare the laws of Kan. 1008, (Kxtra Sess.) c. 54; N. U. Laws, 15)07, c. 109: and Wy. Rev. St. 1891), sec. 22:i. as amend, by Laws, 1907, c. 100. Future intention. In certain cases a declaration of intention to support the party at the ensuing election is the only requirement. See Wash. Laws, 1907. c. 209. for a typical case. Past action and present affiliation. A declaration as to past action as well as a statement of present affil- iation is prescribed in a number of states. Under the 111. law enacted in 1908, the voter, if challenged, is required to swear or affirm not only that he is a member of the party, but also that he has not voted at a primary of an- other political party within two years. Past action and future intention. In addition to declaring his past party allegiance certain states also require the voter to pledge his support to the party at the next ensuing election. Compare the laws of Ind. Laws, 1907. c. 282: Minn. Rev. Laws, 1905, sec. 192: and Miss. Code. 190(5, sec. :5717. Under the Mississippi law the voter must have "been in accord" with the party during the preceding two years, and must agree to support nominations, in which he participates, at the ensuing election. Present affiliation and future intention. The test prescribed in some states requires a declaration of present affiliation together with a pledge of future support. See the laws of Arix. 1905, c. <>8: La. Laws. 190<>. No. 49; S. D. Laws. 1907. c. 139; and Tex. Laws, 1905, 1st Called Sess. c. 11, as amend, by Laws, 1907, c. 177, sec. 114a. Past, present, and future affiliation. Certain states require a definite declaration with respect to past al- PRIMARY ELECTIONS 9 legiance, present affiliation, and future intention to support the party with whom the voter desires to act at any primary election. Compare the provisions of Mass. Laws, 1007. c. 5(50: and N. J. Laws, 1898. c. 139, as amend, by Laws. 1903. c. 248. as amend, by laws, 1906, c. 235. Also see Commonwealth v. Rogers, 1902. 181 Mass. 184- and Hopper v. Stack, 1903, 69 N. J. L. 562. Record of declaration Declaration at primary. Many of the primary laws merely require a declaration of party affiliation on the part of the voter at the time of the primary and do not make any provision for keeping a record of his declaration. For typical laws compare: Arix. Laws, 1905, c. 68: II 1 Laws, 1908, p. ; Ind. Laws, 1907, c. 282; Kan. Laws, 1908. (Extra Sess.) c. 54; Minn. Rev. Laws, 1905, sec. 192 and Laws, 1907, c. 226; N. D. Laws, 1907, c. 109: Pa. Laws, 1906, No. 10; S. D. Laws, 1907, c. 139; Tex. Laws, 1905, 1st Called Sess. as amend, by Laws, 1907, c. 177, sec. 114a: Wash. Laws, 1907, c. 209. Previous enrollment or registration. A party en- rollment or registration of voters is required in a number of states. The enrollment, whether conducted according to party rules or under provision of law, affords a means of listing the party affiliation of all electors participating in primary elections. The form of the record kept, varies from informal voting lists to elaborate systems for the permanent enrollment of party members. Enrollment under party regulation. See laws for S. C. Civ. Code, 1902, sec. 258, as amend, by Laws, 1903. No. 8: also see N. C. local acts, which require party registration of voters in certain localities. 10 PRIMARY ELECTIONS Kurollmcitt nn affilia- tion on primary election day, is subject to challenge. If challenged, he must swear or affirm that he has in good faith changed his party affiliation and desires to be a member of the - , and if he takes such oath, he is thereupon to be given a ticket of PRIMARY ELECTIONS 19 such political, party and the clerks of the primary election are required to change his enrollment of party affiliation accordingly. Kansas. Laws, 1908, (Extra Sess.), c. 54, sees. 10 and 12. Any person offering to vote at a pri- mary is required to announce the name of the politi- cal party for which he desires to vote and unless he is challenged, one of the judges is forthwith to give him such party ticket. If challenged, he must make an affidavit that he is a member of and affiliated with the - - party, that he has not signed the petition of a member of any other party, and that he has not signed the nominating petition of an independent candidate for any office for which candidates are to be voted for at that primary election. Kentucky. Carroll's St. 1903, sees. 1553-59. The party authorities are authorized to prescribe qualifications for voters at party primaries. In order that none but those affiliating with and being mem- bers of any political party may participate in a party primary, a system of party registration is provided for localities in which a registration law is in force under the general law governing regular state elec- tions. The committee or governing authority of any political party desiring to hold a primary, has the right to have the names of all persons registered on the regular state registration books as affiliating with such party, copied into books provided by the committee. A book is to be provided for each pre- cinct of the city and town in which it is proposed 20 PltlMAKY ELECTIONS to hold a primary. In case the committee or govern- ing authority of any political party should decide to hold the primary before the time set for the registra- tion of voters for that year under the provisions of the general law, the party registration for the previous year is to govern. Provision is also made for special registration of persons prevented by specified causes from registering at the regular time. In all counties, districts or precincts in which no registration is held under the provisions of general law all legal electors have a right to vote at any party primary if they conform to the conditions and quali- fications prescribed by the committee or governing authority of the political party holding the primary by applying at the polls of the precinct in which they reside and making known the fact that they con- form to the conditions and qualifications that have been prescribed. Louisiana. Laws, 1906, .no. 49, sees. 9 and 10. Qualifications of voters at primaries are the same as required for electors at general elections, subject to additional political qualifications which may be prescribed by the state central committees of the re- spective political parties. None but those affiliating with, and beings members of any political party are to be permitted to participate in any primary elec- tion held by such political party. The commission- ers of election are required to ask every person offer- ing to vote, whether or not he is a member of such political party and whether or not he will support the nominees of such primary election, and he is PiflMAIfY ELECTIONS 21 not to be permitted to vote unless he answers both questions in the affirmative. This act is not unconstitutional because it requires voters at primaries to promise that they will support the nominees. State ex rel. Labauve v. Michel, (La.) 1008, 4(5 So. 430. Maine. Laws, 1903, c. 214. Party enrollment is a prerequisite for voting in any political caucus. Any person who is a legal voter may enroll himself as a member of any political party by filing with the clerk of the 'awn of which he is a legal voter a declaration in writing signed by himself substantially as follows : "I, - - being a legal voter of hereby elect to be enrolled as a member of the party. The following statment of name, place of last enrollment, if any, and party of last enrollment if any, is true." A new enrollment may be made at any time but the person making such new enrollment may not vote in any political caucus within six months thereafter if he designates a different political party from that named by him in the preceding enrollment. The clerk of the town where the enrollment is made is required to record the enrollment of members of each political party in a separate book and the records are to be open to the public. Voting lists used in the election next preceding any caucus are to be used as check lists at the caucuses if the town committee so provide in the call and the committee is required to provide for the use of such lists upon the written request of a speci- fied number of voters of the party. 22 PRIMARY ELECTIONS Maryland. Code of Pub. Gen. Laws, 1004 (new section added, Session, of 1908), sec. 160 G. No per- son is permitted to vote in any primary election un- less he is a registered voter and a member of the party at whose primary election he tenders his ballot. Any registered voter who at the last preceding elec- tion voted for the presidential electors or the gover- nor of the state or comptroller or other state candi- date or the county candidates of the party at whose primary he tenders his ballot, or any registered voter who attains the age of twenty-one years prior to the next election, or any voter who having failed to vote at the last election declares his intention to vote at the next succeeding election for the candidates named by the party at whose election he tenders his ballot is to be deemed a member of such party and entitled to vote at such primary election. After an elector has voted his name is to be entered in the poll books provided for by the governing body of the party holding the election. Massachusetts. The provision forbidding any one to vote ;it ;i primary who has taken part in a primary of another political party within twelve months is a reasonable test of party affiliation. Com- monwealth v. Rogers 15)02, 181 Mass. 181. Laws, 1907, c. 560, sec. 93. Each city or town committee may make reasonable regulations, not inconsistent with law, to determine membership in the party, and to restrain persons not entitled to vote at caucuses from attendance thereat or taking part therein. Rut no political committee may prevent any voter from participating in the caucus of its party PRIMARY ELECTIONS 23 for the reason that the voter has supported an inde- pendent candidate for political office. sec. 10.1. Xo person having voted in the caucus of one political party is entitled to vote or take part in the caucus of another political party within twelve months, except that voting or taking part in the cau- cuses of any municipal party by any voter is not to effect his legal right to vote or to take part in the caucuses of any other political party whether national, state, or municipal for any other election ; and hav- ing voted or taken part in the caucus of another political party for any previous election whether city, state or national is not to effect his right to vote or take part in the caucus of any municipal party. No voter shall be prevented from voting or participating in any caucus if he takes an oath that he is a mem- ber of the political party holding the caucus and in- tends to vote for its candidates at the polls at the election next ensuing and that he has not taken part or voted in the caucus of any other political party for twelve months last passed. sec. 15(5. Each voter's party affiliation is to be checked on the voting list used by the ballot clerks and the list is to be returned to the election commis- sioners in Boston or to the city or town clerks in other places for preservation during succeeding year. A copy of the party entries on such list is to be used at subsequent primaries for determining with what party the voter has been enrolled. Any elector may change his enrollment by appearing 1 before the elec- tion commissioners in Boston or before the city or 24 PKIMAKY ELECTIONS town clerks in oilier places and requesting in writ- ing to have his enrollment changed to another party but such change is not to take effect until ninety days after the voter so appears; but the political party en- rollment of a voter is not to preclude him from re- ceiving at a primary the ballot of any municipal party, but in no primary is he to receive more than one party ballot. No voter who denies the accuracy of his enrollment is to be permitted to vote until he takes an oath that he is a member of the < party and that he is incorrectly enrolled as a member of another political party. Michigan. Laws, Extra Sess. 1907, no. 4, sees. 2, 0, ( J, 10, 13 and 35. No person may vote at a primary election unless he is enrolled as a member of a particular political party. The various boards of registration provided for by the general election law are constituted an enrollment board. The local custo- dian of the general registration books of each election precinct is made the custodian of the party enrollment book, and he is required to forward copies of the party enrollment to the county clerk and to the secretary of state. The custodian of the enrollment book is required to deliver the same to the board of enrollment for the purpose of registration and correction and the enrollment board is required to enroll all qualified electors who make application for and who are en- titled to enrollment a-s members of any political party. Whenever any qualified elector applies for enroll- ment but neglects or refuses to give the name of his PRIMARY ELECTIONS 25 party or if he has none, he is to be enrolled as an independent. Whenever an enrolled voter has changed his past affiliation and desires to be enrolled as a member of another party, he may personally make application for re-enrollment to the enrollment board of primary election inspectors and the board is thereupon re- quired to re-enroll the voter. Any qualified elector offering to vote is to be fur- nished a ballot of the political party with which he is enrolled and no other. In case he is challenged, he is required to take an oath that he is a member of the party and that he believes in the principles of the party. For local laws, see Local Acts, 1005, no. 470, as amended by Local Acts, 1907. no. 754 (Alpena Co.): Local Acts, 190:5. no. 320, sec. 12 (Kent Co.): Local Acts. 190:5, no. 502. sec. 12 /Muskegon Co.): Local Acts, 1905, no. iJio, sec. 11 (AVayneCo.). The local acts for these counties uniformly require that any elector offering to vote, if challenged, must take an oath that he is in sympathy with the princi- ples of the party and that he expects to vote the party ticket at the next ensuing election. Minnesota. The legislature may within reasonable limits regulate the means by which partisan efforts should be protected in exer- cising individual preferences for party candidates. State v. Moore, 1902. 87 Minn. :iOS. (Interpreting c. 210. Laws of 1901). Rev. Laws, 1905, sec. 192. Any person offering to vote the ballot of any political party at a primary, if challenged, is required to declare under oath that he generally supported such political party at the last election and intends to support it at the next ensu- 26 PRIMARY ELECTION 8 ing election. When voting for the first time he is not required to declare his past political affiliation. Mississippi. Code, 190(>, sec. 3717. No person is eligible to participate in any primary election unless he intends to support nominations in which he participates, has been in accord with the party holding such primary within the two preceding years, and is not excluded from such primary by any regula- tion of the state executive committee of the party hold- ing such primary. Any member of the party holding 1 the primary or any primary election officer may chal- lenge any person offering to vote and cause him to answer, under oath, questions relating to his qualifi- cations. .Missouri. Laws, 1907, p. 263, sec. 18. At all pri- maries as many separate tickets are to be provided as there are parties entitled to participate and also a non-partisan ticket upon which are to be printed the names of all persons for whom nomination papers have been filed who are not candidates for any politi- cal party. Each qualified elector is entitled to receive from the judges of election one ballot of the political party participating in such election for which he de- sires to vote. To prevent any elector from voting for more than one party at any primary, the law provides that if any elector write upon his ticket the name of any person who is a candidate for the same office upon some other ticket than that upon which his name is so written this ballot is to be counted for such per- son only as a . candidate of the party upon whose PRIMARY ELECTIONS 27 ticket his name is written and is in no case to be counted for such person as a candidate upon any other ticket. Montana. 1 Laws, 1901, p. 115, sec. 2. (Not di- rect.) Any elector offering to vote at any caucus or primary meeting, if challenged, is required to take an oath that he has been and is identified with the party holding the caucus or primary and that it is his intention bona fide to act with the party and iden- tify himself with the same at the ensuing election and that he has not voted at any primary of any other political party whose candidates are to be voted for at the next general or special election. Nebraska. Making the right of an elector 1o participate in a primary depend upon his party affiliations is a legitimate exercise of legislative power and does not conflict with the fundamental law guaranting freedom in the exercise of the elective fran- chise. State v. Drexel, 1005, 74 Neb. 77(5. Law r s, 1907, c. 52. sees. 17-21. Every qualified elector desiring to vote at a primary election is re- quired to state to the judges of the primary the politi- cal party with which he affiliates. If challenged, the elector is required to take an oath that politically he affiliates with the - - party and that he intends to support the candidates of that party at the coming election. The party affiliation of each voter at a primary is to be noted on the poll book. Provision is also made for a system of registration of party affiliation. The supervisor of regular regis- 1 A direct primary law enacted in 1905. <. 09. was repealed by C. 55, Laws of 1007. 28 PRIMARY ELECTWXH trations is required to record the party affiliation given by each elector applying to be registered. The city clerk of each city wherein a registration of voters is required by law is required to compile an alpha- betical list of the voters of each of the political parties in each precinct in the city and within five days after each day of registration he must furnish the chairman or secretary of each political committee of his city and count}' a certified copy of such lists and also keep the same accessible for public inspec- tion. He must also on the day of the primary fur- nish to the officers of the primary election in each precinct a certified copy of such lists for the purpose of determining whether or not any person who de- sires to vote at such primary was registered at the last registration as affiliating with the party the ballot of which he desires to vote at such primary. Nevada. Cutting's Comp. Laws, 1861-1900, sees. 1678-85. (Not direct.) The test of party affiliation is prescribed by the party authorities. AVzc- Hampshire. Laws, 1905, c. 93. (Not di- rect.) The check list of party voters for use at any caucus is to be prepared by the local executive com- mittee of the party holding the caucus and no person is to be permitted to vote unless his name is on the check list. Any person offerng to vote, if challenged, must subscribe to an oath that he intends to vote the ticket of the party holding the caucus at the next ensuing election. After the caucus the presiding officer is to file the check list with the city or town clerk and the clerk is to keep the list in his office PRIMARY ELECTIONS 29 open to public inspection for a period of two months thereafter. New Jersey. Laws, 1898, c. 139, as amend, by Laws, 1903, c. 248, as amend, by Laws, 1906, c. 235. Separate tickets are provided for the different politi- cal parties. Any person offering to vote, if chal- lenged, is required to swear or affirm that he is a member of the - - party; that. at the last election for members of the General Assembly at which he voted, he voted for a majority of the candidates of the party and that he intends to support the candi- dates of the party at the ensuing election. Voters voting for the first time need not declare previous affiliation. Any elector voting with one political party at a primary election is not to be permitted to vote with any other political party at the next suc- ceeding primary election. The board of registry and election are required to indicate the party affiliation of each elector voting at the primary. The right 1o vote a secret ballot is neither a natural right nor a constitutional right: hence a legislative provision that a voter at a primary, if challenged, shall make affidavit that at the last general election at which he voted, he voted for a majority of the candidates of (he party with which he is pro- posing to ac(, violates no constitutional right of such voter. Hopper v. Stack. 100H, (5!) X. J. L. 502. A voter may erase from his ba'lot any name or write there- on the name of any person for whom he desires to vote and there is nothing in the general object of the laws denying the right of a member of one party from voting for a member of another party as the nominee of such voter's party. Free- man v. Board of Registry and Elections of Metuchen (X. ,.T.) 1907. <>7 At. 71:5. 30 PRIMARY ELECTIONS AVw Mexico.- Xcw York. Laws, 1896, c. 909, sec. 53, (Election Law). Voters at primaries in addition to legal qualifications must possess such other qualifications as are "authorized by the regulations and usuages" of the political party or independent body holding the primary. The regulations of the party, so referred to, must be regu- larly adopted by the County Convention or by a committee duly authorized by such convention and the requirements as to qualifications cannot be in conflict with the provisions of the statute. The rules cannot be such as will exclude a mem- ber of a party who intends to vote for the candidates of the party at the next election nor can it be left to a majority or to the unanimous vote of the enrolling board to say whether or not a man may enroll. The requirements may provide that the applicant for enrollment must qualify under oath but if he does so qualify he must be enrolled and allowed to vote at the primary, if under oath he makes false state- ments his punishment must be other than refusing to enroll him. Brown v. Cole. 1007, 105 X. V. Supp. 11)6. Laws, 1898, c. 179, as amend, by Laws, 1899, c. 473, and Laws, 1900, c. 204: and c. 225 ; Laws 1903, c. Ill; Laws, 1901, c. 488; Laws, 1905, c. 674; Laws, 190(5, c. 227, and Laws. 1907, c. 744 (Primary Elec- tion Law). Also see Laws, 1902, c. 195 as amend, by Laws, 1906, c. 498 (Town Enrollment Act). Only electors who are duly enrolled as party mem- bers may participate in the primary elections of their respective parties. At the time of enrollment the elector must declare that he is "in general sympathy with the principles of the party" and that he intends generally to support the nominees of such party at 2 No legislation relating to test of party affiliation at primary elec- tions. PRIMARY ELECTIONS 31 the next general election, state or national, and that he has "not enrolled with or participated in any pri- mary election or convention of any other party" since the first day of the preceding year. After the final meeting for registration the en- rollment box is to be delivered to the custodian of primary records and the enrollments are to be kept secret until after the next general election when the custodian is required to copy the party affiliation of each elector in the enrollment books for the election district in which such elector resides and the rec- ords are then to be thrown open for public inspec- tion. The custodian of primary records is also required to provide duplicate sets of enrollment books for each party to which the act is applicable. Any qualified elector offering to vote is required to announce the party with which he is affiliated and if he is found to be duly enrolled as a member of such party in that primary district the Board of Inspectors are required to deliver to him the ballots of his party. Persons who have voted at a regular Democratic or Repub- lican village caucus are thereby disqualified to vote at any village caucus held by a different political paty. In re Freund, 1907, 10H X. Y. Supp. 420. North Carolina. The local acts which established direct primaries for separate counties or for groups of counties or for separate cities uniformly provide for some test of party affiliation for voters at primary elections. Generally the test is prescribed partly by the legislature and partly by the party authorities holding the primary. Some of the tests require the 32 PRIMARY ELECTIONS voter to declare under oath that he will abide by the result of the primary. In certain localities the law requires party registration of voters under regulations prescribed by the party organization. For typical local acts .see Laws, 1901, c. 524 (Mecklenburg Co.): c. 752 (applies to the counties of: Anson, Cabarrus, Dare, Durham, Forsyth, Granville, Haywood, Henderson, Johnston, Northhampton, Orange, Pamlico, Richmond, Tyr- rell, Wake and Washington): Laws, 1903, c. 1215 and "793 (Richmond and Henderson Co's.); Laws, 1905, c. 146 (Craven Co.); c. 200 (Buncombe Co. and City of Ashville); c. 575 (City of Raleigh and Wake Co.): c. 795 and 837 (New Hanover Co. and City of Wilmington): Laws, 1907, c. 110 (Union and Ons- low Co's.): c. 190 (Rowan and Camden Co's.); c. 247 (Buncombe Co. and Ashville Twp.); c. 374 (Robeson Co.); c. 399 (Scotland Co.): c. 405 (Guilford Co. and City of Greensboro): c. 701 (Columbus Co.): c. 920 (Counties of Anson, Beaufort, liladen, Columbus, Davidson, Durham, Halifax, Lenoir. Madison, Martin, Nash, Onslow and Wake). North Dakota. Laws, 1907, c. 109, sec. 10. It is made unlawful for any person to call for or vote a ballot at a primary election, except the ballot represent- ing the party or principle with which he affiliates, and any person offering to vote, if challenged, must make affidavit as to his party affiliations. Ohio. Laws, 1908, p. 214-225. Any person of- fering to vote at a primary may be challenged on the ground that he has not previously affiliated with the party whose ticket he desires to vote and affilia- tion is to be determined by the vote of the elector making application to vote at the last general elec- tion held in even numbered years. If the judges, of the party to which the person asking the ticket claims affiliation, are not satisfied that he is a legal voter under this act they are to reject his vote. Any one attempting to vote at the primary election of any PK1MARY ELECTIONS 33 political party, other than the political party with which he has affiliated as above defined, is to be fined not less than $50.00 nor more than $500.00, or to be imprisoned in the county jail not less than three months nor more than six months, or both. Oklahoma. Laws, 1908, p. 358-376. Separate tickets are provided for the different political parties. Any qualified elector offering to vote is entitled to re- ceive the party ticket he desires to vote upon making request therefor of the primary election inspector. Oregon. Laws, 1905, c. 1 (adopted by initiative petition). The preamble to the law declares that "the members of every political party and voluntary polit- ical organization are rightfully entitled to know, that every person, who offers to take any part in the af- fairs or business of any political party or voluntary political organization in the state is in good faith a member of such party." A system of party registration is provided for and it is made unlawful for any elector to vote or to offer to vote at any primary unless he is registered as a member of a political party. No person who is not a qualified elector and a registered member of a party making its nominations under the provisions of this law is qualified to join in signing any petition for nomination, and no person is qualified to sign any nominating petition of any other political party for the primary than that with which he is registered. But no registered member of any party is to be prevented from signing a petition for the nomination of any independent or nonpartisan 34 PK1MARY ELECTIONS candidate after the primary nor is any qualified elec- tor to be prevented from signing petitions for more than one candidate for the same office on one party ticket. Every qualified elector offering to vote at any pri- mary is to be given a ballot of the political party with which he is registered as a member and he is not to be given a ballot of any other political party provided that no elector is to be deprived of the right to register and vote at any primary in the same man- ner that he is permitted by the general laws to regis- ter and vote at a general election. If challenged, the elector is required to take an oath that he is in good faith a member of the political party with which he is registered. Pennsylvania. Laws, 1900, no. 10, sec. 10. Each elector has the right to receive a ballot of the party for which he asks, provided that if he is challenged he must make oath or affirmation that at the last pre- ceding general election at which he voted, he voted for a majority of the candidates of the party for whose ballot he asks. Rhode Island. Laws, 1902, c. 1078, sec. 8 (not direct). (Applies to the cities of Providence, New- port, and Pawtucket.) In addition to the regulations prescribed by the party authorities, the law requires that the voter shall not have taken part in a caucus or voted at an election for a candidate of another party within fourteen calendar months. See Attorney Gen. ex rel. Wood v. Rowe, 1905, 2? R. I. 360. PRIMARY ELECTIONS 35 South Carolina. Civ. Code, 1902, sees. 255-7 as amend, by Laws, 1905, no. 409; Civ. Code, sec. 258 as amend, by Laws, 1903, no. 8 ; Crim. Code, sec. 278 as amend, by Laws, 1903, no. 73. The political quali- fications for voters at primary elections are prescribed by the party authorities. The law requires a party registration in localities having a prescribed popula- tion. South Dakota. Laws, 1907, c. 139, sec. 33. Any person offering to vote at a, primary, if challenged, is required to swear or affirm that he is in good faith a member of the - - party and a believer in its principles as declared in its platform at the last preceding national and state conventions and that he intends in good faith to support the principles of the party and the candidates nominated by it at the pri- maries. This provision is a reasonable regulation and does not pre- clude a first voter from joining the party of his choice nor prohibit one who has previously voted from transferring his party allegiance, nor does it conflict with the Constitution in that it adds to the qualification of electors prescribed by the Constitution. Morrow v. Wipe (S. D.), 1908, 115 X. W. '1121 . Tennessee. Laws, 1901, c. 12 and c. 39 and Laws, 1907, c. 422. Qualifications for voters, in addition to legal requirements, are prescribed by the party authori- ties holding the primary. Texas. Laws, 1905, 1st Called Sess., c. 11, as amend, by Laws, 1907, c. 177, sec. 114 a. The fol- lowing test of party affiliation must be placed on every official primary ballot : "I am a - (inserting name of the political party or organization 36 PRIMARY ELECTIONS of which the voter is a member) and pledge myself to support the nominees of this primary." Utaii. Laws, 1899, c. 79, sec. 2 (not direct). No person is entitled to vote at any primary election un- less he is a duly qualified voter under the prescribed rules and regulations of the political party holding the primary. Vermont. Laws, 1904, no. 2 as amend, by Laws, 1900, no. 1 (not direct). Provides for party check lists to be vised for determining the party affiliation of voters at caucuses. No person may vote at a caucus unless his name appears on the party list. Virginia. Pollard's Code, 1904, sec. 1220. Qualifi- cations for electors at primary elections are prescribed by the party authorities. Washington. Laws, 1907, c. 209, sees. 11 and 12. Separate ballots are provided for the several political parties. Every qualified elector desiring to vote at a primary has the right to receive the ballot and only the ballot of the party for which he asks. In case he is challenged he is required to make oath or affirmation that he intends to affiliate with the party and that he intends generally to support the candidates of the party at the ensuing election. West Virginia. Code, 1906, sec. 45. (Laws, 1891, c. 67.) (Not direct.) In order to vote at a party primary the elector must be a "known recognized, theretofore openly declared member of the party." Wisconsin. Laws, 1903, c. 451. An Australian ballot is used at all primaries. This ballot is made up of as many tickets as there are parties entitled to PRIMARY ELECTIONS 37 participate in the primary and also a nonpartisan ticket upon which are printed the names of all persons for whom nomination papers have been filed and who are not candidates for any political party. In voting, the elector detaches the ticket he intends to vote and deposits the remaining tickets in the blank ballot box. To prevent electors from voting for more than one party at any primary the law provides that if any elector write upon his ticket the name of any person who is a candidate for the same office upon some other ticket than that upon which his name is so writ- ten, this ballot is to be counted for such person only as a candidate of the party upon whose ticket his name is written and is in no case to be counted for such person as a candidate upon any other ticket. Wyoming. Rev. St., 1899, sec. 223 as amend, by Laws, 1907, c. 100, sec. 1 (not direct). Any person offering to vote at any primary, if challenged as to his political faith, is required to make a sworn state- ment showing that his political faith is in accordance with the party of voters holding such meeting. University of California SOUTHERN REGIONAL LIBRARY FACILITY 405 Hilgard Avenue, Los Angeles, CA 90024-1388 Return this material to the library from which it was borrowed.