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UNITED STATES v. MARTINEZ

September 15, 1947

UNITED STATES
v.
MARTINEZ



The opinion of the court was delivered by: MURPHY

The question for decision is defendant's motion to dismiss an indictment charging a violation of the Nationality Act of 1940, to wit, 8 U.S.C.A. 746(a)(18). The act provides as follows:

'(a) It is hereby made a felony for any alien or other person, whether an applicant for naturalization or citizenship, or otherwise and whether an employee of the Government of the United States or not --

 '(18) knowingly to falsely represent himself to be a citizen of the United States without having been naturalized or admitted to citizenship, or without otherwise being a citizen of the United States.'

 The indictment contains seven counts, identical except as to dates and designation of the seven elections involved. The dates range from May 19, 1942, to November 5, 1946. The first count reads, inter alia:

 ' * * * defendant did knowingly falsely represent himself to be a citizen of the United States without having been naturalized or admitted or citizenship or without otherwise being a citizen of the United States when he voted * * * in the Spring primary conducted by the County of Luzerne, Commonwealth of Pennsylvania, on May 19, 1942.'

 Defendant moves to dismiss on the ground that (1) the act of voting does not constitute an act of representation within the purview of 8 U.S.C.A. 746(a)(18); (2) the indictment is defective for failure to charge that the accused knew he was not entitled to vote unless he was a citizen.

 The indictment charges that defendant knowingly falsely represented himself to be a citizen of the United States when he voted in the election.

 To understand what representations must be made in order to vote in a borough election in Pennsylvania, it is necessary to consider the pertinent provisions of the Pennsylvania Constitution which gives the right to vote in a Pennsylvania election, *fn1" and the legislative enactments which prescribe the time, place and circumstances under which such right can be exercised.

 The right to vote in Pennsylvania is granted by the Constitution of 1874, Article VIII, Section 1, as amended November 7, 1933, P.S. The pertinent legislative enactments are the Pennsylvania Election Code Act of June 5, 1937, P.L. 1333, 25 P.S. § 2600 et seq., and the Permanent Registration Act for Boroughs, etc., Act of April 29, 1937, P.L. 487, 25 P.S. § 951 -- 1 et seq.

 Article VIII, Section 1 of the Constitution, as amended, gives the right to vote only to those who are citizens of the United States. Article VII, Section 701, of the Election Code, 25 P.S. § 2811, as to elections, and Section 702, 25 P.S. § 2812, as to primaries specify the qualifications of electors, one of which is United States citizenship.

 The Constitution, Article VIII, Section 1, also makes the right to vote subject to the requirements of the Pennsylvania registration laws. The Registration Act, supra, provides that one cannot vote without first being registered (except where ordered by court) and that to be registered one must possess all the qualifications of an elector as provided in the Constitution and laws of Pennsylvania. See Section 19, 25 P.S. § 951 -- 19.

 In order to register one must answer under oath and subscribe to an affidavit containing a statement that the person is a citizen of the United States; that he is legally qualified to vote and that he has read or had read to him the statements in connection with his registration and that they are true and correct. One of these statements must be an answer in detail as to the person's citizenship. See Section 18, 25 P.S. § 951 -- 18.

 Upon applying to vote the person must sign his name and address to a voter's certificate which contains immediately above the signature a statement reading, 'I hereby certify that I am qualified to vote at this (election) (primary).' It is only when the signature to the voter's certificate is compared with the signature on the registration affidavit and found by the election officials to have been made by one and the same person that the applicant is permitted to vote. See Section 36, 25 P.S. § 951 -- 36(a)(f).

 Finally Section 2, 25 P.S. § 951 -- 2(k), defines a qualified elector as one 'who shall possess all of the qualifications for voting * * * ...


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