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§ 124. “Laws Relating to Elections.”

The application of State laws in Federal elections has been already discussed under section 10 (see Note, § 80, supra.)

The implied power of the federal legislature is as much a part of the constitution as any of the expressed powers. Under this implied power it may provide by law for the protection of voters at elections of representatives, and may affix punishment for hindering or intimidating or maltreating voters intending to vote at such election. (Ex parte Yarbrough, 110 U.S. 651. Cited in Baker, Annot. Const. p. 9.)

At an election of burgesses for Parliament, the plaintiff, being entitled to vote, tendered his vote for two candidates; but such vote was refused, and notwithstanding those candidates for whom the plaintiff tendered his vote were elected, yet he brought an action against the constables of the Borough for refusing to admit his vote. It was decided that the action was maintainable, for it was an injury, though without any special damage. (Ashby v. White; Smith's Leading Common Law Cases, 9th ed. vol. i. p. 268.)

The provision of the laws relating to election of federal representatives which authorizes the deputy marshals to keep the peace at such election is constitutional. (Habeas Corpus Cases, 100 U.S. 371, 399. Cited in Baker, Annot. Const. p. 10.)

The federal legislature has power to fix penalties for violation of election laws, and for interference with electoral officers. In making electoral regulations, the federal legislature need not assume exclusive control. It has a supervisory power over the subject,


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and may either make entirely new regulations, or may supplement or modify the regulations made by the States. (Habeas Corpus Cases, 100 U.S. 371, 399, 404, 422. Id. p. 10.)

Rights and immunities created by or dependent upon the constitution can be protected by the federal legislature; with which the determination of the form and manner of such protection lies. (United States v. Reese, 92 U.S. 214. Id. p. 10.)

Writs for general election.

32. The Governor-General in Council may cause writs to be issued125 for general elections of members126 of the House of Representatives.

After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.

CANADA.—For the first election of members to serve in the House of Commons, the Governor-General shall cause writs to be issued by such person, in such form, and addressed to such Returning Officers as he thinks fit.—B.N.A. Act, 1867, sec. 42.

HISTORICAL NOTE.—Clause 42, Chap. I., of the Commonwealth Bill of 1891 was as follows:—

“For the purpose of holding general elections of members to serve in the House of Representatives the Governor-General may cause writs to be issued by such persons, in such form, and addressed to such Returning Officers, as he thinks fit.”

At the Adelaide session, the clause was passed in the same form, with the addition of the words: “The writs shall be issued within ten days from the expiry of a Parliament, or from the proclamation of a dissolution.” At the Sydney session, a verbal amendment suggested by the Legislature of Tasmania was negatived. (Conv. Deb., Syd. [1897], p. 463.) At the Melbourne session, on Dr. Cockburn's motion, the words “in Council” were added after “Governor-General.” (Conv. Deb., Melb., pp. 1929–31.) Verbal amendments were made before the first report and after the fourth report.

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