United States v. Classic/Dissent Douglas
Mr. Justice DOUGLAS, dissenting.
Free and honest elections are the very foundation of our republican form of government. Hence any attempt to defile the sanctity of the ballot cannot be viewed with equanimity. As stated by Mr. Justice Miller in Ex parte Yarbrough (The Ku-Klux Cases), 110 U.S. 651, 666, 4 S.Ct. 152, 159, 28 L.Ed. 274, 'the temptations to control these elections by violence and by corruption' have been a constant source of danger in the history of all republics. The acts here charged, if proven, are of a kind which carries that threat and are highly offensive. Since they corrupt the process of Congressional elections, they transcend mere local concern and extend a contaminating influence into the national domain.
I think Congress has ample power to deal with them. That is to say I disagree with Newberry v. United States, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913, to the extent that it holds that Congress has no power to control primary elections. Art. I, § 2 of the Constitution provides that 'The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.' Art. I, § 4 provides that 'The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.' And Art. I, § 8, clause 18 gives Congress the power 'To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.' Those sections are an arsenal of power ample to protect Congressional elections from any and all forms of pollution. The fact that a particular form of pollution has only an indirect effect on the final election is immaterial. The fact that it occurs in a primary election or nominating convention is likewise irrelevant. The important consideration is that the Constitution should be interpreted broadly so as to give to the representatives of a free people abundant power to deal with all the exigencies of the electoral process. It means that the Constitution should be read so as to give Congress an expansive implied power to place beyond the pale acts which, in their direct or indirect effect, impair the integrity of Congressional elections. For when corruption enters, the election is no longer free, the choice of the people is affected. To hold that Congress is powerless to control these primaries would indeed be a narrow construction of the Constitution inconsistent with the view that that instrument of government was designed not only for contemporary needs but for the vicissitudes of time.
So I agree with most of the views expressed in the opinion of the Court. And it is with diffidence that I dissent from the result there reached.
The disagreement centers on the meaning of § 19 of the Criminal Code which protects every right secured by the Constitution. The right to vote at a final Congressional election and the right to have one's vote counted in such an election have been held to be protected by § 19. Ex parte Yarbrough, supra; United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355. Yet I do not think that the principles of those cases should be, or properly can be, extended to primary elections. To sustain this indictment we must so extend them. But when we do, we enter perilous territory.
We enter perilous territory because, as stated in United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 410, 61 L.Ed. 857, there is no common law offense against the United States; 'the legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the Court that shall have jurisdiction of the offence.' United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259. If a person is to be convicted of a crime, the offense must be clearly and plainly embraced within the statute. As stated by Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 76, 105, 5 L.Ed. 37, 'probability is not a guide which a court, in construing a penal statute, can safely take.' It is one thing to allow wide and generous scope to the express and implied powers of Congress; it is distinctly another to read into the vague and general language of an act of Congress specifications of crimes. We should ever be mindful that 'before a man can be punished, his case must be plainly and unmistakably within the statute.' United States v. Lacher, 134 U.S. 624, 628, 10 S.Ct. 625, 626, 33 L.Ed. 1080. That admonition is reemphasized here by the fact that § 19 imposes not only a fine of $5,000 and ten years in prison but also makes him who is convicted 'ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.' It is not enough for us to find in the vague penumbra of a statute some offense about which Congress could have legislated and then to particularize it as a crime because it is highly offensive. Cf. James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979. Civil liberties are too dear to permit conviction for crimes which are only implied and which can be spelled out only by adding inference to inference.
Sec. 19 does not purport to be an exercise by Congress of its power to regulate primaries. It merely penalizes conspiracies 'to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States'. Thus, it does no more than refer us to the Constitution  for the purpose of determining whether or not the right to vote in a primary is there secured. Hence we must do more than find in the Constitution the power of Congress to afford that protection. We must find that protection on the face of the Constitution itself. That is to say, we must in view of the wording of § 19 read the relevant provisions of the Constitution for the purposes of this case through the window of a criminal statute.
There can be put to one side cases where state election officials deprive negro citizens of their right to vote at a general election (Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340, L.R.A.1916A, 1124), or at a primary. Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458. Discrimination on the basis of race or color is plainly outlawed by the Fourteenth Amendment. Since the constitutional mandate is plain, there is no reason why § 19 or § 20 should not be applicable. But the situation here is quite different. When we turn to the constitutional provisions relevant to this case we find no such unambiguous mandate.
Art. I, § 4 specifies the machinery whereby the times, places and manner of holding elections shall be established and controlled. Art. I, § 2 provides that representatives shall be 'chosen' by the people. But for purposes of the criminal law as contrasted to the interpretation of the Constitution as the source of the implied power of Congress, I do not hink that those provisions in absence of specific legislation by Congress protect the primary election or the nominating convention. While they protect the right to vote and the right to have one's vote counted at the final election as held in the Yarbrough and Mosley cases, they certainly do not per se extend to all acts which is their indirect or incidental effect restrain, restrict, or interfere with that choice. Bribery of voters at a general election certainly is an interference with that freedom of choice. It is a corruptive influence which for its impact on the election process is as intimate and direct as the acts charged in this indictment. And Congress has ample power to deal with it. But this Court in United States v. Bathgate, 246 U.S. 220, 38 S.Ct. 269, 62 L.Ed. 676, by a unanimous vote, held that conspiracies to bribe voters at a general election were not covered by § 19. While the conclusion in that case may be reconciled with the results in the Yarbrough and Mosley cases on the ground that the right to vote at a general election is personal while the bribery of voters only indirectly affects that personal right, that distinction is not of aid here. For the failure to count votes cast at a primary has by the same token only an indirect effect on the voting at the general election. In terms of causal effect tampering with the primary vote may be as important on the outcome of the general election as bribery of voters at the general election itself. Certainly from the viewpoint of the individual voter there is as much a dilution of his vote in the one case as in the other. So, in light of the Mosley and Bathgate cases, the test under § 19 is not whether the acts in question constitute an interference with the effective choice of the voters. It is whether the voters are deprived of their votes in the general election. Such a test comports with the standards for construction of a criminal law, since it restricts § 19 to protection of the rights plainly and directly guaranteed by the Constitution. Any other test entails an inquiry into the indirect or incidental effect on the general election of the acts done. But in view of the generality of the words employed such a test would be incompatible with the criteria appropriate for a criminal case.
The Mosley case, in my view, went to the verge when it held that § 19 and the relevant constitutional provisions made it a crime to fail to count votes cast at a general election. That Congress intended § 19 to have that effect was none too clear. The dissenting opinion of Mr. Justice Lamar in that case points out that § 19 was originally part of the Enforcement Act of May 31, 1870, c. 114, § 6, 16 Stat. 140. Under another section of that act (§ 4), which was repealed by the Act of February 8, 1894 (28 Stat. 36) the crime charged in the Mosley case would have been punishable by a fine of not less than $500 and imprisonment for 12 months.  Under § 19 it carried, as it still does, a penalty of $5000 and ten years in prison. The Committee Report (H.Rep. No. 18, 53d Cong., 1st Sess.) which recommended the repeal of other sections clearly indicated an intent to remove the hand of the Federal Government from such elections and to restore their conduct and policing to the states. As the Report stated (p. 7): 'Let every trace of the reconstruction measures be wiped from the statute books; let the States of this great Union understand that the elections are in their own hands, and if there be fraud, coercion, or force used they will be the first to feel it. Responding to a universal sentiment throughout the country for greater purity in elections many of our States have enacted laws to protect the voter and to purify the ballot. These, under the guidance of State officers, have worked efficiently, satisfactorily, and beneficently; and if these Federal statutes are repealed that sentiment will receive an impetus which, if the cause still exists, will carry such enactments in every State in the Union.' I view of this broad, comprehensive program of repeal it is not easy to conclude that the general language of § 19 which was not repealed not only continued in effect much which had been repealed but also upped the penalties for certain offenses which had been explicitly covered by one of the repealed sections. Mr. Justice Holmes, writing for the majority in the Mosley case, found in the legislative and historical setting of § 19 and in its revised form a Congressional interpretation which, if § 19 were taken at its face value, was thought to afford voters in final Congressional elections general protection. And that view is a tenable one since § 19 originally was part of an Act regulating general elections and since the acts charged had a direct rather than an indirect effect on the right to vote at a general election.
But as stated by a unanimous court in United States v. Gradwell, supra, 243 U.S. page 486, 37 S.Ct. page 411, 61 L.Ed. 857, the Mosley case 'falls far short' of making § 19 'applicable to the conduct of a state nominating primary'. Indeed, Mr. Justice Holmes, the author of the Mosley opinion, joined with Mr. Justice McReynolds in the Newberry case in his view that Congress had no authority under Art. I, § 4 of the Constitution of legislate on primaries. When § 19 was part of the Act of May 31, 1870, it certainly would never have been contended that it embraced primaries, for they were hardly known at that time.  It is true that 'even a criminal statute embraces everything which subsequently falls within its scope.' Browder v. United States, 312 U.S. 335, 340, 61 S.Ct. 599, 602, 85 L.Ed. --. Yet the attempt to bring under § 19 offenses 'committed in the conduct of primary elections or nominating caucuses or conventions' was rejected in the Gradwell case, where this Court said that in absence of legislation by Congress on the subject of primaries it is not for the courts 'to attempt to supply it by stretching old statutes to new uses, to which they are not adapted and for which they were not intended. * * * the section of the Criminal Code relied upon, originally enacted for the protection of the civil rights of the then lately enfranchised negro, cannot be extended so as to make it an agency for enforcing a state primary law.' 243 U.S. pages 488, 489, 37 S.Ct. page 411, 412, 61 L.Ed. 857. The fact that primaries were hardly known when § 19 was enacted, the fact that it was part of a legislative program governing general elections not primary elections, the fact that it has been in nowise implemented by legislation directed at primaries give credence to the unanimous view in the Gradwell case that § 19 has not by the mere passage of time taken on a new and broadened meaning. At least it seems plain that the difficulties of applying the historical reason adduced by Mr. Justice Holmes in the Mosley case to bring general elections within § 19 are so great in case of primaries that we have left the safety zone of interpretation of criminal statutes when we sustain this indictment. It is one thing to say, as in the Mosley case, that Congress was legislating as respects general elections when it passed § 19. That was the fact. It is qu te another thing to say that Congress by leaving § 19 unmolested for some seventy years has legislated unwittingly on primaries. Sec. 19 was never part of an act of Congress directed towards primaries. That was not its original frame of reference. Therefore, unlike the Mosley case, it cannot be said here that § 19 still covers primaries because it was once an integral part of primary legislation.
Furthermore, the fact that Congress has legislated only sparingly and at infrequent intervals even on the subject of general elections (United States v Gradwell, supra) should make us hesitate to conclude that by mere inaction Congress has taken the greater step, entered the field of primaries, and gone further than any announced legislative program has indicated. The acts here charged constitute crimes under the Louisiana statute. La.Act No. 46, Reg.Sess.1940, § 89. In absence of specific Congressional action we should assume that Congress has left the control of primaries and nominating conventions to the states-an assumption plainly in line with the Committee Report, quoted above, recommending the repeal of portions of the Enforcement Act of May 31, 1870 so as to place the details of elections in state hands. There is no ground for inference in subsequent legislative history that Congress has departed from that policy by superimposing its own primary penal law on the primary penal laws of the states. Rather, Congress has been fairly consistent in recognizing state autonomy in the field of elections. To be sure, it has occasionally legislated on primaries.  But even when dealing specifically with the nominating process, it has never made acts of the kind here in question a crime. In this connection it should be noted that the bill which became the Hatch Act, 53 Stat. 1147, 18 U.S.C. § 61 et seq., 18 U.S.C.A. § 61 et seq., contained a section which made it unlawful 'for any person to intimidate, threaten, or coerce, or to attempt to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for or not to vote for any candidate for the nomination of any party as its candidate' for various federal offices including representatives 'at any primary or nominating convention held solely or in part' for that purpose. This was stricken in the Senate. 84 Cong.Rec., pt. 4, 76th Cong., 1st Sess., p. 4191. That section would have extended the same protection to the primary and nominating convention as § 1 of the Hatch Act  extends to the general election. The Senate, however, refused to do so. Yet this Court now holds that § 19 has protected the primary vote all along and that it covers conspiracies to do the precise thing on which Congress refused to legislate in 1939. The hesitation on the part of Congress through the years to enter the primary field, its refusal to do so  in 1939, and the restricted scope of such primary laws as it has passed should be ample evidence that this Court is legislating when it takes the initiative in extending § 19 to primaries.
We should adhere to the strict construction given to § 19 by a unanimous court in United States v. Bathgate, supra, 246 U.S. page 226, 38 S.Ct. page 271, 62 L.Ed. 676, where it was said: 'Section 19, Criminal Code * * *, of course, now has the same meaning as when first enacted * * * and considering the policy of Congress not to interfere with elections within a state except by clear and specific provisions, together with the rule respecting construction of criminal statutes, we cannot think it was intended to apply to conspiracies to bribe voters.' That leads to the conclusion that § 19 and the relevant constitutional provisions should be read so as to exclude all acts which do not have the direct effect of depriving voters of their right to vote at general elections. That view has received tacit recognition by Congress. For the history of legislation governing Federal elections shows that the occasional Acts of Congress  on the subject have been primarily directed towards supplying detailed regulations designed to protect the individual's constitutional right to vote against pollution and corruption. Those laws, the latest of which is § 1 of the Hatch Act, are ample recognition by Congress itself that specific legislation is necessary in order to protect the electoral process against the wide variety of acts which in their indirect or incidental effect interfere with the voter's freedom of choice and corrupt the electoral process. They are evidence that detailed regulations are essential in order to reach acts which do not directly interfere with the voting privilege. They are inconsistent with the notions in the opinion of the Court that the Constitution unaided by definite supplementary legislation protects the methods by which party candidates are nominated.
That § 19 lacks the requisite specificity necessary for inclusion of acts which interfere with the nomination of party candidates is reemphasized by the test here employed. The opinion of the Court stresses, as does the indictment, that the winner of the Democratic primary in Louisiana invariably carries the general election. It is also emphasized that a candidate defeated in the Louisiana primaries cannot be a candidate at the general election. Hence, it is argued that interference with the right to vote in such a primary is 'as a matter of law and in fact an interference with the effective choice of the voters at the only stage of the election procedure when their choice is of significance,' and that the 'primary in Louisiana is an integral part of the procedure for the popular choice' of representatives. By that means the Gradwell case is apparently distinguished. But I do not think it is a valid distinction for the purposes of this case.
One of the indictments in the Gradwell case charged that the defendants conspired to procure one thousand unqualified persons to vote in a West Virginia primary for the nomination of a United States Senator. his Court, by a unanimous vote, affirmed the judgment which sustained a demurrer to that indictment. The Court specifically reserved the question as to whether a 'primary shall be treated as an election within the meaning of the Constitution'. But it went on to say that even assuming it were, certain 'strikingly unusual features' of the particular primary precluded such a holding in that case. It noted that candidates of certain parties were excluded from the primary and that even candidates who were defeated at the primary could on certain conditions be nominated for the general election. It therefore concluded that whatever power Congress might have to control such primaries, it had not done so by § 19.
If the Gradwell case is to survive, as I think it should, we have therefore this rather curious situation. Primaries in states where the winner invariably carries the general election are protected by § 19 and the Constitution, even though such primaries are not by law an integral part of the election process. Primaries in states where the successful candidate never wins, seldom wins, or may not win in the general election are not so protected, unless perchance state law makes such primaries an integral part of the election process. Congress having a broad control over primaries might conceivably draw such distinctions in a penal code. But for us to draw them under § 19 is quite another matter. For we must go outside the statute, examine local law and local customs, and then on the basis of the legal or practical importance of a particular primary interpret the vague language of § 19 in the light of the significance of the acts done. The result is to make refined and nice distinctions which Congress certainly has not made, to create unevenness in the application of § 19 among the various states, and to make the existence of a crime depend, not on the plain meaning of words employed interpreted in light of the legislative history of the statute, but on the result of research into local law or local practices. Unless Congress has explicitly made a crime dependent on such facts, we should not undertake to do so. Such procedure does not comport with the strict standards essential for the interpretation of a criminal law. The necessity of resorting to such a circuitous route is sufficient evidence to me that we are performing a legislative function in finding here a definition of a crime which will sustain this indictment. A crime, no matter how offensive, should not be spelled out from such vague inferences.
Mr. Justice BLACK and Mr. Justice MURPHY join in this dissent.
^1 While § 19 also refers to 'laws of the United States', § 19 and § 20 are the only statutes directly in point.
^2 Sec. 5506, Rev.Stat.: 'Every person who, by any unlawful means, hinders, delays, prevents, or obstructs, or combines and confederates with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote, or from voting at any election * * * shall be fined not less than five hundred dollars, or be imprisoned not less than one month nor more than one year, or be punished by both such fine and imprisonment.' Sec. 5511 provided: 'If, at any election for Representative or Delegate in Congress, any person * * * knowingly receives the vote of any person not entitled to vote, or refuses to receive the vote of any person entitled to vote * * * he shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three years, or by both * * *.'
^3 Merriam & Overacker, Primary Elections (1928) chs. I-III, V; Sait, American Parties & Elections (1927) ch. X; Brooks, Political Parties & Electoral Problems (1933) ch. X.
^5 'That it shall be unlawful for any person to intimidate, threaten or coerce, or to attempt to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, or Member of the House of Representatives at any election held solely or n part for the purpose of selecting a President, a Vice President, a Presidential elector, or any Member of the Senate or any Member of the House of Representatives, Delegates or Commissioners from the Territories and insular possessions.'
^6 Sec. 2 of the Hatch Act, however, does make unlawful certain acts of administrative employees even in connection with the nominations for certain federal offices. And see 54 Stat. 767, no. 753, ch. 640, 76th Cong., 3d Sess. As to the power of Congress over employees or officers of the government see United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508.
^7 See for example, Act of May 31, 1870, 16 Stat. 140; Act of July 14, 1870, 16 Stat. 254, 255, 256; Act of Feb. 28, 1871, 16 Stat. 433; Act of June 25, 1910, 36 Stat. 822; Act of August 19, 1911, 37 Stat. 25, 2 U.S.C.A. § 241 et seq.; Act of August 23, 1912, 37 Stat. 360; Act of October 16, 1918, 40 Stat. 1013; Federal Corrupt Practices Act, 1925, 43 Stat. 1070, 2 U.S.C.A. § 241 et seq.; Hatch Act, August 2, 1939, 53 Stat. 1147, 18 U.S.C.A. § 61 et seq.