Faubus v. Fields

George Rose Smith, J.

At the general election last November the people adopted Amendment 51 to the Arkansas Constitution, creating a permanent system of voter registration. The Amendment empowers the State Board of Election Commissioners to adopt rules and regulations, consistent with the Amendment, for the administration of the registration system. The State Board is also authorized to approve detailed specifications for the Affidavits of Registration, consistent with the Amendment.

In January of this year the State Board met and approved a form for the Affidavits of Registration. In drafting this proposed Affidavit the Board added two items of information not specified by the Amendment: The voter’s race and his party affiliation. The Board also provided that the Affidavit might be sworn to not only before the Permanent Registrar or his deputy, as the Amendment directs, but also before any other person authorized by law to administer oaths. The Board later adopted, upon the advice of the Attorney General, a set of rules which recite that the three changes just mentioned will not become effective until enabling legislation has been passed by the General Assembly.

This is a taxpayer’s suit brought by the appellees" against the State Board of Election Commissioners for a judgment declaring that the three changes made by the Board were unauthorized and void. The Board filed an answer again admitting that “enabling legislation must be provided before the additions to the Affidavits of Registration will be required by law. ’ ’ The chancellor entered a decree finding the first two changes to be invalid but upholding the provision that the oaths might be administered by persons other than the Registrar and his deputies.

We take judicial notice of the fact that while this appeal was pending the General Assembly completed its regular session without enacting the contemplated enabling legislation. In this court the Board has abandoned its former position and now insists for the first time that. it had the power to make all three changes without an enabling act.

We are firmly of .the opinion that the Board was right in its original limited view of its own powers. Section 6 of the Amendment enumerates in meticulous detail ten items of information that must appear in the Affidavits of Registration. We briefly summarize these requirements:

1. The voter’s name and, in the case of a woman, her designation as Miss or Mrs.

2. The voter’s exact address.

3. The State or country of the voter’s birth.

4. If the voter was foreign born, the manner in which he acquired his American citizenship.

5. The date of his birth.

6. The fact, if it be true, that the voter cannot read or write.

7. The fact, if it be true, that the voter is unable to make a mark or cross on the affidavit or the, ballot.

8. The voter’s school district and voting precinct.

9. The name and address under which the voter was last registered in Arkansas.

10. The signature of the Permanent or Deputy Registrar.

Section 6 of the Amendment closes with this sentence, upon which the Board strongly relies: “(c) The State Board of Election Commissioners may require blank spaces for additional information, including supplements to the Record of Voting Form.”

It is .true that if we closed our eyes to the rest of this Amendment and confined our attention solely to the literal meaning of this single sentence, we might with some plausibility uphold what really amounts to a contention on the part of the Board that it has the power to amend this part of the Constitution. It is, however, our duty to consider the Amendment as a whole and to harmonize its various provisions if this can be done. Smith v. Cole, 187 Ark. 471, 61 S. W. 2d 55. Our endeavor, above all else, must be to ascertain the primary intent of the amendment and to give effect to that intent. Watkins v. Duke, 190 Ark. 975, 82 S. W. 2d 248. When, as here, two interpretations are permissible, we must not select one which allows the strict letter of the Amendment to defeat the dominant popular will. See Cockrill v. Dobbs, 238 Ark. 348, 381 S. W. 2d 756.

Section 6 of the Amendment was evidently drafted with much care. It enumerates the ten items of information that are to appear on the face of the Affidavits of Registration. It specifies the oath and the record of voting that are to appear on the back of the Affidavits. In this context we think it plain that subsection (c), upon which the Board relies, was intended merely to give the Board the power to implement the section as a whole, to the end that the designated items of fact might be obtained and sét forth with facility and with clarity.

Whether the voter’s race should be stated in the Affidavits and whether he should be compelled to disclose his party affiliation are obviously far-reaching questions of policy that could hardly have been ignored by the draftsmen of the Amendment. Their decision to omit those matters from the Affidavits was approved by the electors who voted to adopt the Amendment. "We find it impossible to believe that the people meant to confer upon an administrative board what in reality amounts to a broad power to amend the Constitution. Yet if we should sustain the Board’s authority to require a statement of entirely new facts not embraced within the enumeration contained in Section 6 we are unable to perceive the point at which the Board’s power would end.

If we had any misgivings about the correct interpretation of the Amendment our doubts would be set at rest by Section 19. That section provides in substance that the legislature may, by a two-thirds vote in each house, amend Sections 5 through 15 of the Amendment, so long as the amendatory legislation is consistent with the Amendment itself. It cannot reasonably be supposed that the people intended to confer both upon the State Board of Election Commissioners and upon the General Assembly the power to amend the. Constitution. It cannot reasonably be supposed that the people intended to confer upon a bare majority of the State Board of Election Commissioners a power so drastic, so extreme, that even the General Assembly should be permitted to exercise it only by a two-thirds majority. That Section 19 was inserted in the Amendment proves conclusively, we think, that the Board’s authority under Section 6 (c) is one of implementation rather than one of creation.

We are also of the opinion that the Board exceeded its powers in attempting to permit the oaths to be administered by someone other than the Begistrar and his deputies. Section 5 provides that eligible voters may register at the office of the Begistrar or at any other place designated by him. Section 6 (a, 10) directs that the Affidavit of Begistration be signed by the Begistrar or his deputy who receives the application. Section 9 (c) empowers the Begistrar and his deputies to administer the oaths to the Affidavits of Begistration. Section 9 (e) provides that if the voter is unable to register in person at the Registrar’s office by reason of sickness or disability the Registrar or his deputy may register the applicant at his home. We need not determine whether the legislature could, consistently with the Amendment, permit what might be regarded as absentee registration by allowing the oath to be taken before anyone authorized by law to administer an oath. In this case it is enough to say that the State Board is without authority to make this revision in the registration system.

A judgment will be entered in this court declaring all three of the changes in question to be ineffective and void.

Robinson and Johnson, JJ., dissent.