State ex rel. Burke v. Campbell , 1976 Mo. App. LEXIS 2741 ( 1976 )

McMILLIAN, Judge

(concurs in results only and dissents in part.)

I concur in the result reached by the majority and with those portions of the opinion which establish prohibition as the proper remedy. I agree with the majority conclusion that Intervenor Lawler is not a qualified candidate for State Representative only because Lawler failed to show that he had been a resident of Missouri for the requisite two-year period “next before the day of his election” in November, 1976. See State ex rel. King v. Walsh, 484 S.W.2d 641, 644-46 (Mo.banc 1972) for a discussion of residency. However, I respectfully dissent from the conclusion held by the majority that one must be a registered voter to be a qualified candidate under Art. Ill, § 4,¹ and on the equal protection aspects of the case.

The right to hold public office is one of the valuable rights of citizenship. Turner v. Fouche, 396 U.S. 346, 362-63, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970) and Preisler v. City of St. Louis, 322 S.W.2d 748, 753 (Mo.1959). It is a basic and universally accepted rule that statutory and constitutional provisions which tend to limit the exercise of this right or exclude any citizen from participation in the election process must be strictly construed in favor of the right of voters to exercise their choice. These rights should not be declared prohibited or curtailed except by plain provisions of the law. Ambiguities are to be resolved in favor of eligibility to office. 67 CJS Officers § 11 (1950); accord, Application of Lawrence, 353 Mo. 1028, 185 S.W.2d 818, 820 (Mo.1941), and Chomeau v. Roth, 230 Mo.App. 709, 72 S.W.2d 997, 999 (1934) and see State ex rel. Socialist Workers’ Party of Missouri v. Kirkpatrick, 513 S.W.2d 346, 351 (Mo.banc 1974) (dissenting opinion). By engrafting a registration requirement on Art. III, § 4, the majority adds an unwarranted restriction on the right to hold public office not clearly required by our constitution. As an equally compelling argument can be made that registration is not required to make a candidate a “qualified voter,” we should not construe the constitution in such a way as to further restrict eligibility to office.

In my view, it is reasonable to conclude that “qualified voter” as contemplated by Art. Ill, § 4, means those substantive qualifications possessed by a citizen, as measured by the constitution,² which entitle him to be a voter; that is, one who has met the durational residency, citizenship, age and mental competency requirements, and who has not been convicted of a felony or crime connected with the right of suffrage. It is also reasonable to conclude that these qualifications are recognized as existing distinct from the right to vote, in that the existence of these substantive qualifications must be evidenced by registration before a citizen is permitted to exercise his right as a voter. Under our constitution, failure to register does not appear to destroy a citizen’s status as a qualified voter for all purposes, the only legal effect is to deprive him of a vote in an election for which registration is required. Registration is a police regulation governing what a citizen must do in order to vote in an election. “. . . The primary purpose of registration laws is to prevent fraudulent abuse of the franchise, by providing in advance of elections an authentic list of the qualified voters.” State ex rel. Hay v. Flynn, 235 Mo.App. 1003, 147 S.W.2d 210, 211 (1941) and Dysart v. City of St. Louis, 321 Mo. 514, 11 S.W.2d 1045, 1050 (Banc 1928). “The purpose of registration statutes is to protect the purity of the ballot box by ascertaining before the vote is cast whether such person possesses the qualifications to vote, and by preventing impersonation thereafter at the polls.” 25 Am. Jur.2d, Elections § 95.

Our Supreme Court early held that registration laws do not impose an additional qualification on the right of suffrage, noting that, “. . . [t]he power to provide for the orderly exercise of the right of suffrage . . . includes the power to enact registry laws, and to prohibit from voting persons not registered. It is now generally admitted that these laws do not add to the constitutional qualifications of voters . . . ” State ex rel. McCaffery v. Mason, 155 Mo. 486, 55 S.W. 636, 642 (1900). Mason v. State of Missouri, 179 U.S. 328, 21 S.Ct. 125, 45 L.Ed. 214.

Voter registration has had a checkered history in Missouri. Under the 1865 Missouri Constitution, universal voter registration was required. This provision was deleted from the 1875 Constitution and replaced with a provision directing the General Assembly to provide for registration of voters in areas having a certain population, but not otherwise. Under the 1945 Constitution, currently in force, registration of voters is authorized by Art. VIII, § 5, which provides “Registration of voters may be provided for by law.” (Emphasis added.) Currently, universal registration is required by statute, § 114.016(1), Laws 1973. Prior to 1973, registration was not required in many areas of the state.

Given the history and purpose of registration laws in this state, it is probable that the framers of the 1945 Constitution and the people adopting it did not intend that “qualified voter” mean registered voter in the context of defining eligibility to, or qualifications for, office. Such interests as preventing fraud at the ballot box are not relevant in determining a candidate’s qualifications for office. Further, it is not reasonable to assume that it was intended that the right to run for public office should depend on what the legislature chooses, from time to time, to do about voter registration.

The majority has not cited one case involving eligibility to office or qualifications to hold office where it was held that registration was necessary to make the candidate or person elected a qualified voter. On the other hand, my research has revealed at least three other jurisdictions with similar constitutional and statutory provisions holding that in such cases registration is not required to make one a qualified voter. Meffert v. Brown, 132 Ky. 201, 116 S.W. 779, 780 (1909); Gilbert v. Breithaupt, 60 Nev. 162, 104 P.2d 183 (1940); Trammell v. Griffin, 141 Tenn. 139, 207 S.W. 726 (1918) and 128 A.L.R. 1111.

Further, the cases cited by the majority do not require such a* construction. These cases concern the definition of “qualified voter” or “legal voter” as used in the context of voting in an election, State ex rel. Woodson v. Brassfield, 67 Mo. 331 (1878), or voter participation in a species of election. State ex rel. Social Workers’ Party of Missouri v. Kirkpatrick, 513 S.W.2d 346 (Mo. banc 1974) (nominating petitions) and Scott v. Kirkpatrick, 513 S.W.2d 442 (Mo.banc 1974) (initiative petitions). In such circumstances, it is apparent that the purpose of registration laws in preventing voter fraud is relevant, and reasonable to assume that the framers and the legislature intended that registration was a required “qualification.” The court in Socialist Workers’ Party, supra, relied heavily on the notion that registration was required to sign nominating petitions in order to protect against fraud. The Scott v. Kirkpatrick decision defined “qualified voter” in the narrow context of a statute which required that a signer of an initiative petition be a “qualified voter” who at the time it is presented to him is legally entitled to vote on the measure it proposes. The court concluded that a qualified voter legally entitled to vote was a registered voter. However, neither decision indicated that such must be the meaning of qualified voter in other contexts. It must also be noted that Brass-field, on which the majority places its principal reliance, concerned a construction of a provision of the 1865 Constitution under which uniform voter registration was clearly required by the constitution, not by statute, as in the instant case. Further, the quoted portions of that case failed to receive a majority vote of the court.

The majority opinion in this case operates to limit the right to public office. They have added registration requirements upon a constitutional provision that does not deal with voting at all, but pertains exclusively to defining eligibility to, or qualifications for, the office of State Representative. The constitution does not clearly require such a construction. It must be presumed that the writers of our constitution were literate and intelligent men and women. If, by the expression, “qualified voter,” the framers had intended registration to be required, they could have so stated.

I must also express some reservations as to the equal protection aspects of this case. As I understand Intervenor Lawler’s contention, he argues that if voter registration is a required qualification for the office of State Representative, he has been denied the equal protection of the laws as guaranteed by the Fourteenth Amendment to the Federal Constitution in that the Missouri Constitution does not impose such requirements for certain other state offices, i. e., governor, lieutenant governor, and state auditor. Lawler argues that two classes of persons have been created and that he, and other persons so situated, have been invidiously discriminated against without reasonable justification by the registration requirement. This contention raises serious problems which do not need to be decided here in view of my initial conclusion that Intervenor Lawler has failed to meet the two-year Missouri residency requirement. However, it must be noted that at least one state Supreme Court has found a constitutional violation under similar circumstances. Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d 665 (1965).

For reasons given herein, writ should be made absolute.

1 . All constitutional provisions cited are Missouri Constitution 1945, as amended, unless otherwise noted.

2 . Art. 8, § 2, entitled “Qualifications of voters —disqualifications” as amended in 1974 provides: “All citizens of the United States, including occupants of soldiers’ and sailors’ homes, over the age of eighteen who are residents of this state and of the political subdivision in which they offer to vote are entitled to vote at all elections by the people, if the election is one for which registration is required if they are registered within the time prescribed by law, or if the election is one for which registration is not required, if they have been residents of the political subdivision in which they offer to vote for 30 days next preceding the election for which they offer to vote: Provided however, no person who has a guardian of his or her estate or person by reason of mental incapacity, appointed by a court of competent jurisdiction and no person who is involuntarily confined in a mental institution pursuant to an adjudication of a court of competent jurisdiction shall be entitled to vote, and persons convicted of felony, or crime connected with the exercise of the right of suffrage may be excluded by law from voting.”