Brown v. State Election Board , 197 Okla. 169 ( 1946 )

This is an original proceeding in mandamus commenced by Easter Brown to compel the respondents, members of the State Election Board, to place his name on the ballot as a candidate for the Democratic nomination for the House of Representatives from District No. 2 of Garvin county, at the July, 1946, primary election.

Petitioner alleges that prior to his induction into the Army of the United States he was a registered Democratic voter in Kentucky, where he voted the Democratic ticket in 1941 and also while he was in the military service, and that upon his discharge from the Army in March, 1945, he established his residence in said representative district in Garvin county, and that he has continuously resided in the same voting precinct since that time; that, by reason of specific provisions of law, he has not had an opportunity to register as a voter since residing in said precinct, but that he intends to register as a Democrat in said precinct at the first opportunity authorized and provided by law; that in due time he filed with the respondents his notification and declaration of his candidacy for the Democratic nomination for the House of Representatives from said district at the July, 1946, primary election; that said notification and declaration was in due form, but that he inadvertently stated therein that he was a registered voter in the precinct of his residence, but that when the protest petition against his candidacy was filed, he corrected said error by reciting the true facts. The respondents struck his filing for the sole reason that he was not a registered voter in said representative district. Respondents appeared by the Attorney General and contend that their order is in accordance with the law. E.W. Foley, a candidate for said legislative office, intervened herein, and contends that the respondents acted properly in sustaining his protest petition against petitioner's filing and in striking the same.

There is no dispute as to the facts alleged. The only question presented is whether a person, who is otherwise qualified to be a candidate for office, may become a candidate despite the fact that he is not a registered voter in the precinct of his residence, where he has become a qualified elector since the close of the last registration period, and where, under the law, it has been and will be impossible for him to register until a fixed time after he must file his notification and declaration of candidacy, as provided in 26 Ohio St. 1941 § 79[26-79].

Section 1, art. 3, of the State Constitution defines "qualified electors" as citizens of the United States and of this state "who are over the age of twenty-one years and who have resided in the State one year, in the county six months, and in the election precinct thirty days next preceding the election at which such elector offers to vote," with certain exceptions not here material.

Section 17, art. 5, of the State Constitution prescribes the qualifications of members of the House of Representatives as persons who are "twenty-one years of age at the time of their election," and it then provides as to both Senate and House members: "They shall be qualified electors in their respective counties or districts and shall reside in their respective counties or districts during their term of office."

Section 5, art. 3, of the State Constitution provides:

"The Legislature shall enact laws providing for a mandatory primary system, which shall provide for the nomination of all candidates in all elections for State, District, County, and municipal officers, for all political parties, including United States Senators: Provided, however, this provision shall not exclude the right of the people to place on the ballot by petition any non-partisan candidate."

Section 6, art. 3, of the State Constitution provides:

"In all elections by the people the vote shall be by ballot and the Legislature shall provide the kind of ticket or ballot to be used and make all such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot; and may, when necessary, provide by law for the registration of electors throughout the State, or in any incorporated city or town thereof, and, when it is so provided, no person shall vote at any election unless he shall have registered according to law."

We have no statute expressly providing that a candidate for a party nomination must be registered as a voter in the party. The only statute that may be construed to make such a requirement is 26 Ohio St. 1941 §§ 161[26-161], 162, providing the form for notification and declaration of candidacy, which contains the recital that the candidate is a "registered _____ (party) voter" in his precinct, and that the provisions of section 162 must be fully complied with.

Assuming, without discussing or deciding, that the Legislature may ordinarily require a person to be registered as a voter in his political party before he may become a candidate for nomination in the party primary, the question here is whether it intended to prevent a person, otherwise qualified, from becoming a candidate for lack of registration where such person has not been afforded an opportunity to register.

There is grave doubt as to whether the power of the Legislature to "make all such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot," as provided in section 6, art. 3, of the State Constitution, includes the power to make a regulation that, for legal impossibility to comply therewith, would prevent a qualified elector, as defined in section 1, art. 3, of the Constitution, who possesses the qualifications prescribed by section 17, art. 5, of the Constitution, from becoming a candidate. The rule is that "a statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubt upon that score." 11 Am. Jur. 730.

Another rule of construction is that where a statute is ambiguous or the literal meaning would lead to absurd consequences which the Legislature probably did not contemplate, the courts must presume that such consequences were not intended and should adopt a construction that is reasonable and that will avoid the absurdity. Taylor v. Langley, 188 Okla. 646, 112 P.2d 411; West's Okla. Digest, Statutes § 181(2); 50 Am. Jur. 372, § 368.

We think it would be unreasonable and absurd to say that the Legislature intended to prevent a person possessing all the constitutional qualifications from becoming a candidate simply because he is not registered, where the law has not afforded him an opportunity to register after he became qualified to do so, either by attaining his majority or by becoming a citizen of the state, county and precinct since the close of the last registration period.

Foley relies upon Darst v. Election Board of Craig County,194 Okla. 469, 152 P.2d 912, Swindall v. State Election Board,168 Okla. 97, 32 P.2d 691, and Love v. State Election Board,197 Okla. 157, 170 P.2d 193. These cases do not sustain his contention. The Darst Case stands for the rule that a person, while registered as a voter in one party, may not deny his party affiliation and become a candidate in another party primary. The Swindall Case stands for the rule that a portion of the notification and declaration required by 26 Ohio St. 1941 § 162[26-162] does not operate as a test of the qualifications of the candidate, but is for the information of the voters, and that the right of the Legislature to regulate primary elections does not include the right to deprive citizens of their constitutional rights. The Love Case stands for the rule that the Legislature evinced an intention that persons relieved of the requirement of registration while in the armed service need not be registered either to vote or become candidates.

In view of the rules of statutory construction, above stated, we are of the opinion, and hold, that the Legislature did not intend to prevent a person possessing the qualifications prescribed by the Constitution for office from becoming such a candidate in a primary election simply because he is not registered, when he has been afforded no opportunity by statute to register prior to filing his notification and declaration of candidacy and since he became eligible to register and vote.

Writ granted.

GIBSON, C.J., and OSBORN, BAYLESS, WELCH, DAVISON, and ARNOLD, JJ., concur. RILEY, J., concurs specially. CORN, J., concurs in result.