A History of the Australian Ballot System in the United States/Chapter II

by Eldon Cobb Evans

CHAPTER II

THE ORIGIN OF THE AUSTRALIAN BALLOT SYSTEM AND ITS INTRODUCTION INTO THE UNITED STATES

1. THE ORIGIN OF THE AUSTRALIAN BALLOT

As its name implies, this system originated in Australia. The population of this land in the first half of the nineteenth century included many gold-seekers, bent upon gain, and a large class of criminals. In this environment the vices of the viva voce method flourished even more than in England. Mr. Francis S. Dutton in his testimony before the Marquis of Hartington committee in 1869 said: "Before the ballot was in operation our elections were exceedingly riotous. Of course our community had the rowdy elements as well as other countries, and on election days these troublesome elements came to the surface; and I have been in the balcony of an hotel during one of the city elections, when the raging mobs down in the street were so violent that I certainly would not have risked my life to have crossed the street."^[1]

Many men in Australia saw the dangers of open voting, and began to work to secure a remedy. The secret ballot was first proposed by Francis S. Dutton in the Legislative Council of South Australia in 1851. For several years no action was taken, but in 1857 Mr. Dutton became a member of the government, and made excellent use of his opportunity to advance his measure. A bill embodying this plan was introduced, and, after some modification in the House, became a law in 1857-58.^[2] In Victoria the secret ballot was championed by Mr. William Nicholson, who, at the head of the government, secured the enactment of the law in 1856. The system spread very rapidly. It was adopted by Tasmania and New South Wales in 1858; New Zealand in 1870; Queensland in 1874; and West Australia in 1877.^[3]

In England, where the viva voce method was in use with all its attending vices, the secret ballot had been agitated continually since 1830.^[4] In that year it was proposed by O'Connell and received the support of twenty-one members. The ballot formed a part of the reform bill as reported to the Cabinet by Lord John Russell, Sir James Graham, and others, but it was not included in the act as presented to Parliament. During the next three years many petitions for the measure were presented to Parliament and debated. On April 23, 1833, George Grote brought forward a resolution affirming the expediency of its adoption, and until 1840 this was yearly presented and affirmed by Mr. Grote. After the retirement of Grote, Mr. Ward and later Mr. H. Berkley became the champions of the measure. It was supported by such statesmen as Macaulay, Bright, Cobbett, Hume, and O'Connell, and was opposed by Lord Derby, the Duke of Wellington, and Lord Palmerston. Although this movement was retarded by the revolution of 1848 and the opposition of John Stuart Mill, the long period of agitation finally bore fruit. In the Queen's speech from the throne in 1868-69, a recommendation was made that the present mode of conduting elections be inquired into and further guaranties adopted for promoting their tranquillity, purity, and freedom.^[5] A committee of twenty-three, with the Marquis of Hartington as chairman, was appointed. This committee not only examined the English situation, but questioned witnesses from France, Italy, Greece, the United States, and Australia; and in 1870 it recommended that the secret ballot be adopted. The result was the ballot act which became a law in 1872.^[6] With the prestige gained by its success in England, the principles of the Australian ballot were soon adopted in Canada, Belgium, Luxembourg, and Italy.^[7]

2. ITS INTRODUCTION INTO THE UNITED STATES

At first this new reform in Australia and England does not appear to have created much of an impression in this country. According to Mr. John S. Wigmore, it was first advocated by a member of the Philadelphia Civil Service Reform Association in 1882 in a pamphlet called English Elections.^[8] The following year Henry George in the North American Review advocated the adoption of the English system as a cure for the vices arising from the use of money in elections.^[9]

The first attempt that the writer could discover to secure the passage of the reform was made in Michigan in 1885. A bill modeled on the Australian act was introduced into the lower house of the legislature by Mr. George W. Walthew, but it failed to pass. A bill similar to that of Mr. Walthew's, advocated by Mr. Judson Grenell, passed the House in 1887, but was lost in the Senate. In Wisconsin a compromise measure applying to cities of fifty thousand or over was adopted in 1887.^[10] Under this law the party organizations printed the ballots and the state distributed them.^[11]

But the honor of enacting the first Australian-ballot law belongs to Kentucky. This measure was introduced by Mr. A. M. Wallace, of Louisville, and was enacted February 24, 1888.^[12] The act applied only to the city of Louisville, because the state constitution required viva voce voting at state elections. The ballots were printed by the mayor at the expense of the city. Candidates had to be nominated by fifty or more voters in order to have their names placed upon the ballot. The blanket form of the ballot was provided, with the names of the candidates arranged in alphabetical order according to surnames, but without party designations of any kind. The manner of obtaining and marking the ballots was the same as the Massachusetts act herein described.

The original centers of organized agitation for the reform were New York and Boston, and the two movements, while simultaneous, were independent. In Boston the earliest discussion and demand for ballot reform grew out of the discussions of public questions by the members of a club called the "Dutch Treat." Later the Boston City Council and the labor organizations began to demand reform. One of the members of the "Dutch Treat," Mr. H. H. Sprague, was elected to the state Senate and was made chairman of a committee on election law. Encouraged by these favorable signs, the club drafted a bill which was presented by Mr. Sprague. Another bill was presented in the House by Mr. E. B. Hayes, of Lynn. Mr. Hayes lent his support to the bill introduced by Mr. Sprague, a large number of petitions for the bill were received, and on May 29, 1888, the law was enacted.^[13]

In New York a systematic discussion began in 1887 in the Commonwealth Club.^[14] After a thorough discussion of this reform, a committee was appointed composed of some of the leading laywers and men of legislative and administrative experience, taken equally from the Republican and Democratic parties. This committee was subsequently joined by a like committee from the City Reform Club; and after some months of study, it drafted an act which, after having been approved by the Commonwealth Club, the Reform Club, the City Reform Club, and the Single Tax party, was presented in the Assembly of 1888 and was known as the "Yates bill." The bill^[15] was referred to the Committee on Judiciary and was amended by certain provisions taken from similar bills introduced by Mr. Saxton and Mr. Hamilton. The measure was supported by the Republicans and passed both houses of the legislature, but was vetoed by Governor Hill. Agitation was started anew by its friends and a ballot league was formed.^[16] In the session of the legislature of 1889 the Saxton bill was amended and again introduced, the bill as amended having received the indorsement of a committee of the Young Men's Democratic Club of New York. The legislature again passed the Saxton bill and it was vetoed a second time by Governor Hill. In 1890 the Yates-Saxton bill with some modifications was again introduced, and a monster petition from New York City containing over one hundred thousand signatures was presented to the legislature. Governor Hill saw that something had to be done, so he expressed a willingness to sign a bill looking to the improvement of the election laws, but declared that under no circumstance would he approve any bill following the Massachusetts or the Australian system.^[17] Certain of the leaders, despairing of the adoption of their reform, decided to accept the governor's overtures. The result was the unsatisfactory compromise law of 1890 which provided for the so-called "party and paster ballot."

The rapidity of the spread of the Australian ballot in the United States during the next few years was most gratifying to its friends, but its triumph was not secured without a hard struggle. The opposition came from two sources: the ultra-conservative members of the community, and the machine politicians, who profited by the vices of the old system. The New York Herald, in an editorial, said: "The only persons who can have an interest in elections as they are, are the leaders and managers, whose power depends upon their successes in manipulating the ballot so that the suffrage will express, not the will of the people, but the success of their schemes."^[18] As Mr. Wigmore shows in his summary of party votes^[19] the success of the measure in the country as a whole cannot be claimed by either of the two great political parties, and its enemies were also bipartisan.

3. THE ARGUMENTS FOR AND AGAINST THE AUSTRALIAN BALLOT

Following the success of the Australian ballot in Massachusetts, a general agitation for the reform took place, and its friends found the ground well prepared. The period of corruption had created a favorable attitude on the part of a majority of the voters toward any system of reform, although there was some difference of opinion as to the proper remedy.

In favor of the Australian ballot it was urged:

First, that it would diminish or prevent the growing evil of bribery by removing the knowledge of whether it had been successful. "The buyer can keep track of the voter under the old law, and see that he actually deposits the identical ballot he gives him, and, as a matter of fact, the utmost vigilance is maintained in all such cases by the investor. He knows that a man so low as to sell his vote would not hesitate to break his word and cheat the purchaser."^[20] Under the secret ballot this ocular proof cannot be obtained; and it was asserted that no man would buy a commodity when he could not know if it had been delivered.^[21] This was one of the strongest arguments advanced by the supporters of ballot reform. Its enemies denied, however, that the official ballot would remove bribery. Governor Hill argued that it would make bribery easier. He said that the provision of the law requiring the judges of elections to place their initials on the back of the ballots would, with the collusion of officials, make the identification of bribed votes even more certain. He maintained also that there would be a widespread bribery of ballot clerks and inspectors, because it would be easier, safer, and would require less money to corrupt them than to bribe so many electors.^[22]

Another argument strongly urged in favor of the reform was that it would protect the weak and dependent against intimidation and coercion by employers and creditors. The New York Times stated this argument: "It [the unofficial ballot] also gives a chance for coercion and intimidation of such voters as are in a position of more or less dependence, and makes the secrecy of the ballot impossible for a large proportion of the electors. The bill [Yates's] is intended to do away with all these evils and corruptions."^[23] This point was not squarely met by the opposition. They tried to dodge the issue either by claiming that the amount of intimidation was small and diminishing, or by declaring that the economic conditions in the particular state made such protection unnecessary.^[24]

Thirdly, the Australian-ballot law would place upon designated officials the duty of furnishing correct ballots to the electors at the expense of the state. This would stop the abuses springing from the private printing of ballots. It would prevent the assessment of candidates, and do away with the excuse for raising such great sums of money.^[25]

It would give independent and non-partisan movements a better chance, where formerly they were deterred by the almost prohibitory expense.^[26] It would banish the ticket peddler from the polls and free the public from this great nuisance.^[27] It would guarantee correct ballots to the electors,^[28] and would make a candidate secure on the ticket. He could no longer be "traded off," "sold out," or "unbunched."^[29]

Fourthly, it would soften the influence of political contests and create order and decency at the polls. Mr. Dutton after speaking of the disorder and violence of the old system in Australia said: "That was with open voting; but now all has disappeared. By the operation of the ballot the elections are conducted quietly; and as far as rioting is concerned, every vestige of it has disappeared."^[30] Mr. Dana in discussing the Massachusetts law of 1888 said: "Quiet, order, and cleanliness reign in and about the polling-places. I have visited precincts where, under the old system, coats were torn off the backs of voters, where ballots of one kind have been snatched from voters' hands and others put in their places, with threats against using any but the substituted ballots; and under the new system all was orderly and peaceable. Indeed, the self-respect in voting under the new system is alone worth all the extra expense to the state."^[31]

Fifthly, it would raise the tone of political life by teaching that a vote was a privilege and not an article of merchandise, and would give to the voter a sense of responsibility.^[32]

The arguments used in the United States against this "penal-colony reform" or "kangaroo voting," as the Australian ballot was dubbed, were:

First, that the exclusively official ballot destroys the "vest-pocket" vote which thousands of citizens have always thoughtfully and carefully prepared in advance of the election, and the prohibition of these will result in hurried and incomplete preparation within the booths.^[33] The friends of the law responded that the Australian ballot preserved and enlarged the point of value in the "vest-pocket" vote. "The 'vest-pocket' vote which has grown out of this mailing of ballots and pasters will be impossible under the new law, or, rather, the spirit of that vote will be the life-principle, the vital spark, of the entire election system under the new act. The 'vest pocket' has now been enlarged and transformed into the election booth."^[34]

Secondly, the Australian ballot destroys individuality in presenting candidates and limits the choice to nominees of parties; and discriminates against those whose names are not thus advertised or printed upon the ballot. Governor Hill in his veto of the Saxton bill said:

I am unalterably opposed to any system of elections which will prevent the people from putting candidates in nomination at any time and voting for them by a printed ballot up to the very last moment before the closing of the polls on election day. This is an inherent right under our free institutions, which the people will never knowingly surrender. . . . .^[35]

The right of suffrage and the existence of elections are both made absolutely dependent [by the Saxton bill] upon previous nominations. If no such nominations should be made, all the people of the state would be disfranchised. It is not enough to say that such event is not likely to happen. A bill which makes the right to vote depend upon irresponsible voluntary bodies, thereby making the disfranchisement of all the people possible, is equally unconstitutional whether such event be probable or not. This result proceeds not from special defects in this particular bill, but is inherent in the very theory of an exclusive official ballot upon which the bill is framed.^[35]

This argument was met with the statement that the bill, instead of hindering the voter in canvassing the merits of candidates or presenting any person he pleases, makes these rights more secure. The first is secured by officially publishing the names of all candidates in advance of the election, and the second by allowing the voter to reject all the names on the ballot and to insert the names of any candidates he pleases. As to the alleged discrimination against unnominated candidates, it was argued that it was not constitutionally necessary to preserve the individual liberty of nomination; and "when official nominations may be made by so small a number of voters as this bill requires, discriminations like these against a candidate who has not been nominated cannot be seriously regarded as unjust or impolitic, even if it were constitutionally necessary to preserve individual liberty of nomination."^[36]

Thirdly, the Australian ballot is too complex, cumbersome, and impractical, and surrounds the voter with restrictions which practical experiment has shown to be unnecessary. The New York Sun declared that the law was not electoral reform but electoral repression:

The great pledge for the security of popular institutions in this country is universal manhood suffrage. Whatever tends to increase the number of legal voters and to make citizens more active participants in the affairs of government is wise and salutary. Whatever tends to impair or restrict the right of franchise, to limit the number of voters, or to vex or harass them in the exercise of this most important duty is pernicious and dangerous.

The Saxton bill would make it harder for the citizen to vote. That is its aim. Its tendency is to gradual disfranchisement.^[37]

Fourthly, it would take too long to mark the ballots, particularly in crowded precincts, if the electors could mark their ballots only within the voting-place. To overcome the strength of this argument booths were placed on the streets of Boston and records were kept of the time required for voting.^[38]

Fifthly, the opponents of the Australian ballot raised the ever-popular cry of public economy by arguing that the printing and the distribution of all ballots by the state would be an enormous expense to the state.^[39]

Sixthly, it was argued that the provision that only official ballots could be used, and that these must be obtained only from the ballot clerks, gave the officers "an absolute control of the result of any and every election, for only such ballots as these clerks choose to deliver to voters can be cast or counted."^[40] Governor Hill declared that he was willing to have the state print official ballots in order to guarantee a sufficient supply for the convenience of electors, but he declared that "that power should be concurrent with parties, candidates, and individuals." To the argument that the law would enable election officers, by neglecting their duty, to disfranchise the electors, it was responded that it was no defense to a law to argue that officers might be guilty of misfeasance or nonfeasance. If they are guilty, they may be punished in damages and also as criminals.^[41]

Seventhly, Governor Hill claimed that the proposed law was unconstitutional on the following grounds: (a) "that it embarrasses, hinders, and impedes electors in exercising their constitutional right of suffrage"; (b) that for the blind and illiterate voters "it destroys the secrecy of the ballot by compelling an avowal of their votes as a condition of exercising the right."^[42]

1. Parliamentary Papers, VIII (1868-69), p. 358.
2. Wigmore, Australian Ballot System, pp. 2-5; see Appendix A.
3. Wigmore, ibid., pp. 7-8.
4. The earliest proposal of the ballot in Parliament was in 1710 (E. L. Pierce, Tracts on the Ballot, article on "Secret Suffrage").
5. Hansard Parliamentary Debates, CXCIV, 25.
6. 35-36 Victoria, ch. 33.
7. Wigmore, op. cit., pp. 16-23.
8. Wigmore, op. cit., p. 23.
9. Henry George, "Money in Elections," North American Review, CXXXVI, 201.
10. Nation, XLIV, 359; Wigmore, Australian Ballot System, pp. 23-24.
11. Political Science Quarterly, IV, 143.
12. Kentucky Laws, 1888, ch. 266.
13. Annals of the American Academy of Political and Social Sciences, pp. 735-36.
14. Ivins, On the Electoral System of the State of New York, p. 24.
15. Ivins, On the Electoral System of the State of New York, p. 24.
16. Electoral Reform, with the Massachusetts Ballot-Reform Act, pp. 15-16.
17. Ivins, On the Electoral System of the State of New York, pp. 26-27.
18. New York Herald, editorial, May 11, 1888; Harper's Weekly, XXXIII, 851. "This goes far towards explaining the opposition of the Democratic members of the legislature to the Saxton bill, for they were for the most part small city politicians who owe their chances in politics to the methods which that bill was intended to destroy" (New York Times, editorial, May 18, 1888).
19. Wigmore, Australian Ballot System, p. 205.
20. Chicago Inter Ocean, editorial, June 12, 1891.
21. "It will put an end to the practice of vote selling, for nobody will buy a commodity when he was unable to know whether it had been delivered."—Chicago Tribune, editorial, June 11, 1891. Political Science Quarterly, IV, 137. See also New York Times, editorial, May 3, 1888; New York Herald, editorial, May 14, 1889; Post, Australian System of Voting, p. 5; Kentucky Constitutional Convention, 1890, II, 2025; Common Council v. Rush, 82 Mich. 532.
22. New York Herald, "Veto Message of Governor Hill," May 14, 1889.

    In England where the issue was between the official ballot and the viva voce method, it was argued that the secret ballot would increase bribery by hiding it from the spotlight of public criticism. Lord Claud Hamilton stated this argument: "If in a free country public opinion could not raise the moral tone of the constituencies and lead them to look with scorn on the demoralizing and disgraceful practice of corruption, it was hopeless to expect that good would be effected by the adoption of a secret system. Nothing was supposed to prevent misconduct and robbery at night so effectually as gas lamps" (Hansard Parliamentary Debates, CXCIV, 1505).

23. New York Times, editorial, May 24, 1888. Words in brackets are my own. See also New York Herald, editorial, May 25, 1888; North American Review, CXLIII, 632; Post, Australian System of Voting, p. 5; Kentucky Constitutional Convention, 1890, II, 1814–21, 1898, 2034.
24. Kentucky Constitutional Convention, 1890, II 2002.
25. Post, Australian System of Voting, pp. 2–3. Mr. Ivins (Machine Politics, pp. 86–87) thus summarizes the evil and the remedy:

    The Evil	The Remedy
    1. The necessity for voluntary printing and distributing the ballot justifies organizations for this purpose.	1. The printing and distributing of all ballots at public expense does away with the necessity of organisation of this purpose.
    2. It practically vests the "machines" with the monopoly or the election machinery.	2. And will deprive the political machines of the monopoly of an essential part of the election machinery
    3. And, as a consequence, with the monopoly of nomination.	3. It will enable any body of citizens of the number prescribed by law to have the name of their candidate printed on the same ballot with the names of all other candidates for the same office, so that before the law and before the voters all candidates and all party organisations will stand on a perfectly even footing.
    4. It involves the necessity of defaying the expenses of both printing and distribution by means of assessments on or contributions by candidates, office-holders or party leaders.	4. This will dispense altogether with the necessity of, and excuse for, levying political assessments.
    5. Which facilitate bribery and corruption by affording them convenient covers.	5. And leave no legal cover for bribery. The law can describe and limit all permissible expenditures, and compel the candidate or his agent to make a sworn return with vouchers to a proper public officer for all disbursements. It may punish all violations with sufficiently severe penalties.
    6. And debauches the electors by leading them to become partisans for pay instead of honestly performing their duty as citizens.	6. And prescribes that no elector under pay of a party or candidate shall be permitted to vote, thus making it more the interest of candidates and parties not to pay than to pay for election services, and thus deterring all honest electors from accepting pay.

26. Lippincott's, XLIV, 386, Political Science Quarterly, IV, 140; Post, Australian System of Voting, pp. 2-3.
27. "The professional ticket peddlers will now disappear from politics. That had come to be a great nuisance to the public and expense to the candidates. It was disagreeable to be compelled in going to the polls to run the gantlet of a string of hired heelers, armed with packages of money; and their employment cost a great deal of money.—Chicago Inter Ocean, editorial, June 12, 1891. See also New York Times, editorial, March 27, 1888; Chicago Tribune, editorial, June 11, 1891; Scribner's, III, 194.
28. Post, Election Reform, p. 7.
29. Lippincott's, XLIV, 385.
30. Parliamentary Papers, VIII, 358.
31. Annals of the American Academy of Political and Social Science, II, 738.
32. Lippincott's, XLIV, 385; Kentucky Constitutional Convention, 1890, II, 1999.
33. Forum, VII, 629.
34. Chicago Inter Ocean, editorial, June 12, 1891.
35. Veto message of Governor Hill, 1889. Editorials in the New York Sun, May 14, 1889, and May 23 and May 26, 1888.
36. Post, Election Reform, p. 6.
37. New York Sun, editorial, May 12, 1889; see also editorials of May 23, 1888; Nation, XLIV, 490; New York Times, editorial, May 15, 1888; Kentucky Constitutional Convention, 1890, II, 2005.
38. Statement of Mr. John Wigmore.
39. Veto message of Governor Hill, New York Herald, May 14, 1889; see also Atlanta (Ga.) Chronicle, November 9, 1889.
40. New York Herald, May 14, 1889.
41. Post, Election Reform, p. 7.
42. For an able answer to Governor Hill's objections, see L. F. Post, Election Reform, a pamphlet in the University of Chicago library. A discussion of the constitutionality of these points will be given in chapter vi. Governor Hill's message is discussed from his own point of view in the New York Sun for May 23, 1888.