McFarland: Soldier votes and the Constitution
By Kermit McFarland
In the soldier-vote controversy now embroiling Congress, the opposing sides agree – so they say – that it is essential to provide a method by which the Armed Forces may vote in this year’s election. Both sides protest that it would be an outrage if the Armed Forces were deprived of a vote merely because of their absence from the country.
The differences on which the issue has hung, more than three months now, are based, so the antagonists say, on varied interpretations of the Constitution. Opponents of a federal ballot for the Armed Forces – necessary only in the interest of uniformity and simplification – say control of the ballot is reserved exclusively to the states by the Constitution. Advocates of the federal ballot deny this.
So far, the so-called “states’ rights” group has had the controlling hand.
Justice Stone’s opinion
But there is another authority on the Constitution – the Supreme Court of the United States.
The Supreme Court has not passed on the soldier-vote issue, as such. But in 1940, Justice Harlan F. Stone wrote an opinion which some eminent legal authorities, not engaged in the Congressional controversy, consider immediately applicated to this issue.
In this opinion, the Justice, now Chief Justice, said:
While, in a loose sense, the right to vote for representatives in Congress is sometimes spoken of as a right derived from the states, this statement is true only in the sense that the states are authorized by the Constitution to legislate on the subject… to the extent that Congress has not restricted state action by exercise of its powers to regulate elections…
Mr. Justice Stone, with the Court majority, even held that Congress could regulate primary elections.
And that is precisely what the Constitution says in Section 4 of Article I: The states may prescribe the rules, but Congress, “may at any time by law make or alter such regulations.”
This Supreme Court opinion, in the judgement of high-ranking legal authorities, effectively takes care of the issue.
Presidential electors
But the “states’ rights” lawyers in Congress probably will answer that this is applicable merely to elections involving representatives in Congress. They will point to Section 2 of Article II which says that each state shall provide the manner of choosing its own presidential electors.
And since a federal ballot would involve the election of a President and Vice President as well as Senators and Congressmen, a federal ballot, they will say, is unconstitutional.
But the states have already provided a method for choosing presidential electors, who in turn technically elect a President. And that method is the ballot. There is nothing in the Constitution which says the federal government ay not provide the ballot.
The federal ballot in no way interferes with the methods already prescribed by the states for choosing presidential electors.
And Mr. Justice Stone, in his opinion, repeated an old dictum of the Supreme Court that matters which are “appropriate” to the Constitution, which are “not prohibited” by the Constitution and which are consistent with the letter and spirit of the Constitution are constitutional.
He said:
That principle extends to the Congressional power, by appropriate legislation, to safeguard the right of choice by the people of representatives in Congress secured by Section 2 of Article I.
And Mr. Justice Douglas, in the same case, said the Constitution was “designed not only for temporary needs but for the vicissitudes of time.”
The absence of millions of voters in the Armed Forces is certainly a “vicissitude.”