Murphy v. Wachter , 126 Md. 563 ( 1915 )

Urner, L,

delivered the opinion of the Court.

By section 186 of Article 33 of the Code of Public General Laws, relating to elections, it is provided, in part, as follows: “At every general registration held in Baltimore City, and in each and every county of the State, subsequent to April 11, 1910, there shall be provided in the registration books a distinct column headed 'party affiliations,’ and the board of registers shall enter in this column the name of the political party, if any, to which the voter is inclined and with which the voter desires to have himself recorded as affiliated. It shall be the duty of the board of registry to explain to each voter that the statement of such party affiliation does not bind him to vote for the candidate of such party of any given election; also that he has the right to decline to state any party affiliations; but that no one who is not recorded upon the registry as affiliated with a particular political party will be qualified to vote at subsequent primary elections of said political party. Whenever a voter declines to state his party affiliation, the word 'declined’ shall be written opposite his name under such column, so that there shall be written in such column opposite the name of every registered voter, either his party affiliations or the word 'declined.’ And in all primary elections thereafter held, any person so registered as affiliated with a given political party shall have the right to vote the official ballot.of that party and of no other; and at any intermediate registration subsequent to the close of the next general registration, such voter may appear before the board of registry, and, upon his identity being established to the satisfaction of the major ity of the board of registry, to make, alter or strike out any entry in the column beaded ‘party affiliations,’ opposite bis name in tbe registry; it shall be tbe duty of tbe board of registry to enter in tbe column beaded ‘remarks’ tbe fact tbat such entry was made, altered or stricken out, and tbe date thereof.” In section 182 of tbe same article there is a provision tbat “No person or voter after having bad bis affiliation registered shall be permitted to make any change in bis party affiliation unless tbe same shall be made at least six months prior to tbe day of tbe primary election.”

Under tbe provisions of another section of Article 83, a general registration of voters occurred in tbe City of Baltimore in September and October of tbe year 1914, and tbe appellant, who is a resident of tbe City, was duly registered on October Itb as a qualified voter at one of tbe regular sessions of tbe board of registry in tbe precinct of bis domicile, but having declined to state bis party affiliation, an entry indicating tbat fact was made in tbe appropriate column as directed by the. statute. In addition to tbe provision we have quoted from, section 186 of Article 33 of tbe Code, it is therein provided tbat “Nominations for Mayor, Comptroller, President of tbe Second Branch City Council and members of tbe City * of Baltimore shall be made by direct vote of tbe respective political parties at primary elections to be held in all respects according to tbe aforegoing provisions (of tbe Code), applicable to primary elections in Baltimore City, except tbat tbe day for bolding the same shall be tbe first Tuesday of April of tbe year in which tbe municipal elections in said City of Baltimore are to be held on a different-day from the general election.” Tbe City Charter designates tbe Tuesday next after tbe first Monday of May as the day for the quadrennial municipal elections, one of which occurred in regular sequence on May 5th, 1915. Provision is made by tbe Charter, in its seventeenth section, tbat prior to every municipal election “there shall be on tbe first and second Mondays of April a supplemental registration of voters of Baltimore City, which registration shall be under the supervision of the Supervisors of Election and conducted in conformity with the provisions of the law then in force relating to the registration of voters. On each day of said registration the registers shall revise the list of registered voters made at their last regular sitting, by adding the names of those persons who are entitled to registration at that time, and striking from said registration lists the names of those persons who have died or become disqualified since the said last sitting, and the registration lists used at the preceding November election, after being revised as herein directed, shall be used at the municipal election in May.”

On April 5, 1915, that being one of the days appointed by the Charter for supplemental registration, the appellant appeared before the board of registry for his precinct, and, after satisfying the board of his identity, requested that the entry opposite his name in the party .affiliation column of the registration books be altered by the striking out of the word “declined” and the insertion of the word “Republican.” This request was refused, and the present petition for a mandamus has resulted. The plaintiffs right to have the desired alteration made at the time proposed, was challenged by demurrer to his petition upon the ground that such action on the fifth of April would precede by only a day the municipal primary election on the sixth, and would therefore be contrary to the provision we have quoted from section 182 of the election law to the effect that no voter, after having once had his party affiliation registered, shall be permitted to make any change in his affiliation unless it shall be made at least six months prior to the day of the- primary election. The demurrer was sustained and the petition for mandamus dismissed, and the plaintiff has appealed.

The controlling question, in our view of the case, is whether the plaintiff is to be regarded.as a voter who has heretofore “had his affiliation registered,” and is thus within the purview of the prohibition against any “change in his party affiliation” within six months of the primary election at which he proposes to vote. When he applied to be registered in October, 1914, he had the right under the statute “to have himself recorded as affiliated” with the political party to which he was inclined, and he had the alternative privilege of declining “to state his party affiliation.” The plaintiff availed himself of the latter right, and he was accordingly noted in the proper column as “declined.” The effect of this entry, in view of the provisions we have quoted, was to indicate the plaintiff’s conclusion not to affiliate, for the time being, and for primary election purposes, with any political party. It seems clear, therefore, that he is not in the position of a voter who can be correctly said to have “had his affiliation registered.”

The expressed object of the Act was to prohibit voters, within six months prior to their participation in a primary election, from making a change, for that purpose, in their party affiliation previously and formally declared. There is no reference in this prohibition to voters who had declined. to affiliate. The considerations of public policy upon which the law would prevent the shifting of affiliated voters from one party to another shortly before a primary election may have been supposed by the Legislature to have no application to the admission, for the first time to such elections, of voters who had theretofore refrained from qualifying themselves, under the statute, for that privilege. So far as the right to take part in a primary election is concerned, the unaffiliated voter would appear to be in practically the same situation as one who is unregistered. A newly registered voter who records his identification with a political party is not subjected to the six months’ limitation of time as to participation in the party’s primary election, and the formerly “declined” voter, who eventually concludes to affiliate, may have been regarded as being equally entitled to exemption from such a restriction. At all events, the law-making body has manifested its intention to apply this provision to previously registered voters who have once declared but subsequently desire to change their party affiliation, and not to those who have declined to thus connect themselves with a political party, and we are not at liberty to bring this additional class of voters within the effect of the limitation by extending it beyond the plain meaning of the terms in which it has been defined.

While the term “supplemental” is applied by the City Charter to the registration directed to be held on the first and second Mondays of April preceding the municipal election in May, it is required to be entered upon the regular books of registry provided and used under the general election laws of the State, and is conducted by the same officials who serve at the registration of the City voters for all election purposes, and hence it is properly to be regarded as one of the intermediate registrations to which section 186 of Article 33 of the Code refers as an Occasion when a voter may declare, change or recall his affiliation.

According to our construction of the existing statutes, a registered voter who has previously declined to affiliate with a political party is entitled to have the entry to that effect canceled, and to declare his party affiliation, at the supplemental registration to which we have referred, with the resulting right to vote in subsequent primary elections, without restriction as to the time of their occurrence. Our conclusion, therefore, is that the plaintiff’s application to the Board of Registry to strike -out the former entry of “declined,” and to record the party affiliation he desired, should have been granted, and the writ of mandamus to enforce that right ought to have issued. Although the writ would now be nugatory with respect to the plaintiff’s participation in the late municipal primary election, it may be of service in securing his rights in reference to the primary election to be held in September of the present year* and other such events in the future.

There were other questions raised in the argument, but the view we have taken of the case renders their discussion unnecessary.

Order reversed, with costs and case remanded.

*

( Council?—Rep.)