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On a division the words declaring plural voting at a senatorial election to be a misdemeanour were struck out. A breach of a direct statutory prohibition, however, is a misdemeanour. (See Note, § 123, infra.)

Method of election of senators. Times and places.

9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators", but so that the method shall be uniform for all the States78. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

UNITED STATES.-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 place of choosing senators. Const., Art. 1, Sec. iv., subs. 1.

HISTORICAL NOTE.-Clause 10, Chap. 1., of the Commonwealth Bill of 1891 was as

follows:

"The Parliament of the Commonwealth may make laws prescribing a uniform manner of choosing the senators. Subject to such laws, if any, the Parliament of each State may determine the time, place, and manner of choosing the senators for that State by the Houses of Parliament thereof." (Conv. Deb., Syd. [1891], p. 599.)

At the Adelaide session, 1897, the same clause was adopted with the omission of the words "by the Houses of Parliament thereof." In Committee, Mr. Deakin suggested "method" as preferable to "manner," but no amendment was moved. (Conv. Deb., Adel., pp. 672-4.)

At the Sydney session, a suggestion by both the Houses of the Parliament of Tasmania, to leave the manner of choosing senators to the States altogether, was negatived. A suggestion by the Legislative Assembly of Victoria, to insert "the times, places, and" before "a uniform manner," in order to enable the Federal Parliament to legislate as to the times and places of elections, was agreed to. (Conv. Deb., Syd. [1897], pp. 987-8.)

At the Melbourne session, after the fourth report, the clause was altered to its present shape, the determination of times and places being again left to the States. In Committee, Mr. Symon pointed out that this was an alteration in substance; but no amendment was moved. (Conv. Deb., Melb., pp. 2445-7.)

§ 77. "Method of Choosing Senators."

The method of choosing senators in each State may, in the first instance, be prescribed by the Parliament of each State. The Parliament of the Commonwealth, however, may at any time after the first election of senators pass laws prescribing the "method of choosing senators," subject to the restriction that such method shall be uniform for all the States. The question which at once presents itself for consideration is the meaning of the expression "method of choosing."

"Method of choosing" clearly does not include the sub-division of the State into electorates, because sec. 7 gives this power solely to the Federal Parliament. Nor does it include the fixing of the times and places of elections; because sec. 9 reserves this power absolutely to the State Parliaments. The power to prescribe the method of choosing senators is also limited by the constitutional provision that "each elector shall vote only once."

Subject to these express constitutional provisions, it would seem that the power to prescribe the method of choosing senators extends to the regulation of the whole process of election, including the mode of nomination, the form of writs and ballot papers, the mode of voting, the mode of counting votes, &c. The section would thus enable the State Parliaments provisionally, and the Federal Parliament ultimately, to prescribe the mode in which an elector should record his vote, e.g., whether he should vote for as many candidates as there are vacancies to be filled at the election, or whether he should have the option of "plumping" for a less number of candidates or of concentrating his vote, or whether he should mark some or all of the candidates in the order of his preference. Provision could thus be made for the introduction of some system of preferential or alternative voting and the representation of minorities.

"Method of choosing" would probably also include general regulations as to the conduct of elections. Under the power conferred on the Congress of the United States to prescribe the "times and manner of holding elections for senators and representatives," a statute has been passed providing for the holding of federal revision courts and the appointment of "supervisors of elections" to attend and scrutinize the registration of electors and the recording of votes, with power to arrest persons guilty of fraud against the election laws, and if necessary to summon the posse comitatus to their aid. (Burgess, Political Sc. ii. 44.)

In the absence of State or federal laws prescribing the "method of choosing senators," the senators for a State would be chosen according to the method prescribed by the law relating to elections for the more numerous House of the Parliament of the State." (See Notes, § 124, infra.)

"I take it this deals more with the manner in which you carry out your elections, and that the provision in a Constitution that a State shall be one electorate in voting as an entity of the Constitution is not a matter of minor degree as are these summed up in the phrase manner of choosing.' If these matters come before the courts the courts cannot have any difficulty." (Mr. Edmund Barton, Conv. Deb., Adel., p. 673.)

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"The definition which Mr. Barton has rather implied than given of the word 'manner' raises a doubt in my mind as to whether the word manner is also wide enough to cover all alteration in the system of voting, if so desired. If 'manner' relates rather to the conduct of an election and the general provisions made for taking votes, is it wide enough to cover also, and to a certainty, a variety of systems of voting which might perhaps be indicated by the word method? Would it not be desirable to take care that those States which think fit to adopt a system of proportional voting for the representation of minorities shall have power to do so, and that the Parliament of the Federal Commonwealth shall also be able to adopt such a system if it thinks desirable?" (Mr. A. Deakin, id. p. 673.)

"There are only two limitations to the subjects which may come under the head of manner of choosing.' One is that the member is to be chosen by the people of the States as one electorate. That cannot be altered. The other is that the qualification shall be as stated for the House of Representatives, and one man shall have one vote. Those two things are expressly provided for, and therefore the manner' cannot touch them. They really put the very basis upon which the Senate is elected. But the manner of conducting elections must embrace everything else, and the manner of choosing, surely, would include the method in which the votes are to be recorded. The method in which votes are recorded must allow for representation of minorities, alternative votes, or any other system." (Mr. R. E. O'Connor, id. p. 673.)

"It would be perfectly open, for instance, for every Parliament to provide for the Hare system of election. The tenth clause provides that the Parliament may, in the first instance, prescribe an uniform manner applicable to every State, of choosing members for the Senate; but, subject to such provision, the Parliament of each State may decide how to choose members of that body. It reserves such a power to the Parliaments of the States. But there is reserved to the Federal Parliament a power of control, which might well be exercised, in the case of certain difficulties or misdeeds arising, to take the matter into its hand." (Mr. Edmund Barton, id. p. 673.)

§ 78. "Uniform for all the States."

"Uniform" means the same in all the States; not different methods in different States. (Head Money Cases, 112 U.S. 580.) Where a Federal Legislature is authorized to pass" uniform laws" it is not merely enabled to pass laws the operation of which

shall be uniform, but to establish uniform laws on the subject throughout the union. This uniformity is incompatible with state legislation on that part of the subject to which the federal law may extend. (Sturges v. Crowninshield, 4 Wheat. 123-194.)

$ 79.

"Times and Places of Elections of Senators."

This sub-section further strengthens the control of the States over the election of senators. The Parliament of a State may, by legislation, determine the times when, upon the occasions arising under the Constitution, elections of senators for the State shall take place; it may also determine the places at which polling booths for the reception of votes for the election of senators shall be held. These powers are permanently and exclusively vested in the States. The election of senators will, of course, take place on the occurrence of the events prescribed by the Constitution, such as the triennial election of senators, when half the number of senators retire according to the process of rotation defined by section 13; and such as a general election of the Senate following a dissolution thereof under section 57. Under a similar section in the American Constitution it has been held that when the legislature of a State has failed to "prescribe the times, places and manner" of holding elections, the Governor may, in case of a vacancy, designate in his writ of election the time and place, when and where such election will be held; but that a reasonable time should be allowed for the promulgation of the notice. (Hoge's Case, Cl. and Hall [U.S.], 135; cited Baker Annot. Const. 6.)

Application of State laws.

10. Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.

HISTORICAL NOTE.-At the Adelaide session, the following words (taken from the corresponding clause of the Commonwealth Bill of 1891, relating to the House of Representatives) were introduced as paragraph 2 of the preceding clause :

"Until such determination, and unless the Parliament of the Commonwealth otherwise provides, the laws in force in the several States for the time being, relating to the following matters, namely: The manner of conducting the elections for the more numerous House of the Parliament of the State, the proceedings at such elections, returning officers, the periods during which elections may be continued, and offences against the laws regulating such elections, shall, as nearly as practicable, apply to elections in the several States of members of the Senate." (Conv. Deb., Adel., pp. 674-6.)

At the Sydney session, a suggestion by both Houses of the Parliament of Tasmania, to omit "and unless the Parliament of the Commonwealth otherwise provides," so as to make the power of the States permanent, was negatived. (Conv. Deb., Syd., 1897, pp. 988-9.)

At the Melbourne session, the paragraph was omitted, with a view to placing the provision as to both Houses in a single clause (44 AA). (Conv. Deb., Melb., pp. 1827, 1855.) After the fourth report, however, it was determined to deal with each House separately; the clause was restored in shorter and more general terms, and clause 44 AA was omitted. (See also sec. 31.)

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§ 80.

"Laws in Force in Each State

Elections."

Relating to

This section provides that in the election of senators for a State the laws for the time being in force in such State relating to elections for the more numerous House of Parliament of the State shall, so far as practicable, be applied. To this general enactment there are two limitations; one being that such electoral machinery laws are to be applicable to senatorial elections only until the Parliament otherwise provides; and the second being that the operation of the section is to be "subject to this Constitution." The latter phrase seems to cover two cases; (1) express provisions in the Constitution relating to elections-such as the prohibition against plural voting, and the provision that until the Parliament otherwise provides, each State shall be one electorate; and (2) laws passed by the States under the authority of the Constitution-such as laws determining the time and places of elections and provisional laws prescribing the method of choosing senators. Accordingly the section is merely provisional and temporary. It may be superseded in part by State legislation, under sec. 9, and superseded altogether by federal legislation.

The words "until the Parliament otherwise provides," seem, by virtue of sec. 51— xxxvi., to give the Federal Parliament (subject of course to the express limitations imposed by the Constitution) a general power to legislate as to "laws relating to elections" for the Senate-words which have a wider scope than the words "laws prescribing the method of choosing senators." The executive conduct of the elections, however, will remain with the States. (See Note, § 74, supra.)

Section 31 of the Constitution, making preliminary application of State election laws to the choice of members of the House of Representatives, is the same in substance as the section now under review. Both sections, as originally framed, enumerated in detail the particular branches of the electoral law, to which they were intended to apply (see Historical Note, supra) ; but at the Melbourne session of the Convention this enumeration was replaced by general words.

The omission of the particular words, instead of weakening, rather strengthens the section by rendering it more general, and less restricted than the original one. The section, as it stands, is most comprehensive, and applies, to senatorial elections in a State, all State laws relating to the conduct of and proceedings at elections of members of the popular Chamber in that State; the appointment of returning officers, their deputies and assistants, and their respective powers and duties; the publication of the mandate contained in the senatorial writs; the preparation of voters' rolls; the preparation of ballot papers; the nomination of candidates; the conditions of nomination-such as the signature of nomination papers by a certain number of electors, and the lodging of a deposit with each nomination paper as a guarantee of bona fides; the withdrawal of nominations; the notification of the time and places of polling as fixed by State laws under section 9; the recording of votes by secret ballot on the day of polling; the proof of qualification and proof of identity of voters; questions to be answered or oaths taken by persons seeking to vote whose qualification or identity may be challenged; the maintenance of order at the polling places; the time of opening and closing thereof; the counting of votes, the certification of returns, and the declaration of the poll.

Failure to choose senators1.

11. The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.

HISTORICAL NOTE.-Clause 11, chap. I., of the Commonwealth Bill of 1891 was as

follows:

"The failure of any State to provide for its representation in the Senate shall not affect the power of the Senate to proceed to the despatch of business."

At the Adelaide session, 1897, the clause was adopted in the same words; and at the Melbourne session, after the fourth report, it was altered to its present form.

§ 81.

"Failure to Choose Senators."

This section must be read in conjunction with the quorum section, which enacts that the presence of at least one-third of the whole number of senators shall be necessary to constitute a meeting of the Senate for the exercise of its powers (sec. 22). Accordingly the Senate will be capable of being duly constituted for the despatch of business if at least one-third of the States under the system of equal representation have provided for their representation in that body; the failure of two-thirds of the States to return the quota of senators to which they are entitled under the Constitution would not paralyse the legislative action of the Senate, and the absent and unrepresented States would be bound by laws passed whilst the statutory quorum was present, just as legally as if they were fully represented. The Constitution of the United States of America requires an absolute majority of the inembers of the Senate to constitute a quorum (Art. I. sec. 5, sub-sec. 1), and there is no section corresponding to the above one stipulating that unrepresented States are bound as effectively as those which have elected Senators. In the case of Cohens v. Virginia, 6 Wheat. 264, it was said that if a majority of States should refuse to elect senators the government of the United States of America would necessarily come to an end. Applying that principle to the Constitution of the Commonwealth it might be contended that there would be a deadlock in the Federal Government if more than two-thirds of the States failed to elect senators. The risk of such a failure, however, is very remote.

This section contains the only legal and effective provision made by the Constitution for the prompt and regular return of senators by the States. The whole carriage of senatorial elections is vested in the State authority; the Federal Government can exercise no control or supervision over them. The Governor of each State issues the writ for a senatorial election; the election is conducted by State officers; the Governor of the State, on the return of the senatorial writ to him, has to certify to the GovernorGeneral the names of senators duly chosen for his State. There is no time limited within which the certification has to be made. The fact that a quorum of the Senate may proceed to the despatch of business, notwithstanding any neglect or delay on the part of a State to provide for its representation, will be a strong inducement and incentive for the prompt holding of elections and the return of senators to fill vacancies as they arise.

Issue of writs.

12. The Governor of any State may cause writs to be issued82 for elections of senators for the State. In case of the dissolution of the Senates the writs shall be issued within ten days from the proclamation of such dissolution.

HISTORICAL NOTE.-At the Adelaide sessions, 1897, in committee, Mr. Barton introduced a clause (11A) as follows:

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"For the purpose of holding elections of members to represent any State in the Senate, the Governor of the State may cause writs to be issued by such persons in such form and addressed to such returning officer as he thinks fit."

Mr. Isaacs thought that the writs ought to be issued by the Governor-General, as in the case of writs for the House of Representatives. Mr. Holder moved an amendment to provide that the writs should be issued by the Governor-General in Council; but this was negatived. (Conv. Deb., Adel., pp. 1149-50.)

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