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§ 122. “The Qualification of Electors.”

On the question of settling the franchise for the Lower House, two theories were advanced in the Convention, and each received support from federalists of different types and sympathies. One theory was that the franchise for both Houses should be treated as a State right, and that its determination should be constitutionally secured


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to the States as an unassailable prerogative. On the other hand, the fixing of the franchise for the national Chamber was, by many members, considered a matter in which the Commonwealth was pre-eminently interested, and they contended that it should be placed within the control of the Federal Parliament. In support of this view it was argued that, in voting for members of the House of Representatives, electors exercise a public function relating to the Commonwealth, and not one relating to the State in which they reside; that the ultimate safety and destiny of the Commonwealth depend upon the forces which find representation in the national Chamber; that the Parliament, composed of members representing both the State element and the National element in the composition of the Commonwealth, should have the right, in the last resort, to decide who were sufficiently qualified to be entitled to the privilege of participating in the exercise of political power—the right to prevent the enfranchisement of those not mentally and ethnically qualified, and to enforce the enfranchisement of those nationalized by law and experience and able and willing to discharge the duties pertaining to the suffrage.

In the Constitution of the United States of America, as originally framed, the settlement of the franchise for the House of Representatives was made a State right. Each State was left free to fix for itself, within its own limits, its conditions of suffrage. (Bancroft, vol. ii. p. 128.) Each State had the exclusive power to regulate the right of suffrage and to determine who should vote at federal elections in the State. (Huber v. Reily, 53 Penn. St. 115; Morrison v. Springer, 15 Iowa, 345.) The States, it was said, were the best judges of the circumstances and temper of their own people. Accordingly, the rule was adopted, in language partly reproduced in the above section of this Constitution, that “The qualifications of the electors shall be the same, from time to time, as those of the electors in the several States of the most numerous branch of their own legislatures.” Owing, however, to the unjust and impolitic manner in which some of the States discriminated in franchise legislation, the Constitution has been, on several occasions, amended in order to remove glaring abuses and to redress monstrous wrongs. First came the Fourteenth Amendment, which declared that—

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. … When the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of the State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

This amendment having been found ineffectual to secure the political enfranchisement of the negroes, the Fifteenth Amendment was passed, providing that the right of citizens of the United States to vote should not be denied or abridged by the United States or any State on account of race, colour, or previous condition of servitude, and that the Congress should have power to enforce this article by appropriate legislation. “The Fifteenth Amendment,” says Dr. Burgess, “is negative language and does not directly confer upon any one the privilege of suffrage. It simply guards the individual against any discriminations in reference to the suffrage which may be attempted by the States, or by the government of the United States, on account of race, colour, or previous condition of servitude. This restriction, however, may indirectly confer suffrage: if, for example, a State law confers suffrage upon white persons having such and such qualifications, this provision of the fifteenth amendment would then operate to confer it upon other persons, not white, having the same qualifications.” (United States v. Reese, 92 U.S. 214; Neal v. Delaware, 103 U.S. 370; Political Sc. II. p. 42.)

These amendments of the American Constitution, recognizing a national citizenship and forbidding discriminations in franchise legislation by the States, show the tendency


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of the American Constitution to regard the franchise for the House of Representatives as a national question, in which the nation itself is concerned, and which the nation may at any time, by a further amendment, withdraw absolutely from the control of the States.

The Constitution of the Commonwealth, following the American precedent, starts with the electoral franchise in each State, prescribed by the law of the State as the qualification of electors of the more numerous House of the Parliament of the State. But the Federal Parliament may at any time by appropriate legislation, and without an amendment of the Constitution, deal either partly or wholly with the question, and impose a franchise for Federal elections. In the exercise of this power, however, there is one restriction provided by clause 41; that no adult person who has or acquires a right to vote at elections for the Legislative Assembly of a State, shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Federal Parliament. In other words, the Federal Parliament can pass an enlarged and liberalized franchise for the whole Commonwealth; but it cannot disqualify any adult person already entitled to a vote by the law of the State in which he or she resides. (See Note, § 139, infra.)

The qualifications of electors of the more numerous House of the Parliaments of the several States, and of the colony of New Zealand, may be here summarized.

New South Wales.—Every man of the age of 21 years, being a natural-born or naturalized British subject, unless disqualified, is entitled to be enrolled for the division of the Electoral District in which he resides, and to vote therein, provided that he holds an elector's right; to obtain which he must have been resident in the colony for one year (or, if naturalized, for one year after naturalization) and resident in the District for three months. (Parliamentary Electorates and Elections Act of 1893 [56 Vic. No. 38].) Number of electors enrolled, July, 1898, 324,338.

Victoria.—Every man of the age of 21 years, being a natural-born British subject (which is deemed to include naturalized subjects resident for 12 months in the colony), and not disqualified, is entitled to vote in any division of an Electoral District for which he holds an elector's right, or in which he is enrolled upon a “roll of rate-paying electors.” The qualification for an elector's right is either (a) residential—requiring residence for twelve months in the colony and for one month in the division of the District; or (b) non-residential—requiring possession of freehold estate within the district to the value of £50 or the annual value of £5. (Constitution Act Amendment Act of 1890, secs. 128–135.) By the Constitution Act Amendment Act, 1899 (known as the Plural Voting Abolition Act), it is provided that, after the expiration of the present Parliament, no person shall vote in more than one Electoral District at any election, or more than once at the same election. Number of electors enrolled for 1898, 252,560.

Queensland.—Every man of the age of 21 years, being a natural-born or naturalized British subject or a denizen of Queensland, unless disqualified, is entitled to be entered on the roll for any Electoral District if qualified within the District in any of the following ways:—(1) Residence; (2) Freehold estate of the value of £100; (3) Household occupation; (4) Leasehold estate of £10 annual value, held for at least 18 months, or having 18 months to run; (5) Pastoral license of £10 annual value. The qualifying period in the case of the residential, freehold, household, or pastoral qualification is six months; or, if the claimant has previously been an elector, three months. There is no limit to the number of Districts in which an elector may be enrolled; but no elector can claim a plural voting in any District. Aboriginal natives of Australia, India, China, or the South Sea Islands are not entitled to be enrolled, except in respect of a freehold qualification. (Elections Act of 1885 [49 Vic. No. 13]; Elections Act of 1897 [61 Vic. No. 26].) Number of electors in 1897, 81,892.

South Australia.—All British subjects of the age of 21 years (men and women), inhabitants of South Australia, who have been registered upon any Assembly roll for six months, may vote for members of the Assembly. In the Northern Territory, immigrants


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grants under the Indian Immigration Act, 1882, and all persons except natural-born British subjects and Europeans or Americans naturalized as British subjects, are disqualified. (Electoral Code, 1896.) Number of votes on the roll for the year 1897, 134,886.

Western Australia.—Every person of the age of 21 years, being a natural-born or naturalized British subject, is entitled to be registered as a voter, if he or she has resided in the colony for six months, and is entitled to vote after being registered for six months; and is also entitled to a property vote in every District in which he or she has a freehold qualification of £50 capital value, a leasehold or household qualification of £10 a year, or a Crown lease or license of £5 a year. (Constitution Acts Amendment Act, 1899.) Number of electors on the roll for the year 1897 (before the extension of the franchise to women), 15,029.

Tasmania.—Every man of the age of 21 years, being a natural-born or naturalized British subject, or having letters of denization, or a certificate of naturalization, who has resided in Tasmania for 12 months, is entitled to vote in any District if (1) his name appears in the assessment roll as owner or occupier of any property within the District; or (2) if he resides in the District, and is in receipt of income, salary, or wages of £40 a year. Board and residence, clothing, and services, are deemed income; house allowance and rations are included in the computation of wages. There is no limit to the number of districts in which an elector may have a property qualification. (Constitution Act Amendment Act, 1896, No. 2 [60 Vic. No. 54].) Number of electors on the roll for the year 1898, 31,613.

New Zealand.—Every inhabitant of New Zealand (male or female) of the age of 21 years, resident for one year in the colony, and for 3 months in an Electoral District, is entitled to vote in the District. There is no plural voting. Electoral Act, 1893 [No. 18]; Electoral Act Amendment Act, 1896 [No. 49].) Number of electors on the roll for 1896, male, 196,925; female, 142,305; total, 339,230.

General Summary.—These different franchises may be shortly described as follows: —New South Wales and Victoria, one man one vote. Queensland, manhood suffrage, with plural votes for property. South Australia and New Zealand, one adult one vote. Western Australia, adult suffrage, with plural votes for property. Tasmania, a small property or income qualification, with plural votes for property.

Under this clause electors of a State who are qualified under the laws thereof to vote for representatives in the State legislature, have the right to vote for members of the Federal legislature, which has power, by law, to protect such persons in that right. (Ex parte Siebold, 100 U.S. 371; ex parte Clarke, 100 U.S. 399; United States v. Gale, 109 U.S. 65. Cited in Baker, Annot. Const. p. 4.)

The qualifications of electors of the more numerous branch of the State legislature are not necessarily uniform in the various American States. In some cases aliens, who have declared their intention to become citizens, may vote for representatives to the State legislature, and so are qualified to vote for representatives in the Federal legislature. “Electors” are not necessarily citizens. The State may confer upon aliens the right to vote within the State, but it cannot make them citizens of the United States. (Dred Scott v. Sandford, 19 How. 404–414, id. p. 4.)

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