Pennsylvania Advisory Opinions October 02, 1918: AGO 76

Advisory Opinion Text

IN RE SOLDIERS VOTE

The State of Pennsylvania, even if it so desired has no means to force those in command of the army of the united States to permit its soldiers oversea to vote. Ever if it had such power it should not exercise it if those in charge of our military force state it as their deliberate judgment that it is not practicable to secure the votes of soldiers until military conditions have considerably changed, so there is nothing to be done except accede cheerfully to the ruling of the War Department as to taking the votes of soldiers now in France.

Honorable Cyrus E. Woods. Secretary of the Commonwealth. Harrisburg. Pa.

Sir I have your inquiry relative to the course of action of your Department with reference to taking the vote of the Pennsylvania soldiers in the American Expeditionary Forces overseas together with copies of the letter from the Adjutant General of Pennsylvania to the Adjutant General of the United Stares Army. dated July 24, 1918 and the reply thereto from the Adjutant General of the Army dated September 3, 1918.

Article VIII. Section 6 of the Constitution provides:

''Whenever any of the qualified electors of this Commonwealth shall be in actual military service, under a requisition from the President of the United States or by the authority of this Commonwealth, such electors may exercise the right of surface in all elections by the citizens, under Such regulations as are or shall be prescribed by law. as fully as if they were present at their usual places of election."

The method of taking the vote of qualified electo1 s in actual military service is provided for in the Act of August 25, 1864,, P. L. 990, which calls for the appointment by the Governor of Commissioners to take such vote at the quarters, in field or camp, of the soldiers in such military service.

On June 28, 1918, the War Department in its endeavor to perfect arrangements under which it would be possible to take the votes of members of the American Expeditionary Forces at elections, without seriously interfering with military operations, issued General Orders, No. 63, and suggested that the States amend their present election laws so as to validate votes of soldiers that might be cast under limitations which the Department found necessary to prescribe.

Paragraph (f ) of this Order is as follows:

"Where the State laws require the sending of election commissioners to take the soldiers' votes, the military authorities will place at the disposal of such commissioners every assistance that is found to be compatible with the exigencies of the military situation. In most instances however, it will be impracticable to permit commissioners to take the votes."

On June 24, 1918, the Adjutant General of Pennsylvania, by direction of the Governor, wrote to the Adjutant General of the Army, propounding certain inquiries as to the method of taking the vote of the Pennsylvania soldiers overseas in conformity with General Orders, No. 63. To this the Adjutant General of the Army replied on September 3, 1918, as follows:

"I have been directed by the Secretary of War to acknowledge your communication of July (June) 24, 1918, with reference to General Orders No. 63, W. D. 1918.

"The War Department is desirous of assisting the States in every way possible to take the votes of members of the American Expeditionary Forces in both primary and general elections when the taking of same will not seriously interfere with military operations. However, owing to the conditions and constant movements of our military forces in Europe, it is not considered practicable to permit commissioners to go to France or England for this purpose; nor is it practicable to attempt to secure in any manner the votes of our soldiers abroad until military conditions are such as to permit the taking of the votes as prescribed in paragraph (f) of G. 0., 63, W. D. 1918.

"For reasons as stated, above, the War Department cannot permit, at this time, the sending of election com missioners abroad as requested by the State of Pennsylvania."

In this communication the Adjutant General of the Army states that it is not, at this time, practicable to permit Commissioners to go to France or England for the purpose of taking the vote of soldiers there, nor to attempt to secure in any manner the votes of our soldiers abroad until military conditions are such as to permit the taking of the votes as prescribed in paragraph (f) of said General Orders, No. 63. Definite refusal is therein given by the War Department to the sending of election Commissioners abroad as requested by the" State of Pennsylvania.

In my judgment there is nothing further for your Department, or the other officials of the State of Pennsylvania concerned, to do than to submit to the ruling of the War Department. Pennsylvania soldiers in the Expeditionary Forces overseas have the constitutional and statutory right to vote at general elections, but that right, as well as many others, must be enjoyed in such manner as not to endanger the existence of the Republic. If military operations in which the soldiers from this State are engaged are of such a nature that in the judgment of the Supreme Command their success would be interfered with or imperiled by an attempt to take the soldier vote, then this right will have to be, for the time, foregone. It, as well as many other constitutional rights, is subordinate to the supreme duty of defending the Nation in time of peril. Salus reipublicae suprema lex.

The State of Pennsylvania, even if it so desired, has no means to force those in command of the Army of the United States to permit its soldiers overseas to vote. Even if it had such power it should not exercise it if those in charge of our military forces state it as their deliberate judgment that it is not practicable to secure the votes of soldiers until military conditions have considerably changed.

In my judgment there is nothing to be done except to accede cheerfully to the ruling of the War Department.- There will, therefore, be no duties for you to perform relative to taking the vote of Pennsylvania electors in the American Expeditionary Forces at the coming election.

Yours very truly,

WILLIAM H. KELLER, First Deputy Attorney General