Munsell v. Hennegan

Marbury, J., delivered the opinion of the Court. Appellant and complainant below, a member of the Communist Party, seeks a declaratory decree invalidating and holding unconstitutional Chapter 635 of the Acts of 1941, which amends certain sections of the election laws. His claim is based upon his allegations that he is a citizen, voter and taxpayer of the City of Baltimore, and ¹⁷ is a qualified and authorized candidate of the Communist Party for the office of city councilman. The Communist Party, by reason of the fact that none of its candidates for two years polled 1 per cent, of the vote cast at any election held during that time, cannot nominate its candidates by a convention or primary meeting or primary election.

The only method provided for such nomination is by independent nomination petition. Such nomination is made by certificate signed by specified numbers of voters, such numbers depending upon the territory which is to vote for the office sought. The number for the City of Baltimore is 1,500. The requirements in such certificate to which the appellant objects, and which he claims are unconstitutional, are, first: The certificate must state that the persons signing the same intend to vote for the person nominated thereby; second, the receiving officials shall cause to be published in a newspaper of general circulation, the names of all the signers of any such petition; third, there shall accompany any nomination petition or certificate an additional fee equal to 25 cents for each name required to be published.

The appellant alleges that he was ready to comply with all the provisions of the election law, except the payment of the additional filing fees, that he inquired of the appellees, who are the Supervisors of the Election of Baltimore City, whether they would accept his petition or certificate without these fees, and was advised that they would not. He did not, therefore, attempt to get a petition executed, but filed this proceeding asking for a declaratory decree and an order enjoining the appellees from enforcing the provisions complained of. The appellees demurred, the court below sustained the demurrer and dismissed the petition, whereupon this appeal. There are two preliminary points raised by the appellees, which are, first, that a petition for a declaratory decree in a court of equity is not the proper proceeding to obtain the relief prayed, and second, that the time has expired within which any petition of nomination un ¹⁸ der any theory could be filed for the election in which the appellant desires to become a candidate and, therefore, the question is moot.

We prefer to pass these questions without deciding them, and to base our conclusions upon the substantive questions raised, which in the public interest, we think should be decided. The contentions of the appellant are that the right of minority political parties to nominate candidates by petition is an essential part of the elective franchise, subject only to regulations of a reasonable nature, and that the restrictions imposed on minority parties by the Act of 1941 infringe the secrecy of the ballot, and impose an oppressive and arbitrary discrimination against such parties by requiring the names of the signers to be published, and the payment of additional fees for such publication. Article 7 of the Declaration of Rights states: “That the right of the People to participate in the Legislature is the best security of liberty and the foundation of all free Government; for this purpose elections ought to be free and frequent, and every [male] citizen having the qualifications prescribed by the Constitution, ought to have the right of suffrage.” Article I of the Constitution itself has to do with the elective franchise and Section I starts with the statement, “All elections shall be by ballot,” and thereafter fixes certain qualifications for voters. Article III of the Constitution, dealing with the legislative department, by Section 49 provides: “The General Assembly shall have power to regulate by law, not inconsistent with this Constitution, all matters which relate to the Judges of Election, time, place and manner of holding elections in this State, and of making returns thereof.” Until 1890 there was no public or official ballot used in elections.

Private ballots were circulated by parties, bearing the names of their candidates and, generally, what were considered appropriate emblems designating the party. These ballots were handed in at windows at the various polling places, and were placed by ¹⁹ the election officers in ballot boxes from which they were later taken and counted. Under this system parties were free to nominate their candidates in any way they saw fit, and it was usual to do it, in the case of the larger parties, by unofficial primaries which sent delegates to conventions where the nominations were made. This system was productive of grave abuses, and offered too much opportunity for fraudulent voting, for filling the ballot boxes with ballots which had not been voted, for destroying those that were voted, and for otherwise thwarting the will of the electors.

As a result Chapter 538 of the Acts of 1890 was passed, which for the first time introduced the official or public ballot to general elections within the State. This was commonly known as the Australian Ballot Law and Section 128, which with a number of other sections was added by it to Article 33 of the Code, read in part: “Hereafter all ballots to be used and cast in any election to be held in this State under the constitution and laws thereof * * * shall be printed and distributed at the public expense; the word election in this section shall embrace all votes upon questions submitted to the vote of the people, but not primary elections.” It was provided by Section 129 that nominations could be made by primary elections or conventions by parties which polled at least 1 per cent, of the vote cast at the last general election. Section 131 provided for nomination by petition or “nomination paper” signed by registered voters, the required number varying according to the extent of the territory to vote for the office sought. This section is the forerunner of Sections 85 and 90 of Article 33.

The Act of 1890, Chapter 538, was immediately attacked in the courts. One of the points raised against it was that it was a local or special law, because it excepted nine counties from its provisions. This court in the notable case of Lankford v. County Com’rs of Somerset County, 73 Md. 105 , 20 A. 1017, 1021 , 22 A. 412 , the opinion being delivered by Chief Judge Alvey, dis ²⁰ missed this contention, stating that Article III, Section 49 of the Constitution does not require that election laws should be uniform throughout the State, nor does the statement in the Bill of Rights that all elections must be equal require a uniform regulation. • The court said: “The question of the wisdom or policy of such form of legislation is not for the court to determine, but simply whether the Act under consideration has constitutional validity, and as to that we are clearly of opinion it has.” There was a dissenting opinion filed by Judge Robinson and concurred in by Judge Irving, in which it was held that the fact that the Act did not apply to all the voters in the State rendered it objectionable to the Constitution. Lapse of time and other cases have confirmed the view of the majority of the court.

Article 33, the election article of the Code, was repealed and re-enacted in its entirety by Chapter 202 of the Acts of 1896. By Section 38 of Article 33, as thus enacted, a provision was made similar to that contained in Section 131 above mentioned. At this time, there was first inserted the provision that the certificates must contain the additional statement that the persons signing the same intend to vote for the candidates to be nominated. Section 38 became Section 43 in the Code of 1912.

This was amended by Chapter 751 of the Acts of 1914 and by Chapter 399 of the Acts of 1922, but neither of these amendments affect the issues in the present case. Section 43 is now Section 85 of Code, 1939, and this and Section 90 were amended by Chapter 635 of the Acts of 1941. By Section 90 there is inserted for the first time the provision for publication of the names of the signers and for the additional fee of 25 cents for each name. There are three methods by which the names of candidates may be printed on the ballot at the general election.

Political parties polling more than 10 per cent, of the vote cast at the last general election must nominate by means of a primary election. Article 33, Section 229. Parties polling more than 1 per cent, and less than ²¹ 10 per cent, may nominate by conventions, or primary meetings, as distinguished from primary elections. Article 33, Section 83.

Parties polling less than 1 per cent, have to nominate through a petition under Sections 85 and 90, supra. The right of the Legislature to so provide was decided in this court in the case of Kenneweg v. Allegany County Corn’rs, 102 Md. 119 , 62 A. 249, 250 . In that case the court had before it a local law providing for the holding of primary elections in one county in the State by two leading political parties only. The court, speaking through Chief Judge McSherry said: “The power to legislate in regard to elections — primary or general — if unrestrained by the Constitution itself, is inherent in the General Assembly, and the provision just cited, instead of conferring the power, is a mandate to execute a power implicitly assumed to exist independently of the mandate. ‘The General Assembly shall pass laws,’ is a direction to bring into activity an antecedent and independent authority.” One of the provisions in that primary election law, which was attacked, was that requiring each candidate to pay to the chairman of the committee of his party a fee, regulated for the different offices, such fees to be used to defray the expenses of the election.

The court further said: “Primary contests necessarily require the expenditure of money for the purposes just indicated, and the money must be procured from some source. The requirement that the individuals who, through the primaries, seek to secure nomination, shall pay the expenses which the governing body of their party are compelled to incur for their benefit and in their behalf, is neither unreasonable nor unjust, and most certainly is not the super-addition of a property qualification for holding the offices to which they aspire.” Another objection was that the Act applied only to two political parties, and the court, as to that, said: “The circumstance that the Act applies only to two of the political parties does not affect its validity. The General Assembly has the power to pass an Act regulating the ²² primaries of one party alone, if it sees fit; and if, for reasons satisfactory to the legislative branch of the government, it is desirable that only the numerically stronger parties should be brought under the provisions of a primary election law, which has to do merely with the selection of candidates to be voted for, and is in no way concerned with the elective franchise, it is not the province of the courts to declare the measure